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2010 DIGILAW 195 (GAU)

Sita Satnami v. State of Assam

2010-03-12

BROJENDRA PRASAD KATAKEY

body2010
JUDGMENT B.P. Katakey, J. 1. The petitioner, who was the President of Tokoubari Gaon Panchayat in the district of Sonitpur, has filed this petition challenging the resolution dated 3.8.2009 adopted in the meeting of the Gaon Panchayat expressing want of confidence on her, basically on the ground of violation of the provisions of Section 15 of the Assam Panchayat Act, 1994 ("the Act"). 2. The facts necessary for the purpose of disposal of the present case are that a notice expressing want of confidence on the petitioner was delivered to the secretary of the Tokoubari Gaon Panchayat on 9.7.2009, on the basis of which the Secretary of Tokoubari Gaon Panchayat on 10.7.2009 prepared a note for placing the same before the petitioner, who was the president of the Tokoubari Gaon Panchayat and accordingly the same was placed before her on 16.7.2009. Since no meeting was convened by the petitioner to discuss the no confidence motion brought against her, the Secretary of the Tokoubari Gaon Panchayat on 27.7.2009 referred the matter to the President of Chaiduar Anchalik Panchayat, within whose jurisdiction Tokoubari Gaon Panchayat falls, who vide order dated 28.7.2009 convened the meeting of Tokoubari Gaon Panchayat to discuss the no confidence motion brought against the petitioner fixing 3.8.2009 as the date for such meeting. The said meeting was attended by the petitioner and the resolution expressing want of confidence on her was adopted by majority of 2/3rd of the total number of members of the said Gaon Panchayat. The petitioner, therefore, was removed from the office of the President of Tokoubari Gaon Panchayat. Hence, the present petition. 3. I have heard Mr. P.P. Baruah, the Learned Counsel for the petitioner, Mrs. H.M. Phookan, the Learned State Counsel appearing for the respondent Nos. 1 to 6 as well as Mr. R.P. Sarma, the Learned Senior Counsel appearing for the respondent Nos. 7 to 13. 4. Mr. Hence, the present petition. 3. I have heard Mr. P.P. Baruah, the Learned Counsel for the petitioner, Mrs. H.M. Phookan, the Learned State Counsel appearing for the respondent Nos. 1 to 6 as well as Mr. R.P. Sarma, the Learned Senior Counsel appearing for the respondent Nos. 7 to 13. 4. Mr. Baruah, the Learned Counsel appearing for the petitioner referring to the provision contained in Sub-section (1) of Section 15 of the Act has submitted that the Secretary of the Gaon Panchayat cannot refer the matter relating to the want of confidence to the President of the concerned Anchalik Panchayat before expiry of 15 days from the date of receipt of the notice, which would be, according to the Learned Counsel, from the date when such notice was delivered to the President or the Vice-President as the case may be, of the concerned Gaon Panchayat, in view of Sub-section (2) of Section 15 of the Act. According to Mr. Baruah, since the notice expressing want of confidence on the petitioner was brought to her notice on 16.7.2009, the petitioner would get 15 days time to convene the meeting under Sub-section (1) of Section 15 of the Act and only in the event, the President fails to convene such meeting within the aforesaid period of time, the Secretary of the Gaon Panchayat assumes jurisdiction to refer the matter to the President of the concerned Anchalik Panchayat, the provision of Sub-section (1) of Section 15relating to the time limit of 15 days of convening the meeting after receipt of the notice expressing want of confidence being mandatory. Mr. Baruah has submitted that since the Secretary has referred the matter to the President of the Anchalik Panchayat on 27.7.2009 before expiry of 15 days from 16.7.2009, the action on the part of the Anchalik Panchayat in convening the meeting of the Gaon Panchayat fixing 3.8.2009 is contrary to the provision contained in Section 15 of the Act and as such illegal. Referring to Sub-section (3) of Section 17 of the Act, Mr. Referring to Sub-section (3) of Section 17 of the Act, Mr. Baruah submits that the notice convening any meeting of the Gaon Panchayat has to disclose the business to be transacted and since in the notice dated 28.7.2009 issued by the President of Chaiduar Anchalik Panchayat, the business to be transacted in such meeting has not been mentioned, any resolution adopted in the meeting dated 3.8.2009 is contrary to the provisions of the Act. In support of his contention that the provisions of Section 15(1) relating to the 15 days time limit for convening the meeting of the Gaon Panchayat to discuss the motion expressing want of confidence, is mandatory, Mr. Baruah places reliance on a full bench decision of this Court in Forhana Begum Laskar v. State of Assam and Ors. 2009 (3) GLT 575. 5. Ms. Phookan, the Learned State Counsel appearing for the respondent Nos. 1 to 6 referring to the affidavit dated 28.10.2009 filed by the Secretary of Tokoubari Gaon Panchayat has submitted that though the Secretary of the said Gaon Panchayat on receiving the notice expressing want of confidence on 9.7.2009 prepared the note dated 10.7.2009 for submission before the President of the Gaon Panchayat, the same could be placed before the President only on 16.7.2009. It has further been submitted that though under Sub-section (1) of Section 15 of the Act, the meeting to discuss the. motion of want of confidence is required to be convened within 15 days from 10.7.2009, as the petitioner did not convene the meeting within the said period, the Secretary of the Gaon Panchayat on 27.7.2009 referred the matter to the President of the Anchalik Panchayat concerned. According to the Learned Counsel no illegality has been committed by the Secretary in making such reference. 6. Mr. Sarma, the Learned Senior Counsel appearing for the respondent Nos. According to the Learned Counsel no illegality has been committed by the Secretary in making such reference. 6. Mr. Sarma, the Learned Senior Counsel appearing for the respondent Nos. 7 to 13, who submitted the notice before the Secretary of the Tokoubari Gaon Panchayat expressing want of confidence on the petitioner, has submitted that it is apparent from the note of the Secretary of the Gaon Panchayat that such notice was given on 10.9.2009 and since the President of the Tokoubari Gaon Panchayat, i.e., the petitioner, against whom such no confidence motion was brought, did not convene the meeting of the Gaon Panchayat to discuss such motion within 15 days there from, the Secretary of the Gaon Panchayat had rightly referred the matter to the President of the Anchalik Panchayat on 27.7.2009, who in turn vide order dated 28.7.2009 fixed the date for holding such meeting as 3.8.2009. Mr. Sarma, therefore, submits that the Secretary of the Tokoubari Gaon Panchayat in fact strictly adhered to the time limit given in Sub-section (1) of Section 15 of the Act, even if it is mandatory in nature. Mr. Sarma, however, has submitted that the provisions of Sub-section (1) of Section 15 of the Act is not mandatory in nature, the time limit envisaged in the said provision being procedural, as held by two division bench judgments of this Court in Mumtaz Rana Laskar and Ors. v. State of Assam and Ors. 2006 (1) GLT 46 and Habibur Rahman v. State of Assam and Ors. 2006 GLT 218. It has farther been submitted by Mr. Sarma that the requirement of Section 17 of the Act cannot be applied in a specially convened meeting of the Gaon Panchayat to discuss the motion of no confidence brought against its President or Vice-President, the said provision being applicable to the ordinary meeting of the Gaon Panchayat required to be held at least in two months to transact its business under Sub-section (1) or a special meeting convened by the President whenever he thinks it fit or at the request of not less then 1/3rd of the total numbers. According to Mr. According to Mr. Sarma, since the meeting in question was convened under Section 15 of the Act to discuss the motion of want of confidence, the said meeting is a specially conveyed meeting under Section 15 of the Act and not the meeting as envisaged under Section 17 of the said Act and, hence, the provisions of Section 17cannot be applied in a specially conveyed meeting under Section 15 of the Act. The further contention of the Learned Senior Counsel is that even assuming that the notice expressing want of confidence was delivered to the. President, i.e., the petitioner on 16.7.2009, since the meeting was convened on 3.8.2009, on which date, the resolution expressing want of confidence against the petitioner was adopted, i.e., after expiry of more than 15 days, no prejudice has been caused to the petitioner, more so when she had participated in such meeting. 7. I have considered the submissions of the Learned Counsel for the parties and also perused the pleadings of the parties including the records as produced by the Learned State Counsel. 8. It is not in dispute that seven members of Tokoubari Gaon Panchayat submitted a notice dated 9.7.2009 to the Secretary of the Gaon Panchayat. The Secretary on the basis of such notice prepared a note on the next day, i.e., on 10.7.2009, which, however, could not be placed before the President of the Gaon Panchayat, the petitioner, on that day itself. It is evident from the averments made in the affidavit dated 28.10.2009 filed by the Secretary of the Gaon Panchayat as well as the records produced that the said notice was placed before the petitioner only on 16.7.2009. 9. Sub-section (1) of Section 15 of the Act requires the Secretary of the Gaon Panchayat to convene the meeting with the approval of the President of the Gaon Panchayat to discuss the notice expressing want of confidence on the President or the Vice-President, as the case may be, of such Gaon Panchayat. It empowers the Secretary of the Gaon Panchayat to refer the matter to the President of the concerned Anchalik Panchayat only in the event the President of the Gaon Panchayat do not approve convening of such meeting within 15 days from the date of receipt of the notice. It empowers the Secretary of the Gaon Panchayat to refer the matter to the President of the concerned Anchalik Panchayat only in the event the President of the Gaon Panchayat do not approve convening of such meeting within 15 days from the date of receipt of the notice. Sub-section (2) of Section 15 requires that the requisition for such meeting under Sub-section (1) shall have to be signed by not less then 1/3rd of total number of members of the Gaon Panchayat and such requisition has to be delivered to the President or Vice-President concerned with information to the Deputy Commissioner of the district. 10. Reading both the Sub-sections (1) and (2) of Section 15 together, it, therefore, transpire that the President of the Gaon Panchayat is required to give the approval for convening the meeting of the Gaon Panchayat to discuss any motion brought either against the President or the Vice-President of such Gaon Panchayat expressing want of confidence, so that such meeting is convened within 15 days from the date when the requisition for such a special meeting is delivered to the President or the Vice-President, as the case may be, as required under Sub-section (2) of Section 15 of the Act. Sub-section (1) of Section 15 of the Act empowers the Secretary to refer the matter only in the event the President fails to give the approval for convening the meeting of the Gaon Panchayat to discuss the notice expressing want of confidence within 15 days from the date of the delivery of such written requisition signed by not less then 1/3rd of total members of the Gaon Panchayat to the President or the Vice-President, as the case may be. The Secretary of the Gaon Panchayat before expiry of 15 days from the date of delivery of such requisition to the President or the Vice-President, as the case may be, cannot refer the matter to the President of the Anchalik Panchayat, as the Legislature in clear terms confers jurisdiction on the Secretary to act only after expiry of 15 days from the date of delivery of such requisition to the President or the Vice-President, as the case may be. 11. 11. In the instant case, the requisition for the meeting as envisaged under Sub-section (1) of Section 15 of the Act was delivered to the petitioner on 16.7.2009 and, hence, the Secretary of the Gaon Panchayat shall assume jurisdiction only after expiry of 15 days thereafter, to refer the matter to the President of the Anchalik Panchayat, but the Secretary of Tokobari Gaon Panchayat on 27.7.2009 referred the matter to the President of the Anchalik Panchayat, which is in flagrant transgression of the statutory provision contained in Sub-section (1) of Section 15 of the Act. Consequently all the subsequent action taken by the President of the Anchalik Panchayat including holding of the meeting dated 3.8.2009, pursuant to such reference made by the Secretary of the Gaon Panchayat on 27.7.2009 are illegal. Such action on the part of the Secretary to refer the matter to the President of the Anchalik Panchayat having found to be without jurisdiction, the plea of not causing prejudice to the petitioner, would not cure such action. 12. In view of the aforesaid discussions, the question as to whether the provision contained in Sub-section (1) of Section 15 of the Act relating to the time limit of 15 days for convening the meeting after delivery of the requisition for convening a meeting expressing, want of confidence is mandatory or not, has not been gone into in the case in hand. However, it may be noticed that though the division benches of this Court in Mumtaz liana Laskar (supra) and Habibur Rahman (supra) has held that certain portion of Section 15(1) of the Act is not mandatory but is directory, a full bench of this Court in Forhana Begum (supra) in paragraph 26 has opined as under: 26. Reading between the lines, it does not transpire to us that the above view rendered by the Division Bench can be construed to denote that the entire scheme of Section 15 in all its essential features has been enunciated to be directory and not mandatory. It rather seems to accentuate that each and every departure from the procedure and the time schedule contained therein, however, miniscule would not impair the exercise so as to decisively annihilate the same. It rather seems to accentuate that each and every departure from the procedure and the time schedule contained therein, however, miniscule would not impair the exercise so as to decisively annihilate the same. In the contextual facts of the present appeal and the contraventions already noticed hereinabove, which we construe to be sufficient to answer the issues presently raised we do not consider it essential to embark on a recruiting of this proposition in the instant proceeding. 13. In view of the aforesaid discussions, the impugned resolution adopted by Tokoubari Gaon Panchayat in its meeting dated 3.8.2009 is held as illegal being contrary to the provisions of Section15 of the Act and as such, the same is set aside. 14. The writ petition is accordingly allowed. However, keeping in view the facts and circumstances of the case, the parties are directed to boar their own cost. Petition allowed