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Gauhati High Court · body

2010 DIGILAW 303 (GAU)

Ali Ahmed Mazumdar v. State of Assam & Ors.

2010-04-30

C.R.SARMA

body2010
C. R. Sarma, J.;- The controversy, in the present writ petition, has arisen due to holding of a meeting, on 05.08.2008, in connection with no confidence motion brought against the President of Krishnapur Bhairabnagar Gaon Panchayat, under the Presidentship of the Salchapra Anchalik Panchayat, in spite of the approval given by the said President of the 'Gaon Panchayat', to hold the meeting on 28.07.2008, in the Office of the Gaon Panchayat. 2. I have heard Mr. A. K. Goswami, learned Senior Advocate, assisted by Mr. A. R. Talukdar, learned counsel appearing for the writ petitioner. Also heard Mr. H. K. Barman, learned Government Advocate appearing for the State-respondents as well as Dr. B. Ahmed, learned counsel for the private respondets. 3. The case of the petitioner, in brief, as set out in the writ petition, may be stated as follows: The petitioner was the duly elected President of Krishnapur Bhairabnagar Gaon Panchayat under the Salchapra Anchalik Panchayat Constituency, Cachar, Assam. The total number of Ward Members of the Gaon Panchayat was ten. On 25.07.2008, the In-charge Secretary of the Gaon Panchayat, placed a letter/notice of no confidence motion received on 14.07.2008, from six Ward Members of the Gaon Panchayat against the petitioner. According to the petitioner, though he had no disagreement with any of the members, the In-charge Secretary, in collusion with the respondent No. 8 i.e. the husband of the President of Anchalik Panchayat, managed to bring the said no confidence motion. On receipt of the said notice from the In-charge Secretary, the petitioner, on the same day i.e. 25.07.2008 itself, issued order of approval, requiring the Secretary to convene meeting on 28.07.2008, but the In-charge Secretary, instead of taking steps to convene the meeting, falsely submitted a note before the President, indicating that as he had received the approval on 28.07.2008 at 11 a.m. it was not possible to hold the meeting due to shortage of time and that he would be required to refer the matter to the Salchapra Anchalik Panchayat on 31.07.2008. Due to failure of the In-charge Secretary to convene the said meeting, the petitioner approached the higher authorities i.e. the respondent Nos. 4 and 5 on 28.07.2008 and requested them to convene the meeting at the earliest. Due to failure of the In-charge Secretary to convene the said meeting, the petitioner approached the higher authorities i.e. the respondent Nos. 4 and 5 on 28.07.2008 and requested them to convene the meeting at the earliest. The In-charge Secretary, as alleged by the petitioner, even after receipt of the notice of no confidence motion on 14.07.2008 and in spite of receiving the approval on 25.07.2008 for holding the meeting on 28.07.2008, illegally refused to convene the meeting within the statutory period with mala fide intention and referred the matter to the Anchalik Panchayat on 31.07.2008. Accordingly, the no confidence motion was taken up for consideration in the meeting held on 05.08.2008, in the Office of the Anchalik Panchayat and the same was adopted by majority vote. 4. As the no confidence motion, adopted in the meeting held on 05.08.2008, was not approved by the appropriate authorities, seven members of the Gaon Panchayat approached this Court by filing writ petition being W.P.(C) No. 4144 of 2008. This Court vide order, dated 05.11.2008, passed in the said writ petition, took notice that the respondent No. 2 i.e. the Deputy Commissioner, Cachar, had already approved the removal of the petitioner from the Office of the President of the Gaon Panchayat and allowed the Vice President of the said Panchayat to perform the functions and exercise the powers and discharge the duties of the President of the Gaon Panchayat. In view of the above, the said writ petition was closed. 5. According to the petitioner, the in-charge Secretary, in collusion with the President of the Anchalik Panchayat and her husband i.e. respondent No. 8, illegally managed to hold the meeting under the Chairman of the Anchalik Panchayat and got the no confidence motion adopted by exercising undue influence and without allowing the members to make any deliberation against the no confidence motion. Being aggrieved, the petitioner has approached this Court by invoking the writ jurisdiction for setting aside the proceeding of the meeting held on 05.08.2008 and the order passed subsequent thereto. 6. Mr. A. K. Goswami, learned Senior counsel, referring to the provisions of Section 15 of the Assam Panchayat Act, 1994, submitted that the Secretary of the Gaon Panchayat, committed illegality by not convening the meeting on 28.07.2008, even after receipt of the approval from the President of the Gaon Panchayat on 25.07.2008. 6. Mr. A. K. Goswami, learned Senior counsel, referring to the provisions of Section 15 of the Assam Panchayat Act, 1994, submitted that the Secretary of the Gaon Panchayat, committed illegality by not convening the meeting on 28.07.2008, even after receipt of the approval from the President of the Gaon Panchayat on 25.07.2008. The learned senior counsel further submitted that the President, having granted the approval on 25.07.2008, the In-charge Secretary got sufficient time to hold the meeting on 28.07.2008 but, for serving his own interest and with a view to take the matter to the Anchalik Panchayat, intentionally help up the matter and after the expiry of 15 days, referred the same to the Anchalik Panchayat. It is further contended that as the President had granted approval, even if the Secretary could not hold the meeting on 28.07.2008, there was no bar in holding the meeting subsequently after obtaining fresh date and approval. It is contended, by the learned senior counsel that the holding of meeting under the Presidentship of the Anchalik Panchayat was not lawful and as such the no confidence motion, adopted in the said meeting, cannot be acted upon and as such the same is liable to be set aside. Refuting the said argument advanced by the learned senior counsel, appearing for the petitioner, Dr. B. Ahmed, learned counsel appearing for the private respondents, submitted that as per the official correspondence, as revealed from the note-sheet (Annexure-B/2) maintained in the Office of the Gaon Panchayat, the notice of no confidence motion was placed before the President on 21.07.2008 but, the President, in spite of signing the approval on 25.07.2008, did not release the file till 28.07.2008 and as such, the In-charge Secretary, who received the file on 28.07.2008 i.e. on the 15th day of receipt of the notice of motion, which was the last day prescribed, had no other alternative but to refer the matter to the Anchalik Panchayat, as per law. The learned counsel further submitted that as all the members of the Gaon Panchayat, who signed the no confidence motion, participated and voted in favour of the said motion, without any objection, the holding of the meeting under the Chairmanship of the President of the Anchalik Panchayat caused no prejudice to the petitioner and as such the action taken in the said meeting was not unlawful. It is also submitted that all the said members supported the resolution adopted on 05.08.2008, by filing the Misc. case No. 678/2009, prayed for vacating the interim order, dated 02.03.2009, passed in WP(C) No. 5266 of 2008. 7. In support of the above contention, Dr. Ahmed, learned counsel appearing for the private respondents, has placed reliance on the following decisions:- (1) Aleya Khatun & Ors. Vs. State of Assam & Ors.: 2004 (3) GLT361; (2) Basanti Das Vs. State of Assam & Ors.: 2004 (Supp) GLT 717; (3) Mumtaz Rana Laskar & Ors. Vs. State of Assam & Ors.: 2006 (1) GLT 46; (4) Forhana Begum Laskar Vs. State of Assam & Ors.: 2009 (3) GLT575. 8. In order to appreciate the counter arguments advanced by the learned counsels, appearing on behalf of the parties, I find it appropriate, firstly, to take notice of Section 15(1) of the Assam Panchayat Act, 1994 (hereinafter called 'the Act'), which reads as follows:- "15. No-confidence motion against the President and Vice-President(1) Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two-third of the total number of members of the Gaon Panchayat. Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shall be presided over by the President if the motion is against the Vice-President and by the Vice-President, if the motion is against the President. In case, such a meeting is not convened within a period of fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat shall, within three days, refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting. In case, the President of the Anchalik Panchayat does not take action as above within the specified seven days' time, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional officer (Civil), as the case may be, within three days after expiry of the stipulated seven days time and the concerned Deputy Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened; provided that the concerned Deputy Commissioner/Sub-Divisional Officer (C), as the case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class I Gazetted Officer to preside over such meeting. Provided further that when a no-confidence motion is lost, no such motion shall be allowed in the next six months. (2) The requisition for such a special meeting under sub-section (1) shall be signed by not less than one-third of the total number of members of the Gaon Panchayat and shall be delivered to the President or Vice-President, as the case may be, of the concerned Gaon Panchayat with intimation to the Deputy Commissioner of the district. (3) Without prejudice to the provision under this act a President or a Vice President of a Gaon Panchayat with the approval of the Zilla Parishad for misconduct of his/her duties or neglect or incapacity to perform his/her duties or for being persistently remiss in the discharge or, guilty of any disgraceful conduct and President or Vice-President so removed shall not be eligible for re-election as President or Vice-President during the remaining term of office either as President or Vice-President of such Gaon Panchayat; provided that no such President or Vice-President or a Gaon Panchayat shall be removed from office unless he is given reasonable opportunity to furnish explanation to the Anchalik Panchayat; (4) A Vice-President so removed from his office under sub-section (3) may also be removed from membership of the Gaon Panchayat by the Government after giving the member a reasonable opportunity to furnish his explanation. (5) If under sub-section (1), the members of the Gaon Panchayat express want of confidence both in the President and Vice-President of the Gaon Panchayat, at the same time and issue notices, the Secretary of the Gaon Panchayat, within seven days from the date of receipt of such notices, shall report the matter to the President of the concerned Anchalik Panchayat who shall arrange to convene the meetings within fifteen days from the date of receipt of the intimation separately to consider the motion against the President first and to consider the motion against the Vice-President next days and shall preside over both the meetings. The President of the concerned Anchalik Panchayat presiding the meetings shall have no vote. In case, the President of the concerned Anchalik Panchayat does not take action as above, the Secretary of the Gaon Panchayat within three days after the expiry of the stipulated fifteen days time, shall refer the matter to the concerned Deputy Commissioner of the Sub-Divisional Officer (C), as the case may be. On receipt of the information, the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, shall convene both the meetings in the manner as above, within fifteen days from the date of receipt of the information with intimation to the conemed Anchalik Panchayat and Zilla Parishad and preside over such meetings: provided that the concerned Deputy Commissioner or the Sub-Divisional Officer, as the case may be, in case of his inability to preside over the meeting, may depute a Gazetted officer not below the rank of Class I Gazetted Officer to preside over such meetings; provided further that if it is not possible to hold the meeting for a situation due to non attendance of the requisite number of members in such meeting or meetings, as the case may be, the non-confidence motion shall automatically stand cancelled and motion shall be deemed to have lost, in the event of which no such motion shall be allowed within the next six months." 9. A careful reading of Section 15(1) of the Act, emphatically indicates that once a no confidence motion, against the president or the Vice President, is passed by majority of two-third of the total number of the members of the Gaon Panchayat, the President or the Vice President, as the case may be, should be deemed to have vacated their office forthwith. The legislature thought it appropriate to direct holding of a meeting for consideration of the no confidence, brought against the President or the Vice President, in the office of the Gaon Panchayat to be presided over by the President, if the motion is against the Vice President and by the Vice President, if the motion is against President, within a period of fifteen days from the date of receipt of the notice. It is made clear that if the meeting is not convened within a period of fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat was duty bound to refer the matter to the President of the Anchalik Panchayat, who on such reference, has the obligation to convene the meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat. The above provision makes it abundantly clear that, under no circumstances, the no confidence motion brought against the President or the Vice President can be held up, without being placed before the meeting of Members of the Gaon Panchayat, beyond the period of fifteen days from the date of receipt of the such notice. It is the statutory requirement that such no confidence motion is to be taken up for consideration within fifteen days from the receipt of the notice. In the event of failure to convene the meeting within the said fifteen days period for any reason, the second course open to the Secretary of the Gaon Panchayat was to refer the matter, within three days, from the period of the last day of the said 15 days i.e. within 18 days from the date of receipt of such no confidence notice. 10. In the case in hand, admittedly, the notice of no confidence motion was received by the Secretary on 14.07.2008. Therefore, the meeting of the Gaon Panchayat was required to be held on or before 28.07.2008. It is also the admitted position that the meeting was not held on the said date. There is no dispute that the Secretary of the Gaon Panchayat, failing to convene the meeting within the said statutory period, referred the matter to the President of the Anchalik Panchayat on 31.07.2008 i.e. within three days from 28.07.2008. It is also the admitted position that the meeting was not held on the said date. There is no dispute that the Secretary of the Gaon Panchayat, failing to convene the meeting within the said statutory period, referred the matter to the President of the Anchalik Panchayat on 31.07.2008 i.e. within three days from 28.07.2008. Under the provision of Section 15(1) of the Act, on receipt of such reference, the President of the Anchalik Panchayat is required to convene the meeting within seven days from the date of receipt of the information. The special meeting held on 05.08.2008 in connection with the said no confidence motion, was chaired by the President, Salchapra Anchalik Panchayat and the no confidence motion, after a thread-bare discussion, was unanimously adopted by seven members of the Gaon Panchayat, who casted their vote by secret ballots. All the signatories of the no confidence motion participated in the said meeting and they voted in favour of the motion. As there was delay in taking necessary follow up action in respect of the no confidence resolution, the members of the Gaon Panchayat, who signed the no confidence motion and voted in favour of the same, in the meeting held on 05.08.2008, subsequently, approached this Court, seeking a direction, and this Court vide order, dated 05.11.2008, closed the matter, taking note that necessary action towards implementing the resolution adopted in the above referred special meeting dated 05.08.2008 was already taken. 11. In view of pursuing the "no confidence resolution" by none other than the members of the Gaon Panchayat, who voted in favour of the no confidence motion, even by filing a writ petition, abundantly makes it clear that they were very much interested to see that the no confidence was acted upon. This action/initiative taken by the members of the Gaon Panchayat and the petition filed by the members of the Gaon Panchayat in the Misc. Case No. 678/2009 in this case, negates the petitioner's contention that the Secretary of the Gaon Panchayat, for his ulterior motive and in order to serve his own interest, managed to get the no confidence motion adopted in the meeting of the Anchalik Panchayat by exercising influence/pressure upon the members of the Gaon Panchayat. Admittedly, the members of the Gaon Panchayat were democratically elected members of the democratic institution. If there was any undue influence, force etc. Admittedly, the members of the Gaon Panchayat were democratically elected members of the democratic institution. If there was any undue influence, force etc. compelling their participation in favour of the no confidence motion, there was no difficulty on their part to seek appropriate reliefs. On the contrary, filing of the writ petition being WP(C) No. 4144 of 2008 aforesaid and the prayer in Misc. Case No. 678/2009 aforesaid, seeking follow-up action with regard to the "no confidence resolution", lead to hold that there was no force or influence, compelling the said members to vote in favour of the no-confidence motion. Rather, it stood established that the said democratically elected members exercised their democratic right and democratically ousted the petitioner from his Office by a two-third majority vote. 12. The crux of the dispute is that the Secretary, with the ulterior motive, in spite of receiving the approval for holding the meeting on 25.07.2008, held up the matter till the last date and thus, managed to carry the matter to the Anchalik Panchayat. Note-sheet of the file (Annexure-C/1), maintained in the Office of the Gaon Panchayat reveals that the Secretary had put up the note on 21.07.2008 before the President, seeking approval for holding the meeting to consider the notice of no confidence motion and the President signed the approval on 25.07.2008, fixing the meeting on 28.07.2008 at 2.30 p.m. After receipt of the file, the Secretary, again, put up a note before the President, indicating that the file was received by him on 28.07.2008 at 11.30 a.m. and as such it was not possible to hold the meeting at such a short notice. The Secretary, made it clear, in the said note, that as the meeting could not be held within fifteen days, he would refer the matter to the Anchalik Panchayat within three days i.e. on 31.08.2008. The petitioner gave a note mentioning that, due to negligence of duty on the part of the Secretary, the meeting could not be held. The President, again, vide his order, dated 29.07.2008, directed to hold the meeting in the Office of the Gaon Panchayat as early as possible. The petitioner gave a note mentioning that, due to negligence of duty on the part of the Secretary, the meeting could not be held. The President, again, vide his order, dated 29.07.2008, directed to hold the meeting in the Office of the Gaon Panchayat as early as possible. On receipt of such order, the Secretary gave a note on 31.07.2008, stating therein, that since the prescribed period of fifteen days had expired, it would not be possible to convene the meeting and that he was required to refer the matter to the Gaon Panchayat. The petitioner, in support of his contention, that he has the President had granted the approval on 25.07.2008, annexed the letter dated 25.07.2008 issed to the Chief Executive Officer, Cachar Zilla Parishad and the President, Salchapra Anchalik Panchayat, indicating therein that in spite of granting approval the Secretary failed to convene the meeting on 28.07.2008. Annexure-B i.e. the letter issued to the Chief Executive Officer, indicates that the same was received by some person by putting a seal, which was not legible. The said letter appears to be received on 25.07.2008. The issuance of the said letter dated 25.07.2008 does not lead to the conclusion that the concerned file was returned to the Secretary on 25.07.2008. No official record has been produced to show that the file containing the approval, for holding the meeting on 28.07.2008, was made available to the Secretary on 25.07.2008. Whether the file was received by the Secretary on 25.07.2008 or prior to 28.07.2008, is a matter of controversy requiring initiation of a process leading to finding of facts. This exercise cannot, however, be taken up by this Court in deciding a writ petition under Article 226 of the Constitution of India. 13. In the case of Mumtaz Rana Laskar & Ors. Vs. State of Assam & Ors., reported in 2006 (1) GIT 46, the Hon'ble Division Bench of this Court, while interpreting the provision of Section 15(1) of the Act, observed as follows:- "................The legislature in its wisdom for whatever reason thought it fit that a special meeting for the purpose of considering a no confidence motion against a President or a Vice President, as the case may be, cannot be convened without the prior approval of the President against whom the motion itself may have been moved. In case if the meeting could not be convened within the period of fifteen days the Secretary of the Gaon Panchayat is required to refer the matter to the President of the Anchalik Panchayat within three days of expiry of period of fifteen days and upon such reference the President of the Anchalik Panchayat is required to convene the meeting within seven days from the date of receipt of the information from the Secretary..........." Therefore, the Secretary of the Panchayat is entrusted with a ministerial duty to carry the matter to the President, in the event of failure to hold a meeting within the prescribed period of fifteen days. The Hon'ble Division Bench of this Court referred the following instructive passage from Maxwell on the interpretation of statutes: "the first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive) ? In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment, "an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." 14. Therefore, in the light of the above, there can be no dispute that it was the intention of the legislature that in the event of failure to hold the meeting within the stipulated period of fifteen days, for whatever reason, the Secretary is duty bound to refer the matter to the Anchalik Panchayat so that the no confidence motion brought against the President or the Vice President is taken up for consideration without any delay. No provision was made for extension of the said statutory period, thereby facilitating holding of meeting in the Gaon Panchayat level, even after the expiry of the statutory period. Admittedly, the matter involved democratic process, requiring participation of the democratically elected members in respect of functioning of a democratic Institution. No provision was made for extension of the said statutory period, thereby facilitating holding of meeting in the Gaon Panchayat level, even after the expiry of the statutory period. Admittedly, the matter involved democratic process, requiring participation of the democratically elected members in respect of functioning of a democratic Institution. Therefore, as required by the statute, it was the duty of the Secretary to convene the meeting in accordance with law. If it is established or proved, by due process of law, that the Secretary, for his own interest committed any illegality, he would be liable as per law. 15. The Hon'ble Division Bench, in the above referred case, expressed Their Lordships' disagreement with the view taken by the learned Single Judge in Aleya Khatun & Ors. Vs. State of Assam & Ors., reported in 2004 (3) GLT361 and Basanti Das Vs. State of Assam & Ors., reported in 2004 (Supp) GLT 717, wherein the learned Single Judge has taken the view that the prescription of Section 15(1) of the Act vis-a-vis the procedure and the time schedule relatable to the date suggested thereof are invariably mandatory so much so that any departure, even minimal would render it illegal. Accordingly, Their Lordships found it difficult to agree with the broad propositions articulated in the said judgments. The Hon'ble Division Bench, further observed as follows:- "On an analysis of the binding precedents above leads us to irresistible conclusion that a mere procedural irregularity in the matter of making the reference by the Secretary of the Gaon Panchayat either to President of the Anchalik Panchayat or to the Deputy Commissioner, as the case may be, shall have no bearing what sover upon the resolution passed in the specially convened meeting expressing want of confidence in the President or the Vice President of the Gaon Panchayat, as the case may be. That itself would not result in causing any prejudice to the person against whom the motion is carried out." 16. In the light of the above principle and the interpretation of law, it transpires that after the expiry of the statutory period of 15 days, the Secretary had no other alternative, but to refer the matter to the President of the Anchalik Panchayat. In the light of the above principle and the interpretation of law, it transpires that after the expiry of the statutory period of 15 days, the Secretary had no other alternative, but to refer the matter to the President of the Anchalik Panchayat. The motion being adopted by two-third of the total number often members and all the signatories of the no confidence motion having participated and voted in favour of the motion, the place of holding the meeting became non-significant because in the event of holding of the meeting in the Gaon Panchayat level also, the said members, who participated and voted in the meeting held in the Anchalik Panchayat would have certainly participated. This view is fortified by filing of the writ petition W.P. (C) No. 4144 of 2008 and Misc. Case No. 678/2009, by the said members of the Gaon Panchayat. As the resolution was adopted by two-third majority in a democratic manner, after expiry of 15 days from the date of issuance of the notice of no confidence motion and within the statutory period of 25 days from the date of issuance of no confidence motion and in the absence of anything to show that the resolution has adopted in an undemocratic manner, I am inclined to hold that the said "no confidence motion" was adopted following the statutory procedure prescribed by Section 15(1) of the Act. Therefore, considering the totality of the matter, I find that no procedural violation and illegality was committed causing prejudice to the writ petitioner. Therefore, I find no merit in this writ petition, requiring interference in exercise of powers under the writ jurisdiction. 17. In view of the above discussions, this writ petition stands dismissed. No order as to costs.