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Gauhati High Court · body

2010 DIGILAW 357 (GAU)

Nosir Ahmed Mazumder v. State of Assam and Ors.

2010-05-20

H.N.SARMA

body2010
1. The writ petitioner was duly elected as President of the Chandipur G.P. under the territorial jurisdiction of Algapur Anchalik Panchayat in the district of Hailakandi in the panchayat election held on 26.2.2008. While he was holding the office, the petitioner was removed by the impugned resolution of the Chandipur Gaon Panchayat held on 7.11.2009 expressing no confidence by 8 members of the Panchayat in terms of the provisions of section 15 of the Assam Panchayat Act, 1994. The decision making process adopted by the Panchayat expressing no confidence against the petitioner held on 7.11.2009 and the manner and method of holding the meeting has been challenged in this writ petition, seeking judicial review thereof. 2. I have heard Mr. P. Pathak, learned senior counsel assisted by S.K. Medhi advocate for the petitioner. Also heard Mr. H.RA. Choudhury, the learned senior counsel assisted by Mr. J.I. Borbhuiya, advocate appearing for the respondent No.5, Dr. B. Ahmed, learned counsel appearing for the respondent Nos.10 to 14, Mr. T.J. Mahanta, learned counsel appearing for the respondent Nos.6 to 9 and Mrs. V.L. Sinha, learned Addl. Senior Government Advocate for the state respondents. 3. While the petitioner was functioning as elected President of the Chandipur G.P., 8 members of the Panchayat submitted certain allegations against him and expressed their no confidence against the petitioner to hold the office of the President. Upon receipt of the requisition the Secretary of the Panchayat having brought it to the notice of the petitioner as President, the petitioner instructed the Secretary to convene a special meeting to discuss the no confidence motion against him on 23.9.2009. Accordingly the meeting was convened. However, just on the previous day from of the date fixed for holding the meeting to discuss the no confidence issue, the Deputy Commissioner-cum-District Magistrate of the District issued an order dated 22.9.2009 suspending forthwith the no confidence meeting scheduled to be held on 23.9.2009 fixed the meeting on 7.10.2009 in the Conference Hall of the Zilla Parishad, a venue other than the earlier scheduled. The said order also discloses that such action has been taken by the District Magistrate on perusal of the letter from the S.P. Hailakandi and on examination and consideration of all aspects and on the request of the S.P., Hailankandi to change the date and venue of the meeting. The said order also discloses that such action has been taken by the District Magistrate on perusal of the letter from the S.P. Hailakandi and on examination and consideration of all aspects and on the request of the S.P., Hailankandi to change the date and venue of the meeting. Upon receipt of the order the petitioner, on the same day, submitted an application before the Deputy Commissioner objecting the decision and requested him to allow to hold the no confidence meeting on the place and date as scheduled on 23.9.2009 in the office of the Panchayat. It is specifically stated by the petitioner that no such situation as indicated by the S.P. for postponement of the date and change of the venue of the meeting has arisen. However no action on the prayer made by the petitioner having been taken by the Deputy Commissioner, the meeting was held on 7.10.1999 to discuss the no confidence motion on the venue fixed by the Deputy Commissioner, i.e., in the office of the Conference Hall of the Zilla Parishad. In the said meeting the 8 members present alleged to have voted against the petitioner and the Vice-President of the G.P. presided over the meeting. In the said meeting the no confidence motion was carried out against the petitioner. Challenging the said decision token in the meeting held on 7.11.2009, the present Writ Petition has been filed. 4. Mr. P. Pathak learned senior counsel has contended that section 15 of the Panchayat Act do not authorize the Deputy Commissioner or the District Magistrate to postpone the date and change the venue of the meeting thereby extending the time to hold the meeting beyond the statutory period as prescribed. Such action having been taken by the District Magistrate in a purported manner without adverting to the underlying situation and without assessing the facts and circumstances germane to the issue involved justifying to take such a decision is not sustainable in law. Further contention of the learned counsel is that the District Magistrate acted at the instance of some of the interested members and/or the persons acting under them who are bent on ousting the petitioner at any cost without any justifiable reason and the decision has been taken without any objective study of the situation thereby causing prejudice to the petitioner. Further contention of the learned counsel is that the District Magistrate acted at the instance of some of the interested members and/or the persons acting under them who are bent on ousting the petitioner at any cost without any justifiable reason and the decision has been taken without any objective study of the situation thereby causing prejudice to the petitioner. Finally it is contended that the District Magistrate acted in a most illegal and arbitrary manner thereby violating the provisions of section 15 of the Panchayat Act which renders the entire action making illegal and non est in the eye of law. 5. Per contra Mr. Choudhury referring to the statements made in the counter affidavit submits that there arose a great apprehension not only in the mind of the members of the Panchayat but also in the mind of the people of the locality that there is a likelihood of breach of peace and adverse law and order situation in the event of holding the meeting on the date and venue fixed, inasmuch as, the supporters of the petitioners threatened the members of the Panchayat with dire consequences and the local Durga Puja committee members also objected to the holding of the meeting in the office of the G.P. which is near to the Puja Mandap. Accordingly, objections were raised before the police authority and on apprehension of breach of peace in the locality that may arise on holding of the meeting, the District Magistrate issued the order changing the venue and postponing the date of the meeting and the District Magistrate has ample power and authority under the provisions of the Cr.PC to take such measure to prevent breach of peace and to tackle the law and order situation in a particular local area. It is also contended by the learned senior counsel that in the no confidence meeting the 2/3rd of the members having voted against the petitioner the motion was carried into and he was ousted from the office of the president, in accordance with the provision of section 15 of the Act. 6. Dr. B. Ahmed appearing for the respondent Nos. It is also contended by the learned senior counsel that in the no confidence meeting the 2/3rd of the members having voted against the petitioner the motion was carried into and he was ousted from the office of the president, in accordance with the provision of section 15 of the Act. 6. Dr. B. Ahmed appearing for the respondent Nos. 10 to 11 referring to the counter filed on 18.5.2010 submits that the petitioner has not been able to make out a case for interference under article 226 of the Constitution of India, inasmuch as, he has already been ousted from his office as per the resolution adopted in the meeting discussing the confidence motion brought against him in compliance of the provision of section 15 of the Act by the majority of members of the Panchayat. It is also contended by Dr. Ahmed that in view of the decision of this court rendered in WP(C) No.5266/2008 disposed on 30.5.2008, the petitioner has no legs to stand and the petition is liable to be dismissed. 7. Mr. T. J. Mahanta learned counsel appearing for the respondent Nos.6 and 9, however, referring to the counter affidavit filed by these respondents submits that the respondents 6 to 9 are also elected members of the Chandipur Gaon Panchayat and although the meeting of no confidence motion was held on 7.10.2009, large scale irregularities were committed in the meeting and the signature of the respondent Nos.6 and 7 were obtained by resorting to threat and coercion. It is further pleaded in the counter that no time was fixed for holding the meeting in its changed venue and as such the respondents 8 and 9 arrived late after completion of the meeting and they could not take part in the proceeding. It is further pleaded that the respondent Nos.6 and 7 informed the irregularities committed in holding the no confidence meeting to the Deputy Commissioner on the very next day by filing written objection and requested him not to act upon the resolution so adopted and another application was also filed by the respondent No.6 before the Deputy Commissioner on 20.10.2009 stating that the petitioner has been subjected to criminal conspiracy by the Vice-President and Secretary of the Chandipur G.P. (respondent Nos. 5 and 7) and ousted him (writ petitioner) illegally and they were forced to sign in some blank papers including Vakalatnama and accordingly they prayed for taking necessary action in this regard. 8. The pleadings of the parties as well as other documents and materials available on record demonstrate that the requisition for no confidence motion against the petitioner was submitted on 9.9.2009 and immediately thereafter on 15.9.2009 the petitioner as president of the panchayat fixed the date of holding the meeting on 23.9.2009, i.e., within the period of 15 days in terms of section 15 of the Panchayat Act. Accordingly notice was issued by the secretary fixing the meeting for discussion of no confidence motion on 23.9.2009. However, just one day ahead of the meeting the Deputy Commissioner/District Magistrate, Hailakandi, intervened in the matter and he passed an order postponing the date of the meeting and re-fixed on 7.10.2009 in the conference Hall of Zilla Paraishad Hailakandi. The operative part of the order passed by the District Magistrate is quoted herein below. "On perusal of the letter of the S.P. Hailakandi and on examination and consideration of all aspects of the request of the S.P. Hailakandi to change the date and venue of the new confidence meeting on the grounds as stated in the letter it is hereby ordered that the no confidence meeting to be held on 23.9.2009 in the office of the Chandipur G.P. against the present president of the G.P. be suspended forthwith and held on 7th October, 2009, in the conference hall of Zilla Parishad, Hailakandi. All concerned are hereby directed to comply with the direction and confirm strict compliance. In view of urgency of the matter and late receipt of the S.P's letter the O/C, Algapur Police Station is directed to inform all concerned accordingly and deliver copies of the order to the officials/persons concerned." 9. Immediately thereafter on the very same day the petitioner objected to such move of the Deputy commissioner by filing a written representation denying the situations as indicated in the order of the Deputy Commissioner Justifying postponement of the meeting fixed for discussion of the no confidence motion. However, the meeting was held on the date and time fixed by the District; Magistrate on 23.9.2009. The affidavit of the respondent Nos.6 to 9 reveal startling facts as regards the manner and method of holding the meeting. However, the meeting was held on the date and time fixed by the District; Magistrate on 23.9.2009. The affidavit of the respondent Nos.6 to 9 reveal startling facts as regards the manner and method of holding the meeting. The respondent Nos.6 to 9 are also the members of the Gaon Panchayat and were present in the meeting and they allege that the signatures of the respondent Nos.6 and 7 were taken upon threat and coercion. Paragraphs 2 and 3 of the said affidavit are quoted herein below - "2. That the deponent begs to state that the writ petition has been filed by the writ petitioner challenging the order of the No Confidence Motion dated 7.10.2009 passed against the president Chandipur Gaon Panchayat, held at the conference Hall of Hailakandi Zilla Parishad. In the said meeting, large scale irregularities have occurred and the signatures of the deponent and the respondent No. 7 were obtained by resorting to threat and coercion. It is to be mentioned here that there was no proper agenda and time to the said meeting and as such, the respondent Nos.8 and 9, though they arrived at the schedule venue of the meeting, they could not take part in the said meeting as the meeting was already over. 3. That the deponent begs to state that the respondent Nos.6 and 7 on the very next day of the said meeting, i.e., on 8.10.2009 informed the matter to the Deputy Commissioner, Hailakandi, i.e., respondent No.2 by submitting an application regarding the irregularities committed in the meeting of the No Confidence Motion against the president of the Chandipur Gaon Panchayat and in the said application it was clearly mentioned that their signature were obtained by threat and coercion though they have full support and confidence in favour of President of Gaon Panchayat, i.e., the present writ petitioner. The deponent further begs to state that in the representation dated 8.10.2009, they made a prayer before the respondent No.2 to cancel the order of the said No Confidence Motion and to take necessary steps to conduct a fresh meeting in this regard in order to enable them to put their confidence in favour of the President of the said Gaon Panchayat as well as to take necessary action against the secretary and Vice-President of the Chandipur Gaon Panchayat as well as President of Algapur Anchalik Panchayat." It is also pleaded in the affidavit that the respondent No. 6 submitted another application before the Deputy Commissioner highlighting the illegalities. The operative part of the said application is quoted herein below - "With humble submission, we beg to state that we have been subjected to harassment criminal intimidation, assault and threat by Vice-President and Secretary to follow them in their illegal plan to oust the President of Chandipur G.P. to further their design they forced us to sign all the papers including blank papers, Vakalatnama since the discussion of the requisition of the special meeting dated 23.9.2009 (which was suspended). That Sir, we fear that out signed paper will be mis-utilised, mi-represented, exploited for their illegal gain. Therefore, it is requested your king enough to look into the matter and take necessary action against Secretary and Vice- President, of Chandipur G.P. in their aforesaid matter and obliged thereof." 10. Analysis of section 15 of the Assam Panchayat Act discloses that the allegation of vote of no confidence brought against the president of the Gaon Panchayat is to be decided in a meeting especially convened for that purpose by the Secretary of the G.P. with approval of the President within the period of 15 days from the date of receipt of notice. If the meeting is not so held within 15 days, within 3 days thereafter the Secretary shall refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the meeting within 7 days from the date of receipt of information from the Secretary of the Gaon Panchayat and preside over such meeting. 11. In the instant case, the issue of no confidence motion against the petitioner having been brought to the notice of the petitioner by the Secretary, he asked the Secretary to convene the meeting on 23.9.2009 vide his order dated 15.9.2009. 12. 11. In the instant case, the issue of no confidence motion against the petitioner having been brought to the notice of the petitioner by the Secretary, he asked the Secretary to convene the meeting on 23.9.2009 vide his order dated 15.9.2009. 12. The meeting to discuss the issue of no confidence alleged against the petitioner which was fixed on 23.9.2009 but the meeting was postponed by the District Magistrate and as such the meeting could not be held on the scheduled date fixed and accordingly it crossed the time limit of 15 days statutorily prescribed under section 15 of the Act and ultimately the meeting was held on 7.1.2009, but beyond the period prescribed. The D.C. acting as District Magistrate even in the prevalent situation though was not authorized to postpone the meeting could have referred the matter to the Panchayat authorities itself asking them to postpone the meeting and refer the matter for adjournment of the meeting or to take resort to any other course of action to be decided by the Panchayat itself, in consonance with the provision of section 15 of the Act. In the instant case the undisputed facts disclose a departure from the course of action as contemplated under the provision of section 15 of the Act made by the D.C. section 15 does not authorize the District Magistrate to postpone the meeting fixed under section 15 of the Act. 13. Mr. H.R.A. Choudhury learned senior counsel, is perfectly justified in his submissions that the District Magistrate is not to ignore a situation which may give rise to certain disorderly state of affairs in a part of the locality leading to the breach of peace in the event of holding the meeting. Materials available on record disclose that the source of information of the District Magistrate is the letter of, the S.P. as annexed in the counter of the respondent No.5 disclosing that the S.P. received the information from the O.C. Algapur P.S. that there is a likelihood of breach of peace if the meeting is held in the concerned venue where the meeting of no confidence meeting is scheduled to be held. Again by filing an application before the Deputy Commissioner, 3 members of the Panchayat expressing such apprehensions requested for deployment of C.R.P.F. personnel so that the meeting can be peacefully held. Again by filing an application before the Deputy Commissioner, 3 members of the Panchayat expressing such apprehensions requested for deployment of C.R.P.F. personnel so that the meeting can be peacefully held. It is strange that the S.P. of the District instead of tackling the situation by deploying the arms constable or in the manner as required, wrote to the District Magistrate to postpone the meeting to change the venue and date of the meeting. The copy of the letter written by the 3 members was also sent to the S.P, and the O.C. requesting deployment of the arms personnel at the place for holding the meeting peacefully. But instead of doing so, the S.P. acted otherwise as indicated above. Although reference of Durga Puja was brought on record by the S.P. but the Durga Puja festival was scheduled to held only three days thereafter. In view of the situation as discussed above, I find it extremely difficult to hold that the D.C. as District Magistrate has acted bona fide on his going to the extent of postponement of the meeting of no confidence motion fixed by the Panchayat without properly assessing the situation as reflected. In fact the Act does not provide any such power or authority to the District Magistrate to postpone the date and change the venue of the statutory meeting fixed under section 15 of the Assam Panchayat Act. 14. Mr. Choudhury referring to a bench decision of this court in Mumtaz Rana Laskar and Ors. v. State of Assam and Ors., 2006 1 GLT 46 : (2009) 6 GLR 429 submits that the provisions of section 15 so far it relates to the holding of the meeting within the period as prescribed therein is not a mandatory requirement of law and any violation thereof cannot be allowed to frustrate the democratic process of removal of the President by way of no confidence. The aforesaid decision came up for consideration before a Full Court of this court in the case of Forhana Begum Laskar v. State of Assam and Ors., 2009 3 GLT 575 : (2006) 2 GLR 5 wherein the Full Bench proceeded to held that reading between the lines it does not transpire 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 and it is held 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. Stagewise requirement to be followed in dealing with a prayer for no confidence motion as contained in section 15 is also required to be examined from another angle. Prima facie compliance of the time schedule provided in the section appears to be a procedural one and the Act is silent as to the need and necessity for maintaining such time schedule. On deeper consideration it transpires that the procedure, i.e., the manner and method to deal with the allegation against the President or Vice-President of the Panchayat has been prescribed by the Legislature itself. Section 15 is a self-contained one dealing with the stages from filing the allegation requesting to convene meeting for discussion of the no confidence motion up to the stage of removal of the holder of the office after the motion is carried through. Thus, in order to remove the President by way of no confidence motion, either the procedure prescribed by law under is to be followed or not all. It reminds me the following observation of the Apex Court made in the case of Maninder Sitaramji v. Governor of Delhi and Ors., AIR 1974 SC 1868 , "when a procedure is prescribed by the Legislature, it is not for the court to substitute a different one according to its own notion of Justice when the Legislature has spoken, Judge cannot afford to be wiser". Again in the case of Hukum Chand Shyamlal v. Union of India and Ors., AIR 1976 SC 789 - Para 18, the Apex Court held that "when power is to be used by a certain authority in a certain way it should be exercised in that manner or not at all and all user made performance are necessarily forbidden". Further we find on facts also that the meeting where no confidence motion was accepted was conducted in a manner not at all warranted in a democratic process, signatures of the members, at least two of them were taken by applying threat and coercion. Applying the aforesaid ratio of the Forhana Bebwn Laskar (supra) the decision rendered in respect of time schedule prescribed under section 15 of the Act we find herein that in the instant case that the no confidence motion has been held beyond the period prescribed, and in a manner not authorized by law and in violation of the mandate of section 15 of the Act. 15. It is true that compliance to the extent of arithmetical are way as regards time fixed under section 15 for holding the meeting cannot be canvassed as a ground to nullify the action taken but certainly the same would be required to be dealt with in juxtaposition of the other attenuating circumstances. From the undisputed facts it is found that the date of no confidence as fixed by the President was postponed by the District Magistrate himself and in fact such no confidence motion has been carried out on the dates as fixed by the D.M. himself and not by the Panchayat. The submissions so made by Dr. B. Ahmed that the present case is squarely covered by the decision rendered by the Single Bench of this court in the case of Sri Ali Ahmed Majumdar v. State of Assam, WP(C) No 5266/08 is mentioned only for the purpose of rejection. It is found that in the said case after expiry of the statutory period of 15 days the secretary of the panchayat referred the mailer to the president of the A.P. and accordingly the fact of the present case is different from the facts of the referred case. 17. It is found that in the said case after expiry of the statutory period of 15 days the secretary of the panchayat referred the mailer to the president of the A.P. and accordingly the fact of the present case is different from the facts of the referred case. 17. In view of so what have been discussed above, and taking note of the manner and method by which no confidence was carried out as reflected from the counter affidavit of the respondent Nos.6, 7 and 8, I am of the opinion that he impugned resolution of no confidence against the petitioner was adopted in gross violation of the mandate of section 15 of the Act which is required to be inferred with, which I hereby do. 18. Accordingly the impugned resolution rendering the no confidence motion held on 7.10.2009 removing the petitioner from the President­ship of the Chandipur G.P stands set aside and quashed and the petitioner is directed to be taken back to his office and if necessary any consequential order, if so considered necessary, would be passed by appropriate authority. 19. In the result the writ petition stands allowed.