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2010 DIGILAW 447 (GAU)

Dipali Deka v. State of Assam

2010-06-24

BIPLAB KUMAR SHARMA

body2010
JUDGMENT B.K. Sharma, J. 1. Heard Mr. I. Choudhury, learned Counsel for the Petitioner as well as Mr. H.R.A. Choudhury, learned senior Counsel assisted by Mr. J. Abedin, learned Counsel appearing for the Respondent Nos. 7 to 13. I have also heard Ms. R. Chakraborty, learned State Counsel. 2. The Petitioner who is the President of Pathorighat Gaon Panchayat has filed this writ petition challenging the legality and validity of the no-confidence motion adopted against her on 14.05.2010 as a consequence of which she is to immediately vacate the office of the President of Gaon Panchayat. Upon a reference to the provision of Section 15 of the Assam Panchayat Act, 1994, it is the case of the Petitioner that the no-confidence motion having been passed in gross violation of the procedure laid down therein, the no-confidence motion resolution adopted against her in the meeting held on 14.05.2010 is not sustainable in law. 3. By Annexure-A letter dated 27.07.09 addressed to the Petitioner as the President of Pathorighat Gaon Panchayat, the seven members of the said Gaon Panchayat assigning reasons for bringing the no-confidence motion, requested her to convene the meeting to discuss on no-confidence motion. As per the provision of Section 15 of the Assam Panchayat Act, 1994, the no-confidence meeting is to be convened within a period of 15 days from the date of receipt of the notice. In case of failure to convene the meeting, the Secretary of the Gaon Panchayat shall, within three days, refer the matter to the President of the concerned Anchalik Parishad, 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. 4. In the instant case, such meeting having not been convened by the Petitioner in her capacity as the President of the Gaon Panchayat, the meeting had to be convened by the Anchalik Parishad and the same was held on 31.08.09. On perusal of the minutes of the meeting (Annexure-E), it appears that when the no-confidence motion was being discussed, some untoward incident occurred obstructing the meeting. In this connection, the minutes of the meeting specifically refers to the obstruction created by one Shri Bimal Deka who, as per the minutes of the meeting, used un-parliamentary language against the Chairman and created disturbance in conducting the meeting. In this connection, the minutes of the meeting specifically refers to the obstruction created by one Shri Bimal Deka who, as per the minutes of the meeting, used un-parliamentary language against the Chairman and created disturbance in conducting the meeting. As per the minutes of the meeting, such unruly behaviour of said Deka compelled the Chairman to ask him to leave the meeting. Accordingly, Shri Deka left the meeting. Thereafter, the members present decided to apprise the entire matter to the Deputy Commissioner of the District and adopted resolution condemning such unruly behaviour of said Shri Deka. 5. According to the Petitioner, since in the aforesaid meeting dated 31.08.09 the no-confidence motion could not be passed against her as per the proviso to Section 15(1), the no-confidence motion was lost and accordingly no such motion can be permitted to be moved in the next six months. The said proviso provides that when no-confidence motion is lost, no such motion shall be allowed in the next six months. 6. By Annexure-G order dated 02.02.2010, the Deputy Commissioner passed an order purportedly under Section 15(1) of the Assam Panchayat Act, 1994 to hold a special meeting on 10.02.2010 on the basis of the aforesaid no-confidence motion. However, it appears that on the basis of Annexure-H representation dated 08.02.2010 submitted to him by the Petitioner, the Deputy Commissioner passed Annexure-I order dated 09.02.2010 superseding the earlier order on the ground that there was failure to adhere to the mandatory time limit fixed by Section 15(1) of the said Act. 7. After the aforesaid developments, the Anchalik Parishad by its letter dated 11.05.2010 (Annexure-J) informed the Secretary, President (Petitioner), Vice-President and the members of the Gaon Panchayat about convening of Special meeting on 14.05.2010 to discuss no-confidence meeting initiated against the Petitioner. From the materials on record, it appears that the Petitioner had earlier filed W.P.(C) No. 5269/09 making a grievance against initiation of no-confidence motion itself. The writ petition was dismissed for default by order dated 07.05.2010 and thereafter the counsel spearing for the Petitioner by his letter dated 13.05.2010 informed the Deputy Commissioner of the District about the move of the Petitioner to get the petition restored to file by filing a Misc. case. By the said letter, the Deputy Commissioner was requested not to hold the meeting as was proposed on 14.05.2010. case. By the said letter, the Deputy Commissioner was requested not to hold the meeting as was proposed on 14.05.2010. It is submitted that the writ petition has been restored to file by recalling the order dated 07.05.2010 by which the same was dismissed for default. The writ petition was restored to file by order dated 14.05.2010 on which date the no-confidence motion against the Petitioner was discussed and passed in the meeting. Be it stated here that no interim order is operating in the said writ petition. 8. In paragraph-17 of the writ petition, the Petitioner has stated that no-confidence motion was discussed in the meeting held on 14.05.2010 and the same has been passed against her. 9. Now the question for determination is as to whether by virtue of abandonment of the meeting held on 31.08.09 which was convened for discussing no-confidence motion against the Petitioner, the said motion can be said to have been lost. Admittedly the meeting was abandoned amidst the discussion of the no-confidence motion and as recorded in the minutes of the meeting, such abandonment of the meeting was due to untoward incident about which discussion has been made above. 10. Mr. I. Choudhury, learned Counsel for the Petitioner upon reference to Annexure-I order dated 09.02.2010 passed by the Deputy Commissioner in suppression of earlier order dated 02.02.2010, submits that since the Deputy Commissioner was of the opinion that there was failure to adhere to the mandatory time limit fixed under Section 15(1) of the Act, there was no question of convening the meeting by the Anchalik Panchayat to discuss the no-confidence motion moved against the Petitioner. However, I am of the considered opinion that such an order passed by the Deputy Commissioner cannot override the provision of Section 15 of the Panchayat Act. 11. As noted above, the no-confidence motion although was discussed in the meeting held on 31.08.09, but no decision could be arrived at and thus, it cannot be said that as per the second proviso of Section 15 of the Act, the said no-confidence motion was lost. The minutes of the meeting revealed that in the said meeting a decision was taken to refer the unruly behaviour of Mr. Deka to the Deputy Commissioner and there was no recording of any failure of the no-confidence motion. The minutes of the meeting revealed that in the said meeting a decision was taken to refer the unruly behaviour of Mr. Deka to the Deputy Commissioner and there was no recording of any failure of the no-confidence motion. Thus, it cannot be said that the second proviso of Section 15 of the Act will be applicable in the instant case. 12. This Court in the case of Forhana Begum Laskar v. State of Assam and Ors. reported in 2009 (3) GLT 575 (FB), examining the scheme of Section 15 of the Act has held that the scheme of Section 15 of the Act is only directory and not mandatory. Another issue which came up for consideration before the Full Bench was that, as in the instant case, in the said case also no-confidence motion was cancelled midway and a plea was taken that same would signify loss of motion and no fresh motion would be allowed in the next six months. It has been held that a conclusion as to the loss of motion would be permissible only in case of defeat or abandonment of the motion on merit. In this connection, paragraphs 22 and 26 of the said judgment are quoted below: 22. The word lost appearing in the 2nd proviso to Section 15(1), in deference to the fundamental principles of statutory interpretation, has to be essentially comprehended in the text and the context in which it appears. When so construed and interpreted, it, to start with, seems to signify a rejection of a no-confidence motion on merits following due deliberations in a meeting convened and held in accordance with the procedure prescribed in Section 15(1). It cannot be conceived of as an inevitable consequence of any infringement of the prescribed procedural rigour either by a breach of the time frame or unwarranted interference of any authority at any stage of the process or reasons akin thereto. Though, such outrages depending on the nature and extent of the consequential vitiation may render the process illegal, the same per se, would not imply the loss of the no-confidence motion as is contemplated in the 2nd proviso to Section 15(1) of the Act. Though, such outrages depending on the nature and extent of the consequential vitiation may render the process illegal, the same per se, would not imply the loss of the no-confidence motion as is contemplated in the 2nd proviso to Section 15(1) of the Act. A demonstrably conscious act or omission on the part of those supporting the motion resulting in the rejection of the motion on merits or testifying the abandonment of the pursuit would be essential to conclude such a consequence. The bar against the permissibility of initiation of such a motion within next six months after it is lost in the first venture, in our opinion is decisively redolent of this view. The quintessence of the proviso, according to us, is to sanction a temporary reprieve to the President or the Vice President of the Gaon Panchayat, in case the no-confidence motion brought against him/her stands defeated on merit so as to relieve him/her of a fresh ordeal of suffering the same exercise in quick successions. The legislative intendment as discernible is thus that a no-confidence motion brought against the President or the Vice-President of the Gaon Panchayat is lost within the meaning of 2nd proviso to Section 15(1) of the Act, if either it is rejected on due deliberations in a meeting duly convened as enjoined therein or if the motion fails for cause or causes other than procedural defects or irregularities in convening the meeting be it for the violation of the time frame or uncalled for or unauthorized intervention of any authority not contemplated in the scheme statutorily delineated for adherence. Whereas, such an infringement of the time schedule prescribed for the successive stages, or interferences of authorities not envisaged depending on the extent and the nature of the impairment caused thereby, may render an ongoing process vitiated thereby, the inescapable consequence thereof need not necessarily be that the motion would be lost as comprehended in the 2nd proviso to Section 15(1) of the Act. Such a consequence is also neither discernible nor deductible from Section 15(1). We, thus, cannot lend our concurrence to the plea that each and every non-compliance of the procedural essentials for prosecuting the process of no-confidence motion would, inexorably imply that it (motion of no-confidence) would be lost. Such a consequence is also neither discernible nor deductible from Section 15(1). We, thus, cannot lend our concurrence to the plea that each and every non-compliance of the procedural essentials for prosecuting the process of no-confidence motion would, inexorably imply that it (motion of no-confidence) would be lost. In the facts and circumstances of the case, having regard to the nature of the contraventions, we are of the unhesitant opinion that though the proceedings of the meeting dated 12.03.2009 are invalid in view of the unauthorized intrusion of the Anchalik Panchayat in the process, it would not connote that the no-confidence motion thereby, had been lost so as to attract the bar against initiation of a fresh pursuit with the same objective without six months thereafter. The process, in our view subsists and is capable of being furthered from the stage of receipt of the requisition dated 19.02.2009 expressing the no-confidence against the Appellant. 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. 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 rescrutiny of this proposition in the instant proceeding. 13. In the instant case as already observed, no-confidence motion although was discussed on 31.08.09, but no final decision could be arrived and thus, it cannot be said that same was lost. The no-confidence motion was initiated against the Petitioner and the same having been discussed and passed in the meeting dated 14.05.2010, it must be allowed to hold the field. In this connection, Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate has produced the relevant records alongwith the letter dated 24.05.2010 addressed to her by the Deputy Commissioner, Darrang. In the said letter the fact of convening the special meeting on 14.05.10 discussing the no-confidence motion against the Petitioner and passing the same on secrete ballot has been conveyed. In this connection, Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate has produced the relevant records alongwith the letter dated 24.05.2010 addressed to her by the Deputy Commissioner, Darrang. In the said letter the fact of convening the special meeting on 14.05.10 discussing the no-confidence motion against the Petitioner and passing the same on secrete ballot has been conveyed. In fact, the records also contain the photo copies of the ballot papers conforming to the requirement of 2/3 majority. 14. For all the aforesaid reasons, I am not inclined to interfere with the no-confidence motion dated 14.05.2010. Consequently, the writ petition is dismissed. Interim order passed earlier stands vacated. Petition dismissed.