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2011 DIGILAW 806 (GAU)

Ranjit Singh v. State of Assam

2011-09-26

BROJENDRA PRASAD KATAKEY

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JUDGMENT B.P. Katakey, J. 1. The petitioner, who was elected as the President of No. 17 Nutan Ramnagar Gaon Panchayat under Sonai Anchanlik Panchayat of Cachar district, by the present petition has challenged the resolution adopted in the special meeting of the Gaon Panchayat held on 21.02.2011 expressing want of confidence on him and thereby removing from the post of President of the said Gaon Panchayat, basically on the ground of violation of the provisions of sub-section (1) of Section 15 of the Assam Panchayat Act, 1994 (in short, "the Act"). The petitioner was elected as President in the Panchayat election held in the year 2008 and was administered the oath of office on 25.03.2008. All the 10(ten) members of the Gaon Panchayat on 4.2.2011 gave a notice to its Secretary expressing want of confidence on the petitioner and requesting him to convene a special meeting discuss the said motion. According to the petitioner, though Section 15 of the Act requires placing of the said notice before him so as to enable him to convene a special meeting to discuss such motion, the Secretary of the Gaon Panchayat without placing the same before the petitioner referred the matter to the President of the Anchalik Panchayat on 15.02.2011, who accordingly convened the meeting of the Gaon Panchayat, which was held on 21.02.2011, wherein the resolution expressing want of confidence on him was adopted. The petitioner, therefore, has challenged the said proceeding dated 21.02.2011 on the ground of violation of the provisions contained in Section 15 of the Act. 2. I have heard Mr. D.P. Chaliha, learned Sr. counsel for the petitioner, Mrs. Phukan, learned State counsel appearing for the respondent Nos. 1 to 4, Mr. R. Goswami, learned counsel appearing for the respondent Nos. 5 and 6 and Mr. L.R. Mazumdar, learned counsel appearing for the respondent Nos. 7 to 16. The records produced by Mr. R. Goswami, learned counsel appearing for the respondent Nos. 5 a d 6, have also been perused. 3. The learned Sr. 1 to 4, Mr. R. Goswami, learned counsel appearing for the respondent Nos. 5 and 6 and Mr. L.R. Mazumdar, learned counsel appearing for the respondent Nos. 7 to 16. The records produced by Mr. R. Goswami, learned counsel appearing for the respondent Nos. 5 a d 6, have also been perused. 3. The learned Sr. counsel for the petitioner referring to the provisions contained in sub-sections (1) and (2) of Section 15 of the Act submits that the requisition for a special meeting to discuss the notice expressing want of confidence signed by not less than 1/3rd of the total number of members of the Gaon Panchayat must be delivered to the President or the Vice President, as the case may be, of the concerned Gaon Panchayat, who gets 15 days time, from the date of receipt of the notice, to convene such special meeting to discuss such motion and only in the event the President of the Gaon Panchayat fails to convene the meeting within 15 days therefrom the Secretary of the Gaon Panchayat can refer the matter to the President of the concerned Anchalik Panchayat within 3 days after expiry of 15 days, for convening the meeting within 7 days from the date of receipt of the information from the Secretary of the concerned Gaon Panchayat, which provisions being mandatory are required to be followed strictly. According to Mr. Chaliha, the said notice expressing want of confidence was never presented to the petitioner and as such he did not get any opportunity to convene the meeting as required under sub-section(1) of Section 15 of the Act, thereby violating the mandatory provision. In the alternative, it has been submitted that even assuming the notice given by all the 10 members of the Gaon Panchayat dated 04.02.2011 was placed before the petitioner by the Secretary on 05.02.2011, as contended by the respondents in the affidavit, the petitioner gets 15 days time from 05.02.2011 to convene the meeting. Mr. In the alternative, it has been submitted that even assuming the notice given by all the 10 members of the Gaon Panchayat dated 04.02.2011 was placed before the petitioner by the Secretary on 05.02.2011, as contended by the respondents in the affidavit, the petitioner gets 15 days time from 05.02.2011 to convene the meeting. Mr. Chaliha, therefore, submits that though the Secretary of the Gaon Panchayat can refer the matter to the Anchalik Panchayat only after expiry of 15 days, he instead referred the matter to the President of the Anchalik Panchayat on 15.2.2011, i.e. before expiry of 15 days from 5.2.2011, on the basis of which the President of the Anchalik Panchayat has convened the special meeting of the Gaon Panchayat which was held on 21.2.2011 under the Presidentship of the President of the Anchalik Panchayat. The learned Sr. counsel submits that since the Secretary has referred the matter before expiry of 15 days from 5.2.2011, all the subsequent action including the resolution adopted in the meeting dated 21.2.2011 are bad in law being contrary to the provisions of sub-section (1) of Section 15 of the Act. The learned Sr. counsel in support of his contention has placed reliance on a Full Bench decision of this Court in Forhana Begum Laskar v. State of Assam & Ors., reported in 2009 (3) GLT 575, a Single Bench decision of this Court in Sita Satnami v. State of Assam & Ors., reported in 2010(3) GLT 291 and a Division Bench judgment of this Court in A.U. Ahmed Mazumdar v. State of Assam & Ors., reported in 2011(3) GLT 396. 4. The learned counsel appearing for the respondents, on the other hand, supporting the resolution adopted on 21.02.2011 in the special meeting of the Gaon Panchayat have submitted that though under sub-section (1) of Section 15 of the Act the President of the Gaon Panchayat gets 15 days time to convene the special meeting to discuss the motion of no confidence from the date of receipt of the intimation about giving such notice and in the event the meeting is not convened, the Secretary is to refer the matter to the President of the Anchalik Panchayat thereafter, it is not that the Secretary of the Gaon Panchayat is to wait for 15 days in all cases and cannot refer the matter to the Anchalik Panchayat before expiration of the said period. According to the learned counsel in the case in hand, it is evident from the records maintained by the Gaon Panchayat that the notice expressing want of confidence given by all the 10 members dated 04.02.2011 was placed before the petitioner on 05.02.2011 with a note from the Secretary to convene the special meeting to discuss such motion, which the petitioner has refused to accept. The learned counsel, therefore, submits that by conduct the petitioner has refused to convene the special meeting of the Gaon Panchayat to discuss the motion and as such the Secretary need not wait for 15 days from 05.02.2011 to refer the matter to the President of the Anchalik Panchayat for convening the meeting of the Gaon Panchayat to discuss the motion expressing want of confidence on the petitioner. It has also been submitted that the petitioner having refused to accept the notice and refused to convene the meeting as suggested by the Secretary cannot subsequently challenge the resolution adopted by the Gaon Panchayat expressing want of confidence, on the ground that he did not get the opportunity to convene the meeting though under sub-section (1) of Section 15 of the Act the President gets 15 days time to convene such meeting. The learned counsel, therefore, submits that the writ petition deserves dismissal. 5. To appreciate the contention of the learned counsel for the parties, the provisions contained in Section 15of the Act needs to be noticed. Sub-section (1) of Section 15 of the Act provides for removal of the President and the Vice President of a Gaon Panchayat from office on adoption of a resolution expressing want of confidence passed by a majority of 2/3rd of the total number of the members of the Gaon Panchayat in a special meeting convened by the Secretary of the Gaon Panchayat with the approval of its President. Such meeting is to be presided over by the President, if the motion is against the Vice President, by the Vice President, if the motion is against the President. Such meeting is to be presided over by the President, if the motion is against the Vice President, by the Vice President, if the motion is against the President. It also stipulates that if such a special meeting is not convened within a period of 15 days from the date of receipt of the notice, the Secretary of the Gaon Panchayat shall within 3 days, 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 the information from the Secretary of the Gaon Panchayat and shall preside over such meeting. In the event of failure of the President of the Anchalik Panchayat to take action within the said specified period of 7 days, the secretary of the Gaon Panchayat is required to inform the Deputy Commissioner/Sub-Divisional Officer (Civil), as the case may be, within 3 days after expiry of the stipulated 7 days time and the concerned Deputy Commissioner/Sub-Divisional Officer (Civil) shall then convene the meeting within 7 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. The Deputy Commissioner/Sub-Divisional Officer (Civil), however, can depute one Executive Officer under him not below the rank of Class-I Gazetted Officer to preside over such meeting, in case he is unable to preside over the same. The second proviso to sub-section (1) further stipulates that when a no confidence motion is lost, no such motion is allowed for the next 6 (six) months. Sub-section (2) of Section15 of the Act requires placing of the requisition for special meeting signed by not less than l/3rd of the total number of the members of the Gaon Panchayat, before the President or the Vice President, as the case may be, of the concerned Gaon Panchayat with intimation to the Deputy Commissioner of the district. 6. Reading both sub-sections (1) and (2) of Section 15 together it therefore, transpires that the notice expressing want of confidence has to be given by at least l/3rd of the total number of members of the Gaon Panchayat, requesting convening of a special meeting, which is required to be given to the person against whom such no confidence motion is brought. In the event, such notice is not delivered to the President or the Vice President, as the case may be, it would be sufficient compliance of the said provision, if the Secretary of the Gaon Panchayat places such notice before the President or the Vice President, as the case may be. The Secretary of the Gaon Panchayat is also required to convene the meeting of the Gaon Panchayat with due approval of its President and in case the meeting is not convened within 15 days, the Secretary of the Gaon Panchayat is to refer the matter to the President of the Anchalik Panchayat within 3 days thereafter. The President of the Gaon Panchayat, therefore, has to accord approval to the proposal submitted by the Secretary of the Gaon Panchayat to convene the meeting so that the meeting can be convened by the Secretary within the stipulated period of 15 days. 7. In Sita Satnami (supra), it is held that the Secretary of the Gaon Panchayat shall assume jurisdiction under sub-section (1) of Section 15 of the Act to refer the matter to the President of the Anchalik Panchayat only after expiry of 15 days from the date when the notice expressing want of confidence is delivered to the President or Vice President, as the case may be. The same view has also been taken by a Division Bench of this Court in Ali Ahmed Mazumdar (supra). A Full Bench of this Court in Forhana Begum Laskar (supra) after noticing a Division Bench judgment of this Court in Mumtaz Rana Laskar & Ors. v. State of Assam & Ors., 2006 (1) GLT 46, whereby and whereunder it was held that the provisions of Section 15 of the Act is not mandatory but directory, has opined that the view expressed by the Division Bench in the said case cannot be construed to denote that the entire scheme of Section 15 of the Act in all its essential features has been enunciated to be directory and not mandatory. It has further been opined that rather it 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. The Full Bench, however, keeping in view the facts involved in that case did not consider it essential to embark on a re-scrutiny of the proposition. The Full Bench, however, keeping in view the facts involved in that case did not consider it essential to embark on a re-scrutiny of the proposition. 8. As discussed above, in Sita Satnami (supra) as well as in Ali Ahmed Mazumdar (supra) it has already been held that the requirement of 15 days time as stipulated in sub-section (1) of Section 15 is mandatory. It, however, does not mean that the Secretary of a Gaon Panchayat has to wait for expiry of 15 days, to refer the matter to the President of the concerned Anchalik Panchayat, from the date when the notice expressing want of confidence together with the proposal seeking approval to convene the special meeting of the Gaon Panchayat to discuss such motion, was placed before the President of the Gaon Panchayat, who either refused to accept the same or refused to approve the proposal of the Secretary to convene the meeting by conduct. Once the President of the Gaon Panchayat refuses, by conduct or otherwise, to accord approval to the proposal submitted by the Secretary to convene the special meeting the Secretary of the Gaon Panchayat has to refer the matter to the President of the concerned Anchalik Panchayat within 3 (three) days thereafter. However, in case the President of the Gaon Panchayat does not refuse to approve the proposal of the Secretary to convene the special meeting to discuss the motion expressing want of confidence and kept it for consideration, in that case he has to approve the proposal of the Secretary for convening the special meeting, so that such meeting is held within 15 days from the date when the notice expressing want of confidence was brought to the notice of the President of the Gaon Panchayat. 9. In the instant case the records reveal that the Secretary of the Gaon Panchayat submitted a note dated 05.02.2011 before the petitioner, who was the President of the Gaon Panchayat, for convening the special meeting to discuss the motion expressing want of confidence on him, along with the notice dated 04.02.2011 given by all the 10 members of the Gaon Panchayat to that effect. The petitioner refused to receive such notice as well as the note given by the Secretary seeking approval to convene the special meeting of the Gaon Panchayat. The petitioner refused to receive such notice as well as the note given by the Secretary seeking approval to convene the special meeting of the Gaon Panchayat. The conduct of the petitioner amounts to refusal to grant approval to the proposal of the Secretary to convene the meeting and as such, the Secretary of the Gaon Panchayat cannot wait for 15 days as stipulated in subsection (1) of Section 15 to refer the matter to the President of the Anchalik Panchayat. The petitioner though in the writ petition has taken the stand that he did not know anything about the notice given by all the 10 members of the Gaon Panchayat expressing want of confidence on him as the said fact was not brought to his notice, such stand taken by the petitioner in the writ petition, however, is belied by the materials available on record, wherefrom it clearly establishes that the notice expressing want of confidence was placed before the President i.e. the petitioner on 05.02.2011 along with the note dated 05.02.2011 of the Secretary requesting him to accord approval for convening a special meeting to discuss such motion, who, however, has refused to accept the same, amounting to refusal to approve, the approval of the secretary to convene the meeting. 10. That being the position, no illegality has been committed by the Secretary in referring the matter to the President of the Anchalik Panchayat to convene the meeting, consequently I do not find any merit in the writ petition to interfere with the resolution adopted in the special meeting dated 21.02.2011 of the Gaon Panchayat presided over by the President of the Anchalik Panchayat expressing want of confidence on the petitioner. The writ petition is accordingly dismissed. No costs.