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2011 DIGILAW 967 (GAU)

Sarat Deka v. State of Assam

2011-12-08

UJJAL BHUYAN

body2011
JUDGMENT Ujjal Bhuyan, J. 1. The six petitioners before this Court are members of the Bon-majhaa Gaon Panchayat in the district of Darrang. By this application under Article 226 of the Constitution of India they have challenged the legality and validity of the order dated 26-04-2011 passed by the Additional Deputy Commissioner (Planning), Darrang treating the no confidence resolution dated 21-03-2011 against the respondent No. 5 as having failed for want of 2/3rd majority of the total number of members of the said Gaon Panchayat. The factual details necessary for adjudication of the issue raised may be briefly stated at the very outset. 2. Election to the Bonmajhaa Gaon Panchayat was held in the month of January, 2008. The respondent No. 5 was elected as the President of the said Gaon Panchayat. The petitioners and four others were also elected as members of the said Gaon Panchayat. Thus, ten elected members comprised the said Gaon Panchayat. On 10-1-2010, one of the members, namely, Mustt. Saleha Bibi resigned from her membership. The fact that the said member had resigned is not disputed. Consequently, the said Gaon Panchayat presently has nine members. 3. The petitioners nave alleged that the respondent No. 5 has indulged in corrupt practice because of which they have lost confidence in him. As a result, on 7-3-2011, nine members of the said Gaon Panchayat submitted representation before the Deputy Commissioner, Darrang expressing lack of confidence on the respondent No. 5. It is the pleaded case of the petitioners that the said requisition of lack of confidence in the form of the representation dated 7-3-2011 was brought against the respondent No. 5 under the provisions of Section 15(1) of tile Assam Panchayat Act, 1994 (briefly "the Act" hereafter). According to the petitioners, on the basis of the representation dated 7-3-2011, the authority concerned instructed the Vice President of the said Gaon Panchayat to hold a special meeting in this regard. However, which authority instructed the Vice President to hold such a meeting has not been indicated in this writ petition. Be that as it may, a special meeting of the said Gaon Panchayat was held on 21.3.2011 which was preside over by the Vice President, Sri Bakuli Saharia, who is the petitioner No. 2 in the present proceeding. However, which authority instructed the Vice President to hold such a meeting has not been indicated in this writ petition. Be that as it may, a special meeting of the said Gaon Panchayat was held on 21.3.2011 which was preside over by the Vice President, Sri Bakuli Saharia, who is the petitioner No. 2 in the present proceeding. In that meeting, the confidence motion against the respondent No. 5 was discussed and it was decided to settle the matter through secret voting. As per the secret ballot voting out of the nine existing members of the said Gaon Panchayat, six voted in support of the no confidence motion i.e. against the respondent No. 5 and three voted against the no confidence motion i.e. in favour of the respondent No. 5. Stating that out of the 10(ten) members of the said Gaon Panchayat, one member had resigned, leaving the Gaon Panchayat with nine existing members, the said meeting resolved that as six members out of the nine existing members had supported the no confidence motion against the respondent No. 5, therefore, the said motion had the backing of 2/3rd of the members and was accordingly accepted. It was also resolved to allow the Vice President to take charge of the said Gaon Panchayat. A further decision was taken to inform the matter to the Deputy Commissioner. 4. The petitioners thereafter submitted representation dated 1-4-2011 before the Deputy Commissioner, Darrang requesting the said authority to take the necessary decision in terms of the resolution adopted. The Additional Deputy Commissioner (Planning), Darrang thereafter passed the impugned order dated 26-4-2011. He noted that the total strength of the said Gaon Panchayat is 10, out of which one member had resigned. Relying on the decision of this Court rendered in the case of Samiruddin Ahmed v. Mangaldoi and Others, reported in AIR 1971 Assam & Nagaland 163 , the Additional Deputy Commissioner held that 2/3rd majority of the existing members cannot sustain the no confidence motion as it has to be 2/3rd majority of the total strength of the Gaon Panchayat. Accordingly, the no confidence resolution was treated as having failed. 5. The respondent No. 5 has filed his counter affidavit wherein he has denied the allegation of corruption levelled against him by the petitioners. Accordingly, the no confidence resolution was treated as having failed. 5. The respondent No. 5 has filed his counter affidavit wherein he has denied the allegation of corruption levelled against him by the petitioners. The respondent No. 5 has pleaded that the procedure adopted in passing the resolution dated 21-3-2011 was in total violation of the provisions of Section 15 of the Act. He has stated that he was not aware of the representation dated 7-3-2011 submitted before the Deputy Commissioner. He has further stated that it is also not known to him that six members supported the no confidence motion against him. He has asserted on oath that no requisition for convening a special meeting as required under Section 15 of the Act was ever placed before him. Therefore, the-proceedings of the special meeting held on 21-3-2011 is wholly illegal and is non est in the eye of law. Finally, he supports the interpretation given to the expression "the total number of members of the Gaon Panchayat" as appearing in sub-section (1) of Section 15 of the Act by the Additional Deputy Commissioner and seeks dismissal of the writ petition. 6. I have heard Mr. B. Chetri, learned counsel for the petitioners, Mr. B.J. Ghosh, learned Govt. Advocate, Assam for the respondent Nos. 1 to 4 and Mr. H.R.A. Choudhury, learned Sr. counsel for the respondent No. 5. 7. Mr. Chetri, learned counsel for the petitioners submits that the interpretation given by the Additional Deputy Commissioner to the expression "total number of members of the Gaon Panchayat" as appearing in sub-section (1) of the Section 15 is wholly erroneous and the same has vitiated the impugned order. He submits that the respondent No. 5 has or the confidence of six out of nine existing members and that the no confidence motion was passed by 2/3rd majority of the total existing members of the said Gaon Panchayat. Therefore, he submits that by operation of law the respondent No. 5 would be deemed to have vacated his office on the passing of such resolution. Mr. B.J. Ghosh, learned State counsel submits that the State has not filed any affidavit as because the facts are not disputed. However, he submits that a purposive interpretation should be given to the aforesaid expression so as to make workable. Mr. B.J. Ghosh, learned State counsel submits that the State has not filed any affidavit as because the facts are not disputed. However, he submits that a purposive interpretation should be given to the aforesaid expression so as to make workable. He further submits that Section 15(1) of the Act should be read together with Section 18(5) of the said Act which provides that in the case of a no confidence motion, the matter should be decided by secret ballot. He submits that a dead person or a person who has resigned from his membership cannot exercise secret ballot. On the other hand Mr. Choudhury, learned Sr. counsel submits that the entire procedure adopted to oust the respondent No. 5 as the President of the Gaon Panchayat is contrary to the procedure laid down in Section 15 of the Act and, therefore, the resolution dated 21-3-2011 is of no legal consequence. Finally he supports the interpretation given by the Additional Deputy Commissioner, Darrang to the expression "the total number of members of the Gaon Panchayat" as appearing in sub-section (1) of Section 15 of the Act. 8. The rival submissions advanced at the Bar have been duly considered. 9. Before proceeding further, it would be apposite to have a cursory glance at the relevant provisions of the Act. Section 6 deals with constitution of Gaon Panchayat. As per Section 6(1)(a), 10(ten) members of the Gaon Panchayat are to be directly elected by the voters of the territorial constituencies, one from each constituency. As per Section 6(1)(b), the President of the Gaon Panchayat shall be directly elected by the voters of the territorial constituencies of the Gaon Panchayat area in the manner prescribed. As per Section7, the duration of every Gaon Panchayat is for a term of five years from the date of its first meeting. Section 10 provides that if any vacancy occurs in the office of the President by reason of death, resignation or removal, the Gaon Panchayat shall elect the President again as per Section 6(1)(b) as noted above. 10. As Section 15 is the core issue, the material provisions thereof may be examined in detail. As per sub-section (1) of Section 15, every President shall be deemed to have vacated his office forthwith when a resolution expressing want confidence in him is passed by majority of 2/3rd of the total, number of members of the Gaon Panchayat. 10. As Section 15 is the core issue, the material provisions thereof may be examined in detail. As per sub-section (1) of Section 15, every President shall be deemed to have vacated his office forthwith when a resolution expressing want confidence in him is passed by majority of 2/3rd of the total, number of members of the Gaon Panchayat. Such a meeting is required to be convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat and should be presided over by the Vice President. In case such a 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 with three days refer the matter to the President of the concerned Anchalik Panchayat, who shall then convene the meeting within seven days and preside over such meeting. In case the President of the Anchalik Panchayat fails to do so within the specified period, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional Officer(C) as the case may be within three days after the expiry of the stipulated period. Thereafter the concerned Deputy Commissioner/Sub-Divisional Officer(C) shall convene the meeting within seven days with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened. In case of his inability to preside over such a meeting, the concerned Deputy Commissioner/Sub-Divisional Officer (C) may depute one Gazetted officer under him not below the rank of Class-I Gazetted Officer to preside over such a meeting. As per the second proviso, when a no confidence motion is lost, a second such motion would not be allowed within the next six months. As per sub-section (2) of Section 15, the requisition for such a special meeting under sub-section (1) shall be signed by not less than 1/3rd of the total number of members of the Gaon Panchayat and thereafter delivered to the President of the concerned Gaon Panchayat with information to the Deputy Commissioner of the district. Though sub-section (3) of Section 15 is not relevant for the present purpose, it may however be noted that under the aforesaid provision, a Gaon Panchayat President may be removed from office by the concerned Anchalik Panchayat with the approval of the Zilla Parishad for misconduct, negligence, incapacity etc. in the manner prescribed. Though sub-section (3) of Section 15 is not relevant for the present purpose, it may however be noted that under the aforesaid provision, a Gaon Panchayat President may be removed from office by the concerned Anchalik Panchayat with the approval of the Zilla Parishad for misconduct, negligence, incapacity etc. in the manner prescribed. As per Section 16, a member of a Gaon Panchayat may resign his membership in writing under his hand addressed to the President of the Gaon Panchayat. Section 17 of the Act deals with the meetings of the Gaon Panchayat and as per sub-section (5) of Section 18, the voting in any meeting of the Gaon Panchayat should be by raising of hands, except in a meeting where a no confidence motion is discussed in which case the voting should be by secret ballot. 11. From the above deliberation, it is seen that the President of the Gaon Panchayat is directly elected by the voters of the territorial constituencies of the concerned Act Panchayat. In the event the said office fails vacant by reason of death, resignation or removal as the case may be, the new President is also required to be elected in the same manner i.e. by direct election by the voters of the territorial constituencies of the Gaon Panchayat. In the event a no confidence motion is sought to be brought against the President, a requisition for holding a special meeting to discuss the motion of no confidence must be signed by not less than 1/3rd of the total number of members of the Gaon Panchayat and should be delivered to the President with information to the Deputy Commissioner of the district. Such a meeting should be specially convened by the Secretary of the Gaon Panchayat with the approval of President to be presided over by the Vice President. In case such a meeting is not convened within a period of 15 days from in date of receipt of notice/requisition, the Secretary of the Gaon Panchayat shall within three days refer the matter to the President of the concerned Anchalik Panchayat, who shall then convene the meeting within seven days and preside over such meeting. In case such a meeting is not convened within a period of 15 days from in date of receipt of notice/requisition, the Secretary of the Gaon Panchayat shall within three days refer the matter to the President of the concerned Anchalik Panchayat, who shall then convene the meeting within seven days and preside over such meeting. In case the President of the Anchalik Panchayat does not take this step as indicated above, the Gaon Panchayat Secretary shall inform the matter to the Debut Commissioner/Sub-Divisional Officer(C) within three days after expiry of the specified period and in such a case, the Deputy Commissioner or the Sub-Divisional Officer(C) shall convene the meeting within seven days with intimation to the Zilla Parishad and Anchalik Panchayat. 12. Having notice the legal position as indicated above, let us examine in what manner the requisition of no confidence was given in this case. The notice/requisition dated 7-3-2011 expressing no confidence against the respondent No. 5 was sent to the Deputy Commissioner, Darrang directly with a copy marked to the respondent No. 5, who in his affidavit has categorically denied receiving any such notice or requisition. It is the pleaded case of the petitioners themselves that "the authority concerned" instructed the Vice President to hold the special meeting. Not only that, the special meeting held on 21-3-2011 was also not as per the procedure laid down in sub-section (1) of Section 15 of the Act. 13. Therefore, it is quite apparent that the procedure prescribed under sub-section (2) and sub-section (1) of Section 15 of he Act have been given a complete go by while proceeding to hold the special meeting to discuss the no confidence motion against the respondent No. 5. In my considered opinion, the said procedural lapses strike at the root of the resolution dated 21-3-2011 whereby it was resolved to remove the respondent No. 5 as the President of the Gaon Panchayat. 14. Now, coming to the impugned decision and the interpretation given to the meaning of the expression "the total number of members of the Gaon Panchayat", I find that a Division Bench of this Court in the case of Samiruddin Ahmed (supra) had the occasion to deal with a similar i.e. provision in the Assam Panchayat Act, 1959. The relevant portion of Section 27(1)(b) of the Assam Panchayat Act, 1995, read as follows : 27(1)(b). The relevant portion of Section 27(1)(b) of the Assam Panchayat Act, 1995, read as follows : 27(1)(b). A President ** of a Gaon Panchayat shall immediately cease to hold office, if by three fifth majority of votes of members present a motion of no-confidence is passed by them in a meeting of the Gaon ** Panchayat ** where at least a minimum of two-thirds of total number of members is present. Repudiating the argument that the total number of members of the Gaon Panchayat should be understood to mean the existing members functioning at the relevant time, this Court held that there is no warrant for adding the word "existing" in Section 27 (1)(b) to clarify the words "number of members". Observing that the President immediately ceases to be President on passing of a motion of no confidence against him 3/5th majority of the minimum requisite members present, this Court held that such a provision under the law resulting in deprivation of an office has to be strictly construed as it affect the right of an elected office-bearer to continue for the normal span of his office. 15. In my considered opinion, the aforesaid Division Bench judgment of this Court is fully applicable to the facts of the present case. As has been noticed above, the President of the Gaon Panchayat is directly elected by all the voters of the territorial constituencies comprising the Gaon Panchayat area. He is not elected by the elected members of the Gaon Panchayat amongst themselves like in the case of the President of an Anchalik Panchayat (see Section 37) or the President of a Zilla Parishad (see Section 70). Having noticed the manner in which the President of a Gaon Panchayat is to be removed in the event the members lose confidence in him, let us see the provisions relating to such removal of the Anchalik Panchayat President and the Zilla Parishad President. Section 43 of the Act deals with no confidence motion against the President of the Anchalik Panchayat. As per sub-section (1) of the said section, every President of the Anchalik Panchayat shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of 2/3rd of the total number of the directly elected members of the Anchalik Panchayat. As per sub-section (1) of the said section, every President of the Anchalik Panchayat shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of 2/3rd of the total number of the directly elected members of the Anchalik Panchayat. Similar is the provision in respect of the President of the Zilla Parishad (see Section 73). Comparing the three situations, it cannot but be observed that there is a subtle but significant variation in the language used in the three situations. While in the case of Gaon Panchayat President, the expression used is "by a majority of two-third of the total number of members", in the case of an Anchalik Panchayat President or a Zilla Parishad President, the expression used is "by a majority of two-third of total number of the directly elected members". We cannot presume that the Legislature was unmindful of the aforesaid variation in the expressions used. Nor can we presume that the Legislature was unmindful of the consequences of the expression "total number of members" as appearing in Section 15(1)of the Act. The said provision deals with the removal of a directly elected President from his office before his normal tenure comes to an end and, therefore, has to be strictly construed. As pointed out by the Division Bench in Samiruddin Ahmed (supra) there is no warrant for adding the word "existing" to clarify the expression "total number of members' The said expression being plain, clear and unambiguous, there is no reason to presume that; the Legislature did not intend what the words plainly say. In such a case, the Court should refrain from adding words to the statute. In fact, there is no necessity to do so in the present case, the language being clear and unambiguous. In view of the above, there is also no necessity to read Sections15(1) and 18(5) of the Act together or to give a "purposive" interpretation to the said expression as suggested by Mr. B.J. Ghosh, the learned State counsel. 16. Mr. In fact, there is no necessity to do so in the present case, the language being clear and unambiguous. In view of the above, there is also no necessity to read Sections15(1) and 18(5) of the Act together or to give a "purposive" interpretation to the said expression as suggested by Mr. B.J. Ghosh, the learned State counsel. 16. Mr. Chetri, learned counsel for the petitioners in support of his submissions had pressed into service three judgments of this Court, namely: (1) 2009 (3) GLT 575 (FB), Forhana Begum Laskar v. State of Assam and others; (2) 2010 (3) GLT 291, Sita Satnami v. State of Assam & others; and (3) 2011 (2) GLT 459, Junali Doley (Borah) and others v. State of Assam and others, I am afraid the issues which arose for consideration before this Court in those decisions are totally different from the issue which has arisen in this case, namely, the interpretation the expression "total number of members" as appearing in Section 15(1) of the Act. Considering the matter in its entirety, I am of the view that the expression "total number of members" as appearing in Section 15(1) of the Act would mean the prescribed number of members comprising the Gaon Panchayat and the said total number of members cannot fluctuate depending on the resignation, removal or death of a member. In that view of the matter, the challenge made in the present writ petition to the order dated 26-2-2011 fails and the writ petition is accordingly dismissed. No cost. Petition dismissed.