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2015 DIGILAW 1089 (GAU)

Alfatun Nessa Laskar v. State of Assam

2015-08-27

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. S.R. Barbhuiya, learned counsel for the petitioner. Also heard Mr. P.K. Deka, learned counsel appearing for respondent Nos. 6 and 7, President of Chandpur Ujankupa Gaon Panchayat, for short, the Gaon Panchayat and the Secretary of the Gaon Panchayat, respectively. Though respondent Nos. 8 to 16 are represented by Mr. R. Phukan, learned counsel, there is no appearance on behalf of respondent Nos. 8 to 16. Respondent Nos. 1 to 3 are also not represented to-day. 2. Notice upon respondent Nos. 4 and 5, the President of the Hailakandi Anchalik Panchayat and husband of the President of the Hailakandi Anchalik Panchayat, respectively, were deemed to be served by an order of the Lawazima Court dated 21.05.2014. None appears for them. Respondent Nos. 1, 2 and 3 are the State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, Deputy Commissioner, Hailakandi and the Secretary and Executive Officer, Hailakandi Anchalik Panchayat, respectively. 3. The matter was taken up for consideration on 19.08.2015. On that day, the learned counsel for the petitioner as well as Mr. Sheikh Noor Mohammad, learned State Counsel, Assam representing respondent Nos. 1 to 3 were heard. However, none had appeared for the private respondents on that day. In such circumstances, in order to grant one opportunity to the learned counsel for the private respondents, the case was directed to be posted to-day as a part-heard-case. 4. The respondent No. 3 and the respondent No. 6 have filed separate affidavits. Though Mr. Deka appears for the respondent No. 7 as well, no affidavit was filed by the Secretary of the Gaon Panchayat. 5. Petitioner is the Vice-President of the Gaon Panchayat. Challenge in the writ petition is to a resolution of no-confidence motion adopted against the petitioner in the special meeting convened on 09.12.2013 in the office of the President of Hailakandi Anchalik Panchayat. 5. Petitioner is the Vice-President of the Gaon Panchayat. Challenge in the writ petition is to a resolution of no-confidence motion adopted against the petitioner in the special meeting convened on 09.12.2013 in the office of the President of Hailakandi Anchalik Panchayat. The challenge is made to the aforesaid resolution on three grounds: (i) requisition notice dated 20.11.2013 was not delivered to the petitioner, (ii) voting of no-confidence was done without secret ballot in violation of Section 18(5) of the Assam Panchayat Act, 1994 and (iii) special meeting was presided over by the husband of the President of Hailakandi Anchalik Panchayat but subsequently through over-writing, presence of the President of the Hailakandi Anchalik Panchayat was shown in serial No. 1 of the minutes of the meeting. 6. The respondent No. 3 in his affidavit stated that voting was done through secret ballot and also asserted that the special meeting was presided over by the President of the Hailakandi Anchalik Panchayat. The affidavit was filed on 26.08.2014 and no reply-affidavit has been filed till date denying the above statements. The petitioner was also not present in the special meeting where the no-confidence resolution was adopted against him. The resolution adopted in the meeting held on 09.12.2013 goes to show that secret ballot was adopted while adopting the no-confidence resolution. 7. In view of the above, there is no material to support the contention of the petitioner that secret ballot was not resorted to when the no-confidence resolution was adopted against the petitioner. On the same analogy, the allegation that the President of the Hailakandi Anchalik Panchayat did not preside over the meeting also falls through. No doubt that there are over-writings in the serial numbers recorded against each of the persons attending the meeting but merely because seriatim was corrected, the same cannot lead to the conclusion that there was manipulation or interpolation. 8. So far as service of requisition notice dated 20.11.2013 is concerned, it appears from Annexure – 1 that the notice was not addressed to the petitioner. The same was addressed to the Secretary of the Gaon Panchayat and copy of the same was given to some authorities as indicated therein. However, no copy was earmarked for the petitioner. The affidavit of respondent No. 6 discloses that he could not accord approval for holding of the special meeting as he was under medical treatment from 10.11.2013 to 07.12.2013. However, no copy was earmarked for the petitioner. The affidavit of respondent No. 6 discloses that he could not accord approval for holding of the special meeting as he was under medical treatment from 10.11.2013 to 07.12.2013. 9. It appears from the statements made in the writ petition that on 06.12.2013, Secretary of the Gaon Panchayat, respondent No. 7, referred the matter to Hailakandi Anchalik Panchayat for necessary action, and thereafter, notice was issued by the respondent No. 3 on 07.12.2013 convening a special meeting to consider the no-confidence motion against the petitioner on 09.12.2013. It is averred by the writ petitioner that from the notice dated 07.12.2013, Annexure – 2, she, for the first time, came to learn about the requisition of no-confidence initiated by some of the members of the Gaon Panchayat. 10. Section 15(2) of the Assam Panchayat Act, 1994, for short, the Act, provides that requisition for a special meeting under sub-Section (1) for holding no-confidence motion 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. Section 15(1) of the Act provides that the meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat and such meeting shall be presided by the Vice-President, if the motion is against the 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 15 days from the date of receipt of 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 preside over such meeting. 11. Serious allegations are made against the petitioner in the requisition notice. It is stated that the petitioner is needed to be removed because of misuse of power and lack of sense of responsibility and also because that she is an old and illiterate lady. 12. 11. Serious allegations are made against the petitioner in the requisition notice. It is stated that the petitioner is needed to be removed because of misuse of power and lack of sense of responsibility and also because that she is an old and illiterate lady. 12. Section 15(2) of the Act provides that the requisition “shall be delivered to the President or Vice-President as the case may be”. Therefore, when the requisition is given for holding of a no-confidence motion against the Vice-President, such notice has to be brought to the personal notice of the Vice-President. It is for the salutary reason that at the first point of time the person concerned against whom a no-confidence is sought to be brought is made known of such a motion because he or she has to meet the allegations and try to dispel the misgivings. As the President, in view of Section 15 of the Act, is the authority who has to accord approval for convening a special meeting to discuss a no-confidence motion irrespective of the fact as to whether no-confidence motion is against the President or the Vice-President, the requisition, necessarily, has also to be placed before the President. 13. In Ali Ahmed Mazumdar Vs. State of Assam and Ors., reported in 2011 (3) GLT 396, a case relied upon by Mr. Barbhuiya, a Division Bench of this Court had held that because of extremely possible disastrous consequences like removal from office attached to the no-confidence motion preceded by compliance of certain statutory procedures as laid down by Section 15 of the Act, notice of no-confidence motion received by the Secretary on behalf of the President cannot be construed as due notice to the President. In the context of the said case, it was noted that Gaon Panchayat Secretary, who received the notice on behalf of the President is cast with a legal duty, which is mandatory in nature, to inform the President forthwith about the receipt of such notice with a note put up in an official file for his personal knowledge. It was also held that justice demands physical and direct service of notice upon the President or Vice-President in whom the members have lost confidence and want to remove from office. 14. It was also held that justice demands physical and direct service of notice upon the President or Vice-President in whom the members have lost confidence and want to remove from office. 14. Materials on record, in absence of rebuttal by the respondent No. 7 and other private respondents, go to show that the petitioner was not furnished with the copy of the requisition dated 20.11.2013 and she came to learn about the requisition notice only on 07.12.2013 when respondent No. 3 issued the notice and thus there was no direct service of notice. The resolution was adopted expressing no-confidence against her on 09.12.2013. 15. In view of the above, it must be held that the requisition for holding the no-confidence motion was not properly served and therefore, same could not have formed the basis for initiating further action like convening of the special meeting for discussion on the no-confidence motion. When the foundation or the edifice is rooted in contravention of mandatory statutory requirement, the resolution adopted in the special meeting held on 09.12.2013 must be held to be illegal. Accordingly, the impugned resolution dated 09.12.2013 is set aside. The petitioner will be entitled to function and discharge her duties as Vice- President of Chandpur Ujankupa Gaon Panchayat. 16. Writ petition is allowed. No cost.