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2015 DIGILAW 1211 (GAU)

Nandita Das v. State of Assam

2015-09-19

A.K.GOSWAMI

body2015
ORDER : 1. The petitioner was elected as a Member of No. 7 Barkhetri Anchalik Panchayat from 62 Loharkatha Adabari Gaon Panchayat. The term of the Panchayat is up to 17.03.2018. The post of President of No. 7 Barkhetri Anchalik Panchayat was reserved for Scheduled Caste Woman Member and the petitioner, being the lone Scheduled Caste Woman Member, was duly elected and appointed as the President of the Anchalik Panchayat in a meeting held on 18.03.2013. The decision that the post of the President of the said Anchalik Panchayat would be kept reserved for Scheduled Caste Woman Member for this term of the Panchayat was taken in a meeting, held on 16.03.2013, in the office chamber of the Deputy Commissioner, Nalbari, and the said decision was put to challenge before this Court by some of the Members by filing a writ petition, numbered and registered as WP (C) 1559 of 2013. The writ petition was dismissed by a judgment and order dated 22.01.2014 by holding the reservation of the said post of the Anchalik Panchayat, in question, in favour of Scheduled Caste woman category to be valid. Immediately thereafter, a requisition notice, dated 27.01.2014, was issued expressing no confidence against the President. In terms of the said requisition, a meeting was convened on 10.04.2014 in the office of the Deputy Commissioner, Nalbari, to discuss the no confidence motion and, in the said meeting, no confidence was expressed against the petitioner by a majority of Members supporting the motion and, consequently, no confidence motion was adopted. The petitioner preferred an appeal on 14.04.2014, under Section 137 of the Assam Panchayat Act, 1994 (for short, Panchayat Act). However, the same being not disposed of, the instant writ petition was filed by the petitioner praying for setting aside the resolution of no-confidence adopted on 10.04.2014 and for writ of mandamus directing the respondents to allow the petitioner to hold and continue in the post of President of No.7 Barkhetri Anchalik Panchayat and for a declaration that Article 243D read with Section 38 of the Panchayat Act, shall supersede Section 43 of Panchayat Act, so far as the same relates to the petitioner. 2. No affidavit has been filed by the respondents. 3. As agreed upon by the learned counsel for the parties, the case was taken up for consideration on 20.08.2015. 2. No affidavit has been filed by the respondents. 3. As agreed upon by the learned counsel for the parties, the case was taken up for consideration on 20.08.2015. Learned counsel for the parties submitted that facts are not disputed and the case poses a question of law and, therefore, it is not essential for them to file their respective counter-affidavits. 4. Heard Mr. S.S. Dey, learned Senior counsel for the petitioner. Also heard Mr. H.R.A. Choudhury, learned Senior counsel appearing for respondent Nos. 5 to 12; and Mr. B.J. Ghosh, learned State counsel, appearing for respondent Nos. 1 to 4. 5. On 20.08.2015, after considerable hearing had taken place, Mr. B.J. Ghosh, learned counsel had made a prayer for some time to obtain instructions relating to composition of No. 7 Barkhetri Anchalik Panchayat Constituency and, accordingly, the case was adjourned to 02.09.2015. On that date, Mr. B.J. Ghosh, learned State counsel submitted that he received the requisite instructions. 6. Mr. S.S. Dey, learned Senior counsel for the petitioner has submitted that the petitioner is the only Scheduled Caste Woman Member in the Anchalik Panchayat and it is not in dispute that the post of the President for the said Anchalik Panchayat, for the present term, is reserved for a Scheduled Caste Woman Member. Placing reliance on Article 243D, learned Senior counsel has submitted that it will be obligatory to reserve seats for Scheduled Castes and Scheduled Tribes in every Panchayat and the number of seats, so reserved shall bear, to the extent possible, the same proportion to the total number of seats to be filled up by direct election in that Panchayat as the population of the Scheduled Castes or Schedule Tribes in that Panchayat area or Panchayat bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. That apart, it is also mandated by Article 243D(2) that not less than 1/3rd of the total number of seats reserved under Clause(1) shall be reserved for woman belonging to Scheduled Castes or, as the case may be, to Scheduled Tribes. It is submitted by Mr. Dey that in order to effectuate the provision of the Constitution, provisions have been incorporated in the Panchayat Act. It is submitted by Mr. Dey that in order to effectuate the provision of the Constitution, provisions have been incorporated in the Panchayat Act. He submits that Section 38 of the Panchayat Act read with Rule 7(3)(a) of the Assam Panchayat (Constitution) Rules, 1995 (for short, ‘Panchayat Rules’), provide for procedure and mechanism of reservation that has to be carried out in accordance with the mandate of Article 243D relating to reservation of post of President in Anchalik Panchayat for Scheduled Caste Woman Member. Mr. Dey has submitted that, no doubt, there is provision, as articulated under Section 43 of the Panchayat Act, for expressing no confidence motion against the President, but, Mr. Dey emphasizes, that such provision has to be subservient to the constitutional mandate as no statute can be held to have primacy over constitutional provisions. It is submitted that it would have been a different matter had there been another Schedule Caste Woman Member to occupy the post of President on the incumbent being ousted by a no confidence motion expressed against her. But, he submits, in the peculiar circumstances when the petitioner happens to be the only woman Scheduled Caste Member, in absence of any other mechanism in the Act, the no confidence expressed against the petitioner will be of no consequence because the post of President cannot be allowed to be continued to remain vacant. The question of filling up the post also does not arise because the petitioner continues to be Member of the said Anchalik Panchayat and the total number of Members for the Anchalik Panchayat is also fixed, which is 12 for the Anchalik Panchayat in question. Therefore, Mr. Dey argues that having regard to the constitutional framework, the no confidence expressed against the petitioner, in the facts and circumstances of the case, cannot be effectuated. Mr. Dey has further submitted that the no-confidence motion, passed against the petitioner, is yet to receive approval of the Government. 7. Mr. H.R.A. Choudhury, learned Senior counsel appearing for the private respondent Nos. 5 to 12, has submitted, at the outset, that it is not correct, as submitted by Mr. Dey, that in a case of adoption of resolution expressing no confidence, approval of the Government is required. 7. Mr. H.R.A. Choudhury, learned Senior counsel appearing for the private respondent Nos. 5 to 12, has submitted, at the outset, that it is not correct, as submitted by Mr. Dey, that in a case of adoption of resolution expressing no confidence, approval of the Government is required. It is submitted by him that when the President is removed by the Zilla Parishad because the President is found to be constantly remiss in discharging his official duties or for misconduct, there will be an occasion for obtaining approval of the Government and not in any other case. Drawing attention of the Court to Section 43(1), it is submitted by him that once a resolution is adopted expressing no confidence, in view of the deeming provision therein, it will be deemed that the President or the Vice-President, as the case may be, has vacated the office forthwith and, therefore, the contention of Mr. Dey has got no merit. He submits that if the petitioner is allowed to continue to function as the President of the Anchalik Panchayat, it would, in essence, tantamount to holding the no-confidence resolution to be non-est in law. It is strenuously argued by Mr. Choudhury that in a democratic polity, the argument advanced by Mr. Dey that notwithstanding the adoption of no-confidence resolution against the petitioner, she, perforce, has to be allowed to continue as the President, cannot be countenanced. In support of his arguments, Mr. Choudhury has placed reliance on the decisions of the Apex Court in the case of Bhanumati and Others vs. State of Uttar Pradesh and Others, (2010) 12 SCC 1 and Usha Bharati vs. State of Uttar Pradesh and Others, (2014) 7 SCC 633. 8. Mr. Choudhury has also highlighted some of the provisions of the Panchayat Act, namely, Section 34 and 38, which have also been relied upon by Mr. Dey. He has submitted that though the Constitution envisages 1/3rd reservation, by an amendment brought forward, the State had reserved 50% of the total number of offices of the President and Vice-President of the Anchalik Panchayat for reserved categories. Dey. He has submitted that though the Constitution envisages 1/3rd reservation, by an amendment brought forward, the State had reserved 50% of the total number of offices of the President and Vice-President of the Anchalik Panchayat for reserved categories. In absence of any mechanism provided for dealing with the situation of the kind confronted with, learned Senior counsel has drawn attention of this Court to Section 132 of the Panchayat Act, which deals with the power of the Government to remove the difficulties faced, and submits that the State can step in and evolve some mechanism to address the present issue. 9. Drawing attention of the Court to Section 43(4) of the Panchayat Act, it is submitted by Mr. Choudhury that the petitioner cannot be re-elected as President of the said Anchalik Panchayat once having been removed by way of no-confidence motion expressed against her. There is no other Member also amongst the Members, who fits the bill and, therefore, there is no way that the post of President can be filled up unless the same is de-reserved and it is in this manner only that the present imbroglio can be overcome and the impasse, if any, can be resolved. 10. The other alternative, Mr. Choudhury submits, is permitting the Vice-President to continue to discharge the functions and duties of the President in terms of Section 41(a) and 41(b) of the Panchayat Act, as is being done for the present. 11. Mr. B. J. Ghosh, learned State counsel, submits that in the Anchalik Panchayat in question, there are total 12 elected Members out of which one was the President herself and another is the Vice-President. Mr. Ghosh has placed before the Court a Notification, dated 01.12.2012, on the subject of reservation of seats of Scheduled Castes and Scheduled Tribes Women in respect of various Panchayat institutions of Nalbari District in connection with Panchayat Election, 2012, as well as a notice of election, in Form V-C, depicting position of reservation. It is his submission that under no circumstances the petitioner having lost the confidence of the Members, be allowed to continue as President and, in the circumstances of the case, the Vice-President may be allowed to continue to discharge the functions of the President in terms of Section 41, or, this Court may also direct the State Government to pass appropriate orders. 12. Mr. 12. Mr. Dey, learned Senior counsel for the petitioner, in his reply submission, has stated that during the pendency of the writ petition, the State Government had rejected his appeal stating that the petition submitted by the appellant/petitioner was not maintainable and, therefore, there will be no worthwhile exercise if the matter is remanded to the Government and it will be appropriate for this Court to decide the issue. Mr. Dey has further submitted that Article 243D has to be read in an affirmative manner meaning thereby that not only the post has to be reserved but it has also to be filled up by reserved category Member. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 14. Section 34 of the Panchayat Act provides for reservation of seats for Scheduled Castes and Scheduled Tribes and also reservation of 50% of such seats for women of such categories as well as reservation of 50% of the total number of seats to be filled up by direct election in every Anchalik Panchayat for women including the number of seats reserved for women belonging to Scheduled Castes and Scheduled Tribes. Section 38 of the Panchayat Act prescribes the procedure for reservation for the office of the President and Vice-President of Anchalik Panchayat. 15. The petitioner contested for the post of Member of No. 7 Barkhetri Anchalik Panchayat from No. 62 Loharkatha Adabari Gaon Panchayat, which was reserved for Scheduled Caste candidate vide notification dated 01.12.2012. Perusal of the minutes of the meeting held on 16.03.2013 goes to show that No.3 Paschim Nalbari Anchalik Panchayat had the highest Scheduled Caste population. One Purnima Kaibarta, a woman of Scheduled Caste category declined to hold the Office of President of the said Anchalik Panchayat and, accordingly, post of President of No.7 Barkhetri Anchalik Panchayat came to be reserved for Scheduled Caste Woman. 16. Prior to the Constitution (Seventy-third Amendment Act), 1992, Constitutional provision relating to Panchayat was part of directive principles in Article 40 which provided that the State shall take steps to organise the Village Panchayat and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. 16. Prior to the Constitution (Seventy-third Amendment Act), 1992, Constitutional provision relating to Panchayat was part of directive principles in Article 40 which provided that the State shall take steps to organise the Village Panchayat and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Under the Seventy-third Amendment of the Constitution, Panchayat became an institution of self-governance, designed as a tool of social engineering to usher in social transformation to the existing social milieu. The avowed object of the Amendment was to bring about democratic decentralization of participatory democracy. With this end in view, the composition of the Panchayat, its function, its election and many other aspects of its administration are delineated under the Constitution with provisions which enable the State Legislatures to enact laws to implement the Constitutional mandate. Significantly, provision of no-confidence is not part of Part-IX of the Constitution. 17. In Bhanumati (supra), the Apex Court had held that provision of no-confidence in a statute made by the Legislature is not inconsistent with Part-IX of the Constitution merely because of silence in the Constitution regarding no-confidence motion. The Apex Court recounted that many issues in our Constitutional jurisprudence evolved out of the Doctrine of Silence. It was held that a Constitution which professes to be democratic and republican in character and which brings about revolutionary change by the Seventy-third Constitution Amendment by making detailed provision for democratic decentralization and self-governance on the principle of grass-root democracy, cannot be interpreted to exclude the provision of no-confidence motion in respect of the Office of the President/Chairperson of the Panchayat only because of its silence on that aspect. 18. The Apex Court in Bhanumati (supra) held as follows: “58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. 66. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayat Raj institutions. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. 66. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayat Raj institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So, any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self-governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.” 19. It is, therefore, manifest that in public bodies such as Panchayats, persons heading such bodies can continue to discharge their duties and functions so long as they continue to enjoy the confidence of the majority of the Members who comprise such bodies. In the aforesaid backdrop, statutory provision to demonstrate that the President has lost the confidence of the majority of the Members is in furtherance of public interest and adds strength to the institution of self-governance and it does not result in institutional setback. 20. In Usha Bharati (supra), submission was advanced that Article 243 provided for reservation for upliftment of the poor sections of the society and provision of no-confidence can frustrate provision for such reservation as Members belonging to Scheduled Castes, Scheduled Tribes and women always being in minority in a Panchayat, a President/Chairperson from the reserved category can easily be removed from the said office by majority of general category Panchayat Members and such a result was not envisaged by the provisions contained in Article 243D. Bhanumati (supra) was considered exhaustively in Usha Bharati (supra) and the Apex Court, while reiterating the Constitutional ethos and the interpretation of Part IX, rejected the contention that the petitioner being a Scheduled Caste lady Chairperson cannot be removed through a vote of no-confidence. It was also held by the Apex Court that such a person can be replaced by a person belonging to one of the reserved categories. It was also held by the Apex Court that such a person can be replaced by a person belonging to one of the reserved categories. The Apex Court also held that there is no merit in the contention that a person once elected to the post of Chairperson/President would be permitted to continue in office till the expiry of the five years term, even though he/she no longer enjoys the confidence of the Members. 21. In view of the judgment of the Apex Court in Bhanumati (supra) and Usha Bharati (supra), there is no merit in the contention of the writ petitioner that she should be allowed to continue as President of the No.7 Barkhetri Anchalik Panchayat. 22. The President who has suffered a no-confidence motion is ineligible for re-election in terms of Section 43(4) of the Panchayat Act. Such a President, though ceases to be a President, however, continues to be a Member and as such, the petitioner is still a Member of the No.7 Barkhetri Anchalik Panchayat. She also happens to be the only Scheduled Caste Woman Member. The total number of Members of the Anchalik Panchayat is also fixed, which is 12 and presently, all 12 Members are functioning. 23. As there is only one Scheduled Caste Woman Member in the present constitution of the Anchalik Panchayat and as the post of President for No.7 Barkhetri Anchalik Panchayat is reserved for Scheduled Caste Woman Member, post of President cannot be filled up by any other Member. 24. In these circumstances, the Vice-President of the Anchalik Panchayat, who is presently discharging the duties and function of the Panchayat, shall continue to exercise all the powers and discharge all the duties and functions of President as provided under Section 41 of the Panchayat Act till the expiry of the present term. 25. The writ petition stands dismissed with the aforesaid observations and directions. No cost.