Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 718 (GAU)

Anita Gayan v. State of Assam

2015-06-10

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. 1. The petitioners, who are the Chairperson and Vice Chairperson of Barpeta Municipal Board are aggrieved by the Annexure-L communication dated 2.6.2015 of the Government of Assam in the Urban Development Department issued under the signature of the Joint Secretary. The occasion for issuance of the said letter dated 2.6.2015 arose when the issue relating to no-confidence motion brought against the petitioners was discussed in the special meeting of the Barpeta Municipal Board held on 9.4.2015. In the said meeting in absence of any consensus regarding voting process (open or secret), the matter was referred to the Government for appropriate decision. As per the impugned decision contained in the letter dated 2.6.2015 votes on no confidence motion shall ordinarily be taken by word of mouth or by show of hands, but if the majority of the members so desire, then only by ballot. While according to the petitioners, the no confidence motion is to be decided through secret ballots, but according to the private respondents, the petitioners cannot dictate the term of the voting process and that voting can be by such a manner as may be decided by the house. 2. I have heard Mr. K.N. Choudhury, learned Sr. Counsel assisted by Mr. I. Choudhury, leaned counsel for the petitioners. Also heard Mr. S.S. Dey, learned Sr. Counsel assisted by Mr. P. Mahanta and Mr. D.K. Das, learned counsel for the private respondents (respondents No. 5 to 15). I have also heard Mr. P.S. Deka, learned State Counsel. 3. The relevant provision of the Assam Municipal Act, 1956 as has been referred by the learned counsel for the parties are as follows: "28. Removal of Chairman and Vice Chairman- (2) An elected Chairman or Vice-Chairman may be removed from his office by a resolution of the Board in favour of which not less than half of the whole number of commissioners shall have given their votes at a meeting specially convened for the purpose. Removal of Chairman and Vice Chairman- (2) An elected Chairman or Vice-Chairman may be removed from his office by a resolution of the Board in favour of which not less than half of the whole number of commissioners shall have given their votes at a meeting specially convened for the purpose. (3) The State Government after giving an opportunity to explain, may remove the Chairman or Vice-Chairman from his office if he is persistently omitting or refusing to carry out or disobeying the provisions of this Act and the rules thereunder or any lawful orders issued thereunder or he becomes incapable of so acting or is declared insolvent or is convicted by a Criminal Court for any offence involving moral turpitude." "43. Ordinary and special meetings.- (1) The Commissioner shall meet for the transaction of business at their office, at least once in every month, and as often as a meeting shall be called by the Chairman or, in his absence, by the Vice Chairman. If there be no business to be laid before the Commissioner at any monthly meeting, the Chairman shall instead of calling the meeting, give notice of the fact to each Commissioner three days before the date which is appointed for the monthly meeting. (2) The Chairman, or in his absence, the Vice-Chairman may call a special meeting whenever he thinks fir and shall call one on a requisition signed by not less than three of the commissioners. (3) If the Chairman or the Vice-Chairman fails to call special meeting to meet within twenty days after any such requisition has been made, the meeting may be called by the persons who signed the requisition." "45. Manner of deciding questions.--Save as otherwise provided in or under this Act.- (a) All questions at a meeting of the Board shall be determined by a majority of votes of the Commissioners present; (b) In the case of equality of votes, on any question other than the election of the Chairman, or the Vice-Chairman, the President, if there is one, shall have a second or casting vote; (c) In the case of equality of votes in the election of Chairman, Vice-Chairman or President, the determination shall be by the drawly of lots. Provided that an official appointed as Chairman under Section 33shall not have the right to vote save for the purpose of giving a casting vote under this section." 4. Provided that an official appointed as Chairman under Section 33shall not have the right to vote save for the purpose of giving a casting vote under this section." 4. As per the aforesaid provision, an elected Chairman and Vice-Chairman may be removed from his office by a resolution of the Board. Section 43 provides for ordinary and special meetings, in terms of which Chairman, or in his absence, the Vice-Chairman may call a special meeting whenever he things fit and shall call one on a requisition signed by not less than three or the commissioners. Upon failure to do so within 20 days, the meeting may be called by the persons who signed the requisition. 5. Laying down the manner of deciding the question Section 45(a) provides that all questions at a meeting of the Board shall be determined by a majority of votes of the commissioners present, in Dilip Singh v. State of Assam reported in 2011(2) GLT 225, (2008) 1 GLR 715 referring to the provision of the Act, it was observed thus: "8. In view of the arguments advanced, the court will, therefore, be required to decide on the meaning of the expression "given their votes" as appearing in section 28(2) of the Act. In Black's Law Dictionary "Vote' has been defined as an expression of one's will, preference, or choice. Under the meaning ascribed to 'Voting by ballot', it has been stated that the said term is used to distinguish open voting from secret voting and that the privilege of secrecy is the essence of voting by ballot. In Stroud's Judicial Dictionary, under the expression 'vote', it is stated that there are two well-known methods of voting, (1) by show of hands, and (2) by a poll. In Oxford English Dictionary 'vote' has been defined to mean, inter alia, a formal expression of opinion by a member of a deliberative assembly on a matter under discussion and., alternatively, as an indication, by some approved method, of one's opinion or choice on a matter under discussion. 9. The various meanings ascribed to the word 'voting' or 'vote', as noticed above, make it abundantly clear that the act of voting denotes an expression of an opinion and that there can be no laid down or any particular manner in which such expression or the opinion is required to be conveyed. 9. The various meanings ascribed to the word 'voting' or 'vote', as noticed above, make it abundantly clear that the act of voting denotes an expression of an opinion and that there can be no laid down or any particular manner in which such expression or the opinion is required to be conveyed. Voting, therefore, can be in any form and voting by ballot is one of the accepted forms of voting. In the present case a reading of the resolution No. 2 dated 19.9.2005 makes it abundantly clear that 6 (six) members of the Board had decided to express their mind in favour of the no confidence motion against the petitioner. If that be so, it will be difficult to accept the argument advanced on behalf of the petitioner that there was no voting in the meeting held on 19.9.2005 as mandated by Section 28(2) of the Act." 6. Thus it was held that voting can be in any form including the form of secret ballot. 7. As per the provisions of the Act, referred to the above, it is for the house to decide as to the manner of voting. In that view of the matter, I am of the considered opinion that there was no necessity to refer the matter to the Government and irrespective of the observation made in the impugned communication dated 2.6.2015, it is entirely upto the house to decide the form of voting towards discussing the no confidential motion requisition, which has been placed by 11 members of the Board vide the Annexure-C letter dated 10.2.2015. With the above observation, the writ petition is disposed of.