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2016 DIGILAW 1058 (GAU)

AKRAM HUSSAIN (MD) v. STATE OF ASSAM

2016-11-25

ACHINTYA MALLA BUJOR BARUA

body2016
JUDGMENT : A.M. Bujor Barua, J. Heard Shri D. Nath, learned counsel for the petitioner. Also heard Shri A. Mannaf, learned counsel appearing for the respondent Nos. 6 to 12 and Shri H.K. Hazarika, learned state counsel appearing for the respondent Nos. 1 to 4. 2. As per the office note dated 21.09.2016, A/D card had been received back after service upon the respondent No. 5, as such, it is construed that the notice has been served on the said respondent. Shri D. Nath, learned counsel for the petitioner submits that the petitioner had also effected the dasti service upon the said respondent No. 5. 3. The petitioner was elected as the President of the No. 2 Hatishala Bhalukabari Gaon Panchayat in the Panchayat Elections held in the year 2012-2013. By the Annexure-3 requisition dated 17.02.2016 signed by the 7 (seven) members of the Gaon Panchayat, a requisition was made for convening a special meeting for discussing the no confidence motion against the President of the Gaon Panchayat. As the President of the Gaon Panchayat did not give his approval for the meeting within the required period of 15 (fifteen) days, the Secretary of the Gaon Panchayat by the Annexure-5 letter dated 04.03.2016 referred the matter to the President of Goroimari Anchallik Panchayat for necessary action for convening the required meeting. But as the President of the Anchalik Panchayat did not convene the meeting within the period of 7 days, from the date of receipt of the notice of the Secretary of the Gaon Panchayat, the Secretary by the Annexure-6 letter dated 14.03.2016 referred the matter to the Deputy Commissioner, Kamrup(R). Upon such reference being made, the Addl. Deputy Commissioner, Kamrup(R) by letter dated 16.03.2016 addressed to the Block Development Officer, Goroimari Development Block requested to convene the Gaon Panchayat meeting to discuss the no confidence motion within 7 (seven) days. 4. Pursuant to the aforesaid procedure, a meeting for discussing the no confidence motion against the President of the No. 2 Hatishala Bhalukabari Gaon Panchayat was held on 21.03.2016 at 12.30 p.m in the Office of the Goroimari Anchalik Panchayat. In the said meeting, a resolution had been taken that 7 nos. of votes were found in favour of no confidence motion whereas, 0 votes were found against no confidence motion. Accordingly, a resolution was taken that no confidence motion was passed in accordance with the result of voting. In the said meeting, a resolution had been taken that 7 nos. of votes were found in favour of no confidence motion whereas, 0 votes were found against no confidence motion. Accordingly, a resolution was taken that no confidence motion was passed in accordance with the result of voting. In this writ petition, the petitioner being the removed President of the No. 2 Hatishala Bhalukabari Gaon Panchayat as per the said impugned resolution dated 21.03.2016, had preferred this writ petition challenging the said resolution of removal. 5. Shri D. Nath, learned counsel for the petitioner submits that as per the 3rd sub-paragraph of Section 15(1) of the Assam Panchayat Act, 1994, in case the President of the Anchalik Panchayat does not take any action upon the reference of the Secretary of the Gaon Panchayat within the specified 7 (seven) days time, the Gaon Panchayat secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional Officer(C), as the case may be, within 3 (three) days after expiry of the stipulated 7 (seven) days time. It is pointed out that as per the said 3rd paragraph of Section 15(1) of the Assam Panchayat Act 1994, the concerned Deputy Commissioner/Sub-Divisional Officer(C) shall convene the meeting within 7 days from the date of receipt of the information with the intimation to Zilla Parishad and Anchalik Panchayat and preside over the meeting so convened. It is the submission of Shri Nath, learned counsel for the petitioner that it is the statutory mandate of the 3rd paragraph of Section 15(1) of the Assam Panchayat Act, 1994 that it is the Deputy Commissioner or the Sub-Divisional Officer(C), who is required to preside over the no confidence motion. Shri Nath also submits that as per the proviso to Section 15(1) of the Assam Panchayat Act, 1994, the concerned Deputy Commissioner/Sub-Divisional Officer(C) as the case may be, in case of his inability to preside over the meeting may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer to preside over such meeting. By referring to the provision of the said proviso of Section 15(1), Shri Nath submits that in the instant case, while passing the impugned resolution of removal of the President, the special meeting of discussing no confidence motion held on 21.03.2016 was presided over by the president of Goroimrai Anchalik Panchayat, Ms Rajina Bhuyan. By referring to the provision of the said proviso of Section 15(1), Shri Nath submits that in the instant case, while passing the impugned resolution of removal of the President, the special meeting of discussing no confidence motion held on 21.03.2016 was presided over by the president of Goroimrai Anchalik Panchayat, Ms Rajina Bhuyan. According to the learned counsel, the said act of the President of the Goroimari Anchalik Panchayat presiding over the meeting of discussing the no confidence, is a violation of the proviso of Section 15(1) of Assam Panchayat Act, 1994. 6. In this respect, Shri Nath relies upon a decision of this Court in the case of Rezna Begum Barbhuiya v. State of Assam and Ors. reported in 2000 (Suppl) GLT page 43, wherein, in paragraph 16 it had been held that under Section 15(1) of the Act, the Deputy Commissioner was imperatively required to convene the meeting himself and preside over the same, which apparently was not done and had delegated his duty and authority to the BDO to convene and preside over the meeting. It was held that in view of the provision of Section 15(1) of the Act, the same was impermissible. Paragraph 16 of the said judgment is quoted herein below:- "This Court while directing the Deputy Commissioner, Hailakandi, to act in terms of Section 15 of the Act categorically required the said authority to act strictly in terms thereof. In other words, as per the demand of Section 15(1) of the Act as well as the directions of this Court, the Deputy Commissioner, Hailakandi, was imperatively required to convene the meeting himself and to preside over the same, which apparently has not been done. The communication dated 24.03.2005 does not indicate that the Block Development Officer, Katlicherra Development Block, was permitted only to preside over the meeting to be held on 02.04.2005 as the Deputy Commissioner, Hailakandi, was on that date unable to preside over the same. The communication dated 24.03.2005 on the other had demonstrates that the Deputy Commissioner, Hailakandi, delegated his power and authority to the BDO, Katilcherra to convene the meeting, preside over the same and submit a report in connection therewith. This is my view, was impressible both in the teeth of Section 15 of the Act as well as the clear and explicit directions of this court contained in the order dated 16.03.2005. This is my view, was impressible both in the teeth of Section 15 of the Act as well as the clear and explicit directions of this court contained in the order dated 16.03.2005. In the above view of the matter, Mr. Medhi's contention to the contrary cannot accepted" 7. By relying upon such judgment, Shri Nath submits that in the instant case, under the mandate of Section 15(1) of the Act, it is either the Deputy Commissioner himself or the Gazetted Officer under him, who may be deputed, can alone preside over the meeting. Accordingly, the President of the Anchallik Panchayat cannot preside over the meeting. It is submitted that any such meeting, which is presided over by the President of Anchalik Panchayat would be vitiated. 8. On the other hand, Shri Mannaf, learned counsel for the respondent Nos. 6 to 12 have relied upon a decision in the case of Jugal Borah and Ors v. State of Assam and Ors. reported in 2012 (3) GLT 875. By referring to the provision of paragraph-16 of the said judgment, Shri Mannaf submits that it is permissible under the law for the President of the Anchalik Panchayat to preside over the meeting of no confidence motion, in a case, where the meeting was required to convened and presided over by the Deputy Commissioner under the 3rd Sub-paragraph of Section 15(1). On reading of Paragraph 16 of the said judgment of Jugal Borah (supra), it is seen that in the said judgment, the Deputy Commissioner, Lakhimpur was directed to convene the special meeting of the Gaon Panchayat either by himself or by an officer deputed by him and by providing that such meeting shall be presided by the Deputy Commissioner himself or by the Deputed Officer. The said decision nowhere provides that even in a situation, where the Deputy Commissioner is required to convene the meeting under the 3rd sub-paragraph of Section 15(1) of the Assam Panchayat Act, 1994 the President of the Anchaclik Panchayat can also preside over the meeting. In that view of the matter, the said decision relied upon by Shri Mannaf is not applicable in the facts of this case. 9. A perusal of the impugned resolution of removal contained in the minutes of the meeting held on 21.03.2016 would go to show that the meeting was presided over by the President of the Goroimari Anchalik Panchayat, Ms. 9. A perusal of the impugned resolution of removal contained in the minutes of the meeting held on 21.03.2016 would go to show that the meeting was presided over by the President of the Goroimari Anchalik Panchayat, Ms. Rejina Bhuyan. In this respect, it is found that it is a categorical admission of the parties that in fact, the said meeting dated 21.03.2016 was presided over by the President of Goroimari Anchalik Panchayat. The provision of the 3rd sub-paragraph of section 15(1) of the Assam Panchayat Act, 1994 is that when the matter is referred to the Deputy Commissioner/Sub-divisional Officer(C) within the stipulated time, the concerned Deputy Commissioner/Sub-divisional Officer(C) shall convene the meeting within 7 (seven) days from the date of receipt of the information and shall preside over the meeting so convened. However, the proviso to the said 3rd sub-paragraph of Section 15(1) clearly provides that the concerned Deputy Commissioner/Sub-divisional Officer(C), as the case may be, in case of his inability to preside over the meeting may depute one Gazetted Officer under him not below the rank of Class-I officer to preside over such meeting. Therefore, it is the provision of the statute that when a meeting of no confidence motion against the President of the Gaon Panchayat is convened under the provision of the 3rd sub-paragraph of Section 15(1) of Assam Panchayat Act, 1994, it is the Deputy Commissioner or Sub-divisional Officer(C), as the case may be, who alone can preside over the said meeting or in their inability to preside over the meeting, such meeting can be presided only by an Officer deputed by them and the said officer shall be a Gazetted Officer under the Deputy Commissioner or the Sub-Divisional Officer not below the rank of Class-I Gazetted Officer. As per the mandate of Section 15(1), particularly the 3rd Sub-Paragraph and the proviso thereto, it is the mandate of the law that none other than the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, either by themselves or by deputing a Gazetted Officer, alone can preside over the meeting. Any other authority presiding over such meeting, would be a violation of the provision of the 3rd sub-paragraph and the proviso to Section 15(1). Any other authority presiding over such meeting, would be a violation of the provision of the 3rd sub-paragraph and the proviso to Section 15(1). It has already been held in the instant case, which is also an admitted position, that it is the President of the Anchalik Panchayat who had presided over the meeting, which was in fact convened under the provision of 3rd sub-paragraph of Section 15(1). In such view of the matter, and in view of the law laid down in this respect by this Court in Rezna Begum Barbhuiya (Supra), the impugned resolution dated 21.03.2016 is not sustainable. Accordingly, the resolution of no confidence passed against the petitioner by the said impugned resolution dated 21.03.2016 is hereby set aside. However, the Deputy Commissioner may now convene the meeting afresh and preside the meeting himself or depute one Gazetted Officer to preside over the meeting and discuss upon the motion of no confidence moved against the President of the No. 2 Hatishala Bhalukabari Gaon Panchayat. At this stage, Shri Nath, learned counsel for the petitioner submits that the impugned resolution dated 21.03.2016 was approved by the Chief Executive Officer, Kamrup, Zilla Parishad by the order dated 18.04.2016. Consequent upon the resolution of removal dated 21.03.2016 being set aside, the order of approval dated 18.04.2016 is also construed to have been set aside. The Deputy Commissioner may convene the meeting within a period of 10 (ten) days from the date of receipt of a copy of this order. With the above observation, this writ petition is disposed of.