Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1003 (GAU)

Abdul Kader Bhuyan v. State of Assam

2017-07-28

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Mr. A.M. Khan, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Addl. Senior Government advocate for the State respondents and Mr. A. Roshid, learned counsel for the respondent Nos. 6 and 7. 2. The petitioner was elected as the president of Piradhara Gaon Panchayat under Tapattari Anchalik Panchayat in the district of Bongaigaon, in the year 2013 and as such, as the statutory period of a Gaon Panchayat being a period of 5 years, the tenure of the petitioner would have continued up to the year, 2018. Without being duly notified or being informed, the petitioner came to learn from some other source that by a resolution in a special meeting held on 30.12.2016, the petitioner had been removed as the president of the Gaon Panchayat. 3. Upon enquiry, the petitioner subsequently came to learn that on 28.11.2016, 9 members of Gaon Panchayat of Piradhara Gaon Panchayat had given requisition for a special meeting for discussing no confidence motion against the petitioner. 4. It is the case of the petitioner that although such requisition had been given and addressed to the secretary to the concerned Gaon Panchayat, but as required under section 15(2) of the Assam Panchayat Act, 1994 the said requisition was not delivered to the petitioner. 5. Mr. A. Roshid, learned counsel appearing for respondent Nos. 6 and 7 on the other hand states that the petitioner having not convened the required meeting, the members had approached SDO (Civil) with a grievance and on instruction of the SDO (Civil), the Anchalik Panchayat had convened meeting which was held on 30.12.2016. 6. In the aforesaid circumstance, the question for determination is as to whether the statutory procedure prescribed under section 15 of the Assam Panchayat Act, 1994 had been duly followed in causing the removal of the petitioner as the president of the concerned Gaon Panchayat. 7. Section 15(1) of the Assam Panchayat Act, 1994 provides that whenever a requisition for a meeting of no confidence is given by any member, the secretary shall convene the meeting within a period of 15 days after obtaining approval of the concerned president. 8. Again section 15(2) provides that a copy of such notice of resolution shall be delivered to the president. 8. Again section 15(2) provides that a copy of such notice of resolution shall be delivered to the president. Reading section 15(1) and 15(2) together, this court is of the view that once notice of requisition is given by the members, the same shall be mandatorily delivered to the president and upon the said requisition of notice being given, the concerned president would either approve or disapprove the meeting that is being sought for. Section 15(1) and 15(2) is as follows: “(1) Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two-thirds of the total number of members of the Gaon Panchayat. Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shall be presided over by the President if the motion is against the Vice-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 fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat shall within three days, refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting. In case the President of the Anchalik Panchayat does not take action as above, within the specified seven days time, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil) as the case may be within three days after the expiry of the stipulated seven days time and the concerned Deputy Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened: Provided 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 Gazetted Officer to preside over such meeting: Provided further that when a non-confidence motion is lost, no such motion shall be allowed in the next six months. (2) The requisition for such a special meeting under sub-section (1) 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] (Substituted by Assam Act No. X of 1997, for the words “Anchalik Panchayat” S. 6 (w.e.f 30 the April, 1997) [Published in the Assam Gazette Extraordinary No. 117, dated April 30, 1997 at page 873]) with information to the Deputy Commissioner of the District.” 9. In the facts and circumstance, the records produced by Mr. Nath, learned State counsel reveals that notice of requisition for the special meeting had not been delivered to the president of the Gaon Panchayat, i.e., the petitioner. 10. In such view of the matter, this Court is of the view that all further subsequent action taken by the SDO (Civil) requiring the Anchalik Panchayat to convene the meeting and also the subsequent meeting as has been held on 30.12.2016 is vitiated inasmuch as the mandatory requirement of section 15(2) for the delivery of notice of requisition to the president had not been followed. 11. In such view of the matter, the resolution of removal of the petitioner as the president of the Gaon panchayat is hereby set aside. However, it is submitted by Mr. A. Roshid that the aforesaid discrepancy has occurred as because during the relevant period the earlier secretary of the Gaon Panchayat was transferred and another person had been appointed as the secretary and because of such intervening situation, notice of requisition was not delivered to the president. In such view of the matter, although the resolution of removing the president is set aside but the Gaon Panchayat members are given liberty to issue fresh requisition notice as per law. 12. It is provided in the event any such notice is given, the secretary shall strictly follow the procedure prescribed under section 15(1)/15(2) of the Assam Panchayat Act, 1994. Send down the record.