Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1253 (GAU)

EKTIAR HUSSAIN v. STATE OF ASSAM

2017-09-07

SUMAN SHYAM

body2017
JUDGMENT : Suman Shyam, J. Heard Mr. I. Hussain, learned counsel for the writ petitioners. Also heard Mr. D. Nath, learned Addl. Sr. Govt. Advocate, Assam representing the official respondents. None appears for the private respondents. 2. By this order I propose to dispose of two writ petitions raising common question of law and facts. 3. The facts giving rise to filing of these writ petitions may be briefly noticed as follows. The writ petitioner in WP(C) No.4564/2015 was elected as the President whereas the petitioner in WP(C) No.5089/2016 was elected as the Vice President of the 3 No. Thakuranbari Gaon Panchayat in the Panchayat elections held in the State during the year 2013. On 30.03.2015, seven members of the Gaon Panchayat had submitted a requisition addressed to the President of the Gaon Panchayat with a request to convene a special meeting to discuss "no confidence motion" brought against him. On the same date, one of the requisitionists, namely, Narayan Das had submitted another application before the Secretary of the Gaon Panchayat withdrawing from the requisition dated 30.03.2015. Thereafter, on 13.04.2015, 8 members had submitted a requisition before the Secretary of the Gaon Panchayat with a request to convene a special meeting so as to discuss the no confidence motion brought against the President and the Vice President of 3 No. Thakuranbari Gaon Panchayat. Since the requisition dated 13.04.2015 was for convening a meeting for removal of both the President and Vice President of the Gaon Panchayat, hence, as per Section 15(5) of the Assam Panchayat Act, 1994, the said requisition was required to be forwarded to the President of the concerned Anchalik Panchayat. Accordingly, the Secretary of the Gaon Panchayat i.e. the respondent No.7 had referred the requisition to the Anchalik Panchayat on 26.04.2015, but the Anchalik Panchayat did not take any action in the matter. As such, the respondent No.7 had referred the matter to the next authority, i.e., the Sub-Divisional Officer (Civil), South Salmara, Mankachar Sub-Division, Hatsingimari on 27.05.2015 informing him about the no confidence motion proposed against the President and Vice President of the Gaon Panchayat. 4. On receipt of the letter dated 27.05.2015 the respondent No.4 circulated a notice dated 02.06.2015 informing all members of the Gaon Panchayat regarding the meeting convened on 11.06.2015 to discuss the no confidence motion brought against the President of the Gaon Panchayat. 4. On receipt of the letter dated 27.05.2015 the respondent No.4 circulated a notice dated 02.06.2015 informing all members of the Gaon Panchayat regarding the meeting convened on 11.06.2015 to discuss the no confidence motion brought against the President of the Gaon Panchayat. Similarly, another notice was circulated by the respondent No.4 convening a meeting of the Gaon Panchayat on 12.06.2015 for discussing no confidence motion brought against the Vice President. Accordingly, a special meeting of the Gaon Panchayat was held on 11.06.2015 wherein a resolution was adopted by two-third majority thereby carrying the no confidence motion brought against the President. Similarly, another resolution was adopted in the meeting of the Gaon Panchayat dated 12.06.2015 carrying the no confidence motion against the Vice President. Aggrieved by the resolution dated 11.06.2015 the writ petitioner, who was removed from the post of President of the Gaon Panchayat has approached this Court by filing WP(C) No.4564/2015 assailing the validity of the said resolution. Similarly, the resolution adopted in the meeting held on 12.06.2015 removing the writ petitioner from the post of Vice President has been challenged by her in WP(C) No.5089/2016. 5. Mr. Hussain, learned counsel for the petitioners, submits that Section 15(5) of the Assam Panchayat Act, 1994 (herein after, the Act of 1994) lays down the timeframe within which the Anchalik Panchayat is to act on receipt of intimation from the Secretary of the Gaon Panchayat regarding the requisition for convening a special meeting to discuss no confidence motion brought against the President and Vice President of the Gaon Panchayat. According to sub-section (5) of Section 15, the Secretary is required to bring the same to the notice of the Anchalik Panchayat within seven days from the date of receipt of the same so as to permit the Anchalik Panchayat President to arrange to convene the meeting within 15 days from the date of receipt of intimation. In the present case, submits Mr. Hussain, since the requisition was received on 13.04.2015, hence, the Secretary of the Gaon Panchayat ought to have informed the President of the Anchalik Panchayat about the same within seven days i.e. 20.04.2015 and the meeting ought to have been convened by the Anchalik Panchayat President within 15 days thereafter i.e. within 05.05.2015. In the present case, submits Mr. Hussain, since the requisition was received on 13.04.2015, hence, the Secretary of the Gaon Panchayat ought to have informed the President of the Anchalik Panchayat about the same within seven days i.e. 20.04.2015 and the meeting ought to have been convened by the Anchalik Panchayat President within 15 days thereafter i.e. within 05.05.2015. But as would be evident from the record, the Secretary had forwarded the requisition to the Anchalik Panchayat only on 26.04.2015 i.e. beyond the prescribed period of seven days. Not only that, submits Mr. Hussain, the Anchalik Panchayat had sat over the matter for more than 15 days and it was only on 27.05.2017 that the respondent No.7 had moved the respondent No.4 with a request to convene the meeting. The learned counsel, therefore, submits that since the time frame laid down in Section 15(5) of the Act of 1994 has not been scrupulously adhered to in the present case, hence, the resolutions adopted in the meetings dated 11.06.2015 and 12.06.2015 are unsustainable in law and are liable to be set aside on such ground alone. 6. In support of his aforesaid argument, Mr. Hussain has relied upon decisions of this Court in the cases of (i) Nosir Ahmed Mazumder v. State of Assam and others, reported in 2010(5) GLT 103; (ii) Karun Kanti Malakar and others v. Nosir Ahmed Mazumdar and others, reported in 2010 (3) GLT 415; and (iii) Srimati Niva Saikia v. The State of Assam and others rendered in WP(C) No. 1272 of 2017 (unreported), to contend that the prescription of Section 15(5) of the Act of 1994 is mandatory in nature and any action initiated by the authorities in violation of such mandatory provision would render the proceedings as invalid in the eye of law. 7. Although the validity of the proceedings drawn up in the meetings dated 11.06.2015 and 12.06.2015 of the Gaon Panchayat giving rise to the impugned resolutions have been assailed on the ground of other procedural irregularities, yet, during the time of hearing, Mr. Hussain has fairly submitted that he is not pressing any other ground pleaded in the writ petition save and except the violation of the time frame prescribed under Section 15(5) of the Act of 1994. 8. Mr. D. Nath, learned Additional Senior Govt. Hussain has fairly submitted that he is not pressing any other ground pleaded in the writ petition save and except the violation of the time frame prescribed under Section 15(5) of the Act of 1994. 8. Mr. D. Nath, learned Additional Senior Govt. Advocate, Assam, submits that the meetings have been convened by the respondent No.4 within the time frame prescribed under Section 15(5) of the Act of 1994 and hence, the arguments advanced by the petitioners' counsel are wholly untenable in law and liable to be rejected by this Court. 9. I have considered the submissions made by learned counsel for both the parties and have also gone through the materials available on record. 10. As noted above, the only ground taken by the petitioners for assailing the resolutions dated 11.06.2015 and 12.06.2015 is that the Secretary of the Gaon Panchayat having failed to forward the requisition dated 13.04.2015 to the President of the Anchalik Panchayat within seven days and the Anchalik Panchayat President having failed to act within 15 days from the date of receipt of the intimation, the requisition dated 13.04.2015 had lost its force and hence, the meetings convened on 11.06.2015 and 12.06.2015 based on such a requisition were incompetent in the eye of law. 11. In the case of Mumtaz Rana Laskar and others v. State of Assam and others reported in 2006 (1) GLT 46 the Division Bench of this Court, while interpreting the provision of Section 15(1) to (5) of the Act of 1994, has held that the said provisions are directory in nature and the failure of the Secretary to inform the President of the Anchalik Panchayat and Deputy Commissioner or SDO (Civil) within a prescribed period will have no bearing on the question of validity of the resolution adopted on the no confidence motion. The law laid down in Mumtaz Rana Laskar (supra) is directly on the point of controversy involved in this writ petition. The law laid down in Mumtaz Rana Laskar (supra) is directly on the point of controversy involved in this writ petition. The issue, thereafter, came to be considered by the Full Bench of this Court in the case of Forhana Begum Laskar v. State of Assam and others reported in 2009 (3) GLT 575 wherein although it was observed that the entire scheme of Section 15 of the Act of 1994 cannot be said to be directory in nature, the submission that the entire time frame of Section 15 of the Act of 1994 has to be scrupulously adhered to apparently did not find favour with the Full Bench. 12. In the case of Nosir Ahmed Mazumder (supra), the learned Single Judge of this Court after discussing the law laid down by the Supreme Court in a number of decisions as well as the decisions of this Court in the case of Mumtaz Rana Laskar (supra) and Forhana Begum Laskar (supra) has held that compliance of the time frame fixed under Section 15 of the Act of 1994 for holding a meeting to the extent of arithmetic accuracy cannot be canvassed as a ground to nullify the action taken but the same would certainly be required to be considered along with other existing circumstances. 13. As noted herein above, in the present case, it is not in dispute that the respondent No.4 has convened the meeting within 15 days from the date of receipt of intimation from the respondent No.7. As such, it cannot be said that there was any delay on the part of the respondent No.4 in convening the meetings of the Gaon Panchayat for discussing the no confidence motion brought against the President and the Vice President. The petitioners in both the cases have also admittedly taken part in the proceedings and it is not their case that no proper notice of the meeting was served upon either of them. If that be so, viewed from any angle, the meetings convened on 11.06.2015 and 12.06.2015 cannot be said to be in contravention of the requirement of Section 15(5) of the Act of 1994 merely because the matter was brought to the notice of the respondent No.4 on a date which exceeds the time frame laid down in Section 15(5) of the Act of 1994. Moreover, the petitioners have failed to plead or establish any prejudice, whatsoever, on account of the slight delay that had taken place on the part of the respondent No.7 in intimating the matter to the respondent No.4 on the failure of the Anchalik Panchayat to convene the meeting. 14. Although Mr. Hussain has placed heavy reliance on the decision of this Court in the case of Srimati Niva Saikia (supra), yet, from a reading of the said judgment I find that it was a case where the Zilla Parishad had failed to convene the meeting for discussing no confidence motion against the President of the Anchalik Panchat within 15 days from the date of intimation. It was in such factual context that the learned Single Judge had held that the meeting ought to have been held within 15 days from the date of receipt of the intimation. In the facts of the present case, the ratio of the aforesaid decision would not have any bearing since the meetings in the present cases had admittedly been convened within 15 days from the date of receipt of intimation by the respondent No. 4. The learned counsel for the petitioners has failed to draw the attention of this Court to any authority which lays down the law that the entire scheme of Section 15(1) to (5) of the Act of 1994 is mandatory in nature and any delay on the part of the Secretary to intimate the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, as per sub-section (5) of section 15 would render the proceedings drawn up in the meeting as invalid. 15. For the reasons stated herein above, I am of the view that there is no merit in the writ petitions and the same are accordingly dismissed. 16. There would be no order as to cost.