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2017 DIGILAW 491 (GAU)

Sipra Das v. State of AssamQ

2017-04-25

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : 1. Heard Mr. M.H. Laskar, learned counsel appearing for the writ petitioner. Also heard Mr. G. Uddin, learned counsel, representing the private respondent Nos.7 to 14. Mr. S. P. Choudhury, learned Government Advocate, Assam, appears on behalf of respondent Nos.1, 2 and 3. None appears for respondent Nos.4, 5 and 6. 2. In this writ petition, a challenge has been made to the resolution adopted in the meeting dated 28.01.2015 whereby, the motion of no-confidence was passed against the petitioner removing her from the post of President of 4 No. Gandhi Nagar Gaon Panchayat under Ramkrishna Nagar Anchalik Panchayat in the district of Karimganj. 3. For the purpose of proper appreciation of the contentious issues involved in this proceeding, a brief recital of the factual background of the case is deemed necessary. The writ petitioner was earlier elected as the President of the 4 No. Gandhi Nagar Gaon Panchayat. On 29.12.2014, 8 (eight) members of the said Gaon Panchayat had submitted a requisition before the Secretary of the Gaon Panchayat with a request to convene a special meeting for discussing the no confidence motion proposed against the petitioner. According to the Secretary of the G.P, the requisition was brought to the notice of the writ petitioner on 31.12.2014 by putting up a note in the file but the file was returned by the writ petitioner without any remark. As such, the Secretary of the Gaon Panchayat had referred the matter to the President of the concerned Anchalik Panchayat on 12.01.2015. 4. On 19.01.2015 the Executive Officer of the Ramkrishna Nagar Anchalik Panchayat had circulated a notice informing the members of the Gaon Panchayat that a meeting has been convened on 28.01.2015 at 1.00 p.m. in the conference hall of the Ramkrishna Nagar Anchalik Panchayat for discussing the no confidence motion brought against the President of the Gaon Panchayat i.e. the writ petitioner here-in. In the meeting held on 28.01.2015, the no confidence motion was passed on the basis of secret ballot. Consequently, the writ petitioner stood removed from the post of President of the 4 No. Gandhi Nagar Gaon Panchayat. Hence this writ petition. 5. It is the specifically pleaded case of petitioner that the Secretary of the Gaon Panchayat had never brought the requisition dated 29.12.2014 to her notice. Consequently, the writ petitioner stood removed from the post of President of the 4 No. Gandhi Nagar Gaon Panchayat. Hence this writ petition. 5. It is the specifically pleaded case of petitioner that the Secretary of the Gaon Panchayat had never brought the requisition dated 29.12.2014 to her notice. According to the writ petitioner, she had come to know about the requisition submitted by the eight members only on 26.01.2015 upon receipt of the notice dated 19.01.2015 issued by the Secretary of the Anchalik Panchayat. 6. Mr. Laskar, learned counsel for the petitioner, has assailed the impugned resolution, primarily, on two grounds. Firstly, that the requisition for convening the meeting to discuss the no confidence motion not having been brought to the notice of the President seeking her approval in the matter, the meeting convened by the Secretary of the Anchalik Panchayat was bad in law inasmuch the reference made to the Anchalaik Panchyata by the Secretary was in clear contravention of the mandatory provisions contained in section 15 of the Act of 1994. The learned counsel submits that even assuming that the note, as claimed by the Secretary, was put up before the petitioner on 31.12.2014, yet, in view of the judgment and decision of the Division Bench rendered in the case of Ali Ahmed Mazumdar vs. State of Assam and others, reported in 2011 (3) GLT 396, the law is settled that the period of 15 days, as contemplated by Section 15(1) of the Act of 1994, can be counted only from the date of bringing the notice to the personal knowledge of the President formally through office note and not otherwise. In the present case, submits Mr Lashkar, the matter was referred to the Anchalik Panchayat on 12.01.2015. Therefore, the 15 days period, as contemplated by Section 15(1) of the Act of 1994 was not complied with resulting into the entire process being vitiated in the eye of law. In support of his aforesaid argument, Mr. Laskar has also placed reliance on another un-reported decision of the Division Bench of this Court dated 07.09.2012 in the case of Piarun Nessa Tapadar vs. Nizam Uddin Mazumdar & others rendered in Writ Appeal No.33/2012. 7. Mr. In support of his aforesaid argument, Mr. Laskar has also placed reliance on another un-reported decision of the Division Bench of this Court dated 07.09.2012 in the case of Piarun Nessa Tapadar vs. Nizam Uddin Mazumdar & others rendered in Writ Appeal No.33/2012. 7. Mr. Laskar has further contended that since the decision of this Court rendered in the case of Dipali Talukdar vs. State of Assam and others, reported in 2004 (Supp.) GLT 724 it is no more res integra that the Secretary of the Anchalik Panchayat would not have any authority to convene the meeting for removal of the President of the Gaon Panchayat and such a meeting has to be convened by the President of the Anchalik Panchayat himself. Referring to the notice dated 19.01.2015, the learned counsel submits that it is evident on the face of the record that the Secretary of the Anchalik Panchayat and not the President of the Anchalik Panchayat has convened the meeting. According to Mr. Laskar, the resolution dated 28.01.2015 is not sustainable on such count as well and is liable to be set aside by this Court. 8. Resisting the arguments made by the petitioner’s counsel, Mr. G. Uddin, learned counsel for the respondent Nos.7 to 14, submits that the file had been sent to the writ petitioner on 31.12.2014 by putting up a note by the Secretary indicating the requisition submitted by the respondent Nos.7 to 14. But since the petitioner had returned the file without recording any comment, hence, it was a case of deemed refusal of approval and therefore, the Secretary of the G.P. had no option but to refer the matter to the Anchalik Panchayat. 9. By referring to the decision of this Court rendered in the case of Mosira Bibi vs. State of Assam and others, reported in 2006(4) GLT 460, Mr. G. Uddin submits that the provision of Section 15(1) of the Act of 1994 has been held by the Division Bench of this Court as directory in nature and therefore, scrupulous adherence to the time frame set out therein is not absolutely essential. In support of his aforesaid argument, Mr. G. Uddin submits that the provision of Section 15(1) of the Act of 1994 has been held by the Division Bench of this Court as directory in nature and therefore, scrupulous adherence to the time frame set out therein is not absolutely essential. In support of his aforesaid argument, Mr. Uddin has also relied upon the decisions of this Court in the case of Mumtaz Rana Laskar and others vs. State of Assam and others reported in 2006 (1) GLT 46 as well as Ranjit Singh vs. State of Assam and others, reported in 2012 (2) GLT 106. 10. Resisting the second ground urged by the petitioner’s counsel to the effect that the meeting, not having been convened by the President of the Anchalik Panchayat, stood vitiated on such count alone, Mr. Uddin submits that there is no such pleading in the writ petition as a result of which the respondents have been taken by surprise and are not in a position to meet the said allegation by producing sufficient materials before this Court. Mr. Uddin submits that a point raised beyond the pleadings is liable to be rejected. In support of his aforesaid argument, the learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Bachhaj Nahar vs. Nilima Mandal and another, reported in (2008) 17 SCC 491 as well as in the case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd and others, reported in (2006) 11 SCC 548 . 11. Responding to the said contention, Mr. Laskar, learned counsel for the petitioner, has relied upon a decision of the Supreme Court in the case of Tarini Kamal Pandit and others vs. Prafulla Kumar Chatterjee (Dead) by LRs, reported in (1979) 3 SCC 280 , to contend that pure question of law, not involving any factual investigation, can be raised for the first time even before the Supreme Court and therefore, can also be entertained by this Court. 12. Mr. S.P. Choudhury, learned Government Advocate, Assam, did not produce the records nor filed affidavit but has merely adopted the submissions made by the learned counsel appearing on behalf of the private respondents. 13. Section 15(1) to (5) of the Act of 1994 lays down the procedure to deal with the no confidence motion brought against the President and Vice President of Gaon Panchayat. 13. Section 15(1) to (5) of the Act of 1994 lays down the procedure to deal with the no confidence motion brought against the President and Vice President of Gaon Panchayat. Subsection 2 of section 15 provides that the requisition to convene 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 the Vice-President, as the case may be, of the concerned Gaon Panchayat with information to the Deputy Commissioner of the District. The Secretary of the Gaon Panchayat is required to specially convene a meeting with the approval of the President of the Gaon Panchayat. If, however, the meeting is not convened within a period of 15 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 the same. Therefore, it is evident that law requires the requisition to convene the special meeting to be delivered to the President/Vice-President at the first instance. It is only when the meeting is not convened within fifteen days that the matter can be referred to the Anchalik Panchayat. 14. In the case of Ali Ahmed Mazumdar (supra), a Division Bench of this Court has held that the requisition for special meeting to discuss no confidence motion received by the Secretary of the Gaon Panchayat must be brought to the notice of the President of the Gaon Panchayat and the 15 days period, as contemplated under Section 15(1) of the Act, would be counted only from the date of bringing the notice to the personal knowledge of the President formally through official note and not otherwise. In that case, six members of the Gaon Panchayat had submitted a Notice dated 12-07-2008 before the Secretary to take steps for convening a special meeting as per section 15(1) of the Act. The notice was received by the secretary on 21-07-2008 and he placed the same before the President seeking his approval on 25-07-2008. The president granted his approval on the same day. The notice was received by the secretary on 21-07-2008 and he placed the same before the President seeking his approval on 25-07-2008. The president granted his approval on the same day. However, the secretary expressed his inability to convene the meeting due to paucity of time as he had received the approval only on 28-07-2008. Hence, he referred the matter to the concerned Anchalik Panchayat on 31-07-2008 with a request to convene the meeting. The Anchalik Panchayat had convened the meeting on 05-08-2008 wherein the no confidence motion was passed. The question that arose for consideration before the court was whether the receipt of notice for special meeting by the secretary could be construed as due service upon the President from the date of receipt by the G.P. Secretary. It was in such context that the Division Bench had held that the action of the secretary in referring the matter to the Anchalik Panchyat on 31-07-2008, calculating the period of 15 days from 12-07-2008, was illegal. Having held so, the resolution passed in the meeting convened by the Anchalik Panchayat removing the President from office was set aside. 15. In the case in hand, by the own showing of the respondents, the requisition for convening a special meeting to discuss the no confidence motion against the petitioner was brought to her notice on 31.12.2014. There is nothing on record to show that the President of the G.P. had refused approval for the special meeting. The petitioner has denied of having knowledge of the requisition thought the Secretary of the G.P. However, even assuming that the requisition was brought to the notice of the President on 31-12-2014, in view of the law laid down in the case Ali Ahmed Mazumdar (supra), the secretary of the G.P. could not have validly referred the matter to the Anchalik Panchayat before the expiry of 15 days from 31-12-2014. 16. Mr. G. Uddin, learned counsel for the respondents, has placed heavy reliance on the decision of this Court in the case of Mosira Bibi (supra) and Mumtaz Rana Laskar (supra) to contend that the provisions of Section 15(1) of the Act of 1994 was directory in nature and not mandatory. 16. Mr. G. Uddin, learned counsel for the respondents, has placed heavy reliance on the decision of this Court in the case of Mosira Bibi (supra) and Mumtaz Rana Laskar (supra) to contend that the provisions of Section 15(1) of the Act of 1994 was directory in nature and not mandatory. Dealing with a plea of similar nature, a full Bench of this court, in the case of Forhana Begum Laskar vs. State of Assam and others, reported in 2009 (3) GLT 575, after considering a number of decisions rendered by the Supreme Court as well as this Court including Mosira BIbi (supra) and Mumtaz Rana Laskar (supra), had observed that the entire scheme of section 15, in all its essential features, was not held to be directory by the Division Bench in those decisions. From a meticulous examination of the decision in the case of Forhana Begum Laskar (supra) I am of the considered opinion that the contention that the entire scheme of section 15 of the Act of 1994 was directory and not mandatory has not received the approval of the Full Bench. 17. By relying upon the decision rendered in the case of Forhana Begum Laskar (supra), Ali Ahmed Mazumdar (supra) as well as Ranjit Singh (supra) another Division Bench of this Court had made the following observations in the case of Piarun Nessa Tapadar (supra) :- “7. If it is assumed even that the notice of no confidence and requisition for a special meeting was received by the respondent No. 1 on 12.02.2011 as stated by the respondent No. 5, 15 days would expire only on 28.02.2011 on excluding the first in a series of days as per Section 9 of the General Clauses Act, 1897. In the case in hand, the reference was made by the respondent No. 5 prior to expiry of the period of 15 days from the date of receipt of the notice. Mr. Medhi relied on two decisions of this Court on interpretation of Section 15(1) of Assam Panchayat Act, 1994 in Forhana Begum Laskar Vrs. State of Assam and Ors., as reported in 2009 (3) GLT 575 and Ali Ahmed Mazumdar Vrs. State of Assam and Ors., as reported in 2011 (3) GLT 396. Mr. Medhi relied on two decisions of this Court on interpretation of Section 15(1) of Assam Panchayat Act, 1994 in Forhana Begum Laskar Vrs. State of Assam and Ors., as reported in 2009 (3) GLT 575 and Ali Ahmed Mazumdar Vrs. State of Assam and Ors., as reported in 2011 (3) GLT 396. A Larger Bench of this Court in Forhana Begum Laskar(supra) held in uncertain terms as under: “(26) Reading between the lines, it does not transpire to us that the above view rendered by the Division Bench can be construed to denote that the entire scheme of Section 15 in all its essential features has been enunciated to be directory and not mandatory. It rather seems to accentuate that each and every departure from the procedure and the time schedule contained therein, however, miniscule would not impair the exercise so as to decisively annihilate the same. In the contextual facts of the present appeal and the contraventions already noticed hereinabove, which we construe to be sufficient to answer the issues presently raised we do not consider it essential to embark on a re-scrutiny of this proposition in the instant proceeding.” 8. The said interpretation has also been followed in Ali Ahmed Mazumdar(supra). It eclipsed the interpretation as provided in Ranjit Singh(supra). We find no reason to disagree with the finding of the learned Single Judge that the reference as made by the Secretary, the respondent No. 5, prior to expiry of the period of 15 days to the President, Anchalik Panchayat is liable to be held illegal and issued without authority. Hence the notice is bound to be held void and inoperative. As corollary thereof, the meeting as held on 04.03.2011 in pursuance to the said reference and the impugned notice dated 28.12.2011 cannot be held valid.” 18. The decisions by the Division Bench of this court in the case of Ali Ahmed Mazumdar (supra) and Piarun Nessa Tapadar (supra) lay down binding precedents to be followed by this court. Having regard to the facts of the present case, I am of the considered opinion that the ratio of the decisions in the cases of Ali Ahmed Mazumdar (supra) and Piarun Nessa Tapadar (supra) would be squarely applicable to the facts of the present case as well. Having regard to the facts of the present case, I am of the considered opinion that the ratio of the decisions in the cases of Ali Ahmed Mazumdar (supra) and Piarun Nessa Tapadar (supra) would be squarely applicable to the facts of the present case as well. This Court is therefore, of the unhesitant opinion that the reference made by the Secretary of G.P. to the concerned Anchalik Panchayat before the expiry of 15 days from the date on which the notice was allegedly brought to the knowledge of the G.P. President was bad in law and is liable to be declared so. 19. As regards the other issue raised by Mr. Laskar questioning the validity of the meeting convened on 28.01.2015 by the Secretary of the Anchalik Panchayat, what needs to be mentioned herein is that the learned Government Advocate has failed to produce the records despite repeated request made by this court. In the absence of the records, this court is not in a position to ascertain as to the precise role played by the President of the Anchalik Panchayat while convening the meeting to discuss the no confidence motion brought against the petitioner. Be that as it may, in view of the determination made here-in-above, this court need not be detained any further on the said point. 20. For the reasons discussed herein above, this Court is of the considered opinion that the meeting dated 28.01.2015 had been convened in utter violation of the provision of Section 15(1) of the Act of 1994. Therefore, the resolution adopted therein, accepting the no confidence motion against the writ petitioner, is clearly unsustainable in the eye of law and is hereby set aside. Consequently, the writ petitioner would stand reinstated to the office of the President of 4 No. Gandhi Nagar Gaon Panchayat with immediate effect. The writ petition stands allowed. There will be no order as to cost.