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2017 DIGILAW 66 (GAU)

Ayesha Begum Mazerbhuiya v. State of Assam

2017-01-11

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Sri M.H. Laskar, learned counsel for the petitioner and Sri B.D. Das, learned senior counsel, appearing for respondent Nos. 7 to 14 and also Ms. M Bhattacharjee, learned counsel for respondent Nos. 1, 2, 3, 4 and 6. 2. The writ petitioner being the elected president of Boalipar Gaon Panchayat, under Hailakandi Anchalik Panchayat, in the District of Hailakandi, is aggrieved by the impugned resolution No. 7 dated 25.7.2016 of the Boalipar Gaon Panchayat, by which the petitioner President of the Gaon Panchayat has been removed from the Office. 3. It is the case of the petitioner that on 30.6.2016, 8 members of the Gaon Panchayat had submitted the requisition notice to the Secretary of the Gaon Panchayat, requesting him to convene a meeting for discussing no confidence motion against the petitioner. 4. It is stated by the petitioner that when the requisition notice was brought to her knowledge by the respondent No. 6, by way of official noting, she was taken by surprise that the members had brought false allegation against her and accordingly she instructed the respondent No. 6 to wait for the time being, so that she can convene a meeting. But in the meantime, she fell ill and, therefore, could not convene the meeting. It is further stated that respondent No. 6, thereafter by letter dated 16.7.2017, referred the matter to the President of the Hailakandi Anchalik Panchayat for taking necessary action. 5. It is stated that the Secretary-cum-Executive Officer of the Hailakandi, Anchalik Panchayat, respondent No. 4 by Notice dated 18.7.2016, had called for a meeting to be held on 25.7.2016, for discussing the no confidence motion. It is the case of the writ petitioner that holding of the meeting by the Secretary-cum-Executive Officer is in violation of the provisions of section 15(1) of the Assam Panchayat Act, 1994 wherein it has been provided that in case the meeting is not convened within 15 days, the Secretary of the Gaon Panchayat was required to refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the matter within 7 days from the date of receipt of information from the Secretary of the Gaon Panchayat and preside over such meeting. 6. Being aggrieved, the petitioner has preferred this writ petition being WP(C) No. 5022/2014. 6. Being aggrieved, the petitioner has preferred this writ petition being WP(C) No. 5022/2014. When the matter came up for motion for consideration by this court, notices were issued by order dated 26.8.2016. By the said order, it has also been provided that by balancing the competing equities, the court was of the considered opinion that no interim order is called for and the impugned resolution adopted against the petitioner is made subject to the outcome of the writ petition. 7. Being aggrieved, the writ petitioner has preferred a writ appeal before the Division Bench of this court being WA No. 341/2016. Vide order dated 28.11.2016, in the said writ appeal, the Division Bench of this court has taken note of the submission of the learned counsel for the petitioner that a special meeting was convened on 25.7.2016, which was on the basis of a notice that was issued by the Secretary of the Anchalik Panchayat and not by the President. The Division Bench upon considering the materials available on record, which indicates that the President of the Anchalik Panchayat had made a noting ‘arrange the meeting at the date 25.7.2016 Monday at 1.30 p.m. and also by taking into consideration, the pronouncement of this court in Dipali Talukdar case and Sapna Sen, had arrived at the conclusion that the mandate of section 15(1) is that the President of the Anchalik Panchayat must herself/himself convene the meeting under the substituted section 15(1) and a mere direction to arrange the special meeting by the President, will not satisfy the requirement of the substituted provision of section 15 of the Panchayat Act. As per the earlier provision of section 15(1) of the Assam Panchayat Act, 1994, the requirement was that ‘the President of the concerned Anchalik Panchayat shall arrange to convene the meeting within 15 days from the date of receipt of the intimation…’. But after the amendment by the Assam Act of X of 1997 (w.e.f. 30.4.1997), the substituted provision is that ‘President of the concerned Anchalik Panchayat, shall convene the meeting within 7 days from the date of receipt of the information…’. 8. But after the amendment by the Assam Act of X of 1997 (w.e.f. 30.4.1997), the substituted provision is that ‘President of the concerned Anchalik Panchayat, shall convene the meeting within 7 days from the date of receipt of the information…’. 8. Accordingly by interpreting the amendment made to the Assam Panchayat Act, 1994, the Division Bench of this court has held that the President of the Anchalik Panchayat must herself/himself convene the meeting, and a mere direction to arrange the special meeting by the President will not satisfy the requirement of the substituted provision of section 15(1) of the Panchayat Act. 9. Accordingly, it was held by the Division Bench that, as the meeting was not convened by the President herself, but by the Secretary on the instruction of the President, therefore, an interim order is called for in the present case. Accordingly, the impugned resolution dated 25.7.2016, removing the present petitioner from being the President of the Boalipar Gaon Panchayat has been stayed. 10. In view of the aforesaid finding of the Division Bench in the writ appeal, the issue to be decided in this writ petition as to whether the impugned resolution of removing the petitioner vide resolution dated 25.7.2016 is contrary to the provisions of section 15(1) of the Assam Panchayat Act, 1994 had already been settled. In such view of the matter, this court also comes to the conclusion, by following the decision of the Division Bench dated 28.11.2016 in WA No. 341/2016, that the impugned resolution of removal is vitiated and has been taken in violation of provision of section 15(1) of the Assam Panchayat Act, 1994. 11. In such view of the matter, the resolution dated 25.7.2016 removing the petitioner from the post of President of Boalipar Gaon Panchayat is hereby set aside. The impugned resolution dated 25.7.2016 having been set aside, it is further provided that the respondent Nos. 7 to 14 if desires, may issue a fresh requisition for a no confidence motion against the writ petitioner. Upon the said fresh requisition being issued, the Secretary of the Gaon Panchayat would undertake to obtain approval of the President of the Gaon panchayat and convene the meeting within the period prescribed under section 15(1) of the Panchayat Act and the Secretary of the Gaon Panchayat would act strictly in accordance of the provision of section 15 of the Assam Panchayat Act. 12. 12. The President would also do the needful and cooperate as required to be done under section 15. 13. In terms of the above, this writ petition is disposed of. 14. In view of the above, the connected interlocutory application also stands disposed of.