Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 769 (GAU)

Bandana Deka v. State of Assam

2017-06-09

SUMAN SHYAM

body2017
JUDGMENT & ORDER : Suman Shyam, J. Heard Mr. M.A. Sheikh, learned counsel for the writ petitioner. Also heard Mr. D. Nath, learned Addl. Sr. Govt. Advocate, Assam appearing for the official respondents as well as Mr. M. Dutta, learned counsel representing respondent Nos. 7 to 15. None appeared for the remaining respondents. 2. The resolution dated 03-12-2016 adopted in a meeting specially convened by the Rangia Anchalik Panchayat, passing the motion of "No Confidence" brought against the petitioner thereby ousting her from the office of the President of the Madhya Panduri Gaon Panchayat, is the subject matter of challenge in the present writ petition. The facts giving rise to filing of the present petition may be noticed as hereunder:- 3. In the Panchayat Elections held in the State in the year 2013, the petitioner was elected as the President of the Madhya Panduri Gaon Panchayat for a term of five years and was sworn in as the President of the Gaon Panchayat on 26-03-2013. On 12-07-2016, 09 (nine) members of the said Gaon Panchayat had submitted a requisition before the Secretary of the Gaon Panchayat with a request for convening a special meeting for discussing the "No-Confidence" motion brought against the President of the Gaon Panchayat. According to the writ petitioner, the Secretary of the Gaon Panchayat, i.e. respondent No. 6 did not bring the requisition dated 12-07-2016 to her notice but had directly referred the matter to the President of the concerned Anchalik Panchayat. On 30-07-2016 the Block Development Officer (BDO) of the Rangia Development Block had circulated a notice informing the members that a meeting has been convened on 03-08-2016 for discussion of the "No Confidence" Motion brought against the President of the Madhya Panduri Gaon Panchayat, i.e. the petitioner. Accordingly, a meeting was held on 03-08-2016 but the motion of "No-Confidence" was not passed against the writ petitioner. Rather, as per the resolution adopted in the meeting held on 03-08-2016, a decision was taken that all members would work together like a family for development of the villagers. In the result, the petitioner continued as the President of the Gaon Panchayat. However, on 01-10-2016, the aforementioned nine requisitionist had submitted an application before the Deputy Commissioner, Kamrup (Rural) at Amingaon with a request to convene a special meeting for discussing the "No-Confidence" motion proposed against the writ petitioner on the basis of the requisition dated 12-07-2016. In the result, the petitioner continued as the President of the Gaon Panchayat. However, on 01-10-2016, the aforementioned nine requisitionist had submitted an application before the Deputy Commissioner, Kamrup (Rural) at Amingaon with a request to convene a special meeting for discussing the "No-Confidence" motion proposed against the writ petitioner on the basis of the requisition dated 12-07-2016. On receipt of the application dated 01-10-2016, the Deputy Commissioner, Kamrup (Rural), i.e. respondent No. 2 had instructed the Additional Deputy Commissioner, Kamrup (Rural) to do the needful and accordingly, the Addl. Deputy Commissioner, Kamrup (Rural) had issued a communication dated 26-10-2016 addressed to the Sub-Divisional Officer (Civil), Rangia forwarding the application made by the requisitionist for taking necessary action as per the provision of the Assam Panchayat Act, 1994 (in short Act of 1994). Acting on the basis of the instruction received from the Sub-Divisional Officer (Civil), Rangia, the Secretary of the Gaon Panchayat had forwarded the requisition dated 12-07-2016 seeking the approval of the petitioner. When the petitioner declined such approval, the matter was referred to the concerned Anchalik Panchayat and a meeting was thereafter, convened on 03-12-2016 at the instance of the President of the Anchalik Panchayat wherein the motion of "No-Confidence" was passed against the petitioner ousting her from the office. 4. The respondent Nos. 7 to 15 have filed a joint counter affidavit, inter alia, stating that the motion of No Confidence was never discussed in the meeting held on 03-08-2016 on the ground that a court proceeding was pending. But later on it transpired that there was no order from the court but it was a notice issued by an advocate. Since, the "No-Confidence" motion was not discussed in the meeting held on 03-08-2016, hence, an application was made before the respondent No. 2 on 01-10-2016 with a request for convening the meeting to discuss the "No-Confidence" motion and the said process had culminated into the resolution adopted in the meeting dated 03-12-2016. 5. By referring to the pleadings on record, Mr. Sheikh, learned counsel for the petitioner, has strenuously argued that the meeting dated 03-08-2016 was held without proper service of notice upon the petitioner as per the requirement of Section 15(1) of the Act of 1994. The aforesaid fact, according to Mr. Sheikh, has been clearly recorded in the resolution of the meeting held on 03-08-2016. Mr. Sheikh, learned counsel for the petitioner, has strenuously argued that the meeting dated 03-08-2016 was held without proper service of notice upon the petitioner as per the requirement of Section 15(1) of the Act of 1994. The aforesaid fact, according to Mr. Sheikh, has been clearly recorded in the resolution of the meeting held on 03-08-2016. Mr. Sheikh, further submits that from a reading of the said resolution, it would be apparent that a decision was taken to abandon the motion of "No-Confidence" for variety of reasons recorded in the minutes and the members had resolved to work with each other in a amicable environment. Under such circumstances, according to Mr. Sheikh, the requisition dated 12-07-2016 had spent its force and therefore, the respondent Nos. 7 to 15 could not have made a fresh demand for holding the special meeting on the basis of the earlier requisition dated 12-07-2016. Mr. Sheikh further submits that a meeting convened to discuss the "No-Confidence Motion" without serving the requisition upon the President of the Gaon Panchayat would be illegal. In support of his aforementioned argument, Mr. Sheikh has relied upon a decision of this Court in the case of Alfatun Nessa Laskar v. State of Assam & Ors. reported in 2015 (4) GLT 962. 6. Resisting the above arguments, Mr. M. Dutta, learned counsel appearing for the private respondents submits that in the meeting held on 03-08-2016 the motion of "No-Confidence" was not taken up properly for discussion on a erroneous belief that there was an order from the court, which later turned out to be advocate's notice. Learned counsel submits that since the proceeding of the meeting held on 03-08-2016 had been unduly interjected by a mistaken belief of pendency of court proceeding, hence, the requisition dated 12-06-2016 cannot be said to have spent its force on the basis of resolution adopted on 03-08-2016 and the same did survive for further action as per law. 7. Mr. Learned counsel submits that since the proceeding of the meeting held on 03-08-2016 had been unduly interjected by a mistaken belief of pendency of court proceeding, hence, the requisition dated 12-06-2016 cannot be said to have spent its force on the basis of resolution adopted on 03-08-2016 and the same did survive for further action as per law. 7. Mr. Dutta further submits that although the respondents have made an application before the Deputy Commissioner on 01-10-2016 seeking his intervention in the matter, yet, it is not in dispute that the meeting dated 03-12-2016 was held after following the due process of law laid down under Section 15(1) of the Act of 1994, inasmuch as the requisition notice was placed before the President of the Gaon Panchayat, i.e. the petitioner on 07-11-2016 who had declined approval for convention of the meeting on 09-11-2016. Since the petitioner had refused approval, hence, the respondent No. 6 did not have any other option but to refer the matter to the concerned Anchalik Panchayat for convening the meeting. According to Mr. Dutta, since the resolution dated 03-12-2016 has been adopted in a validly convened special meeting whereby more than ?rd of the members present had cast their vote in favour of the motion of "No-Confidence", the writ petitioner would not have any right to continue as the President of the Gaon Panchayat for the remaining part of the tenure. Even if there was any minor deviation from the prescribed method, submits Mr. Dutta, in view of the law laid down by this court in a catena of decisions holding the provisions of Section 15(1) of the Act of 1994 as directory, no interference of this Court would be called for in the facts and circumstances of this case. 8. In support of his aforementioned argument, Mr. Dutta has relied upon the following decisions:- (a) Forhana Begum Laskar v. State of Assam & Ors. [2009 (3) GLT 575] (b) Rukia Khatun (Musstt.) v. State of Assam & Ors. [2014 (2) GLT 605] (c) Ranjit Singh v. State of Assam & Ors. [2012 (2) GLT 106] (d) Swapna Sen v. State of Assam & Ors. [2006 (2) GLT 14] (e) Mosira Bibi v. State of Assam & Ors. [2006 (4) GLT 460] (f) Habibur Rahman v. State of Assam & Ors. [2006 (Supp) GLT 218] (g) Mumtaz Rana Laskar & Ors. [2012 (2) GLT 106] (d) Swapna Sen v. State of Assam & Ors. [2006 (2) GLT 14] (e) Mosira Bibi v. State of Assam & Ors. [2006 (4) GLT 460] (f) Habibur Rahman v. State of Assam & Ors. [2006 (Supp) GLT 218] (g) Mumtaz Rana Laskar & Ors. v. State of Assam & Ors. [2006 (1) GLT 46] (h) Jugal Borah & Ors. v. State of Assam & Ors. [2012 (3) GLT 875] 9. The learned Govt. Advocate has produced the record and has supported the resolution adopted in the meeting held on 03-12-2016. 10. I have considered the rival submissions made at the bar and have also perused the materials available on record. Having regard to the pleadings and counter pleadings available on record, it appears that the outcome of the writ petition would depend on the answer to the key question as to whether the requisition dated 12-07-2016 stood discharged with the convention of the meeting held on 03-08-2016 and the resolution adopted therein. In order to answer the said question, it would be necessary to consider the legislative scheme of Section 15(1) of the Act of 1994. 11. The Section 15 is quoted herein below: "Section 15 - No confidence motion against the President and Vice President "(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 third 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 subsection (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] with information to the Deputy Commissioner of the District. (3) Without prejudice to the provision under this Act a President or a Vice-President of a Gaon Panchayat may be removed from office by the concerned Anchalik Panchayat with the approval of the Zilla Parishad for misconduct of his/ her duties or neglects or incapacity to perform his/her duties or for being persistently remiss in the discharge of or guilty of any disgraceful conduct and President or Vice-President so removed shall not be eligible for re-election as President or Vice-President during the remaining term of office either as President or Vice-President of such Gaon Panchayat: Provided that no such President or Vice-President of a Gaon Panchayat shall be removed from office unless he is given reasonable opportunity to furnish explanation to the Anchalik Panchayat. (4) A Vice-President so removed from his office under subsection (3) may also be removed from membership of the Gaon Panchayat by the Government after giving ["the"] member a reasonable opportunity of furnish his explanation. (4) A Vice-President so removed from his office under subsection (3) may also be removed from membership of the Gaon Panchayat by the Government after giving ["the"] member a reasonable opportunity of furnish his explanation. (5) If, under sub-section (1), the members of the Gaon Panchayat express want of confidence both in the President and Vice -President of the Gaon Panchayat at the same time and issue notices, the Secretary of the Gaon Panchayat, wihin seven days from the date of receipt of such notices, shall report the matter to the President of the concerned Anchalik Panchayat who shall arrange to convene the meeting within fifteen days from the date of receipt of the intimation, separately, to consider the motion against the President first and to consider the motion against the Vice-President next day and shall preside over both the meetings. The President of the concerned Anchalik Panchayat presiding the meeting shall have no vote. In case the President of the concerned Anchalik Panchayat does not take action as above, the Secretary of the Goan Panchayat, within three days after the expiry of the stipulated fifteen days time, shall refer the matter to the concerned Deputy Commissioner or the Sub-Divisional Officers (C), as the case may be. On receipt of the information, the Deputy Commissioner or the Sub-Divisional Officer as the case may be, shall convene both the meetings in the manner as above, within fifteen days from the date of receipt of the information with intimation to the concerned Anchalik Panchayat and Zilla Parishad and preside over such meetings: Provided that the concerned Deputy Commissioner or the Sub-Divisional Officer as the case may be, in case of his inability to preside over the meeting, may depute a Gazetted Officer not below the rank of Class-I Gazetted Officer to preside over such meeting: Provided further that if it is not possible to hold the meeting for a situation due to non-attendance of the requisite number of members in such meeting or meetings as the case may be, the no-confidence motion shall automatically stands cancelled and motion shall be deemed to have lost, in the event of which no such motion shall be allowed within the next six months."]" 12. From a careful reading of the aforesaid provisions what can be seen is that the President or the Vice President of the Gaon Panchayat shall be deemed to have vacated the office forthwith when a resolution expressing want of confidence is passed by majority of ?rd of the total number of members of the Gaon Panchayat. As per the second proviso of Section 15(1) when a No Confidence Motion is lost, no such motion is to be allowed in the next 06 (six) months. 13. It is the pleaded case of the writ petitioner that the requisition dated 12-07-2016 was not brought to her notice before convening the meeting on 03-08-2016. In their counter-affidavit, the respondents have not specifically denied the said averment. There is also nothing on record to indicate that the Secretary of the Gaon Panchayat had actually brought the requisition to the notice of the petitioner. 14. It appear from the record that having learnt about the meeting dated 03-08-2016, the petitioner had approached this Court by filing W.P.(C) No. 4598/2016, which was later withdrawn on 08-08-2016. Material available on record suggests that no effective order was passed by this Court in the said writ petition filed by the petitioner. 15. From a careful reading of the resolution dated 03-08-2016 it is apparent that the motion of "No-Confidence" was not taken up for discussion nor was secret ballot process resorted to in the said meeting. Rather, it was observed that the meeting had been convened without proper service of notice upon the President, i.e. the petitioner. The relevant portion of the resolution of the meeting dated 03-08-2016 is quoted herein below for ready reference: "The member of Kamrup Zilla Parishad stated that to-days no confidence meeting was not held as per law under Panchayat Act and requested the President to do all the work on the basis discussion. Thereafter Vice-President of Madhya Panduri Gaon Panchayat stated that the President of Madhya Panduri Gaon Panchayat misappropriate an amount of Rs. 1,09,000/- of Gopal Mandir Alakdia School and state that filled up 10 tralor of earth out of an amount of Rs. 90,000/- under TFC Fund and misappropriate the remaining amount and President and Secretary without informing the members used Rs. 9000/-. At last President stated that regarding no confidence motion meeting no notice was sent to the President from the Secretary. 90,000/- under TFC Fund and misappropriate the remaining amount and President and Secretary without informing the members used Rs. 9000/-. At last President stated that regarding no confidence motion meeting no notice was sent to the President from the Secretary. Secondly, as per Gauhati High Courts order passed in the case filed by the President of Panchayat Anchalik Panchayat has no power to take any action on gaon panchayat. Thirdly taking consideration of communication of President of Gaon Panchayat/ Members present in to-days meeting we could not take any decision. At last President said to all to work together with unity like a family for the development of villagers. It is resolved. Sd/- Illegible President Rangia Anchalik Panchayat" 16. From the scheme of Section 15 of the Act of 1994, it appears that the intention of the legislature was to ensure that the President or the Vice-President of the Gaon Panchayat, as the case may be, should remain in office so long as he/she enjoys the confidence of ?rd of the total number of the members of the Gaon Panchayat but would be deemed to have vacated office immediately when a resolution expressing want of confidence is passed by a resolution adopted in a special meeting convened for the purpose. Section 15 of the Act of 1994, therefore, clearly envisages a democratic mechanism for continuance and /or removal of such functionaries of the Gaon Panchayat from office. In other words, the President/ Vice-President would have a right to continue in office only so long as they enjoy the confidence of the ?rd majority of the members. 17. In the present case, it is apparent from the records that the "No-Confidence" motion brought against the writ petitioner could not be taken up for discussion in the meeting dated 03-08-2016, inter-alia, on the ground that the requisition notice was not properly served upon the President. Since the requirement of bringing the requisition to the notice of the president is mandated by law, no meeting can be validly held in breach of such statutory enjoinment. Taking note of the same, a decision was rightly taken not to discuss the motion of "No-Confidence" in the meeting held on 03-08-2016. Since the requirement of bringing the requisition to the notice of the president is mandated by law, no meeting can be validly held in breach of such statutory enjoinment. Taking note of the same, a decision was rightly taken not to discuss the motion of "No-Confidence" in the meeting held on 03-08-2016. Since, the meeting held on 03-08-2016 did not discuss the motion of "No-Confidence" brought against the petitioner, in the absence of an express resolution to the contrary, the motion cannot be held to have been defeated/ lost in the said meeting. 18. In the case of Forhana Begum Laskar (Supra) the Full Bench of this Court had the occasion to deal with the question as to what would constitute loss of the motion of "No-Confidence" in the context of second proviso to Section 15 (1) of the Act of 1994. While dealing with the said question the following observations had been made by the Court:- "(21) The word "loss" as has been defined in Black's Law Dictionary is : "loss :- Loss is a generic and relative term. It signifies the act of losing or the thing lost; it is not a word of limited, hard and fast meaning and has been held synonymous with, or equivalent to, "damages", "damages", "deprivation", "detriment", "injury". It may mean act of losing, or the thing lost. " (22) The word 'lost' appearing in the 2nd proviso to Section 15(1), in deference to the fundamental principles of statutory interpretation, has to be essentially comprehended in the text and the context in which it appears. When so construed and interpreted, it, to start with, seems to signify a rejection of a no-confidence motion on merits following due deliberations in a meeting convened and held in accordance with the procedure prescribed in Section 15(1). It cannot be conceived of as an inevitable consequence of any infringement of the prescribed procedural rigour either by a breach of the time frame or unwarranted interference of any authority at any stage of the process or reasons akin thereto. Though, such outrages depending on the nature and extent of the consequential vitiation may render the process illegal, the same per se, would not imply the loss of the no-confidence motion as is contemplated in the 2nd proviso to Section 15(1) of the Act. Though, such outrages depending on the nature and extent of the consequential vitiation may render the process illegal, the same per se, would not imply the loss of the no-confidence motion as is contemplated in the 2nd proviso to Section 15(1) of the Act. A demonstrably conscious act or omission on the part of those supporting the motion resulting in the rejection of the motion on merits or testifying the abandonment of the pursuit would be essential to conclude such a consequence. The bar against the permissibility of initiation of such a motion within next six months after it is lost in the first venture, in our opinion is decisively redolent of this view. The quintessence of the proviso, according to us, is to sanction a temporary reprieve to the President or the Vice President of the Gaon Panchayat, in case the no-confidence motion brought against him/her stands defeated on merit so as to relieve him/her of a fresh ordeal of suffering the same exercise in quick successions. The legislative intendment as discernible is thus that a no-confidence motion brought against the President or the Vice President of the Gaon Panchayat is lost within the meaning of 2nd proviso to Section 15(1) of the Act, if either it is rejected on due deliberations in a meeting duly convened as enjoined therein or if the motion fails for cause or causes other than procedural defects or irregularities in convening the meeting be it for the violation of the time frame or uncalled for or unauthorized intervention of any authority not contemplated in the scheme statutorily delineated for adherence. Whereas, such an infringement of the time schedule prescribed for the successive stages, or interferences of authorities not envisaged depending on the extent and the nature of the impairment caused thereby, may render an ongoing process vitiated thereby, the inescapable consequence thereof need not necessarily be that the motion would be lost as comprehended in the 2nd proviso to Section 15(1) of the Act. Such a consequence is also neither discernible nor deductible from Section 15(1). We, thus, cannot lend our concurrence to the plea that each and every non-compliance of the procedural essentials for prosecuting the process of no-confidence motion would, inexorably imply that it (motion of no-confidence) would be lost. Such a consequence is also neither discernible nor deductible from Section 15(1). We, thus, cannot lend our concurrence to the plea that each and every non-compliance of the procedural essentials for prosecuting the process of no-confidence motion would, inexorably imply that it (motion of no-confidence) would be lost. In the facts and circumstances of the case, having regard to the nature of the contraventions, we are of the unhesitant opinion that though the proceedings of the meeting dated 12.03.2009 are invalid in view of the unauthorised intrusion of the Anchalik Panchayat in the process, it would not connote that the no-confidence motion thereby, had been lost so as to attract the bar against initiation of a fresh pursuit with the same objective within six months thereafter. The process, in our view subsists and is capable of being furthered from the stage of the receipt of the requisition dated 19.02.2009 expressing the no-confidence against the appellant." 19. By applying the law laid down in the case of Forhana Begum Laskar (Supra) to the facts of the present case, the "No-Confidence" motion cannot be held to have been lost in the meeting held on 03-08-2016. Since the motion was neither lost nor abandoned by the requisitionist, the requisition dated 12-07-2016 was not discharged and hence, was available to be pressed into service by the requisitioninst by following the procedure prescribe under the Act of 1994. Although Mr. Shiekh has vehemently argued that if the respondent Nos. 7 to 15 were aggrieved with the resolution dated 03-08-2016, the only remedy left open to them was to file appropriated proceeding before the court of law assailing the same. I am unable to agree with the said submission of the learned counsel for the petitioner for the simple reason that, save as provided under the second proviso to Section 15(1), which comes into play when a motion of "No-Confidence" in lost, law does not create any bar for the requisitionists to start a fresh process for convention of the special meeting to discuss the "No-Confidence Motion" at any time after proper service of the notice upon the President. What is relevant for the purpose of the act is that the person concerned must be made aware of the requisition based on which such "No-Confidence" motion has been proposed. 20. What is relevant for the purpose of the act is that the person concerned must be made aware of the requisition based on which such "No-Confidence" motion has been proposed. 20. While interpreting the statutory provision relating to "No-Confidence" motions brought in the panchayat institution, the Supreme Court had made certain observation in the case of Bhanumati & Ors. v. State of Uttar Pradesh & Ors. reported in (2010) 12 SCC 1 by holding that the confidence of the majority members of the panchayat upon the Chairperson is necessary for institutional growth and is helpful towards maintaining accountability and transparency in the activity of the Chairperson. In paragraph 58 of the said decision, it has been observed as follows:- "58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India." 21. Therefore, if a meeting is validly convened wherein the motion of "No-Confidence" is passed by majority of ?rd members, the President would have no option but to vacate the office. 22. Coming to the impugned resolution dated 03-12-2016, I find from the record that the special meeting was convened by following the due procedure laid down in Section 15(1) of the Act of 1994. It is not in dispute that the requisition was brought to the notice of the petitioner on 07-11-2016 when she declined approval to convene the meeting. If that the so, it would be the concerned Anchalik Pachayat which would have the jurisdiction to convene the meeting and in this case, has rightly exercised its jurisdiction. Once it is found that impugned resolution has been adopted in a validly convened meeting of the Gaon Panchayat, the mere fact that the respondent Nos. 7 to 15 had remained silent till 01-10-2016 before submitting their application before the concerned Deputy Commissioner would not have any vitiating effect on the said resolution. For the reasons stated hereinabove, I am of the view that there is no merit in this writ petition and the same is accordingly dismissed. There would, however, be no order as to cost.