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2017 DIGILAW 772 (GAU)

Subhamai Borah v. State of Assam

2017-06-12

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Ms. M Borah, learned counsel for the petitioner. Also heard Mr. M Bhagawati, learned Govt. Advocate appearing on behalf of respondent Nos.1 to 6. None appears for the respondent Nos.7 to 13. 2. By the earlier order dated 22.02.2017, 17.03.2017 and 04.05.2017, time were granted to the respondent Nos. 7 to 13 to file their affidavit-in-opposition. Thereafter, by the order dated 17.03.2017, it was provided that in the event the said affidavit is not filed, the Court would be constrained to proceed with the matter even in the absence of such affidavit. 3. When the matter is called upon today, it is noticed that neither such affidavit has been filed nor anyone has appeared on behalf of the respondent Nos.7 to 13. In the aforesaid circumstances, this Court deems it appropriate that the matter be proceeded even in the absence of the affidavit as well as the learned counsel for the respondent Nos.7 to 13. 4. The petitioner was elected as the President of the Ukha Mati Gaon Panchayat as per the elections held on 03.01.2013. On 08.07.2013, 7(seven) members of the Gaon Panchayat had given a requisition notice to the Secretary for convening an urgent meeting to express want of confidence against the petitioner. 5. Accordingly, a letter dated 10.07.2015 was issued to the petitioner by the Secretary Ukha Mati Gaon Panchayat that a complaint had been received against the President regarding certain irregularities in execution of some Government schemes and, accordingly, a meeting was convened to be held on 14.07.2015 at 11.A.M, in the Office of the Secretary and the petitioner was requested to remain present. 6. Subsequently, as per the annexure-6 Special Meeting resolution dated 14.07.2015, wherein the presence of the petitioner was also shown, a resolution was taken that 2/3rd of the members of the Gaon Panchayat had expressed a no-confidence against the petitioner. The said resolution was approved by one Kabita Pegu, who was shown to be the vice-president of the Panchayat. 7. The said resolution dated 14.07.2015 was assailed by the petitioner by way of a writ petition, being WP(C)No.4246/2015, on the ground that the provisions of Section 15(1) and 18(5) of the Assam Panchayat Act, 1994 had been violated. The said resolution was approved by one Kabita Pegu, who was shown to be the vice-president of the Panchayat. 7. The said resolution dated 14.07.2015 was assailed by the petitioner by way of a writ petition, being WP(C)No.4246/2015, on the ground that the provisions of Section 15(1) and 18(5) of the Assam Panchayat Act, 1994 had been violated. By the order dated 29.07.2015, in the aforesaid writ petition, this Court had directed the petitioner to convene a special meeting on 13.08.2015 to discuss the no-confidence against the petitioner. 8. Accordingly by the resolution dated 13.08.2015, the petitioner was removed as the President of the Gaon Panchayat by following the procedure of secret ballot. In the said resolution of 13.08.2015, it has been provided that out of 10 votes, one vote was cancelled and, therefore, there remained 9 valid votes. Out of the 9 valid votes, 6 votes were in favour of the no-confidence motion and 3 votes were in favour of expressing confidence on the petitioner. 9. The said resolution dated 13.08.2015 has been assailed in this writ petition on the ground that the required 2/3rd majority of the total number of members had not been achieved in the resolution of removal. 10. Under section 6(1)(a) of the Assam Panchayat Act, 1994, a Gaon Panchayat consists of 10 members who are directly elected by the electorate. Again under Section 15(1) of the Panchayat Act, a President shall be deemed to have vacated Office forthwith when a resolution expressing want of confidence is passed by a majority of 2/3rd members of the total number of members of the Gaon Panchayat. Section 6(1)(a) of the Assam Panchayat Act, 1994 is as under: “1) The Gaon Panchayat shall consist of-- (a) ten members to be directly elected by the voters of the territorial constituencies of the Gaon Panchayat area -one from each constituency in the manner prescribed Section 15(1) of the Assam Panchayat Act, 1994 is as under: “(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..” 11. On a conjoint reading of Section 6(1)(a) and 15(1) of the Assam Panchayat Act, 1994, it is seen that in order to remove a President of the Gaon Panchayat, the resolution is required to be passed by 2/3rd of the total number of members of the Gaon Panchayat and as the total number of members under Section 6(1)(a) is 10, therefore, the 2/3rd of the members has to be 2/3rd of 10 members. Arithmetically 2/3rd of 10 would come to 6.66 and the same on being rounded up would come to 7. Therefore in a Gaon Panchayat, where there are 10 members, a minimum of 7 members would have to vote in favour of the no-confidence motion, and any number which would be less than 7 would not meet the required 2/3rd of the total number of members. 12. It is noticed that the provision of Section 15(1) requires 2/3rd of the total number of members of the Gaon Panchayat and not 2/3rd of the number of the members present in the meeting or 2/3rd of the valid votes that may have been polled. 13. When the resolution of removal dated 13.08.2015 is examined, it is noticed that out of the 10 members, the vote of one members was cancelled and, therefore, there remained 9 members, out of which 6 had voted in favour of the no-confidence motion. The said 6 members voting in favour of the no-confidence does not meet the requirement of Section 15(1) inasmuch as 6 members do not constitute 2/3rd of the total members, although it may constitute 2/3rd of the valid votes polled. 14. This Court is of the view that the resolution dated 13.08.2015 did not meet the requirement of the want of confidence being expressed by 2/3rd of the total member of the Gaon Panchayat. Consequently, the resolution of removal dated 13.08.2015 is held to be unsustainable and, accordingly, set aside. 15. In terms of the above, this writ petition stands disposed of.