Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 818 (GAU)

Mocklishur Rahman Laskar v. State of Assam

2017-06-20

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. HRA Choudhury, learned Senior counsel for the petitioner. Also heard Mr. G. Uddin, learned counsel for respondent Nos. 8 to 15, as well as Mr. S.P. Choudhury, learned counsel for respondent Nos. 2, 3, 4 and 6. None appears for the respondent Nos. 5 and 7. The petitioner was elected as the President of the Tantoo Dhanipur Gaon Panchayat under Lala Anchalik Panchayat, Hailakandi district during the Panchayat election that was held in the year 2013. By the same election, the present respondent Nos. 8 to 15 were also elected as members along with 3 (three) other members. 2. The petitioner states that upon assuming the Office of the President of the Gaon Panchayat, he had been discharging his duties with utmost sincerity and to the satisfaction of all concerned and there were no allegation against him for the last 3 1/2 years. It is stated that due to certain extraneous consideration, some of the members were of the view to oust the petitioner by adopting a no confidence motion against him. 3. It is case of the respondent Nos. 8 to 15 that on 09.05.2016, they had made a requisition for convening the no confidence meeting against the petitioner and that the said requisition was addressed to the Secretary of the Tantoo Dhanipur Gaon Panchayat. 4. Per contra, it is the case of the petitioner that although the said requisition dated 09.05.2016 may have been made by respondent Nos. 8 to 15, but the Secretary of the Gaon Panchayat had not delivered the said requisition to the petitioner for taking appropriate action pursuant thereto. Although the Secretary of the Gaon Panchayat had informed the petitioner about such requisition but when the petitioner requested the Secretary to provide him with a copy of the said requisition, the same was not provided. 5. The petitioner also informed the Secretary that under Section 15(2) of the Assam Panchayat Act, 1994, unless the requisition for such meeting is delivered to the President, he cannot act on the same only on the basis of the information given by the Secretary. 6. 5. The petitioner also informed the Secretary that under Section 15(2) of the Assam Panchayat Act, 1994, unless the requisition for such meeting is delivered to the President, he cannot act on the same only on the basis of the information given by the Secretary. 6. Be that as it may, on 15.06.2016, a peon of the Gaon Panchayat came to the residence of the petitioner and handed over the copy of a note dated 10.06.2016 of the Deputy Commissioner, Hailakandi, wherein it was provided that the special meeting for the no confidence against the petitioner would be held on 17.06.2016 at 10. AM. 7. At that stage also the petitioner had asked the authorities for a copy of the requisition dated 09.05.2016 and, accordingly, submitted an application before the Deputy Commissioner, Hailakandi dated 16.06.2016 by which a request was made that the meeting should not be held on 16.06.2016. 8. Be that as it may, by the resolution dated 17.06.2016, out of the 10 members of the Panchayat, 8 members had voted in favour of the no confidence, which was conducted by the method of secret ballot. 9. In this writ petition, the said resolution dated 17.06.2016 has been assailed on the ground that the requisition dated 09.05.2016 was not delivered to the petitioner as required under Section 15(2) of the Assam Panchayat Act, 1994 (for short, Act of 1994). 10. Section 15(2) of the Act of 1994, inter alia, provides that that the requisition for such a special meeting under Sub-Section(1) of Section 15 shall be signed by 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, with information to the Deputy Commissioner of the District'. Section 15(2) of the Assam Panchayat Act, 1994 is as under: 'The requisition for such a 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 Vice President as the case may be, of the concerned [Gaon Panchayat] with information to the Deputy Commissioner of the District'. 11. 11. The expression 'shall be delivered to the President' appearing in Sub-Section 2 of Section 15 of the Act of 1994 gives an indication that it is mandatory for the authorities, including the Gaon Panchayat Secretary to deliver the requisition of the special meeting to the President. 12. The expression 'deliver' means that the said requisition must be physically delivered to the President and a mere intimation or an information of the same being given to the President will not amount to being delivered and, accordingly, would not meet the requirement of Section 15(2) of the Assam Panchayat Act, 1994. 13. On examining the records of the proceeding, it is seen that the record reveals a note dated 10.05.2016 of the Secretary of the Tantoo Dhanipur Gaon Panchayat, addressed to the President. The note states that 8 members, including the Vice-President of the Gaon Panchayat had submitted an application on 09.05.2016, requisitioning a special meeting under Section 15(1) of the Act of 1994 by stating that they have lost their confidence on the President of the Gaon Panchayat. It is also stated in the note that under the provision of the Act of 1994, it is necessary to hold the said meeting within a period of 15 days from the date of receipt of the application by obtaining appropriate approval of the President. The note dated 10.5.2016 which was signed by the Secretary of the Gaon Panchayat also states that a xerox copy of the requisition application is attached to the note. 14. Although the note states that the xerox copy of the requisition application for convening the special meeting is attached with the note, but on perusal of the original records of the note, no such xerox copy of the special meeting dated 09.05.2016 is found. A mere mentioning by the Secretary that the xerox copy of the requisition is attached without actually attaching the copy thereof, in the view of this Court does not meet the requirement of Section 15(2) of the Panchayat Act, 1994, which requires that the requisition notice must be delivered to the President concerned. 15. In any view of the matter, the Secretary also states in his note dated 10.05.2016 that the special meeting is required to be held within a period of 15 (fifteen) days from the date of receipt of the notice by obtaining the prior approval of the President. 16. 15. In any view of the matter, the Secretary also states in his note dated 10.05.2016 that the special meeting is required to be held within a period of 15 (fifteen) days from the date of receipt of the notice by obtaining the prior approval of the President. 16. The said expression 'date of receipt of the notice' would mean the date on which the President of the Gaon Panchayat had received the notice and not the date on which the Secretary receives such notice. 17. It is submitted by Mr. G. Uddin, learned counsel for respondent Nos. 8 to 15 that the note of the Secretary dated 10.05.2017, itself is a sufficient compliance of the Section 15(2) of the Act of 1994 and to that effect, the learned counsel relies upon paragraph 5 of the decision of the Division Bench of this Court in Piarun Nessa Tapadar v. Nizam Uddin Mazumdar & Ors. reported in (2013) 4 GLR 762. On a careful reading of paragraph 5 of the said judgment, it is seen that paragraph 5 merely quotes paragraph 7 and 8 of Ranjit Singh v. State of Assam & Ors. reported in 2012(2) GLT 106. In the said paragraph 7 of the decision of Ranjit Singh (supra), this Court held as under: '7. Reading both sub-sections (1) and (2) of Section 15 together it, therefore, transpires that the notice expressing want of confidence has to be given by at least 1/3rd of the total number of members of the Gaon Panchayat, requesting convening of a special meeting, which is required to be given to the person against whom such no confidence motion is brought. In the event, such notice is not delivered to the President or the Vice President, as the case may be, it would be sufficient compliance of the said provision, if Secretary of the Gaon Panchayat places such notice before the President or the Vice President, as the case may be. The Secretary of the Gaon Panchayat is also required to convene the meeting of the Gaon panchayat with due approval of its President and in case the meeting is not convened within 15 days, the Secretary of the Gaon Panchayat is to refer the matter to the President of the Anchalik Panchayat within. 3 days thereafter. The Secretary of the Gaon Panchayat is also required to convene the meeting of the Gaon panchayat with due approval of its President and in case the meeting is not convened within 15 days, the Secretary of the Gaon Panchayat is to refer the matter to the President of the Anchalik Panchayat within. 3 days thereafter. The President of the Gaon Panchayat, therefore, has to accord approval to the proposal submitted by the Secretary of the Gaon Panchayat to convene the meeting so that the meeting can be convened by the Secretary within the stipulated period of 15 days. 18. From the aforesaid judgment, it is seen that what it is being held by this Court is that sufficient compliance of Section 15(2) of the Assam Panchayat Act, 1994 would be met, if the Secretary of the Gaon Panchayat places the notice before the President or the Vice-President as the case may be. There is a substantial difference between a note of the Secretary and the notice of requisition of the members. In the present case placing of the note of Secretary before the President cannot be deemed to be a compliance of the requirement of Section 15(2), which requires that the requisition notice be placed before the President. 19. In the aforesaid view of the matter, this Court is of the view that the procedure adopted by the Secretary of the Tantoo Dhanipur Gaon Panchayat is contrary to the requirement of Section 15(2) of the Panchayat Act, 1994 and in such view of the matter, all such proceeding that may have been initiated and undertaken by the respondent authorities are vitiated and not sustainable in law. 20. In such view of the matter, the resolution dated 17.06.2016, removing the petitioner as the President of the Tantoo Dhanipur Gaon Panchayat is hereby set aside. However, setting aside of the said resolution shall not preclude the respondent authorities from proceeding against the petitioner in the manner as provided under law. 21. Mr. Choudhury, learned Senior counsel, on the other hand submits that it had already been provided by this Court in two earlier decisions in Rita Rani Dushad v. State of Assam & Ors. reported in 2016(4) GLT 905 and Mumina Begum Chowdhury v. State of Assam & Ors. 21. Mr. Choudhury, learned Senior counsel, on the other hand submits that it had already been provided by this Court in two earlier decisions in Rita Rani Dushad v. State of Assam & Ors. reported in 2016(4) GLT 905 and Mumina Begum Chowdhury v. State of Assam & Ors. reported in 2071 (1) GLT 553, that upon setting aside the resolution of no confidence and declaring it to be null and void, the Court would be failing in its duties in exercising power under Article 226 of the Constitution of India, if it does not direct the President of the Gaon Panchayat to hold a special meeting of no confidence against him/her. 22. Accordingly, by following the two earlier aforesaid decisions, wherein the petitioner President of the Gaon Panchayat was required to hold the meeting, this Court deems it appropriate that in the present case also a direction be issued to the petitioner President to hold the special meeting within a period of 14 days. 23. Accordingly, in order to enable the petitioner President to hold the special meeting within 14 days, it is provided that the ousted President shall be allowed to function as the President of the Gaon Panchayat and the said petitioner President shall hold the special meeting within a period of 14 days after assuming the charge of the President. 24. The records of the proceeding are, accordingly, returned to the learned State counsel. In terms of the above, this writ petition stands disposed of. Disposed off.