JUDGMENT : By invoking extra ordinary jurisdiction under Article 226 of the Constitution of India, the petitioner has preferred this writ petition making an assailment to a resolution adopted in a special meeting held in the office of No. 8, Gobardhana Anchalik Panchayat on 14.10.2020 to discuss a motion of no confidence brought against the petitioner to decide his fate about continuing in the capacity of the President of No. 94, Khairabari Gaon Panchayat. In the special meeting held on 14.10.2020, the concerned resolution has been passed by holding that there was requisite two-third majority in favour of the motion of no confidence expressing lack of confidence in the petitioner. 2. The relevant background facts leading to the holding of the special meeting in the office of the Gobardhana Anchalik Panchayat can be exposited, in brief, as follows : 2.1. In the General Panchayat Election held in the year 2018, the petitioner submitted his nomination for the post of President of No. 94, Khairabari Gaon Panchayat within the territorial jurisdiction of Gobardhana Anchalik Panchayat [‘the Anchalik Panchayat’, for short] and Barpeta Zilla Parishad [‘the Zilla Parishad’, for short], District – Barpeta. In the said election, the petitioner was directly elected to the post of President in No. 94, Khairabari Gaon Panchayat [‘the Gaon Panchayat’, for short] in terms of the provisions of Section 6[1][b] of the Assam Panchayat Act, 1994 [‘the Panchayat Act, 1994’, for short]. On 19.09.2020, 7 [seven] nos. of Ward Members of the Gaon Panchayat submitted a requisition notice, addressed to the President of the Gaon Panchayat, expressing want of confidence in the petitioner to continue as the President of the Gaon Panchayat. The Secretary of the Gaon Panchayat had forwarded the matter to the President of the Anchalik Panchayat by a letter dated 05.10.2020 with the request to take necessary action on the requisition notice dated 19.09.2020. In the said letter dated 05.10.2020, the Secretary of the Gaon Panchayat mentioned that the requisition notice was submitted to the President of the Gaon Panchayat with a copy to him on 19.09.2020 itself. In the said letter dated 05.10.2020, the Secretary of the Gaon Panchayat mentioned that the requisition notice was submitted to the President of the Gaon Panchayat with a copy to him on 19.09.2020 itself. Since the petitioner did not accord his approval to convene a special meeting to discuss the motion of no confidence within a period of 15 [fifteen] days which expired on 03.10.2020, the Secretary had no option but to forward the matter to the President of the Anchalik Panchayat to take a decision in respect of the requisition notice dated 19.09.2020. 2.2. On receipt of the letter dated 05.10.2020 from the Secretary of the Gaon Panchayat, the President of the Anchalik Panchayat by a notice dated 09.10.2020 had called for a special meeting at 01-00 p.m. on 14.10.2020 in the office of the Anchalik Panchayat to discuss the motion of no confidence against the petitioner. The notice dated 09.10.2020 were sent to all the stakeholders including the President, the Vice-President and the Ward Members of the Gaon Panchayat. The petitioner received a copy of the notice dated 09.10.2020 on 12.10.2020 and after receipt of the same, the petitioner submitted a complaint before the President of the Anchalik Panchayat alleging that the provisions of Section 15[1] of the Panchayat Act had been violated as the special meeting was not convened within 7 [seven] days from the date of receipt of information from the Gaon Panchayat. 2.3. Notwithstanding the complaint, the special meeting was held, as scheduled, in office of the Anchalik Panchayat. In the said special meeting, 9 [nine] Ward Members including the Vice President, were present but the petitioner did not attend the special meeting. In the special meeting which was presided over by the President of the Anchalik Panchayat, discussion on the motion of no confidence took place and it was decided that the fate of the motion would be decided by resorting to voting. Accordingly, voting took place. 2.4. The specific contention that the petitioner has raised by this writ petition is regard to the mandate of secret ballot. 3. I have heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. P.P. Dutta, learned counsel for the petitioner; Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development Department for the respondent nos. 1, 3, 4, 5 & 6; Ms. M. Barman, learned Junior Government Advocate, Assam for the respondent no. 2; and Mr. 3. I have heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. P.P. Dutta, learned counsel for the petitioner; Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development Department for the respondent nos. 1, 3, 4, 5 & 6; Ms. M. Barman, learned Junior Government Advocate, Assam for the respondent no. 2; and Mr. K.P. Pathak, learned counsel for the respondent nos. 7 & 9 – 15. 4. Mr. Mahanta, learned Senior Counsel for the petitioner has confined his submission on the specific issue that the mandate of secret ballot contained in Section 18[5] of the Panchayat Act, 1994 had been violated while deciding the fate of the petitioner to continue as the President of the Gaon Panchayat when the Ward Members of the Gaon Panchayat in the special meeting resorted to the voting process on the motion of no confidence. It is submitted by him that the principle of secrecy was not maintained by the respondent authorities at the special meeting. By referring to the Minutes of the special meeting held on 14.10.2020, he has submitted that the minutes did not indicate in any specific manner about the use of any ballot box and it is clearly suggestive of the fact that no voting process by way of secret ballot was resorted. 4.1. That apart, he has referred to the counter-affidavit filed by the Executive Officer-cum-Secretary of the Anchalik Panchayat who has been arrayed as the party-respondent no. 4, to buttress his submission. The Executive Officer of the Anchalik Panchayat had himself admitted that the ballot papers were distributed to the Ward Members with serial numbers on it after obtaining their signatures in the counter-foils. Save and except the President of the Anchalik Panchayat and himself, the said fact was not known to any other person. He has further referred to the decision of the Hon’ble Supreme Court of India in Laxmi Singh and others vs. Rekha Singh and others, reported in [2020] 6 SCC 812,to submit that any disclosure during the course of a special meeting held for the purpose of discussing a no confidence motion would be in violation of the statutory prescription contained in Section 18[5] of the Panchayat Act, 1994 and the principle of secrecy of the ballot, which policy is based on the public policy to maintain fairness. 5. Mr. 5. Mr. Dutta, learned Standing Counsel, Panchayat & Rural Development Department, by producing the records of the special meeting, has submitted that the procedure followed during the course of proceedings of the special meeting held on 14.10.2020 have been recorded in the proceedings book and the same has also been mentioned in details in the counter-affidavit filed by the respondent no. 4. The special meeting was presided over by the President of the Anchalik Panchayat and the Executive Officer of the Anchalik Panchayat was also present. At the initial stage, 9 [nine] nos. of Ward Members were present but one Ward Member i.e. the Ward Member from Ward no. 2 after subscribing her signature in the attendance sheet, left the venue of the special meeting. Thereafter, 8 [eight] nos. of Ward Members took part in the discussion on the motion and it was decided thereafter, to resort to the voting process. 10 [ten] nos. of ballot papers were prepared. As there were 8 [eight] nos. of Ward Members present in the special meeting, 8 [eight] nos. of ballot papers with serial nos. 1 to 8 were distributed amongst those 8 [eight] nos. of Ward Members and all of them cast their votes in favour of the motion. 6. Mr. Pathak, learned counsel appearing for the respondents, mentioned above, has submitted that in the special meeting concerned on 14.10.2020, 8 [eight] nos. of Ward Members of the Gaon Panchayat present had cast their votes in favour of the motion which was more than two-third majority of the total number of members of the Gaon Panchayat. As there was requisite two-third majority as per the mandate under Section 15 of the Panchayat Act, 1994, there could not have been any question regarding maintenance of secrecy. In a process based on the principle of secrecy, it is for the voter to choose whether he wishes to disclose or would like to keep the secrecy intact. He has referred to the decision of the Hon’ble Supreme Court of India in Kuldip Nayar and others vs. Union of India and others, reported in [2006] 7 SCC 1, Para 409 thereto, wherein it is observed that under the elections based on the principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield. He has further referred to the decision of the Hon’ble Supreme Court of India in Padmini Singha vs. State of Assam and others, reported in [2018] 10 SCC 561, Para 13. It is his submission that though secret ballot is a mandate under Section 18[5] of the Panchayat Act, 1994 to decide the fate of a motion of no confidence, it is the voter with whom the privilege to maintain secrecy is reserved, who can waive the privilege as per his choice. Since a Panchayati Raj institution runs on democratic principles and an elected office bearer can continue in an office only till the time he enjoys the support and confidence of the majority, any procedural infraction has to yield in case the motion of no confidence is passed with requisite majority, as provided in the governing statute. In that connection he has referred to the decision of a co-ordinate bench of this Court in Bandana Deka vs. State of Assam and others, reported in [2018]3GLR 819. 7. I have considered the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also gone through the records placed by the learned departmental counsel in connection with the proceedings of the special meeting held on 14.10.2020. 8. From the respective submissions of the learned counsel for the parties, what has emerged is that the sole issue which is to be considered is whether the principle of secrecy was maintained during and/or at the time of casting votes by ballots in the course of the proceedings of the special meeting held, on 14.10.2020, for the purpose of discussing a motion of no confidence brought against the petitioner in his capacity as the President of the Gaon Panchayat by 8 [eight] nos. of Ward Members of the said Gaon Panchayat on the basis of the requisition notice dated 19.09.2020. 9. It is an admitted fact that in the special meeting, 9 [nine] nos. of Ward Members of the Gaon Panchayat were present at the initial stage and one of them walked out from the venue of the special meeting after subscribing her signature in the attendance sheet. 9. It is an admitted fact that in the special meeting, 9 [nine] nos. of Ward Members of the Gaon Panchayat were present at the initial stage and one of them walked out from the venue of the special meeting after subscribing her signature in the attendance sheet. The said Ward Member having walked out from the venue of the special meeting, did not participate in the proceeding held in respect of the motion of no confidence. As per Section 15 of the Panchayat Act, 1994, if a matter is referred to the President of the concerned Anchalik Panchayat in case a special meeting is not convened by the President of the Gaon Panchayat within a period of 15 [fifteen] days from the date of receipt of a requisition notice for convening such a special meeting, it is the President of the jurisdictional Anchalik Panchayat who shall have to convene the special meeting within 7 [seven] days from the date of receipt of the information and also has to preside over such special meeting. The special meeting at issue was convened and was also presided over by the President of the Anchalik Panchayat as required under Section 15 of the Panchayat Act, 1994 and, thus, there was no violation of the statutory prescription contained therein. 10. From the minutes of the special meeting, as found recorded in the proceedings book, it is noticed that the House after a discussion on the motion of no confidence, decided to resort to the voting process and the Secretary of the Anchalik Panchayat was asked to take necessary steps for the voting process. On the basis of such request, the Secretary of the Anchalik Panchayat prepared 10 [ten] copies of ballot papers against a total 10 [ten] nos. of votes for the total 10 [ten] nos. of Ward Members of the Gaon Panchayat and, thereafter, distributed 8 [eight] nos. of such ballot papers amongst the 8 [eight] nos. of Ward Members present in the special meeting after obtaining of their respective signatures against serial no. 1 to serial no. 8. It was on those 8 [eight] nos. of ballot papers, 8 [eight] nos. of Ward Members had cast their votes. The 8 [eight] nos. of such ballot papers amongst the 8 [eight] nos. of Ward Members present in the special meeting after obtaining of their respective signatures against serial no. 1 to serial no. 8. It was on those 8 [eight] nos. of ballot papers, 8 [eight] nos. of Ward Members had cast their votes. The 8 [eight] nos. of ballot papers were thereafter, shown to all in the floor of the House and it was seen that all 8 [eight] votes cast in those 8 [eight] ballot papers were in support of the motion. The House had accordingly accepted the motion to be passed. 11. The respondent no. 4 in his counter-affidavit has further elaborated the manner in which the process of voting was carried out. It has been stated that the ballot papers were issued to 8 [eight] nos. of Ward Members of the Gaon Panchayat by taking their signatures for casting votes. The 8 [eight] nos. of Ward Members had thereafter, cast their votes by putting tick marks on the ballot papers and by dropping those ballot papers in the ballot box. The ballot papers were said to be handed over to the respective Ward Members by maintaining a serial number by the President of the Anchalik Panchayat and the Executive Officer of the Anchalik Panchayat and the said fact was known only to the President and the Executive Officer of the Anchalik Panchayat. It has been asserted that the said fact was not known to any other person. It has been stated that the ballot papers with same serial nos. were handed over to the voters i.e. the Ward Members by obtaining his/her signature by the Presiding Officer or his staff and the voters i.e. the Ward Members after casting their votes dropped their ballot papers in the ballot boxes. The deponent has further averred that he and the President of the Anchalik Panchayat had maintained total secrecy regarding casting of votes by the Ward Members of the Gaon Panchayat in the special meeting held on 14.10.2020. 12. It is in the above fact situation obtained in the case in hand, the issue raised in this writ petition is to be considered. 13. 12. It is in the above fact situation obtained in the case in hand, the issue raised in this writ petition is to be considered. 13. Section 18[5] of the Panchayat Act, 1994 of the Panchayat Act, 1994 has prescribed that the voting in any meeting of the Gaon Panchayat, if required, shall be by raising of hands, except in the meeting where no confidence motion is discussed where the matter shall be decided by secret ballot. The Full Bench of this Court in Forhana Begum Laskar vs. State of Assam and others, reported in [2009] 6 GLR 429, has held that in case secret ballot is not resorted to in a special meeting to decide the issue of no confidence against an elected office-bearer of the Gaon Panchayat, the proceedings of such a meeting being in contravention of an express legal provision, are liable to be adjudged non est in law. 14. In Padmini Singha [supra], the Hon’ble Supreme Court of India has taken note of the well settled proposition that a mandatory provision of law requires strict compliance but there are situations when even if a provision is mandatory, non-compliance would not result in nullification of the act. In that context, it is observed that one such exception is if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved and the ultimate result would be valid even if the requirement or condition is not performed. Section 94 of the Representation of People Act, 1951 [Secrecy of voting not to be infringed] has laid down that no witness or other person shall be required to state for whom he has voted at an election and the proviso to it says that the Section would not be apply to such witness, or other person where he has voted by open ballot. The Constitution Bench decision in Kuldip Nayar [supra] has observed, by referring to Section 94 of the Representation of People Act, 1951, that the principle of secrecy is engrafted therein as a prohibition based on public policy. The Constitution Bench decision in Kuldip Nayar [supra] has observed, by referring to Section 94 of the Representation of People Act, 1951, that the principle of secrecy is engrafted therein as a prohibition based on public policy. It is held that through the privilege of secrecy is reserved for the benefit of an individual, even if conferred to advance a principle enacted in public interest, it can be waived because the very concept of privilege inheres in it a right to waive it. The principle of secrecy has given a qualified privilege in favour of a voter not to be compelled to disclose but if he chooses to volunteer the information the rule is not violated. The principle of secrecy is for the benefit of the voter to ensure his protection in order to protect him against being compelled to divulge information as to for which candidate he had voted, but nothing prevents a voter to open his lips of his own free will and to waive his privilege. 15. There is, thus, no dispute to the principle that the matter of secrecy of ballot is based on the public policy to ensure that the voters cast their votes without fear or favour and without any apprehension of any disclosure. An open ballot system violates the principle of secrecy. All the Panchayat Raj institutions including the Gaon Panchayat, run on democratic principles and the principle of ballots is an important tenet of Constitutional democracy. The provision of Section 28 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 came up for consideration in Laxmi Singh [supra], which provision states that a motion of no confidence shall be put to vote in the prescribed manner by a secret ballot. Some of the members who had voted in the special meeting held for the purpose of discussing a motion of no confidence against the Panchayat Adhyaksha were alleged to have violated the rule of secrecy of the ballot by displaying the ballot papers or by revealing the manner in which they had voted. The decision has considered the Constitution Bench judgment in Kuldip Nayar[supra] and another decision of the Hon’ble Supreme Court of India in S. Raghbir Singh Gill vs. S.Gurcharan Singh Tohra, reported in [1980] Supp SCC 53, wherein too Section 94 of the Representation of People Act, 1951 came up for consideration. 15.1. The decision has considered the Constitution Bench judgment in Kuldip Nayar[supra] and another decision of the Hon’ble Supreme Court of India in S. Raghbir Singh Gill vs. S.Gurcharan Singh Tohra, reported in [1980] Supp SCC 53, wherein too Section 94 of the Representation of People Act, 1951 came up for consideration. 15.1. The principle that has been elucidated therefrom in Laxmi Singh [supra] is that the secrecy of the ballot is a postulate and keystone in the arch of Constitutional democracy as the electorate or the voter should be absolutely free in exercise of franchisee untrammeled by any constraints, including a constraint as to disclosure. Even a remote or distinct possibility that at some point, a voter under compulsion of law can be forced to disclose for whom he or she has voted, would act as a positive constraint and a check on the freedom to exercise of franchisee. It is the policy of law to protect the right of voters to secrecy of the ballot subject, however, to the other principle that the voter himself can make the disclosure on his/her own. Such privilege in favour of a voter is for the sole reason that no one can compel him/her to disclose for whom he or/she had voted. The privilege ends when the voter decides to waive the privilege and instead volunteers to disclose as to whom he or/she had voted. No one can prevent the voter to make a disclosure or to waive the privilege. The principle of secrecy, prescribed by the statutory provisions, is for the purpose to subserve a larger public interest of purity of election which must be free and fair. If the principle of secrecy founded under the public policy is incorporated in the statute then the Court should be slow to apply the doctrine of waiver. The maintenance of secrecy is for benefiting the voter and this principle has conferred on the voter to advance the principle enacted in public interest. It has been held in Laxmi Singh [supra] that the principle of secrecy is based on public policy and the privilege of the waiver is upon the voter himself/herself and no one can waive such benefit. 16. Reverting back to the facts of the case in hand, it is noticed from the discussions above, more particularly, from the stand of the respondent no. 16. Reverting back to the facts of the case in hand, it is noticed from the discussions above, more particularly, from the stand of the respondent no. 4 taken in the counter affidavit to the effect that 8 [eight] nos. of ballot papers, each with distinctive serial number, were handed over to 8 [eight] nos. of Ward Members with the President and the Executive Officer of the Anchalik Panchayat retaining the counter-foils with same serial numbers with them. It has also been admitted that the said fact was known to the President and the Executive Officer of the Anchalik Panchayat only. The Executive Officer has vouched secrecy by stating that the said fact was known to him and the President of the Anchalik Panchayat only and not to any other person. It has also been vouched in the counter affidavit that the Executive Officer and the President of the Anchalik Panchayat have both maintained total secrecy regarding casting of votes by the Ward Members of the Gaon Panchayat in the special meeting held on 14.10.2020. Thus, the question of waiver of the privilege by the voters/Ward Members does not arise in this case. It was much before the point of time at which the voters i.e. Ward Members could have waived the privilege of secrecy required to be maintained as per the statutory prescription contained in Section 18[5] of the Panchayat Act, 1994, the principle of secrecy had been breached. The breach of secrecy had taken place the moment the 8 [eight] nos. of ballot papers with distinctive serial numbers were handed over to 8 [eight] nos. of Ward Members by taking their respective signatures in the counter-foils with the same corresponding serial number, retained by the Executive Officer and the President of the Anchalik Panchayat. Voting by secret ballot is a process of voting in which each person cast their vote on a ballot paper without any other person knowing how the person has voted. 17. The Panchayat Act, 1994 has not laid any procedure how the process of voting by secret ballot in a special meeting held for the purpose of discussing a no confidence motion is to be carried out. One could emphasise that serial numbers on ballot papers would prevent misuse of ballot papers. 17. The Panchayat Act, 1994 has not laid any procedure how the process of voting by secret ballot in a special meeting held for the purpose of discussing a no confidence motion is to be carried out. One could emphasise that serial numbers on ballot papers would prevent misuse of ballot papers. One could, on the other hand, emphasise that even if the ballot papers and the counter-foils are distinctly numbered and with the signatures of the voters taken on the counter-foils could link the voters with the manner they had voted the secrecy could still be preserved if all the persons who could link the ballot papers to the counter-foils with the identities of the voters to find out about the manner the voters had cast their votes maintain secrecy and impersonation could be prevented by putting serial numbers thereby. Such process can definitely be followed in a polling process where the size of the electorate is large and there is more possibility of occurrence of fraud, misrepresentation, impersonation or other kinds of mischief. The provisions of the Panchayat Act, 1994 have engrafted the principle of secrecy through voting by ballot papers in the Panchayat election/bye-election and in the special meetings of a Gaon Panchayat, etc. for the purpose of discussing motion of no confidence against an elected office-bearer of any of such Panchayati Raj institutions. In the first situation, the size of the electorate is large whereas in the second situation, the size of the electorate is quite small. There is no difficulty to maintain absolute secrecy and preserve voter’s right in the second situation. The procedure adopted and prescribed to maintain secrecy of ballot papers in the first situation cannot be followed for the second situation since it is not only possible to maintain the perception of secrecy but also the absolute secrecy in the second situation. In the second situation, the identities of the small number of voters are known before hand and there is no question of impersonation, misrepresentation, etc. and such a special meeting is convened and held at a particular venue at a time and on a date, fixed in a notice with limited participants. 18. In the second situation, the identities of the small number of voters are known before hand and there is no question of impersonation, misrepresentation, etc. and such a special meeting is convened and held at a particular venue at a time and on a date, fixed in a notice with limited participants. 18. In the light of the above discussion and for the reasons mentioned therein, the manner in which the resolution on the motion of no confidence against the petitioner was passed in the special meeting, held on 14.10.2020, expressing want of confidence in him to continue as the President of No. 94, Khairabari Gaon Panchayat cannot be countenanced. As a consequence, the resolution dated 14.10.2020 passed in the special meeting held on 14.10.2020 in the office of the Gobardhana Anchalik Panchayat is set aside and quashed. 19. The second proviso to sub-section [1] of Section 15 of the Panchayat Act, 1994 has provided that when a no confidence motion is lost, no such motion shall be allowed in the next 6 [six] months. The Full Bench of this Court in Forhana Begum Laskar[supra] has considered the meaning of the word, ‘lost’ in the text and the context in which the word has appeared in the statutory framework of the Panchayat Act, 1994. Elucidating the same, it has been observed that the word, ‘lost’ cannot be conceived of as an inevitable consequence of any infringement of the prescribed procedural rigour either by breach of the time frame or unwarranted interference of any authority at any stage of the process or reasons akin thereto. In the considered view of the Court, the prohibition under the second proviso to sub-section [1] of Section 15 would only become operational when there is a special meeting and the motion is not carried out as per the provisions of Section 15 or the special meeting could not be held for lack of quorum. The facts of the case in hand have revealed that the special meeting was convened and held to discuss the motion of no confidence; the special meeting had the requisite quorum; and the motion was also passed with requisite majority of two-third majority of the total number of members of the Gaon Panchayat. The facts of the case in hand have revealed that the special meeting was convened and held to discuss the motion of no confidence; the special meeting had the requisite quorum; and the motion was also passed with requisite majority of two-third majority of the total number of members of the Gaon Panchayat. But the motion has not received the validation in view of the breach of the principle of secrecy required to be adhered to in a process of voting by secret ballot. Thus, this Court is of the view that the same cannot attract the restriction imposed under the second proviso to sub-section [1] of Section 15 of the Panchayat Act, 1994. 20. With the above observations, the writ petition is allowed to the extent indicated above. There shall be no order as to cost.