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2025 DIGILAW 1700 (GAU)

Mamun Shah S/o Abdul Salam Shah v. State of Assam

2025-10-15

SANJAY KUMAR MEDHI

body2025
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. Heard Shri KN Choudhury, learned Senior Counsel assisted by Shri AZ Ahmed, learned counsel for the petitioners. Also heard Shri B. Goswami, learned Additional Advocate General, Assam for the State respondents; Shri RKD Choudhury, learned counsel for the respondent no. 4; Ms. SG Baruah, learned counsel for the respondent no. 5 and Ms. AB Kayastha, learned counsel appearing on instructions of Shri R. Dubey, learned Standing Counsel, ASEC. 2. Considering the facts and circumstances of the case and also the fact that the relevant records have been produced by the learned State Counsel, this writ petition is taken up for disposal at the admission stage. 3. To state in brief, the grievance of the petitioners, who are 7 in nos., is with regard to the holding of the first meeting of the No.2 Fekamari Anchalik Panchayat. The petitioners are elected members of the said Anchalik Panchayat and few of them had also aspired to contest for the post of President and Vice-President. It is the specific case of the petitioners that the meeting was held without serving notice in which the petitioners were deprived of the opportunity to contest for the aforesaid post and the private respondents were elected as President and Vice-President. 4. Shri KN Choudhury, learned Senior Counsel for the petitioners has drawn the attention of this Court to Rule 48 of the Assam Panchayat (Constitution) Rules, 1995 (hereinafter the Rules of 1995) and has contended that for holding the first meeting, at least 7 days' notice is to be served. He has submitted that though from the pleadings exchanged, it appears that a notice was initially issued on 03.07.2025 fixing the date of election as 15.07.2025, the same was not served on the petitioners. It is also submitted that on 15.07.2025, another notice was issued, fixing the elections on 21.07.2025 and the said notice was also not served upon the petitioners. He has submitted that serving of notice is necessary as it amounts to one of the democratic safeguards to enable an aspiring candidate to take part in the election for the post of President and Vice- President of the Panchayat and to cast his / her vote in such election. Certain other contentions have also been raised on behalf of the petitioners. 5. Certain other contentions have also been raised on behalf of the petitioners. 5. This Court, on the previous occasions, was primarily concerned with the aspect of serving of notice and accordingly had directed the learned State Counsel to obtain the relevant records. 6. Shri Goswami, learned AAG has placed before this Court copies of the notice dated 03.07.2025 as well as 15.07.2025 in original. On the reverse side of both the notices, signatures of 11 nos. of members appear, which however are not of the petitioners. He has however submitted that the petitioners were indeed served with copies of both the notices, which they had refused, and on such refusals, the matter was referred to the concerned Gaon Panchayat Secretary through WhatsApp and the respective Gaon Panchayat Secretaries had forwarded copies of the notice to all the petitioners in their mobile numbers through WhatsApp. He has also placed before this Court, the separate Undertakings given by the respective Secretaries of the different Gaon Panchayats on their action that the notice of 15.07.2025 was duly transmitted to the petitioners on their WhatsApp number. The learned Additional Advocate General accordingly submits that the requirement of serving of notice upon the members of the Panchayat was duly fulfilled and therefore the writ petition is devoid of any merits. 7. Shri R.K.D. Choudhury, learned counsel for the respondent no. 4 while endorsing the submissions of the learned Additional Advocate General, has submitted that the present pretext of not receiving notice has been taken out of context as all the members were duly served with both the notices dated 03.07.2025 and 15.07.2025 on time and no prejudice, whatsoever has been suffered by the petitioners. He has also submitted that the notice dated 15.07.2025 is the second notice as the first meeting had to be deferred and there is no prescription of any notice period and the only requirement is that the meeting should be held within a period of 15 days. He has further submitted that on 21.07.2025, the respondent no. 4 has been elected as the President and the said resolution is not the subject matter of challenge. 8. Ms. Gohain Baruah, learned counsel for the respondent no. 5 has endorsed the submissions of both the learned AAG and the learned counsel for the respondent no. 4 and has submitted that the respondent no. 4 has been elected as the President and the said resolution is not the subject matter of challenge. 8. Ms. Gohain Baruah, learned counsel for the respondent no. 5 has endorsed the submissions of both the learned AAG and the learned counsel for the respondent no. 4 and has submitted that the respondent no. 5 has been duly elected as the Vice-President and such election is not liable for any interference by this Court. 9. The rival submissions have been newly considered and the materials placed before this Court including the documents placed before this Court by the learned AAG have been carefully perused. 10. Rule 48 of the Rules, 1995 is with regard to the election of President and Vice-President of Anchalik Panchayat. For ready reference, the relevant part of Rule 48 which encompasses the aspect of the notice for holding the meeting is extracted hereinbelow: “ 48. Election of President and Vice-President of Anchalik Panchayat: (1) The Deputy Commissioner or the Officer authorised by him in this behalf as under, subsection (1) of Section 37 of the Act, shall as soon as possible after the completion of election as under Section 32 of the Act, convene the first meeting of the Anchalik Panchayat comprising the members as under subsection (1) of Section 32 of the Act, by fixing a date, time and place and specifying the purpose and by causing a written notice to be served on each of the said members of the Anchalik Panchayat at least seven days before the date so fixed . Such meeting shall be presided over as under sub-section (1) of Section 37 of the Act, and such Officer shall not be entitled to vote.” 11. It is not in dispute that the petitioners who are 7 in nos. and the respondent nos. 4 and 5 are elected members of the Panchayat and are also entitled to contest for the post of President and Vice-President of the said Panchayat and to cast their votes. The primary contention advanced on behalf of the petitioners is non-serving of notice. From the provision of the Rule extracted above, at least 7 days notice is a sine qua non for holding the meeting for such election. In the instant case, it transpires that a notice was indeed issued on 03.07.2025 fixing the date of election as 15.07.2025. The primary contention advanced on behalf of the petitioners is non-serving of notice. From the provision of the Rule extracted above, at least 7 days notice is a sine qua non for holding the meeting for such election. In the instant case, it transpires that a notice was indeed issued on 03.07.2025 fixing the date of election as 15.07.2025. It is however the case of the petitioners that the aforesaid notice was never served upon them. It further transpires that on 15.07.2025, due to lack of quorum, the meeting could not be held and accordingly the second notice was issued convening the meeting on 21.07.2025 and the petitioners have made a similar grievance of not being served with the said notice. On the aspect of not serving the notice, the petitioners have made specific statements in the writ petition which are found in paragraphs 6 and 7. The said averments however have been denied in the affidavit-in-opposition filed by the respondent no. 3 on 08.09.2025. 12. Situated thus, this Court had directed the learned State Counsel for placing before this Court the relevant records. As mentioned above, copies of the notices dated 03.07.2025 and 15.07.2025 have been placed before this Court which contain signatures of 11 nos. of members on the reverse side of each notice. The signatures are however admittedly not of the petitioners. The contention of the petitioners that they were not served with the copy of the notices has been tried to be refuted by the learned AAG by submitting that the petitioners had refused to accept the notice and upon such situation, the said notice had to be forwarded by WhatsApp on the respective mobile phones of the petitioners through the concerned Gaon Panchayat Secretaries. He has also supported the said fact by placing before this Court the Undertakings issued by each of the Secretary. 13. The statute holding the field does not recognize a mode of serving of notice by WhatsApp. Further, it cannot be said with certainty that such notice by WhatsApp was indeed served as the same would depend on many factors including the aspect of as to whether the recipient has a WhatsApp compliant mobile handset or even whether a person is conversant with the use of WhatsApp. Further, it cannot be said with certainty that such notice by WhatsApp was indeed served as the same would depend on many factors including the aspect of as to whether the recipient has a WhatsApp compliant mobile handset or even whether a person is conversant with the use of WhatsApp. Even assuming for the sake of argument that such a mode is an acceptable mode, the notice dated 15.07.2025 by which the meeting was convened on 21.07.2025 would not fulfill the requirement of Rule 48 which stipulates at least 7 days notice th before the date so fixed. It appears that it is on the 7 day when the meeting was convened which is not in sync with the scheme and objective of the statute which is to have a democratic setup in the grass root level. 14. This Court is also unable to accept the submission of the Shri RKD Choudhury, learned counsel for the respondent no. 4 that since no time limit is fixed for a second notice, the provisions of Rule 48 will not be applicable. This Court is of the opinion that if the first meeting is not able to be held on the issue of lack of quorum or for any other matter, the same would not automatically lead to a conclusion that the notices were duly served, more so, when in this case there is a specific/allegation that notices were not served upon the petitioners. This Court has also noticed that the resolution of election has been specifically challenged in the writ petition. 15. In view of the aforesaid discussion, this Court is of the opinion that there is violation of Rule 48 of the Rules, 1995 requiring at least 7 days notice before holding the meeting. Accordingly, the elections of the No. 2 Fekamari Anchalik Panchayat held on 21.07.2025 is interfered with and set aside. 16. At this stage, this Court has also considered the overall aspect of the matter. Since the primary grievance of the petitioners was not serving notice of 7 days notice, this Court is of the view that substantial justice would be done and the equities would be balanced if a date is fixed for holding the meeting for the elections of the President and Vice-President by following the mandate of Rule 48. Since the primary grievance of the petitioners was not serving notice of 7 days notice, this Court is of the view that substantial justice would be done and the equities would be balanced if a date is fixed for holding the meeting for the elections of the President and Vice-President by following the mandate of Rule 48. This Court is also of the view that since the aggrieved parties are before this Court, there would be no requirement of issuing further notice by the authorities. Accordingly, let the meeting be convened on 25.10.2025 at 10:00 AM at the Office of the No. 2, Fekamari Anchalik Panchayat. Such election be held under the supervision of the District Commissioner, South Salmara-Mankachar or his authorized Officer. 17. The writ petition accordingly stands allowed in the manner indicated above. 18. The original documents placed before the Court be returned back to Shri B. Goswami, learned AAG, Assam.