Nur Hussain vs The State Of Assam And 11 Ors
2021 Latest Caselaw 110 Gua

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GAHC010003412021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/189/2021

         NUR HUSSAIN
         S/O- LT. FATIK ALI, VILL- MAHAMMAD PUR, P.O. KADANG, DIST.-
         BARPETA, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 11 ORS
         THROUGH THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, PANCHAYAT
         AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY-6

         2:THE DY. COMMISSIONER
          BARPETA
          DIST.- BARPETA
         ASSAM

         3:THE CHIEF EXECUTIVE OFFICER
          BARPETA ZILLA PARISHAD
          BARPETA
          DIST.- BARPETA
         ASSAM

         4:THE EXECUTIVE OFFICER
          MANDIA ANCHALIK PANCHAYAT
          MANDIA
          DIST.- BARPETA
         ASSAM

         5:THE PRESIDENT
          MANDIA ANCHALIK PANCHAYAT
          MANDIA
          DIST.- BARPETA
         ASSAM
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6:THE SECRETARY
 79 NO. KADONG GAON PANCHAYAT
 KADONG
 P.O. KADONG
 P.S. BARPETA
 DIST.- BARPETA
ASSAM

7:SADEK ALI
 S/O- LT. ABDUL HAMID
VILL- RUPAKUCHI
 P.O. JANIA
 DIST.- BARPETA
ASSAM
 PIN- 781314

8:SAMIRAN BEGUM
W/O- ABDUL HALIM
VILL- RUPAKUCHI
 P.O. KADANG
 DIST.- BARPETA
ASSAM

9:KAHINOOR KHATUN
W/O- SURAT JAMAL
VILL- MAHAMMAD PUR
 P.O. KADANG
 DIST.- BARPETA
ASSAM

10:ABEDA KHATUN
W/O- DELOWAR HUSSAIN
VILL- TAPAJULI
 P.O. KADANG
 DIST.- BARPETA
ASSAM

11:RAHIMA KHATUN (VP)
W/O- KHALILUR RAHMAN
VILL- TAPAJULI
 P.O. KADANG
 DIST.- BARPETA
ASSAM

12:ABDUL KASHEM
 S/O- ABDUS SAMAD
VILL- SONPURA
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             P.O. JANIA
             DIST.- BARPETA
             ASSAM
             PIN- 78131

Advocate for the Petitioner   : MR. R ALI

Advocate for the Respondent : GA, ASSAM




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        O R D E R

12.01.2021

Heard Mr. R Ali. Goswami, learned counsel for the petitioner. Also heard Mr. M. Nath, learned counsel for the respondent PNRD and Ms. M. Bhattacharjee, learned counsel for the respondent No.3.

Issue notice, returnable in 2 (two) weeks. Extra copies be furnished within three days.

Steps for service of notice on the respondents No.4 to 12 be taken by registered post with A/D cards as well as by speed post within three days.

The President of the 79 No. Kadong Gaon Panchayat Gaon Panchayat in the Barpeta district was removed by a resolution of no confidence dated 30.12.2020. It is an admitted position that the strength of the members of the Gaon Panchayat is 10. But the said Panchayat did not have a 10 Member body as because one of the Members could not be elected as the Election was not held in a proper manner, and therefore the existing strength of the Gaon Panchayat is 9.

In the circumstance, 6 members of the Gaon Panchayat had passed a resolution of no confidence against the President. In the circumstance a question for determination would be whether the 6 members out of the existing 9 members would constitute two-third of the strength of the members. In other words, the question for determination would be as to whether two-third members is to be understood on the basis of the existing strength of the members or it has to be calculated on the basis of the total strength of members permissible Page No.# 4/4

under the law.

Mr. R Ali, learned counsel refers to an earlier judgment of this Court in paragraph-24 of Fakrun Nessa Choudhury -vs- State of Assam reported in 2012 (5) GLT 107 wherein while deciding as to whether the President would also be included as a member of the Gaon Panchayat to render the strength to be 11, a conclusion was arrived at that two-third of the total members of the Gaon Panchayat would mean to be the number of members without the word 'existing' to be read into the relevant provision providing for the total members. In other words, a clear decision has already been arrived at by this Court that the total number of members would have to be on the basis of the sanctioned strength of the members and not in the number of the members present when the resolution is taken.

It is stated that the decision on the inclusion of the President as member has been subsequently interfered by the Division Bench. But we have taken note of that while so interfering, the other issue decided as regards the reading of the word 'existing' in the relevant provision had not been interfered.

In view of the prima facie case being made out by the petitioner and considering the balance of convenience and the irreparable loss that the petitioner may suffer, the impugned resolution dated 30.12.2020 shall not be given its effect.

List the matter after two weeks.

JUDGE

Comparing Assistant