Gauhati High Court
Page No.# 1/6 vs The State Of Assam And 8 Ors on 4 January, 2021
Page No.# 1/6
GAHC010192782020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5785/2020
ANIMA SARKAR AND 7 ORS
W/O PRABIN SARKAR, R/O VILL-KAHIRABARI, P.O.-KHAIRABARI, DIST-
BARPETA, ASSAM, PIN-781315
2: MITHU RANI SAHA
W/O PRAN GOBINDA SAHA
R/O VILL-UTTAR ATHIABARI
P.O.-BARPETA ROAD
DIST-BARPETA
ASSAM
PIN-781315
3: SUBRATA ACHARJYA
S/O JITBRAT ACHARYA
R/O VILL-UTTAR ATHIABARI
P.O.-BARPETA ROAD
DIST-BARPETA
ASSAM
PIN-781315
4: SANJIB MANDAL
S/O RAMAKRISHNA MANDAL
R/O VILL-KHAIRABARI
DIST-BARPETA
ASSAM
PIN-781315
5: SAADHAN DAS
S/O JATINDRA DAS
R/O VILL-KHAIRABARI
P.O.-KHAIRABARI
DIST-BARPETA
ASSAM
PIN-781315
Page No.# 2/6
6: SHIPRA SUTRADHAR
W/O ARUN SUTRADHAR
R/O VILL-KHAIRABARI
P.O.-KHAIRABARI
DIST-BARPETA
ASSAM
PIN-781315
7: INARA BEGUM
W/O NASKAR KHAN
R/O VILL-KHAIRABARI
P.O.-KHAIRABARI
DIST-BARPETA
ASSAM
PIN-781315
8: HANNAN MANDAL
S/O A. RAHIM
R/O VILL-DOMANI
P.O.-KHAIRABARI
DIST-BARPETA
ASSAM
PIN-78131
VERSUS
THE STATE OF ASSAM AND 8 ORS.
REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT
DEPARTMENT, DISPUR, GUWAHATI-781006, DIST-KAMRUP(M), ASSAM
2:THE DEPUTY COMMISSIONER
BARPETA
DIST-BARPETA
ASSAM
PIN-781301
3:THE DISTRICT DEVELOPMENT COMMISSIONER
BARPETA
DIST-BARPETA-781301
ASSAM
4:THE EXECUTIVE OFFICER-CUM-SECRETARY
NO. 8 GOBARDHANA ANCHALIK PANCHAYAT
DIST-BARPETA-781301
ASSAM
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5:THE SECRETARY
NO. 94 KHAIRABARI GAON PANCHAYAT
DIST-BARPETA-781301
ASSAM
6:SUJIT SAHA
(EX-PRESIDENT
NO. 94 KHAIRABARI GAON PANCHAYAT
BARPETA) AGED ABOUT 35 YEARS
S/O SRI SUBAL SAHA
R/O UTTAR ATHIYABARI
P.O. AND P.S.-BARPETA ROAD
DIST-BARPETA-781301
ASSAM
7:MAMATA SARKAR
W/O RAM KRISHNA KUNDU
R/O VILL-KHAIRABARI
P.O.-KHAIRABARI
DIST-BARPETA
ASSAM
PIN-781315
8:RABIUL ISLAM
S/O ATAP ALI
R/O VILL-MONIPUR
P.O. AND P.S.-BARPETA ROAD
DIST- BARPETA-781301
ASSA
Advocate for the Petitioner : MR. P N GOSWAMI
Advocate for the Respondent : SC, PNRD
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
04.01.2021
Heard Mr. P.N. Goswami, learned counsel for the petitioners. Also heard Ms. M. Bhattacharjee,
learned Additional Senior Government Advocate for the respondents no. 2 and 3 being the Deputy
Commissioner and District Development Commissioner and Mr. A. Roy, learned counsel for the
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Panchayat & Rural Development Department.
2. Issue notice, returnable by four weeks.
3. Extra copies to the learned counsel within three days.
4. Steps on respondents no. 7, 8 and 9 by registered post within three days.
5. The petitioners are the members of the No. 94 Khairabari Gaon Panchayat in the Barpeta
district and is aggrieved by a communication dated 19.12.2020 of the District Development
Commissioner, Barpeta by which the Secretary of the No. 94 Khairabari Gaon Panchayat was
requested not to give effect to the outcome of a resolution of no confidence against the President of
the Gaon Panchayat namely, Sri Sujit Saha till a final judgment is passed by this Court.
6. It is stated that the President of the Gaon Panchayat Sri Sujit Saha had moved before this
Court assailing a notice by which a no confidence motion was called for. It is stated that in the said
writ petition, no interim order was passed. As no interim order was passed, the no confidence motion
had taken place and by the resolution dated 14.10.2020, Sri Sujit Saha was removed as President of
No. 94 Khairabari Gaon Panchayat.
7. It is stated that the resolution dated 14.10.2020 has also been assailed by Sri Sujit Saha in
WP(C) No. 4723/2020 wherein also no interim order has been passed meaning thereby that the
resolution of removal had not been interfered by this Court in any manner.
8. In the said circumstance, the Executive Officer & Secretary of Gobardhana Anchalik Panchayat,
Barpeta had made a communication to the Deputy Commissioner, Barpeta dated 14.10.2020 by which
the resolution of removal dated 14.10.2020 was forwarded for information and necessary action. In
the circumstance, the District Development Commissioner in the office of the Deputy Commissioner
issued the communication of 19.12.2020 requiring the Secretary of No. 94 Khairabari Gaon Panchayat
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not to give effect to the resolution of removal. The implication of the communication would be that Sri
Sujit Saha who was removed by the resolution dated 14.10.2020 would now continue as the President
of the Gaon Panchayat.
9. We are seriously concerned with the conduct of the District Development Commissioner,
Barpeta to the extent that firstly when no interim order was passed by this Court either against the
notice of no confidence motion or against the resolution of removal, the District Development
Commissioner took it upon himself to issue the communication dated 19.12.2020 which has the effect
of an interim order being passed. The conduct of the District Elementary Commissioner is deprecated.
Secondly, Section 15(1) of the Assam Panchayat Act 1994 (in short the Act of 1994) provides for a
legal frication that once a resolution is passed by the Gaon Panchayat comprising of two third of the
members, the President stands removed from the office. Further, Section 13(2)(d) of the Act of 1994
provides that when the President is removed, the function of the President would now be undertaken
by the Vice President.
10. Considering the provisions of Sections 15(1) and 13(2)(d) of the Act of 1994, once the
resolution had been passed by the two third of the members of the Gaon Panchayat, the President of
the Gaon Panchayat no longer holds the office.
11. An unwarranted communication by the Executive Officer of the Gobardhana Anchalik Panchayat
and an equally unwarranted communication by the District Development Commissioner cannot restore
the person back to the post of President who had been removed by an appropriate resolution of the
Gaon Panchayat under Section 15(1) of the Act of 1994.
12. From the said point of view, in the interim it is provided that the communication of the
Executive Officer of Gobardhana Anchalik Panchayat dated 14.10.2020 as well as the communication
of the District Development Commissioner, Barpeta dated 19.12.2020 shall remain stayed until further
orders. The effect of the said two communications being stayed would be that by operation of law as
provided under Section 15(1) of the Act of 1994, Sri Sujit Saha would no longer function as the
President of the No. 94 Khairabari Gaon Panchayat. Once Sri Sujit Saha would not function as the
President, the implication of the law provided under the Act of 1994 shall prevail.
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13. List after four weeks.
JUDGE
Comparing Assistant
