Dewan Musharaf Hussain vs The State Of Assam And 16 Ors
2022 Latest Caselaw 323 Gua

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GAHC010115292021




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

                        Case No. : WP(C)/3570/2021

         DEWAN MUSHARAF HUSSAIN
         S/O. LT. DEWAN ELIM UDDIN, VILL. CHAKIR BHITHA, P.O. KHABLAR
         BHITHA, P.S. BARPETA, DIST. BARPETA, ASSAM.

         VERSUS

         THE STATE OF ASSAM AND 16 ORS.
         REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI-06.

         2:THE COMMISSIONER
          PANCHAYAT AND RURAL DEVELOPMENT ASSAM
          PANJABARI
          JURIPAR
         GUWAHATI-37

         3:THE DEPUTY COMMISSIONER
          BARPETA
         ASSAM.

         4:THE CHIEF EXECUTIVE OFFICER
          BARPETAZILLAPARISHAD
         DIST. BARPETA

         5:THE PRESIDENT
          PAKABETBARIANCHALIK PANCHAYAT
          KAYAKUCHI
         DIST. BARPETA
         ASSAM
         PIN. 781352

         6:THE EXECUTIVE OFFICER
          PAKABETBARIANCHALIK PANCHAYAT KAYAKUCHI
          DIST. BARPETA
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ASSAM. PIN. 781352

7:THE SECRETARY

39 NO. MADHYA BETBARI GAON PANCHAYAT
KAYAKUCHI
DIST. BARPETA
ASSAM
PIN.781352

8:NIZAM UDDIN
 S/O. MAHER UDDIN
VILL. BONBAHAR P.O. KAYAKUCHI
P.S BARPETA
 DIST. BARPETA
ASSAM. PIN. 781352

9:ATOWAR RAHMAN
 S/O. SHARBESH ALI
VILL. BONBAHAR
P.O. KAYAKUCHI
 P.S. BARPETA
DIST.BARPETA
ASSAM
PIN. 781352

10:MUNSTER ALI
 S/O. ENAM ALI
VILL. CHAKIRBHITA
P.O. KABLARBHITA
P.S. BARPETA DIST. BARPETA
ASSAM. PIN. 781352

11:SHAHJAHAN ALI
 S/O. DELOWAR HUSSAIN
VILL. CHAKIRBHITHA
P.O.KABLARBHITHA
P.S BARPETA DIST. BARPETA
ASSAM. PIN. 781352

12:RAMENA AHMED
 W/O. JEHERUL ISLAM
VILL. MARALARTARI
P.O. KAYAKUCHI
P.S BARPETA DIST. BARPETA
ASSAM. PIN. 781352

13:NASIR AHMED
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             S/O. JAKIR HUSSAIN AHMED
            VILL. MARALARTARI
            P.O. KAYAKUCHI
            P.S BARPETA DIST. BARPETA
            ASSAM. PIN. 781352

            14:NOOR ISLAM
             S/O. BISHA MIYA
            VILL. CHAKIRBHITHA
            P.O.KABLARBHITHA
            P.S BARPETA DIST. BARPETA
            ASSAM. PIN. 781352

            15:SANI ARA AHMED
             W/O. AMIR HUSSAIN
            VILL. CHAKIRBHITHA
            P.O.KABLARBHITHA
            P.S BARPETA DIST. BARPETA
            ASSAM. PIN. 781352

            16:MANJUWARA BEGUM
             W/O.AMBAD HUSSAIN
            VILL. KAMALPUR
            P.O. KAMALPUR
            P.S BARPETA DIST. BARPETA
            ASSAM. PIN. 781352

            17:SHAHIDA KHATUN
             W/O. MUSHARAF HUSSAIN
            VILL. KAMALPUR
            P.O. KAMALPUR
            P.S BARPETA DIST. BARPETA
            ASSAM. PIN. 78135

Advocate for the Petitioner   : MR. P RAHMAN

Advocate for the Respondent : GA, ASSAM


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                      JUDGMENT

Date : 01-02-2022

Heard Mr. MK Choudhury learned senior counsel for the Page No.# 4/13

petitioner assisted by Mr.S.H. Sikdar, learned counsel for the petitioner. Mr. A Roy, learned counsel for the respondent Nos.1, 2, 4, 6 & 7 and Mr. B Deuri, learned Junior Govt. Advocate appearing for respondent Nos.2 and 3 and Mr. R Ali, learned counsel appearing on behalf of respondent Nos.8 to 17.

2. The instant writ petition has been filed assailing the resolution dated 17.07.2021 by which a resolution of no confidence was passed against the petitioner as well the letter dated 30.07.2021 whereby the Executive Officer, Pakabetbari Anchalik Panchayat permitted the Vice President of 39 No. Madhya Betbari Gaon Panchayat to take over the charge of the President immediately and to inform compliance.

3. The brief facts of the instant case is that the petitioner was elected as President of 39 No. Madhya Betbari Gaon Panchayat under Pakabetbari Anchali Panchayat in the district of Barpeta, Assam in the year 2018. On 12.04.2021, ten numbers of members of 39 No. Madhya Betbari Gaon Panchayat made a requisition before the Secretary of the Gaon Panchayat leveling certain allegations against the petitioner who was the then President of 39 No. Madhya Betbari Gaon Panchayat and accordingly sought to convene the special meeting to express no confidence motion against the petitioner.

4. Thereafter the secretary of 39 No. Madhya Betbari Gaon Panchayat referred the matter to the Anchalik Panchayat vide a communication dated 27.04.2021 without placing requisition notice to the petitioner who was the then President. The Anchalik Page No.# 5/13

Panchayat after receiving the letter dated 27.04.2021 convened the special meeting on 06.05.2021 wherein a resolution of no confidence was passed against the petitioner and thereby the petitioner was removed from the office of the 39 No. Madhya Betbari Gaon Panchayat. The record further reveals that the said resolution was approved by the Zila Parishad Barpeta vide an order dated 27.05.2021.

5. The petitioner being aggrieved by the resolution adopted on 06.05.2021 as well as the approval of the said resolution by the Zila Parishad, Barpeta on 27.05.2021 approached this Court by filing a writ petition being WP(C) No.3001/2021 challenging the said resolution dated 06.05.2021 as well as the approval letter dated 27.05.2021. This Court vide an order dated 24.06.2021 had set-aside the resolution dated 06.05.2021 as well as the letter dated 27.05.2021 and passed certain consequential directions at paragraph No.6, 7 & 8 which are quoted herein below:

6. Under such circumstances, and on the debatable point having been conditionally conceded by the learned senior counsel for the respondent Nos.8 to 17, who were the signatories to the said requisition dated 12.04.2021, the Court is of the considered opinion that in the interest of justice it would be just and appropriate to hold that as the respondent nos.8 to 17 have conceded the point that requisition dated 12.04.2021 was not served on the petitioner, the impugned letter dated 27.04.2021 by the Secretary of the said Gaon Panchayat (respondent No.7) to the President, Paka Betbari Anchalik Panchayat (respondent No.5), thereby forwarding the matter relating to non-holding of special meeting to discuss no confidence motion, and the resolution dated 06.05.2021 in the Page No.# 6/13

special meeting convened by the respondent No.5 are both hereby set-aside.

7. Nonetheless, and notwithstanding the interference with the herein before referred impugned letter dated 27.04.2021 and the impugned resolution adopted on 06.05.2021, the requisition dated 12.04.2021 is held to have survived. It is made clear that this order shall not be construed to mean that the no confidence motion is lost. Moreover, as the petitioner has annexed the copy of the requisition dated 12.04.2021 for holding special meeting regarding no confidence motion moved by the respondent Nos.8 to 17 as Annexure-1 to this writ petition, it is provided on and from this day i.e., 24.06.2021, the petitioner is deemed to have been served with a copy of the said impugned requisition dated 12.04.2021 moved by 9 (nine) ward members.

8. Liberty is granted to the petitioner and all the concerned respondents to scrupulously follow the mandate of the Assam Panchayat Act, 1994 in so far it relates to the provisions of Section 15 of the Act.

6. It is the case of the petitioner that pursuant to the order passed by this Court on 24.06.2021, the petitioner sent a communication dated 29.06.2021 to the Secretary 39 No. Madhya Betbari Gaon Panchayat requesting him to convened the special meeting on 08.07.2021. The record reveals that the said letter was sent on 01.07.2021 and the postal endorsement there on shows that it was refused on 04.07.2021. Thereupon, on 12.07.2021 the Secretary sent a communication to the Anchalik Panchayat which the petitioner came to learn on 14.07.2021 when he received a notice from the President Pakabetbari Anchalik Panchayat on 16.07.2021 wherein, it was mentioned that a special meeting has Page No.# 7/13

been convened on 17.07.2021 to discuss the no confidence motion against the petitioner. The record further reveals that on 17.07.2021 a resolution was adopted against the petitioner to remove him from the office of the President and the Minutes of the Special meeting was submitted to the Barpeta Zila Parishad vide a communication dated 19.07.2021 issued by the Executive Officer Pakabetbari Anchalik Panchayat. The Executive Officer Pakabetbari Anchalik Panchayat thereupon issued a letter dated 30.07.2021 requesting the Vice President of the Gaon Panchayat to take charge of the President and also directed the petitioner to hand over the charge of the President to the Vice President. It is against the resolution dated 17.07.2021 as well as the communication dated 30.07.2021 issued by the Executive Officer Pakabetbari Anchalik Panchayat that the petitioner has approached this Court under Article 226 of the Constitution of India.

7. The grievance of the petitioner as could be seen from a perusal of the writ petition as well as the contention made by Mr. MK Choudhury, learned senior counsel is that section 17(3) of the Assam Panchayat Act 1994, (for short, the Act of 1994) stipulates that for holding a special meeting there should be three clear days notice of specifying the place, date and time of such meeting and the business to be transacted therein which shall be given by the Secretary of the Gaon-Panchayat and fix the notice on the Notice Board of the Gaon-Panchayat office.

8. It is the submission of the learned counsel for the petitioner that the petitioner received the said notice on 16.07.2021, however, he submits that even on perusal of the Page No.# 8/13

notice it would show that the date on which the notice was issued on 14.07.2021 and that cannot be said to be three clear days for the purpose of holding the special meeting. He submits that the term "three clear days" used in Section 17(3) has to be counted by excluding the terminal days i.e., date of the notice as well as the date on which the meeting is to be held. In that regard Mr. Choudhury, learned senior counsel places reliance upon two judgments of the Supreme Court i.e., Pioneer Motor Private Limited Vs. Municipal Council Rubber Coil reported in AIR (1967) SC 684 and refers to paragraph No.8. He also refers to another judgment of the Supreme Court rendered in the case of Jai Charan Lal Anal Vs. State of UP & Ors reported in AIR 1968 SC 5 and refers to paragraph No.5. As per the submission of the learned counsel for the petitioners the said two judgment would clearly go to show that what is meant by clear days. He also places reliance on the definition of clear days as defined in the Black's Law Dictionary Sixth Edition wherein the term clear days has been defined as under:

Clear days : If a certain number of clear days be given for the doing of any act, the time is to be reckoned exclusively, as well of the first day as the last.

9. On the other hand, Mr. A Roy, learned Standing counsel PNRD Department submits that Section 17(3) although prescribes for three clear days but the same has to be taking into consideration with the perspective as to whether the non- compliance of the same has caused prejudice to the person complaining and in that regard he refers to the judgment of this Page No.# 9/13

Court in the case of Chinganbam Kunjo Singh and Ors. Vs. State of Manipur and Ors reported in 2013 (4) GLT 1043 and more particularly, to paragraph No.12 wherein the Division bench of this Court in Mumtaz Rana Raskar & Ors Vs. State of Assam & Ors had taken into consideration as to whether the provisions of Section 15(1) of the Assam Panchayat Act 1994 is mandatory or directory.

10. I have heard the learned counsel for the parties at length and have also perused the materials on record.

11. It is the admitted fact that on 14.07.2017 the notice was issued to the petitioner for convening the Special Meeting to discuss the no confidence motion against the petitioner. It is also apparent from the records placed by Mr. Roy, wherein the resolution dated 17.07.2021 forms a part thereof, that the petitioner had not participated in the said meeting. It is also apparent from the facts before this Court that on the basis of the resolution dated 17.07.2021 the petitioner was removed from his elected post of the President on the basis of the no confidence motion carried out against the petitioner and thereby apparently a prejudice has been caused to the petitioner whereby the petitioners rights to remain as the President of the Gaon Panchayat has been taken away.

12. At this stage paragraph 10 of the judgment in the case of Chinganbam Kunjo Singh and Ors. Vs. State of Manipur (supra) may be relevant to take into consideration which for the sake of convenience is quoted herein below:

"For ascertaining the real intention of the legislature, the court may consider inter alia, the nature and design of Page No.# 10/13

the statute and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered."

A said reading of the said paragraph quoted herein above would show that for ascertaining the real intention of the legislature the court needs to take into consideration various aspects i.e., the nature and design of the statute and the consequences which would follow from construing it the one way or the other, the impact on the other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, the statute provides for contingency of the non- compliance with the provision; the fact that the non-compliance with the provision is or is not visited by some penalty; the seriousness or the trivial consequences that flow therefrom and above all whether the object of the legislation will be defeated or furthered.

13. Keeping in mind the said perspective this Court is of the opinion that if this Court hold that the provisions of Section 17(3) to be directory depending upon the facts of each case on the basis of the prejudice, it would result in offending the object of the legislature or in other words rather defeat the purpose as Page No.# 11/13

mandated in Section 17 of the Act of 1994. It may further result in unnecessary litigation on the question of prejudice that to when the legislature mandated three clear days for holding a special meeting. Moreover, it is not the duty of the Court to tinker with legislative wisdom when the legislature mandate is three clear days notice for special meeting is unambiguous.

14. In the backdrop of the above, it would therefore be relevant to take into consideration as regards what is the meaning of three clear days. The judgments placed by Mr. Choudhury, learned senior counsel i.e Pioneer Motor Private Ltd (supra) observed at paragraph No.8 that the term 'clear one month's notice' means both the first and the last day of the month has to be excluded. In the said judgment while referring Maxwell on

Interpretation of Statutes 10th Edition, wherein it was mentioned "When......... 'not less than' so many days are to interven, both the terminal days are excluded from the computation." In the judgment of the Supreme Court in the case of Jai Charan Lal Anal (supra), the Supreme Court while dealing with the contention that the expression "not earlier than 30 days" is equal to the expression "not less than 30 days" and therefore, 30 clear days must intervene between two terminal days, it was observed by the Supreme Court that when the expression is "not less than so many days" both the terminal days have to be excluded and the number of days mentioned, must be clear days. Further to that, the expression "clear days" have been defined in the Black's Law Dictionary to mention that if a certain number of clear days be given for doing any act, the time is to be reckoned exclusively, as well as of the first day as the last or in other words while Page No.# 12/13

computing the clear days the first and the last days has to be excluded. For the purpose of the instant case the three clear days would therefore mean excluding the date of the notice as well as the date of holding the meeting.

15. Under such circumstances taking into consideration the submission made by the parties and also taking that the notice which was issued by the respondent for convening the meeting on 17.07.2017 was on 14.07.2017 and thereby it does not meet the requirement as per section 17(3) which mandates three clear days notice, it is the opinion of this Court that the resolution dated 17.07.2021 is not in conformity with the provisions of section 17(3) of the Act of 1994 and the said resolution is set-aside. The consequential communication dated 30.09.2021 is also set-aside.

16. Be that as it may, in view of the submission taken on record of the learned counsels for the parties, and in the interest of justice, this Court is of the opinion that the ends of justice would be served, if a direction is issued to the Respondent No.5 directing to convene a Special Meeting of 39 No. Madhya Betbari Gaon Panchayat to discuss the no confidence motion against the petitioner on 14.02.2022 at 11.00 AM in the Office of the Pakabetbari Anchalik Panchayat, Kayakuchi, District Barpeta as per the requisition notice dated 12.04.2021 and in view of the fact that the parties are before this Court there shall be no necessity for issuance of any notice. It is made clear that till such decision is taken in the meeting dated 14.02.2022 the present Vice President of 39 No. Madhya Betbari Gaon Panchayat shall be the In-charge of the functions of the President of the said Gaon Page No.# 13/13

Panchayat.

17. With the above observations, the instant writ petition stands disposed of.

JUDGE

Comparing Assistant