Smt. Jayanti Das vs The State Of Assam And 13 Ors
2022 Latest Caselaw 2461 Gua

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GAHC010089112022




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

                          Case No. : WP(C)/3211/2022

         SMT. JAYANTI DAS
         W/O- BRIPENDRA CH. DAS, VILL.- NAYA PATAN, P.O. BHANGABAZAR, P.S.
         BADARPUR, DIST. KARIMGANJ, ASSAM, PIN- 788701.



         VERSUS

         THE STATE OF ASSAM AND 13 ORS.
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
         ASSAM, DEPARTMENT OF PANCHAYAT AND RURAL DEVELOPMENT,
         DISPUR, GUWAHATI-6.

         2:THE DEPUTY COMMISSIONER
          KARIMGANJ
          P.O.
          P.S. AND DIST.- KARIMGANJ
         ASSAM

         3:THE PRESIDENT
          BADARPUR ANCHALIK PANCHAYAT
          P.O. BHANGBAZAR
          DIST. KARIMGANJ
         ASSAM

         4:THE SECRETARY
          MASLY GAON PANCHAYAT
          DIST. KARIMGANJ
         ASSAM

         5:SMTI. LILA BEGUM
         W/O- JAMAL UDDIN
          GROUP MEMBER NO. 1 OF MASLY GAON PANCHAYAT
         VILL.- KAZIRBAZAR
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P.O. BHANGA BAZAR
DIST. KARIMGANJ
ASSAM
PIN- 788701.

6:SMTI. ASMA BEGUM
W/O- ABDUL HANNAN
 GROUP MEMBER NO. 2 OF MASLY GAON PANCHAYAT
VILL.- MASLY
 P.O. BHANGA BAZAR
 DIST.- KARIMGANJ
ASSAM
 PIN- 788701.

7:MANOWARA BEGUM
W/O- ALAUDDIN
 GROUP MEMBER NO. 3 OF MASLY GAON PANCHAYAT
VILL.- MASLY
 P.O. BHANGA BAZAR
 DIST.- KARIMGANJ
ASSAM
 PIN- 788701.

8:RANGALAL DEY
 S/O- LATE RANJIT DEY
 GROUP MEMBER NO. 4 OF MASLY GAON PANCHAYAT
VILL.- SOUTH MASLY
 P.O. BHANGA BAZAR
 DIST.- KARIMGANJ
ASSAM
 PIN- 788701.

9:AKLAS UDDIN
 S/O- HELAL UDDIN
 GROUP MEMBER NO. 5 OF MASLY GAON PANCHAYAT
VILL.- MASLY
 P.O. BHANGA BAZAR
 DIST.- KARIMGANJ
ASSAM
 PIN- 788701.

10:SAKTI RANI DAS
W/O- RAJESH DAS
 GROUP MEMBER NO. 6 OF MASLY GAON PANCHAYAT
VILL.- RAJPASHA
 P.O. BHANGA BAZAR
 DIST.- KARIMGANJ
ASSAM
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             PIN- 788701.

            11:MAMON CHAKRABORTY
             W/O- DHRUVAJYOTI CHAKRABORTY
             GROUP MEMBER NO. 7 OF MASLY GAON PANCHAYAT
             VILL.- NAYA PATAN
             P.O. BHANGA BAZAR
             DIST.- KARIMGANJ
            ASSAM
             PIN- 788701.

            12:SAFAR UDDIN
             S/O- ABDUL BARI
             GROUP MEMBER NO. 8 OF MASLY GAON PANCHAYAT
            VILL.- KANKALASH
             P.O. BHANGA BAZAR
             DIST.- KARIMGANJ
            ASSAM
             PIN- 788701.

            13:PURNIMA RABIDAS
            W/O- SUNIL RABIDAS
             GROUP MEMBER NO. 9 OF MASLY GAON PANCHAYAT
            VILL.- SARAPUR (HARIZON BASTI)
             P.O. BHANGA BAZAR
             DIST.- KARIMGANJ
            ASSAM
             PIN- 788701.

            14:IBRAHIM ALI
             S/O- ILYAS ALI
             GROUP MEMBER NO. 10 OF MASLY GAON PANCHAYAT
            VILL.- KAZIRGRAM
             P.O. BHANGA BAZAR
             DIST.- KARIMGANJ
            ASSAM
             PIN- 788701

Advocate for the Petitioner   : MR. M H LASKAR

Advocate for the Respondent : GA, ASSAM
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                                  BEFORE
                 HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                        ORDER

25.07.2022 Heard Shri MH Laskar, learned counsel for the petitioner. Also heard Shri P Handique, learned counsel representing the Panchayat and Rural Development Department (P&RD Department) whereas the private respondent nos. 5 to 14 are represented by Shri D Hussain, learned counsel, who has also filed a Caveat.

2. The projected case of the petitioner is that she is the elected President of the Masly Gaon Panchayat (Gaon Panchayat) under Badarpur Anchalik Panchayat in the district of Karimganj. A no-confidence motion was initiated against her which, according to the petitioner, was a result of certain conspiracy of the Vice President.

3. The petitioner contended that a requisition notice dated 18.04.2022 was submitted to the Secretary of the Gaon Panchayat, who, accordingly brought the same to the notice of the petitioner on 22.04.2022. Since the law governing the field, namely, Assam Panchayat Act, 1994 (Act), more specifically Section 15 thereof, mandates holding of such meeting within 15 days, the petitioner had convened such meeting on 02.05.2022. It is the case of the petitioner that in the said meeting the no- confidence motion was not done by secret ballot which is mandatory as per the Act. The petitioner has submitted that actually in the said meeting dated 02.05.2022, the no-confidence motion brought against the petitioner was lost, however, by manipulation, a frivolous resolution was adopted by showing that the no-confidence motion was, indeed passed against the petitioner.

4. Shri Laskar, learned counsel for the petitioner submits that when there is requirement in law to hold such no-confidence motion by way of secret ballot, the Page No.# 5/7

present resolution of no-confidence which has, admittedly, been held without following the mandatory requirement of secret ballot is liable to be interfered with. Secondly, the learned counsel submitted that while recording the resolution, the same has been done incorrectly by withholding the fact of loss of no-confidence motion and the same has been recorded as if the no-confidence motion was passed against the petitioner. Being aggrieved, the writ petition has been filed.

5. By drawing the attention of this Court to Section 18 (5) of the Act, the learned counsel for the petitioner has submitted that the voting in any meeting of the Gaon Panchayat can be done by raising hand, except a meeting where no-confidence is discussed, the matter will be decided by secret ballot. He submits that the aforesaid requirement is a mandatory one and non-fulfillment of the same has rendered the entire action of no-confidence motion non est in law.

6. On the other hand, Shri Handique, learned counsel representing the Department by drawing the attention of this Court to the resolution itself submits that the petitioner himself has acknowledged by putting her signature regarding the procedure adopted and therefore, she cannot be allowed to turn around and challenge the same. With regard to the second submission of incorrect recording, the said plea is apparently frivolous one inasmuch as, the resolution was signed by all the members, including the petitioner.

7. Shri Hussain, learned counsel for the Caveator-private respondents submits that all the 10 members of the Gaon Panchayat are in favour of the no-confidence and are also parties in the Caveat opposing the present petition. He, accordingly submits that even if it is found that there is slight infraction of the rule in so far as the secret ballot is concerned, the same will not make any difference as all the 10 members are before this Court and have expressed their no-confidence on the petitioner.

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8. Rejoining his submission, the learned counsel for the petitioner has submitted that since the proceeding was a result of a conspiracy, the matter may be remanded back for holding a meeting afresh. The learned counsel has also placed reliance on a judgment of the Hon'ble Supreme Court in the case of Laxmi Singh & Ors. Vs. Rekha Singh & Ors. arising out of Special Leave Petition (C) Nos. 10733-10734 of 2019 wherein, the necessity to hold such no-confidence meeting by secret ballot has been reiterated.

9. The rival submissions of the parties have been duly considered and the materials before this Court have been duly examined.

10. Two basic grounds have been urged in this writ petition. The first ground is a legal ground of infraction of Section 18 (5) of the Act which requires holding of any meeting of no-confidence by secret ballot. The second ground is that though the no- confidence motion had actually failed, the resolution has been recorded incorrectly by which prejudice has been caused to the petitioner.

So far as the first ground is concerned, there is no manner of dispute that the mandate of Section 18 of the Act has been held by this Court in a catena of decisions to be a mandatory one. However, the said submission has to be decided on the facts and circumstances of each case. In the instant case, even if an intervention is made on the said ground of not having the no-confidence by secret ballot, in the instant case, all the members, who are 10 in numbers, have filed the Caveat and have opposed the present petitioner.

11. In view of the same, this Court is of the opinion that there will be no substantial change by remand of the matter as the question of no-confidence motion is ultimately a game of numbers and in the present case, all the 10 members are opposing the writ Page No.# 7/7

petitioner.

12. So far as the second ground is concerned, namely, incorrect recording of the resolution, such pleadings are belied by the records itself inasmuch as, the resolution contains not only the signatures of the members but also of the President, who is the writ petitioner. The signatures in the resolution also would indicate that petitioner herself was a party to the procedure adopted for the no-confidence motion to be held by raising of hands. However, that aspect of the matter need not be gone into inasmuch as, this Court has already indicated that no substantial change would be there by remand of the matter.

13. In view of the above, this Court is of the opinion that no case for interference is made out and accordingly, the writ petition is dismissed.

JUDGE

Comparing Assistant