WP(C)/3417/2022
2022 Latest Caselaw 2264 Gua

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GAHC010109902022




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

                              W.P.(C) No. 3417/2022
           NUR HUSSAIN
           S/O. LT. FATIK ALI
           VILL. MAHAMMAD PUR
           P.O. KADONG
           DIST. BARPETA
           ASSAM.

                                                      .................. Petitioner

                   -Versus-

          1:   THE STATE OF ASSAM
          THROUGH THE PRINCIPAL AND SECRETARY
          TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT
          DISPUR
          GUWAHATI-06
          ASSAM.
          2:   THE DEPUTY 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
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DIST. BARPETA
ASSAM.
5:    THE PRESIDENT
MANDIA ANCHALIK PANCHAYAT
MANDIA
DIST. BARPETA
ASSAM.
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 HAMID
VILL. RUPAKUCHI
P.O. JANIA
DIST. BARPETA
ASSAM.
9:    KAHINUR KHATUN
W/O. SURAT ZAMAN
VILL. MOHAMMAD PUR
P.O. KADONG
DIST. BARPETA
ASSAM.
10: ABEDA KHATUN
W/O. SURAT ZAMAN
VILL. MAHAMMAD PUR
P.O. KADONG
DIST. BARPETA
ASSAM.
11: RAHIMA KHATUN
W/O. KHALILUR RAHMAN
VILL. TAPAJULI
P.O. KADONG
                                                                                           Page No.# 3/10

                DIST. BARPETA
                ASSAM.
                12: ABDUL KASHEM
                S/O. ABDUS SAMAD
                VILL. SONPURA
                P.O. JANIA DIST. BARPETA
                ASSAM.
                13: SABITA KHATUN
                W/O. SAIDUL ISLAM
                VILL. KALAM PUR
                P.O. KADONG DIST. BARPETA
                ASSAM.
                14: MAHERJAM NESSA
                W/O. KAFIL UDDIN
                VILL. AND P.O. KADONG
                DIST. BARPETA ASSAM.
                15: ABDUL HALIM
                S/O. LT. KHABIR UDDIN
                VILL. MOHAMMAD PUR
                P.O. KADONG DIST. BARPETA
                ASSAM.
                                                                              .................. Respondents

Advocates :

 Petitioner                             : Mr. R. Ali, Advocate
 Respondent nos. 1, 3, 4, 5 & 6      : Mr. N.K. Dev Nath, Standing Counsel,

                                                    Panchayat & Rural Development, Department
 Respondent no. 2                      : Mr. R. Talukdar, Junior Govt. Advocate, Assam
 Respondent nos. 7-15                 : Mr. N.H. Mazarbhuiya, Advocate

 Date of Hearing, Judgment & Order   : 29.06.2022

                                    BEFORE
                     HON'BLE MR. JUSTICE MANISH CHOUDHURY
                             JUDGMENT & ORDER

The petitioner has instituted this writ petition under Article 226 of the Constitution of India assailing a requisition notice submitted by the 9 [nine] nos. of Ward Members of 79 no. Kadong Gaon Panchayat on 28.04.2022 to the Secretary of the said Gaon Panchayat with a Page No.# 4/10

request to convene a special meeting to discuss a motion of no confidence against the petitioner to continue as the President of 79 no. Kadong Gaon Panchayat. The petitioner has also assailed a letter dated 13.05.2022 of the Secretary of 79 no. Kadong Gaon Panchayat, whereby, the Secretary of the Gaon Panchayat had referred the requisition notice dated 28.04.2022 to the President of Mandia Anchalik Panchayat to take necessary steps for convening a special meeting to discuss the motion of no confidence expressed by the 9 [nine] nos. of Ward Members of the Gaon Panchayat vide the requisition notice dated 28.04.2022.

2. In the Panchayat General Election, the petitioner came to be directly elected for the post of President of 79 no. Kadong Gaon Panchayat ['the Gaon Panchayat', for short], District

- Barpeta under the jurisdiction of Mandia Anchalik Panchayat and Barpeta Zilla Parishad in terms of Section 6[1][b] of the Assam Panchayat Act, 1994 ['the Panchayat Act', for short].

3. I have heard Mr. R. Ali, learned counsel for the petitioner; Mr. N.K. Dev Nath, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 3, 4, 5 & 6; Mr. R. Talukdar, learned Junior Government Advocate, Assam for the respondent no. 2; and Mr. N.H. Mazarbhuiya, learned counsel for the respondent nos. 7 - 15.

4. It has been contended on behalf of the petitioner that the requisition notice dated 28.04.2022 was referred by the Secretary of the Gaon Panchayat without placing the requisition notice dated 28.04.2022 before the petitioner to seek his approval to convene the special meeting and without waiting for expiry of the mandatory period of 15 [fifteen] days thereafter, for the petitioner as the President of the Gaon Panchayat to accord approval on the requisition notice submitted by the 9 [nine] nos. of Ward Members. Such reference of the matter by the Secretary of the Gaon Panchayat to the Anchalik Panchyat on 13.05.2022 was beyond the jurisdiction of the Secretary of the Gaon Panchayat. A contention is also advanced to the effect that a writ petition, W.P.[C] no. 922/2021 questioning the validity of a process initiated by an earlier requisition notice dated 07.12.2020 on the matter of a no confidence motion has been pending for adjudication as on 28.04.2022, when the subsequent requisition notice was submitted and therefore such an exercise is not permissible when the earlier process is sub-judice.

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5. At this juncture, it is apposite to refer to the provisions of Section 15 of the Panchayat Act. Section 15 of the Panchayat Act has provided for the matter of no confidence against the President and the Vice-President of the Gaon Panchayat. It is provided, inter alia, in sub- section [1] of Section 15 that every President of a Gaon Panchayat shall deemed to have vacated his office forthwith when a resolution expressing want of confidence in him is passed by two third majority of the total number of members of the Gaon Panchayat. It has also provided for the procedure for convening a special meeting. As per Section 15[1], a special meeting is to be convened by the Secretary of the Gaon Panchayat with the approval of the President of the Gaon Panchayat. In case such a special meeting is not convened within a period of 15 [fifteen] days from the date of receipt of the notice, the Secretary of the Gaon Panchayat is required to refer the matter within 3 [three] days therefrom to the President of the concerned Anchalik Panchayat, who has, in turn, to convene the special meeting within 7 [seven] days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting. In case the President of the Anchalik Panchayat does not take action as above, within the specified 7 [seven] days' time, the concerned Gaon Panchayat Secretary shall have to inform the matter to the Deputy Commissioner/Sub- Divisional Officer [Civil], as the case may be, within 3 [three] days after the expiry of the stipulated 7 [seven] days' time and in such a situation, the concerned Deputy Commissioner/Sub-Divisional Officer [Civil] shall have to convene the special meeting within 7 [seven] days from the date of receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the special meeting so convened. It has further provided that the Deputy Commissioner/Sub-Divisional Officer [Civil], as the case may be, in case of his inability to preside over the special meeting, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer to preside over such special meeting. The requisition notice for such a special meeting shall be signed by not less than one-third of the total number of members of the Gaon Panchayat and shall be delivered to the President or Vice-President, as the case may be, of the concerned Gaon Panchayat with information to the Deputy Commissioner of the District [Section 15(2)].

6. A perusal of the letter dated 13.05.2022 whereby the Secretary of the Gaon Panchayat Page No.# 6/10

had referred the requisition notice to the President of Mandia Anchalik Panchayat, goes to establish that the Secretary of the Goan Panchayat received the requisition notice from the 9 [nine] nos. of Ward Members of the Gaon Panchayat on 09.05.2022. Stating that it did not get approval from the President of the Gaon Panchayat to convene the special meeting, the Secretary of the Gaon Panchayat had referred the matter to the President of Mandia Anchalik Panchayat on 13.05.2022 without waiting for expiry of 15 [fifteen] days. Notwithstanding the contention of the petitioner that requisition notice dated 28.04.2022, was never placed before him through the official channel, if one takes the date, 09.05.2022 as the date when the Secretary of the Gaon Panchayat had placed the matter before the President of the Gaon Panchayat i.e. the petitioner seeking his approval for convening the special meeting in terms of Section 15[1] of the Assam Panchayat Act, 1994, then also the 15 [fifteen] days would have expired on 24.05.2022. The petitioner has contended that the requisition notice dated 28.04.2022 was never placed before him by the Secretary of the Gaon Panchayat through the official channel at any time.

7. There is no dispute to the fact that on 28.04.2022, 9 [nine] nos. of Ward Members of 79 no. Kadong Gaon Panchayat had submitted the requisition notice in writing before the Secretary of the Gaon Panchayat with a request to convene a special meeting expressing want of confidence in the President of the Gaon Panchayat i.e. the petitioner and had requested to take necessary action in that regard. The Ward Members had brought a number of allegations against the petitioner in that requisition notice.

8. The manner in which a requisition notice is to be brought before the President of a Gaon Panchayat has been deliberated upon by a Division Bench of this Court in Ali Ahmed Mazumdar vs. State of Assam and others , reported in 2011 [3] GLT 396. In Ali Ahmed Mazumdar [supra], it has been laid down that receipt of a notice of no confidence motion by the Secretary of the Gaon Panchayat on behalf of the President of the Gaon Panchayat cannot be construed as due notice to the President and the period of 15 [fifteen] days contemplated under Section 15 [1] of the Assam Panchayat Act would be counted only from the date of bringing the notice to personal knowledge of the President of the Gaon Panchayat formally through official note in official file and not otherwise. Another Division Bench judgment in Page No.# 7/10

Kamrul Islam Laskar vs. State of Assam , reported in 2017 [5] GLT 829, has followed the principle laid down in Ali Ahmed Mazumdar [supra] . In Kamrul Islam Laskar [supra], the requisition notice dated 27.12.2016, received by the Secretary of the Gaon Panchayat on the same day, was put up before the President on 29.12.2016 through an office file and in that context, it has been held that the 15 [fifteen] days period has to be computed from the date of receipt of notice or the date of bringing the notice to the knowledge of the President, as qualified in Ali Ahmed Mazumdar [supra].

9. It is, thus, clear that after placing a requisition notice, received from the requisite number of not less than one-third of the total number of members of the Gaon Panchayat expressing want of confidence in the President of the Gaon Panchayat, before the President of the Gaon Panchayat seeking approval for convening the special meeting, the Secretary of the Gaon Panchayat can assume jurisdiction to refer the matter to the President of the Anchalik Panchayat only after expiry of 15 [fifteen] days from placing the matter before the President of the Gaon Panchayat through official channel. If the Secretary of the Gaon Panchayat before expiry of the period of 15 [fifteen] days, refers the matter to the President of the Anchalik Panchayat, then the same would be held as transgression of the statutory provisions contained in Section 15[1] of the Panchayat Act.

10. When viewed in the above context, the letter dated 13.05.2022 is looked at, it is clear that the Secretary of the Gaon Panchayat has clearly stated therein that he received the requisition notice from the 9 [nine] nos. of Ward Members of the Gaon Panchayat only on 09.05.2022. By the letter dated 13.05.2022, the Secretary of the Gaon Panchayat had referred the requisition notice to the President of the Anchalik Panchayat with the request to convene the special meeting for discussing the motion of no confidence against the petitioner. The same clearly goes to establish that the Secretary of the Gaon Panchayat did not wait for 15 [fifteen] days time to expire and as such, sending the matter by the Secretary of the Gaon Panchayat to the President of the jurisdictional Anchalik Panchayat is clearly without any authority and jurisdiction.

11. It has been contended by the learned counsel for the petitioner that there was a Page No.# 8/10

requisition notice dated 07.12.2020 and the matter relating to the said requisition notice in relation to no confidence motion was sub-judice before this Court in a writ petition, W.P.[C] no. 189/2021 and an interim order has been operating in respect of a resolution passed in a special meeting, held on 30.12.2020, on the basis of the requisition notice dated 07.12.2020 and as such, the subsequent requisition notice dated 28.04.2022 is not permissible in law as it would amount to a parallel proceeding by the administrative authority. The said submission is not to be countenance. The requisition notice dated 07.12.2020 and the requisition notice dated 28.04.2022 are separate. The second proviso to sub-section [1] of Section 15 has provided that when a no confidence motion is lost, no such motion shall be allowed in the next 6 [six] months. The time gap between the requisition notice dated 07.12.2020 and the requisition notice dated 28.04.2022 is more than one year and the move initiated by the requisition notice dated 28.04.2022 does not attract the bar contained in the second proviso to sub-section [1] of Section 15. The subsequent proceeding initiated by the requisition notice dated 28.04.2022 does not seem to be a parallel proceeding in a sub-judice matter. The special meeting pursuant to the requisition notice dated 07.12.2020 was held on 30.12.2020 and irrespective of the outcome in the said special meeting, there appears to be no statutory prohibition to initiate a fresh process by a valid requisition notice, submitted beyond the limit of 6 [six] months from the date of any earlier special meeting, against an elected office- bearer who seemed to have lost the support and confidence of requisite majority and the same does not seem to be any parallel proceeding. In such view of the matter, the above submission of the learned counsel for the petitioner is not acceptable.

12. In the light of the above discussions and for the reasons assigned therein, the action initiated by the letter dated 13.05.2022 is liable to be interfered with and the same is accordingly interfered with. Since the letter dated 13.05.2022 is set aside, consequently the action taken on the basis of the letter dated 13.05.2022 is also adjudged as unsustainable in law.

13. The learned counsel for the respondent nos. 7 - 15 has contended that it is clearly demonstrable from submissions of requisitions, on two occasions, by 7 [seven] nos. of elected Ward Members on the first occasion on 07.12.2020 and by 9 [nine] nos. of Ward Page No.# 9/10

Members on the second occasion on 28.04.2022, which in itself is more than two-third majority of the total number of members of the Gaon Panchayat, that the President of the Gaon Panchayat has lost confidence of the requisite majority. The process initiated by the requisition notice dated 28.04.2022 has been invalidated herein due to failure to adhere to the mandatory procedural formality which is not a motion lost and the process can be furthered from the stage of the requisition notice once again. In support of such contentions, reliance is placed in the decisions of this Court in Rita Rani Dushad vs. The State of Assam and others, reported in 2016 [4] GLT 905; Mocklishur Rahman Laskar vs. State of Assam and others, reported in 2017 [4] GLT 933; and W.P.[C] no. 4921/2021 [ Sushama Nath vs. The State of Assam and others], decided on 04.10.2021.

14. Having regard to the entire conspectus of background fact situation obtaining in the case in hand, this Court is of the considered view that it cannot be oblivious of the fact that the requisition notice dated 28.04.2022 has been submitted by 9 [nine] nos. of Ward Members, which is more than two-third majority of the total number of members of the Gaon Panchayat, expressing want of confidence against the President of the Gaon Panchayat i.e. the petitioner. As the process subsequent to requisition notice has been invalidated due to procedural irregularities, this Court, thus, is of the considered view that it would be failing in its duty in exercising its power under Article 226 of the Constitution of India if this Court does not direct the petitioner to hold a special meeting to decide the no confidence motion brought against the petitioner on merit.

15. In the light of the above and taking note of the directions made in Rita Rani Dushad [supra] and Mocklishur Rahman Laskar [supra], while allowing the writ petition to the extent indicated above, it is directed that the President of 79 no. Kadong Gaon Panchayat i.e. the petitioner will convene a special meeting in the office of the Gaon Panchayat by serving the requisite notices upon all the stakeholders, fixing the time and date of such special meeting. The notice for such meeting shall be issued by the petitioner within a period of 15 [fifteen] days from today. In order to ensure that the proceedings in the special meeting are carried out properly, the Deputy Commissioner, Barpeta shall depute a Gazetted Officer not below the rank of Class-I, as an observer for the purpose of the special meeting.

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16. Until the special meeting to discuss the no confidence motion against the petitioner is held and the no confidence motion is decided, the petitioner will continue to function as the President of 79 no. Kadong Gaon Panchayat but shall not take any major decision on financial matters.

17. The writ petition is allowed to the extent indicated above with the afore-mentioned observations and directions. No cost.

JUDGE

Comparing Assistant