Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 6 Ors on 30 March, 2022
Page No.# 1/5
GAHC010062782021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/922/2021
SADEK ALI AND 5 ORS.
S/O. LATE ABDUL HAMID, VILL. RUPAKUCHI, P.O. JANIA, DIST. BARPETA,
ASSAM, PIN- 781314
2: SAMIRAN BEGUM
W/O- ABDUL HALIM
VILL- RUPAKUCHI
P.O. KADANG
DIST.- BARPETA
ASSAM
3: KAHINOOR KHATUN
W/O- SURAT JAMAL
VILL- MAHAMMAD PUR
P.O. KADANG
DIST.- BARPETA
ASSAM
4: ABEDA KHATUN
W/O- DELOWAR HUSSAIN
VILL- TAPAJULI
P.O. KADANG
DIST.- BARPETA
ASSAM
5: RAHIMA KHATUN (VP)
W/O- KHALILUR RAHMAN
VILL- TAPAJULI
P.O. KADANG
DIST.- BARPETA
ASSAM
6: ABDUL KASHEM
S/O- ABDUS SAMAD
Page No.# 2/5
VILL- SONPURA
P.O. JANIA
DIST.- BARPETA
ASSAM
PIN- 78131
VERSUS
THE STATE OF ASSAM AND 6 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
6:THE SECRETARY
79 NO. KADONG GAON PANCHAYAT
KADONG
P.O. KADONG
P.S. BARPETA
DIST.- BARPETA
ASSAM
7:NUR HUSSAIN
S/O. LATE FATIK ALI
R/O. VILL. MAHAMMAD PUR
P.O. KADONG
DIST. BARPETA
Page No.# 3/5
ASSA
Advocate for the Petitioner : MR. N H MAZARBHUIYAN
Advocate for the Respondent : MR A ALI
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 30.03.2022
Heard Mr. N.H. Mazarbhuiyan, learned counsel for the applicants; Mr. A. Bhattacharya,
learned counsel for the opposite party nos. 1, 3, 4 and 6; Mr. B. Deori, learned Junior
Government Advocate, Assam for the opposite party no. 2; and Mr. R. Ali, learned counsel for
the opposite party no. 7-writ petitioner.
2. The opposite party no. 7 as the writ petitioner, has preferred the connected writ
petition, W.P.[C] no. 189/2021 challenging inter alia an impugned resolution adopted in a
special meeting convened and held on 30.12.2020, to discuss a motion of no-confidence
brought against him as the President of 79 No. Kadang Gaon Panchayat by 7 [seven] nos. of
Ward Members of the said Gaon Panchayat.
3. Mr. Mazarbhuiyan, learned counsel for the applicants has submitted that though 79 No.
Kadang Gaon Panchayat is to be consisted of a total 10 [ten] nos. of Ward Members, but at
the relevant point of time, there were only 9 [nine] nos. of Ward Members. In such situation,
the majority to pass a motion of no-confidence against the President to the Gaon Panchayat
is to be taken as 6 [six]. Since the impugned resolution was passed by 6 [six] nos. of Ward
Members out of the existing 9 [nine] nos. of War Members of the Gaon Panchayat against
the writ petitioner, it is to be held that the writ petitioner did not have the required majority
to continue as the President of the Gaon Panchayat.
4. On the other hand, Mr. Ali, learned counsel for the opposite party no. 7-writ petitioner,
has submitted that apart from the said issue which has been urged on behalf of the
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applicants here, there were infractions of the statutory prescriptions contained in the Assam
Panchayat Act, 1994. It is submitted by him that notice convening the special meeting on
30.12.2020 was issued only on 28.12.2020 without clear 3 [three] days prior notice in terms
of sub-section [3] of Section 17 of the Assam Panchayat Act, 1994. It is his further contention
that the Secretary of the Gaon Panchayat had himself admitted in his letter dated 24.12.2020
while forwarding the matter to the President of Anchalik Panchayat, that he put up the
requisition submitted by the Ward Members through office file/note sheet before the
President only on 09.12.2020 and as such, the period of 15 [fifteen] days did not expire on
24.12.2020. It is also his submission that it is the total nos. of Ward Members of the Gaon
Panchayat which has to be taken into consideration to count as to whether the resolution has
been passed with majority or not. These issues also require to be determined in the writ
petition.
5. As the applicants have sought vacation of the interim order dated 12.01.2021, it will
be opposite to extract the relevant excerpts from of the said order dated 12.01.2021 :-
" 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.
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
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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."
6. From the notice dated 28.12.2020, it prima facie appears that there was no clear 3
[three] days notice, as required in sub-section [3] of Section 17 of the Assam Panchayat Act,
1994, for convening the special meeting on 30.12.2020. The letter of the Secretary of the
Gaon Panchayat mentioned that the Secretary put up the requisition before the President of
the Gaon Panchayat through official channel only on 09.12.2020, meaning thereby, the
Secretary would have got the jurisdiction to forward the matter to the President of the
Anchalik Panchayat only after 24.12.2020. Having perused the contents of the interim order
dated 12.01.2021, quated above, this Court, at this stage, does not find any good and
sufficient reason to depart from the prima facie view taken in the said interim order dated
12.01.2021.
7. In the above view of the matter, this interlocutory application seeking vacation of the
interim order dated 12.01.2021 having found not merited, is dismissed.
JUDGE
Comparing Assistant
