Aminul Hoque vs The State Of Assam And 19 Ors
2022 Latest Caselaw 4317 Gua

                                                                 Page No.# 1/11

GAHC010086082021




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

                        Case No. : WP(C)/3308/2021

         AMINUL HOQUE
         S/O. MONNAT ALI, R/O. VILL. BOWALKAMARI PT-I, P.O. BOWALKAMARI,
         P.S. BILASIPARA, DIST. DHUBRI, ASSAM, PIN-783348.



         VERSUS

         THE STATE OF ASSAM AND 19 ORS.
         REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-
         06.

         2:THE COMMISSIONER AND SECY.
         TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
          DISPUR
          GUWAHATI-06.

         3:THE PRINCIPAL SECRETARY
         TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT
         DISPUR
          GUWAHATI-06.

         4:THE DY. COMMISSIONER

          DHUBRI
          ASSAM.

         5:THE SUB DIVISIONAL OFFICER (CIVIL)
          BILASIPARA DHUBRI
         ASSAM.

         6:THE DHUBRI ZILLA PARISHAD
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REP. BY CHIEF EXECUTIVE OFFICER
DHUBRI ZILLA PARISHAD
ASSAM.

7:THE PRESIDENT DHUBRI ZILLA PARISHAD
 DHUBRI
ASSAM.

8:THE NAYERALGA ANCHALIK PANCHAYAT

REP. BY ITS PRESIDENT MAYERALGA ANCHALIK PANCHAYAT
BILASIPARA
DHUBRI
ASSAM.

9:THE EX-OFFICIO EXECUTIVE OFFICER
 NAYERALGA ANCHALIK PA.CHAYAT
 BILASIPARA CUM BLOCK DEVELOPMENT OFFICER
 NAYERALGA DEVELOPMENT BLOCK BILASIPARA DHUBRI
ASSAM.

10:THE SECRETARY DUBACHURI GAON PANCHAYAT
 P.O. AND P.S. BILASIPARA
 DHUBRI
ASSAM
 783348.

11:AKTAR ALI
 S/O. LT. HAKU SK VILL. DUBACHURI PT.I P.O. BARKANDHA
 P.S. BILASIPARA
 DIST. DHUBRI
ASSAM
 PIN783348.

12:SORIFUN BIBI
W/O. SADEK ALI
VILL. DUBACHURI PT.II
 P.O. BARKANDHA
 P.S. BILASIPARA
 DIST. DHUBRI
ASSAM
 PIN783348.

13:SANWAR HUSSAIN
 S/O. MONU SK
VILL. DUBACHURI PT.II
 P.O. BARKANDHA
 P.S. BILASIPARA
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DIST. DHUBRI
ASSAM
PIN783348.

14:SURAT JAMAL SK

S/O. LT. KUTU SK
VILL. DUBACHURI PT.II
P.O. BARKANDHA
P.S. BILASIPARA
DIST. DHUBRI
ASSAM
PIN783348.

15:JILJILA KHATUN
W/O. YOUSUF ALI
VILL. BOWALKAMARI PT. I
 P.O. BOWALKAMARI
 P.S. BILASIPARA
 DIST. DHUBRI
ASSAM
 PIN783348.

16:NURJAHAN BIBI
W/O. HASHEM ALI
VILL. PATAKHATA PT. I
 P.O. BAGRIBARI
 P.S. GAURIPUR DIST. DHUBRI
ASSAM
 783349.

17:YEAKUB ALI
 S/O. ABDUL MOZID VILL. BOWALKAMARI PT. III
 P.O. BARKHANDHA
 P.S. BILASIPARA
 DIST. DHUBRI
ASSAM
 783348.

18:ASIYA BIBI

W/O. DULAL SK
VILL. BOWALKAMARI PT.III
P.O. BARKHANDHA
P.S. BILASIPARA
DIST. DHUBRI
ASSAM
78334
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            19:SAMIRON BIBI
            W/O- MD. MALEK KUDDUS
            VILL.- BOWALKAMARI PART- I
             P.O.- BOWALKAMARI
             DIST.- DHUBRI
            ASSAM.

            20:JAMSER ALI
             S/O- LT. AFAZ UDDIN
            VILL.- PATAKATA PART- I
             P.O.- BAGARIBARI
             DIST.- DHUBRI
            ASSAM

Advocate for the Petitioner   : MD. M H CHOUDHURY

Advocate for the Respondent : MR. M. NATH

BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioner : Mr. M.U.Mondal. Advocate.

      For the Respondents                   : Mr. K. Gogoi,
                                              Govt. Advocate.
                                              Mr. S. Dutta,
                                              Standing Counsel, P&RD, Deptt.
                                              Mr. J. Abedin. Advocate.


      Date of Hearing                       : 07.11.2022

      Date of Judgement                     : 07.11.2022


                              JUDGMENT & ORDER (ORAL)

Heard Mr. M. U. Mondal, learned counsel for the petitioner. Also heard Mr. K.

Page No.# 5/11

Gogoi, learned State Counsel for the respondent Nos. 1, 4 and 5, Mr. S. Dutta, learned Standing Counsel for the P&RD Department representing the respondent Nos. 2, 3, 6, 9 and 10 and Mr. J. Abedin, learned counsel for the respondent Nos. 11 to 18.

2. The present petitioner was the President of 94 Dubachuri Gaon Panchayat. Being aggrieved by a letter dated 19.12.2020, by which a "No Confidence Motion" was requisition by the 8 (eight) members of the Gaon Panchayat, preferred a writ petition being WP(C) No. 190/2021. The further challenge made in the said writ petition was another letter dated 06.01.2021 by way of which, the Secretary of the Gaon Panchayat had referred the matter of "No Confidence Motion" to the President of Nayer Alga Anchalik Panchayat for holding a special meeting. It was further prayed for setting aside the resolution dated 08.01.2021, by which the "No Confidence Motion" was passed in the said meeting held on 08.01.2021.

3. The basic ground of challenge of the said resolution was that Section 15 (2) of the Assam Panchayat Act, 1994 was violated. This Court by its order dated 05.03.2021 held that delivery of notice for requisition of meeting is mandatory under Section 15(2) of the Assam Panchayat Act, 1994 and non compliance of such mandatory provision and any resolution thereafter is nonest in the eye of law. In view of such finding, this Court set aside the impugned resolution, impugned in WP(C) No. 190/2021. While setting aside, on agreement of the contesting parties, this Court passed the following further order:-

"There is no dispute that the delivery of the requisition to the President is mandatory condition u/s 15(2) of the Assam Panchayat Act, 1994 and non compliance of such mandatory provision and any resolution thereafter is nonest in the eye of law. Accordingly, as agreed to by the counsel of both the parties, the resolution dated 08.01.2021 is set aside. The petitioner as the president Page No.# 6/11

shall give due approval as the President of the Panchayat whereafter a meeting shall be specially convened by the Secretary of the said Gaon Panchayat and for the purpose of convening the said meeting the date of notice of the President shall be taken into consideration as 05.03.2021 whereafter within the next 15 days the meeting shall be convened as per Section 15(1) of the Assam Panchayat Act, 1994".

4. It is the case of the petitioner that by virtue of the judgment of this Court in WP(C) No. 190/2021, the date of notice should be treated as 05.03.2021 and period of 15 days as mandated under Section 15(1) of the Assam Panchayat Act, 1994 for reference to the Anchalik Panchayat expires on 28.03.2021 and, therefore, the Secretary did not have any authority to request the Anchalik Panchayat to hold the meeting inasmuch as he has requested the Anchalik Panchayat to hold the meeting by his communication dated 20.03.2021 and thus the mandate of Section 15(1) of the Assam Panchayat Act, 1994 has been violated.

5. The second ground urged by the learned counsel for the petitioner is the violation of Section 17(3) of the Assam Panchayat Act, 1994 inasmuch as it is the contention of the learned counsel for the petitioner that three clear days notice is required to hold a special meeting by the Gaon Panchayat. The Secretary issued the letter to the Anchalik Panchayat on 20.03.2021 and the Anchalik Panchayat called the meeting on 23.03.2021 and therefore, three clear days was not there. Therefore, in view of the aforesaid and failure of the authorities adhere to the mandatory provision of Section 15(1) and 17(2) of the Assam Panchayat Act, 1994, the entire procedure has been vitiated and accordingly, same is liable to be set aside and quashed and the petitioner be given another chance to hold the "No Confidence Meeting" as requisitioned.

6. Per contra, Mr. Abedin, learned counsel representing the elected members Page No.# 7/11

submits that the argument advanced by the learned counsel for the petitioner cannot be taken note of inasmuch as there is no pleading or any whisper to the affect that there is any violation of provision of Section 15(1) or Section 17(3) of the Assam Panchayat Act, 1994. Taking to the pleadings in the writ petition, Mr. Abedin, learned counsel argues that there is no statement regarding violation of the aforesaid provision of law. He further contends that there is no statement or pleadings that how he prejudice for referring the matter to the President. The petitioner only contents and pleads on the merit of the allegation made against him and the discussions made in the No Confidence Motion and nothing more, submits Mr. Abedin, learned counsel.

7. Mr. Abedin, learned counsel further submits that in the given peculiar facts and circumstances of the present case, a consensus was reached that the President shall hold the meeting within 15 days from 05.03.2021 and the 05.03.2021 shall be treated as notice of the No Confidence Motion to the President. Accordingly, this Court had issued a mandamus directing the President to give due approval and thereafter, a meeting shall be specially convened by the Secretary taking into consideration 05.03.2021 as the notice to the President. However, the conduct of the President itself shows that till 20.03.2021, no meeting was called for and having no alternative, the Secretary had intimated to the Anchalik Panchayat regarding the non holding of the meeting as per Section 15(1) of the Assam Panchayat Act, 1994 and such notice was though dated 20.03.2021, however, it was given to the Block Development Officer on 23.03.2021 i.e. within the period stipulated under Section 15(1) of the Assam Panchayat Act, 1994.

8. Mr. Abedin, learned counsel further contends that the conduct of the petitioner itself disentitles him from any relief from this Court. He further submits that the petitioner has clearly violated the mandamus issued by this Page No.# 8/11

Court and admittedly till 20.03.2021, no approval was granted to the meeting as he had the notice of this Court's order and had the notice that he is to hold the meeting within 15 days from 05.03.2021. Therefore, he ought to have given approval for the holding of the meeting being the President. Therefore, the petitioner is not entitled for any relief at the hands of this Court. In support of such contention, Mr. Abedin, learned counsel relies on a decision of the Division Bench of this Court in the case of Mosira Bibi -Vs- State of Assam and Ors reported in 2006 (4) GLT 460.

9. Mr. Abedin, learned counsel further submits that the provision of Section 17(3) of the Assam Panchayat Act, 1994 is not applicable in the present case inasmuch as the same relates to holding of meeting by the Gaon Panchayat and not by the Anchalik Panchayat and also shall not be applicable to a meeting of "No Confidence Motion" as the same does relate to transaction of business only.

10. This Court given anxious considerations to the submissions made by the learned counsel for the parties.

11. The intent of the order dated 05.03.2021 passed by this Court in WP(C) No. 190/2021 can be summarised as follows:-

I. Section 15(2) of the Assam Panchayat Act, 1994 which provides for giving notice to the President for the purpose of holding a No Confidence Motion is mandatory and non compliance of such mandatory provision and any resolution thereafter is nonest in the eye of law.

II. The Resolution dated 08.01.2021, passing a No Confidence Motion against the present petitioner as President of 94 Dubachuri Gaon Panchayat was in violation of Section 15(2) of the Assam Panchayat Act, 1994 and therefore, the same was nonest and accordingly same was set Page No.# 9/11

aside.

III. The President and the Members who brought the No Confidence Motion, in the aforesaid proceeding agreed that 05.03.2021 (i.e. date of the Judgment) shall be taken as notice of the meeting of the No Confidence Motion.

IV. The Secretary shall specially convene a meeting of No Confidence Motion and the present petitioner as President shall give approval to such meeting.

V. Such meeting shall be held within 15 days from 05.03.2021.

12. The record reveals that till 20.03.2021, no approval was granted by the President to the meeting which was required to be held as per mandate of the order dated 05.03.2021 of this Court.

13. The record also reveals that the letter of the Secretary requesting the Anchalik Panchayat was received by the Block Development Officer on 23.03.2021, though such notice is dated 20.03.2021

14. From the aforesaid facts, it is clear that the present petitioner had the notice that he should held a meeting/give approval for a meeting within 15 days from 05.03.2021. However, there is no pleading in the writ petition, that the petitioner had ever tried to conduct such meeting, or that the Secretary was delaying holding of such meeting rather he pleaded a case that he suddenly came to learn about the resolution and he could learn that the allegations were not properly discussed in the meeting held by the Anchalik Panchayat. Further, the communication of the Secretary reflects that he approached the President but President did not held the meeting.

15. In absence of any pleading that the Secretary had delayed the meeting or Page No.# 10/11

no proposal was given for holding the meeting, this Court is of the view that the petitioner avoided hold the meeting. On the other hand, from the record it is seen that while addressing the President of Anchalik Panchayat, the Secretary had intimated that as per this Court's order, the Secretary approached the President from 12.03.2021 to 15.03.2021 with his staff for approval of holding a special meeting but the President denied to hold the special meeting and verbally instructed him to refer the same to the President of Anchalik Panchayat. Even if, this Court do not go by such verbal direction, however, materials are available on record that the Secretary approached the President and there is no explanation from the President i.e. the present petitioner alleging any malpractice on behalf of the Secretary.

16. In that view of the matter, this Court is of the considered opinion that the time table given by virtue of the judgment of this Court was in the interest of the President. However, he has not complied with such judgment. In that view of the matter, this Court is in agreement with the submission of the learned counsel for the respondent appearing on behalf Ward Members of the Gaon Panchayat that, his case is covered by the judgment of this Court in the case of Mosira Bibi (supra). In Mosira Bibi (supra), the Court held that the appellant in that case having avoided to fulfil its obligation under Section 15(1) of the Assam Panchayat Act, 1994 of approving the proposal submitted by the Secretary of the Gaon Panchayat to convene the special meeting, waved the requirement of holding the meeting within the period stipulated and further held that the power of the High Court under Article 226 of the Constitution of India is not intended to facilitated the appellant who has voluntarily avoided to comply with the requirement of law. In the present case also, this Court is in no ambiguous term under its order dated 05.03.20221 in WP(C) No. 190/2021 directed that the President shall give due approval for a meeting notice of which to be treated as 05.03.2021, however, till 20.03.2021 no such approval Page No.# 11/11

was granted. Thus, the appellant also avoided his responsibility and avoided to comply with the judgment of this Court which was passed in his interest so that a fresh "No Confidence Meeting" can be held. Therefore, this Court is of the considered opinion that the petitioner is not entitled for any relief at the hands of this Court in exercise of its writ jurisdiction.

17. In view of the aforesaid findings, reasons and discussions, this writ petition stands dismissed. Parties to bear their own cost.

18. Records are returned back to Mr. S. Dutta, the learned Standing Counsel for the P&RD Department.

JUDGE

Comparing Assistant