Dhanada Das Bora vs The State Of Assam And 14 Ors
2022 Latest Caselaw 4588 Gua

                                                                 Page No.# 1/6

GAHC010150002020




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

                         Case No. : WP(C)/4530/2020

         DHANADA DAS BORA
         W/O SRI BHUPEN BORA, PRESIDENT JALJALI GAON PANCHAYAT, R/O P.O.
         JALJALI, P.S. MANGALDAI, DIST. DARRANG, ASSAM, PIN-784529



         VERSUS

         THE STATE OF ASSAM AND 14 ORS
         REP. BY THE ADDITIONAL CHIEF SECRETARY, PANCHAYAT AND RURAL
         DEVELOPMENT DEPTT. GOVT. OF ASSAM, GUWAHATI-781006

         2:THE COMMISSIONER
          RURAL DEVELOPMENT DEPTT. GOVT. OF ASSAM
          GUWAHATI-781026

         3:THE DEPUTY COMMISSIONER
          DARRANG
          MANGALDAI PLANNING BRANCH
          P.O. AND P.S. MANGALDAI
          DIST. DARRANG
         ASSAM
          PIN-784125

         4:THE CHIEF EXECUTIVE OFFICER
          DARRANG DISTRICT PARISAD
          P.O. AND P.S. MANGALDAI
          DIST. DARRANG
         ASSAM
          PIN-784125

         5:THE CHAIRMAN
          PACHIM MANGALDAI ANCHALIK PANCHAYAT
          P.O. AND P.S. MANGALDAI
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DIST. DARRANG
ASSAM
PIN-784125

6:THE BLOCK DEVELOPMENT OFFICER
 PACHIM MANGALDAI DEVELOPMENT BLOCK CUM SECRETARY PACHIM
MANGALDAI ANCHALIK PANCHAYAT
 P.O. AND P.S. MANGALDAI
 DIST. DARRANG
ASSAM
 PIN-784125

7:THE SECRETARY
 JALJALI GAON PANCHAYAT P.O. JALJALI
 P.S. MANGALDAI
 DIST. DARRANG
ASSAM
 PIN-784125

8:MINU DAS
 MEMBER CUM VICE PRESIDENT JALJALI GAON PANCHAYAT WARD NO. 6
 DIST.DARRANG
ASSAM
 PIN-784529

9:MADAN SAIKIA
 MEMBERJALJALI GAON PANCHAYAT WARD NO. 6
 DIST.DARRANG
ASSAM
 PIN-784529

10:PINKU SAHARIA
 MEMBERJALJALI GAON PANCHAYAT WARD NO. 6
 DIST.DARRANG
ASSAM
 PIN-784529

11:AMIR HUSSAIN
 MEMBERJALJALI GAON PANCHAYAT WARD NO. 6
 DIST.DARRANG
ASSAM
 PIN-784529

12:RUNU BALA SAIKIA
 MEMBERJALJALI GAON PANCHAYAT WARD NO. 6
 DIST.DARRANG
ASSAM
 PIN-784529
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            13:RUNU BALA SAIKIA
             MEMBER JALJALI GAON PANCHAYAT WARD NO. 6
             DIST.DARRANG
            ASSAM
             PIN-784529

            14:LAKHESWAR DEKA
             MEMBER JALJALI GAON PANCHAYAT WARD NO. 6
             DIST.DARRANG
            ASSAM
             PIN-784529

            15:MANOJ BANIA
             MEMBER JALJALI GAON PANCHAYAT WARD NO. 3
             DIST.DARRANG
            ASSAM
             PIN-78452

Advocate for the Petitioner   : MR. P K SHARMA

Advocate for the Respondent : SC, PNRD




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

21.11.2022 Heard Mr. B.C. Das, learned Senior counsel for the petitioner assisted by Mr. D.A. Kaiyuma, learned counsel. Also heard Mr. B. Haldar, learned counsel for the respondent Nos. 8 to 15 and Mr. N.K. Devnath, learned counsel for the respondent Nos. 1, 2, 4, 6 & 7. Mr. K. Gogoi, learned counsel appears for the respondent No. 3.

2. The petitioner has assailed the resolution adopted in the Special Meeting held on 03.10.2020, expressing No Confidence against the petitioner as the President of the Gaon Panchayat and the subsequent approval given by the Deputy Commissioner.

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3. The petitioner's counsel submits that the entire exercise conducted by the respondents in the procedure followed by them is in violation of Section 15 (1) and 18 (5) of the Assam Panchayat Act, 1994 and as such, the petitioner should be reinstated in the post of President of the Gaon Panchayat. The petitioner's counsel submits that though the petitioner had filed Title Suit No. 32/2020 in the Court of Civil Judge, Darrang, challenging the meeting of the No Confidence Motion and the resolution passed therein, Title Suit No. 32/2020 was dismissed for default, vide order dated 04.08.2022. The Senior counsel for the petitioner submits that dismissal of the case by default amounts to withdrawal of a case, when no petition for restoration of the case is filed. In Title Suit No. 32/2020, the petitioner had not made any application for restoration of the dismissed Title Suit No. 32/2020. As such, the petitioner is not barred from filing this writ petition, on the same subject matter in issue as in Title Suit No. 32/2020. In this regard, he has relied upon the judgment of the Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal M.P. Gwalior & Ors. reported in (1987) 1 SCC 5.

4. The counsels for the respondents submit that the petitioner had filed Title Suit No. 32/2020 in the Court of Civil Judge, Darrang against the requisition made by the private respondents, for having a special meeting on the Motion of No Confidence against the petitioner. An interim order had been passed in Misc.

(j) Case No. 13/2020 arising out of T.S No. 20/2020. However, the interim order was set aside by the Court of the District Judge, Darrang. They further submit that the petitioner's challenge to the No Confidence Motion and the resolutions vide Title Suit No. 32/2020 had been dismissed for default and as such, the petitioner cannot make a challenge to the same in this writ petition.

5. I have heard the learned counsels for the parties.

6. It is an admitted fact that the petitioner's removal from the post of Page No.# 5/6

President of the Gaon Panchayat, vide the resolution and voting in the Special Meeting held on 03.10.2020, had been put to challenge in T.S No. 32/2020, which was dismissed for default by the Court of the Civil Judge, Darrang on 04.08.2022. The said order dated 04.08.2022 has attained finality as on date, as no application for restoration of T.S No. 32/2020 has been made by the petitioner. The submission made by the learned Senior counsel for the petitioner that dismissal for default amounts to withdrawal, as the petitioner has not made any prayer to revoke the dismissal order, is not accepted by this Court, as an order of dismissal for default is different from an order allowing a party to withdraw the Suit. In the case of Sarguja Transport Service (supra), the Apex Court was considering whether a petitioner, after withdrawing the writ petition filed by him in the High Court under Article 226 of the Constitution, without the permission to institute a fresh petition, can file a fresh writ petition in the High Court. The Apex Court held that the petitioner cannot file a fresh petition in the High Court. However, that would not bar the petitioner to approach the Apex Court under Article 32 of the Constitution. This Court is bound by the decision of the Apex Court as referred to Sarguja Transport Service (supra). However, the said case relates to a case of withdrawal and not a case relating to an order dismissing a Suit for default. As such, this Court is of the view that the decision relied upon by the Senior counsel for the petitioner is not applicable to the facts of this case, inasmuch as, it is settled law that a decision is an authority for what it decides and a little difference in facts changes the precedential value of a decision. The facts in this case is different from the facts in Sarguja Transport Service (supra).

7. As stated earlier, the present case relates to an order dismissing the petitioner's T.S No. 32/2020 for default. The petitioner has now come to this Court under Article 226 of the Constitution, by agitating the same issue that was Page No.# 6/6

the subject matter in issue in the T.S No. 32/2020. However, T.S No. 32/2020 had been dismissed for default vide order dated 04.08.2022. In the case of Radhey Shyam & Anr. v. Chhabi Nath & Ors. reported in (2015) 5 SCC 423, the Apex Court has held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution. It further held that challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ under Article 226 of the Constitution.

8. In view of the decision of the Apex Court, which clearly bars challenge to a judicial order by way of a writ petition, this Court is of the view that by applying the said law laid down by the Apex Court, the writ proceeding herein would amount to nullifying and invalidating the order dated 04.08.2022 passed by the learned Court of the Civil Judge, Darrang, which is impermissible in law.

In view of the facts and circumstances of the case, this writ petition is not maintainable and accordingly stands dismissed.

JUDGE

Comparing Assistant