Bonmajh aa Goan Panchayat v. Additional Deputy Commissioner (Planning), Darrang

4. The petitioners have alleged that the respondent No. 5 has indul ged in corrupt practice because of which they have lost confidence in him. As a result, on 7-3-2011, nine members of the said Goan Panchayat submitted represent ation before the Deputy Commissioner, Darrang expressing lack of confidence on t he respondent No. 5. It is the pleaded case of the petitioners that the said req uisition of lack of confidence in the form of the representation dated 7-3-2011 was brought against the respondent No. 5 under the provisions of Section 15(1) o f the Assam Panchayat Act, 1994 (briefly (cid:28)the Act (cid:29) hereafter). According to the petitioners, on the basis of the representation dated 7-3-2011, the authority co ncerned instructed the Vice President of the said Goan Panchayat to hold a speci al meeting in this regard. However, which authority instructed the Vice Presiden t to hold such a meeting has not been indicated in the writ petition. Be that as it may, a special meeting of the said Goan Panchayat was held on 21-3-2011 whic h was presided over by the Vice President, Sri Bakuli Saharia, who is the petiti oner No. 2 in the present proceeding. In that meeting, the no confidence motion against the respondent No. 5 was discussed and it was decided to settle the matt er through secret voting. As per the secret ballot voting, out of the nine exist ing members of the said Goan Panchayat, six voted in support of the no confidenc e motion i.e. against the respondent No. 5 and three voted against the no confid ence motion i.e. in favour of the respondent No. 5. Stating that out of the 10(t en) members of the said Goan Panchayat, one member had resigned, leaving the Goa n Panchayat with nine existing members, the said meeting resolved that as six me mbers out of the nine existing members had supported the no confidence motion ag ainst the respondent No. 5, therefore, the said motion had the backing of 2/3rd of the members and was accordingly accepted. It was also resolved to allow the V ice President to take charge of the said Goan Panchayat. A further decision was taken to inform the matter to the Deputy Commissioner.

5. The petitioners thereafter submitted representation dated 1-4-20 11 before the Deputy Commissioner, Darrang requesting the said authority to take the necessary decision in terms of the resolution adopted. The Additional Deput y Commissioner(Planning), Darrang thereafter passed the impugned order dated 26 -4-2011. He noted that the total strength of the said Goan Panchayat is 10, out of which one member had resigned. Relying on the decision of this Court rendered in the case of Samiruddin Ahmed Vrs. S.D.O, Mangaldoi and Others; reported in A IR 1971 ASSAM & NAGALAND 163, the Additional Deputy Commissioner held that 2/3rd majority of the existing members cannot sustain the no confidence motion as it has to be 2/3rd majority of the total strength of the Goan Panchayat. Accordingl y, the no confidence resolution was treated as having failed. The respondent No. 5 has filed his counter affidavit wherein he 6. has denied the allegation of corruption levelled against him by the petitioners. The respondent No. 5 has pleaded that the procedure adopted in passing the reso lution dated 21-3-2011 was in total violation of the provisions of Section 15 of the Act. He has stated that he was not aware of the representation dated 7-3-20 11 submitted before the Deputy Commissioner. He has further stated that it is al so not known to him that six members supported the no confidence motion against him. He has asserted on oath that no requisition for convening a special meeting as required under Section 15 of the Act was ever placed before him. Therefore, the proceedings of the special meeting held on 21-3-2011 is wholly illegal and i s nonest in the eye of law. Finally, he supports the interpretation given to the expression (cid:28)the total number of members of the Goan Panchayat (cid:29) as appearing in sub-section (1) of Section 15 of the Act by the Additional Deputy Commissioner a nd seeks dismissal of the writ petition.

7. I have heard Mr. B, Chetri, learned counsel for the petitioners, Mr. B. J. Ghosh, learned Govt. Advocate, Assam for the respondent Nos. 1 to 4 a nd Mr. H.R.A Choudhury, learned Sr. counsel for the respondent No. 5.

8. Mr. Chetri, learned counsel for the petitioners submits that the interpretation given by the Additional Deputy Commissioner to the expression (cid:28)t otal number of members of the Goan Panchayat (cid:29) as appearing in sub-section (1) of the Section 15 is wholly erroneous and the same has vitiated the impugned order . He submits that the respondent No. 5 has lost the confidence of six out of nin e existing members and that the no confidence motion was passed by 2/3rd majorit y of the total existing members of the said Goan Panchayat. Therefore, he submit s that by operation of law the respondent No. 5 would be deemed to have vacated his office on the passing of such resolution. Mr. B. J. Ghosh, learned State cou nsel submits that the State has not filed any affidavit as because the facts are not disputed. However, he submits that a purposive interpretation should be giv en to the aforesaid expression so as to make it workable. He further submits tha t Section 15(1) of the Act should be read together with Section 18(5) of the sai d Act which provides that in the case of a no confidence motion, the matter shou ld be decided by secret ballot. He submits that a dead person or a person who ha s resigned from his membership cannot exercise secret ballot. On the other hand Mr. Choudhury, learned Sr. counsel submits that the entire procedure adopted to oust the respondent No. 5 as the President of the Goan Panchayat is contrary to the procedure laid down in section 15 of the Act and, therefore, the resolution dated 21-3-2011 is of no legal consequence. Finally he supports the interpretati on given by the Additional Deputy Commissioner, Darrang to the expression (cid:28)the t otal number of members of the Goan Panchayat (cid:29) as appearing in sub-section (1) of Section 15 of the Act.

9. red.

10. The rival submissions advanced at the Bar have been duly conside Before proceeding further, it would be apposite to have a cursor y glance at the relevant provisions of the Act. Section 6 deals with constitutio n of Goan Panchayat. As per Section 6(1)(a), 10(ten) members of the Goan Panchay at are to be directly elected by the voters of the territorial constituencies, o ne from each constituency. As per Section 6(1)(b), the President of the Goan Pan chayat shall be directly elected by the voters of the territorial constituencies of the Goan Panchayat area in the manner prescribed. As per Section 7, the dura tion of every Goan Panchayat is for a term of five years from the date of its fi rst meeting. Section 10 provides that if any vacancy occurs in the office of the President by reason of death, resignation or removal, the Goan Panchayat shall elect the President again as per Section 6(1)(b) as noted above.

11. As Section 15 is the core issue, the material provisions thereof may be examined in detail. As per sub-section (1) of Section 15, every Presiden t shall be deemed to have vacated his office forthwith when a resolution express ing want of confidence in him is passed by majority of 2/3rd of the total number of members of the Goan Panchayat. Such a meeting is required to be convened by the Secretary of the Goan Panchayat with approval of the President of the Goan P anchayat and should be presided over by the Vice President. In case such a meeti ng is not convened within a period of 15 days from the date of receipt of the no tice, the Secretary of the Goan Panchayat shall within three days refer the matt er to the President of the concerned Anchalik Panchayat, who shall then convene the meeting within seven days and preside over such meeting. In case the Preside nt of the Anchalik Panchayat fails to do so within the specified period, the con cerned Goan Panchayat Secretary shall inform the matter to the Deputy Commission er/ Sub-Divisional Officer(C) as the case may be within three days after the exp iry of the stipulated period. Thereafter the concerned Deputy Commissioner/Sub-D ivisional Officer(C) shall convene the meeting within seven days with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened. In case of his inability to preside over such a meeting, the concer ned Deputy Commissioner/Sub-Divisional Officer(C) may depute one Gazetted office r under him not below the rank of Class-I Gazetted Officer to preside over such a meeting. As per the second proviso, when a no confidence motion is lost, a sec ond such motion would not be allowed within the next six months. As per sub-sect ion (2) of Section 15, the requisition for such a special meeting under sub-sect ion (1) shall be signed by not less than 1/3rd of the total number of members of the Goan Panchayat and thereafter delivered to the President of the concerned G oan Panchayat with information to the Deputy Commissioner of the district. Thoug h sub-section (3) of Section 15 is not relevant for the present purpose, it may however be noted that under the aforesaid provision, a Goan Panchayat President may be removed from office by the concerned Anchalik Panchayat with the approval of the Zilla Parishad for misconduct, negligence, incapacity etc. in the manner prescribed. As per Section 16, a member of a Goan Panchayat may resign his memb ership in writing under his hand addressed to the President of the Goan Panchaya t. Section 17 of the Act deals with the meetings of the Goan Panchayat and as pe r sub-section (5) of Section 18, the voting in any meeting of the Goan Panchayat should be by raising of hands, except in a meeting where a no confidence motion is discussed in which case the voting should be by secret ballot.

12. From the above deliberation, it is seen that the President of th e Goan Panchayat is directly elected by the voters of the territorial constitue ncies of the concerned Goan Panchayat. In the event the said office fails vacant by reason of death, resignation or removal as the case may be, the new Presiden t is also required to be elected in the same manner i.e. by direct election by t he voters of the territorial constituencies of the Goan Panchayat. In the event a no confidence motion is sought to be brought against the President, a requisit ion for holding a special meeting to discuss the motion of no confidence must be signed by not less than 1/3rd of the total number of members of the Goan Pancha yat and should be delivered to the President with information to the Deputy Comm issioner of the district. Such a meeting should be specially convened by the Sec retary of the Goan Panchayat with the approval of the President to be presided o ver by the Vice President. In case such a meeting is not convened within a perio d of 15 days from the date of receipt of notice/requisition, the Secretary of th e Goan Panchayat shall within three days refer the matter to the President of th e concerned AnchaliK Panchayat, who shall then convene the meeting within seven days and preside over such a meeting. In case the President of the Anchalik Panc hayat does not take this step as indicated above, the Goan Panchayat Secretary s hall inform the matter to the Deputy Commissioner/Sub-Divisional Officer(C) with in three days after expiry of the specified period and in such a case, the Deput y Commissioner or the Sub-Divisional Officer(c) shall convene the meeting within seven days with intimation to the Zilla Parishad and Anchalik Panchayat. Having notice the legal position as indicated above, let us exam 13. ine in what manner the requisition of no confidence was given in this case. The notice/requisition dated 7-3-2011 expressing no confidence against the responden t No. 5 was sent to the Deputy Commissioner, Darrang directly with a copy marked to the respondent No. 5, who in his affidavit has categorically denied receivin g any such notice or requisition. It is the pleaded case of the petitioners them selves that (cid:28)the authority concerned (cid:29) instructed the Vice President to hold the special meeting. Not only that, the special meeting held on 21-3-2011 was also n ot as per the procedure laid down in sub-section (1) of Section 15 of the Act.

14. Therefore, it is quite apparent that the procedure prescribed un der sub-section (2) and sub-section (1) of Section 15 of the Act have been given a complete go by while proceeding to hold the special meeting to discuss the no confidence motion against the respondent No. 5. In my considered opinion, the s aid procedural lapses strike at the root of the resolution dated 21-3-2011 where by it was resolved to remove the respondent No. 5 as the President of the Goan P anchayat.

15. Now, coming to the impugned decision and the interpretation give n to the meaning of the expression (cid:28)the total number of members of the Goan Panc hayat (cid:29), I find that a Division Bench of this Court in the case of Samiruddin Ahm ed(supra) had the occasion to deal with a similar provision in the Assam Pancha yat Act, 1959. The relevant portion of Section 27(1)(b) of the Assam Panchayat Act, 1959 read as follows: (cid:28)27(1)(b). A President ** of a Goan Panchayat shall immediately cease to hold o ffice, if by three fifth majority of votes of members present a motion of no-con fidence is passed by them in a meeting of the Goan** Panchayat ** where at least a minimum of two-thirds of total number of members is present. (cid:28) Repudiating the argument that the total number of members of the Goan Panchayat should be understood to mean the existing members functioning a t the relevant time, this Court held that there is no warrant for adding the wor d (cid:28)existing (cid:29) in Section 27 (1)(b) to clarify the words (cid:28)number of members (cid:29). Obse rving that the President immediately ceases to be a President on passing of a mo tion of no confidence against him by 3/5th majority of the minimum requisite mem bers present, this Court held that such a provision under the law resulting in d eprivation of an office has to be strictly construed as it affects the right of an elected office-bearer to continue for the normal span of his office.

16. In my considered opinion, the aforesaid Division Bench judgment of this court is fully applicable to the facts of the present case. As has been noticed above, the President of the Goan Panchayat is directly elected by all th e voters of the territorial constituencies comprising the Goan Panchayat area. H e is not elected by the elected members of the Goan Panchayat amongst themselves like in the case of the President of an Anchalik Panchayat (See Section 37) or the President of a Zilla Parishad (See Section 70). Having noticed the manner in which the President of a Goan Panchayat is to be removed in the event the membe rs lose confidence in him, let us see the provisions relating to such removal of the Anchalik Panchayat President and the Zilla Parishad President. Section 43 o f the Act deals with no confidence motion against the President of the Anchalik Panchayat. As per sub-section (1) of the said section, every President of the An chalik Panchayat shall be deemed to have vacated his office forthwith if a resol ution expressing want of confidence in him is passed by a majority of 2/3rd of t he total number of the directly elected members of the Anchalik Panchayat. Simil ar is the provision in respect of the President of the Zilla Parishad (See Secti on 73). Comparing the three situations, it cannot but be observed that there is a subtle but significant variation in the language used in the three situations. While in the case of Goan Panchayat President, the expression used is (cid:28)by a maj ority of two third of the total number of members (cid:29), in the case of an Anchalik P anchayat President or a Zilla Parishad President, the expression used is (cid:28)by a m ajority of two-third of total number of the directly elected members (cid:29). We cannot presume that the legislature was unmindful of the aforesaid variation in the ex pressions used. Nor can we presume that the legislature was unmindful of the con sequences of the expression (cid:28)total number of members (cid:29) as appearing in Section 15 (1) of the Act. The said provision deals with the removal of a directly elected President from his office before his normal tenure comes to an end and, therefor e, has to be strictly construed. As pointed out by the Division Bench in Samirud din Ahmed(supra) there is no warrant for adding the word (cid:28)existing (cid:29) to clarify t he expression (cid:28)total number of members (cid:29). The said expression being plain, clear and unambiguous, there is no reason to presume that the legislature did not inte nd what the words plainly say. In such a case, the Court should refrain from add ing words to the statute. In fact, there is no necessity to do so in the present case, the language being clear and unambiguous. In view of the above, there is also no necessity to read Sections 15(1) and 18(5) of the Act together or to giv e a (cid:28)purposive (cid:29) interpretation to the said expression as suggested by Mr. B.J. G hosh, the learned State counsel.

17. s submissions had pressed into service three judgments of this court, namely: Mr. Chetri, learned counsel for the petitioners in support of hi (1) 2009 (3) GLT 575 (FB); (Forhana Begum Laskar Vrs. State of Assam and Others) , 2) 2010(3) GLT 291; (Sita Satnami Vrs. State of Assam & Others); and 3) 2011 (2) GLT 459; (Junali Doley (Borah) and others Vrs. State of Assam and ot hers.), I am afraid the issues which arose for consideration before this Court in those decisions are totally different from the issue which has arisen in this case, namely, the interpretation of the expression (cid:28)total number of memb ers (cid:29) as appearing in Section 15(1) of the Act.

18. Considering the matter in its entirety, I am of the view that th e expression (cid:28)total number of members (cid:29) as appearing in Section 15(1) of the Act would mean the prescribed number of members comprising the Goan Panchayat and th e said total number of members cannot fluctuate depending on the resignation, re moval or death of a member. In that view of the matter, the challenge made in th e present writ petition to the order dated 26-04-2011 fails and the writ petitio n is accordingly dismissed. No cost.