High Court · 2009

In the first writ petition, the aforesaid notices dated 6.3.2009, one ca 5. nceling the No-confidence Motion and the other re-convening the same on 12.3.200 9 are under challenge. The writ petition was entertained by order dated 9.3.2009 and interim order was passed providing that while the meeting convened on 12.3. 2009 would be held as scheduled but the result of the No-confidence Motion shoul d not, without leave of the court, be acted upon until 18.3.2009. The matter was taken up on 18.3.2009 and it appears that the interim order passed earlier was not extended.

6. In the mean time, the petitioner filed the second writ petition challeng ing the legality and validity of the resolution adopted in the meeting held on 1 2.3.2009 approving the No-confidence Motion against the petitioner. The further challenge made is the letter dated 12.3.2009 addressed to the Deputy Commissione r, Hailakandi by the Secretary-cum-Executive Officer, Hailakandi Anchalik Pancha yat, forwarding the copy of the No-confidence Motion resolution against the peti tioner adopted on 12.3.2009. I have heard Mr. A.M. Mazumdar, learned senior counsel assisted by Dr. B 7. . Ahmed, learned counsel for the petitioner in both the writ petitions. I have a lso heard Mr. B.C. Das, learned senior counsel assisted by Mr. P.K. Deka, learne d counsel representing the private respondents at whose behest the No-confidence Motion has been passed. I have also heard Ms. R. Chakraborty, learned Additiona l Senior Government Advocate.

8. The only issue involved in the writ petitions is as to whether the proce dure envisaged Under Section 15 and 18 of the Assam Panchayat Act, 1994 towards processing and finalizing the No-confidence Motion against the petitioner has be en violated or not. While answering the issue, the further issue which necessari ly arises is as to whether the said procedure prescribed in Section 15 and 18 of the act is mandatory in nature or only directory.

9. While Mr. Mazumdar, learned counsel for the petitioner upon a reference to three decisions of this court reported in 2004 (Suppl.) GLT 717 (Basanti Das Vs. State of Assam and others ; 2004 (3) GLT 361 (Aleya Khatun & Ors. Vs. State of Assam and Ors.) and 2006 (1) GLT 46 (Mumtaz Rana Laskar & Ors. Vs. State of Assam & Ors), submitted that the procedure envisaged towards processing and ado pting a No-confidence Motion is mandatory in nature, Mr. B.C. Das, learned senio r counsel representing the private respondents argued that said procedure is onl y directory. He has also placed reliance on the decision in Mumtaz Rana Laskar ( Supra) and the one reported in (2006)2GLR83 (Abul Hussain & Ors. Vs. State of As sam & Ors). He further submitted that whatever may be the procedure, unless any prejudice is shown by the petitioner, any minor variation of such procedure can not frustrate the resolution adopted by the majority of the members towards pass ing the No-confidence Motion against the petitioner.

10. In the instant case, the requisition dated 19.2.2009 by 8(eight) out of 10(ten) members of the Gaon Panchayat was acted upon and the meeting was notifie d to be held on 8.3.2009 by letter dated 4.3.2009. However, the meeting was canc elled on 6.3.2009 as per the direction of the Anchalik Panchayat. Thereafter the Anchalik Panchayat issued another notice on the same date i.e. 6.3.2009 notifyi ng the meeting to be held on 12.3.2009 to discuss the No-confidence Motion. On 1 2.3.2009, the No-confidence Motion against the petitioner was discussed and all the eight members who placed the requisition adopted the resolution expressing t heir no-confidence against the petitioner.

11. Section 15(1) of the Act requires convening of the meeting by the Secret ary of the Gaon Panchayat and in case the meeting is not convened within a perio d of 15 (fifteen) days from the date of receipt of the notice, the Secretary of the Gaon Panchayat shall within 3(three) days, refer the matter to the Anchalik Panchayat, who shall convene the meeting within 7(seven) days from the date of r eceipt of the information from the Secretary of the Gaon Panchayat.

12. In the instant case, the first part of the requirement of Section 15 was duly complied with and the meeting was convened within 15 days from the date of receipt of the No-confidence requisition notice. However, the meeting was cance lled and could not be held on 6.3.2009 and thereafter on the same date, the Anch alik Panchayat notified the meeting to be held on 12.3.2009. If a very technical view of the matter is taken i.e. only in case of meeting being not convened wit hin a period of 15 days from the date of receipt of the notice, only then the ju risdiction falls with the Anchalik Panchayat and not otherwise, only then, the j urisdiction exercised by the Anchalik Panchayat can be said to be irregular. How ever, it will have to be borne in mind that such jurisdictional affair is only p rocedural.

13. Due to some reasons, the meeting could not be held on the notified date i.e. 6.3.2009 and it was of that account, the Anchalik Panchayat assumed its jur isdiction to notify the meeting to discuss the No-confidence Motion and the meet ing was held on 12.3.2009. It is an admitted position that on 12.3.2009, the No- confidence Motion against the petitioner was discussed and all the eight members who placed the requisition, adopted resolution to pass the motion against the p etitioner. In that kind of situation, it cannot be said to be a case of wholesom e jurisdictional error so as to contend that the action on the part of the Ancha lik Panchayat was not within jurisdiction and/ or the Anchalik Panchayat assumed the jurisdiction not vested in it. It is in the above context Mr. Das, learned counsel for the private resp 14. ondents has placed reliance on the Division Bench decision of this court in Mumt az Rana Laskar (Supra). By the said decision, the view expressed by the learned Single Judge in Aleya Khatun & Ors (Supra) has been overruled and the view expr essed by the learned Single Judge in Mumtaz Rana Laskar (Supra) has been upheld. While in Basanti Das (Supra), the view taken was that the procedure laid down i n section 15 of the Act is mandatory in nature but in Mumtaz Rana Laskar (Supra) , the view taken by the Division Bench was that procedure envisaged is only dire ctory. The view adopted in Aleya Khatun (Supra) was also the view adopted in Ba santi Das (Supra).

15. The Division Bench of this court in the aforesaid decision in Mumtaz Ran a Laskar has held that the procedure prescribed in Section 15 is only directory . Although Mr. Mazumdar, learned counsel for the petitioner strenuously argued t hat the said case will have to be understood in the context in which it was deli vered but on a total reading of the details and even otherwise also I am of the considered opinion that strict adherence to the procedure laid down in Section 1 5, which is also not substantive cannot defeat the ultimate result of the proces s of No-confidence Motion.

16. According to the petitioner, the No-confidence Motion meeting convened o n 6.3.2009 could not have been cancelled on 6.3.2009 and re-convened on 12.3.200 9 by the Anchalik Panchayat. If the same could have been done by the Gaon Pancha yat, I see no reason as to why the higher authiorty i.e. the Anchalik Panchayat could not do so, more particularly, when it is not a case that the Anchalik Panc hayat is not authorized and empowered to do so. Section 15(1) of the Act itself provides that if the meeting is not held within the stipulated period, the Ancha lik Panchayat will hold the same. It is an admitted position that, whatever may be the reason, the meeting could not be held on 6.3.2009. In such a situation, i f the Anchalik Panchayat assumed the jurisdiction as per the provision of Sectio n 15(1) and in absence of any prejudice being shown, it cannot be said to be a c ase of any injustice to the petitioner.

17. Apart from the aforesaid purported procedural irregularity, the petition er has not projected any other ground. It is not her case that had the meeting n ot been cancelled by the Gaon Panchayat and thereafter convened by the Anchalik Panchayat, the No-confidence Motion against her would have been defeated.

18. We have to look into what actual prejudice has been caused to the petit ioner in processing and finalizing the No-confidence Motion. It is not the case of the petitioner that any particular right has been denied to her. Where on the admitted or indisputable fact, under the scheme of the Assam Panchayat Act, 199 4, only one conclusion is permissible i.e. the No-confidence Motion has been pas sed against the petitioner, the writ court exercising its power of judicial revi ew under Article 226 of the Constitution of India, may not issue its writ as has been prayed for by the petitioner.

19. The basic concept is fare play in action, administrative, judicial or qu asi-judicial. The concept of fare play in action must depend upon particular lis if there be any, between the parties. In the instant case, it is not even the c ase of the petitioner that it is a case of any foul play and or deviation from f air play. The objective of the procedural mandate in Section 15 and 18 of the Ac t is to ensure a fair deal to the person whose rights are going to be affected.

20. In Dhirendra Nath Gorai Vs. Sudhir Chandra Ghosh reported in AIR 1964 SC 1300, the Apex Court observed thus :- (cid:28)Where the court acts without inherent jurisdiction, a party affected ca nnot by waiver confer jurisdiction on it, which it has not. Where such jurisdict ion is not wanting, a directory provision can obviously be conceived in the publ ic interests, but in the interests of the party that waives it. In the present c ase the executing court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or i n the interests of the person affected by the non-observance of the provision. I t is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of Section 35 of the Act, which is really i ntended to protect the interests of a judgment-debtor and to see that a larger e xtent of his property than is necessary to discharge the debt is not sold. Many situation may be visualized when the judgment-debtor does not seek to take advan tage of the benefit conferred on him under Section 35 of the Act. (cid:29)

21. Now coming to the case in hand, the question is, whether setting aside t he impugned orders/ resolution on the alleged ground of violation of the procedu re envisaged under Section 15 & 18 of the Act be in the interest of justice or w ould be its negation. In my respectful opinion, it would be the later. Justice m eans justice between both the parties. The interest of justice equally demand th at technicalities and irregularities which do not occasion failure of justice ar e not allowed to defeat the ends of justice. Particulars of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achiev e the very opposite end. That would be a counter-productive exercise.

22. In State Bank of Patiala Vs. S.K. Sharma reported in 1996 (3) SCC 364, t he Apex Court dealing with the tussle between the mandatory/substantive provisio n and procedural provision observed thus :- (cid:28)An order passed imposing a punishment of an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/regulations/statut ory provisions governing such enquiries should not be set aside automatically. T he Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. In the case of a procedural provision which is not of a mandatory charac ter, the complaint of violation has to be examined from the standpoint of substa ntial compliance. Be that as it may, the order passed in violation of such a pro vision can be set aside only where such violation has occasioned prejudice to th e delinquent employee. While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ulti mate and overriding objective underlying the said rule, viz., to ensure a fair h earing and to ensure that there is no failure of justice. It is this objective w hich should guide them in applying the rule to varying situation that arise befo re them (cid:29). It was argued by Mr. Mazumdar, learned counsel for the petitioner that s 20. ince the No-confidence Motion has been passed in violation of Section 18 of the Act, same is not tenable in law. As per Section 18(5) of the Act, the voting in any meeting of the Gaon Panchayat, if required, shall be by raising of hands, ex cept in the meeting where No-confidence Motion is discussed, where the matter wi ll be decided by secret ballot. According to Mr. Mazumdar, since the secret ball ot procedure was not followed, the entire exercise towards passing the resolutio n is vitiated. The question of secret ballot will come if there is division of v otes. When all the eight requisitionists favoured the resolution of No-confidenc e against the petitioner, there was no question of going for any secret ballot. None of the requisitionists has made any grievance against the procedure adopted . Since all the members present supported the resolution adopted in the No-confi dence Motion against the petitioner, there was no occasion to arrive at a decisi on by secret ballot. Thus, on this count also, the plea of the petitioner fails.

23. For all the aforesaid reasons, I do not find any merit in the writ petit ions. Both the writ petitions are dismissed without, however, any order as to co sts.