High Court · 2012

The respondents 6 to 12 have filed their counter affidavit. The 7. said seven respondents are elected members of the Gaon Panchayat and are the req uisitionists who had made the requisition dated 22-12-2010. They have stated tha t the special meeting was convened as per the order of the Deputy Commissioner i n terms of their requisition. The meeting was presided over by the respondent No .4. In that meeting, all the seven requisitionists expressed no-confidence again st the President. Though the no-confidence motion was successfully adopted, the said officer kept the matter pending in her office, which compelled the petition ers to move this Court in W.P.(C) No.3641/2011. When notice was issued in that c ase, impugned order dated 27-09-2011 was passed. The petitioner right from the b eginning tried to avoid holding of special meeting and he was instrumental in ge tting the matter delayed at the level of the Deputy Commissioner. It is further stated that on 10-10-2011 the charge of the office of President of the Gaon Panc hayat was handed over to the Vice-President i.e. the respondent No.6 and on and from the said date she is discharging duty as President of the Gaon Panchayat.

8. The State respondents have not filed any counter affidavit. Heard Dr. B. Ahmed, learned Counsel for the petitioner. Also hea 9. rd Mr. H. Rahman, learned Government Advocate, Assam as well as Mr. M.H. Rajbarb huyan, learned Counsel appearing for the private respondents 6 to 12. Dr. Ahmed, learned Counsel for the petitioner submits that the i 10. mpugned order dated 27-09-2011 is of no legal consequence in as much as there is no legal requirement for according approval to a resolution of no-confidence. He vehemently argued that the procedure prescribed u/s 15 of the Assam Panchayat Act, 1994 (the Act) was given a complete go-bye, including the time schedule me ntioned therein. He further submits that there was no voting in the meeting held on 31-05-2011, not to speak of voting by secret ballot as is the requirement. H e therefore submits that this Court should interfere in the matter and allow the petitioner to continue as the President of the Gaon Panchayat. In support of hi s submissions, Dr. Ahmed has referred to the following decisions of this Court : -

3. 2004 (3) GLT 361; (Aleya Khatun and Ors. Vrs. State of Assam and Ors.), 2004 (Supp.) GLT 717;(Basanti Das Vrs. State of Assam and Ors.)’ 2010 (3) GLT 415; (Karun Kanti Malakar and Ors Vrs. Nosir Ahmed Mazumdar and Ors); and

4. 2010 (5) GLT 103; (Nosir Ahmed Mazumder Vrs. State of Assam and Ors.).

11. Opposing the above submissions made on behalf of the petitioner, Mr. Raj-barbhuyan, learned Counsel for the private respondents submits that it is an admitted position that seven out of ten members of the Gaon Panchayat have lost confidence in the President. According to him, the petitioner had tried ev ery trick in her bag to avoid the inevitable but ultimately failed. When seven o ut of ten members, which is more than two third of the total number of members o f the Gaon Panchayat, have expressed no-confidence against the petitioner, she c annot continue to remain as President which would not only be against the letter and spirit of the Act but against all democratic norms as well. He has placed r eliance on the following decisions:- 1. 2006 (1) GLT 9;( Mumtaz Rana Laskar Vrs. State of Assam & Ors),

5. 2006 (1) GLT 46;(Mumtaz Rana Laskar & Ors. Vrs. State of Assam), 2009 (3) GLT 451;(Forhana Begum Laskar Vrs. State of Assam and Ors.), 2010 (4) GLT 593;(Dipali Deka Vrs. State of Assam)’ and 2010 (5) GLT 117;(Akabbar Ali Vrs. State of Assam). Mr. Rahman, learned State Counsel supports the stand of the priv 12. ate respondents and submits that in the facts and circumstances of the case, the challenge to the order dated 27-09-2011 was more of form than of substance. He has produced one file containing one proceeding book and some papers including t en pages of note sheet.

13. The submissions of the learned counsels have been considered. Section 6 of the Act provides that the Gaon Panchayat shall cons 14. ist of ten members, including the President, to be directly elected. Normally an d as a general rule, procedure cannot override the substance. But in the case of removal of the President, he being directly elected as such, adherence to the p rescribed procedure is insisted upon. Section 15 of the Act deals with removal of the Preside 15. nt. If a no-confidence motion against the President is passed by a majori ty of two third of the total number of members of the Gaon Panchayat, he shall b e deemed to have vacated his office forthwith. As per Section 15(2) of the Act, requisition for such a meeting should be signed by not less than one third of th e total number of members of the Gaon Panchayat and should be delivered to the P resident or the Vice President as the case may be with information to the Deputy Commissioner. Such a meeting shall be specially convened by the Secretary of t he Gaon Panchayat with the approval of the President. If the motion is against t he President, such meeting shall be presided by the Vice President. If such meet ing is not held within fifteen days, a procedure is laid down for the Secretary to follow. Such meeting can be held by giving three days notice as per Section 1 7(3) of the Act. Under section 18(5) of the Act, where in a meeting a no-confide nce motion is discussed, the matter should be decided by secret ballot.

16. It is true that in the present case, procedure as prescribed u/s 15 of the Act including the time schedule provided therein was not adhered to. But for that the private respondents cannot be blamed. It is highly improbable t hat the private respondents 6 to 12, who had signed the requisition to hold the special meeting of the Gaon Panchayat to discuss no-confidence motion against th e petitioner, would themselves not hold the meeting or not follow the prescribed procedure as such a course of action would defeat their very objective. The fac t that the meeting was not held at all the three levels of Gaon Panchayat, Ancha lik Panchayat and Zilla Parishad and the further fact that the matter was consid erably delayed at the level of the Deputy Commissioner would suggest that such d elay was engineered to enable the petitioner to continue as the President. The d elay is not insignificant. The Zilla Parishad had sent the requisition to the De puty Commissioner on 25-01-2010. The special meeting was held four months therea fter on 31-05-2011. Even thereafter, there was delay of more than three months when the Additional Deputy Commissioner finally passed the order dated 27-0 9-2011 after the respondents 6 to 12 filed the writ petition before this Court.

17. This Court has perused the proceeding book which surprisingly sh ows signature of eleven persons in the column (cid:28)members present (cid:29) though the Gaon Panchayat has ten members. The officer who presided over the special meeting (re spondent No.4) while noting that seven members had supported the no-confidence m otion, however, expressed the view that the requisition dated 22-12-2010 was not addressed to the President but addressed to the Secretary and, therefore, inval id. Though seven members had supported the no-confidence motion, the concerned o fficer failed to adopt any resolution in this regard. On top of it, she observed that the no-confidence against the petitioner (cid:28)cannot be considered at this sta ge (cid:29). This was neither warranted nor justified. It only puts a cloud over the imp artiality and conduct of the respondent No.4.

18. The respondent No.4 failed to conduct the meeting in a proper manner, pa rticularly as secret ballot procedure was not followed and no resolution accepti ng the no-confidence motion was adopted. Moreover, there are eleven signatories as against ten members. This coupled with the delay in holding the meeting vitia ted the proceeding of the meeting held on 31-05-2011.

19. This Court disapproves the conduct of the respondent No.4.

20. But at the same time, in a situation where seven out of ten memb ers of the Gaon Panchayat have expressed lack of confidence in the President (pe titioner), it would be against the provisions of the Act and democratic principl es if the President is allowed to hold her office for procedural lapses which ap pear to have been engineered to ensure her continuance. In such circumstances, t his Court is of the view that it would be in the interest of justice if a fresh meeting of the Gaon Panchayat is directed to be held to discuss and decide the n o-confidence motion brought against the President (petitioner).

21. In view of the conclusion reached, reference to and deliberation on the case laws cited is considered not necessary.

22. In view of above, the Deputy Commissioner, Cachar is directed to convene a special meeting of the Gaon Panchayat either by himself or by an Offi cer deputed by him (other than respondent No.4) on or before 08-07-2012 to discu ss and decide the motion of no-confidence brought against the President(petition er) of the Gaon Panchayat. Such meeting shall be presided by the Deputy Commissi oner himself or by the deputed officer. The Deputy Commissioner shall ensure tha t the meeting is held in a proper manner by following the prescribed procedure a nd shall also make necessary security arrangement. It is made clear that what ov er decision is arrived at in the said meeting, the same shall be given effect im mediately as Section 15(1) of the Act does not provide for according of approval to resolution adopted in such meeting.

23. the date of election or 08-07-2012, which ever is earlier. Status-quo order passed on 28-10-2011 shall hold the field till

26. Writ petition stands allowed to the extent indicated above. Record is returned back to the learned state Counsel. No cost.