Nur Hussain vs State Of Assam

The petitioner has instituted this writ petition under Article 226 of the Constitution of India assailing - [i] a requisition notice dated 07.12.2020; [ii] an impugned letter dated 24.12.2020 issued by the respondent no. 6; and [iii] for setting aside and quashing of a resolution stated to have been adopted in a special meeting, held on 30.12.2020, expressing no confidence against the petitioner to continue as the President of 79 no. Kadong Gaon Panchayat by requisite two-third majority of total number of members of the said Gaon Panchayat.

In the Panchayat General Election, the petitioner came to be directly elected for the post of President of 79 no. Kadong Gaon Panchayat [‘the Gaon Panchayat’, for short], District – Barpeta under the jurisdiction of Mandia Anchalik Panchayat and Barpeta Zilla Parishad in terms of Section 6[1][b] of the Assam Panchayat Act, 1994 [‘the Panchayat Act’, for short]. On 07.12.2020, 7 [seven] nos. of Ward Members of the Gaon Panchayat submitted a requisition notice to the respondent no. 6 i.e. the Secretary of the Gaon Panchayat wherein they expressed no confidence against the petitioner to continue as the President of the Gaon Panchayat and sought for convening a special meeting to discuss the motion of no confidence. On 24.12.2020, the respondent no. 6 referred the requisition notice to the President of Mandia Anchalik Panchayat stating inter alia that the petitioner as the President of the Gaon Panchayat did not accord his approval to convene the special meeting within the period of 15 [fifteen] days. On 28.12.2020, the Executive Officer of Mandia Anchalik Panchayat issued notices to the President i.e. the petitioner; the Vice-President; and all Ward Members of the Gaon Panchayat intimating that a special meeting, as per the direction of the President of Mandia Anchalik Panchayat, had been convened at 02-00 p.m., 30.12.2020 at the Auditorium of Mandia Anchalik Panchayat to discuss the motion of no confidence initiated against the petitioner by the requisition notice dated 07.12.2020. The petitioner was thereby requested to attend the special meeting. The said special meeting, as scheduled by the notice dated 28.12.2020, was accordingly held on 30.10.2020 under the Chairmanship of the President of the Mandia Anchalik Panchayat. As per the resolution of the special meeting, the motion of no confidence was held to have been passed against the petitioner.

Assailing the aforesaid actions, the petitioner has approached this Court by the instant writ petition seeking inter alia the reliefs, indicated above.

I have heard Mr. R. Ali, learned counsel for the petitioner; Mr. N.K. Dev Nath, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 3, 4 & 6; Mr. R. Talukdar, learned Junior Government Advocate, Assam for the respondent no. 2; and Mr. N.H. Mazarbhuiya, learned counsel for the respondent nos. 7 – 12.

Mr. Ali, learned counsel for the petitioner has submitted that there were infractions of the statutory prescriptions contained in the Panchayat Act in the entire process beginning from the requisition notice dated 07.12.2020 right till the resolution stated to have been passed in the special meeting convened on 30.12.2020. It is submitted by him that the notice convening the special meeting on 30.12.2020 was issued only on 28.12.2020 without three days clear notice prescribed in sub-section [3] of Section 17 of the Panchayat Act. It is his further contention that the Secretary of the Gaon Panchayat while forwarding the matter to the President of Mandia Anchalik Panchayat vide his letter dated 24.12.2020, had himself admitted to the effect that he put up the requisition notice submitted by the 7 [seven] nos. of Ward Members through office file/note sheet before the President of the Gaon Panchayat only on 09.12.2020 and as such, a period of 15 [fifteen] days did not expire on 24.12.2020. It is also his submission that to pass a motion of no confidence against the President of a Gaon Panchayat the requirement is two-third majority of total number of members of the Gaon Panchayat. As at the relevant time 79 no. Kadong Gaon Panchayat had only 9 [nine] number of Ward Members and in the special meeting, only 6 [six] of them was found to have voted in favour of the motion, the motion ought to have been held as lost.

At the inception, it is apposite to refer to the provisions of Section 15 of the Panchayat Act. Section 15 of the Panchayat Act has provided for the matter of no confidence against the President and the Vice-President of the Gaon Panchayat. It is provided, inter alia, in sub-section [1] of Section 15 that every President of a Gaon Panchayat shall deemed to have vacated his office forthwith when a resolution expressing want of confidence in him is passed by two third majority of the total number of members of the Gaon Panchayat. It has also provided for the procedure for convening a special meeting. As per Section 15[1], a special meeting is to be convened by the Secretary of the Gaon Panchayat with the approval of the President of the Gaon Panchayat. In case such a special meeting is not convened within a period of 15 [fifteen] days from the date of receipt of the notice, the Secretary of the Gaon Panchayat is required to refer the matter within 3 [three] days therefrom to the President of the concerned Anchalik Panchayat, who has, in turn, to convene the special meeting within 7 [seven] days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting. In case the President of the Anchalik Panchayat does not take action as above, within the specified 7 [seven] days’ time, the concerned Gaon Panchayat Secretary shall have to inform the matter to the Deputy Commissioner/Sub-Divisional Officer [Civil], as the case may be, within 3 [three] days after the expiry of the stipulated 7 [seven] days’ time and in such a situation, the concerned Deputy Commissioner/Sub-Divisional Officer [Civil] shall have to convene the special meeting within 7 [seven] days from the date of receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the special meeting so convened. It has further provided that the Deputy Commissioner/Sub-Divisional Officer [Civil], as the case may be, in case of his inability to preside over the special meeting, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer to preside over such special meeting. The requisition notice for such a special meeting shall be signed by not less than one-third of the total number of members of the Gaon Panchayat and shall be delivered to the President or Vice-President, as the case may be, of the concerned Gaon Panchayat with information to the Deputy Commissioner of the District [Section 15(2)].

Sub-section [3] of Section 17 of the Panchayat Act has inter alia stipulated that three clear days notice of a special meeting specifying the place, date and time of such meeting and the business to be transacted therein shall have to be given. From the notice dated 28.12.2020, it is evident that there was no clear 3 [three] days’ prior notice as required under sub-section [3] of Section 17 of the Panchayat Act for convening the special meeting on 30.12.2020. It has been held by Division Bench of this Court in Writ Appeal no. 189/2021 [Hafizur Rahman vs. The State of Assam and 15 others], decided on 17.12.2021, that it is absolutely clear that three days clear notice, as prescribed in Section 17[3] of the Panchayat Act has to be given for a special meeting.

In the case in hand, the requisition notice was admittedly placed by the Secretary of the Gaon Panchayat before the President through official channel on 09.12.2020. Thus, a period of 15 [fifteen] days would have expired only on 24.12.2020.

The manner in which a requisition notice is to be brought before the President of a Gaon Panchayat has been deliberated upon by a Division Bench of this Court in Ali Ahmed Mazumdar vs. State of Assam and others, reported in 2011 [3] GLT 396. In that case, the Secretary of the Gaon Panchayat received a requisition notice on behalf of the President to convene a special meeting on 12.07.2008 and the requisition notice for no confidence motion was put up before the President on 21.07.2008. The President accorded his approval on 25.07.2008. The Secretary of the Gaon Panchayat instead of convening the special meeting as per the approval given by the President of the Gaon Panchayat, referred the matter to the Anchalik Panchayat. In that context, the Division Bench in Ali Ahmed Mazumdar [supra] has observed as under :

“[9] The question involved in this case is whether the receipt of notice of no confidence motion by the G.P. Secretary on behalf of the President could be construed as due service upon the President from the date of receipt of notice by the G.P. Secretary. The simple dictionary meaning of the word ‘receipt’ is a written acknowledgment of anything received. So also the word ‘notice’ means bringing it to a person’s knowledge. So, receipt of a notice would mean acknowledgement of receipt of the written notice issued. One may therefore, argue that knowledge includes both actual awareness and constructive knowledge. One may further argue that since the appellant had constructive knowledge about no confidence notice, it is enough for him to take necessary steps in compliance to Section 15[1] of the Act. This argument, in our view, may sound very sound but it is not acceptable at all, because a notice issued by the Panchayat members contains serious allegation against the appellant President which he has to meet and if he fails to satisfy the members and fails to succeed, he would stand removed from office. So justice demands physical and direct service of notice upon the President or Vice President in whom the members have lost confidence and want to remove him from office.

[10] What actually had happened has already been noted earlier. The necessity of bringing the notice of no confidence motion to the personal knowledge of the President or Vice President has also been discussed. It must be noted that the G.P. Secretary who received the notice on behalf of the President is cast with a legal duty, which is mandatory in nature, to inform the President forthwith about the receipt of such notice with a note put up in official file for his personal knowledge and pass necessary order either according or declining to accord approval to convene the special meeting for discussion on the no confidence motion by the Panchayat Members. Because of the extremely possible disastrous consequence, like removal from office attached to the no confidence motion preceded by compliance of certain statutory procedures as laid down in Section 15 of the Act, we hold that the notice of no confidence motion received by the G.P. Secretary on behalf of the G.P. President, cannot be construed as due notice to the President and the period of 15 days as contemplated under Section 15 [1] of the Act could be counted only from the date of bringing the notice to personal knowledge of the President formally through official note, and not otherwise. The reason is quite obvious. A dishonest Panchayat Secretary, for dubious purpose or on extraneous consideration to serve some vested interest, may play mischief by holding back the notice from the President or Vice President against whom the Panchayat members have expressed loss of confidence, to create a situation for it and to show/prove that the President or Vice President has failed to convene the special meeting within 15 days as prescribed under Section 15 [1] and make out a case for referring the matter to Anchalik Panchayat to convene a special meeting by it.”

In Ali Ahmed Mazumdar [supra], it has been laid down that receipt of a notice of no confidence motion by the Secretary of the Gaon Panchayat on behalf of the President of the Gaon Panchayat cannot be construed as due notice to the President and the period of 15 [fifteen] days contemplated under Section 15 [1] of the Assam Panchayat Act would be counted only from the date of bringing the notice to personal knowledge of the President of the Gaon Panchayat formally through official note in official file and not otherwise. Another Division Bench judgment in Kamrul Islam Laskar vs. State of Assam, reported in 2017 [5] GLT 829, has followed the principle laid down in Ali Ahmed Mazumdar [supra]. In Kamrul Islam Laskar [supra], the requisition notice dated 27.12.2016, received by the Secretary of the Gaon Panchayat on the same day, was put up before the President on 29.12.2016 through an office file and in that context, it has been held that the 15 [fifteen] days period has to be computed from the date of receipt of notice or the date of bringing the notice to the knowledge of the President, as qualified in Ali Ahmed Mazumdar [supra].

In view of the principles laid down in the aforesaid two decisions in Ali Ahmed Mazumdar [supra] and Kamrul Islam Laskar [supra], the Secretary of the Gaon Panchayat have got the jurisdiction to refer the requisition notice to the jurisdictional Anchalik Panchayat only on or after 25.12.2020, as the period of 15 [fifteen] days from 09.12.2020 would have expired on 24.12.2020. Thus, sending of the matter to the jurisdictional Anchalik Panchayat by the Secretary of the Gaon Panchayat on 24.12.2020 is clearly beyond his jurisdiction.

In view of the aforesaid findings reached by this Court, this Court is of the considered view that the requisition letter dated 07.12.2020 and the impugned letter dated 24.12.2020 are liable to be set aside and quashed, which are accordingly done. The issue about the validity and legality of the resolution of no confidence stated to have been passed on the strength of voting by 6 [six] number of Ward Members out of existing 9 [nine] number of Ward Members in the Gaon Panchayat in favour of the motion does not require adjudication and the issue is kept open for decision in an appropriate proceeding. In view of setting aside of the requisition notice dated 07.12.2020 and the impugned letter dated 24.12.2020, the resolution passed in the special meeting held on 30.12.2020 is also set aside and quashed. Resultantly, this writ petitions is allowed. There shall be not order as to cost.