Samiruddin Ahmed vs S.D.O. Mangaldoi and Others

Goswami, C.J.—This application under Article 226 of the Constitution is directed against a resolution passed by the Bhuktabari Gaon Panchayat in a special meeting held on 3rd of June. 1969. and the consequent order of the Block Development r Officer. Sipaihar Development Block dated 12-6-69. .directing the Petitioner who was at the material time the President of the said Goan Panchayat to hand over charge of his office to the Vice-President in pursuance of the vote of no confidence already passed; against him

On a requisition by eight members (Respondents No. 3 to 10) of the Gaon Panchayat and Shrimati Binda Saharia of 7-5-69 to the Petitioner to convene an extraordinary general meeting of the Gaon Panchayat for passing a no-confidence resolution against him. a special meeting of the same was held on 3rd of June 1969. The Panchayat has a membership of 13 members including two co-opted members. The no-confidence resolution was discussed and passed in the meeting with 8 members in favour of the motion and no one against it. The resolution was, therefore, carried. Con-sequent on this resolution, the Block Development Officer directed the Petitioner to hand over charge of his office.

It is contended by the Petitioner that u/s 27 (1) (b) of the Assam Panchayat Act, 1959. under which he has been removed from his office, the requisite number of members was not present in the meeting. We may, there fore, read that section so far as material for the purpose of this case.

27 (1)(b). A President of a Goan Panchayat shall immediately cease to hold office, if by three-fifth majority of votes of members present a motion of no-confidence is passed by them in a meeting of the Gaon Panchayat where at least a minimum of two thirds of total number of members is present.

It is admitted that the Gaon Panchayat in this case is constituted of 13 members including the co-opted two. But it is contended by the Respondents that out of these 13 members on the date of the meeting one member was alreadv dead and another member had been elected to the Sipaihar Anchalik Panchayat resulting in his ceasing to be a member of the Gaon Panchayat. under the second proviso to Section 17(1)(ii). The matter, therefore turns upon the construction of Section 27(1)(b). What is the meaning of the words "at least a minimum of two-thirds of total number of members" in Section 27(1)(b). It is contended by the Petitioner that the total number of members must be the total sanctioned strength of the Gaon Panchayat which is admittedly thirteen. On the other hand. it is submitted by the Respondents that two-thirds must have relation to the existing members functioning at the time. Since one member was already dead and another has ceased to be a member of the Gaon Panchayat. the total number of members for the purpose of this section on the material date is eleven and not thirteen. The presence of eight members in the meeting of 3rd June therefore, fulfils the requirement of Section 27(1)(b). We are unable to accept the submission of the Respondents. There is no warrant for adding a word "existing" in Section 27(1)(b) to qualify the words "number of members". Under this section a President immediately ceases to be a President on passing of a motion of no-confidence against him by three-fifth majority of the minimum requisite members present. Such a pro-vision under the law resulting in deprivation 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.

It may be said that while there is a ban on discussion of a motion of no-confidence in an adjourned meeting of the Anchalik Panchayat See 2nd proviso to Section 29(6) there is an omission of a similar provision u/s 14(6) and even provision like Section 30(7) is also not to be found u/s 14. It may or may not be an omission per incuram The absence of such a provision u/s 14(6) does not militate against the conclusion that Section 27(1)(b) on terms, insists the presence of a minimum two-thirds of total membership of the Gaon Panchayat in a meeting held for the purpose of passing a motion of no-confidence. We are not required in this, case to consider the reason for or the legal effect of the 2nd proviso to Section 29(6). We are bound to give effect to the terms of Section 27(1)(b) which are clear and unambiguous The words "at least" point to the same compulsive nature of the requirement of two-thirds of the total membership. The minimum two-thirds of thirteen members is not eight, as arithmetically it is eight and two (1) (ii). the number eight cannot be considered as the sufficient reamisite minimum in this case According to the first proviso mentioned above when 6ne-third is a fraction which is half or more than half of a whole number then the number shall be rounded to the next higher number and if less shall be ignored. It is true there is no such guidance u/s 27(2) But the proviso throws light as to how a fraction has got to be considered. Even without such'' a proviso to Section 27(1)(b). we are not prepared to accept the contention that number eight out of thirteen is the minimum two-thirds required under that Section.

Hence the meeting with the presence of eight members out of thirteen on 3rd June. 1969 is not constitutionally competent to pass the impugned resolution of no-confidence on the- President the resolution is. therefore. liable to be quashed.

Our attention is drawn to Section 31 of the Act providing for curing of certain irregularities Section 31(1) provides that no act of a Gaon Panchayat shall be declared invalid by reason only that the number of members at the time of doing of such act was less than the sanctioned strength. We are however, clearly of opinion that the act which is mentioned u/s 31 does not include a resolution on a motion of no-confidence passed u/s 27(1)(b). This section saves the acts and actions which are within the normal duties and functions of Gaon Panchayats. (See Section 36).

In the result, the application is allowed. The impugned resolution of the Gaon Panchayat of 3rd June. 1969 and the consequent order of the Respondent No. 2 of 12th June. 1969. are hereby quashed. The Respondents are directed to forbear from enforcing the above resolution and the order. The Rule is made absolute. We will however, make no order as to costs.

M.C. Pathak, J.

I agree.