Point of Law : Expression is “not less than so many days” both the terminal days have to be excluded and the number of days mentioned, must be clear days.

Headnote:
Assam Panchayat Act, 1994 – Section 15 and 17(3) – Election - Panchayat - Petitioner was elected as President in district - Ten numbers of members Panchayat made a requisition before Secretary of Gaon Panchayat leveling certain allegations against petitioner who was then President Panchayat and accordingly sought to convene special meeting to express no confidence motion against petitioner - Secretary Madhya Panchayat referred matter to Panchayat vide a communication without placing requisition notice to petitioner who was then President - Panchayat after receiving letter convened special meeting wherein a resolution of no confidence was passed against petitioner and thereby petitioner was removed from office - Record further reveals that said resolution was approved by Zila Parishad vide an order- Whether object of legislation will be defeated or furthered.
Finding of the Court:
Court hold that provisions of Section 17(3) to be directory depending upon facts of each case on the basis of prejudice, it would result in offending the object of legislature or in other words rather defeat purpose as mandated in Section 17 of Act of 1994 - It may further result in unnecessary litigation on question of prejudice that to when the legislature mandated three clear days for holding a special meeting. Moreover, it is not the duty of the Court to tinker with legislative wisdom when legislature mandate is three clear days notice for special meeting is unambiguous - Under such circumstances taking into consideration submission made by parties and also taking that notice which was issued by the respondent for convening the meeting and thereby it does not meet the requirement as per section 17(3) which mandates three clear notice, it is opinion of this Court that the resolution is not in conformity with provisions of section 17(3) of the Act of 1994 and the said resolution is set-aside - Consequential communication is also set-aside - Be that as it may, in view of the submission taken on record of learned counsels for parties, and in interest of justice, this Court is of opinion that ends of justice would be served, if a direction is issued to Respondent directing to convene a Special Meeting Panchayat to discuss the no confidence motion against the petitioner.
Result: Writ petition stands disposed of

JUDGMENT :

Heard Mr. MK Choudhury learned senior counsel for the petitioner assisted by Mr.S.H. Sikdar, learned counsel for the petitioner. Mr. A Roy, learned counsel for the respondent Nos.1, 2, 4, 6 & 7 and Mr. B Deuri, learned Junior Govt. Advocate appearing for respondent Nos.2 and 3 and Mr. R Ali, learned counsel appearing on behalf of respondent Nos.8 to 17.

2. The instant writ petition has been filed assailing the resolution dated 17.07.2021 by which a resolution of no confidence was passed against the petitioner as well the letter dated 30.07.2021 whereby the Executive Officer, Pakabetbari Anchalik Panchayat permitted the Vice President of 39 No. Madhya Betbari Gaon Panchayat to take over the charge of the President immediately and to inform compliance.

3. The brief facts of the instant case is that the petitioner was elected as President of 39 No. Madhya Betbari Gaon Panchayat under Pakabetbari Anchali Panchayat in the district of Barpeta, Assam in the year 2018. On 12.04.2021, ten numbers of members of 39 No. Madhya Betbari Gaon Panchayat made a requisition before the Secretary of the Gaon Panchayat leveling certain allegations against the petitioner who was the then President of 39 No. Madhya Betbari Gaon Panchayat and accordingly sought to convene the special meeting to express no confidence motion against the petitioner.

4. Thereafter the secretary of 39 No. Madhya Betbari Gaon Panchayat referred the matter to the Anchalik Panchayat vide a communication dated 27.04.2021 without placing requisition notice to the petitioner who was the then President. The Anchalik Panchayat after receiving the letter dated 27.04.2021 convened the special meeting on 06.05.2021 wherein a resolution of no confidence was passed against the petitioner and thereby the petitioner was removed from the office of the 39 No. Madhya Betbari Gaon Panchayat. The record further reveals that the said resolution was approved by the Zila Parishad Barpeta vide an order dated 27.05.2021.

5. The petitioner being aggrieved by the resolution adopted on 06.05.2021 as well as the approval of the said resolution by the Zila Parishad, Barpeta on 27.05.2021 approached this Court by filing a writ petition being WP(C) No.3001/2021 challenging the said resolution dated 06.05.2021 as well as the approval letter dated 27.05.2021. This Court vide an order dated 24.06.2021 had set-aside the resolution dated 06.05.2021 as well as the letter dated 27.05.2021 and passed certain consequential directions at paragraph No.6, 7 & 8 which are quoted herein below:

6. Under such circumstances, and on the debatable point having been conditionally conceded by the learned senior counsel for the respondent Nos.8 to 17, who were the signatories to the said requisition dated 12.04.2021, the Court is of the considered opinion that in the interest of justice it would be just and appropriate to hold that as the respondent nos.8 to 17 have conceded the point that requisition dated 12.04.2021 was not served on the petitioner, the impugned letter dated 27.04.2021 by the Secretary of the said Gaon Panchayat (respondent No.7) to the President, Paka Betbari Anchalik Panchayat (respondent No.5), thereby forwarding the matter relating to non-holding of special meeting to discuss no confidence motion, and the resolution dated 06.05.2021 in the special meeting convened by the respondent No.5 are both hereby set-aside.

7. Nonetheless, and notwithstanding the interference with the herein before referred impugned letter dated 27.04.2021 and the impugned resolution adopted on 06.05.2021, the requisition dated 12.04.2021 is held to have survived. It is made clear that this order shall not be construed to mean that the no confidence motion is lost. Moreover, as the petitioner has annexed the copy of the requisition dated 12.04.2021 for holding special meeting regarding no confidence motion moved by the respondent Nos.8 to 17 as Annexure-1 to this writ petition, it is provided on and from this day i.e., 24.06.

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2022 Supreme(Gau) 34

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)DEVASHIS BARUAH, J.Dewan Musharaf Hussain, S/o. Lt. Dewan Elim Uddin – AppellantVersusThe State Of Assam And 16 Ors. – RespondentsWP(C) 3570 of 2021Decided on : 01-02-2022

Point of Law : Expression is “not less than so many days” both the terminal days have to be excluded and the number of days mentioned, must be clear days.

Cases Referred (2)

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Dewan Musharaf Hussain, S/o. Lt. Dewan Elim Uddin – Appellant
Versus
The State Of Assam And 16 Ors. – Respondents
WP(C) 3570 of 2021
Decided on : 01-02-2022