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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ARUN DEV CHOUDHURY, J.
Aminul Hoque S/o. Monnat Ali – Appellant
Versus
The State Of Assam And 19 Ors. – Respondent
WP(C) 3308 of 2021
Decided on : 07-11-2022
Assam Panchayat Act, 1994 - Section 15 (2), (1), 17(3), (2) - Constitution of India, 1950 - Article 226 - Panchayat - No Confidence Motion - Aggrieved by a letter, by which a “No Confidence Motion” was requisition by 8 members of Gaon Panchayat – Communication of Secretary reflects that he approached President but President did not held meeting. Para 14
Finding of the Court:
In Mosira Bibi (supra), Court held that appellant in that case having avoided to fulfil its obligation under Section 15(1) of Assam Panchayat Act, 1994 of approving proposal submitted by Secretary of Gaon Panchayat to convene special meeting, waved requirement of holding meeting within period stipulated and further held that power of High Court under Article 226 of Constitution of India is not intended to facilitated appellant who has voluntarily avoided to comply with requirement of law - In present case also, this Court is in no ambiguous term under its order in WP(C) directed that President shall give due approval for a meeting notice of which to be treated, however, no such approval was granted - Thus, appellant also avoided his responsibility and avoided to comply with judgment of this Court which was passed in his interest so that a fresh “No Confidence Meeting” can be held - Therefore, this Court is of considered opinion that petitioner is not entitled for any relief at hands of this Court in exercise of its writ jurisdiction.
Result: Petition dismissed.
JUDGMENT :
Heard Mr. M. U. Mondal, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned State Counsel for the respondent Nos. 1, 4 and 5, Mr. S. Dutta, learned Standing Counsel for the P&RD Department representing the respondent Nos. 2, 3, 6, 9 and 10 and Mr. J. Abedin, learned counsel for the respondent Nos. 11 to 18.
2. The present petitioner was the President of 94 Dubachuri Gaon Panchayat. Being aggrieved by a letter dated 19.12.2020, by which a “No Confidence Motion” was requisition by the 8 (eight) members of the Gaon Panchayat, preferred a writ petition being WP(C) No. 190/2021. The further challenge made in the said writ petition was another letter dated 06.01.2021 by way of which, the Secretary of the Gaon Panchayat had referred the matter of “No Confidence Motion” to the President of Nayer Alga Anchalik Panchayat for holding a special meeting. It was further prayed for setting aside the resolution dated 08.01.2021, by which the “No Confidence Motion” was passed in the said meeting held on 08.01.2021.
3. The basic ground of challenge of the said resolution was that Section 15 (2) of the Assam Panchayat Act, 1994 was violated. This Court by its order dated 05.03.2021 held that delivery of notice for requisition of meeting is mandatory under Section 15(2) of the Assam Panchayat Act, 1994 and non compliance of such mandatory provision and any resolution thereafter is nonest in the eye of law. In view of such finding, this Court set aside the impugned resolution, impugned in WP(C) No. 190/2021. While setting aside, on agreement of the contesting parties, this Court passed the following further order:-
4. It is the case of the petitioner that by virtue of the judgment of this Court in WP(C) No. 190/2021, the date of notice should be treated as 05.03.2021 and period of 15 days as mandated under Section 15(1) of the Assam Panchayat Act, 1994 for reference to the Anchalik Panchayat expires on 28.03.2021 and, therefore, the Secretary did not have any authority to request the Anchalik Panchayat to hold the meeting inasmuch as he has requested the Anchalik Panchayat to hold the meeting by his communication dated 20.03.2021 and thus the mandate of Section 15(1) of the Assam Panchayat Act, 1994 has been violated.
5. The second ground urged by the learned counsel for the petitioner is the violation of Section 17(3) of the Assam Panchayat Act, 1994 inasmuch as it is the contention of the learned counsel for the petitioner that three clear days notice is required to hold a special meeting by the Gaon Panchayat. The Secretary issued the letter to the Anchalik Panchayat on 20.03.2021 and the Anchalik Panchayat called the meeting on 23.03.2021 and therefore, three clear days was not there. Therefore, in view of the aforesaid and failure of the authorities adhere to the mandatory provision of Section 15(1) and 17(2) of the Assam Panchayat Act, 1994, the entire procedure has been vitiated and accordingly, same is liable to be set aside and quashed and the petitioner be given another chance to hold the “No Confidence Meeting” as requisitioned.
6. Per contra, Mr. Abedin, learned counsel representing the elected members submits that the argument advance
Section 15(2) of Assam Panchayat Act, 1994 which provides for giving notice to President for purpose of holding a No Confidence Motion is mandatory and non compliance of such mandatory provision and ....
Point of Law : Section 17 [3] of the Assam Panchayat Act, 1994 has clearly stipulated that in case of any special meeting [which is a meeting for no confidence motion], 3 [three] days' clear notice h....
The Notice for the special meeting was found to be in violation of the statutory prescription of 3 clear days' notice as per Section 17[3] of the Assam Panchayat Act, 1994.
Word ‘lost’ appearing in 2nd proviso to section 15(1), in deference to fundamental principles of statutory interpretation, has to be essentially comprehended in text and context in which it appears.
In a judicial proceeding any interference of an order which a person may be beneficiary of cannot be initiated and concluded without issuing notice to person who is beneficiary.
Requisition notice received by Gaon Panchayat Secretary cannot be construed to be due notice to President and the period of 15 [fifteen] days as contemplated under Section 15 can be counted only from....
Section 15 of Assam Panchayat Act, 1994 have been held to be directory and not mandatory, any resolution adopted cannot be faulted with merely because time limit prescribed under Section 15(1) have n....
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.
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