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IN THE HIGH COURT OF GAUHATI
DEVASHIS BARUAH, J.
Noor Nahar Jiya — Appellant
Versus
State Of Assam — Respondent
WP(C) No. 239 of 2021
Decided on : 02-02-2022
No-Confidence-Motion - Violation of Section 15(1) of the Assam Panchayat Act, 1994 - [Section 15(1) of the Assam Panchayat Act, 1994] - The court found that the actions taken to initiate a No-Confidence-Motion against the petitioner were in violation of Section 15(1) of the Assam Panchayat Act, 1994. The Secretary of the Gaon Panchayat could not have referred the matter to the Anchalik Panchayat before the elapse of fifteen days from the date of receipt of the Notice by the Petitioner. Consequently, the Resolution adopted on 16.01.2021 and the subsequent approval were all without jurisdiction and were set aside. The petitioner was reinstated to the position of President of No.1 Jorshimalu Gaon Panchayat with immediate effect.
Fact of the Case:
The writ petition challenged the No-Confidence Motion expressed against the petitioner, who was elected as the President of No.1 Jorshimalu Gaon Panchayat in the Panchayat Election held in the year 2018. The petitioner alleged that the actions taken to initiate the No-Confidence-Motion were in violation of Section 15(1) of the Assam Panchayat Act, 1994.
Finding of the Court:
The court found that the actions taken to initiate a No-Confidence-Motion against the petitioner were in violation of Section 15(1) of the Assam Panchayat Act, 1994. The Resolution adopted on 16.01.2021 and the subsequent approval were all without jurisdiction and were set aside. The petitioner was reinstated to the position of President of No.1 Jorshimalu Gaon Panchayat with immediate effect.
Issues: The main issue was whether the actions taken to initiate a No-Confidence-Motion against the petitioner were in violation of Section 15(1) of the Assam Panchayat Act, 1994.
Ratio Decidendi: The court held that the Secretary of the Gaon Panchayat could not have referred the matter to the Anchalik Panchayat before the elapse of fifteen days from the date of receipt of the Notice by the Petitioner, as mandated by Section 15(1) of the Assam Panchayat Act, 1994.
Final Decision: The court set aside the Resolution adopted on 16.01.2021 and the subsequent approval, reinstating the petitioner to the position of President of No.1 Jorshimalu Gaon Panchayat with immediate effect.
JUDGMENT :
DEVASHIS BARUAH,J.
1. Heard Mr. B.K. Mahajan, the learned counsel appearing on behalf of the Petitioner. Mr. A. Roy, learned Standing Counsel, P&RD Department appears on behalf of the Respondent Nos.1, 3, 4 & 6. Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam appears on behalf of the Respondent No.2. Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. M. Ahmed, learned counsel appears on behalf of the Respondent Nos.7, 8, 11, 13 & 14.
2. The instant writ petition has been filed challenging the No- Confidence Motion dated 16.01.2021 whereby no-confidence was expressed against the petitioner, who was elected as the President of No.1 Jorshimalu Gaon Panchayat in the Panchayat Election held in the year 2018. The case of the Petitioner is that the Petitioner on 16.01.2021 came to learn that the Respondent Nos.7 to 14 herein filed a requisition on 24.12.2020 before the Secretary to the No.1 Jorshimalu Gaon Panchayat bringing a No-Confidence-Motion against the President. The petitioner could also come to learn that on 16.01.2021 at 12 noon a No-Confidence-Motion was brought against the petitioner in the Office of the Goroimari Anchalik Panchayat. On the ground that the actions taken by the concerned respondent authorities along with the private respondents to initiate a No-Confidence-Motion against the petitioner was in violation to the mandate of Section 15(1) of the Assam Panchayat Act, 1994 (for short the Act of 1994) the writ petition has been filed by the Petitioner.
3. The Respondent No.6 had filed an affidavit-in-opposition wherein at paragraph no.4 it has been mentioned that 8 (eight) Members of the No.1 Jorshimalu Gaon Panchayat submitted a requisition notice dt.24.12.2020 addressed to the Secretary of the Gaon Panchayat expressing their lack of confidence on the Petitioner with a request for convening a Special Meeting. On receipt of the said requisition, the Secretary forwarded the same to the Petitioner at her residence on 28.12.2020 but the same could not be delivered as the Petitioner was not found at her residence. Again on 30.12.2020 the said requisition was sent to the Petitioner and the Petitioner was also not available on that day also. Thereafter on 04.01.2021 the Secretary again forwarded the aforesaid requisition to the Petitioner but the Petitioner was again not available on the said date at her residence and accordingly the office Peon one Sri Amirul Islam hanged the notice of requisition in the wall in front of the house of the Petitioner in presence of 3 (three) witnesses including Gaonburah of Village-Hahchari Fulchan Ali.
4. Thereupon on 08.01.2021 the Secretary forwarded the matter to the President of Goroimari Anchalik Panchayat for taking necessary steps. The President of Goroimari Anchalik Panchayat vide a letter dated 11.1.2021 informed the matter to the Executive Officer-cum-Ex Officio Secretary the Goroimari Anchalik Panchayat who instructed him to convene a Special Meeting on 16.1.2021. Accordingly the Respondent No.4 issued a letter dated 12.01.2021 to inform all Members, Vice- President and President for convening a Special Meeting on 16.01.2021 at the Office of the Goroimari Anchalik Panchayat to be presided over by the President of the said Anchalik Panchayat to decide the No- Confidence-Motion against the Petitioner. Thereupon on 13.01.2021, the concerned Peon namely Basir Uddin along with 2 (two) other witnesses visited the house of the Petitioner on two occasions to serve copy of the aforesaid letter dated 12.01.2021 to the Petitioner. However, the Petitioner was not found at her home to serve the aforementioned notice dated 12.01.2021 and in that regard a report was submitted containing the signatures of the two witnesses before the Respondent No.4 stating inter alia the aforesaid facts.
5. Thereupon on 16.01.2021 a Special Meeting was held in the Office of the Goroi-mari Anchalik Panchayat under the Presidentship of the Respondent No.5 and in the said meeting
The main legal point established in the judgment is that the actions taken to initiate a No-Confidence-Motion must comply with the provisions of Section 15(1) of the Assam Panchayat Act, 1994.
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 ....
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.
The main legal point established in the judgment is the mandatory nature of the 15-day period for convening a no confidence meeting as per Section 15 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.
Section 15(1) of Panchayat Act categorically mandates that there should be service of notice of no confidence motion upon President by Secretary thereby giving him 15 clear days.
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