Gauhati High Court
Hafizur Rahman vs The State Of Assam And 15 Ors on 21 October, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010265762019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7978/2019
1:HAFIZUR RAHMAN
S/O HASSAN ALI, R/O VILL. KURIHAMARI, P.O. BHANGNAMARI, P.S.
SIAMARI, DIST. NALBARI, ASSAM, PIN-781126
VERSUS
1:THE STATE OF ASSAM AND 15 ORS.
THROUGH THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT. DISPUR, GUWAHATI-6
2:THE DEPUTY COMMISSIONER
NALBARI
DIST. NALBARI
ASSAM
3:THE CHIEF EXECUTIVE OFFICER
NALBARI ZILA PARISHAD
NALBARI
DIST. NALBARI
ASSAM
4:THE EXECUTIVE OFFICER
BARKHETRI ANCHALIK PANCHAYAT NARAYNPUR
MUKALMUA
DIST. NALBARI
ASSAM
5:THE PRESIDENT
BARKHETRI ANCHALIK PANCHAYAT NARAYNPUR
MUKALMUA
Page No.# 2/9
DIST. NALBARI
ASSAM
PIN-781126
6:THE SECRETARY
NO. 65 KURIHAMARI-BARSULIA GAON PANCHAYAT
KURIHAMARI
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
7:JAYNAB KHATUN
W/O KABIR ALI
VILL. SARSULIA
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
8:ALIMUDDIN
S/O LT. RAKMAN
VILL. BARSULIA
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
9:ASMA KHATUN
W/O MOHIDUL ISLAM
VIIL KURIHAMARI (BARCHAR)
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
10:AYNAL HOQUE
S/O LT. ABUL HUSSAIN
VILL. KURIHAMARI PUB
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P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
11:LOKMAN HUSSAIN
S/O RIAZUDDIN
VILL. KURIHAMARI
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
12:JARINA BEGUM
W/O SAHABUDDIN
VILL. KURIHAMARI PUB
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
13:MOFIDA KHATUN
W/O JAIUR RAHMAN
VILL. KURIHAMARI PUB
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
14:ATOWAR RAHMAN
S/O ANOWAR ALI
VILL. KURIHAMARI PUB
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
15:AJIMAN NESSA
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W/O SAMSUL HOQUE
VILL. KURIHAMARI PUB
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-781126
16:RUPCHAND ALI
S/O LT. SABAN ALI
VILL. KURIHAMARI PUB
P.O. BHANGNAMARI
P.S. SIAMARI
DIST. NALBARI
ASSAM
PIN-78112
Advocate for the Petitioner : MR. R ALI
Advocate for the Respondent : SC, PNRD
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
CAV Date : 21-10-2020 Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. M. Nath, learned standing counsel for the Panchayat & Rural Development Department appearing for the respondent nos. 1, 3, 4 and 6, as well as Mr. J.H. Saikia, learned counsel for respondent nos.7 to 16 and Mr. T.C. Chutia, learned addl. senior government advocate, appearing for respondent no.2. There is no representation from the respondent no. 5.
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, who is the elected President of No. 65 Kurihamari- Barsulia Gaon Panchayat (hereinafter referred to as "the said GP") under Barkhetri Gaon Panchayat, has assailed the Page No.# 5/9 no confidence motion passed against the petitioner vide resolution dated 09.10.2019 in the meeting called by the Deputy Commissioner, Nalbari.
3) The learned counsel for the petitioner has submitted that on 23.08.2019, the petitioner came to know from the Secretary of the said GP (respondent no.6) that the respondents no. 7 to 16, who were the Vice President and Ward Members of the said GP had submitted a representation dated 21.08.2019 to convene a special meeting to discuss no confidence motion against the petitioner. It is submitted that the petitioner had discussed the matter with the respondent no.6 and directed him to convene a meeting, however, the special meeting was not called by the respondent no.6. It is submitted that thereafter on 03.10.2019 at 8.30 p.m., the petitioner got information that the Deputy Commissioner (respondent no.2) had called a meeting at 10.00 a.m. on 04.10.2019. Thereafter, the petitioner made enquiry with the respondent no.6, who had informed that after the petitioner did not convene a meeting, the matter was referred to the Barkhetri Anchalik Panchayat, but as no meeting was convened, the matter was referred to the respondent no.2 vide letter dated 21.09.2019 and accordingly, the special meeting of ward members was convened to discuss the issue of no confidence against the petitioner.
4) It is submitted that when the petitioner had made enquiry with the respondent no.5, he was informed that the matter of no confidence against the petitioner was never placed before him by the respondent no.6. It is submitted that to that effect an affidavit- in- opposition has also been filed by the respondent no.5. It is submitted that the resolution of no confidence passed against the petitioner was in connivance of the respondents no. 2, and 6 to 16 in violation of the provisions of section 15 and 17 of the Assam Panchayat Act, 1994 and, as such, the learned counsel for the petitioner, by relying on the case of Ali Ahmed Mazumdar Vs. State of Assam & Ors., 2011 (3) GLT 396 , has prayed for setting aside and quashing the impugned resolution dated 04.10.2019.
5) Per contra, the learned standing counsel for the respondent nos. 1, 3, 4 and Page No.# 6/9 6 as well as the learned counsel for the respondent nos. 7 to 16 have both submitted that the representation dated 21.08.2019 submitted by the of ward members of the said GP regarding their no confidence against the petitioner was duly served on the petitioner on 23.08.2019, as such, from 23.08.2019, 15 (fifteen) day's time to hold special meeting had expired on 12.09.2019. After expiry of the statutory period of 15 days as prescribed by section 1591) of the Assam Panchayat Act, 1994, by a letter dated 13.09.2019, the respondent no.6 had informed the respondent no.5 that the petitioner had not granted approval to hold the special meeting, as such, the matter was referred to him. By referring to Annexure-D of the affidavit- in- opposition filed by the respondent nos. 7 to 16, it is submitted that the said letter dated 13.09.2019 was received by one Ms. M. Begum, the receiving clerk in the office of the respondent no.5 and, as such, the stand by the respondent no.5 in his affidavit- in- opposition that the letter dated 13.09.2019 was not served on him is questionable and not believable. It is submitted that accordingly, as the meeting of no confidence against the petitioner was not called for, there was infirmity on part of the respondent no.6 to refer the matter to the respondent no.2 and, as such, the meeting held on 04.10.2019 was valid and resultantly, the resolution of no confidence passed against the petitioner in the special meeting held on 04.10.2019 was also valid.
6) Perused the writ petition, affidavit- in- opposition filed by respondent no.4, respondent no.5, and respondent nos. 7 to 16. It appears that the respondent nos. 4 and 7 to 16 have been able to successfully demonstrate that on 23.08.2019, the petitioner was put to notice regarding request made vide letter dated 21.08.2019 to call special meeting to discuss no confidence against him. Thus, two following point of determination arise in this matter - (i) whether the respondent no.5 had been served with letter dated 13.09.2019 by the respondent no.6 to hold special meeting of the said GP ?, and (ii) whether the meeting called by the respondent no.2 was valid?
7) As regards point of determination no.1, there appears to be no dispute in the Bar that the respondent no.6 had purportedly issued letter no. KBGP/02/SM/2019-20/31- 2 dated 13.09.2019 to the respondent no.5 to inform him that the petitioner had not granted Page No.# 7/9 approval to hold special meeting. The dispute is whether it was served on the respondent no.5. In this regard, there is no dispute that as per the dak/peon book, annexed as Annexure-D to the affidavit- in- opposition filed by respondents no.7 to 16, one letter was received by the receiving clerk on 13.09.2019. However, having carefully examined the said relevant entry, the Court has no option but the reject the contention of the petitioner as well as respondent no.5 as made in his affidavit- in- opposition to the effect that the letter dated 13.09.2019 was not served on respondent no.5. As per relevant entry dated 13.09.2019 in the dak/peon book, the receipt clerk had acknowledged the receipt of letter addressed to the President, Barkhetri Anchalik Panchayat bearing no. letter No. KBGP/SM/2019-20/31-2 dated 13.09.2019. It is seen that save and except omission of "02", the number of the letter by the respondent no.6 addressed to the respondent no.5 is same. It is not the case of the respondent no.5 that he personally accepts receipts of letters and communications addressed to him by the designation of the President of Barkhetri Anchalik Panchayat and that the receiving clerk was not assigned duty to acknowledge receipt of any letters addressed to him and that the action by the receiving clerk was illegal and she had committed dereliction of duty by receiving letter dated 13.09.2018 and not placing the same before him. Thus, point of determination no.1 is answered by holding that the respondent no.5 had been served with letter dated 13.09.2019 by the respondent no.6 to hold special meeting of the said GP.
8) The point of determination no. 2 is taken up now. As per section 15(1) of the Assam Panchayat Act it is provided that within three days of receipt of notice of no confidence, the Secretary of Gaon Panchayat is required to refer the matter to the President of the GP. There is no dispute that notice of no-confidence was dated 21.08.2019 and that the respondent no.6 had referred the matter to the petitioner on 23.08.2019. From the foregoing discussions, it is seen that the respondent no.6 had informed the respondent no.5 to convene a meeting. As per section 15(1), the Anchalik Panchayat has seven day's time to hold such meeting. From 13.09.2019, the seven day's time expired on 20.10.2019. Accordingly, the action by the respondent no.6 to move the respondent no.2 on 21.09.2019, calling upon him to take necessary action according to section 15(2) of the Act cannot be said to be illegal or non est in the eye of law.
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9) As per section 15(1) of the Act, the Deputy Commissioner is required to convene a meeting within seven days from the date of receipt of information. Therefore, the respondent no.2 ought to have convened a meeting of the said GP within seven days from the date of receipt of letter dated 21.09.2019. Though the meeting convened on 04.10.2019 may not be strictly within the time permitted under section 15(1) of the Act, but such a meeting cannot be struck down as illegal and in contravention of the Assam Panchayat Act. Thus, the second point of determination is answered by holding that save and except for the delay in convening he meeting, the said meeting called by the respondent no.2 on 04.10.2019 was otherwise valid.
10) The learned counsel for the petitioner had referred to the provisions of section 17(3) of the Act to portray that special meeting could not have been held without clear three day's notice. The Court is of the considered opinion that the provisions of section 17(3) applies for special meeting convened by the Secretary of the Gaon Panchayat and in strict sense, the said provisions shall not apply if the Secretary is directed by the Deputy Commissioner to hold a special meeting on a particular date and time. It is seen that 17 persons were present in the meeting convened on 04.10.2020, and out of 10 ward members present, nine ward members had voted in favour of the no confidence motion against the petitioner and only one ward member had voted in favour of the petitioner. Thus, the no confidence motion was carried through.
11) As it is not in dispute that the information of letter dated 21.08.2019 regarding no confidence was personally served to the petitioner on 23.08.2019, and not to anyone else, as such, the case of Ali Ahmed Mazumdar (supra) , cited by the learned counsel for the petitioner has no application in this case.
12) In view of the discussions above, the Court is of the considered opinion that the petitioner has not been successful to make out a case warranting interference with the Page No.# 9/9 resolution of no confidence motion adopted against the petitioner in the meeting convened on 04.10.2019 at the directions of the respondent no.2. Accordingly, this writ petition fails and stands dismissed.
JUDGE Comparing Assistant