Gauhati High Court
Sushama Nath vs The State Of Assam And 13 Ors on 4 October, 2021
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/7
GAHC010151952021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4921/2021
SUSHAMA NATH
W/O. KAMAKHAYA PRASSAD NATH, VILL. BAKAITARI PART-II, P.O.
BAKAITARI, P.S. MATIA, DIST. GOALPARA, ASSAM, PIN-783125.
VERSUS
THE STATE OF ASSAM AND 13 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI-06.
2:THE DEPUTY COMMISSIONER
GOALPARA
P.O. AND DIST. GOALPARA
ASSAM PIN-783101.
3:THE CHIEF EXECUTIVE OFFICER
GOALPARA ZILA PARISHAD
GOALPARA
P.O. AND DIST. GOALPARA
ASSAM PIN-783101.
4:THE EXECUTIVE OFFICER
MATIA ANCHALIK PANCHAYAT
MATIA
DIST. GOALPARA
ASSAM PIN-783125.
5:THE PRESIDENT
MATIA ANCHALIK PANCHAYAT
MATIA
P.O. MATIA
DIST. GOALPARA
ASSAM
PIN-783125.
Page No.# 2/7
6:THE SECRETARY OF 48 NO. BAKAITARI GAON PANCHAYAT
BAKAITARI
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASAM
PIN-783125.
7:HITESH NATH
S/O. LT. GANESH NATH
VILL. BAKAITARI PART-II
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM
PIN-783125.
8:ARCHANA HAJONG
W/O. RAJIB HAJON
VILL. BAKAITARI PART-III
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM
PIN-783125.
9:RABIN NATH
S/O. LT. MADHU RAM NATH
VILL. BAKAITARI PART-II
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM
PIN-783125.
10:RINA HAJONG
W/O. AMAL HAJONG
VILL. BAKAITARI PART-III
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM
PIN-783125.
11:LILY BARUAH
D/O. DEBENDRA BARUAH
Page No.# 3/7
VILL. GUNIALGURI
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM PIN-783125.
12:JITEN NATH
S/O. JYOTISH CH. NATH
VILL. BAKAITARI PART-II
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM PIN-783125.
13:PRAFULLA KR. NATH
S/O. LT. BHAKAT CH. NATH
VILL. BAKAITARI PART-III
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM PIN-783125.
14:BHAKTALAL NATH
S/O. LT. ROHIT CH. NATH
VILL. BAKAITARI PART-II
P.O. BAKAITARI
P.S. MATIA
DIST. GOALPARA
ASSAM PIN-783125
Advocate for the Petitioner : MR. M DUTTA
Advocate for the Respondent : GA, ASSAM
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 04/10/2021 Heard Mr. M Dutta, learned counsel for the petitioner and Mr. M Nath, learned Senior Standing counsel, P&RD Department for the respondent Nos. 1, 3, 4 & 6. Also heard Mr. N Goswami, learned Government Advocate, Assam for the respondent No. 2 and Mr. A K Baruah, learned counsel for the respondent Nos. 7 to 14.
Page No.# 4/7 Pursuant to the order of the Court dated 24.09.2021, Mr. Nath, learned Senior Standing counsel, P&RD Department has placed the relevant records in original regarding the 'No Confidence Motion', moved by the private respondent Nos. 6 to 14, represented by Mr. A K Baruah, learned counsel for the respondents.
Petitioner was the elected President of 48 No. Bakaitari Gaon Panchayat under Matia Anchalik Panchayat of Goalpara Zilla Parishad, District-Goalpara.
Petitioner contended that the members of the said Gaon Panchayat in the special meeting held on 07.09.2021 illegally removed her from the Office of the President of said Gaon Panchayat by way of 'No Confidence Motion' in violation of the provisions of Section 15(1) and (2) and Section 18(5) of the Assam Panchayat Act, 1994.
Petitioner stated that the private respondent Nos. 6 to 14 submitted the requisition for 'No Confidence Motion' against her before the Secretary of the said Gaon Panchayat on 11.08.2021 that was served on her on 18.08.2021. The said Secretary on 26.08.2021, even without completion of the period of 15 days from date of service of said notice before her for fixing the date of the meeting as required under Section 15(1) of the said 1994 Act, by communication dated 26.08.2021 referred the matter to the Matia Anchalik Panchayat for convening the said special meeting and that the said Anchalik Panchayat fix the meeting on 02.09.2021. Though, meeting of the said Gaon Panchayat was held on 02.09.2021 with its eight members, i.e., respondent Nos. 6 to 14 under the President-ship of the Matia Anchalik Panchayat, but the members present in the meeting due to absence of the petitioner and two other members of the said Gaon Panchayat resolved to hold the meeting on 07.09.2021 giving reasonable opportunity to the petitioner to furnish the necessary explanations. The Secretary of the said Gaon Panchayat by letter dated 04.09.2021 informed the petitioner about the said meeting intimating that the matter has been fixed on 07.09.2021.
On 07.09.2021, petitioner could not be present before the House as she was suffering from medical ailments and as per certificate of the doctor of Matia Block Public Health Center dated 07.09.2021, she was advised to take rest for ten days and she informed the President of Matia Anchalik Panchayat about the same on 07.09.2021 itself. However, in the meeting Page No.# 5/7 held on 07.09.2021 under the President-ship of Matia Anchalik Panchayat, eight members of the said Gaon Panchayat moved 'No Confidence Motion' against the petitioner.
Petitioner also stated that the said 'No Confidence Motion' against the petitioner was decided without the process of secret ballot as required under Section 18(5) of the said 1994 Act.
Relying on the decision of a Division Bench of this Court in the case of Ali Ahmed Mazumdar Vs. State of Assam and Ors., reported in 2011 (3) GLT 396, Mr. Dutta, learned counsel for the petitioner submitted that action of the Secretary of the Gaon Panchayat referring the matter to the Anchalik Panchayat miscalculating the period of 15 days is in violation of Section 15(1) of the said 1994 Act since the Secretary of the Gaon Panchayat is only authorized to count the period of 15 days from the date of placing the notice on bring in it to the knowledge of the President and any resolution passed by the Anchalik Panchayat removing the petitioner from the Office of the President being in violation of said statutory provision of Section 15(1) of 1994 Act is liable to be set aside.
Mr. Dutta, learned counsel for the petitioner relying on the decision of a Full Bench of this Court in the case of Forhana Begum Laskar Vs. State of Assam and Ors ., reported in 2009 (3) GLT 575 further submitted that the decision taken in the said meeting dated 07.09.2021 removing the petitioner from the office of the President of the said Gaon Panchayat by way of 'No Confidence Motion' without any secret ballot is in flagrant violation of the statutory scheme as provided under Section 18(5) of said 1994 Act and therefore, said impugned resolution dated 07.09.2021 should be set aside and quash.
Mr. Baruah, learned counsel for the private respondent Nos. 7 to 14, on the other hand relying on a decision of this Court in the case Rita Rani Dushad Vs. State of Assam and Ors. reported in 2016 (4) GLT 905 as well as the decision in the case of Mocklishur Rahman Laskar Vs. State of Assam and Ors. reported in 2017 (4) GLT 933 submitted that even though the resolution dated 07.09.2021 is set aside declaring the impugned 'No Confidence Motion' to be null and void due to non compliance of the provisions of Section 15 (1) and (2) as well as Section 18(5) of the said 1994 Act, but at the same time, it cannot be brushed aside that Page No.# 6/7 out of total ten members of the said Gaon Panchayat, its eight members brought the 'No Confidence Motion' to remove the petitioner from the office of the President of the said Gaon Panchayat being dissatisfied with her conduct in managing the said Gaon Panchayat.
Mr. Nath, learned Senior Standing counsel, P&RD Department very fairly from the records placed before the Court that upon receipt of the notice of requisition of said 'No Confidence Motion' against the petitioner from the respondent Nos. 6 to 14 on 11.08.2021, the Secretary placed it before the petitioner on 18.08.2021 obtaining her signature but on that day petitioner did not fix the date of the meeting. Again on 24.08.2021, said requisition was placed before the petitioner and brought to her notice and even on that date, she did not fix the date of the meeting. Thereafter, the Secretary of the said Gaon Panchayat on 26.08.2021, without completion of 15 days from 18.08.2021 as required under Section 15(1) and (2) of the said 1994 Act, communicated the same to the Matia Anchalik Panchayat who in turn fix the meeting on 02.09.2021. Subsequently, the Matia Anchalik Panchayat fix the meeting on 07.09.2021 and on the said date 'No Confidence Motion' was moved and resolution was passed against the petitioner.
Mr. Nath, learned Senior Standing counsel, P&RD Department also submits that the records of the case does not reveal that said 'No Confidence Motion' against the petitioner on 07.09.2021 was decided by the use of secret ballot as the record is totally silent in that regard. He further submits that the record does not contain any copy of such secret ballot and further, the impugned resolution dated 07.09.2021 also does not reveal about it.
After considering the entire aspects of the matter, hearing the learned counsels for the parties and on perusal of the records placed before the Court, the Court found that the impugned resolution dated 07.09.2021 passed against the petitioner by the eight members of 48 No. Bakaitari Gaon Panchayat by way of 'No Confidence Motion' removing her from the post of President of the said Gaon Panchayat was not in conformity with the statutory provisions of Sections 15(1), 15(2) and 18(5) of the Assam Panchayat Act, 1994 and therefore, the same being illegal and unsustainable is hereby set aside and quashed.
Accordingly, the consequential orders pertaining to the said 'No Confidence Motion' Page No.# 7/7 dated 07.09.2021 against the petitioner passed by the respondent Nos. 7 to 14; the Matia Anchalik Panchayat as well as the respondents in the Goalpara Zilla Parishad being not sustainable in law are also set aside and quashed.
However, considering the fact that out of the total ten members of said Matia Gaon Panchayat, as its eight members of the said Gaon Panchayat have lost confidence upon the petitioner as their President, the Court in exercise of the power under Article 226 of the Constitution of India directs the President of said 48 No. Bakaitari Gaon Panchayat to convene a special meeting of 'No Confidence Motion' against her on or before 27.10.2021, specifying the venue and time of the said meeting.
Since, this order has been passed in presence of the counsel for the petitioner; the counsel for the eight members of the said Gaon Panchayat; the Senior Standing counsel of the P&RD Department representing the Matia Anchalik Panchayat as well as Goalpara Zilla Parishad and other concerned officials, like Executive Officer of Matia Anchalik Panchayat, Chief Executive Officer of Gaolpara Zilla Parishad and the Government Advocate, Assam representing the Deputy Commissioner, Goalpara, it is made clear that for holding the said meeting on 27.10.2021 as directed above, no formal communication of this order shall be issued to the parties of this proceeding.
With the above observation and direction, this writ petition stands allowed to the extent above.
JUDGE Comparing Assistant