Gauhati High Court
Smt. Fakrun Nessa Choudhury vs The State Of Assam And Ors on 14 June, 2012
Author: N.Kotiswar Singh
Bench: N.Kotiswar Singh
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM:NAGALAND:MEHGALAYA:MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT
WRIT PETITION (C) No.5424 of 2010
Smt. Fakrun Nessa Choudhury,
Resident of Basdor Barhailakandi Gaon Panchayat,
P.O. BorHailakandi P.S. & Dist. Hailakandi.
... Petitioner
-VERSUS-
1. The State of Assam, represented by the
Commissioner & Secretary to the Govt. of Assam,
Panchayat & Rural Development Department, Dispur,
Guwahati-6.
2. The Deputy Commissioner, Hailakandi, Dist.
Hailakandi, Assam.
3. The Block Development Officer, Hailakandi.
4. The Chief Executive Offier, Hailakandi Zilla Parishad,
Hailakandi.
5. The Presidnet Ancholik Panchayat, P.O. Hailakandi.
6. The Secretary, Basdor Barhailakandi, P.O.
Mati Juri, Dist. Hailakandi.
7. Sri Ali Ahmed Choudhury,
s/o Motosor Ali Choudhury, P.O. Matijuri, Dist.
Hailakandi, Assam.
8. Miss Sumaiya Khanam Choudhury,
w/o Zakir Hussain Choudhury,
Village Barhailakandi Part ii, P.O. Barhailakandi
Dist. Hailakandi, Assam.
9. Sri Rahim Uddin Barbhuiya, s/o Sokot Ali Barbhuiya,
Village Barhailakandi Part iii, P.O. Barhailakandi
Dist. Hailakandi, Assam.
10. Sri Moynul Hoque Mazumder, s/o Sorkum Ali Mazumder,
Village Bashdahar Part ii, P.O. Barhailakandi
Dist. Hailakandi, Assam.
11. Miss Pearun Nessa Mazumder,
w/o Abdul Rahim Mazumder,
Village Barhailakandi Part ii, P.O. Barhailakandi
Dist. Hailakandi, Assam.
12. Sri Nazrul Islam Mazarbhuiya, s/o Amir Ali Mazarbhuiya,
Village Barhailakandi Part iii, P.O. Barhailakandi
Dist. Hailakandi, Assam.
13. Miss Amina Khatun Laskar,
w/o Moyor Ali Laskar,
Village Bashdahar Part ii, P.O. Matijuri,
Dist. Hailakandi, Assam.
14. Ayub Ali Mazumder, s/o Sonahar Ali Mazumder,
Village Barhailakandi Part iii, P.O. Barhailakandi
Dist. Hailakandi, Assam.
15. Nosir Ali Mazumder,
Member Group No.1 of Basdar Barhailakandi Gaon Panchayat,
P.O. Borhailakandi PS & Dist. Hailakandi.
2
16. Ator Raja Laskar,
Member Group No.2 of Basdar Barhailakandi Gaon Panchayat,
P.O. Borhailakandi PS & Dist. Hailakandi.
.... Respondents
BEFORE THE HON'BLE MR.JUSTICE N.KOTISWAR SINGH For the petitioner ::
Mr.B.C.Das, Sr.Advocate Dr.B.Ahmed, Advocate For the respondents :: Mr. JUNM Laskar,Advocate Mr.P.K.Deka, Advocate Mr.I.H.Laskar, Advocate Date of Hearing :: 23.2.2012, 28.2.2012 & 01.03.2012 Date of Judgment and order :: 14.6.2012 JUDGMENT AND ORDER (CAV) In the present writ petition, the petitioner has challenged the "No Confidence Motion" moved against her on 7.8.2010 for removal from the post of President of the BB Gaon Panchayat in Hailakandi District, Assam on the grounds, inter alia, that the said motion was not carried by the required two-third majority of the total number of members of the Gaon Panchayat and also that the proper procedure for removal of the President of the Gaon Panchayat as prescribed under the Assam Panchayat Act, 1994 (hereinafter referred to as the "Act") was not followed.
[2] The petitioner was the directly elected President of the BB Gaon Panchayat, Hailakandi Assam. On 18.2.2010, 8 (eight) members of the Gaon Panchayat submitted an application for moving a "No Confidence Motion" against the petitioner. Since the authorities under the Act, did not take any steps with regard to the aforesaid application for No Confidence Motion against the petitioner, said eight members, who are impleaded as private Respondents herein, filed a writ petition before this Court being, W.P.(C) No.1953/2010 for a direction to the official respondents to convene a meeting for consideration of the No Confidence Motion proposed against the petitioner in terms of the notice submitted on 18.2.2010. This Court by an order dated 25.6.2010 was pleased to dispose of the said writ petition with a direction to the official respondents to convene a meeting to consider the said No Confidence Motion as per section 15 of the Assam Panchayat Act, 1994. The Court also directed the 3 official respondents to do the needful as expeditiously as possible and to adhere to the time limit fixed as far as possible.
[3] On receipt of a copy of the aforesaid order dated 25.6.2010 passed in W.P(C) No.1953/2010, the Deputy Commissioner, Hailakandi, instructed the Secretary of the BB Gaon Panchayat to take actions strictly as per the order of the Court. Thereafter, the Secretary of the Gaon Panchayat wrote to the Block Development Officer, Hailakandi, informing him that as the President of the Gaon Panchayat did not fix the date, time and venue to move No Confidence Motion inspite of the file being put up to him and also as the file was not returned, the matter was forwarded to the Block Development Officer, Hailakandi for necessary action in terms of the directions issued by the Deputy Commissioner in accordance with the order dated 25.6.2010 passed in this Court in W.P(C) No.1953/2010.
[4] Thereafter, the Block Development Officer, who was also the Secretary and Executive Officer of the Hailakandi Anchalik Panchayat, Hailakandi issued a notice vide Memo No. hdb/Misc.-3/2010-2011/ dated 5.8.2010 informing that a meeting had been convened on 7.8.2010 at 11.30 am in the office chamber of the President of the Anchalik Panchayat, Hailakandi for discussing the No Confidence Motion against the President of the BB Gaon Panchayat.
[5] The aforesaid notice was issued to all the members of the Gaon Panchayat and accordingly, the meeting was held on 7.8.2010. The petitioner states that in the said meeting held on 7.8.2010, 8 (eight) members had moved the No Confidence Motion against the petitioner. It has been stated that out of the said eight members, 2(two) had already resigned on 10.12.2009 before the holding of the said meeting, which had been duly accepted by the authorities. As such, the said two members who had resigned could not have participated in the said meeting. According to the petitioner, her vehement protest in the said meeting against participation by the said two members was not heeded. The said two members are, Sri Rahimuddin Barbuiyan and Sri A.A. Mazumdar who have been impleaded as respondents No. 9 and 14 respectively in the present writ petition. The petitioner states that Resolution Nos. 2, 3 and 4 taken on the said day would show her objections to the presence of these two resigned members.
4[6] According to the petitioner, the aforesaid two members had already submitted their resignations to the President of the Gaon Panchayat on 10.12.2009 in accordance with Section 16 of the Assam Panchayat Act, 1994, which was duly accepted by the President of the Gaon Panchayat by drawing attention of this Court to Annexures -7 and 7(1) to this writ petition. Accordingly, the petitioner submits that since their resignations had been already accepted, they had ceased to be members of the Gaon Panchayat and were not entitled to participate and vote in the said meeting.
[7]. Under Section 16 of the Assam Panchayat Act, 1994 (hereinafter referred to as the "Act"), a Gaon Panchayat shall consist of 10 members to be directly elected by the voters of the territorial constituencies of the Gaon Panchayat area and the President of the Gaon Panchayat, who will be also elected directly by the voters of the territorial constituencies of the Gaon Panchayat area.
[8] According to the petitioner, in the aforesaid meeting held on 7.8.2010, only eight out of the ten members supported the No Confidence Motion and two other members did not support the said No Confidence Motion. The petitioner also states that since the two members had already resigned, their votes cannot be counted. Accordingly, the actual number of valid votes, which were cast in favour of the No Confidence Motion was only 6 (six). In other words, out of the 10 members, only 6 voted in favour of the No Confidence Motion which is less than the required two- third of the total number of members of the Gaon Panchayat as mandated u/s 15(1) of the Assam Panchayat Act, 1994. Accordingly, the petitioner states that the aforesaid resolution passed on 7.8.2010 for removal of the petitioner is illegal and cannot be acted upon for removing the petitioner.
[9] At the time of hearing, the petitioner has also taken an additional plea though the same was not mentioned in the pleadings. The petitioner has contended that the post of President is elected directly by the voters of the entire territorial constituencies of the Gaon Panchayat area unlike the case of other members who are elected by the respective constituencies. As such, all actions taken for removal of an elected 5 President must strictly conform to the statutory provisions. It was thus submitted that any infraction of or deviation from any statutory provision as provided under Assam Panchayat Act, 1994 would vitiate any such decision taken to remove an elected President.
[10] Coming to the first plea raised in the writ petition by the petitioner, the petitioner has contended that the requirement of law as provided u/s 15(1) of the Assam Panchayat Act, 1994 is that the President can be removed by a resolution taken by a majority decision of two-third of the total number of members of the Gaon Panchayat. Therefore, if the resolution is passed by a majority which is less than 2/3rd of the total number of members, such a resolution is not valid for the purpose of removal of the President.
In this regard, it may be apposite to refer to the relevant portions of Section 15(1) of the Assam Panchayat Act, 1994 as follows.
"15. No confidence motion against the President and Vice President.-
(1) "Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two third of the total numbers of members of the Goan Panchayat.
Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shall be presided over by the President if the motion is against the Vice-President, and by the Vice-President, if the motion is against the President. In case such a meeting is not convened within a period of fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat shall within three days, refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting.
In case the President of the Anchalik Panchayat does not take action as above, within the specified seven days time, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil) as the case may be within three days/after the expiry of the stipulated seven days time and the concerned Deputy Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the information within intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened.
6Provided that the concerned Deputy Commissioner/Sub Divisional Officer (C) as the case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer preside over such meeting:
Provided further that when and non-confidence motion is lost, no such motion shall be allowed in the next six months."
[11] According to the petitioner, two thirds of total number of 10 members of Gaon Panchayat would be 7. Therefore, since the aforesaid No Confidence Motion against the petitioner moved on 7.8.2010 consists of only 6 valid votes, which falls short of 7, the aforesaid resolution cannot be said to be a valid resolution for removing the petitioner from the post of President as required u/s 15(1) of the Assam Panchayat Act, 1994.
According to the petitioner, as the total number of elected Gaon Panchayat is 10, two-third of 10 would be 6.66, and since it is not an integer number, it has to be rounded off to the next whole number i.e. 7 and accordingly, the total number of two-third of the total number of the Gaon Panchayat will be 7. In this regard, the learned counsel for the petitioner has drawn attention of this Court to the decision rendered by this Court in Junali Doley (Borah) & ors. Vs. State of Assam & ors.;
2011 (2) GLT 459. In the aforesaid case, this Court while dealing with the issue of calculating the two-third majority in respect of removal of a President of the Anchalik Panchayat under Assam Panchayat Act, 1994 held that in calculating two-third, every fraction should be rounded off to a whole number. In the said case, two-third of 8 being 5.33, the Court held that it would be treated as 6. The relevant portion of which are quoted as below :-
"(21) In view of the aforesaid discussion, in my considered opinion, any fraction, howsoever small may be, cannot be ignored for ascertaining the majority of 2/3rd of total members of the directly elected members of the Anchalik Panchayat, for adoption of the resolution expressing want of confidence, as, such fraction would also represents the view of the members and hence it has to be rounded to one, so as to adopt the resolution expressing want of confidence against the President and Vice-President of the Anchalik Panchayat under sub-section(1) of Section 43 of the 1994 Act. If such fraction is ignored the same would be contrary to the provisions of sub-section (1) of Section 43, which requires adoption of resolution expressing want of confidence by majority of 2/3rd members.
(22) In the instant case out of 8 existing members 5 members adopted the resolution expressing want of confidence on the respondent No.8 in W.P(C) No.4815/2010, 7 who is the writ petitioner in W.P(C) No.5596/2010. 2/3rd of 8 is 5.33. The fraction .33 therefore has to be rounded to one and hence, the required number for adoption of the no-
confidence would be 6 out of 8. The motion expressing want of confidence having been adopted admittedly by 5 members, the same cannot be held to be adopted as required by sub-section (1) of Section 43 of the 1994 Act and therefore, the impugned communication dated 12.08.2010 issued by the Chief Executive Officer of the Zilla Parishad cannot be held to be contrary to the said provision of law."
The learned counsel for the petitioner has also relied on the other decisions rendered by this Court in Jiten Saikia & anr. Vs. State of Assam & ors.; 2004 (2) GLT 233 wherein this Court had also held that for computing two-third majority even a fraction cannot be ignored and as such, fraction should be read as a whole number as 1. Therefore, accordingly, the resultant number would be the next higher integer. It was also held that any fraction, howsoever small may be, would represent the corresponding opinion also essential for comprising the required majority for unseating the President or the Vice President and thus cannot be ignored. To overlook the fraction would be emasculate the provision of its rigour and reduce the exercise to a formality which could not be intention of the legislative on such a moment. Similar decision had been rendered by this Court in Abdul Malik vs. State of Assam ; 2011 (3) GLT 409.
[12] Therefore, in view of the above decisions, the petitioner is right in contending that in the present context of a resolution for motion of No Confidence against the petitioner, the minimum requirement to constitute two-third of the of the total number 10 members would be 7. Therefore, the issue to be decided is whether there were at least seven (7) valid votes against the petitioner in the aforesaid meeting held on 7.8.2010 which was held for considering the No Confidence Motion against the petitioner.
[13] The learned counsel for the petitioner has also hammered on the second contention that since removal of the elected President entails serious consequence for an elected member, the process involved in the removal as provided under the statute must be scrupulously followed, and if there be any deviation from any provision of any statutory 8 provisions or the procedures provided under the statute, the entire action would be vitiated.
[14] The learned counsel for the petitioner submits that as provided u/s 15(1) of the Assam Panchayat Act, 1994, there are three levels where No Confidence Motion can be convened. Firstly, at the level of Gaon Panchayat. Secondly, at the level of Anchalik Panchayat and thirdly, at the level of Deputy Commissioner/Sub-Divisional Officer. Where No Confidence could not be convened at the level of the Gaon Panchayat and the Anchalik Panchayat, the the Deputy Commissioner/Sub-Divisional Officer will convene the meeting with intimation to the Zilla Parishad and Anchalik Panchayat and will preside over the meeting so convened, provided that the if the concerned Deputy Commissioner or the Sub- Divisional Officer (Civil) as the case may be is unable to preside over the meeting, he may depute one Gazetted Officer under him not below the rank of Class-I to preside over such meeting. According to the petitioner, when this Court issued the direction on 25.6.2010 in the said W.P(C) No.1953/2010, the Court had specifically directed that the No Confidence Motion shall be processed and finalised as per the provisions of Sec. 15 of the Assam Panchayat Act, 1994. The Court also directed the official respondents to do the needful as expeditiously as possible and in this regard and they shall adhere to the time limit fixed as far as possible. There was no direction by this Court which would warrant any departure from the provisions of Sec. 15 of the Act. Thus, according to the petitioner, the procedure as prescribed u/s 15(1) of the Assam Panchayat Act, 1994 has to be strictly complied with and any departure from the proceeding prescribed u/s 15 would render any such decision taken invalid.
The learned counsel for the petitioner has submitted that in the present case, as can be seen from the records, the Deputy Commissioner, Hailakandi had written to the Secretary, BB Gaon Panchayat to take necessary actions as per the order of the Court who in turn wrote to the BDO, Hailakandi, to take action. Thereafter, the Secretary and the Executive Officer of the Hailakandi Anchalik Panchayat issued a notice on 5.8.10 for convening a meeting on 7.8.2010 to consider the No Confidence Motion against the petitioner and the said No Confidence Motion which held on 7.8.2010 was presided over by the Block Development Officer, Hailakandi.
9The learned counsel for the petitioner submits that the procedures adopted in the present case resulting into the said meeting held on 7.8.2010 is not in accordance with the procedure prescribed u/s 15(1) of the Assam Panchayat Act, 1994. The petitioner contends that in the present case, the Deputy Commissioner never convened the meeting. It was the Secretary and the Executive Officer, Hailakandi Anchalik Panchayat who convened the meeting. The aforesaid Secretary and the Executive Officer, Hailakandi Anchalik Panchayat had no authority under the Act to convene such meeting for consideration of the No Confidence Motion. Further, the aforesaid meeting held on 7.8.2010 to consider No Confidence Motion was supposed to be presided over either by the Deputy Commissioner or the Sub-Divisional Officer (Civil), which however, was also not done. Thirdly, there is nothing to show that the Deputy Commissioner or the Sub-Divisional Officer (Civil) had deputed the Block Development Officer, Hailakandi to preside over the meeting. In view of that, the learned counsel for the petitioner submits that the entire procedure culminating in the passing of the aforesaid so called No Confidence Motion against the petitioner being in violation of the statutory provisions as provided under section 15(1) of the Assam Panchayat Act, 1994, the same is liable to be interfered with.
[15] Relying on the judgments rendered by this Court passed in Aleya Khatun & ors. Vs. State of Assam & ors.; 2004 (3) GLT 361, this Court held that the procedure provided u/s 15(1) of the Act are mandatory in nature and the authorities concerned are to adhere to the prescription of the Section and are to be vigilant to ensure strict compliance thereof in view of the fact that disaster would fall if the No Confidence Motion is passed and as such, no deviation from it is permissible. The learned counsel has also relied on the decisions rendered by this Court in Basanti Das vs. State of Assam & ors, reported in 2004 (SUPPL.) GLT 717; Abul Hussain & ors. Vs. State of Assam & ors. reported in 2006 (SUPPL.) GLT 195; State of Manipur & ors. Vs. Angom Suchila Devi reported in 2009 (3) GLT 757; Karun Kanti Malakar & ors. Vs. Nosir Ahmed Mazumdar & ors., reported in 2010 (3) GLT 415 and on the basis of the aforesaid decisions has submitted that the provisions regarding removal of an elected member by way of No Confidence Motion has to be strictly complied with and any deviation or 10 infraction from the procedure prescribed which are mandatory in nature would render any such resolution void and illegal.
[16] In response to the aforesaid contentions of the petitioner, the learned counsel for the respondents has contended that there was no violation of any provision of law as provided under the Assam Panchayat Act, 1994, the meeting was convened as per the direction of this Court and after the petitioner had refused to convene the meeting as required u/s 15 of the Assam Panchayat Act, 1994 and as such, no fault can be found with the procedure adopted.
[17] Learned counsel for the respondents also has submitted that the said 2 members, the respondents No. 9 and 14 had never resigned as members. He contended that the aforesaid so called applications submitted by them for resignation on 10.12.2009 had been obtained by the petitioner by practising fraud upon the said 2 members. Learned counsel for the respondents has submitted that the petitioner while functioning as the President of the Gaon Panchayat took their signatures from the said two members in blank papers on the pretext of submitting representation for welfare of the respective local areas and subsequently converted the same into resignation letters illegally. Learned counsel for the respondents has also submitted that in fact, subsequently on 2.02.2010, the said two members along with others residents of the village had submitted an application before the Executive Magistrate, Hailakandi u/s 107 of the Cr.P.C. for providing them security in view of the threat received from the petitioner and her supporters. Learned counsel for the respondents has also stated that in the earlier proceedings before this Court in W.P(C) No.1953/2010, the writ petitioner never raised the issue of the question of resignation stated to have been submitted by the said two members on 10.12.2009 and submitted that the so called resignation letters dated 10.12.2009 are fake and manufactured documents prepared by the writ petitioner only to gain undue advantage and the same needs to be verified through experts. Accordingly, it has been submitted that their votes cannot be invalidated and since they had voted along with others on the said day, who were 8 in numbers, which is more than the required two-third majority and as such, the aforesaid No Confidence Motion against the petitioner was validly moved.
11Learned counsel for the respondents has also submitted that assuming but not admitting that the aforesaid 2 members had resigned and were not accordingly entitled to participate in the said meeting, the said resignations are not going to affect the proceedings in as much as the total number of the Gaon Panchayat will be reduced to only 8 members. According to the counsel for the respondents, the total number of members of the Gaon Panchayat would be now 8 instead of 10. If that is so, the two third of 8 total members would be 5.33 and by rounding off, it would be 6. Since the said resolution for removal of the petitioner was carried by 6 valid members excluding the two who had resigned, the said resolution passed against the petitioner for her removal is valid.
[18] As to the query by this Court as to whether the petitioner could raise the plea of violation of the procedures for considering the no confidence motion, the learned counsel for the petitioner has submitted that even though no such specific pleading had been taken in the writ petition, since it is a question of law, the petitioner would be entitled to raise such pleas and this Court in exercise of jurisdiction under Article 226 of the Constitution has ample power to look into such issue for the ends of justice.
[19] The learned counsel for the petitioner also has refuted the contention of the respondents that in the event the said members are to said to have been resigned the total number of Gaon Panchayat will be reduced to 8 for the purpose of consideration of the No Confidence Motion as provided u/s 15 of the Assam Panchayat Act, 1994. Learned counsel for the petitioner contends that there is no provision under the Act which provides that the total number of members of the Gaon Panchayat as mentioned in Section 15 of the Act would mean the total number of existing members. In support of his contention, the learned counsel for the petitioner has referred to the decision rendered in Samiruddin Ahmed vs. S. D. O., Mangaldoi and others, reported in AIR 1971 ASSAM AND NAGALAND 163 in CR No.589 of 1969 by the then Assam & Nagaland High Court reported in AIR 1971 Assam & Nagaland 163. Learned counsel for the petitioner has submitted that the High Court of Assam and Nagaland was dealing with the provisions under the Assam Gram Panchayat Act(24), 1959 and interpreting the construction of the words "at least a minimum of two-third of the total of 12 the members" and the Court held that it refers to two-third of the total strength of the Gaon Panchayat and two-third of the existing members functioning at that point of time. Learned counsel for the petitioner therefore submits that similar provisions exist under the present Assam Panchayat Act, 1994 and in view of the aforesaid decision, the total number of members of the Gaon Panchayat would refer to the total sanctioned strength of the Gaon Panchayat, not the existing members and as such, even if the said 2 members are no more members of the Gaon Panchayat because of their resignations, the total number of members of the Gaon Panchayat would remain at 10. Accordingly, the required number of two-third majority of the total number of members of the Gaon Panchayat would be 7(seven) in spite of resignation by the two members.
[20] Having heard the rival contentions of the parties, the following issues emerge for consideration by this Court:
(1) Whether the two members, namely, Sri Rahimuddin Barbuiyan, and Sri A.A. Mazumdar, had resigned from the membership of the Gaon Panchayat so as to disentitle them to participate in the said meeting held on 7.8.2010?;
(2) What would be number of two-third of the total number of members of the Gaon Panchayat so as to carry any valid No Confidence Motion as provided u/s 15 of the Assam Panchayat Act, 1994?;
(3) Whether in the present case, the procedures adopted in passing the resolution of No Confidence Motion on 7.8.2010 was in accordance with law?
[21] Coming to the first issue as to whether the said 2 members had resigned from the membership of the Gaon Panchayat, it is seen that as per records at Annexure-7 and 7-A, the two members had purportedly submitted applications for resignation from the membership on 10.12.2009 which was stated to have been accepted by the President on 6.1.2010. The claim of the respondents is that the aforesaid 2 members at any point of time did not tender their resignation. It is their contention that the writ petitioner while being the President of the Gaon Panchayat took the signatures of the said 2 members in blank papers on the pretext for submitting representations for welfare of the respective local areas which was illegally converted into resignation letters by putting the date 10.12.2009.
13Thus what emerges is that the respondents admit that the signatures in the resignation papers are those of the Respondents no. 9 and 14, Sri Rahimuddin Barbuiyan, and Sri A. A. Mazumdar. What is being contended is that the said signatures have been subsequently misused by the petitioner. Even though this Court would not normally venture into these areas, where disputed questions of facts are involved, this Court can act on those facts which are not disputed. Since, the respondents have not disputed the signatures of the Respondents no.9 and 14, this Court can draw an inference that they had signed the resignation letters. What is to be noted is also the fact that the Respondents no. 9 and 14 themselves did not file any affidavit to deny that they had submitted such resignation letters as contended by the petitioner. Whether the signatures were obtained by the petitioners by practicing fraud as contended by the respondents could only be clarified by the Respondents no. 9 and 14 themselves and not by others who do not have personal knowledge of the same. There is nothing in the affidavit in opposition filed on behalf of the Respondents filed by the Respondent no. 7 as to the source of information regarding the averment of aforesaid manipulation of the signatures of the Respondents no. 9 and 14 by the petitioner. (See State Of Bombay Vrs. Purushottam Jog Naik, AIR 1952 SC 317) Further, assuming that the signatures of the said two members had been subsequently manipulated as claimed by the Respondents, there is also nothing to show that these two members had challenged the validity of the said allegedly manipulated resignation letters before any court of law or any appropriate forum at any point of time. Therefore, the aforesaid resignation letters which were purportedly accepted by the President of the Gaon Panchayat would remain valid unless held otherwise by a competent authority or Court.
Therefore, this Court holds that the said two members, i.e., Sri Rahimuddin Barbuiyan, and Sri A.A. Mazumdar had submitted their resignation letters which were accepted by the competent authority, and having resigned from membership of the Gaon Panchayat on 10.12.2009, they were not entitled to participate in the said meeting held on 7.8.2010. Accordingly, their votes could not have been counted. Consequently, the number of valid votes which were cast in favour of the No confidence Motion would be only 6 (six) and not 8 (eight).
14[22] The next issue to be decided is to ascertain the total number of members of the BB Gaon Panchayat for the purpose of the No Confidence Motion proceedings undertaken under Section 15 of the Assam Panchayat Act.
Under Section 6 of the Assam Panchayat Act, 1994 the Gaon Panchayat consists of 10 members to be directly elected by the voters of the territorial constituencies of the Gaon Panchayat and the President of the Gaon Panchayat, who will be elected directly by the voters of the territorial constituencies of the Gaon Panchayat area.
As such, the total number of members of a Gaon Panchayat would be eleven i.e., (10+1 = 11).
Under Section 15 of the Assam Panchayat Act, 1994, "Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two third of the total numbers of members of the Goan Panchayat."
Thus, the dispute in the present petition revolves round the interpretation of the words, "two third of the total numbers of members of the Goan Panchayat".
The petitioner contends that the total number of the Gaon panchayat would mean the sanctioned strength of the Gaon panchayat and not the existing, irrespective of the fact that some members may have resigned or ceased to be members of the Gaon panchayat.
On the other hand, the Respondents contend that the total number of the Gaon panchayat would mean the existing strength of the Gaon Panchayat since, members who tender their resignation or demit office due to death or otherwise, cease to be members and cannot be counted as members for the purpose of determining the total member of the Gaon Panchayat.
A similar issue arose before this Court (as then High Court of Assam and Nagaland) in "Samiruddin Ahmed vs. S. D. O., Mangaldoi and others, reported in AIR 1971 ASSAM AND NAGALAND 163 in which the Court while interpreting the words "at least a minimum of two- thirds of total number of members" as found in Section 27 (1) (b) of the Assam Panchayat Act, 1959 held as follows:
"........The matter, therefore, turns upon the construction of Section 27 (1) (b). What is the meaning of the words - "at least a minimum of two-thirds of total number of members"
in Section 27 (1) (b). It is contended by the petitioner that 15 the total number of members must be the total sanctioned strength of the Gaon Panchayat which is admittedly thirteen. On the other hand, it is submitted by the respondents that two-thirds must have relation to the existing members functioning at the time. Since one member was already dead and another has ceased to be a member of the Gaon Panchayat, the total number of members for the purpose of this section on the material date is eleven and not thirteen. The presence of eight members in the meeting of 3rd June therefore, fulfils the requirement of Section 27 (1) (b). We are unable to accept the submission of the respondents. There is no warrant for adding a word "existing" in Section 27 (1) (b) to qualify the words "number of members". Under this section a President immediately ceases to be a President on passing of a motion of no-confidence against him by three-fifth majority of the minimum requisite members present. Such a provision under the law resulting in deprivation of an office has to be strictly construed as it affects the right of an elected office-bearer to continue for the normal span of his office."
[23] We may also add that it is now well settled principle of law that wherever, the words of the statutes are clear and not ambiguous, principle of literal rule should be adopted, i.e., the provisions should be given its plain and normal reading without adding and ignoring any words. Any departure from such plain reading would be permissible only if such a plain reading leads to any absurdity or repugnancy or irrationality.
In this regard we may refer to the decision of the Supreme Court rendered in Afcons Infrastructure Limited v. Cherian Varkey Construction Company Private Limited, (2010) 8 SCC 24, where it was held, "20. The principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. Departure from the literal rule, by making structural changes or substituting words in a clear statutory provision, under the guise of interpretation will pose a great risk as the changes may not be what the legislature intended or desired. Legislative wisdom cannot be replaced by the Judge's views. As observed by this Court in a somewhat different context:
"6. ... When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser."
(See Shri Mandir Sita Ramji v. Lt. Governor of Delhi4, SCC p. 301, para 6.) 16
21. There is however an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provisions, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the legislature has deliberately introduced an absurd or irrational statutory provision. Departure from the literal rule of plain and straight reading can however be only in exceptional cases, where the anomalies make the literal compliance with a provision impossible, or absurd or so impractical as to defeat the very object of the provision. We may also mention purposive interpretation to avoid absurdity and irrationality is more readily and easily employed in relation to procedural provisions than with reference to substantive provisions.
21.1. Maxwell on Interpretation of Statutes (12th Edn., p.
228), under the caption "modification of the language to meet the intention" in the chapter dealing with "Exceptional Construction" states the position succinctly:
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."
This Court in Tirath Singh v. Bachittar Singh5 approved and adopted the said approach."
21.2. In Shamrao V.Parulekar v. District Magistrate, Thana6 this Court reiterated the principle from Maxwell : (AIR p.327,para 12) "12. ..... if one construction will lead to an absurdity while another will effect to what common sense would show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to 17 be construed differently. Indeed, the law goes so far as to require the courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided." 21.3. In Molar Mal v. Kay Iron Works (P) Ltd. 7 this Court while reiterating that courts will have to follow the rule of literal construction, which enjoins the court to take the words as used by the legislature and to give it the meaning which naturally implies, held that there is an exception to that rule. This Court observed : (SCCp.295, para 12) "12. ..... That exception comes into play when application of literal construction of the words in the statute leads to absurdity, inconsistency or when it is shown that the legal context in which the words are used or by reading the statute as a whole, it requires a different meaning."
21.4 In Mangin v. IRC 8 the Privy Council held : (AC. p.746E) "......... the object of the construction of a statute being to ascertain the will of the legislature it may be presumed that neither injustice nor absurdity was intended. If therefore a literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted." *4: (1975) 4 SCC 298 *5: AIR 1955 SC 830 *6: AIR 1952 SC 324 : 1952 Cri LJ 1503 *7: (2000) 4 SCC 285 *8: 1971 AC 739 : (1971) 2 WLR 39:
(1971) 1 All ER 179(PC) [24] That in view of the above legal position, we have to examine whether by resorting to literal interpretation of the aforesaid words, it leads to any absurdity or incongruency. Since, by holding that the total number of members would be 11 (eleven), it does not lead to any absurdity, the words, "two third of the total numbers of members of the Goan Panchayat" would mean the total number of Gaon Panchayat and the words "existing" cannot be read into the said provision as to mean only those members who are presently the members. Therefore, there is no need depart from the rule of literal interpretation.
Accordingly, the total numbers of members of the Gaon Panchayat would be 11 as provided under Section 16 of the Act and not the existing members sans the resigned members.
Therefore, at least 7 members would be required to support such a no confidence motion to remove the petitioner.
In present case, since this Court has already held that the two members had already ceased to be members on account of their resignation, their votes are invalid and the valid votes cast in favour of the 18 no confidence motion would be only 6 (six) which falls short of the required number. Accordingly, the said motion is not valid for removing the petitioner from the office of the President of the BB Gaon Panchayat.
[25] The learned counsel for the petitioner has also very strenuously argued that the entire procedure adopted for for considering the no confidence motion is vitiated for the reasons that the procedure prescribed under Section 17 of Act was not scrupulously followed.
As regards this contention petitioner, it is to be noted that no such plea was taken in the pleadings in the writ petition. However, it was urged during the final hearing.
This Court is of the view that such plea which is not specifically pleaded in the petition ought not be allowed to be taken at the time of final hearing taking the other side by surprise.
This contention that the procedure prescribed by law was not followed is not a pure question of law that it could have been raised at any stage of the proceedings, but a mixed question of facts and law. The petitioner contends that the Deputy Commissioner or the Sub Divisional Officer ought to have presided over the meeting to consider the No Confidence Motion held on 7.8.2010 or ought to have deputed one Gazetted Officer not below the rank of Class I to preside over such meeting. It is a fact that the Deputy Commissioner or the Sub Divisional Officer did not preside over the meeting. But it cannot be ascertained in absence of proper affidavit whether the Deputy Commissioner or the Sub Divisional Officer had deputed the said Executive Officer of the Hailakandi Anchalik Panchayat or not, to preside over the meeting, or also whether said Executive Officer was a Gazetted Officer not below the rank of Class - I. These are issues which cannot be decided without necessary and appropriate pleadings in that regard.
The learned Counsel for the petitioner also submits that since the validity of the proceeding of the meeting held on 7.8.2010 was challenged, the petitioner would be at liberty to take all such pleas to show that the such proceeding was illegal, more so when it goes to the root of the matter.
This contention of the petition however, is not tenable. If the petitioner feels that this plea is the most important and goes to the root of the matter, nothing prevented the petitioner from mentioning it in the writ petition. A perusal of the petition also shows that there was not even a 19 whisper of the same. There is not a single sentence or any statement to the effect that the procedure adopted in the meeting was not proper or was illegal. The entire writ petition is devoted on the issue that the Respondents no. 9 and 14 had resigned and were not entitled to take part in the meeting held on 7.8.2010.
The rules of pleading, though a matter of procedure, cannot be stretched to the extent of allowing any party to be taken by surprise, more so when elements of factual issues are involved.
The Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College, (1987) 2 SCC 555, held that, "6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Chandramaul1 a Constitution Bench of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another."20
One may refer to the decision of the Apex Court rendered in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548, "37. Before we embark upon the respective contentions made before us on the said issue, we may notice that although the point was urged during hearing before the High Court, the first respondent in its writ application did not raise any plea in that behalf. The High Court was not correct in allowing the first respondent to raise the said contention. (See Chimajirao Kanhojirao Shirke v. Oriental Fire & General Insurance Co. Ltd.2, SCC at p. 625.)"
2* (2000) 6 SCC 622.
In view of the above settled position of law, since there is no averment or pleading in the petition or even by implication, that the process adopted in the said meeting is not in accordance with law, the petitioner cannot be allowed raise the said plea at the time of hearing.
However, in view of the fact that this Court has already held that the there was no requisite number of the minimum two-third of the total number of the member of the Gaon Panchayat to remove the petitioner, this petition stands allowed.
As a result the impugned Resolutions passed on 7.8.2010 for removing the petitioner from the office of the President of Basdhahar Barhailandandi Gaon Panchayat in Hailakandi District, Assam, is quashed. Consequently, the petitioner, Smt. Fakrun Nessa Choudhury is entitled to remain as President of Basdhahar Barhailandandi Gaon Panchayat till she is removed in accordance with law and the letter dated 16.9.2010 directing the Vice-President of the Gaon Panchayat, Sri Ali Ahmed Choudhury to exercise the powers, functions and duties of President under section 13(1) of the Assam Panchayat Act, 1994 is also quashed.
With the above observations and directions, this writ petition is allowed. No order as to costs.
JUDGE FR/NFR Opendro(rt)