Gauhati High Court
Abdul Malik vs The State Of Assam And Ors on 11 January, 2011
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram & Arunachal Pradesh)
WP(C) No. 1955 of 2010
Abdul Malik,
President, Pub-Mangaldoi Anchalik Panchayat,
S/O Mohiruddin Ahmed,
resident of village-Hirapara,
PO & PS-Dhula, Dist.-Darrang, Assam.
......Petitioner.
-Versus-
1. The State of Assam,
represented by the Commissioner & Secretary
to the Govt. of Assam, Panchayat and Rural
Development Department, Dispur, Guwahati-6.
2. The Director of Panchayat and Rural
Development Department, Assam,
Panjabari Road, Juripar, Guwahati-37.
3. The Deputy Commissioner,
Darrang at Mangaldoi,
PO & PS-Mangaldoi, Dist.-Darrang, Assam.
4. The Chief Executive Officer (In-Charge) of
Darrang Zilla Parishad,
Darrang at Mangaldoi,
Dist.-Darrang, Assam.
5. The President of Darrang Zilla Parishad,
Darrang at Mangaldoi,
Dist.-Darrang, Assam.
6. The Block Development Officer,
Pub-Mangaldoi Development Block,
Dist.-Darrang, Assam.
7. Abu Bakkar Siddique,
Vice-President of Pub-Mangaldoi Anchalik
Panchayat,
S/O Sirajul Hoque,
resident of village-Latakhat,
PO-Balabari, PS-Dhula,
WP(C) 1955/2010 Page 1 of 10
Dist.-Darrang, Assam.
......Respondents.
Advocate(s) for the Petitioner :
Mr. A.M. Mazumdar (Sr. Adv.), Mr. A. Choudhury, Mr. S. Islam, Mr. F.K.R. Ahmed, Mr. A. Ali.
Advocate(s) for the Respondents :
Mr. G. Soren, GA, Assam, for respondent Nos.1, 2, 3 & 6, Mr. H.R.A. Choudhury (Sr. Adv.) for respondent Nos.4 and 5, Mr. G.N. Sahewalla (Sr. Adv.) for respondent No.7.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 11.01.2011
Date of Judgment & Order : 31.01.2011
JUDGMENT AND ORDER
The President of Pub-Mangaldoi Anchalik Panchayat (in short the Anchalik Panchayat) has filed this writ petition challenging the notice dated 19.03.2010 issued by the Chief Executive Officer (In-Charge) of Darrang Zilla Parishad (in short the Zilla Parishad) informing the writ petitioner that a special meeting has been convened on 29.03.2010 at 11 A.M. in the office WP(C) 1955/2010 Page 2 of 10 of the Anchalik Panchayat to discuss the no confidence motion brought against him by few members of the Anchalik Panchayat.
2. 7(seven), out of 11(eleven) directly elected members of the Anchalik Panchayat submitted a notice on 26.02.2010 expressing want of confidence on the writ petitioner, pursuant to which the Chief Executive Officer (In-Charge) of the Zilla Parishad issued the impugned notice dated 19.03.2010 informing the writ petitioner and other members of the Anchalik Panchayat about convening the special meeting on 29.03.2010 to discuss the no confidence motion brought against the writ petitioner. The writ petitioner, thereafter, on 20.03.2010 filed a representation before the Director of Panchayat and Rural Development, praying for a direction to the Chief Executive Officer of the Zilla Parishad to cancel the aforesaid notice. Since no action has been taken, the petitioner filed the present writ petition challenging the said notice. Vide order dated 24.03.2010 this Court while issuing notice of motion directed the Director of Panchayat and Rural Development to consider and dispose of the aforesaid representation of the writ petitioner dated 20.03.2010, on or before 29.03.2010, i.e. the date fixed for holding the special meeting. An interim order was also passed directing that till such disposal, the impugned notice dated 19.03.2010 shall not be acted upon. The Commissioner of Panchayat and Rural Development, WP(C) 1955/2010 Page 3 of 10 thereafter, vide order dated 06.03.2010 rejected the representation dated 20.03.2010 filed by the writ petitioner. The special meeting of the Anchalik Panchayat was accordingly held on the date fixed i.e. on 29.03.2010, wherein a resolution has been adopted by 7 members present expressing want of confidence on the writ petitioner. A further resolution was also adopted for allowing the Vice-President, the respondent No.7 to act as the President of the Anchalik Panchayat temporarily. The fact of adoption of such resolution by the Anchalik Panchayat has been brought to the notice of the Court by the writ petitioner by filing the application, registered and numbered as Misc. Case No.2202/2010, praying for setting aside the said proceeding dated 29.03.2010. A Single Bench of this Court, thereafter, vide order dated 01.04.2010 has directed not to act upon the result of the said meeting dated 29.03.2010. Hence apart from the notice dated 19.03.2010 issued by the Chief Executive Officer (In-Charge) of the Anchalik Panchayat, the proceeding dated 29.03.2010 of the Anchalik Panchayat expressing want of confidence on the writ petitioner, has also been challenged in the present proceeding.
3. I have heard Mr. A.M. Mazumdar, learned Sr. counsel for the petitioner, Mr. G. Soren, learned State counsel appearing for the State respondent Nos.1, 2, 3 and 6, Mr. H.R.A. Choudhury, learned Sr. counsel appearing for the respondent Nos.4 and 5 and WP(C) 1955/2010 Page 4 of 10 Mr. G.N. Sahewalla, learned Sr. counsel appearing for the respondent No.7.
4. Mr. Mazumdar, learned Sr. counsel for the petitioner, referring to the provision of sub-section (1) of Section 43 of the Assam Panchayat Act, 1994 (in short 1994 Act), has submitted that the President or the Vice President of an Anchalik Panchayat can be removed from the office, only if, the majority of 2/3 rd of total number of the directly elected members of the Anchalik Panchayat adopts a resolution, in a special meeting convened for that purpose, expressing want of confidence on the President or the Vice President, as the case may be. It has been submitted that total number of the directly elected members, in the present Anchalik Panchayat being 11, the 2/3rd would be 8, as any remainder, even if it is less than 5, while calculating such 2/3 rd, cannot be ignored. According to Mr. Mazumdar as only 7 members out of 11 have adopted the motion expressing want of confidence against the petitioner, such motion cannot be held to be validly adopted ousting the petitioner from the office, the same being contrary to the provisions contained in sub-section (1) of Section 43 of the 1994 Act. Mr. Mazumdar in support of his contention has placed reliance on a Single Bench decision of this Court in Jiten Saikia and another Vs. State of Assam and others reported in 2004(2) GLT 233.
WP(C) 1955/2010 Page 5 of 10
5. Mr. Sahewalla, learned Sr. counsel appearing for the respondent No.7, on the other hand, has submitted that while calculating the 2/3rd of the total numbers of directly elected members, as stipulated in sub-section (1) of Section 43 of the 1994 Act, if there is any remainder, which is less than 5, the same has to be ignored, by applying the rule of rounding off. According to Mr. Sahewalla in the case in hand, 2/3rd of 11 being 7.33, the proceeding of the Anchalik Panchayat dated 29.03.2010 adopting the resolution expressing want of confidence by 7 members, cannot be held to be contrary to the requirement of sub-section (1) of Section 43 of the Act.
6. Mr. H.R.A. Choudhury, learned Sr. counsel appearing for the respondent Nos.4 and 5, supporting the argument advanced by the learned Sr. counsel appearing for the respondent No.7, has also submitted that while calculating the 2/3 rd of the total number of members of the Anchalik Panchayat, any fraction less than 5 has to be ignored and in the instant case 7 members out of 11 directly elected members having adopted the resolution expressing want of confidence against the writ petitioner, he has been removed from the office of the Anchalik Panchayat by virtue of the provision of sub-section (1) of Section 43 of the 1994 Act. WP(C) 1955/2010 Page 6 of 10
7. Mr. Soren, learned State counsel appearing for the State respondents has submitted that the State respondents shall abide by the decision that may be rendered in the present case. No stand however has been taken by the learned counsel either supporting or opposing the submission advanced by the learned counsel for the petitioner. No affidavit-in-opposition has also been filed by the respondents.
8. I have considered the submissions of the learned counsel for the parties and also perused the pleadings. From the arguments advanced by the learned counsel for the parties the following issue emerges for decision:-
Whether, while calculating the 2/3rd of total number of directly elected members of the Anchalik Panchayat for the purpose of adopting a resolution expressing want of confidence on the President or the Vice President of an Anchalik Panchayat, as required under sub-section (1) of Section 43 of the 1994 Act, if the result bears a fraction, which is less than 5, then it shall be rounded up to the next higher integer?
9. Before appreciating the argument advanced by the learned counsel for the parties, in the issue involved in the present case, the provision of sub-section (1) of Section 43 is required to be noticed. Sub-section (1) of Section 43 provides for removal of President or the Vice President of an Anchalik WP(C) 1955/2010 Page 7 of 10 Panchayat from the office by a resolution expressing want of confidence adopted by a majority of 2/3rd of the total number of directly elected members of the Anchalik Panchayat, in a meeting specially convened for that purpose. For better appreciation, sub- section (1) of Section 43 of the said Act is reproduced below:-
"43. No confidence motion against the President and the Vice- President of Anchalik Panchayat. - (1) Every President and Vice- President of the Anchalik Panchayat shall be deemed to have vacated his office forthwith, if by a resolution express want of confidence in him is passed by a majority of two-third of total number of the directly elected the members of the Anchalik Panchayat. Such a meeting shall be specially convened with the approval of the President of the Anchalik Panchayat. Such meeting shall be presided over by the President if the motion is against Vice President and by the Vice-President if the motion is against the President. In case such a meeting is not convened by the Anchalik Panchayat within a period of fifteen days from the date of receipt of the notice, the Secretary of the Anchalik Panchayat shall refer the matter to the President of the Zilla Parishad with intimation to the Deputy Commissioner. The President of the Zilla Parishad shall then arrange for convening the meeting within fifteen days from the date of receipt of intimation. The Zilla Parishad President shall preside over such meeting but shall have no vote."
10. The Anchalik Panchayat in question consists of 11 directly elected members. 7 members brought the motion expressing want of confidence against the writ petitioner and such motion was adopted in the meeting of the Anchalik Panchayat held on 29.03.2010, as all those 7 members supported that motion. As noticed above, sub-section (1) of Section 43 of the 1994 Act requires that to remove the President or the Vice President of an Anchalik Panchayat, by adopting the motion expressing want of confidence, the same has to be passed by a majority of 2/3 rd of the total number of directly elected members. The question therefore, is what would be 2/3rd of 11 directly elected members WP(C) 1955/2010 Page 8 of 10 and while calculating the same whether any fraction, which is less than 5, is to be ignored.
11. As noticed above, sub-section (1) of Section 43 of the 1994 Act clearly provides that President or the Vice President of the Anchalik Panchayat can be removed from the office by adopting a motion expressing want of confidence by majority of 2/3rd of the total number of directly elected members of the Anchalik Panchayat. While calculating the 2/3 rd number, if there is any fraction, howsoever small may be, the same cannot be ignored for the simple reason that the same would then not constitute the 2/3rd of the total number of directly elected members, which is the requirement for adoption of the resolution expressing want of confidence and as such fraction also represents the view of the members. Any fraction, therefore, 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. An interpretation contrary to the same would be against the intention of the legislature as couched in Section 43(1) of the 1994 Act.
12. Similar view has also been taken by a Single Bench of this Court in Jiten Saikia (supra). I have also taken the same WP(C) 1955/2010 Page 9 of 10 view in WP(C) No.4815/2010 (Smt. Junali Doley (Borah) and others Vs. the State of Assam and others.).
13. In view of the aforesaid discussion, it cannot be held that the motion expressing want of confidence against the writ petitioner has been adopted in the proceeding dated 29.03.2010, as required under sub-section (1) of Section 43 of the 1994 Act.
14. The proceeding of the meeting of the Anchalik Panchayat dated 29.03.2010 is, therefore, set aside.
15. The writ petition stands allowed. No cost.
JUDGE Roy WP(C) 1955/2010 Page 10 of 10