Gauhati High Court
Rita Rani Dushad vs The State Of Assam And 14 Ors on 9 August, 2016
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 2051/2014
Rita Rani Dushad
W/o Sri Pujan Dushad
R/o Village-Dudhpatil
P.O. Haticherra, P.S. Silchar,
Dist. Cachar, Assam
- Petitioner
-Versus-
1. The State of Assam,
represented by the Commissioner and Secretary,
Panchayat and Rural Development,
Juripar, Panjabari, Guwahati-37.
2. The Deputy Commissioner,
Cachar, Silchar, Assam.
3. The Block Development Officer,
Borkhola Development Block,
P.O. Borkhola, District-Cachar, Assam.
4. The Secretary,
Masughat Gaon Panchayat,
P.O. Dudhpatil, District-Cachar, Assam.
5. The President,
Borkhola Anchalik Panchayat,
P.O. Borkhola, District-Cachar, Assam.
6. Padmini Singha,
Vice-President, No. 136 Masughat Gaon Panchayat,
Village-Kharilpar, P.O. Dudhpatil,
District-Cachar, Assam.
7. Ratna Rani Das,
Member, Ward No. 1,
Village-Masughat.
8. Sri Sontosh Kr. Das
Member, Ward No. 2,
Village-Daspara.
9. Sankar Kurmi,
Member, Ward No. 3,
Dudhpatil Part-4.
10. Sahar Alam Borbhuiya
Member, Ward No. 5,
Village-Apor Basti.
11. Surajit Singha
Member, Ward No. 6,
Village-Daliagram.
12. Anjana Nath,
Member, Ward No. 6,
Village-Nathpara.
WP(C) 2051/2014
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13. Monuwara Begum Laskar
Member, Ward No. 8,
Village-Nathpara.
14. Nazrul Islam Choudhury,
Member, Ward No. 9,
Itkhola Ghat.
15. Mahmuda Begum Laskar,
Member, Ward No. 10,
Village-Chaudhury Para.
- Respondents
BEFORE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
Advocates present:
For the petitioner : Mr. A. K. Talukdar, Advocate
For respondents Nos. 1 to 4 : Mr. T.C. Chutia, Government Advocate,
For respondents No. 6, 7, : Mr. N. H. Barbhuiya, Advocate
10, 11, 12 and 14
For respondents No. 8, 9, : Mr. S. A. Ahmed, Advocate,
13 and 15
Dates of hearing : 02.08.2016 and 09.08.2016
Date of judgement : 09.08.2016.
JUDGMENT AND ORDER
(ORAL)
Heard Mr. A. K. Talukdar, learned counsel for the petitioner. Also heard Mr. T. C. Chutia, learned State counsel, appearing for respondents No. 1 to 4, Mr. N. H. Barbhuiya, learned counsel for respondents No. 6, 7, 10, 11, 12 and 14, Mr. S. A. Ahmed, learned counsel for respondents No. 8, 9, 13 and 15. None appears for respondent No. 5 during the entire course of the proceeding.
2. On the request of the learned counsel for the parties, the writ petition has been heard at the admission stage itself and is being disposed of by this order.
3. The challenge in this writ petition is to a resolution dated 31.03.2014 expressing want of confidence against the petitioner, who was the elected President of Masughat Gaon Panchayat. The post of President was reserved for woman candidate belonging to Scheduled Caste.
4. The pleaded case in the writ petition is that on the basis of a letter dated 17.03.2014, issued by the Deputy Commissioner, Cachar, Silchar, a special meeting was held on 31.03.2014 by the respondent No. 3, i.e., Block Development Officer, Borkhola Development Block, to consider No Confidence Motion against the petitioner on the basis of a requisition notice dated 31.01.2014 submitted by respondents No. 6 to 15. In the WP(C) 2051/2014 3 requisition notice, certain allegations were made against the petitioner. It is averred by the petitioner that the requisition was never placed before her either by the Secretary of the Gaon Panchayat or by the members, who had signed the requisition, to accord approval for holding a special meeting for discussing No Confidence Motion and, thus, without the knowledge of the petitioner, after 15 days of the date of the requisition, the Secretary of the Gaon Panchayat referred the matter to the Borkhola Anchalik Panchayat by communication dated 15.02.2014 with a false noting that though the requisition had been placed before the petitioner for taking necessary approval, she did not accord approval citing certain legal implications. However, no meeting was held by the Anchalik Panchayat and, thereafter, respondent No. 3 addressed a communication dated 26.02.2014 to the Deputy Commissioner, Cachar, for taking necessary action as the concerned Anchalik Panchayat had failed to hold the meeting within seven days. On 17.03.2014, a letter was issued by the Additional Deputy Commissioner, Cachar, instructing the respondent No. 3 to take step as per Section 15 of the Assam Panchayat Act, 1994 (for short, 'the Act') and, based on the said instructions, a notice dated 21.03.2014 was issued by the respondent No. 3 for holding the meeting on 31.03.2014 for discussing the No Confidence Motion.
5. Assuredly, the petitioner has sought to highlight the infractions of the provisions of Section 15 of the Act leading to adoption of resolution of No Confidence against the petitioner.
6. An affidavit, dated 09.06.2014, sworn by the respondent No. 6 on her behalf and on behalf of the respondents, except respondent No. 9, was filed. However, the seal of the Court on the said affidavit is dated 20.06.2014. In the said affidavit, while highlighting the irregularities committed by the petitioner, the respondents had asserted that the deponent had submitted the requisition letter to the petitioner on 01.02.2014, which was received by the petitioner by putting her signature and, therefore, the petitioner had the knowledge of the requisition and despite that the petitioner did not hold the meeting. Annexure-1 to the affidavit is the letter of requisition dated 30.01.2014, which, statedly, bears the signature of the petitioner.
7. The respondent No. 3 filed affidavit stating that as per instructions of the Deputy Commissioner, Cachar, contained in the letter dated 17.03.2014, a meeting was held to discuss No Confidence Motion against the petitioner in which voting was resorted to under secret ballot and the outcome was that 9 members voted against the petitioner and thus No Confidence Motion was carried. In the affidavit of respondent No. 2, a stand was taken that the Block Development Officer, Borkhola Development Block, was deputed to conduct the special meeting for the purpose of considering the No Confidence Motion.
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8. On 10th February, 2016, four numbers of affidavits, filed by respondents No. 8, 9, 13 and 15 came to be filed through Mr. S. A. Ahmed, learned counsel. The contents of the affidavits are more or less identical. In a twist of turn, it is pleaded that the Secretary of the Gaon Panchayat never placed the requisition before the President and as no meeting had taken place for a long time, after certain informal sittings had taken place they were not willing to participate in the meeting, but were compelled to vote against the petitioner on threat. The filing of affidavit by respondent No. 6 on their behalf was also contested by pleading that they had not executed any Vakalatnama and their signatures were utilized for the purpose of making the Vakalatnama, though, in fact, such signatures had been taken by respondent No. 6 for the purpose of filing a complaint against the Secretary of the Gaon Panchayat.
9. However, respondent No. 6 rebutted the same by filing affidavit dated 29.04.2016 with the Seal of the Court dated 04.05.2016. In this affidavit, respondent No. 6 reiterated that the petitioner had received the requisition notice by putting her signature. The plea taken in the affidavits of respondents No. 8, 9, 13 and 15 is stated to be a cooked up story for misleading the Court. Under what circumstances the Vakalatnama had been executed is also sought to be explained by saying that all the aforesaid respondents had gone together to the parental house of the counsel conducting the case and, in the presence of the counsel, they had appended their signatures.
10. Respondents No. 6, 7, 10, 11 and 14 filed an affidavit controverting the statements made in the affidavit of respondents No. 8, 9, 13 and 15. The said affidavit is more or less in the same vein as the affidavit of respondent No. 6. Respondent No. 10 also filed affidavit similar to the one filed by respondents No. 6, 7, 10, 11 and 14. The individual affidavits filed by respondents No. 11 and 14 are also in the same line. An affidavit was filed by respondent No. 6 on 19.07.2016 placing on record a document, which is stated to be a letter dated 07.02.2014, issued by the Secretary of Masughat Gaon Panchayat to the petitioner placing before her the requisition dated 30.01.2014 and requesting for a date for convening a meeting and requesting her to give approval for the same.
11. Against the affidavit filed by respondent No. 6 on 09.06.2014, as well as the affidavits filed by respondents No. 2 and 3, the writ petitioner filed affidavit-in-reply, which is composite in nature. In this affidavit, it is pleaded by the petitioner that she had ascertained that the signature of the Secretary, which purportedly appears in the letter dated 07.02.2014, is not his signature and that the same is a forged document.
12. Mr. A. K. Talukdar, learned counsel for the petitioners has submitted that the procedure adopted in holding the special meeting for the purpose of consideration of the No WP(C) 2051/2014 5 Confidence Motion was in derogation to the prescribed procedure under Section 15 of the Act. It is submitted by him that the requisition was never brought to her notice and, therefore, all consequential steps taken in pursuit of the requisition notice have to be invalidated. He submits that the requisition letter purporting to contain the petitioner's signature as acknowledging the same, if necessary, be sent to Forensic Science Laboratory for opinion. Assuming but not admitting that the petitioner had received the requisition, then also there is a procedure prescribed and in the scheme of things as contained in Section 15 of the Act, if the Anchalik Panchayat also fails to hold the meeting, it would be the Deputy Commissioner or the Sub-Divisional Officer, who is to convene the meeting for discussing No Confidence Motion and in case they are unable to preside over the meeting, they can depute a Class-I officer to attend and preside over the meeting. Materials on record, according to him, demonstrate that it was the Block Development Officer, who had convened the meeting and, that apart, without there being any delegation by the Deputy Commissioner or by the Sub-Divisional Officer, he also presided over the meeting and, therefore, the meeting that was held on 31.03.2014 has no sanctity. Learned counsel refers to a decision of the Division Bench of this Court in Ali Ahm ed M azumdar vs. State of Assam and Ors., reported in 2011 (3) GLT 396, wherein it was held that the Secretary is obliged to put up a note in an official file for the personal knowledge of the President and contends that, in the instant case, the respondents failed to produce any record demonstrating that there was such a move by the Secretary.
13. Mr. Barbhuiya has submitted that in view of the positive stand taken by the respondent No. 6 that the petitioner had acknowledged the requisition by putting her signature and the same having been denied by her during the course of the proceeding, this Court may consider sending the document for forensic examination. It is submitted that when the petitioner herself had received the requisition notice, there was no occasion for the Secretary to again put up a note in the official file. He has submitted that there is substantial compliance of the provisions of Section 15 of the Act and, in the facts and circumstances of the case, the convening of the meeting by the Block Development Officer and the fact of he presiding over the said special meeting cannot have any impact and bearing in the context of overwhelming majority by which the members of the Gaon Panchayat expressed No Confidence against the petitioner. Mr. Barbhuiya has also relied on a Full Court decision of this Court in Forhana Begum Lask ar vs. State of Assam and Ors , reported in 2009 (3) GLT 451 , with special emphasis on paragraph 24.
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14. Mr. S. A. Ahmed, learned counsel for respondents No. 8, 9, 13 and 15 submits, in tune with the averments made in the affidavits, that the said respondents did not sign the Vakalatnama in favour of N. H. Barbhuiya, learned counsel.
15. Mr. Chutia, learned State counsel has produced the records. Page No. 2 of the records is, perhaps, a photocopy of the requisition letter dated 31.01.2014. It does not contain any signature of the petitioner. The records produced by Mr. Chutia do not contain any note-sheet of the Gaon Panchayat. There is nothing to indicate in the said records that a note was prepared by the Secretary in the official file relating to the requisition notice for the knowledge of the President of the said Gaon Panchayat.
16. In Ali Ahm ed M azum dar (supra), a Division Bench of this Court had held that because of extremely possible disastrous consequences like removal from office attached to the No Confidence Motion preceded by compliance of certain statutory procedures laid down by Section 15 of the Act, notice of No Confidence Motion received by the Secretary on behalf of the President cannot be construed as deemed notice to the President. It was noted that the Gaon Panchayat Secretary, who received notice on behalf of the President, is cast with the legal duty, which is mandatory in nature, to inform the President forthwith about the receipt of such notice with a note put up in official file for his personal knowledge. It was also held that justice demanded physical and direct service of notice upon the President or the Vice-President upon whom the No Confidence Motion is sought to be brought for removal from office.
17. There are assertions and counter-assertions with regard to the service of notice by the respondent No. 6 upon the President. Materials on record as well as records that were produced by Mr. Chutia do not indicate that any note was put up to the President by the Secretary of the Panchayat and, therefore, the requisition notice was not brought to the notice of the President in accordance with law.
18. Even if it is accepted, as contended by Mr. Barbhuiya that respondent No. 6 had served the notice upon the petitioner, then also, in the considered opinion of the Court, the No Confidence Motion adopted against the petitioner cannot be said to be legally adopted. Reliance placed by Mr. Barbhuiya upon Forhana Begum Lask ar (supra) to contend that a procedural irregularity in the matter of making a reference by the Secretary would have no bearing whatsoever upon the resolution passed, cannot be applied in the facts and circumstances of the present case.
19. The uncontroverted admitted position is that for whatever reasons no meeting was held by the Gaon Panchayat and the Anchalik Panchayat. I do not subscribe to the view WP(C) 2051/2014 7 articulated by Mr. Talukdar that the Block Development Officer making a reference to the Deputy Commissioner is to be faulted with as it was a duty cast upon the Secretary to have taken a step to bring the same to the notice of the Deputy Commissioner to hold the meeting. If the Secretary does not do what is enjoined upon him by the Act, being a superior officer, certainly the Block Development Officer can step in and apprise the authorities, conceived under the Act, to take further action. However, mandate of law, which cannot be trifled with, is that in an eventuality of the kind when there is failure on the part of both Gaon Panchayat and Anchalik Panchayat to hold the meeting, it is the Deputy Commissioner or the Sub-Divisional Officer who is to convene the meeting. By no stretch of imagination, Deputy Commissioner can be said to be an insignificant authority and, in the scheme of the Act under Section 15, it is the Deputy Commissioner, who is to take it upon himself to see to it that a meeting is convened on a requisition brought forward when no meeting is held by the Panchayat authorities.
20. Deputy Commissioner, instead of taking action in the matter, merely wrote back vide letter dated 17.03.2014 to the Block Development Officer to take steps in accordance with Section 15 of the Act. It is not understood as to what he sought to mean when he said so. There is no delegation of authority to the Block Development Officer to preside over the meeting. In the affidavit of respondent No. 2, though there is an averment that Block Development officer was deputed to conduct the meeting, no document showing delegation is annexed or produced. But, taking a cue from the letter dated 17.03.2014, the Block Development Officer not only convened the meeting, but also presided over the same. It was the Deputy Commissioner who ought to have taken steps in terms of the provisions of the Act by convening a meeting. A meeting convened and presided over by an authority alien to the concept embedded in Section 15 of the Act cannot sanctify the proceeding of a meeting. After all, rule of law has to prevail.
21. As the writ petition has to be allowed on this ground also, I do not see any necessity to really consider as to whether requisition notice as well as the letter dated 07.02.2014 ought to be referred to Forensic Science Laboratory for expert opinion. Had the case hinged solely on these documents, may be, it would have been necessary to obtain expert opinion on the disputed signatures on the requisition notice as well as the letter dated 07.02.2014.
22. In view of the above discussions, the resolution adopted expressing no confidence against the petitioner is set aside and declared null and void. But the matter does not rest here. This Court cannot remain oblivious of the fact that a requisition for No Confidence Motion was given against the petitioner and expression of no confidence was negatived for procedural irregularities as mentioned above and, therefore, this Court will be failing in its WP(C) 2051/2014 8 duty in exercising power under Article 226 of the Constitution of India if this Court does not direct the petitioner to hold a meeting to decide the No Confidence Motion brought against her.
23. Accordingly, the writ petition is allowed. The President of Masughat Gaon Panchayat will convene and hold a special meeting within a period of fourteen days from today in the office of the Gaon Panchayat.
24. Mr. Talukdar has very fairly submitted that within a period of fourteen days from today, a meeting will be held in the office of the Gaon Panchayat. Seven days notice shall be given for the meeting.
25. As the learned counsel for the parties had submitted that appropriate direction may be given to the Deputy Commissioner to depute an observer, other than the Block Development Officer, to be present in the meeting, it is also provided that the Deputy Commissioner will depute an officer for the purpose of the meeting.
26. Until the meeting to discuss No Confidence Motion against the petitioner is held and the No Confidence Motion is decided, the petitioner will function as the President of Masughat Gaon Panchayat.
27. The writ petition stands allowed in terms of the above directions and observations.
JUDGE RK WP(C) 2051/2014 9 WP(C) 2051/2014