Nizam Uddin and 7 Ors v. The State of Assam and 8 Ors

ORDER

08.06.2023

Heard Mr. S. Ali, learned counsel for the petitioners in W.P.[C] no. 1318/2022; Mr. A. Borkotoky, learned counsel for the petitioner in W.P.[C] no. 7820/2022 & for the respondent no. 9 in W.P.[C] no. 1318/2022; Mr. D.A. Kaiyum, learned counsel for the respondent nos. 8 – 14 & 16 in W.P.[C] no. 7820/2022; and Mr. J. Abedin, learned counsel for the respondent no. 5 in W.P.[C] no. 7820/2022 and for the respondent nos. 6 & 7 in W.P.[C] no. 1318/2022. Also heard Mr. N.K. Dev Nath, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 2, 5 & 8 in W.P.[C] no. 1318/2022 & for the respondent nos. 1, 2, 4, 6 & 7 in W.P.[C] no. 7820/2022 and Mr. C.K.S. Baruah, learned Junior Government Advocate, Assam for the respondent no. 3 both in W.P.[C] no. 1318/2022 & W.P. [C] no. 7820/2022.

¶2The petitioners, 8 [eight] in nos., in the writ petition, W.P.[C] no. 1318/2022 are the Ward Members of 39 no. Madhya Betbari Gaon Panchayat whereas the petitioner in the writ petition, W.P.[C] no. 7820/2022 is the President of 39 no. Madhya Betbari Gaon Panchayat under Pakabetbari Anchalik Panchayat, elected in terms of the provisions of Section 6[1][b] of the Assam Panchayat Act, 1994.

¶3In view of the broad consensus arrived at by the learned counsel for the parties, it is not necessary to advert to the factual background in details, save and except the relevant facts.

3.1. A requisition notice came to be submitted on 14.02.2021 by 8 [eight] nos. of Ward Members of 39 no. Madhya Betbari Gaon Panchayat expressing want of confidence in the President of the said Gaon Panchayat i.e. the petitioner in W.P.[C] no. 7820/2022. On the Page No.# 9/12 basis of the requisition notice dated 14.02.2021, the matter proceeded further. A litigation ensued earlier in the form of a writ petition, W.P.[C] no. 3001/2021 at the instance of the President of the Gaon Panchayat, that is, the petitioner in W.P.[C] no. 7820/2022. The writ petition, W.P.[C] no. 3001/2021 came to be disposed of by an order dated 24.06.2021 with a direction to the President and the Ward Members of the Gaon Panchayat to proceed in terms of the provisions of Section 15 of the Assam Panchayat Act, 1994 for holding the discussion on the motion of no confidence. Though a special meeting was convened on 17.07.2021 to discuss the motion of no confidence, the proceedings of the special meeting came to be interfered with by an order dated 01.02.2022 passed in a writ petition, W.P.[C] no. 3570/2021 instituted again by the petitioner in W.P.[C] no. 7820/2022. After interfering with the proceedings of the special meeting dated 17.07.2021 and the consequential communication, the Court, by order dated 01.02.2022, issued a direction to the respondent no. 5 therein, that is, the President, Pakabetbari Anchalik Panchayat to convene a special meeting of 39 no. Madhya Betbari Gaon Panchayat to discuss the motion of no confidence against its President, that is, the petitioner in W.P.[C] no. 7820/2022 at 11-00 on 14.02.2022 in the office of the Pakabetbari Anchalik Panchayat, Kayakuchi, District - Barpeta as per the requisition notice dated 12.04.2021. As all the parties were before this Court, issuance of notice for the special meeting directed to be so held on 14.02.2022, was dispensed with.

¶4Section 15 of the Assam Panchayat Act, 1994 has provided for the matter of no confidence against the President and Vice-President of a Gaon Panchayat. It is provided inter alia in sub-section [1] of Section 15 that every President shall be deemed to have vacated his office forthwith when a resolution expressing want of confidence in him is passed by a majority of two-third of the total number of Members of the Gaon Panchayat. As per Section 15[1] of the Assam Panchayat Act, 1994, a special meeting for that purpose, is to be convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. As per Section 15[2], the requisition notice for such a meeting shall have to be signed by not less than one third of the total number of Members of the Gaon Panchayat and shall be delivered to the President of the concerned Gaon Panchayat with intimation to the Deputy Commissioner of the District. In case such a meeting is not convened by the President within a period of 15 [fifteen] days from the date of receipt of the notice, the Secretary of the Page No.# 10/12 Gaon Panchayat shall within 3 [three] days is to refer the matter to the President of the concerned Anchalik Panchayat who shall convene the special meeting within 7 [seven] days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such special 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 3 [three] days after the expiry of the stipulated 7 [seven] days time and the concerned Deputy Commissioner/Sub-Divisional Officer [Civil] shall convene the meeting within seven days from the date of receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened. The first proviso to Section 15[1] has provided that the concerned Deputy Commissioner/Sub-Divisional Officer [Civil], 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 to preside over such specially convened meeting. The second proviso to sub-section [1] of Section 15 has laid down to the effect that when a no confidence motion is lost, no such motion shall be allowed in the next six months.

¶5From the submissions of the learned counsel for the parties and on perusal of the case records produced by the learned Standing Counsel, P&RD Department, it has clearly emerged that though a special meeting was convened on 14.02.2022 purportedly in compliance of the direction of this Court, the convening of the special meeting did not result in any resolution, which was the utmost statutory requirement, under the hand of the President, Pakabetbari Anchalik Panchayat, who was specifically entrusted with the responsibility to convene such special meeting properly by this Court in its order dated

01.02.2022 passed in the writ petition, W.P.[C] no. 3570/2021.

¶6The learned counsel for the parties are at consensus on the point that the motion of no confidence still survives and has to be proceeded with from the stage of convening of a special meeting to discuss the motion. As the parties are in such broad consensus, the issues raised in the two writ petitions are not required to be gone into in details.

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¶7The leaned counsel for the parties representing the President and the Ward Members of 39 no. Madhya Betbari Gaon Panchayat have conjointly submitted that since the President, Pakabetbari Anchalik Panchayat had failed to convene the special meeting in compliance of the direction of this Court and it did not result into any resolution for or against the motion, the special meeting for discussing the motion of no confidence may be directed to be held under the aegis of the jurisdictional Deputy Commissioner in terms of the provisions of Section 15[1] of the Assam Panchayat Act, 1994 with information to the jurisdictional Zilla Parishad and the jurisdictional Anchalik Panchayat. As it is found that on the previous two occasions, the special meetings were not property held and the motion of no confidence did not result into a proper resolution, this Court is of the considered view that a direction is called for in the case in hand because the motion of no confidence is not lost and still survives. It is, therefore, directed that a special meeting to discuss the motion of no confidence against the petitioner in W.P.[C] no. 7820/2022, that is, the President, 39 no. Madhya Betbari Gaon Panchayat is to be convened and be held at 11-00 a.m. on 26.06.2023 in the office of the Deputy Commissioner, Barpeta. Such special meeting shall be presided over by the Deputy Commissioner, Barpeta or in case his inability to preside over such special meeting, the Deputy Commissioner, Barpeta may depute one officer under him not below the rank of Class – I Gazetted Officer to preside over such special meeting. The authority, who will preside over the said special meeting, shall ensure a free and fair voting process by way of secret ballots, by also ensuring interference of outsiders. Since all the parties to be participated in the said special meeting are before this Court as parties in the two writ petitions, the notices for the said special meeting to be convened and held on 26.06.2022 to them, are dispensed with, as agreed to by the learned counsel representing such parties. The Secretary of 39 no. Madhya Betbari Gaon Panchayat who is also a party in both the writ petitions, represented by Mr. Dev Nath, learned Standing Counsel, P&RD Department, shall be present in the special meeting with the relevant records for the purpose of assisting the authority to preside over such special meeting.

¶8As the interim order was passed in the writ petition, W.P.[C] no. 7820/2022 on

07.12.2022 whereby the In-Charge, President of 39 no. Madhya Betbari Gaon Panchayat, Kayakuchi, Barpeta had been restrained from dealing with the fund of the Gaon Panchayat Page No.# 12/12 save and except payment of salary of the staff. It is observed that till the resolution in the special meeting convened on 26.06.2023 is passed, the interim order dated 07.12.2022 shall operate and further continuance or modification or alteration of the interim order will abide by the outcome of the decision adopted in the special meeting convened and directed to be held on 26.06.2023.

¶9With the directions made above, the writ petition is disposed of.

¶10A copy of the order be furnished to Mr. Dev Nath, learned Standing Counsel, P&RD Department and Mr. Baruah, learned Junior Government Advocate, Assam for compliance of the directions, made hereinabove.

JUDGE Comparing Assistant

PageoNo.#o1/12 GAHC010036402022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1318/2022o NIZAMoUDDINoANDo7oORSo 1oNO.oWARDoMEMBER,o 39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT,oS/OoMOFIZoUDDINo VILL-oBANBAHAR,oP.O.oKAYAKUCHIo DIST.oBARPETA,oASSAM,oPIN-781352 2:oMANSURoALI o3oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o S/OoEMANoALIo VILL-oCHAKIRBHITAo oP.O.oKAYAKUCHIo DIST.oBARPETA oASSAM o PIN-781352 3:oRAMENAoAHMED o5oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o W/OoJEHERULoISLAMo VILL-oMARALATARIo oP.O.oKAYAKUCHIo DIST.oBARPETA oASSAM oPIN-781352 4:oNASRINoAHMED o6oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o W/OoZAKIRoHUSSAINo PageoNo.#o2/12 VILL-oMARALATARIo oP.O.oKAYAKUCHIo DIST.oBARPETA oASSAM oPIN-781352 5:oNOORoISLAM o7oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o S/OoBISHAoMIYAo VILL-oCHAKIRBHITHAo oP.O.oKHABLABHITHAo DIST.oBARPETA oASSAM oPIN-781352 6:oSANIARAoAHMED o8oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o W/OoAMIRoHUSSAINo VILL-oCHAKIRBHITHA o oP.O.oKHABLABHITHAo DIST.oBARPETA oASSAM oPIN-781352 7:oSHAHIDAoKHATUN o10oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o W/OoMUSHARAFoHUSSAINo VILL-oKAMALPURo oP.O.oKAMALPURo DIST.oBARPETA oASSAM oPIN-781352 8:oMANJUWARAoAHMED o10oNO.oWARDoMEMBER o39oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o W/OoAMBADoHUSSAINo VILL-oKAMALPURo oP.O.oKAMALPURo DIST.oBARPETA PageoNo.#o3/12 oASSAM oPIN-78135o VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REP.oBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o PANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT,oDISPUR,o GUWAHATI-781006. 2:THEoCOMMISSIONER oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oASSAM oJURIPAR oSIXMILE oGUWAHATI-781037. 3:THEoDEPUTYoCOMMISSIONER oBARPETA oP.O.oANDoDIST.oBARPETA oASSAM oPIN-781356 4:THEoBARPETAoZILLAoPARISHAD oREP.oBYoTHEoPRESIDENToOFoBARPETAoZILLAoPARISHAD oDIST.oBARPETA oASSAM oPIN-781356 5:THEoCHIEFoEXECUTIVEoOFFICER oBARPETAoZILLAoPARISHAD oP.O.oANDoDIST.oBARPETA oASSAM oPIN-781356 6:THEoPAKABETBARIoANCHALIKoPANCHAYAT oREP.oBYoITSoPRESIDENT oP.O.oKAYAKUCHI oDIST.oBARPETA oASSAM oPIN-781356 7:THEoPRESIDENT Page No.# 4/12 PAKABETBARI ANCHALIK PANCHAYAT KAYAKUCHI P.O. KAYAKUCHI DIST. BARPETA ASSAM PIN-781356. 8:THE EXECUTIVE OFFICER PAKABETBARI ANCHALIK PANCHAYAT KAYAKUCHI P.O. KAYAKUCHI DIST. BARPETA ASSAM PIN-781352 9:DEWAN MUSHARAF HUSSAIN S/O LATE DEWAN ELIM UDDIN VILL- CHAKIRBHITHA P.O. KHABLARBHITHA PIN-781352 DIST. BARPETA ASSA Advocate for the Petitioner : MR. T J MAHANTA Advocate for the Respondent : SC, P AND R.D. Linked Case : WP(C)/7820/2022 DEWAN MUSHARAF HUSSAIN S/O- LATE DEWAN ALIM UDDIN VILL- CHAKIR BHITHA P.S AND DIST- BARPETA ASSAM VERSUS THE STATE OF ASSAM AND 15 ORS PageoNo.#o5/12 REPoBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oDISPUR oGUWAHATI-o781006. 2:THEoCOMMISSIONER PANCHAYAToANDoRURALoDEVELOPMENTo oASSAM oPANJABARI oJURIPAR oGUWAHATI-o781037 o3:THEoDEPUTY.oCOMMISSIONER BARPETA oASSAM o4:THEoCHIEFoEXECUTIVEoOFFICER BARPETAoZILLAoPARISHAD oBARPETAo PIN-o781301 o5:THEoPRESIDENT PAKABETBARIoANCHALIKoPANCHAYAT oKAYAKUCHI oDIST.oBARPETA oASSAM oPIN-781352 o6:THEoEXECUTIVEoOFFICER PAKABETBARIoANCHALIKoPANCHAYAT oKAYAKUCHI oDIST.oBARPETA oASSAM oPIN-781352 o7:THEoSECRETARY 39.oNO.oMADHYAoBETBARIoGAONoPANCHAYAT oKAYAKUCHI oDIST.oBARPETA oASSAM oPIN-781352. o8:NIZAMoUDDIN 1oNOoWARDoMEMBERo o 39.oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o S/O-oMOFIZUDDIN oVILL-oBANBAHAR o P.O-oKAYAKUCHI oDIST.oBARPETA oASSAM PageoNo.#o6/12 oPIN-781352. o9:MANSURoALI 3oNOoWARDoMEMBERo o 39.oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o S/O-oENAMoALIo oVILL-oCHAKIRoBHITAo o P.O-oKAYAKUCHI oDIST.oBARPETA oASSAM oPIN-781352. o10:RAMINAoAHMED 5oNOoWARDoMEMBERo o 39.oNO.oMADHYAoBETBARIoGAONoPANCHAYAT o W/O-oJEHERULoISLAMo oVILL-oMARALARTARI o P.O-oKAYAKUCHI oDIST.oBARPETA oASSAM oPIN-781352. o11:NUSRINoAHMED 6.oNOoWARDoMEMBERo o 39.oNO.oMAD