LAWS(GAU)-2011-1-1

MANJU BORGOHAIN BARUAH Vs. STATE OF ASSAM

Decided On January 31, 2011
MANJU BORGOHAIN BARUAH Appellant
V/S
STATE OF ASSAM Respondents

JUDGEMENT

(1.) THESE writ petitions, being related to the no confidence motion brought against the President of Ghilamara Anchalik Panchayat under Lakhimpur Zilla Parishad, are taken up for disposal together. WP(C) No.4815/2010 has been filed by the Vice President and 4(four) members of the said Anchalik Panchayat challenging the communication dated 12.08.2010 issued by the Chief Executive Officer of Zilla Parishad intimating the Executive Officer of the Anchalik Panchayat that as the resolution expressing want of confidence on the President of the Anchalik Panchayat (respondent No.8) has not been adopted by the majority of 2/3rd members, the same vitiates the provisions contained in Section 43(1) of the Assam Panchayat Act, 1994 (in short the 1994 Act) and as such no further action could be taken in that regard. A further prayer has also been made to declare that the office of the President of the Anchalik Panchayat stands vacated on 07.08.2010 when the resolution expressing want of confidence was passed in the special meeting of the Anchalik Panchayat.

(2.) WP(C) No.5596/2010 has been filed by the President of Ghilamara Anchalik Panchayat (respondent No.8 in WP(C) No 4815/2010), challenging the notice dated 01.10.2010 issued by the Executive Officer of the Anchalik Panchayat convening an urgent meeting on 05.10.2010, which according to the writ petitioner has been convened to elect the President of the Anchalik Panchayat, though the Zilla Parishad has refused to act on the resolution adopted in the meeting of the Anchalik Panchayat on 07.08 2010 expressing want of confidence on her, on the ground of not being passed by majority of 2/3rd number of members, as required under the provisions of the 1994 Act

(3.) THE learned counsel for the petitioners in WP(C) No 4815/2010 referring to Section 43 of the 1994 Act has submitted that the President of the Anchalik Panchayat can be removed from the office by bringing a no confidence motion subject to passing of the same by a majority of 2/3rd of total number of the directly elected members of the Anchalik Panchayat and in the instant case since out of the 8(eight) existing directly elected members of the Anchalik Panchayat 5(five) supported such motion expressing want of confidence, it cannot be said that such resolution has not been adopted as required under sub-section (1) of Section 43 of the 1994 Act. According to the learned counsel the reasons cited by the Chief Executive Officer of the Zilla Parishad in the impugned communication dated 12.08.2010 is erroneous and contrary to the provisions contained in sub-section (1) of Section 43 of the 1994 Act, as while ascertaining the majority of 2/3rd of total number of directly elected members any fraction which is less than 5 has to be ignored. Mr. Phukan submits that the Chief Executive Officer of the Zilla Parishad has not ignored the fraction 33 in calculating the number of members constituting majority of 2/3rd members. Mr. Phukan in support of his contention has placed reliance on a Division Bench judgment of this Court in Samiruddin Ahmed Vs. S.D.O., Mangaldoi and others reported in AIR 1971 Assam and Nagaland 163 as well as a Full Bench decision of Allahabad High Court in Wahid Ullah Khan Vs. District Magistrate, Nainital and others reported in AIR 1993 Allahabad 249.