PRABIN BARUA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner was elected as a Councillor to the Tezpur Mahakuma Parishad, for short the Parishad from the Borbhogha Gaon Panchayat in the last election held for the councillors to the Parishad. He was subsequently elected as the Chief Executive Councillor of the Parishad in the first meeting held on 1-3-1979. 14 Councillors thereafter addressed a communication to the Chairman of the Parishad on 22nd Sep., 1979 making certain allegation against the petitioner and demanded that he should face a no confidence motion. A meeting was accordingly convened an 16-10-1979 to discuss about the proposed motion. In the meeting 41 Councillors including the President of the meeting were present; and 27 persons cast their votes in favour of the no confidence motion which was therefore taken to have been passed by the Parishad. The Government thereafter notified on 3-11-79 that the petitioner had ceased to hold office of Chief Executive Officer due to the passing of no confidence motion against him. This notification has been challenged by the petitioner by this application under Article 226 of the Constitution.

(2.) SRI Das urged three points in the main on behalf of the petitioner. (1) The notice by which the meeting in question was convened was not legal inasmuch as requirements of R.47(2) of the Assam Panchayati Raj Constitution Rules, 1973, for short the Constitution Rules, were not complied with. (2) The President of the meeting could not have cast his vote in the first instance and if his vote is excluded, the number of persons supporting the resolution would fall short of 2/3rds members present in the meeting, which is the minimum percentage required for carrying a no confidence resolution. (3) As notices of the meeting were not served on the ex-officio Councillor of Parishad, the meeting was altogether vitiated.

(3.) I would not also agree with the second submission of the learned counsel which is related to the casting of vote by the President. Sri Das has however built up this argument on the basis of Section 17(5) of the Assam Panchayati Raj Act, 1972, hereinafter called the Act, the relevant portion of which states that the President shall not cast his vote at the first instance, but when voting is equal, he shall have a casting vote. This provision gets attracted in the conduct of business of the Mahakuma Parishad by virtue of Section 27(5) of the Act. The learned counsel has also placed reliance on Rule 47(6) of the Constitution Rules, which read as a whole would show as per the counsel, that the President functions more or less as a Returning Officer. The requirement of Section 17(5) noted above cannot be applied in my opinion to the meeting of the type we are considering because Section 17(5) visualises casting of vote in case of tie, whereas in case of no confidence, two-thirds of the votes is the minimum which is required to carry out the motion. So, there would be no necessity to break a tie to carry a no confidence resolution. Exclusion of President of the meeting, who almost in every case would be a Councillor, from having a right of vote in such an important matter, which would be the result if submission of Sri Das were to be accepted, cannot be conceded as the provisions relied on by Sri Das do not irresistibly lead to this conclusion because Rule 47(b) does visualise voting by each councillor. It is worth pointing out that Section 27(5) of the Act has spoken of application of provisions inter alia of Section 17(5) mutatis mutandis only meaning with necessary changes. So where context requires a departure from the rule contained in Section 17(5) is permissible. It cannot be denied that a no confidence resolution is a very important event and every councillor, even if he happens to be President of the meeting must be allowed to have his say in it. The function of the President cannot be equated to that of a Returning Officer, as even according to Sri Das, the President can cast vote in case of tie, whereas a Returning Officer has no right to vote in any contingency.