MOSIRA BIBI Vs. STATE OF ASSAM

JUDGEMENT

(1.) The appellant, who was the elected President of Jhagrarpar Gaon Panchayat under Gauripur Anchalik Panchayat, filed a writ petition being W.P.(C) No. 7278 of. 2005 challenging the resolution dated 28.09.2005, adopted in the special meeting of the said Gaon Panchayat expressing no confidence on her, on the ground of violation of the provision contained in sub- Section 1 of Section 15 of Assam Panchayat Act, 1994 (in short the Act), in so far as it relates to the time schedule given in the said provision of law for the purpose of holding the special meeting for consideration of no confidence motion brought against the President and Vice President of a Gaon Panchayat. A notice of no confidence by eight out of ten members of the said Gaon Panchayat was given on 29.08.2005 expressing want of confidence on the appellant. The Secretary of the Gaon Panchayat on receipt of such notice placed the same before the appellant on 30.08.2005 seeking her approval to convene a special meeting for consideration of the said no confidence motion. However, the appellant refused to accord approval for holding such special meeting, for which the Secretary of the Gaon Panchayat on 16.09.2005 forwarded the matter to the Anchalik Panchayat intimating the refusal of the appellant to approve the proposal for holding the special meeting and also for a direction to hold such special meeting for consideration of such no confidence motion. Accordingly, as per direction of the President of the Anchalik Panchayat, the special meeting was held on 28.09.2005, wherein the resolution expressing no confidence against the appellant was adopted as eight out of the ten members voted in favour of the resolution expressing want of confidence on the appellant. The Secretary of the Gaon Panchayat intimated the Deputy Commissioner on 29.09.2005 about adoption of such resolution. The learned Single Judge relying on the division bench judgment of this Court in Mumtaz Rana Laskar & Ors. Vs. State of Assam & Ors; reported in 2006 (1) GUT 46 has dismissed the writ petition by holding that the procedure prescribed in Section 15(1) of the Act is only directory and not mandatory and therefore, non adhering the time schedule given in the said provision will not make the resolution, adopted in the special meeting of the Gaon Panchayat, invalid in law. Hence the present appeal.

(2.) We have heard Mr. A.B. Choudhury, learned senior counsel appearing on behalf of the appellant and Mrs. Goyal, learned State counsel appearing on behalf of the State respondents as well as Mr. D.A. Kayum, learned counsel for the respondent No. 7, Vice President of the Gaon Panchayat.

(3.) Mr. Choudhury, the learned senior counsel for the appellant referring to the provision of Sub Section 1 of Section 15 of the Act has submitted that under the said provision, in case the President of the Gaon Panchayat against whom notice of no confidence is given, refused to approve the proposal of the Secretary of the Gaon Panchayat to hold the Special meeting for consideration of such motion, the Secretary of the Gaon Panchayat is required to refer the matter to the President of the Anchalik Panchayat within three days from the date of expiry off 15 days of notice, and the Anchalik Panchayat is to convene the meeting within seven days from the date of such information. It has further been submitted that in case such meeting within such seven days is not convened by the Anchalik Panchayat, the Secretary of the Gaon Panchayat is required to inform the Deputy Commissioner/Sub-Divisional Officer (Civil) within three days after the expiry of the said stipulated seven days time and in that case it is the Deputy Commissioner/Sub-Divisional Officer (Civil) who has to convene the meeting within seven days from the date of receipt of such information and such meeting is required to be presided over by the Deputy Commissioner/Sub-Divisional Officer (Civil) or by Gazetted Officer deputed by him not below the rank of Class-I Gazetted Officer. According to the learned senior counsel in the instant case admittedly the Secretary of the Anchalik Panchayat on 16.09.2005 referred the matter to the Anchalik Panchayat concerned, on refusal by the appellant to accord approval to hold the meeting, but the meeting having been held only on 28.09.2005 i.e. after 12(twelve) days, the resolution adopted in such meeting cannot be held to be valid, as the time schedule of seven days within which the Anchalik Panchayat is required to convene the meeting having been expired on 23.09.2005. According to the Mr. Choudhury it is the Deputy Commissioner/Sub-Divisional Officer, as the case may be, who can convene such meeting after expiry of such time schedule of seven days. Mr. Chowdhury submits that as the provision contained 1 Sub-Section 1 of Section 15 is substantive proviision, it is mandatory in nature and hence non compliance of the same will render the subsequent action namely the resolution dated 28.09.2005 adopted in the special meeting of the Gaon Panchayat expressing want of confidence on the appellant, invalid.