DHIRENDRA CHANDRA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) Whether President of a Gaon Panchayat is a member within the meaning of Section 15 of the Assam Panchayat Act, 1994 is the common question to be answered in these three writ appeals. Although they are based on three different sets of facts but answer to this question shall be the key point in deciding all these three appeals for which they have been listed together.

(2.) Writ Appeal No. 27/2015 arises out of an interim order granted by Hon'ble Single Judge on 31.01.2015 keeping the proceedings of no confidence motion against President of Nagendra Nagar Gaon Panchayat held on 21.01.2015 relying on an earlier judgment of this court in the case of Fakrun Nessa Choudhury Vs. State of Assam reported in (2012) 5 GLT 107. As many as 7 members of Nagendra Nagar Gaon Panchayat under Ramkrishna Nagar Anchalik Panchayat in the district of Karimganj made a requisition on 24.12.2014 for a special meeting. The meeting was not held within the statutory period for which it was referred to the Anchalik Panchayat by the Secretary of the Gaon Panchayat on 08.01.2015. Under the scheme of the Assam Panchayat Act, 1994, the concerned Anchalik Panchayat was supposed to hold the meeting within 15.01.2015 but it was held only on 22.01.2015. Be that as it may, in that special meeting as many as 7 members expressed their want of confidence and the motion of no confidence was passed by a majority of two-third of the total number of members of the Gaon Panchayat. This resolution came under challenge before Hon'ble Single Bench vide WP(C) No. 437/2015, inter alia, on the ground that Gaon Panchayat concerned comprised actually of 11 (eleven) members including the President and so the magic number for unsetting a President cannot be 7 and it must be 8. Since the resolution has been passed on the votes of 7 members only, it was in violation of Section 15 of the Assam Panchayat Act, 1994 (hereinafter referred to as 'the Act') and so the same was liable to be set aside. Earlier judgment of this court in the case of Fakrun Nessa Choudhury (supra) was relied on before the Hon'ble Single Judge which held that in addition to the directly elected 10 members of a Gaon Panchayat, President who is also directly elected should be considered to be a member of the Gaon Panchayat and thus, although Gaon Panchayats in Assam comprise of only 10 Wards but there are 11 members including the President. The aforesaid decision arrived at by paragraph 22 of Fakrun Nessa Choudhury (supra) was relied on by the Hon'ble Single Judge for the purpose of granting interim order and accordingly the interim order dated 31.01.2015 was passed thereby considering President of a Gaon Panchayat to be also another member of the Gaon Panchayat in addition to the 10 directly elected members. By preferring the present writ appeal, the aforesaid interim order dated 31.01.2015 has been called in question and so naturally the correctness of the decision of the Hon'ble Single Judge in the earlier judgment in Fakrun Nessa Choudhury (supra) has been argued by the learned counsel of the appellant.

(3.) The Writ Appeal No. 373/2014 is preferred against the order dated 03.12.2014 passed by the Hon'ble Single Judge in WP(C) No. 6320/2014. That is an interim order pass-ed by the Hon'ble Single Judge whereby it has been ordered that the impugned resolutions adopted on 26.11.2014 would be subject to the result of the case. The writ petitioner did not get any interim order in their favour and so preferred the present writ appeal. One of the three contentions of the writ petitioner before the Hon'ble Single Judge was that Gaon Panchayat is constituted by 11 members including the President and therefore casting of 7 votes is not two-third of the votes of the Panchayat members and minimum 8 votes can only oust the President/ Vice-President. But in the instant case only 7 votes were cast in favour of no confidence and so, the resolution was invalid for want of required number of votes. Such submission was obviously made in terms of the judgment of this court in case of Fakrun Nessa Choudhury (supra) and that is why this case is also tagged with the present set of appeals. By an order passed on 10.02.2015, a Division Bench of this court granted interim order against resolution dated 26.11.2014. The respondents challenged the interim order before the Hon'ble Supreme Court by preferring SLP(C) No. 20694/2015. The Hon'ble Supreme Court dismissed the SLP observing that the writ appeal be disposed of by High Court expeditiously.