WP(C) 6566/2016 Monir Uddin, S/O
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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 6566/2016 Monir Uddin, S/o. Lt. Abdul Motleb, Vill & PO- Tarakandi, PS- Kalgachia, Dist.- Barpeta, Assam, PIN-781321. ………..Petitioner -Versus- 1. The State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam (PRD) Deptt., Dispur, Guwahati-6. 2. The Director, Assam Panchayat and Rural Development, Panjabari, Guwahati. 3. The Deputy Commissioner, Barpeta District, Barpeta, Assam. 4. The Executive Officer, Mandia Development Block, Mandia, Barpeta, Assam. 5. The Secretary, 73 No. Tarakandi Gaon Panchayat,, Parakandi, PS- Kalgachia, Dist.- barpeta, Assam, PIN-781321 and others. ……….Respondents For the Petitioner : Mr. M. Choudhury, Sr. Adv. Mr. A.M. Khan, Adv. For the Respondents : Mr. Y. Doloi, AAG, Assam. Mr. R. Ali, Advocate. WP(C) 6566/2016- oral dt. 24-8-17 Page 1 of 7 BEFORE THE HON’BLE MR. JUSTICE SUMAN SHYAM Date of hearing and judgement : 24/08/2017. JUDGEMENT AND ORDER (ORAL) Heard Mr. M. Choudhury, learned senior counsel assisted by Mr. A. M. Khan, learned counsel for the petitioner. Also heard Mr. Y. Doloi, learned Additional Advocate, Assam, representing the official respondents as well as Mr. R. Ali, learned counsel representing the private respondents. 2. In this writ petition, the resolution adopted in the meeting of the 73 No. Tarakandi Gaon Panchayat, on 27/10/2016, removing the writ petitioner from the post of President of the Gaon Panchayat has been put to challenge. 3. The facts of the case, in a nutshell, is that the petitioner was elected as the President of the aforesaid Gaon Panchayat in the elections held in the year 2013. On 12/10/2016, 6 (six) members of the said Gaon Panchayat submitted a requisition requesting for convening a special meeting to discuss no-confidence proposal brought against the President and the Vice President of the Gaon Panchayat. In terms of Section 15(5) of the Assam Panchayat Act, 1994, when a request for special meeting is submitted for removal of both the President and the Vice President, the Secretary of the Gaon Panchayat is required to report the matter to the President of the concerned Anchalik Panchayat, who is to arrange to convene the meeting within 15 (fifteen) days from the date of receipt of WP(C) 6566/2016- oral dt. 24-8-17 Page 2 of 7 the intimation. Accordingly, on 17/10/2016, the Secretary of the Gaon Panchayat had forwarded the requisition to the concerned Anchalik Panchayat. On 20/10/2016, the Executive Officer of the Mandia Anchalik Panchayat had issued a notice convening the meeting for discussion of ‘no confidence motion’ brought against the President of the Gaon Panchayat i.e. the writ petitioner herein, fixing the date of meeting on 27/10/2016. The Secretary of the Gaon Panchayat had sent a copy of the notice to the writ petitioner through the Office Peon Book but the notes in the Peon Book goes to show that the petitioner had refused to accept the notice. A copy of the notice was also sent to the writ petitioner by Registered post, which was received by his brother on 25/10/2016. The meeting was held on 27/10/2016, whereby the majority of 2/3rd members of the Gaon Panchayat had adopted the resolution no.1 removing the petitioner from the post of President. However, the petitioner was not present in the meeting. It appears that the meeting fixed on the next date i.e. 28/10/2016 for discussing the ‘no confidence motion’ against the Vice President was called off. 4. Inviting the attention of this Court to the provisions of Section 17(3) of the Act of 1994, Mr. Choudhury, learned senior counsel for the petitioner submits that the requirement of 3 clear days notice in case of a special meeting is mandatory. That apart, submits Mr. Choudhury, the requirement to affix the notice on the notice board of the Gaon Panchayat office by the Secretary of the Gaon Panchayat is also a mandatory requirement of law which is in addition to 3 clear days notice to be given by the Secretary by WP(C) 6566/2016- oral dt. 24-8-17 Page 3 of 7 sending a copy thereof to the President. But in the present case, submits Mr. Choudhury, no notice of the meeting was served upon the Writ Petitioner giving three clear days notice as per requirement of law. 5. Denying the entries made in the Peon Book which indicated that the petitioner had refused to accept the notice when served upon him by the Peon on 22/10/2016, Mr. Choudhury had pointed out that the affidavit sworn by the only Office Peon, viz. Abdul Gaffur on 13/02/2017 testifying that he had not served any notice upon the writ petitioner during the said period, clearly goes to show that the claim of the respondents that the petitioner had refused to accept the notice of the meeting on 22/10/2016 is completely false and fabricated. The learned senior counsel further submits that although the receipt of the notice by registered post on 25/10/2016 is not denied by the petitioner, yet, in view of the categorical mandate of Section 17(3) of the Act of 1994, the same would not constitute 3 (three) clear days notice since the meeting was held on 27/10/2016. 6. Placing reliance on a decision of this Court rendered in the case of Srimati Niva Saikia Vs, State of Assam and others passed in WP(C) No. 1272/2017 dated 10/08/2017, Mr. Choudhury submits that the law is settled that the requirement of service of 3 days clear notice intimating the date of the meeting is mandatory and, therefore, a meeting held in breach of such mandatory provision would be non est in the eye of law, thereby vitiating the proceeding drawn up therein. The learned senior counsel, therefore, seeks a writ of Certiorari quashing the resolution adopted in the WP(C) 6566/2016- oral dt. 24-8-17 Page 4 of 7 meeting dated 27/10/2016, on the ground of the same having been drawn up in violation of the prescribed procedure. 7. Mr. Doloi, learned Additional Advocate General, Assam, on the other hand submits that the records produced, more particularly the Peon Book, would go to show that the petitioner has refused to receive the notice on 22/10/2016 and the same has also been confirmed by the Gaon Burah of the concerned Gaon Panchayat by making necessary endorsement in the Peon Book. Referring to the additional affidavit-in-opposition filed by respondent nos. 3 and 4, Mr. Doloi submits that the concerned Peon i.e. Abdul Gafur had also submitted a letter to the Block Development Officer (BDO) on 22/05/2017 intimating that he had never sworn any affidavit on 13/02/2017 as has been alleged in this case. Under the circumstances, the learned AAG contends that the claim of the petitioner is based on disputed question of facts, which cannot be adjudicated in the present proceeding. The learned AAG, however, fairly admits that the provisions of Section 17(3) of the Act of 1994 has to be read as mandatory. 8. Mr. Choudhury, learned senior counsel for the petitioner submits that in the wake of the letter dated 22/05/2017 issued by Abdul Gafur, his client has already lodged an FIR alleging fraud based on which a Police case being Kalgachia P.S. case No. 311/2017 has been registered. 9. There is no wrangle at the bar that the notice period, as mentioned in Section 17(3) of the Act of 1994, would be mandatory and, therefore, the said provision would call for strict interpretation by this Court. The question that, however, would arise for a decision of this Court in the WP(C) 6566/2016- oral dt. 24-8-17 Page 5 of 7 present proceeding is as to whether notice of the meeting convened on 27/10/2016 was properly served upon the petitioner as per the requirement of Section 17(3) of the Act of 1994. 10. As noted above, the extract of the Peon Book, which was brought on record by the respondent nos. 3 and 4, goes to show that the notice was sent to the petitioner on 22/10/2016 but he had declined to accept the same. The aforesaid conduct of the petitioner had also been testified by the concerned Gaon Burah by making an endorsement in the Peon Book. Although the petitioner contends that such endorsement in the Peon Book is not factually correct and the same would be established from the affidavit dated 13/02/2017 sworn by Abdul Gaffur, yet, I find that there are materials brought on record to prima facie, show that no such affidavit was never sworn by the Peon Abdul Gaffur, who had actually gone with the notice to serve upon the petitioner. Under the circumstances, the contention of the writ petitioner as regards non-service of notice on 22/10/2016 comes under the ambit of heavily disputed question of fact, which cannot be conclusively determined by this Court in a Writ proceeding in exercise of jurisdiction under Article 226 of the Constitution of India. 11. Coming to the next issue of not affixing the notice of the meeting in the notice board of the Gaon Panchayat Office, I find that no such averments has been made by the petitioner in the writ petition. Mr. Choudhury, learned senior counsel for the petitioner has also fairly submitted that no such plea has been specifically taken in the writ petition.