WP(C) 3743/2010 BEFORE THE HON’BLE MR JUSTICE T. VAIPHEI IN THE GAUHATI HIGH COURT (The High Court of Assam; Nagaland; Meghalaya; Manipur; Tripura; Mizoram and Aru nachal Pradesh) WP(C) No. 3743/2010 1. Sri Karun Kanti Malakar, S/o. Sri Kripesh Chandra Malakar Vice-President, Chandipur Gaon Panchayat, Vill Chandipur Colony P.O. Jankipur, Dist- Hailakandi. 2. Smti Suraya Begum Barbhuiya W/o. Forij Uddin Barbhuiya Vill Chandipur Part II P.O. Kaliabari Bazar Dist. Hailakandi, Assam. 3. Sri Salim Uddin Mazumdar S/o. Sri Samar Ali Mazumdar Vill- Chandipur Pt. II P.O. Kaliabari Bazar Dist. GHailakandi, Assam. 4. Sri Gopal Mal S/o. Late Sibnarayan Mal Vill Gitarmukh, P.O. Chandipur Dist. Hailakandi, Assam. 5. Sri Swapan Chandra Ray, S/o. Hor Prasad Ray Vill Bhawartal, P.O. Chandipur, Dist. Hailakandi, Assam. 6. Sri Gauri Bauri W/o. Gokul Bauri Vill- Chandipur Dist. Hailakandi, Assam. & & Petitioners. Vs. 1. The State of Assam, represented by the Commissioner & Secretary to the G ovt. of Assam, Panchayat & Rural Development, Dispur, Guwahati-6. 2. The Deputy Commissioner, Hailakandi, Assam. 3. The Block Developmemtbn Officer, Algapur Block and Algapur Anchalik Panc hayat respectively, P.O. Algapur Bazar, Dist. Hailakandi, Assam. 4. The Secretary, Chandipur Gaon Panchayat, P.O. Kalibari Bazar, Dist. Hail akandi, Assam. 5. Nosir Ahmed Mazumdar, S/o. Abdul Haque Mazumder Vill. Chandipur OPart-II P.O. Kalibari Bazar, P.S. Algapur, Dist. Hailakandi, Assam. & & & &Respondents. BEFORE HON’BLE MR. JUSTICE T. VAIPHEI For the Petitioner : Mr. A.K. Goswami, Sr. Dr. B. Ahmed, Mr. JUNM Laskar Mr. N. Haque, Advocates. For the Respondent : G.A. Assam, Mr. S.K. Medhi, Mr. M. Ahmed, Advocate for the Caveator. Date of hearing and Judgment : 10.11.2010 JUDGMENT AND ORDER (Oral) Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Mr. S .K. Medhi, learned counsel for the respondent No.5 and Mr. R.K. Bora, learned Go vt. Advocate appearing for respondent Nos. 1 to 4. In writ petition, I am called upon to decide the legality of the entire proceeding held on 8.9.2009 convened and presided over by respondent No. 5 rejec ting the No Confidence Motion moved against him by the petitioners. The facts an d circumstances leading to the filing of the writ petition are virtually not in dispute. The petitioners are the elected members of the Chandipur Gaon Panchayat , Hailakandi District. On 8.9.2009, eight out of ten members of Chandipur Gaon P anchayat submitted a requisition to the Secretary of the Gaon Panchayat against the respondent No. 5. The Secretary, it is claimed by the petitioners, in terms of Section 15 of the Assam Panchayat Act took the approval of the respondent No. 5 and issued notices by fixing the date, time and venue for discussion of the N o-Confidence Motion meeting being held on 23.9.2009 at the Gaon Panchayat Office , which is situated adjacent to the house of the respondent No. 5/ President. It is also the case of the petitioners that on the eve of the No Confidence Motion meeting the respondent No. 5 in collaboration with a local ex-minister along wi th 200/300 followers started to threaten all the elected members. Therefore, the majority of the members became afraid of losing their lives. They are stated to have been informed the District Magistrate through a joint application about th e prevailing situation, which was enquired into by a local police personal. The District Magistrate therefore interfered into the matter to avoid any untoward i ncident and passed an order re-scheduling date of the No Confidence Motion meeti ng for 7.10.2009. Notices were served as per the scheduled date, time and venue for holding the meeting. It is the further case of the petitioners that on 7.10. 2009 when the meeting was held, eight out of 10 members cast their secret votes in favour of the motion. A resolution was thus passed by them on the same date a nd removed the respondent No. 5 as the President of the Gaon Panchayat and the Vice-President took over charge as the in-charge President. Aggrieved by this, t he respondent No. 5 approached this Court in WP(C) No. 5402/09 which by the orde r dated 7.10.2009 allowed the writ petition and set aside the resolution removin g the respondent No. 5 as President of the Gaon Panchayat. The petitioners chall enged this order before the Division Bench of this Court, which by order dated 2 0.5.2010 partly allowed the appeal and passed the following order :- Taking into consideration the legal position, we are of the opinion tha t the learned Single Judge was snot unjustified in holding that the meeting comv ened on 7.10.2009 under the directions of the Deputy Commissioner was absolutely illegal and ex-consequenti the resolution taken in the said meeting was also il legal. We find no reasons to interfere with the order passed by the learned Sing le Judge, however, we would issue directions to the respondent No. 1 (President of the Gaon Panchayat) to convene a meeting within 15 days from today for consid ering the No Confidence Motion because the said No Confidence Motion still survi ves in view of the fact that it was taken up for consideration in an illegally c onvened meeting. If within 15 days from today appropriate orders for fixing the meeting a re not passed by the President of the Gaon Panchayat then the Secretary of the P anchayat would be entitled to take appropriate steps in accordance with Section 15 (1) of the Assam panchayat Act. Though, on merits, we dismiss the appeal, but , however, with directions aforesaid. The respsondent No. 5 purportedly in compliance with the aforesaid direc tion of the Division Bench took upon himself the task of convening the No Confid ence Motion again on 18.6.2010 at 11-30 A.M. at Chandipur Gaon Panchayat. The me eting was admittedly convened by him and was also presided over by him in contr avention of the provisions of second paragraph of Section 15(1) which clearly ma ndates that such meeting shall be presided over by the Vice-President if the mot ion of No Confidence is against the President. A number of contentions has also been raised by the learned counsel for the petitioner questioning the legality a s well as propriety of the manner in which the No Confidence Motion was held and concluded by the respondent No. 5. On the other hand, Mr. S.K. Medhi, learned c ounsel for the respondent No. 5 justifies the impugned resolution and submits th at the proceedings in the impugned No Confidence Motion meeting were conducted i n accordance with and as authorized by the directions of the Division Bench of t his Court. The learned counsel for the respondent No. 5, however, submits that a s the No Confidence Motion against the respondent No. 5 was lost in that meeting , such motion is impermissible for the next 6 months. In my opinion this provisi on will be come into play if the No Confidence Motion was conducted in the manne r prescribed by Section 15 of the Act. As far as the order of the Division Bench authorizing the respondent No. 5 to convene the meeting is concerned, in my opi nion the same has to be read in accordance with the provisions of law. In other words, the procedure laid down by the provision of Section 15(1) shall have to b e read into in the direction of the Division Bench of this Court so as to make i t lawful. Be that as it may, during the pendency of this case,the period of 6 months is going to be over on 18.12.2010 and as such to put an end to this spate of litig ations, without giving legitimacy to the manner in which the respondent No. 5 c onvened and concluded the No Confidence Motion against him in contravention of p rovision to Section 15, floor test will meet the ends of justice. The Panchayat Raj System is undoubtedly based on model of parliamentary system of government and as such the question as to whether the respondent No. 5 continues to enjoy t he support of the majority shall have to be decided on the floor of the house an d not elsewhere. That being the position and as per the findings of the Division Bench that the i nitial requisition of notice for No Confidence Motion against respondent No. 5 still survives, the need for fresh requisition shall stand obviated. In the pre mise set forth above, this writ petition stands disposed of with the following d irections :- 1. The requisition for No Confidence Motion of respondent No. 5 dated 8.9.2 009 shall continue to be treated as the requisition for the No Confidence Motion meeting being directed by this order. 2. The Secretary of the Chandipur Gaon Panchayat shall convene a meeting of the No Confidence Motion against the respondent No. 5 on 20.12.2010 at 10-30 A. M. in the office of the Chandipur Gaon Panchayat. 3. The respondent No. 5 is deemed to have approved the convening of the mee ting by the Secretary of the Gaon Panchayat for that day. 4. The Deputy Commissioner shall depute an officer of an appropriate rank t o monitor and supervise the proceeding of the No Confidence Motion meeting held on day so that they are conducted peacefully and without any hindrance. With the above directions, the writ petition stands disposed of. The parties are directed to pay their own costs.