WP(C) 3885/2009 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) The petitioner, who was the elected president of Pub-Dhakuakhana Gaon Panchayat in the district of Lakhimpur, Assam, by the present petition has challenged the proceeding dated 03-09-2009 of the Gaon Panchayat, whereby and w hereunder the resolution expressing want of confidence on her has been adopted. It is the case of the petitioner in the writ petition that she came to know fro m the news report published in a daily newspaper about the resolution taken by 8 (eight) members of the Gaon Panchayat on 19-08-2009 expressing want of confiden ce and convening of a meeting of the Gaon Panchayat on 03-09-2009, which was con ducted even without furnishing her any notice expressing want of confidence or s uch resolution dated 19-08-2009 adopted by eight members of the Gaon Panchayat. According to the petitioner, the resolution adopted on 03-09-2009 is contrary t o the provisions of Section 15 of the Assam Panchayat Act, 1994 (in short, the 1994 Act ) as neither the notice expressing want of confidence nor the resolutio n dated 19-08-2009 has been furnished to her at any point of time. The other gr ounds on which the said resolution has been challenged is that though under Sub- Section 5 of Section 18 of the Act, motion expressing want of confidence is requ ired to be decided by secret ballot, such procedure has not been followed. 2. The contention of the Secretary of the Gaon Panchayat, responden t No.7, who has filed 2 (two) affidavits, one dated 26-11-2009 and the other dat ed 07-12-2009, is that he on receipt of the communication dated 20-08-2009 issue d by the Vice President of the Gaon Panchayat (signed on 19-08-2009) and also th e resolution dated 19-08-2009 adopted by eight members of the Gaon Panchayat, se rved the same on the petitioner alongwith his communication dated 24-08-2009 and though the petitioner accepted the communication dated 24-08-2009 but she refus ed to receive the said communication dated 20-08-2009 issued by the vice Preside nt as well as the resolution dated 19-08-2009. The further case of the Secretar y of the Gaon Panchayat in the affidavits is that the petitioner on the body of the communication dated 24-08-2009 directed holding of the meeting to discuss th e no confidence motion brought against her on 03-09-2009 and accordingly the mee ting of the Gaon Panchayat was held, where an unanimous decision was taken by th e members of the Gaon Panchayat expressing want of confidence on the petitioner and such resolution accordingly has been passed. No affidavit-in-opposition has been filed by the other respondents in the writ petition. 3. I have heard Mr. R.P. Sarmah, the learned Sr. Counsel for the pe titioner and Mr. J. Handique, the learned State Counsel appearing for the respon dent Nos.1 to 4 and 6 and 7. I have also heard Mr. P.P. Baruah, the learned cou nsel appearing for the respondent Nos.10 (i) to 10 (v) and 10 (vii) as well as M r. M. Khataniar, the learned counsel appearing on behalf of the respondent No.8. 4. Mr. Sarmah, the learned Sr. Counsel appearing for the petitioner referring to the provisions of Sub-Sections (1) and (2) of Section 15 of the 19 94 Act has submitted that before convening any meeting to discuss the no confide nce motion against the President or the Vice President, as the case may be, of t he Gaon Panchayat, notice expressing want of confidence has to be served on such President or the Vice President. According to Mr. Sarma, even assuming that the resolution adopted by eight members of the Gaon Panchayat on 19-08-2009 is the notice expressing want of confidence, the same is required to be served on the p etitioner before convening a meeting to discuss the motion expressing want of co nfidence and since the records produced by the Secretary do not reflect service of such resolution on the petitioner, the proceeding of the Gaon Panchayat dated 03-09-2009 is contrary to the provisions contained in Section 15 of the Act. I t has further been submitted by Mr. Sarmah that under Sub-Section (5) of 18 of t he Act, the matter relating to want of confidence is required to be decided by t he Gaon Panchayat by secret ballot and in the instant case such procedure has no t been followed and as such, the proceeding dated 03-09-2009, whereby and whereu nder the resolution of expressing want of confidence was adopted, is illegal bei ng contrary to the provisions contained in Section 18 (5) of the Act. 5. Mr. J. Handique, the learned State Counsel appearing for the res pondent Nos.1 to 4 and 6 and 7 has submitted that since the resolution adopted b y eight members of the Gaon Panchayat on 19-08-2009 has been served on the petit ioner on 24-08-2009, who on the body of the said communication dated 24-08-2009 issued by the Secretary, had asked to convene the meeting to discuss the no conf idence motion brought against her on 03-09-2009, no illegality has been committe d in holding the meeting on 03-09-2009, where the resolution expressing want of confidence has been passed unanimously. Mr. Handique further submits that since such resolution expressing want of confidence has been adopted by all the member s of the Gaon Panchayat, the non compliance of the requirement of adopting the s ecret ballot system under Section 18 (5) has not vitiated the proceeding. 6. Mr. Baruah, the learned counsel appearing for the respondent Nos .10 (i) to 10 (v) and 10 (vii) supporting the argument of Mr. Handique, the lear ned State Counsel, has also submitted that there is no violation of the provisio ns of Section 15 as well as Section 18 (5) of the Act, since the resolution date d 19-08-2009 adopted by eight members were served on the petitioner alongwith th e communication dated 24-08-2009 issued by the Secretary and the petitioner on t he body of the said communication dated 24-08-2009 had directed the Secretary to convene the meeting to discuss the no confidence motion brought against her on 03-09-2009. Mr. Baruah further submits that since all the members of the Gaon P anchayat unanimously adopted the resolution expressing want of confidence, there is no necessity to adopt the secret ballot procedure. Mr. Khataniar, the learne d counsel appearing on behalf of the respondent No.8 adopts the argument of Mr. Handique as well as of Mr. Baruah. 7. Sub-Section 2 of Section 15 of the 1994 Act requires that the re quisition for a special meeting to discuss the no confidence motion against the President or the Vice President of the Gaon Panchayat, as the case may be, under Sub-Section 1 of Section 15 is to be signed by not less than 1/3rd of the total number of members of the Gaon Panchayat and the same shall be delivered to the President or the Vice President, as the case may be, of the concerned Gaon Panch ayat with information to the Deputy Commissioner of the District. 8. In the instant case, the records produced by the learned State C ounsel reveal the existence of the resolution adopted by eight members of the Ga on Panchayat on 19-08-2009 expressing want of confidence against the petitioner, who is the President of Pub Dhakuakhana Gaon Panchayat. The said resolution ca n be treated as the notice expressing want of confidence against the petitioner. The records further reveals the existence of a communication dated 20-08-2009 (signed on 19-08-2009) issued by the Vice President of the Gaon Panchayat to th e Secretary of the Gaon Panchayat expressing want of confidence against the peti tioner. The notice dated 20-08-2009 having been singed only by the Vice Preside nt, the same cannot be treated to be a notice for requisition of a special meeti ng to discuss no confidence motion, as under Section 15 (2) of the 1994 Act, it is required to be signed by not less than 1/3rd of the total number of members o f the Gaon Panchayat. The resolution dated 19-08-2009, which can be treated as a notice expressing want of confidence was signed by the eight members of the Ga on Panchayat, i.e. more than 1/3rd of the total number of members of the Gaon Pa nchayat. Sub-Section 2 of Section 15 of the Act, as noticed above, requires del ivery of such notice to the President or the Vice President, as the case may be, against whom the no confidence was brought. The record produced by the Secretar y of the Gaon Panchayat does not reveal delivery of such resolution dated 19-08- 2009 to the petitioner though the Secretary in the additional affidavit dated 07 -12-2009 has stated that the same was tendered to the petitioner, who refused to accept the same. Such version of the Secretary, which according to him, is tru e to his knowledge, cannot be accepted without there being any supporting materi al on record. 9. That being the position, the resolution adopted in the meeting d ated 03-09-2009 cannot stands the scrutiny of law, as the meeting was convened a nd held without even delivering the notice expressing want of confidence dated 1 9-08-2009. The proceeding dated 03-09-2009 is, therefore, liable to be set asid e and accordingly the same is set aside. The question as to whether the secret ballot system is required to be followed even in case where all the members of t he Gaon Panchayat decided unanimously to adopt the resolution expressing want of confidence, in view of the aforesaid position, has not been gone into. 10. The writ petition is accordingly allowed. The resolution dated 03-09-2009 adopted by Pub Dhakuakhana Gaon Panchayat expressing want of confiden ce on the petitioner is set aside. No cost.