WP(C) 6256/2010 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) By these writ petitions, the petitioners, who were earlier elect ed as President and the Vice President of Dhemaji Zilla Parishad have challenged the proceedings dated 9th and 10th November, 2010 of the Zilla Parishad, whereb y and whereunder they were removed from the Office of the President and Vice Pre sident by expressing want of confidence and in their places the private responde nt Nos.6 and 7 in WP(C) No.6394/2010, namely Deva Kr. Gogoi and Smti. Kamalawati Doley (Pegu), were elected as President and Vice President of the said Zilla Pr arishad. [2] The facts relevant for the purpose of disposal of the present ca ses may be noticed as under:- The election of the Members of Dhemaji Zilla Parishad was held i n the year 2008 and thereafter the elected Members elected the President and Vic e President of the Zilla Parishad. In the proceeding dated 15th February, 2010, initially elected President and Vice President of the Zilla Parishad, however, were removed from the Office on expressing want of confidence and in their place s the writ petitioners were elected as the President and the Vice President. Wh ile the present petitioners were discharging their functions as President and Vi ce President, 2 (two) notices both dated 26th October, 2010 were given by 5 (fiv e) directly elected Members of the Zilla Parishad expressing want of confidence on them, which were placed before the Deputy Commissioner, as required under Sec tion 73(2) of the Assam Panchayat Act, 1994 (in short, the Act ). The meeting of the Zilla Parishad thereafter, was convened on 9th November, 2010 for conside ration of the no confidence motion brought against the petitioner in WP(C) No.63 94/2010 and 10th November, 2010 for consideration of the notice of motion brough t against the petitioner in WP(C) No.6256/2010. The meetings were presided over by the Additional Deputy Commissioner. In the proceeding dated 9th November, 2 010, 5 (five) directly elected Members expressed their want of confidence on the petitioner in WP(C) No.6394/2010 and in the subsequent proceeding dated 10th No vember, 2010, the said directly elected Members expressed want of confidence on the petitioner in WP(C) No.6256/2010. After adopting such resolutions expressing want of confidence, 2 (two) other resolutions were also adopted in the aforesai d meetings dated 9th and 10th November, 2010 electing the President and the Vice President of the said Zilla Parishad in place of the petitioners. Hence, the p resent petitions. [3] I have heard Dr. B. Ahmed, learned counsel for the petitioners a nd Mrs. H.M. Phukan, learned State counsel appearing for the State respondents. I have also heard Mr. N. Dutta, learned Sr. Counsel appearing for the responden t Nos.6 and 7 and Mr. M.U. Mahmud, learned Standing Counsel appearing for the St ate Election Commission. The other respondents, despite service of notices, are not represented. [4] Challenging the resolutions dated 9th and 10th November, 2010 ad opted by the Zilla Parishad removing the petitioners from the Office of the Pres ident and Vice President by expressing want of confidence, it has been submitted by Dr. Ahmed that Sub-Section (2) of Section 65 of the Act requires voting by s ecret ballot in the matter of motion of confidence, which having not been follow ed in the cases in hand, the resolutions adopted in the aforesaid proceedings ex pressing want of confidence are bad in law being violative of the statutory prov isions. Dr. Ahmed further submits that the second part of the resolutions elect ing the respondent Nos.6 and 7, as President and Vice President of the Zilla Par ishad, is contrary to the provisions contained in Rule 50 of the Assam Panchayat (Constitution) Rules, 1995 (in short, Constitution Rules ) read with Rule 53(3 ), as, such election cannot be conducted in the same proceeding, where the motio n expressing want of confidence is adopted and for which the notices for electio n has to be issued, as required under Rule 50 of the Rules. The learned counsel , therefore, submits that the second part of the resolution electing the respond ent Nos.6 and 7, as President and the Vice President in place of the petitioners , also contrary to the provisions of the Act and the Rules framed thereunder. [5] Mr. Dutta, learned Sr. Counsel appearing for the respondent Nos. 6 and 7 referring to the proceedings dated 9th and 10th November, 2010, on the o ther hand, has submitted that it is evident from the said proceedings that 2 (tw o) different resolutions were adopted, 1 (one) expressing want of confidence on the petitioners and the other electing the respondent Nos.6 and 7 in their place s. According to the learned Sr. Counsel, Sub-Section (2) of Section 65 does not require following the secret ballot system in consideration of motion of no con fidence brought against the President and Vice President of the Zilla Parishad a nd since 5 (five) out of total 7 (seven) directly elected Members expressed thei r want of confidence by expressing their opinion, the resolutions expressing suc h no confidence were rightly adopted. It has also been submitted that as soon a s such resolutions were adopted, the President and the Vice President deemed to have vacated their Office forthwith. [6] Relating to the submission of violation of Rules 50 and 53(3) of the Constitution Rules in electing the respondent Nos.6 and 7 to the Office of the President and Vice President, it has been submitted by the learned Sr. Couns el that under Section 70(2) of the Act read with Rule 50(11) of the Constitution Rules, such dispute is to be raised in the Election Tribunal constituted under Section 127 of the Act and not in a writ proceeding, as sought to be raised by t he writ petitioners. Referring to the proceeding dated 15th February, 2010, Mr. Dutta further submits that in any case, the impugned proceedings, which have 2 ( two) parts, namely adopting the no confidence motion against the petitioners an d election of other persons in their places, may not be set aside in exercise of the writ jurisdiction, as it would amount to restoring another illegal proceedi ng dated 15th February, 2010, whereby the writ petitioners were elected as the P resident and Vice President by following the same procedure, as was adopted in t he proceedings dated 9th and 10th November, 2010. [7] Mr. Mahmud, learned counsel appearing for the State Election Com mission has submitted that though Rule53(1) of the Constitution Rules requires s ubmission of a report to the State Election Commission by the Deputy Commissione r or by the Sub-Divisional Officer, as the case may be, in the event of occurrin g any vacancy in the office either of the President or the Vice President of the Zilla Parishad, the Election Commission as such has no role to play in the matt er of filling up of casual vacancy including the vacancy caused due to removal o f the President and Vice President of the Zilla Parishad, who are required to be elected by the directly elected Members by following Rule 50 of the Constitutio n Rules. [8] Mrs. Phukan, learned State Counsel appearing for the State respo ndents has also submitted that the writ petitioners were rightly removed from th e Office of the President or Vice President, as 5 (five) out of total 7 (seven) directly elected Members expressed their want of confidence on them. The learne d State Counsel, however, has submitted that the vacancies caused due to removal of the writ petitioners from the Office have to be filled up by following the p rovisions contained in Rule 50 of the Constitution Rules. [9] I have considered the submissions of the learned counsel for the parties and also perused the pleadings of the parties. [10] The facts narrated above are not in dispute. In the proceedings dated 9th and 10th November, 2010, 5 (five) out of total 7 (seven) directly ele cted Members expressed their want of confidence on the petitioners as President and Vice President of the Zilla Parishad. Section 73 of the Act provides for re moval of the President and/or Vice President of the Zilla Parishad by expressing want of confidence on them by a majority of 2/3rd of the total number of member s elected directly as Zilla Parishad members at a meeting especially convened fo r that purpose. Proviso to Sub-Section (2) of Section 73 requires that if the m ember expressed want of confidence both against the President and Vice President of the Zilla Parishad at the same time and issue notices, the Chief Executive O fficer of the Zilla Parishad has to report the matter to the concerned Deputy Co mmissioner within 3 (three) days from the date of receipt of the notices and the concerned Deputy Commissioner then shall have to direct the Chief Executive Off icer of the Zilla Parishad to convene the meeting within 15 (fifteen) days from the date of receipt of the direction, separately, to consider the motion against the President first and then against the Vice President on the next day. Such meeting is required to be presided over by the Deputy Commissioner or by any oth er Officer not below the rank of the Additional Deputy Commissioner, if the Depu ty Commissioner is unable to preside over such meeting. [11] In the instant cases, as noticed above, the notices expressing w ant of confidence were given against both the President and Vice President of th e Zilla Parishad and accordingly the Chief Executive Officer sent the matter to the Deputy Commissioner, who directed him to convene the meeting, which were pre sided over by the Additional Deputy Commissioner, as authorized by the Deputy Co mmissioner. The meeting for consideration of want of confidence against the Pre sident was held on 9th November, 2010 and against the Vice President on 10th Nov ember, 2010. [12] In the proceeding dated 9th November, 2010, 5 (five) out of 7 (s even) Members, i.e. more than 2/3rd of the total number of directly elected memb ers expressed want of confidence on the President. On the same date, a further resolution was also adopted by the said 5 (five) Members electing respondent No. 6, Deva Kr. Gogoi, as the President in place of the writ petitioner in WP(C) No. 6394/2010. Similarly in the proceeding dated 10th November, 2010, 5 (five) memb ers out of 7 (seven) expressed want of confidence on the writ petitioner in WP(C ) No.6256/2010 and removed him from the Office and in his place by another resol ution the respondent No.7, and Smti. Kamalawati Doley (Pegu), was elected. [13] Sub-Section (2) of Section 65 of the Act provides that all the m embers of the Zilla Parishad as constituted under Section (1) of Section 65 shal l have the right to vote except in the motion of no confidence in which only the directly elected members would participate. Sub-Section (2) does not provide f or adopting the secret ballot procedure, as has been provided in Sub-Section (5) of Section 18 of the Act, in respect of the meeting of the Gaon Panchayat. Tha t being the position, the contention of the learned counsel for the petitioners that adoption of the resolution expressing want of confidence against the petiti oners is vioilative of Sub-Section (2) of Section 65 of the Act having not follo wed the secret ballot procedure, cannot be sustained in law and hence rejected. [14] Rule 50 of the Constitution Rules provides the procedure to be f ollowed in the matter of election of the President and the Vice President of the Zilla Parishad. The President and Vice President are elected by the elected me mbers of the Zilla Parishad. The persons, who have been removed from the Office of the President and Vice President by expressing want of confidence can also p articipate in the election to the said offices, as there is no bar for such part icipation in the election. It also requires issuance of notice for holding the e lection, which admittedly has not been done in the instant cases. The responden t Nos.6 and 7 were elected as the President and Vice President in the proceeding s dated 9th November, 2010 and 10th November, 2010, respectively, which meetings were convened for consideration of the no confidence motion brought against the President and the Vice President of the Zilla Parishad only and not for the pur pose of election to the Office, as naturally before removal, no such notice can be issued. The submission of the learned Sr. Counsel appearing for the responde nt Nos.6 and 7 that this Court may not interfere with such resolution electing t he respondent Nos.6 and 7 as the President and Vice President in place of the wr it petitioners, in view of the provision contained in Section 70(2) read with Ru le 50(11) of the Constitution Rules, which requires resolution of such dispute b y the Panchayat Election Tribunal, may not come in the way of exercising the wri t jurisdiction, when there is apparent infraction of the statutory rules, which does not require determination of any fact by adducing any evidence. As noticed above, in the proceedings dated 9th and 10th November, 2010, the respondent Nos .6 and 7 were elected as President and Vice President of the Zilla Parishad, aft er removing the writ petitioners from the Office by expressing want of confidenc e, though such meetings were convened for the purpose of consideration of such n o confidence motion brought. The procedure required to be followed under Rule 5 0 of the Constitution Rule, i.e. issuance of notice for election has not been fo llowed. There is, therefore, apparent infraction of the statutory rules relatin g to filling up of the vacancies caused in the Offices of the President and Vice President. [15] That being the position, while refusing to interfere with the re solutions adopted in the aforesaid proceedings dated 9th and 10th November, 2010 removing the petitioners from the Office of the President and Vice President, r espectively, by expressing want of confidence, the resolutions adopted in the sa id meeting electing the respondent Nos.6 and 7 as President and Vice President, respectively, are set aside. The Deputy Commissioner is directed to initiate the process for election of the President and Vice President of the said Zilla Pari shad by following the provisions contained in Rule 50. The entire exercise of el ection to the said Offices is directed to be completed within a period of 1 (one ) month from today. For the aforesaid period of 1 (one) month, the Deputy Commi ssioner shall make necessary arrangement for discharging the duties and function s of the President and Vice President of the Zilla Parishad. [16] The writ petitions are accordingly partly allowed. No costs.