WP(C) 1687/2011 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R This is an application under article 226 of the Constitution of India. The challenge made herein is to the notice dated 28-02-2011 issued by the Secretary and Executive Officer, Hailakandi Anchalik Panchayat, Hailakandi conv ening a special meeting of the Boalipar Gaon Panchayat on 04-03-2011 for discuss ing the no-confidence motion against the President of the said Gaon Panchayat an d the resolution of no-confidence dated 04-03-2011 adopted in the said meeting a gainst the President of the said Gaon Panchayat. 2. The facts of the case as would appear from the pleadings may be briefly stated at the very outset. 3. The petitioner was elected as the President of the Boalipar Gaon Panchayat (briefly the Gaon Panchayat hereafter) under the Hailakandi Anchali k Panchayat (briefly the Anchalik Panchayat hereafter) situated in the distric t of Hailakandi. 7 (seven) members of the Gaon Panchayat submitted a requisition dated 11-02-2011 to the Secretary of the said Gaon Panchayat declaring that the y had lost confidence in the President for various reasons mentioned in the said requisition and requested the Secretary to convene a meeting of the Gaon Pancha yat to discuss the motion of no-confidence against the petitioner. A copy of the said requisition was also marked to the petitioner amongst others. The Secretar y of the Gaon Panchayat wrote to the President of the Anchalik Panchayat by lett er dated 26-02-2011 stating that 7 (seven) members of the Gaon Panchayat had sub mitted a requisition dated 11-02-2011 expressing lack of confidence in the petit ioner and requesting holding of a special meeting to discuss the said motion. Th e Secretary stated that though he had put up the concerned file to the President to fix up the date and time for convening the meeting, the latter did not fix a ny date or time for holding such meeting. The Secretary stated that after the st ipulated period of 15 (fifteen) days was over, as the petitioner did not take th e required steps, he had forwarded the requisition to the President of the Ancha lik Panchayat for taking necessary steps. A copy of the said letter was also mar ked to the petitioner. Thereafter, the Secretary and Executive Officer of the An chalik Panchayat issued notice dated 28-02-2011 intimating that a special meetin g of the Gaon Panchayat would be held on 04-03-2011 at 1:30pm in the office cham ber of the President of the Anchalik Panchayat to discuss the no-confidence moti on against the petitioner. As scheduled, the said meeting was held on the date, time and venue fixed. The said meeting was presided by the President of the Acha lik Panchayat and was attended by 8 (eight) members of the Gaon Panchayat. The m otion of no-confidence against the petitioner was discussed in the said meeting wherein the petitioner stated that on 29-05-2009 4(four) members of the Gaon Pan chayat had executed an agreement reposing confidence on the petitioner till the expiry of his tenure. However, after discussing the no-confidence motion, the sa me was put to vote which was by secret ballot. 7 (seven) members voted in suppor t of the no confidence motion i.e. against the petitioner and 1 (one) member vot ed against the motion i.e. in support of the petitioner. By resolution No.6 adop ted in the said meeting, it was resolved that since out of the eight members pre sent, seven had voted in favour of the no-confidence motion but on the other han d four members out of ten members had executed an agreement on 29-05-2009 expres sing confidence on the president till the expiry of his term, the matter was for warded to the superior authority to take the final decision. On 05-03-2011, th e Block Development Officer, Hailakandi Development Block wrote to the Secretary of the Gaon Panchayat that in view of the resolution of the Gaon Panchayat date d 04-03-2011 expressing lack of confidence on the petitioner which was passed by a majority of 2/3rd members of the total number of members of the Gaon Panchaya t, the Vice President of the Gaon Panchayat was directed to exercise all the pow ers, perform all the functions and discharge all the duties of the President of the Gaon Panchayat until further order. 4. I have heard Mr. S.K.Medhi, learned counsel for the petitioner, Mr. B.J.Ghosh, learned State Counsel for the respondent Nos. 1 to 5 and Mr. P.K. Deka, learned counsel for the respondent Nos. 6 to 12. 5. Mr. Medhi, the learned Counsel for the petitioner submits that t he procedure prescribed in sub-sections (1) and (2) of section 15 of the Assam P anchayat Act, 1994 (briefly the Act hereafter) has not been followed in the pr esent case and the same has vitiated the impugned notice and resolution. He furt her submits that the requisition of no-confidence was addressed to the Secretary of the Gaon Panchayat and not to the President and that the said requisition da ted 11-02-2011 was brought to the notice of the petitioner only on 26-02-2011. M r. Medhi further submits that there was also violation of section 18(5) of the A ct in much as the voting was not by secret ballot in the actual sense of the ter m. Stating that though ballots were used in the voting, it could not be termed a s secret ballot in as much as there was no provision for separate compartment to ensure complete secrecy. Learned Counsel submits that secrecy in all respects h as to be maintained so as to ensure the sanctity of the no-confidence proceeding . Mr. Medhi, the learned Counsel refers to and relies on the following decisions of this Court in support of his submissions:- (1) 2009 (3) GLT 575; (Forhana Begum Laskar Vrs. State of Assam and Ors.), and (2) 2011 (3) GLT 396; (Ali Ahmed Mazumdar Vrs. State of Assam and Ors.). 6. Mr. Ghosh, the learned State Counsel refers to the counter affid avit jointly filed on behalf of the respondent Nos. 4 and 5, particularly the av erments made in paragraphs 5, 7, 8 and 9 thereof. He submits that the requisitio n dated 11-02-2011 was placed before the petitioner on 12-02-2011 and on receipt of the same, the petitioner had put his signature and commented in the noteshee t as wait . Stating that though the requisition was addressed to the Secretary of the Gaon Panchayat, a copy thereof was forwarded to the petitioner. As the pe titioner kept the matter pending for 15 days, the Secretary of the Gaon Panchaya t had no other alternative but to place the matter before the Anchalik Panchayat President. Thereafter, the Secretary and Executive Officer of the Anchalik Panc hayat issued the notice dated 28-02-2011 convening the special meeting of the Ga on Panchayat on 04-03-2011 to discuss the no-confidence motion against the petit ioner. Mr. Ghosh submits that the petitioner was present in the meeting on 04-03 -2011 and participated in the proceeding. He also asserts that voting on the no- confidence motion was by secret ballot whereafter the result was declared. Conte nding that there was substantial compliance to the provisions of sub-sections (1 ) and (2) of section 15 the Act, he seeks dismissal of the writ petition. 7. Supporting the submissions of Mr. Ghosh, Mr. P.K. Deka, learned Counsel for the private respondents submits that though the requisition of the n o-confidence motion was addressed to the Secretary, a copy of it was also marked to the President. According to him, 7 (seven) members had voted in support of t he no-confidence motion which means that the no confidence motion had the backin g of 2/3rd of the total number of members of the Gaon Panchayat and, therefore, by operation of law the petitioner was deemed to have been removed from the offi ce of the President. As a matter fact, Mr. Deka submits that the Respondent No.7 , who was the earlier Vice President of the Gaon Panchayat, is now functioning a s the President. Asserting that the vote was carried out by secret ballot, he su bmits that the petitioner himself was present in the meeting on 04-03-2011 and, therefore, he cannot now raise an objection regarding non-receipt of the requisi tion. He, therefore, prays for dismissal of the writ petition. 8. In his reply, Mr. Medhi, the learned Counsel for the petitioner submits that the Secretary of the Gaon Panchayat had put up the said requisition dated 11-02-2011 to the petitioner only on 26-02-2011 on which date he had made an endorsement therein as wait’. Contending that the 15 (fifteen) days period is to be counted from the date of receipt of the requisition by the President, h e submits that holding of the meeting on 04-03-2011 under the aegis of the Ancha lik Panchayat was wholly unwarranted and illegal, being in violation of the proc edure prescribed in Section 15(1) of the Act. In addition to the judgments cited above, Mr. Medhi also presses into service a judgment of this Court in the c ase of Nosir Ahmed Mazumdar -Vs- State of Assam and others; reported in 2010 (5) GLT 103. 9. The case was heard on 24-11-2011 but as the record was not avail able, Mr. Ghosh, the learned State Counsel was directed to requisition the relev ant record and to submit the same before the Court Master within 7 (seven) days. While reserving the judgment, it was observed that the judgment will be deliver ed on receipt of the record. Subsequently, Mr. Ghosh has produced the record. 10. Section 15 of the Act deals with no-confidence motion against th e President and the Vice-President of the Gaon Panchayats, the material portion of which may now be briefly noticed. As per the first part of sub-section (1) of section 15, which is a declaratory provision, every President shall be deemed t o have vacated his office forthwith when a resolution expressing want of confide nce in him is passed by a majority of two third of the total number of members o f the Gaon Panchayat. The sub-sequent part of the said sub-section and sub-secti on (2) of section 15 prescribes the procedure for holding a special meeting to d iscuss and decide the requisition of no-confidence. As per sub-section (2), the requisition for such a special meeting shall be signed by not less than one thir d of the total number of members of the Gaon Panchayat and shall be delivered to the President of the concerned Gaon Panchayat with information to the Deputy Co mmissioner of the district. After such requisition is delivered to the President , the second part of sub-section (1) of section 15 comes into play. The Secretar y of the Gaon Panchayat shall specially convene a meeting with the approval of t he President of the Gaon Panchayat within a period of 15 days from the date of r eceipt of the requisition, to be presided over by the Vice-President. In case su ch a meeting is not convened within the period specified, the Secretary of the G aon Panchayat shall within 3 days refer the matter to the President of the conce rned Anchalik Panchayat, who shall convene the meeting within seven days from th e date of receipt of the information from the Secretary of the Gaon Panchayat an d preside over such meeting. 11. I have perused the record that has been made available. As notic ed above, the requisition of no-confidence motion dated 11-02-2011 signed by 7 m embers of the Gaon Panchayat was addressed to the Secretary of the Gaon Panchaya t, with copies marked to a host of other people including the MLA of Algapur con stituency, not mentioned in sub-section (2) of Section 15 of the Act. Though a c opy was shown marked to the petitioner, there is nothing in the record to indica te that the said requisition was delivered to the President on 12-02-2011 as cla imed by the respondent Nos. 4 and 5 in their affidavit. Though it is stated in p aragraph 5 of the said affidavit that the requisition was placed before the peti tioner on 12-02-2011 whereupon he put up the comment wait , which will be refle cted from the note sheet, the same is not discernable from the record. The note sheet referred to above is also not available in the record. Even in his letter dated 26-02-2011 addressed to the Anchalik Panchayat President, the Secretary of the Gaon Panchayat does not say when he had put up the file to the President to fix up the date and time for convening the special meeting. Therefore, it canno t be said that the requisition was delivered to the President on 12-02-2011. On the other hand, the petitioner has asserted and reiterated on oath in his rejoin der affidavit that the requisition dated 11-02-2011 was placed before him only o n 26-02-2011 when he had made the endorsement wait . 12. Thus, in my considered view, the requisition dated 11-02-2011 wa s not delivered to the petitioner on 12-02-2011 as claimed by the respondent Nos . 4 and 5. As such the prescribed period of 15 days was not over when the Secret ary of the Gaon Panchayat referred the matter to the Anchalik Panchayat Presiden t on 26-2-1011. In the absence of any contrary material in the record, there is no reason to disbelieve the assertion of the petitioner made on oath that the re quisition was put up before him only on 26-02-2011, when he put up a note to wa it . The period of 15 days thereafter could have been very crucial for the petit ioner. But instead of waiting , the impugned notice was issued and the meeting held on 4-3-2011 before expiry of stipulated period. Therefore, it is evident th at the procedure prescribed in sub-sections (1) and (2) of Section 15 of the Act have not been complied with in the present case, which in my opinion has vitiat ed the impugned notice and resolution. The presence of the petitioner in the mee ting held on 04-03-2011, in my opinion, does not in any manner lessen the impact of the procedural lapses on the validity of the said meeting. 13. A Division Bench of this Court in the case of Mumtaz Rana Laskar -Vs- State of Assam & Ors.; reported in 2006 (1) GLT 46 on an examination of th e provisions of section 15(1) of the Act came to the conclusion that a mere proc edural irregularity in the matter of making the reference by the Secretary of th e Gaon Panchayat either to the President of the Anchalik Panchayat or to the Dep uty Commissioner shall have no bearing whatsoever upon the resolution passed in the specially convened meeting expressing want of confidence in the President. 14. Examining the aforesaid judgment, a Full Bench of this Court in the case of Forhana Begum Laskar (supra) held as under :- 26. Reading between the lines, it does not transpire to us that the above view rendered by the Division Bench can be construed to denote that the entire scheme of Section 15 in all its essential features has been enunciated to be directory and not mandatory. It rather seems to accentuate that each and every departure from the procedure and the time schedule contained therein, however, miniscule w ould not impair the exercise so as to decisively annihilate the same. In the con textual facts of the present appeal and the contraventions already noticed herei nabove, which we construe to be sufficient to answer the issues presently raised we do not consider it essential to embark on a rescrutiny of this proposition i n the instant proceeding . 15. Following the said Full Bench decision, a Single Bench of this C ourt in the case of Nosir Ahmed Mazumdar (supra) having found that the meeting d iscussing the no-confidence motion was held beyond the period prescribed and in a manner not authorised by section 15 of the Act, set-aside and quashed the reso lution accepting the no-confidence motion against the petitioner and directed re instatement of the petitioner as the President of the Gaon Panchayat. 16. In the case of Ali Ahmed Mazumdar (supra), a Division Bench of t his Court examined the question of receipt of the requisition of no-confidence m otion by the Gaon Panchayat Secretary on behalf of the President and after obser ving that justice demands physical and direct service of notice upon the Preside nt, held that the notice of no-confidence motion received by the Gaon Panchayat Secretary on behalf of the President cannot be construed as due notice to the Pr esident and that the period of 15 days as contemplated in section 15(1) of the A ct has to be counted only from the date of bringing the notice to the personal k nowledge of the President formally through official note and not otherwise. Expl aining the rational for taking the said view, this Court observed that a dishone st Panchayat secretary for dubious purpose or on extraneous consideration to ser ve some vested interest, may play mischief by holding back the requisition from the President to create a situation to show that the President had failed to con vene the special meeting within the period of 15 days as prescribed u/s 15(1) of the Act, thereby making out a case for referring the matter to the Anchalik Pan chayat to convene a special meeting by it. 17. Such a situation cannot altogether be ruled out. 18. It is true that the schedule prescribed in sub-section (1) of se ction 15 of the Act need not be adhered to with mathematical precision and that it cannot be said as a general proposition that even the slightest of departure from the prescribed procedure will vitiate the entire proceeding. But at the sam e time, in my considered view, considering the scheme of section 15(1) and (2) o f the Act as a whole and the fact that the Gaon Panchayat President is directly elected unlike the Anchalik Panchayat and the Zilla Parishad Presidents, who are elected by the elected members from amongst themselves, there has to be substan tial adherence to the procedure prescribed so as to obviate any possibility of m ischief. 19. Coming to the facts of the present case, as has been held earlie r, the requisition dated 11-02-2011 was received by the petitioner on 26-02-2011 on which date he had asked the Secretary to wait . The period of 15 days there after could have been crucial for the petitioner considering the fact that four out of the ten members had been wavering in their stand as would appear from the agreement referred to in the resolution No.6 dated 04-03-2011. Therefore, the p ossibility of mischief cannot be ruled out. As such, I am of the considered view that for the reasons indicated in the earlier part of this judgment, there has been a substantial and significant departure from the procedure prescribed in Se ction 15(1) and (2) of the Act and the same has vitiated the impugned notice and resolution. In view of the aforesaid finding, it is considered not necessary to go into the petitioner’s second limb of argument i.e., the extent of secrecy th at is to be maintained in a vote deciding a no-confidence motion. 20. In that view of the matter, the impugned notice dated 28-02-2011 and the resolution of no-confidence dated 04-03-2011 are set-aside and quashed. The petitioner is directed to be reinstated in the office of the President of t he Gaon Panchayat forthwith. However, those members of the Gaon Panchayat who la ck confidence in the petitioner as the President are at liberty to pursue the is sue of no confidence against him afresh in accordance with the procedure prescri bed in section 15(1) and (2) of the Act. No cost.