WP(C) 5402/2009 BEFORE HON’BLE MR. JUSTICE H.N. SARMA The writ petitioner was duly elected as President of the Chandipur G.P. under th e territorial jurisdiction of Algapur Anchalik Panchayat in the district of Hail akandi in the panchayat election held on 26-2-2008. While he was holding the off ice, the petitioner was removed by the impugned resolution of the Chandipur Gaon Panchayat held on 7-11-2009 expressing no confidence by 8 members of the Pancha yat in terms of the provisions of S. 15 of the Assam Panchayat Act, 1994. The de cision making process adopted by the Panchayat expressing no confidence against the petitioner held on 7-11-09 and the manner and method of holding the meeting has been challenged in this writ petition, seeking judicial review thereof. 2. I have heard Mr. P. Pathak, ld. Se. counsel assisted by S.K. Medhi advoc ate for the petitioner. Also heard Mr. H.RA. Choudhury, the learned Sr. counsel assisted by Mr. J.I. Borbhuiya, advocate appearing for the respondent No. 5, Dr. B Ahmed, learned counsel appearing for the respondent Nos. 10 to 14, Mr. T.J. Mahanta, learned counsel appearing for the respondent Nos. 6 to 9 and Mrs. V.L. Sinha, learned Addl. Sr. Govt Advocate for the state respondents. 3. While the petitioner was functioning as elected President of the Chandip ur G.P., 8 members of the Panchayat submitted certain allegations against him an d expressed their no confidence against the petitioner to hold the office of th e President. Upon receipt of the requisition the Secretary of the Panchayat havi ng brought it to the notice of the petitioner as President, the petitioner instr ucted the Secretary to convene a special meeting to discuss the no confidence mo tion against him on 23.9.09. Accordingly the meeting was convened. However just on the previous day from of the date fixed for holding the meeting to discuss t he no confidence issue, the Deputy Commissioner cum District Magistrate of the d istrict issued an order dated 22-9-2009 suspending forthwith the no confidence meeting scheduled to be held on 23-9-09 fixed the meeting on 7-10-2009 in the Co nference Hall of the Zilla Parishad, a venue other than the earlier scheduled. T he said order also discloses that such action has been taken by the District Mag istrate on perusal of the letter from the S.P. Hailakandi and on examination and consideration of all aspects and on the request of the S.P., Hailankandi to cha nge the date and venue of the meeting. Upon receipt of the order the petitioner, on the same day, submitted an application before the Deputy Commissioner object ing the decision and requested him to allow to hold the no confidence meeting on the place and date as scheduled on 23-9-09 in the office of the Panchayat. It is specifically stated by the petitioner that no such situation as indicated by the S.P. for postponement of the date and change of the venue of the meeting has arisen. However no action on the prayer made by the petitioner having been take n by the Deputy Commissioner, the meeting was held on 7-10-99 to discuss the no confidence motion on the venue fixed by the Deputy Commissioner i.e. in the offi ce of the Conference Hall of the Zilla Parishad. In the said meeting the 8 membe rs present alleged to have voted against the petitioner and the Vice President o f the G.P. presided over the meeting. In the said meeting the no confidence moti on was carried out against the petitioner. Challenging the said decision taken i n the meeting held on 7-11-09, the present Writ Petition has been filed. 4. Mr. P. Pathak learned Sr. Counsel has contended that S. 15 of the Panchayat Act do not authorize the Deputy Commissioner or the District Magistra te to postpone the date and change the venue of the meeting thereby extending th e time to hold the meeting beyond the statutory period as prescribed. Such actio n having been taken by the District Magistrate in a purported manner without adv erting to the underlying situation and without assessing the facts and circumsta nces germane to the issue involved justifying to take such a decision is not sus tainable in law. Further contention of the ld. counsel is that the District Magi strate acted at the instance of some of the interested members and/or the person s acting under them who are bent on ousting the petitioner at any cost without a ny justifiable reason and the decision has been taken without any objective stud y of the situation thereby causing prejudice to the petitioner. Finally it is co ntended that the District Magistrate acted in a most illegal and arbitrary manne r thereby violating the provisions of S. 15 of the Panchayat Act which renders t he entire action making illegal and non est in the eye of law. 5. Per contra Mr. Choudhury referring to the statements made in the counte r affidavit submits that there arose a great apprehension not only in the mind o f the members of the Panchayat but also in the mind of the people of the localit y that there is a likelihood of breach of peace and adverse law and order situat ion in the event of holding the meeting on the date and venue fixed, inasmuch as , the supporters of the petitioners threatened the members of the Panchayat with dire consequences and the local Durga Puja committee members also objected to t he holding of the meeting in the office of the G.P. which is near to the Puja Ma ndap. Accordingly, objections were raised before the police authority and on app rehension of breach of peace in the locality that may arise on holding of the me eting, the District Magistrate issued the order changing the venue and postponin g the date of the meeting and the District Magistrate has ample power and autho rity under the provisions of the Cr. P.C. to take such measure to prevent brea ch of peace and to tackle the law and order situation in a particular local area . It is also contended by the learned Sr. Counsel that in the no confidence meet ing the 2/3rd of the members having voted against the petitioner the motion was carried into and he was ousted from the office of the president, in accordance w ith the provision of S. 15 of the Act. 6. Dr. B. Ahmed appearing for the respondent Nos. 10 to 11 referring to the counter filed on 18-5-2010 submits that the petitioner has not been able to ma ke out a case for interference under Art. 226 of the Constitution of India, inas much as, he has already been ousted from his office as per the resolution adopte d in the meeting discussing the confidence motion brought against him in complia nce of the provision of S. 15 of the Act by the majority of members of the Panch ayat. It is also contended by Dr. Ahmed that in view of the decision of this Co urt rendered in W.P.(C) No 5266/2008 disposed on 30.5.2008, the petitioner has n o legs to stand and the petition is liable to be dismissed. 7. Mr. T.J. Mahanta learned counsel appearing for the respondent Nos. 6 and 9 however referring to the counter affidavit filed by these respondents submits that the respondent 6 to 9 are also elected members of the Chandipur Gaon Panch ayat and although the meeting of no confidence motion was held on 7-10-09, large scale irregularities were committed in the meeting and the signature of the res pondent Nos. 6 and 7 were obtained by resorting to threat and coercion. It is fu rther pleaded in the counter that no time was fixed for holding the meeting in i ts changed venue and as such the respondent 8 and 9 arrived late after completio n of the meeting and they could not take part in the proceeding. It is further p leaded that the respondent Nos. 6 and 7 informed the irregularities committed i n holding the no confidence meeting to the Deputy Commissioner on the very next day by filing written objection and requested him not to act upon the resolution so adopted and another application was also filed by the respondent No. 6 befor e the Deputy Commissioner on 20-10-2009 stating that the petitioner has been sub jected to criminal conspiracy by the Vice President and Secretary of the Chandip ur G.P. ( respondent Nos. 5 and 7) and ousted him (writ petitioner) illegally a nd they were forced to sign in some blank papers including Vakalatnama and accor dingly they prayed for taking necessary action in this regard. 8. The pleadings of the parties as well as other documents and materials av ailable on record demonstrate that the requisition for no confidence motion agai nst the petitioner was submitted on 9.9.09 and immediately thereafter on 15-9-09 the petitioner as president of the panchayat fixed the date of holding the mee ting on 23-9-09 i.e within the period of 15 days in terms of S. 15 of the Pancha yat Act. Accordingly notice was issued by the Secretary fixing the meeting for d iscussion of no confidence motion on 23-9-09. However, just one day ahead of the meeting the Deputy Commissioner / District Magistrate, Hailakandi, intervened i n the matter and he passed an order postponing the date of the meeting and re-fi xed on 7-10-09 in the conference Hall of Zilla Paraishad Hailakandi. The operati ve part of the order passed by the District Magistrate is quoted herein below. On perusal of the letter of the S.P. Hailakandi and on examinat ion and consideration of all aspects of the request of the S.P. Hailakandi to ch ange the date and venue of the new confidence meeting on the grounds as stated i n the letter it is hereby ordered that the no confidence meeting to be held on 2 3/09/2009 in the office of the Chandipur G.P. against the present president of t he G.P. be suspended forthwith and held on 7th October, 2009, in the conferenc e hall of zilla parishad, Hailakandi. All concerned are hereby directed to compl y with the direction and confirm strict compliance. In view of urgency of the ma tter and late receipt of the S.P.’s letter the O/C, Algapur Police Station is di rected to inform all concerned accordingly and deliver copies of the order to th e officials/persons concerned. 9. Immediately thereafter on the very same day the petitioner objec ted to such move of the Deputy Commissioner by filing a written representation d enying the situations as indicated in the order of the Deputy Commissioner justi fying postponement of the meeting fixed for discussion of the no confidence mot ion. However, the meeting was held on the date and time fixed by the District Ma gistrate on 23-9-2009. The affidavit of the respondent No. 6 to 9 reveal startling facts as regards the manner and method of holding the meeting. The res pondent Nos. 6 to 9 are also the members of the Gaon Panchayat and were present in the meeting and they allege that the signatures of the respondent No. 6 and 7 were taken upon threat and coercion. Paragraph 2 and 3 of the said affidavit ar e quoted herein below - 2. That the deponent begs to state that the writ petition has been file d by the writ petitioner challenging the order of the No-confidence Motion dated 7-10-2009 passed against the president Chandipur Gaon Panchayat, held at the co nference Hall of Hailakandi Zilla Parishad. In the said meeting, large scale irr egularities have occurred and the signatures of the deponent and the respondent No. 7 were obtained by resorting to threat and coercion. It is to be mentioned h ere that there was no proper agenda and time to the said meeting and as such, t he Respondent Nos. 8 and 9, though they arrived at the schedule venue of the mee ting, they could not take part in the said meeting as the meeting was already ov er. 3. That the deponent begs to state that the respondent Nos. 6 & 7 on the very next day of the said meeting i.e. on 8/10/2009 informed the matter to the Deputy Commissioner, Hailakandi i.e. Respondent No. 2 by submitting an application reg arding the irregularities committed in the meeting of the No-Confidence Motion a gainst the president of the Chandipur Gaon Panchayat and in the said application it was clearly mentioned that their signature were obtained by threat and coerc ion though they have full support and confidence in favour of President of Gaon Panchayat i.e. the present writ petitioner. The deponent further begs to state t hat in the representation dated 8/10/20, they made a prayer before the responde nt No. 2 to cancel the order of the said no-confidence motion and to take necess ary steps to conduct a fresh meeting in this regard in order to enable them to p ut their confidence in favour of the President of the said Gaon Panchayat as wel l as to take necessary action against the secretary and Vice - President of the Chandipur Gaon Panchayat as well as President of Algapur Anchalik Panchayat It is also pleaded in the affidavit that the respondent No. 6 submitted another application before the Deputy Commissioner highlighting the illegalities. The op erative part of the said application is quoted herein below - With humble submission, we beg to state that we have been subjected to harassme nt criminal intimidation, assault and threat by Vice- President & Secretary to f ollow them in their illegal plan to oust the President of Chandipur G.P. to furt her their design they forced us to sign all the papers including blank papers, V akalatnama since the discussion of the requisition of the special meeting dated 23.9.2009(which was suspended). That Sir, we fear that out signed paper will be mis-utilised, mi-represented, ex ploited for their illegal gain. Therefore, it is requested your king enough to look into the matter a nd take necessary action against Secretary & Vice- President, of Chandipur G.P. in their aforesaid matter and obliged thereof. 10. Analysis of S. 15 of the Assam Panchayat Act discloses that the allegati on of vote of no confidence brought against the president of the Gaon Panchayat is to be decided in a meeting especially convened for that purpose by the Secret ary of the G.P. with approval of the President within the period of 15 days from the date of receipt of notice. If the meeting is not so held within 15 days, wi thin 3 days thereafter the Secretary shall refer the matter to the president of the concerned Anchalik Panchayat, who shall convene the meeting within 7 days fr om the date of receipt of information from the Secretary of the Gaon Panchayat and preside over such meeting. 11. In the instant case, the issue of no confidence motion against the petit ioner having been brought to the notice of the petitioner by the Secretary, he a sked the Secretary to convene the meeting on 23-9-2009 vide his order dated 15-9 -2009. 12. The meeting to discuss the issue of no confidence alleged against the pe titioner which was fixed on 23.9.09 but the meeting was postponed by the Distric t Magistrate and as such the meeting could not be held on the scheduled date fix ed and accordingly it crossed the time limit of 15 days statutorily prescribed u nder S. 15 of the Act and ultimately the meeting was held on 7.1.09, but beyond the period prescribed. The D.C. acting as District Magistrate even in the prevalent situation t hough was not authorized to postpone the meeting could have referred the matter to the Panchayat authorities itself asking them to postpone the meeting and refe r the matter for adjournment of the meeting or to take resort to any other cours e of action to be decided by the Panchayat itself, in consonance with the provis ion of S. 15 of the Act. In the instant case the undisputed facts disclose a dep arture from the course of action as contemplated under the provision of S. 15 o f the Act made by the D.C. S. 15 does not authorize the Dist. Magistrate to post pone the meeting fixed u/s 15 of the Act. 13. Mr. H.R.A. Choudhury learned Sr. counsel, is perfectly justified in his submissions that the District Magistrate is not to ignore a situation which may give rise to certain disorderly state of affairs in a part of the locality lead ing to the breach of peace in the event of holding the meeting. Materials availa ble on record disclose that the source of information of the District Magistrate is the letter of the S.P. as annexed in the counter of the respondent No. 5 dis closing that the S.P. received the information from the O.C. Algapur P.S. that t here is a likelihood of breach of peace if the meeting is held in the concerned venue where the meeting of no confidence meeting is scheduled to be held . Again by filing an application before the Deputy Commissioner, 3 members of the Panc hayat expressing such apprehensions requested for deployment of C.R.P.F. person nel so that the meeting can be peacefully held. It is strange that the S.P. of t he district instead of tackling the situation by deploying the arms constable or in the manner as required, wrote to the District Magistrate to postpone the mee ting to change the venue and date of the meeting. The copy of the letter written by the 3 members was also sent to the S.P. and the O.C. requesting deployment o f the arms personnel at the place for holding the meeting peacefully. But instea d of doing so, the S.P. acted otherwise as indicated above. Although reference o f Durga Puja was brought on record by the S.P. but the Durga puja festival was s cheduled to held only three days thereafter. In view of the situation as discussed above, I find it extremely difficult to ho ld that the D.C. as District Magistrate has acted bonafide on his going to the e xtent of postponement of the meeting of no confidence motion fixed by the Pancha yat without properly assessing the situation as reflected. In fact the Act does not provide any such power or authority to the District Magistrate to postpone t he date and change the venue of the statutory meeting fixed u/s 15 of the Assam Panchayat Act. 14. Mr. Choudhury referring to a bench decision of this court reported in 20 06 1 GLT 46 (Mumtaz Rana Laskar & Ors. v. State of Assam and Ors)submits that th e provisions of S. 15 so far it relates to the holding of the meeting within the period as prescribed therein is not a mandatory requirement of law and any viol ation thereof cannot be allowed to frustrate the democratic process of removal o f the Pesident by way of no confidence. The aforesaid decision came up for consi deration before a Full Court of this Court in the case of Forhana Begum Laskar v . State of Assam and Ors. reported in 2009 3 GLT 575 wherein the Full Bench proc eeded to held that reading between the lines it does not transpire that the abov e view rendered by the Division Bench can be construed to denote that the entire scheme of S. 15 in all its essential features has been enunciated to be directo ry and not mandatory and it is held that each and every departure from the proce dure and the time schedule contained therein, however, miniscule would not impai r the exercise so as to decisively annihilate the same. Stagewise requirement to be followed in dealing with a prayer for no confidence motion as contained in S. 15 is also required to be examined from another angle . Prima facie compliance of the time schedule provided in the section appears to be a procedural one and the Act is silent as to the need and necessity for main taining such time schedule. On deeper consideration it transpires that the proce dure i.e. the manner and method to deal with the allegation against the Presiden t or Vice President of the Panchayat has been prescribed by the legislature it self. Section 15 is a self contained one dealing with the stages from filing the allegation requesting to convene meeting for discussion of the no confidence mo tion upto the stage of removal of the holder of the office after the motion is carried through. Thus in order to remove the President by way of no confidence m otion, either the procedure prescribed by law under is to be followed or not all . It reminds me the following observation of the Apex Court made in the case of Ma ninder Sitaramji vs. Governor of Delhi & Ors. ( AIR 1974 SC 1868) when a proced ure is prescribed by the legislature, it is not for the Court to substitute a di fferent one according to its own notion of justice when the legislature has spok en. Judge cannot afford to be wiser. Again in the case of Hukum Chand Shyamlal v. Union of India & Ors. reported in A IR 1976 SC 789 - para 18 , the Apex Court held that when power is to be used by a certain authority in a certain way it should be exercised in that manner or n ot at all and all user made performance are necessarily forbidden. Further we find on facts also that the meeting where no confidence motion was ac cepted was conducted in a manner not at all warranted in a democratic process, s ignatures of the members, at least two of them were taken by applying threat and coercion. Applying the aforesaid ratio of the Forhona Bebum Laskar(supra) the decision ren dered in respect of time schedule prescribed under S. 15 of the Act we find here in that in the instant case that the no confidence motion has been held beyond t he period prescribed, and in a manner not authorized by law and in violation of the mandate of S. 15 of the Act. 15. It is true that compliance to the extent of arithmetical arc way as rega rds time fixed u. s 15 for holding the meeting cannot be canvassed as a ground t o nullify the action taken but certainly the same would be required to be dealt with in juxtaposition of the other attenuating circumstances. From the undispute d facts it is found that the date of no confidence as fixed by the President was postponed by the District Magistrate himself and in fact such no confidence mot ion has been carried out on the dates as fixed by the D.M. himself and not by th e Panchayat. The submissions so made by Dr. B. Ahmed that the present case is squarely covere d by the decision rendered by the Single Bench of this Court in the case of Sri Ali Ahmed Majumdar v. State of Assam in W.P.(C) No 5266/ 08 is mentioned only for the purpose of rejection. It is found that in the said case after expiry of the statutory period of 15 days the Secretary of the panchayat referred the matt er to the president of the A.P. and accordingly the fact of the present case is different from the facts of the referred case. 17. In view of so what have been discussed above, and taking note of the m anner and method by which no confidence was carried out as reflected from the co unter affidavit of the respondent