WP(C) 3880/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Judgement and Order (ORAL) This writ petition has been filed by the petitioner, who was ele cted as President of No.4 Bamunpukhuri Gaon Panchayat basically challenging the proceeding by which she has been removed from the Office of the President of the said Gaon Panchayat by adopting a resolution expressing want of confidence on h er by the members of the said Gaon Panchayat with a further prayer to direct the respondents to allow her to continue as the President of the said Gaon Panchaya t until she is removed from the Office in accordance with law. 2. The facts relevant for the purpose of the case are that 6 (six) members of the said Gaon Panchayat on 30-06-2009 submitted a representation befo re the Block Development Officer, Kaliapani Development Block, requesting him to convene a meeting on 02-07-2009 expressing want of confidence on the petitioner . The Block Development Officer in turn on 01-07-2009 forwarded the said repres entation to the Secretary of the Gaon Panchayat for convening a meeting to discu ss the No Confidence Motion brought against the petitioner in accordance with la w. The Secretary of the Gaon Panchayat on 01-07-2009 itself issued a communicat ion to the petitioner seeking her approval to convene the meeting to discuss the No Confidence Motion brought vide representation dated 30-06-2009. The petiti oner, who was the President of the said Gaon Panchayat, did not approve the prop osal of the Secretary to convene the meeting and as such, the Secretary on 10-07 -2009 issued a notice to all the members as well as the petitioner convening the meeting of the Gaon Panchayat on 14-07-2009 to discuss the No Confidence Motion brought against the petitioner by six members. The meeting of the Gaon Panchaya t was accordingly held on 14-07-2009 and the resolution expressing want of confi dence on the petitioner was adopted by 2/3rd number of the total members of the Gaon Panchayat. Pursuant to such resolution, the Deputy Commissioner, Jorhat vi de communication dated 28-08-2009 informed the Principal Secretary to the Govern ment of Assam, Panchayat and Rural Development Department about adoption of such resolution by 2/3rd majority members of the Gaon Panchayat expressing want of c onfidence on the petitioner. Hence, the present petition. 3. I have heard Mr. A. Thakur, the learned counsel for the petition er and Mrs. HM Phukan, the learned State Counsel appearing for the respondent No s.1, 2 and 10 and Mr. B. Buragohain, the learned counsel appearing for the respo ndent Nos.3 to 9. 4. Mr. Thakur, the learned counsel for the petitioner referring to the provisions contained in Section 15 of the Assam Panchayat Act, 1994 (in shor t, the Act ) has submitted that the requisition expressing want of confidence s igned by not less then 1/3rd members of the Gaon Panchayat shall have to be deli vered to the President or the Vice President, as the case may be, against whom t he No Confidence Motion is brought and only after service of such notice, the Se cretary of the Gaon Panchayat can seek the approval of the President to convene the meeting to discuss the no confidence motion and in case of failure on the pa rt of the President to approve the proposal of the Secretary to convene such mee ting, the Secretary has to inform the President of the Anchalik Panchayat, who, then shall have to convene and preside over such meeting. According to Mr. Thak ur, it is evident from the materials available on record as well as the affidavi t filed by the Secretary of the Gaon Panchayat that though, according to the Sec retary, his proposal to convene the meeting of the Gaon Panchayat to discuss the notice expressing want of confidence was not approved by the petitioner, the Se cretary instead of placing the same before the President of the Anchalik Panchay at for the purpose of convening and presiding over the meeting, himself called a meeting of the Gaon Panchayat fixing 14-07-2009 where a resolution was adopted expressing want of confidence against the petitioner. Mr. Thakur, the learned co unsel for the petitioner submits that the Secretary cannot under the law convene the meeting without first placing it before the President of the Anchalik Panch ayat and his approval, if the President of the Gaon Panchayat refused to approve the proposal for holding the meeting. The requirement of law having not been f ollowed, it has further been submitted that, the entire proceeding expressing wa nt of confidence on the petitioner is non-est in the eye of law. 5. Mrs. Phukan, the learned State Counsel appearing for the respond ent Nos.1, 2 and 10 placing reliance on the affidavit-in-oppositions filed by th e respondent No.2 as well as by the respondent No.10 and also the materials avai lable on record as produced before this Court, has submitted that the notice exp ressing want of confidence on the petitioner by six members of the Gaon Panchaya t was first submitted before the Block Development Officer on 30-06-2009, who in turn sent the same to the Secretary on 01-07-2009 and the Secretary, thereafter , on the same day submitted a proposal before the petitioner for convening the m eeting to discuss the matter relating to the want of confidence, which, however, has not been approved by the petitioner. According to the learned counsel, the Secretary, therefore, convened the meeting of the Gaon Panchayat on 14-07-2009 since the Block Development Officer vide communication dated 01-07-2009 directed the Secretary to take required steps to discuss the motion brought by six membe rs of the Gaon Panchayat expressing want of confidence against the petitioner. M rs. Phukan, however, has fairly submitted that after refusal by the petitioner t o approve the proposal for convening the meeting to discuss the No Confidence Mo tion brought against her, the Secretary did not refer to the matter to the Presi dent of the Anchalik Panchayat concerned as required under Sub-Section (1) of Se ction 15 of the Act. 6. Relating to the non compliance of the provision contained in Sub -Section (2) of Section 15 of the Act, it has been submitted by Mrs. Phukan that since the petitioner has been apprised of the No Confidence Motion brought agai nst her by six members of the Gaon Panchayat by issuing the communication dated 01-07-2009 seeking approval to convene the meeting of the Gaon Panchayat, non fu rnishing of such notice expressing want of confidence by six members would not m ake the proceeding invalid as the provisions contained under Sub-Section (2) of Section 15 has been substantially complied with. 7. Mr. Buragohain, the learned counsel appearing for the respondent Nos.3 to 9 has submitted that pursuant to the notice dated 30-06-2009 issued by six members of the Gaon Panchayat, the Secretary of the Gaon Panchayat has righ tly convened the meeting on 14-07-2009 to discuss the No Confidence Motion broug ht against the petitioner, as the petitioner has failed to approve the proposal of the Secretary of the Gaon Panchayat to convene the meeting to discuss such mo tion. 8. I have considered the submissions of the learned counsel for the parties and also perused the pleadings of the parties as well as the materials available on record as produced by the learned State Counsel. 9. The facts narrated above are not in dispute. The notice express ing want of confidence on the petitioner was given by six members of the Gaon Pa nchayat initially before the Block Development Officer, who in turn, on 01-07-20 09 forwarded the same to the Secretary of the Gaon Panchayat on 01-07-2009. The Secretary of the Gaon Panchayat on that day itself issued a communication to th e petitioner requesting her to approve the proposal for convening the meeting of the Gaon Panchayat to discuss the No Confidence Motion. The petitioner, however , refused to approve such proposal. The Secretary, therefore, convened a meetin g of the Gaon Panchayat on 14-07-2009 vide notice dated 10-07-2009. It is an ad mitted position of fact as well as evident from record that after the petitioner refused to approve the proposal for convening the meeting, as suggested by the Secretary of the Gaon Panchayat, the matter has not been referred to the Preside nt of the Anchalik Panchayat concerned by the Secretary of the Gaon Panchayat. 10. Sub-Section (1) of Section 15 of the Act requires that whenever a No Confidence Motion is brought by the required number of Members of a Gaon Pa nchayat, against the President or the Vice-President of the Gaon Panchayat, as t he case may be, a meeting is required to be specially convened by the Secretary of the Gaon Panchayat with the approval of the President of the Gaon Panchayat. In case, such a meeting is not convened within the period of 15 (fifteen) days from the date of receipt of the notice, the Secretary of the Gaon Panchayat is r equired to refer the matter to the President of the Anchalik Panchayat, who shal l, then convene and preside over the meeting to discuss the motion expressing wa nt of confidence. It is evident from the said provision that in the event, the President refused to approve the proposal for convening the meeting as submitted by the Secretary of the Gaon Panchayat, the Secretary cannot convene a meeting without the approval of the President of the Anchalik Panchayat and he has to re fer the matter to the President of the Anchalik Panchayat, who shall convene and preside over the meeting. 11. In the case in hand, admittedly the Secretary of the Gaon Pancha yat convened the meeting, after the petitioner refused to approve the proposal f or convening the meeting to discuss the motion expressing want of confidence, wi thout referring the matter to the President of the Anchalik Panchayat, which is contrary to the provisions contained in Sub-Section (1) of Section 15 of the Act . 12. In view of the aforesaid position, the proceeding of the Gaon Pa nchayat adopting the resolution expressing want of confidence on the petitioner is liable to be set aside. The question whether the requirement of Sub-Section (2) of Section 15 of the Act to deliver the requisition for a special meeting un der Sub-Section (1) signed by not less then 1/3rd of total number of members of the Gaon Panchayat to the President or the Vice President, as the case may be, a gainst whom such No Confidence Motion has been brought, is mandatory or director y and the substantial compliance of it would be enough, in view of the aforesaid finding that there is violation of Section 15(1) of the Act, has not been gone into. 13. In view of the aforesaid discussions, the proceeding expressing want of confidence on the petitioner is set aside. The respondents shall allow the petitioner to discharge her functions and duties as President till she is re moved from the Office in accordance with law. 14. The writ petition is accordingly allowed, as indicated above. N o cost.