WP(C) 5424/2010 BEFORE THE HON’BLE MR.JUSTICE N.KOTISWAR SINGH In the present writ petition, the petitioner has challenged the No Confidence M otion moved against her on 7.8.2010 for removal from the post of President of t he BB Gaon Panchayat in Hailakandi District, Assam on the grounds, inter alia, t hat the said motion was not carried by the required two-third majority of the to tal number of members of the Gaon Panchayat and also that the proper procedure f or removal of the President of the Gaon Panchayat as prescribed under the Assam Panchayat Act, 1994 (hereinafter referred to as the Act ) was not followed. [2] The petitioner was the directly elected President of the BB Gaon Panchayat, Hailakandi Assam. On 18.2.2010, 8 (eight) members of the Gaon Pancha yat submitted an application for moving a No Confidence Motion against the pet itioner. Since the authorities under the Act, did not take any steps with regard to the aforesaid application for No Confidence Motion against the petitioner, s aid eight members, who are impleaded as private Respondents herein, filed a writ petition before this Court being, W.P.(C) No.1953/2010 for a direction to the o fficial respondents to convene a meeting for consideration of the No Confidence Motion proposed against the petitioner in terms of the notice submitted on 18.2. 2010. This Court by an order dated 25.6.2010 was pleased to dispose of the said writ petition with a direction to the official respondents to convene a meeting to consider the said No Confidence Motion as per section 15 of the Assam Panchay at Act, 1994. The Court also directed the official respondents to do the needful as expeditiously as possible and to adhere to the time limit fixed as far as po ssible. [3] On receipt of a copy of the aforesaid order dated 25.6.2010 pass ed in W.P(C) No.1953/2010, the Deputy Commissioner, Hailakandi, instructed the S ecretary of the BB Gaon Panchayat to take actions strictly as per the order of t he Court. Thereafter, the Secretary of the Gaon Panchayat wrote to the Block De velopment Officer, Hailakandi, informing him that as the President of the Gaon P anchayat did not fix the date, time and venue to move No Confidence Motion inspi te of the file being put up to him and also as the file was not returned, the ma tter was forwarded to the Block Development Officer, Hailakandi for necessary ac tion in terms of the directions issued by the Deputy Commissioner in accordance with the order dated 25.6.2010 passed in this Court in W.P(C) No.1953/2010. [4] Thereafter, the Block Development Officer, who was also the Secr etary and Executive Officer of the Hailakandi Anchalik Panchayat, Hailakandi iss ued a notice vide Memo No. hdb/Misc.-3/2010-2011/ dated 5.8.2010 informing that a meeting had been convened on 7.8.2010 at 11.30 am in the office chamber of the President of the Anchalik Panchayat, Hailakandi for discussing the No Confidenc e Motion against the President of the BB Gaon Panchayat. [5] The aforesaid notice was issued to all the members of the Gaon P anchayat and accordingly, the meeting was held on 7.8.2010. The petitioner stat es that in the said meeting held on 7.8.2010, 8 (eight) members had moved the No Confidence Motion against the petitioner. It has been stated that out of the sa id eight members, 2(two) had already resigned on 10.12.2009 before the holding o f the said meeting, which had been duly accepted by the authorities. As such, th e said two members who had resigned could not have participated in the said meet ing. According to the petitioner, her vehement protest in the said meeting again st participation by the said two members was not heeded. The said two members ar e, Sri Rahimuddin Barbuiyan and Sri A.A. Mazumdar who have been impleaded as res pondents No. 9 and 14 respectively in the present writ petition. The petitioner states that Resolution Nos. 2, 3 and 4 taken on the said day would show her obje ctions to the presence of these two resigned members. [6] According to the petitioner, the aforesaid two members had alrea dy submitted their resignations to the President of the Gaon Panchayat on 10.12. 2009 in accordance with Section 16 of the Assam Panchayat Act, 1994, which was d uly accepted by the President of the Gaon Panchayat by drawing attention of this Court to Annexures -7 and 7(1) to this writ petition. Accordingly, the petition er submits that since their resignations had been already accepted, they had cea sed to be members of the Gaon Panchayat and were not entitled to participate and vote in the said meeting. [7]. Under Section 16 of the Assam Panchayat Act, 1994 (hereinafter r eferred to as the Act ), a Gaon Panchayat shall consist of 10 members to be dir ectly elected by the voters of the territorial constituencies of the Gaon Pancha yat area and the President of the Gaon Panchayat, who will be also elected direc tly by the voters of the territorial constituencies of the Gaon Panchayat area. [8] According to the petitioner, in the aforesaid meeting held on 7. 8.2010, only eight out of the ten members supported the No Confidence Motion and two other members did not support the said No Confidence Motion. The petitioner also states that since the two members had already resigned, their votes cannot be counted. Accordingly, the actual number of valid votes, which were cast in f avour of the No Confidence Motion was only 6 (six). In other words, out of the 1 0 members, only 6 voted in favour of the No Confidence Motion which is less than the required two-third of the total number of members of the Gaon Panchayat as mandated u/s 15(1) of the Assam Panchayat Act, 1994. Accordingly, the petitioner states that the aforesaid resolution passed on 7.8.2010 for removal of the peti tioner is illegal and cannot be acted upon for removing the petitioner. [9] At the time of hearing, the petitioner has also taken an additio nal plea though the same was not mentioned in the pleadings. The petitioner has contended that the post of President is elected directly by the voters of the en tire territorial constituencies of the Gaon Panchayat area unlike the case of ot her members who are elected by the respective constituencies. As such, all actio ns taken for removal of an elected President must strictly conform to the statut ory provisions. It was thus submitted that any infraction of or deviation from a ny statutory provision as provided under Assam Panchayat Act, 1994 would vitia te any such decision taken to remove an elected President. [10] Coming to the first plea raised in the writ petition by the peti tioner, the petitioner has contended that the requirement of law as provided u/s 15(1) of the Assam Panchayat Act, 1994 is that the President can be removed by a resolution taken by a majority decision of two-third of the total number of me mbers of the Gaon Panchayat. Therefore, if the resolution is passed by a majorit y which is less than 2/3rd of the total number of members, such a resolution is not valid for the purpose of removal of the President. In this regard, it may be apposite to refer to the relevant port ions of Section 15(1) of the Assam Panchayat Act, 1994 as follows. 15. No confidence motion against the President and Vice President.- (1) Every President or Vice-President shall be deemed to have vacated his o ffice forthwith when resolution expressing want of confidence in him is passed by a majority of two third of the total numbers of members of the Goan Panchayat . Such a meeting shall be specially convened by the Secretary of the Gaon Panchaya t with approval of the President of the Gaon Panchayat. Such meeting shall be pr esided over by the President if the motion is against the Vice-President, and by the Vice-President, if the motion is against the President. In case such a meet ing is not convened within a period of fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat shall within three days, refer the m atter to the President of the concerned Anchalik Panchayat, who shall convene th e meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting. In case the President of the Anchalik Panchayat does not take action as above, w ithin the specified seven days time, the concerned Gaon Panchayat Secretary shal l inform the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil) as the case may be within three days/after the expiry of the stipulated seven d ays time and the concerned Deputy Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the inform ation within intimation to the Zilla Parishad and the Anchalik Panchayat and pre side over the meeting so convened. Provided that the concerned Deputy Commissioner/Sub Divisional Officer (C) as th e case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer pr eside over such meeting: Provided further that when and non-confidence motion is lost, no such mo tion shall be allowed in the next six months. [11] According to the petitioner, two thirds of total number of 10 me mbers of Gaon Panchayat would be 7. Therefore, since the aforesaid No Confidenc e Motion against the petitioner moved on 7.8.2010 consists of only 6 valid votes , which falls short of 7, the aforesaid resolution cannot be said to be a valid resolution for removing the petitioner from the post of President as required u/ s 15(1) of the Assam Panchayat Act, 1994. According to the petitioner, as the total number of elected Gaon Panchayat is 10 , two-third of 10 would be 6.66, and since it is not an integer number, it has t o be rounded off to the next whole number i.e. 7 and accordingly, the total numb er of two-third of the total number of the Gaon Panchayat will be 7. In this reg ard, the learned counsel for the petitioner has drawn attention of this Court t o the decision rendered by this Court in Junali Doley (Borah) & ors. Vs. State o f Assam & ors.; 2011 (2) GLT 459. In the aforesaid case, this Court while dealin g with the issue of calculating the two-third majority in respect of removal of a President of the Anchalik Panchayat under Assam Panchayat Act, 1994 held tha t in calculating two-third, every fraction should be rounded off to a whole num ber. In the said case, two-third of 8 being 5.33, the Court held that it would b e treated as 6. The relevant portion of which are quoted as below :- (21) In view of the aforesaid discussion, in my considered opinion, any fracti on, howsoever small may be, cannot be ignored for ascertaining the majority of 2 /3rd of total members of the directly elected members of the Anchalik Panchayat, for adoption of the resolution expressing want of confidence, as, such fractio n would also represents the view of the members and hence it has to be rounded t o one, so as to adopt the resolution expressing want of confidence against the P resident and Vice-President of the Anchalik Panchayat under sub-section(1) of Se ction 43 of the 1994 Act. If such fraction is ignored the same would be contrary to the provisions of sub-section (1) of Section 43, which requires adoption of resolution expressing want of confidence by majority of 2/3rd members. (22) In the instant case out of 8 existing members 5 members adopted the reso lution expressing want of confidence on the respondent No.8 in W.P(C) No.4815/20 10, who is the writ petitioner in W.P(C) No.5596/2010. 2/3rd of 8 is 5.33. The f raction .33 therefore has to be rounded to one and hence, the required number fo r adoption of the no-confidence would be 6 out of 8. The motion expressing want of confidence having been adopted admittedly by 5 members, the same cannot be he ld to be adopted as required by sub-section (1) of Section 43 of the 1994 Act an d therefore, the impugned communication dated 12.08.2010 issued by the Chief Exe cutive Officer of the Zilla Parishad cannot be held to be contrary to the said p rovision of law. The learned counsel for the petitioner has also relied on the ot her decisions rendered by this Court in Jiten Saikia & anr. Vs. State of Assam & ors.; 2004 (2) GLT 233 wherein this Court had also held that for computing two- third majority even a fraction cannot be ignored and as such, fraction should be read as a whole number as 1. Therefore, accordingly, the resultant number would be the next higher integer. It was also held that any fraction, howsoever small may be, would represent the corresponding opinion also essential for comprising the required majority for unseating the President or the Vice President and thu s cannot be ignored. To overlook the fraction would be emasculate the provision of its rigour and reduce the exercise to a formality which could not be intenti on of the legislative on such a moment. Similar decision had been rendered by t his Court in Abdul Malik vs. State of Assam ; 2011 (3) GLT 409. [12] Therefore, in view of the above decisions, the petitioner is rig ht in contending that in the present context of a resolution for motion of No Co nfidence against the petitioner, the minimum requirement to constitute two-third of the of the total number 10 members would be 7. Therefore, the issue to be de cided is whether there were at least seven (7) valid votes against the petitione r in the aforesaid meeting held on 7.8.2010 which was held for considering the N o Confidence Motion against the petitioner. [13] The learned counsel for the petitioner has also hammered on the second contention that since removal of the elected President entails serious co nsequence for an elected member, the process involved in the removal as provided under the statute must be scrupulously followed, and if there be any deviation from any provision of any statutory provisions or the procedures provided under the statute, the entire action would be vitiated. [14] The learned counsel for the petitioner submits that as provided u/s 15(1) of the Assam Panchayat Act, 1994, there are three levels where No Conf idence Motion can be convened. Firstly, at the level of Gaon Panchayat. Secondly , at the level of Anchalik Panchayat and thirdly, at the level of Deputy Commiss ioner/Sub-Divisional Officer. Where No Confidence could not be convened at the l evel of the Gaon Panchayat and the Anchalik Panchayat, the the Deputy Commission er/Sub-Divisional Officer will convene the meeting with intimation to the Zilla Parishad and Anchalik Panchayat and will preside over the meeting so convened, provided that the if the concerned Deputy Commissioner or the Sub-Divisional Off icer (Civil) as the case may be is unable to preside over the meeting, he may de pute one Gazetted Officer under him not below the rank of Class-I to preside ove r such meeting. According to the petitioner, when this Court issued the directi on on 25.6.2010 in the said W.P(C) No.1953/2010, the Court had specifically dir ected that the No Confidence Motion shall be processed and finalised as per the provisions of Sec. 15 of the Assam Panchayat Act, 1994. The Court also directed the official respondents to do the needful as expeditiously as possible and in t his regard and they shall adhere to the time limit fixed as far as possible. The re was no direction by this Court which would warrant any departure from the pro visions of Sec. 15 of the Act. Thus, according to the petitioner, the procedure as prescribed u/s 15(1) of the Assam Panchayat Act, 1994 has to be strictly comp lied with and any departure from the proceeding prescribed u/s 15 would render a ny such decision taken invalid. The learned counsel for the petitioner has submitted that in the present case, as can be seen from the records, the Deputy Commissioner, Hailaka ndi had written to the Secretary, BB Gaon Panchayat to take necessary actions as per the order of the Court who in turn wrote to the BDO, Hailakandi, to take ac tion. Thereafter, the Secretary and the Executive Officer of the Hailakandi Anch alik Panchayat issued a notice on 5.8.10 for convening a meeting on 7.8.2010 to consider the No Confidence Motion against the petitioner and the said No Confid ence Motion which held on 7.8.2010 was presided over by the Block Development Of ficer, Hailakandi. The learned counsel for the petitioner submits that the procedu res adopted in the present case resulting into the said meeting held on 7.8.2010 is not in accordance with the procedure prescribed u/s 15(1) of the Assam Panch ayat Act, 1994. The petitioner contends that in the present case, the Deputy Co mmissioner never convened the meeting. It was the Secretary and the Executive Of ficer, Hailakandi Anchalik Panchayat who convened the meeting. The aforesaid Sec retary and the Executive Officer, Hailakandi Anchalik Panchayat had no authority under the Act to convene such meeting for consideration of the No Confidence Mo tion. Further, the aforesaid meeting held on 7.8.2010 to consider No Confidence Motion was supposed to be presided over either by the Deputy Commissioner or the Sub-Divisional Officer (Civil), which however, was also not done. Thirdly, ther e is nothing to show that the Deputy Commissioner or the Sub-Divisional Officer (Civil) had deputed the Block Development Officer, Hailakandi to preside over th e meeting. In view of that, the learned counsel for the petitioner submits that the entire procedure culminating in the passing of the aforesaid so called No C onfidence Motion against the petitioner being in violation of the statutory prov isions as provided under section 15(1) of the Assam Panchayat Act, 1994, the sam e is liable to be interfered with. [15] Relying on the judgments rendered by this Court passed in Aleya Khatun & ors. Vs. State of Assam & ors.; 2004 (3) GLT 361, this Court held that the procedure provided u/s 15(1) of the Act are mandatory in nature and the auth orities concerned are to adhere to the prescription of the Section and are to be vigilant to ensure strict compliance thereof in view of the fact that disaster would fall if the No Confidence Motion is passed and as such, no deviation from it is permissible. The learned counsel has also relied on the decisions rendered by this Court in Basanti Das vs. State of Assam & ors, reported in 2004 (SUPP L.) GLT 717; Abul Hussain & ors. Vs. State of Assam & ors. reported in 2006 (SUP PL.) GLT 195; State of Manipur & ors. Vs. Angom Suchila Devi reported in 2009 (3 ) GLT 757; Karun Kanti Malakar & ors. Vs. Nosir Ahmed Mazumdar & ors., reported in 2010 (3) GLT 415 and on the basis of the aforesaid decisions has submitted t hat the provisions regarding removal of an elected member by way of No Confidenc e Motion has to be strictly complied with and any deviation or infraction from t he procedure prescribed which are mandatory in nature would render any such reso lution void and illegal. [16] In response to the aforesaid contentions of the petitioner, the learned counsel for the respondents has contended that there was no violation of any provision of law as provided under the Assam Panchayat Act, 1994, the meeti ng was convened as per the direction of this Court and after the petitioner had refused to convene the meeting as required u/s 15 of the Assam Panchayat Act, 19 94 and as such, no fault can be found with the procedure adopted. [17] Learned counsel for the respondents also has submitted that the said 2 members, the respondents No. 9 and 14 had never resigned as members. He contended that the aforesaid so called applications submitted by them for resign ation on 10.12.2009 had been obtained by the petitioner by practising fraud upon the said 2 members. Learned counsel for the respondents has submitted that the petitioner while functioning as the President of the Gaon Panchayat took their signatures from the said two members in blank papers on the pretext of submitti ng representation for welfare of the respective local areas and subsequently con verted the same into resignation letters illegally. Learned counsel for the resp ondents has also submitted that in fact, subsequently on 2.02.2010, the said two members along with others residents of the village had submitted an application before the Executive Magistrate, Hailakandi u/s 107 of the Cr.P.C. for providin g them security in view of the threat received from the petitioner and her suppo rters. Learned counsel for the respondents has also stated that in the earlier proceedings before this Court in W.P(C) No.1953/2010, the writ petitioner never raised the issue of the question of resignation stated to have been submitted by the said two members on 10.12.2009 and submitted that the so called resignation letters dated 10.12.2009 are fake and manufactured documents prepared by the wr it petitioner only to gain undue advantage and the same needs to be verified thr ough experts. Accordingly, it has been submitted that their votes cannot be inva lidated and since they had voted along with others on the said day, who were 8 i n numbers, which is more than the required two-third majority and as such, the a foresaid No Confidence Motion against the petitioner was validly moved. Learned counsel for the respondents has also submitted that assu ming but not admitting that the aforesaid 2 members had resigned and were not ac cordingly entitled to participate in the said meeting, the said resignations ar e not going to affect the proceedings in as much as the total number of the Gaon Panchayat will be reduced to only 8 members. According to the counsel for the r espondents, the total number of members of the Gaon Panchayat would be now 8 ins tead of 10. If that is so, the two third of 8 total members would be 5.33 and by rounding off, it would be 6. Since the said resolution for removal of the petit ioner was carried by 6 valid members excluding the two who had resigned, the sai d resolution passed against the petitioner for her removal is valid. [18] As to the query by this Court as to whether the petitioner could raise the plea of violation of the procedures for considering the no confidence motion, the learned counsel for the petitioner has submitted that even though no such specific pleading had been taken in the writ petition, since it is a que stion of law, the petitioner would be entitled to raise such pleas and this Cour t in exercise of jurisdiction under Article 226 of the Constitution has ample po wer to look into such issue for the ends of justice. [19] The learned counsel for the petitioner also has refuted the cont ention of the respondents that in the event the said members are to said to have been resigned the total number of Gaon Panchayat will be reduced to 8 for the p urpose of consideration of the No Confidence Motion as provided u/s 15 of the As sam Panchayat Act, 1994. Learned counsel for the petitioner contends that there is no provision under the Act which provides that the total number of members of the Gaon Panchayat as mentioned in Section