WP(C) 3232/2009 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (CAV) The petitioner, who was the President of Tokoubari Gaon Panchaya t in the district of Sonitpur, has filed this petition challenging the resolutio n dated 03-08-2009 adopted in the meeting of the Gaon Panchayat expressing want of confidence on her, basically on the ground of violation of the provisions of Section 15 of the Assam Panchayat Act, 1994 (in short, the Act ). 2. The facts necessary for the purpose of disposal of the present c ase are that a notice expressing want of confidence on the petitioner was delive red to the Secretary of the Tokoubari Gaon Panchayat on 09-07-2009, on the basis of which the Secretary of Tokoubari Gaon Panchayat on 10-07-2009 prepared a not e for placing the same before the petitioner, who was the president of the Tokou bari Gaon Panchayat and accordingly the same was placed before her on 16-07-2009 . Since no meeting was convened by the petitioner to discuss the no confidence motion brought against her, the Secretary of the Tokoubari Gaon Panchayat on 27- 07-2009 referred the matter to the President of Chaiduar Anchalik Panchayat, wit hin whose jurisdiction Tokoubari Gaon Panchayat falls, who vide order dated 28-0 7-2009 convened the meeting of Tokoubari Gaon Panchayat to discuss the no confid ence motion brought against the petitioner fixing 03-08-2009 as the date for suc h meeting. The said meeting was attended by the petitioner and the resolution e xpressing want of confidence on her was adopted by majority of 2/3rd of the tota l number of members of the said Gaon Panchayat. The petitioner, therefore, was removed from the office of the President of Tokoubari Gaon Panchayat. Hence, th e present petition. 3. I have heard Mr. P.P. Baruah, the learned counsel for the petiti oner, Mrs. H.M. Phookan, the learned State Counsel appearing for the respondent Nos.1 to 6 as well as Mr. R.P. Sarma, the learned Sr. Counsel appearing for the respondent Nos.7 to 13. 4. Mr. Baruah, the learned counsel appearing for the petitioner ref erring to the provision contained in Sub-Section (1) of Section 15 of the Act ha s submitted that the Secretary of the Gaon Panchayat cannot refer the matter rel ating to the want of confidence to the President of the concerned Anchalik Panch ayat before expiry of 15 days from the date of receipt of the notice, which woul d be, according to the learned counsel, from the date when such notice was deliv ered to the President or the Vice President as the case may be, of the concerned Gaon Panchayat, in view of Sub-Section (2) of Section 15 of the Act. According to Mr. Baruah, since the notice expressing want of confidence on the petitioner was brought to her notice on 16-07-2009, the petitioner would get 15 days time to convene the meeting under Sub-Section (1) of Section 15 of the Act and only i n the event, the President fails to convene such meeting within the aforesaid pe riod of time, the Secretary of the Gaon Panchayat assumes jurisdiction to refer the matter to the President of the concerned Anchalik Panchayat, the provision o f Sub-Section (1) of Section 15 relating to the time limit of 15 days of conveni ng the meeting after receipt of the notice expressing want of confidence being m andatory. Mr. Baruah has submitted that since the Secretary has referred the ma tter to the President of the Anchalik Panchayat on 27-07-2009 before expiry of 1 5 days from 16-07-2009, the action on the part of the Anchalik Panchayat in conv ening the meeting of the Gaon Panchayat fixing 03-08-2009 is contrary to the pro vision contained in Section 15 of the Act and as such illegal. Referring to Sub- Section (3) of Section 17 of the Act, Mr. Baruah submits that the notice conveni ng any meeting of the Gaon Panchayat has to disclose the business to be transact ed and since in the notice dated 28-07-2009 issued by the President of Chaiduar Anchalik Panchayat, the business to be transacted in such meeting has not been m entioned, any resolution adopted in the meeting dated 03-08-2009 is contrary to the provisions of the Act. In support of his contention that the provisions of Section 15 (1) relating to the 15 days time limit for convening the meeting of t he Gaon Panchayat to discuss the motion expressing want of confidence, is mandat ory, Mr. Baruah places reliance on a full bench decision of this Court in Forhan a Begum Laskar -Vs- State of Assam & Ors. reported in 2009 (3) GLT 575. 5. Ms. Phookan, the learned State Counsel appearing for the respond ent Nos.1 to 6 referring to the affidavit dated 28-10-2009 filed by the Secretar y of Tokoubari Gaon Panchayat has submitted that though the Secretary of the sai d Gaon Panchayat on receiving the notice expressing want of confidence on 09-07- 2009 prepared the note dated 10-07-2009 for submission before the President of t he Gaon Panchayat, the same could be placed before the President only on 16-07-2 009. It has further been submitted that though under Sub-Section (1) of Section 15 of the Act, the meeting to discuss the motion of want of confidence is requir ed to be convened within 15 days from 10-07-2009, as the petitioner did not conv ene the meeting within the said period, the Secretary of the Gaon Panchayat on 2 7-07-2009 referred the matter to the President of the Anchalik Panchayat concern ed. According to the learned counsel no illegality has been committed by the Se cretary in making such reference. 6. Mr. Sarma, the learned Sr. Counsel appearing for the respondent Nos.7 to 13, who submitted the notice before the Secretary of the Tokoubari Gaon Panchayat expressing want of confidence on the petitioner, has submitted that i t is apparent from the note of the Secretary of the Gaon Panchayat that such not ice was given on 10-09-2009 and since the President of the Tokoubari Gaon Pancha yat, i.e. the petitioner, against whom such no confidence motion was brought, di d not convene the meeting of the Gaon Panchayat to discuss such motion within 15 days therefrom, the Secretary of the Gaon Panchayat had rightly referred the ma tter to the President of the Anchalik Panchayat on 27-07-2009, who in turn vide order dated 28-07-2009 fixed the date for holding such meeting as 03-08-2009. Mr . Sarma, therefore, submits that the Secretary of the Tokoubari Gaon Panchayat i nfact strictly adhered to the time limit given in Sub-Section (1) of Section 15 of the Act, even if it is mandatory in nature. Mr. Sarma, however, has submitte d that the provisions of Sub-Section (1) of Section 15 of the Act is not mandato ry in nature, the time limit envisaged in the said provision being procedural, a s held by two division bench judgments of this Court in Mumtaz Rana Laskar & Ors . -Vs- State of Assam & Ors. reported in 2006 (1) GLT 46 and Habibur Rahman -Vs- Stae of Assam & Ors. reported in 2006 (suppl.) GLT 218. It has further been su bmitted by Mr. Sarma that the requirement of Section 17 of the Act cannot be app lied in a specially convened meeting of the Gaon Panchayat to discuss the motion of no confidence brought against its President or Vice President, the said prov ision being applicable to the ordinary meeting of the Gaon Panchayat required to be held at least in two months to transact its business under Sub-Section (1) o r a special meeting convened by the President whenever he thinks it fit or at th e request of not less then 1/3rd of the total numbers. According to Mr. Sarma, since the meeting in question was convened under Section 15 of the Act to discus s the motion of want of confidence, the said meeting is a specially conveyed mee ting under Section 15 of the Act and not the meeting as envisaged under Section 17 of the said Act and hence the provisions of Section 17 cannot be applied in a specially conveyed meeting under Section 15 of the Act. The further contention of the learned Sr. Counsel is that even assuming that the notice expressing want of confidence was delivered to the President, i.e. the petitioner on 16-07-2009 , since the meeting was convened on 03-08-2009, on which date, the resolution ex pressing want of confidence against the petitioner was adopted, i.e. after expir y of more than 15 days, no prejudice has been caused to the petitioner, more so when she had participated in such meeting. 7. I have considered the submissions of the learned counsel for the parties and also perused the pleadings of the parties including the records as produced by the learned State Counsel. 8. It is not in dispute that seven members of Tokoubari Gaon Pancha yat submitted a notice dated 09-07-2009 to the Secretary of the Gaon Panchayat. The Secretary on the basis of such notice prepared a note on the next day, i.e. on 10-07-2009, which, however, could not be placed before the President of the G aon Panchayat, the petitioner, on that day itself. It is evident from the averm ents made in the affidavit dated 28-10-2009 filed by the Secretary of the Gaon P anchayat as well as the records produced that the said notice was placed before the petitioner only on 16-07-2009. 9. Sub-Section (1) of Section 15 of the Act requires the Secretary of the Gaon Panchayat to convene the meeting with the approval of the President of the Gaon Panchayat to discuss the notice expressing want of confidence on the President or the Vice President, as the case may be, of such Gaon Panchayat. It empowers the Secretary of the Gaon Panchayat to refer the matter to the Preside nt of the concerned Anchalik Panchayat only in the event the President of the Ga on Panchayat do not approve convening of such meeting within 15 days from the da te of receipt of the notice. Sub-Section (2) of Section 15 requires that the req uisition for such meeting under Sub-Section (1) shall have to be signed by not l ess then 1/3rd of total number of members of the Gaon Panchayat and such requisi tion has to be delivered to the President or Vice President concerned with infor mation to the Deputy Commissioner of the district. 10. Reading both the Sub-Sections (1) and (2) of Section 15 together , it, therefore, transpire that the President of the Gaon Panchayat is required to give the approval for convening the meeting of the Gaon Panchayat to discuss any motion brought either against the President or the Vice President of such Ga on Panchayat expressing want of confidence, so that such meeting is convened wit hin 15 days from the date when the requisition for such a special meeting is del ivered to the President or the Vice President, as the case may be, as required u nder Sub-Section (2) of Section 15 of the Act. Sub-Section (1) of Section 15 of the Act empowers the Secretary to refer the matter only in the event the Presid ent fails to give the approval for convening the meeting of the Gaon Panchayat t o discuss the notice expressing want of confidence within 15 days from the date of the delivery of such written requisition signed by not less then 1/3rd of tot al members of the Gaon Panchayat to the President or the Vice President, as the case may be. The Secretary of the Gaon Panchayat before expiry of 15 days from the date of delivery of such requisition to the President or the Vice President, as the case may be, cannot refer the matter to the President of the Anchalik Pa nchayat, as the legislature in clear terms confers jurisdiction on the Secretary to act only after expiry of 15 days from the date of delivery of such requisiti on to the President or the Vice President, as the case may be. 11. In the instant case, the requisition for the meeting as envisage d under Sub-Section (1) of Section 15 of the Act was delivered to the petitioner on 16-07-2009 and hence the Secretary of the Gaon Panchayat shall assume jurisd iction only after expiry of 15 days thereafter, to refer the matter to the Presi dent of the Anchalik Panchayat, but the Secretary of Tokobari Gaon Panchayat on 27-07-2009 referred the matter to the President of the Anchalik Panchayat, which is in flagrant transgression of the statutory provision contained in Sub-Sectio n (1) of Section 15 of the Act. Consequently all the subsequent action taken by the President of the Anchalik Panchayat including holding of the meeting dated 03-08-2009, pursuant to such reference made by the Secretary of the Gaon Panchay at on 27-07-2009 are illegal. Such action on the part of the Secretary to refe r the matter to the President of the Anchalik Panchayat having found to be witho ut jurisdiction, the plea of not causing prejudice to the petitioner, would not cure such action. 12. In view of the aforesaid discussions, the question as to whether the provision contained in Sub-Section (1) of Section 15 of the Act relating to the time limit of 15 days for convening the meeting after delivery of the requi sition for convening a meeting expressing want of confidence is mandatory or not , has not been gone into in the case in hand. However, it may be noticed that t hough the division benches of this Court in Mumtaz Rana Laskar (supra) and Habib ur Rahman (supra) has held that certain portion of Section 15 (1) of the Act is not mandatory but is directory, a full bench of this Court in Forhana Begum (sup ra) in paragraph 26 has opined 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 co ntextual facts of the present appeal and the contraventions already noticed here inabove, which we construe to be sufficient to answer the issues presently raise d we do not consider it essential to embark on a rescrutiny of this proposition in the instant proceeding. 13. In view of the aforesaid discussions, the impugned resolution ad opted by Tokoubari Gaon Panchayat in its meeting dated 03-08-2009 is held as ill egal being contrary to the provisions of Section 15 of the Act and as such, the same is set aside. 14. The writ petition is accordingly allowed. However, keeping in v iew the facts and circumstances of the case, the parties are directed to bear th eir own cost.