WP(C) 5788/2009 BEFORE THE HON’BLE MR JUSTICE B. P. KATAKEY The petitioners, 6(six) in numbers, filed WP(C) No.5788/2009 challenging the proceeding of the meeting dated 02.06.2009 of No.79 Kadong Gaon Panchayat a dopting two resolutions being resolution Nos.1 and 2 whereby and whereunder the petitioner No.1 has been removed as Vice President of the said Gaon Panchayat by adopting the motion expressing want of confidence against him and also electing the respondent No.8 as Vice President of the said Gaon Panchayat in his place. WP(C) No.5381/2009 has been filed by Mustt. Sajeda Khatun (respondent No.8 in WP (C) No.5788/09) challenging the report dated 17.11.2009 submitted by the Extensi on Officer (Panchayat), Mandia Development Block to the Block Development Office r of the said Block in so far as it relates to the observation that this court v ide order dated 13.11.2009 passed in WP(C) No.4888/2009 had ordered for handing over of the charge of the office of the President to the respondent No.7 therein (writ petitioner No.1 in WP(C) No.5788/09) as per Section 13(2)(d) of the Assam Panchayat Act, 1994 and also the communication dated 23.11.2009 issued by the D eputy Commissioner, Barpeta to the Block Development Officer, Mandia Development Block requesting him to take necessary action as per court’s order dated 13.11. 2009 passed in WP(C) No.4888/2009. Since both the writ petitions relate to the p ost of Vice President in the same Gaon Panchayat, those are taken up for admissi on hearing and disposal together, as agreed to by the learned counsel for the pa rties. 2. The case of the writ petitioners in WP(C) No.5788/2009 is that though no notice expressing want of confidence was submitted by any member of the Gaon Pa nchayat either to the President or to the Vice President or to the Secretary of such Gaon Panchayat, against the petitioner No.1, who was the Vice President of the said Gaon Panchayat, a meeting was shown to have held on 02.06.2009 in the t emporary residence of the President to discuss the no confidence motion allegedl y brought against the petitioner No.1 wherein, by adopting the resolution No.1 t he petitioner No.1 has been removed from the office of the Vice President and by adopting the resolution No.2 the respondent No.8 in the said writ petition has been elected as Vice President, in his place. The said resolutions adopted in th e meeting dated 02.06.2009 have been challenged on the ground of violation of th e provisions of Section 15 of the Assam Panchayat Act (in short the Act), in as much as, according to the writ petitioners the condition precedent for adopting a resolution for want of confidence i.e. issuance of the notice signed by not le ss than one third of the total number of members of the Gaon Panchayat and deliv ery of the same to the President or the Vice President, as the case may be, is a bsent. According to the petitioners no such notice was ever issued and delivered to the petitioner No.1 expressing want of confidence on him as the Vice Preside nt. It is the further case of the petitioners in the said writ petition that sin ce the resolution adopting want of confidence on the petitioner No.1 is contrary to law, the subsequent resolution being resolution No.2 electing the respondent No.8 cannot stand the scrutiny of law, more so, while electing the respondent N o.8 by such resolution, the procedure required to be followed under Section 10(1 ) read with Section 6(3) of the Act have not been followed. 3. The respondent No.7, namely, the Secretary of the said Gaon Panchayat ha s filed the affidavit on 08.02.2010 contending that he did not receive any notic e expressing want of confidence on the petitioner No.1 and requesting to convene the meeting for discussion of such no confidence. The Block Development Officer , respondent No.5, who is also the Executive Officer of Mandia Development Block within whose jurisdiction the concerned Gaon Panchayat falls and who is also th e Secretary of the Anchalik Panchayat in his affidavit has contended that the re solution dated 02.06.2009 was adopted by the Gaon Panchayat removing the petitio ner No.1 from the office of the Vice President of the Gaon Panchayat. Relating t o the challenge made to the election of respondent No.8 to the office of the Vic e President after removal of the petitioner No.1 from the office, it has been st ated that necessary instructions have been issued to the Secretary of the Gaon P anchayat to arrange for a meeting to follow the provisions contained in Section 13(2)(d) of the Act. 4. The respondent No.8 Smt. Sajeda Khatun, who is the writ petitioner in WP (C) No.5381/2009, has in her affidavit stated that 7(seven) members including th e writ petitioner Nos.4, 5 and 6 submitted a notice dated 18.05.2009 expressing want of confidence against the writ petitioner No.1 as Vice President of the Gao n Panchayat and requesting the President of the Gaon Panchayat to convene a meet ing to discuss such notice and accordingly the meeting was convened on 02.06.200 9 wherein all the members present unanimously adopted the resolution expressing want of confidence against the petitioner No.1 and electing the said respondent, namely, the respondent No.8 as Vice President in his place. According to this r espondent, there is no illegality committed in adopting the said resolutions bei ng resolution Nos.1 and 2 in the meeting dated 02.06.2009. 5. In WP(C) No.5381/2009 the writ petitioner Smt. Sajeda Khatun has contend ed that though there is no direction issued in the order dated 13.11.2009 passed in WP(C) No.4888/2009, the Extension Officer(Panchayat) submitted a report date d 17.11.2009 to the Block Development Officer of Mandia Development Block observ ing that the High Court on 13.11.2009 passed an order to handover the charge of the President to Md. Kuddus Ali, the respondent No.7 therein (writ petitioner No .1 in WP(C) No.5788/09) and consequently the Addl. Deputy Commissioner (Developm ent) issued a communication dated 23.11.2009 to the Block Development Officer, M andia Development Block to take needful action accordingly. According to the wri t petitioner in the said writ petition such observation in the report dated 17.1 1.2009 and the direction given in the communication dated 23.11.2009 are contrar y to the order dated 13.11.2009 passed in WP(C) No.4888/2009 and also the resolu tion No.2 adopted by the Gaon Panchayat in its meeting dated 02.06.2009 whereby and whereunder the writ petitioner was unanimously elected as Vice President aft er removal of Md. Kuddus Ali from the office of the Vice President by adopting t he resolution expressing want of confidence. 6. In the affidavit-in-opposition filed by the Block Development Officer, M andia Development Block, who is the Executive Officer as well as the Secretary o f the Anchalik Panchayat, it has been contended that pursuant to the direction i ssued by the Deputy Commissioner, the Secretary of the Gaon Panchayat was asked to inform all the elected members of the Gaon Panchayat to attend the special me eting to decide who is eligible to hold the office of the President, after follo wing the provisions contained in Section 13(2)(d) of the Act. In the affidavit-i n-opposition filed by the respondent No.7 (writ petitioner No.1 in the WP(C) No. 5788/09) it has been contended that the resolution adopted in the meeting dated 02.06.2009 being illegal, the writ petitioner in WP(C) No.5381/2009 cannot hold the office of the Vice President. The said respondent has reiterated in the said affidavit whatever has been contended in the writ petition filed by him. 7. I have heard Mr. H.R.A. Choudhury, the learned Sr. counsel appearing for the writ petitioners in WP(C) No.5788/2009, who is also appearing for the respo ndent No.7 in WP(C) No.5381/2009. I have also heard Mr. Soren, the learned State counsel appearing for the respondent Nos.1 to 6 in WP(C) No.5788/2009, and for the respondent Nos.1 to 5 in WP(C) No.5381/2009, Mr. J. Abedin, the learned coun sel appearing for the respondent Nos.7 and 6 in WP(C) No.5788/2009 and WP(C) No. 5381/2009 respectively, apart from Mr. A.M. Mazumdar, the learned Sr. counsel ap pearing for the respondent No.8 in WP(C) No.5788/2009, who is the petitioner in WP(C) No.5381/2009. 8. Mr. Choudhury, the learned Sr. counsel has submitted that the proceeding adopted in the meeting dated 02.06.2009 removing Md. Kuddus Ali from the office of the Vice President is illegal being contrary to the provisions contained in Section 15 of the Act, as no notice expressing want of confidence has ever been issued to the petitioner Md. Kuddus Ali and hence according to Mr. Choudhury the resolution adopting want of confidence in the absence of any such notice cannot stand the scrutiny of law and consequently the resolution being resolution No.2 electing Smt. Sajeda Khatun as Vice President of the Gaon Panchayat in place of Md. Kuddus Ali is also liable to be set aside, more so, when such resolution wa s adopted in contravention of the provisions contained in Section 10(1) read wit h Section 6(3) of the Act. 9. Mr. Soren, the learned State counsel, producing the records, has submitt ed that the records do not contain any notice expressing want of confidence agai nst Md. Kuddus Ali, the Vice President of the Gaon Panchayat, though Smt. Sajeda Khatun (respondent No.8 in WP(C) No.5788/09) in her affidavit-in-opposition has stated that 7(seven) members of the Gaon Panchayat submitted a notice expressin g want of confidence on Md. Kuddus Ali, the Vice President of the Gaon Panchayat . Mr. Soren, however, has submitted that since Md. Kuddus Ali has been removed f rom the office of the Vice President by adopting the motion expressing want of c onfidence, the Gaon Panchayat has adopted the resolution electing Smt. Sajeda Kh atun as the Vice President by an unanimous resolution. 10. Mr. Abedin, the learned counsel appearing for the Secretary of the Gaon Panchayat, placing reliance on the affidavit-in-opposition filed, has also submi tted that there is no record relating to the submission of any notice expressing want of confidence on Md. Kuddus Ali and the resolution was adopted in the meet ing dated 02.06.2009 expressing want of confidence against Md. Kuddus Ali even t hough there was no notice issued in that respect as required under Section 15 of the Act. 11. Mr. Mazumdar, the learned Sr. counsel supporting the resolutions adopted in the meeting dated 02.06.2009 has submitted that since such resolutions were adopted after issuance of notice expressing want of confidence on Md. Kuddus Ali , the Vice President of the Gaon Panchayat, by 7(seven) members, those were vali dly adopted. It has further been submitted that the report dated 17.11.2009 issu ed by the Extension Officer and communication dated 23.11.2009 issued by the Add l. Deputy Commissioner being contrary to the order dated 13.11.2009 passed in WP (C) No.4888/2009, the same are illegal. 12. 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 availabl e on record as produced by Mr. Soren, the learned State counsel. 13. Section 15 of the Act provides for removal of the President and the Vice President of the Gaon Panchayat, as the case may be, by adopting the resolution expressing want of confidence against them. Sub-section (1) of Section 15 provi des that every President and the Vice President, as the case may be, can be remo ved from the office by adopting the resolution expressing want of confidence by a majority of two-third of the total number of members of the Gaon Panchayat. It has also provided the procedure to be adopted in adopting such no confidence mo tion against the President and the Vice President, as the case may be. 14. Sub-section (2) of Section 15 of the Act provides that the requisition f or such a special meeting under sub-section (1) shall be signed by not less than one-third of the total number of members of the Gaon Panchayat and shall be del ivered to the President or the Vice President, as the case may be, of the concer ned Gaon Panchayat, with information to the Deputy Commissioner of the District. 15. Reading both the sub-sections (1) and (2) of Section 15 of the Act toget her it, therefore, transpires that submission of a requisition for a special mee ting, under sub-section (1) of Section 15, signed by not less than one-third of the total number of members of the Gaon Panchayat, is a condition precedent. In the absence of any requisition or the notice expressing want of confidence by th e required number of members, there is no question of convening a special meetin g to discuss such notice expressing want of confidence. 16. From the narration of the facts, as noticed above, as well as the record s produced before this court, it is evident that there is no notice issued by th e members of the Gaon Panchayat expressing want of confidence against Md. Kuddus Ali, the petitioner No.1 in WP(C) No.5788/2009. The respondent No.8 in WP(C) No .5788/2009, Smt. Sajeda Khatun, though in her affidavit-in-opposition has stated that such notice expressing want of confidence was submitted to the President o f the Gaon Panchayat by 7(seven) members on 18.05.2009, copy of such notice has neither been annexed to her pleadings nor produced before this court. The record s produced also do not reveal the existence of such notice stated to have been g iven by the 7(seven) members of the Gaon Panchayat. 17. That being the position, the resolution No.1 dated 02.06.2009 adopted by the Gaon Panchayat in its meeting dated 02.06.2009 expressing want of confident against Md. Kuddus Ali, the petitioner No.1 in WP(C) No.5788/2009, is contrary to the provisions of Section 15 of the Act. Hence the same is set aside. Consequ ently the resolution No.2 adopted in the said meeting dated 02.06.2009 electing the respondent No.8 in WP(C) No.5788/2009 Smt. Sajeda Khatun is also set aside, since it has already been held that the resolution No.1 adopting for want of con fidence on Md. Kuddus Ali is contrary to law. The rival submissions of the parti es relating to the validity of the resolution No.2 adopted in the meeting dated 02.06.2009 on the ground of violation of the provisions of Section 10(1) read wi th Section 6(3) of the Act hence has not been gone into being not required. 18. In WP(C) No.5381/2009 the petitioner Smt. Sajeda Khatun claims that she should be allowed to continue as Vice President of the Gaon Panchayat pursuant t o the resolution No.2 adopted in the meeting dated 02.06.2009. Since, for the re asons recorded above, the removal of the Vice President, namely, Md. Kuddus Ali, the petitioner No.1 in WP(C) No.5788/2009, has been held to be illegal being co ntrary to the provisions of Section 15 of the Act, the relief claimed in WP(C) N o.5381/2008 cannot be allowed. 19. In view of the above, WP(C) No.5788/2009 is allowed and WP(C) No.5381/20 09 stands dismissed. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost. 20. The records produced by Mr. Soren, the learned State counsel is returned .