Case: PADMINI SINGHA Vs. THE STATE OF ASSAM

Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened : Provided that the concerned Deputy Commissioner/Sub-Divisional Officer (C) as the 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 to preside over such meeting: Provided further that when a non- confidence motion is lost, no such motion shall be allowed in the next six months. 9. On a plain reading of the said provision, it is crystal clear that the meeting has to be convened by the Deputy Commissioner within a stipulated time and the said authority has also been conferred the power to depute one Gazetted Officer under him not below the rank of Class I Gazetted Officer to preside over the meeting. The said situation comes into existence after the Deputy Commissioner is informed to convene the meeting. The Division Bench has observed, placing reliance on the communication of the Deputy Commissioner that he has not really convened the meeting and that apart, he has not delegated the power or authority to the BDO to preside over the meeting. It has been further held that the BDO at the most could have presided over the meeting when the Deputy Commissioner was unable to preside over the meeting so convened by him. But as the meeting was not convened, the whole thing was illegal. 10. It may be noted that a ground has been taken in this appeal before us that the beneficiary, namely, the respondent no. 6, had attended the meeting. On a perusal of the judgment of the learned single Judge, we do not notice that any such assertion was made. The entire discussion, as we find, relates to what is meant by the Deputy Commissioner by his communication dated 17.02.2014 and further, regarding the delegation of authority to the BDO to preside over the meeting. The ultimate conclusion that has been recorded by the learned single Judge is expressed in para 22 of the judgment which reads thus:- 22. In view of the above discussions, the resolution adopted expressing no confidence against the petitioner is set aside and declared null and void. But the matter does not rest here. This Court cannot remain oblivious of the fact that a requisition for No Confidence Motion was given against the petitioner and expression of no confidence was negatived for procedural irregularities as mentioned above and, therefore, this Court will be failing in its duty in exercising power under Article 226 of the Constitution of India if this Court does not direct the petitioner to hold a meeting to decide the No Confidence Motion brought against her. 11. Interpreting Section 15 of the Act, the Division Bench opined that the Deputy Commissioner has not acted as provided under Section 15. The resolution passed on 31.03.2014 which has been brought on record as Annexure P-6 records that the respondent no. 6 was present in the meeting and signed. In such a situation, the issue that emerges for consideration is whether the ultimate resolution of the meeting could have been discarded. 12. To appreciate the said aspect, it is appropriate to reproduce the content of the resolution. It reads thus:- The meeting is presided over by Shri Kishore Baruah, BDO, Borkhola Development Block as per Assam Panchayat Act, 1994. At the outset of the meeting BDO asked the Members any opinion if they have. They replied that they want voting then by secret ballot voting is done. Ballot box is open at 1.30 p.m. After opening the Ballot Box as found 9 G.P. Members casted their votes for No-Confidence motion and 1 G.P. Member caste vote against the No- Confidence Motion. As per Assam Panchayat Act 2/3 rd (section 15) majority of the total G.P. members should caste votes either in support of No-Confidence motion or against the No-Confidence motion. In this connection 2/3 rd i.e., 7 members out of 10 members required. But after opening Ballot Box, it is found that 9 G.P. Members casted vote in favour of No-Confidence Motion and 1 G.P. Member casted vote against the No- Confidence Motion. As a result of which Rita Rani Dusad, President, Masughat G.P. lost her Presidentship and as per Act, Vice President Masughat G.P. will act and perform and function as i/c, President, Masughat G.P. for the time being. 13. From the foregoing, it is quite vivid that the meeting was held to discuss the Motion of No-Confidence. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory, non-compliance would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. From the foregoing, it is quite vivid that the meeting was held to discuss the Motion of. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory,e would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent.