Case: PADMINI SINGHA Vs. THE STATE OF ASSAM

1. On 30.01.2014, the appellant along with seven members of Masughat Gaon Panchayat submitted a No Confidence Motion against the President, respondent no. 6 herein, and for requisition of a special meeting to prove the majority of Gaon Panchayat President as per Section 15(1) of the Assam Panchayat Act, 1994 (for brevity, „the Act?). On 15.02.2014, the Secretary, Masughat Gaon Panchayat forwarded the said requisition to the President, Borkhola Anchalik Panchayat stating therein that the matter had already been put up before the President, Masughat Gaon Panchayat on 07.02.2014 for taking necessary action but she asked to wait due to some legal complications. Since the stipulated period of calling a special meeting was over, the petition was being referred for taking necessary action as per provisions of the Act. By virtue of letter dated 26.02.2014, the Block Development Officer (BDO), Borkhola Development Block referred the matter to the Deputy Commissioner, Cachar, Silchar stating that he had already put the matter before the President of the concerned Panchayat on 20.02.2014; that she stated to wait and that since the stipulated period for calling a special meeting was over, the matter was being referred to him for taking necessary action as per the Act.      2. On 17.03.2014, the Additional Deputy Commissioner, Cachar, Silchar sent a communication to the BDO, Borkhola Development Block which is as follows:No. CDO.1/2014/11 Dated, Silchar,      the 17 th March, 2014      To,      The Block Development Officer, Borkhola Development Block.      Sub. Special Meeting of No Confidence Motion against the President Masughat GP.I am to return herewith the proposal submitted by you for convening a special meeting of No Confidence Motion against the G.P. President Masughat G.P. and request you to take necessary action as per provision laid down in the Assam Panchayat Raj Act, 1994 Sec. 15(1).      The extract copy of relevant portion of the said Act Sec. 15(1) is enclosed herewith for favour of your kind necessary action.      Encl: As stated above A.R. Sheikh, ACS      Addl. Deputy Commissioner3. In compliance of the above communication, on 21.03.2014, the BDO wrote to the President, Masughat Gaon Panchayat informing her to attend the special meeting of No Confidence to be convened on 31.03.2014 at 12:30 p.m. in the office of the BDO. On 31.03.2014, the meeting was presided over by BDO. In the meeting, nine members cast their votes in favour of the No Confidence Motion and one member cast vote against the No Confidence Motion. Thus, the President, respondent no. 6 herein, lost her Presidentship and the Vice President, appellant herein, was directed to function as incharge President of the concerned Panchayat for the time being.      4. Being aggrieved by the passing of the No Confidence Motion against her, the respondent no. 6 herein filed a writ petition, being Writ Petition (Civil) No. 2051 of 2014, before the Gauhati High Court. In the writ petition, she challenged the legal acceptability and validity of the resolution expressing want of confidence against her in a special meeting held on 31.03.2014. The learned single Judge of the High Court, vide judgment and order dated 09.08.2016, allowed the writ petition on the ground that vide letter dated 17.03.2014, the Deputy Commissioner, instead of taking action in the matter, merely wrote back to the BDO to take steps in accordance with Section 15 of the Act and there was no delegation of authority to the BDO to preside over the meeting. No document had been produced showing delegation of authority. It was the Deputy Commissioner who ought to have taken steps in terms of the provisions of the Act by convening a meeting. A meeting convened and presided over by an authority alien to the mandate postulated in Section 15 of the Act could not sanctify the proceeding of a meeting. On this foundation, the resolution adopted expressing no confidence against the President was set aside and declared null and void.      5. Being grieved by the judgment and order of the learned single Judge, the appellant filed Writ Appeal (Civil) No. 310 of 2016 before the Division Bench of the High Court which, by the impugned judgment and order dated 24.11.2017, dismissed the Writ Appeal. The Division Bench held that it is only the Deputy Commissioner who can convene the meeting within seven days from the date of receipt of the information and Section 15 does not authorize the Deputy Commissioner to delegate his power of convening the meeting to the BDO. The BDO can preside over the meeting being a Gazetted officer only when the Deputy Commissioner is unable to preside over the meeting and it is so conveyed by him. The appellate Bench opined that as per Section 15 of the Act, the meeting was to be convened by the Deputy Commissioner and no one else and when law provides to do a certain thing in a certain way, the thing must be done in that way or not at all. Being of this view, it concurred with the opinion expressed by the learned single Judge and dismissed the intra court appeal.      6. In the present appeal by special leave, the appellant has assailed the correctness of the impugned judgment.

Reasoning: 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.