P.K. Musahary J.
1. Heard Mr. S. Banik, learned Counsel for the Appellant/Writ Petitioner and Dr. B. Ahmed, learned Counsel for the private Respondents as well as Mr. P Sen Deka, learned Govt. Advocate, Assam.
2. Brief facts of the case are that a Gaon Panchayat Body of ten members, to which the Appellant /writ Petitioner was elected as its President was sought to be removed by way of moving No Confidence Motion against him. Six of its members signed and addressed a letter, better called notice dated 12.7.2008 expressing loss of confidence in him and asking the Panchayat Secretary (Respondent No. 7) to take necessary steps, precisely to convene a special meeting as per provision u/s 15(1) of the Assam Panchayat Act, 1994 (hereinafter in short, referred to as the "Act"). There was an In-charge Secretary to the Gaon Panchayat (in short G.P. Secretary) who received the notice on 21.7.2008 and placed it before the President (Appellant) for his approval on 25.7.2008, whereupon, the President, on the same day, accorded his approval fixing the date of meeting on 28.7.2008. However, the Secretary vide his note dated 29.7.2008 expressed his inability to convene the meeting due to shortage of time, as according to him, he received the approval only on 28.7.2008 at 11 a.m. and so, he referred the matter to the concerned higher authority, i.e. the President of the Anchalik Panchayat, on 31.7.2008 with a request to convene the meeting at an early date inasmuch as the Appellant as President of the Gaon Panchayat failed to convene the meeting within the period prescribed under the Act. The Appellant tried to convince both the Anchalik Panchayat President and the CEO that he directed the Incharge G.P. Secretary of the Gaon Panchayat to convene the meeting in time and there was no fault or laches on his part necessitating any interference by the Anchalik Panchayat. Not responding to his plea, the Anchalik Panchayat President fixed the date of no-confidence meeting on 5.8.2008. The meeting was accordingly held under the Chairmanship of Anchalik Panchayat President, which was attended by seven members, who voted for the motion and thus it stood passed. The minutes of the meeting was forwarded to and got approval by the Deputy Commissioner, Cachar and consequently the Appellant/Gaon Panchayat President was removed from his office and in his place vice President of the Gaon Panchayat was allowed to perform and discharge all the functions and duties of the President with immediate effect.
3. The learned Single Bench on consideration of materials on record and upon hearing the learned Counsel for the parties, recorded the findings in paragraph 10 of the impugned judgment and order as under:
10. In the case in hand, admittedly, the notice of no confidence motion was received by the Secretary on 14.07.2008. Thereafter, the meeting of the Gaon Panchayat was required to be held on or before 28.07.2008. It is also admitted position that the meeting was not held on the said date. There is no dispute that the Secretary of the Gaon Panchayat, failing to convene the meeting within the said statutory period, referred the matter to the President of the Anchalik Panchayat on 31.07.2008 i.e. within three days from 28.07.2008. Under the provision of Section 15(1) of the Act, on receipt of such reference, the President of the Anchalik Panchayat is required to convene the meeting within seven days from the date of receipt of the information. The special meeting held on 05.08.2008 in connection with the said no confidence motion, was chaired by the President, Salchapra Anchalik Panchayat and the no confidence motion, after a thread-bare discussion, was unanimously adopted by seven members of the Gaon Panchayat, who casted their vote by secret ballots. All the signatories of the no confidence motion participated in the said meeting and they voted in favour of the motion. As there was delay in taking necessary follow up action in respect of the no confidence resolution, the members of the Gaon Panchayat, who signed the no confidence motion and voted in favour of the same, in the meeting held on 05.08.2008, subsequently, approached this Court, seeking a direction, and this Court vide order, dated 05.11.2008, closed the matter, taking note that necessary action towards implementing the resolution adopted in the above referred special meeting dated 05.08.2008 was already taken.
4. The correctness or otherwise of the aforesaid finding is to be examined in the light of the existing provisions of the Act, particularly u/s 15(1), which provides the detailed procedure for proceeding with the no confidence motion which we reproduce below for better appreciation:
15. No-confidence motion against the President and Vice-President (1) Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two-third of the total number of members of the Gaon Panchayat. Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shall be presided 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 meeting 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 matter to the President of the concerned Anchalik Panchayat, who shall convene the 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 Anchali Panchayat does not take action as above within the specified seven days'' time, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional officer (Civil), as the case may be, within three days after expiry of the stipulated seven days time and the concerned Deputy Commissioner/Sub-Divisional officer (Civil) shall convene the meeting within seven days from the date of 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 (Civil), 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 no-confidence motion is lost, no such motion shall be allowed in the next six months.
5. Emphasis is to be given on the stages of proceedings. First there should be a notice issued by the members expressing want of confidence in the President or Vice President, whoever is concerned. Secondly, there should be a meeting specially convened by the G.P. Secretary within fifteen days from the date of receipt of the notice against the President or Vice President. The no confidence notice is generally addressed to the G.P. Secretary and the G.P. Secretary has to put up or place it immediately before the President for his information and approval to convene the special meeting. The meeting is to be convened within 15 days from the date of receipt of notice. There is no explanation as to how this period of 15 days should be counted. Could it be counted from the date of receipt of the notice by the G.P. Secretary or from the date of knowledge of the President about the no confidence notice? It has not been explained in the act but what action would follow, in case the special meeting is not convened within 15 days has been provided. The G.P. Secretary, in such case, within three days after the expiry of the aforesaid 15 (fifteen) days can refer the matter to the President of the Anchalik Panchayat, who, in his turn, shall convene the meeting within 7(seven) days from the date of receipt of the information from the G.P. Secretary.
6. In order to interpret the terminology " from the date of receipt of notice" u/s 15(1) of the Act, we are prompted to have a look at the no confidence notice dated 12.7.2008 signed and served by some members, which reads as follows:
To,
The Secretary Krishnapur Bhairabnagar Gaon Panchayat.
Sub: No-confidence motion against the President of the Krishnapur Bhairabnagar Gaon Panchayat.
Sir,
Begs to state that, we the undersigned the members of the Krishnapur Bhairabnagar Gaon Panchayat. We hereby inform you that our President has been working to his own will and wish in dictatorial manner causing in taking backward the area instead of making development. Few weeks back keeping us totally dark he himself formed the G.P. level monitoring committee of B.R.G.F., and also made the list of beneficiaries of old age pension and distribution of blanket mosquito-net. He also formed the committee of sanitation programme consisting of his own people. The President violating the Sub-Section 3 of Section 17 of the Act, he called the special meeting on 25-06-2008 issuing the notice on 04-06-2008, and with the absence of majority of the members resolution was taken.
Our President with evil intention and his own will called the N.R.E.G.S. meeting at night at Bhairabnagar village, and on spreading of the news a dispute took place among the minority people of the village. Therefore we request you to take necessary steps as per Sub-Section 1 of Section 15 of the Panchayat Act, 1994, as we have lost confidence upon the President due to his dictatorship, for the greater interest of the area.
Date- 12-07-2008
Yours faithfully,
1. Md. Arif Uddin Barbhuiya
2. Intazur Rahman Barbhuiya
3. Abdul Halim Laskar
4. Shahanara Begum Laskar,
5. Jumuri Nath,
6. Sipatur Rahman Kazi.
7. From this letter, it is clearly found that the notice was not directly addressed to or served upon the President. It was admittedly served through G.P. Secretary. After receiving no confidence motion notice, the G.P. Secretary put up the matter before the President vide Annexure-B/2, office note which reads as under:
No. KDGP/No Confidence Motion/2008-09 President,
6(Six) Nos. of G.P. Group Member of Krishnapur Bhairabnagar G.P. have submitted "No-Confidence Motion" petition against yourself i.e. President Krishnapur Bhairabnagar G.P. on 14-07-2008. As per APR Act 1994 Section 15(1) a special meeting may be called within 15 days from the date of receipt of above No-confidence motion petition.
Hence, put up for your approval to convene the above G.P. meeting.
P.F.O.
Sd/Illegible
Dated 21-07-2008
Approved and arrange to
convene No-confidence
Motion meeting on 28.7.2008
At 2:30 PM Venue -"Krishnapur
Bhairabnagar Gaon Panchayat Office.
Sd/ Illegible
Dated -25-07-2008.
8. From this letter, it is clearly found that the matter was brought to the notice of the G.P. President (Appellant) only on 21.7.2008. It means the G.P. President was kept in darkness for 10 days from 12.7.2008 (date of notice to 21.7.2008 to date of endorsing note before the President.). The receipt of notice by the G.P. Secretary, unless otherwise shown that a copy of the same was endorsed to him, cannot be treated as or equated with receipt of notice by the President himself. There is nothing on record that the G.P. President was served with a copy of the notice. On the contrary from the office note, it appears that he was informed or apprised only on 21.7.2008. It is, thus, an admitted position that the Appellant as GP President had no personal knowledge of the notice until a note was officially put up before him on 21.7.2008 by the Respondent G.P. Secretary. The G.P. Secretary held back the notice, he received on 12.7.2008 on behalf of the President for 10 days without bringing it to President''s notice for reasons best known to him only. The President, on being so apprised, accorded approval on 25.7.2008 and asked the G.P. Secretary to convene the special meeting on 28.7.2008. The Respondent G.P. Secretary refused to call the meeting as directed by the Appellant for want of sufficient time.
9. The question involved in this case is whether the receipt of notice of no confidence motion by the GP Secretary on behalf of the President could be construed as due service upon the President from the date of receipt of notice by the G.P. Secretary. The simple dictionary meaning of the word "receipt" is a written acknowledgment of anything received. So also the word "Notice" means bringing it to a person''s knowledge. So, receipt of notice would mean acknowledgement of receipt of the written notice issued. One may therefore, argue that knowledge includes both actual awareness and constructive knowledge. One may further argue that since the Appellant had constructive knowledge about no confidence notice, it is enough for him to take necessary steps in compliance to Section 15(1) of the Act. This argument, in our view, may sound very sound but it is not acceptable at all, because a notice issued by the Panchayat members contains serious allegation against the Appellant President which he has to meet and if he fails to satisfy the members and fails to succeed, he would stand removed from office. So justice demands physical and direct service of notice upon the president or vice president in whom the members have lost confidence and want to remove him from office.
10. What actually had happened has already been noted earlier. The necessity of bringing the notice of no confidence motion to the personal knowledge of the President or Vice President has also been discussed. It must be noted that the G.P. Secretary who received the notice on behalf of the President is cast with a legal duty, which is mandatory in nature, to inform the President forthwith about the receipt of such notice with a note put up in official file for his personal knowledge and pass necessary order either according or declining to accord approval to convene the special meeting for discussion on the no confidence motion by the Panchayat Members. Because of the extremely possible disastrous consequence, like removal from office attached to the no confidence motion preceded by compliance of certain statutory procedures as laid down in Section 15 of the Act, we hold that the notice of no confidence motion received by the GP Secretary on behalf of the GP President, cannot be construed as due notice to the President and the period of 15 days as contemplated u/s 15(1) of the Act could be counted only from the date of bringing the notice to personal knowledge of the President formally through official note, and not otherwise. The reason is quite obvious. A dishonest Panchayat Secretary, for dubious purpose or on extraneous consideration to serve some vested interest, may play mischief by holding back the notice from the President or Vice President against whom the Panchayat members have expressed loss of confidence, to create a situation for it and to show/prove that the President or vice President has failed to convene the special meeting within 15 days as prescribed u/s 15(1) and make out a case for referring the matter to Anchalik Panchayat to convene a special meeting by it.
11. The learned Counsel for the Appellant/Writ Petitioner, by citing the case of
12. We have closely examined the facts of the Satnami''s case (supra) as well as those of the instant case. We have no shade of doubt that the facts of these two cases are quite similar. We are in full agreement with the reasonings and decision rendered in the judgment and order dated 12.3.2010 by the learned Single Bench in Satnami''s case (supra). It appears that the said case was not placed before the learned Single Bench hearing the instant writ petition for consideration. However, we have given our anxious consideration to the reasonings and decision recorded by the learned Single Bench in the impugned judgment and order dated 30.4.2010 but we could not persuade ourselves to agree with the same.
13. In view of the above, we come to a conclusion that the action of the Respondent- G.P. Secretary in referring the matter to the President of the Anchalik Panchayat on 31.7.2008 calculating the period of 15 days from 12.7.2008 (date of notice) and in getting the resolution passed at the intervention of the Anchalik Panchayat President and in removing the Appellant /writ Petitioner from the office of G.P. President and allowing its vice President to discharge duties and functions of the President are illegal and unsustainable under the law and the same are liable to be quashed and set aside. Accordingly, we quash and set aside the same.
14. Appeal stands allowed. No order as to costs.
