Remanded

Noor Nahar Jiya v. the State of Assam and 13 Ors.

Gauhati HC21 Sept 2022WP(C)/2184/2022

Case brief

AI extract

What is this about?

The Gauhati High Court set aside a no-confidence motion resolution passed against the petitioner for holding a Gaon Panchayat President position. The court ruled that the Act mandating a secret ballot was not followed. It ordered a fresh meeting to be held on 16.10.2022 under strict adherence to legal provisions and secret ballot.

What did the court decide?

Impugned resolution set aside. Fresh no-confidence meeting directed on 16.10.2022 to be held by secret ballot under supervision of nominated officer.

Noor Nahar Jiya Vs the State of Assam and 13… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010059722022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2184/2022

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NOOR NAHAR JIYA

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W/O MD. ABDUL WAHAB ANSARI, R/O VILL. HAHCHORI P.O. KALATOLI, PS. CHHAYGAON, DIST. KAMRUP (R) ASSAM PIN-781136

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VERSUS

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THE STATE OF ASSAM AND 13 ORS REP BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT. DISPUR, GUWAHATI-6

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2:THE DEPUTY COMMISSIONER KAMRUP (R) AMINGAON GUWAHATI PIN-781031

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3:THE CHIEF EXECUTIVE OFFICER KAMRUP ZILLA PARISHAD PANBAZAR GUWAHATI-1

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4:THE BLOCK DEVELOPMENT OFFICER CUM EX OFFICO SECRETARY OF GOROIMARI ANCHALIK PANCHAY P.O. GOROIMARI DIST. KAMRUP (R) ASSAM PIN-781137

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5:THE PRESIDENT GOROIMARI ANCHALIK PANCHAYAT P.O. GOROIMARI DIST. KAMRUP (R) ASSAM PIN-781137

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6:THE SECRETARY

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NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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7:JAMAL UDDIN

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VICE PRESIDENT OF NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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8:ABDUL HAQUE G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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9:FULCHAN ALI G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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10:TAHIMINA AHMED G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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11:JESMINA PARBIN G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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12:AMINA KHATUN G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

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13:SAHERA KHATUN G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-781136

14:SAHIDUL ALAM

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G.P. MEMBER

NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM PIN-78113

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Advocate for the Petitioner : DR. B AHMED

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Advocate for the Respondent : SC, P AND R.D.

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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21-09-2022

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1. Heard Shri T.J. Mahanta, learned Senior Counsel assisted by Shri A. Baruah, learned counsel for the petitioner. Also heard Shri N.K. Dev Nath, learned Standing Counsel, P&RD whereas Shri M. Chetia, learned counsel has appeared for the State. Shri M. Ahmed, learned counsel appears for the respondent nos. 7, 8, 9 10, 13 & 14.

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2. The subject matter of this writ petition is with regard to a No Confidence Motion against the petitioner. It is the case of the petitioner that she was elected as the President of No.1 Jorshimalu Gaon Panchayat and had assumed charge sometime in March, 2018. While the tenure of President of a Gaon Panchayat is 5 years, 7 members of the Gaon Panchayat had issued a requisition before the Secretary to bring a No Confidence Motion against the petitioner. The aforesaid fact however is rectified by Shri Ahmed, the learned counsel that the numbers of members are 8 and not 7.

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3. Be that as it may, it is the case of the petitioner that she could learn about

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the said requisition only on 16.01.2021. However, on the said date, the Goroimari Anchalik Panchayat had held a special meeting and accordingly a resolution was passed against the petitioner. The said resolution was however the subject matter of dispute in WP(C)/239/2021 and this Court vide order dated 02.02.2022 had interfered with the resolution and directed that a fresh No Confidence Motion may be held within 15 days. In the meantime, because of Covid-19, no such meeting could be held whereafter the petitioner had again filed a writ petition being WP(C)/1059/2022 praying for 2 (two) weeks time to hold the special meeting and this Court had granted time till 25.02.2022 to hold such meeting. Ultimately on 05.03.2022, a No Confidence Motion was held in which nine numbers of members were present and voting was done. Though it is the case of the petitioner that though there is a statutory requirement that such No Confidence Motion has to be done only by means of a secret ballot, the same was not followed and therefore, even though the resolution was passed, the same is vitiated and being violative of Section 18 (5) of the Assam Panchayat Act, 1994 (herein after the Act).

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4. Accordingly, the writ petition has been filed.

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5. The learned Senior Counsel for the petitioner has drawn the attention of this Court to the provisions of Section 18(5) of the Act which read as follows:-

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“ Section 18(5) Quorum and Procedure :

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The voting, in any meeting of Gaon Panchayat, if required shall be by raising of hands, except in the meeting where no-confidence motion is discussed where the matter will be secret ballot.”

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6. It is contended that the aforesaid requirement is a mandatory requirements

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and any deviation from the same would render the entire process illegal and non est.

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7. In support of his submissions, reliance has been placed upon the case of Laxmi Singh & Ors. vs. Rekha Singh & Ors., reported in (2020) 6 SCC 812 in which the Hon’ble Supreme Court was in seisin of a matter concerning the representation of Peoples Act and the subject was voting by secret ballot.

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8. This Court in the case of Forhana Begum Laskar vs. State of Assam and Ors., reported in 2009 (3) GLT 575 while dealing on the specific issue of secret ballot has laid as follows:

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“(19) The meeting dated 12. 03. 2009 though, convened by the Anchalik Panchayat essentially discussed the issue of no-confidence against the President of the Gaon Panchayat and, therefore, quorum for and the procedure thereof, were to be assuredly in terms of Section 18 of the Act. Sub-section 5 of Section 18 mandates that the voting in any meeting of the Gaon Panchayat, if required shall be by raising of hands, except in the meeting where no-confidence motion is discussed where the matter will be decided by secret ballot. Admittedly, in the instant case, secret ballot was not resorted to in the meeting of 12. 03. 2009 to decide the issue of no-confidence against the appellant. On that count, as well, the proceedings of the meeting in this regard being in contravention of an express legal provision, are liable to be adjudged non est in law. On these two counts of visible illegalities, the convention of the meeting dated 12. 03. 2009, the proceedings thereof and the resolution (s) of no-confidence against the appellant are hereby annulled.”

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9. Shri N.K. Dev Nath, learned Standing Counsel, P&RD fairly submits that he would not dispute on the principles of law advanced as secret ballot is a mandatory requirement.

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10. Shri Ahmed, the learned counsel for the private respondents however submits that though interference may be made on that ground, liberty may be granted to the disgruntled members to have the No Confidence Motion and since the petitioner himself is represented, the requirement of fresh notice may be dispensed with.

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11. In view of the aforesaid facts and circumstances and holding that the provisions of Section 18(5) of the Act is mandatory in nature, the impugned resolution of No Confidence Motion dated 05.03.2022 against the petitioner is set aside. However, a fresh meeting for No Confidence Motion be held on 16.10.2022 in the Office of the Goroimari Anchalik Panchayat at 11 AM. The meeting is directed to be supervised by any officer to be nominated by the Deputy Commissioner, Kamrup (R).

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12. It is needless to state that such meeting be held strictly by following the provisions of law.

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Comparing Assistant

Noor Nahar Jiya v. the State of Assam and 13 Ors.

Case brief

What is this about?

What did the court decide?

Noor Nahar Jiya v. the State of Assam and 13 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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