Allowed

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

Gauhati HC2 Feb 2022WP(C)/239/2021

Case brief

AI extract

What is this about?

This writ petition challenged a no-confidence motion against the elected President of a Gaon Panchayat. The Court held the motion and related approval without jurisdiction because the secretary referred the matter to the Anchalik Panchayat before the statutory fifteen-day period for receipt of notice by the president expired, ordering the petitioner's reinstatement.

What did the court decide?

The letters, notices, resolution, and approval regarding the no-confidence motion are set aside. The petitioner is reinstated as President of No.1 Jorshimalu Gaon Panchayat with immediate effect.

Noor Nahar Jiya Vs the State of Assam and 13 Ors. — Election Law | Gauhati HC (2022)

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Page No.# 1/8

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GAHC010008802021

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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)/239/2021

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NOOR NAHAR JIYA

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W/O- MD. ABDUL WAHAB ANSARI, R/O- VILL- HAHCHORI, P.O. KALATOLI, P.S. 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 SECY. TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY-6

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2:THE DY. COMMISSIONER KAMRUP (R) AMINGAON GHY ASSAM

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3:KAMRUP ZILA PARISHAD REP. BY THE CHIEF EXECUTIVE OFFICER PANBAZAR GHY-1

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4:THE BLOCK DEVELOPMENT OFFICER CUM EX-OFFICIO SECRETARY OF GOROIMARI ANCHALIK PANCHAYAT P.O. GOROIMARI DIST.- KAMRUP (R) ASSAM

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

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6:THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 7:JAMAL UDDIN VICE PRESIDENT OF NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 8:ABDUL HAQUE G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 9:JULCHAN ALI G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 10:TAHMINA AHMED G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 11:JESMINA PARBIN G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 12:AMINA KHATUN G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT

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C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 13:SAHERA KHATUN G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSAM 14:SAHIDUL ALAM G.P. MEMBER NO. 1 JORSHIMALU GAON PANCHAYAT C/O THE SECRETARY NO. 1 JORSHIMALU GAON PANCHAYAT KAMRUP (R) ASSA

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Advocate for the Petitioner : MR B D DAS

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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02.02.2022

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Heard Mr. B.K. Mahajan, the learned counsel appearing on behalf of the Petitioner. Mr. A. Roy, learned Standing Counsel, P&RD Department appears on behalf of the Respondent Nos.1, 3, 4 & 6. Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam appears on behalf of the Respondent No.2. Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. M. Ahmed, learned counsel appears on behalf of the Respondent Nos.7, 8, 11, 13 & 14.

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2 . The instant writ petition has been filed challenging the NoConfidence Motion dated 16.01.2021 whereby no-confidence was expressed against the petitioner, who was elected as the President of No.1 Jorshimalu Gaon Panchayat in the Panchayat Election held in the year 2018. The case of the Petitioner is that the Petitioner on 16.01.2021 came to learn that the Respondent Nos.7 to 14 herein filed a requisition on 24.12.2020 before the Secretary to the No.1 Jorshimalu Gaon Panchayat bringing a No-Confidence-Motion against the President. The petitioner could also come to learn that on 16.01.2021 at 12 noon a No-Confidence-Motion was brought against the petitioner in the Office of the Goroimari Anchalik Panchayat. On the ground that the actions taken by the concerned respondent authorities along with the private respondents to initiate a No-Confidence-Motion against the petitioner was in violation to the mandate of Section 15(1) of the Assam Panchayat Act, 1994 (for short the Act of 1994) the writ petition has been filed by the Petitioner.

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3. The Respondent No.6 had filed an affidavit-in-opposition wherein at paragraph no.4 it has been mentioned that 8 (eight) Members of the No.1 Jorshimalu Gaon Panchayat submitted a requisition notice dated 24.12.2020 addressed to the Secretary of the Gaon Panchayat expressing their lack of confidence on the Petitioner with a request for convening a Special Meeting. On receipt of the said requisition, the Secretary forwarded the same to the Petitioner at her residence on 28.12.2020 but the same could not be delivered as the Petitioner was not found at her residence. Again on 30.12.2020 the said requisition

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was sent to the Petitioner and the Petitioner was also not available on that day also. Thereafter on 04.01.2021 the Secretary again forwarded the aforesaid requisition to the Petitioner but the Petitioner was again not available on the said date at her residence and accordingly the office Peon one Sri Amirul Islam hanged the notice of requisition in the wall in front of the house of the Petitioner in presence of 3 (three) witnesses including Gaonburah of Village-Hahchari Fulchan Ali.

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4. Thereupon on 08.01.2021 the Secretary forwarded the matter to the President of Goroimari Anchalik Panchayat for taking necessary steps. The President of Goroimari Anchalik Panchayat vide a letter dated 11.01.2021 informed the matter to the Executive Officer-cum-Ex Officio Secretary the Goroimari Anchalik Panchayat who instructed him to convene a Special Meeting on 16.01.2021. Accordingly the Respondent No.4 issued a letter dated 12.01.2021 to inform all Members, VicePresident and President for convening a Special Meeting on 16.01.2021 at the Office of the Goroimari Anchalik Panchayat to be presided over by the President of the said Anchalik Panchayat to decide the NoConfidence-Motion against the Petitioner. Thereupon on 13.01.2021, the concerned Peon namely Basir Uddin along with 2 (two) other witnesses visited the house of the Petitioner on two occasions to serve copy of the aforesaid letter dated 12.01.2021 to the Petitioner. However, the Petitioner was not found at her home to serve the aforementioned notice dated 12.01.2021 and in that regard a report was submitted containing the signatures of the two witnesses before the Respondent No.4 stating inter alia the aforesaid facts.

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5. Thereupon on 16.01.2021 a Special Meeting was held in the Office

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of the Goroimari Anchalik Panchayat under the Presidentship of the Respondent No.5 and in the said meeting, eight Members of the said Gaon Panchayat voted in favour of the No-Confidence-Motion through the secret ballot voting. Subsequently, the Respondent No.4 vide a letter dated 18.01.2021 informed the Respondent No.3 the then Executive Officer, Kamrup Zilla Parishad regarding the No-Confidence-Motion against the Petitioner and the Respondent No.3 approved the same vide her letter dated 20.01.2021.

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6 . I have heard the learned counsel for the parties and have also perused the materials on record.

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7 . It is apparent that on 28.12.2020 as stated in the affidavit of the Respondent No.6 that the requisition notice was sent to the Petitioner and the Petitioner could not be found. Thereafter on 30.12.2020 the said Secretary again sent the Notice to the Petitioner and the Petitioner was also again not found. It was only on 04.01.2021 when the Petitioner on being not found that a Notice was pasted at the residence of the Petitioner. Thereafter the Secretary sought to exercise the jurisdiction conferred upon it under Section 15(1) of the Act of 1994 by writing a letter on 08.01.2021 to the President of the Goroimari Anchalik Panchayat for taking necessary action.

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8. Now the question involved out here is as to whether the Secretary could have exercised the said jurisdiction prior to the period of 15 (fifteen) days having elapsed from the date of receipt of the Notice by the President. A perusal of Section 15(1) of the Act of 1994 categorically

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goes to show that the Secretary of the Gaon Panchayat can assume the jurisdiction to refer the matter to the President of the concerned Anchalik Panchayat only when the meeting is not convened within a period of fifteen days from the date of receipt of Notice by the President. In the instant case, there was no Notice served upon the Petitioner. What was done that on 04.01.2021 the Notice was pasted in the wall of the Petitioner’s residence. Even if we take the said date on 04.01.2022 as the date on which the said Notice was served upon the President i.e. the Petitioner then also the Secretary of the concerned Gaon Panchayat could not have exercised the jurisdiction on 08.01.2021 as has been done in the instant case. The consequent actions thereupon of calling for a meeting in the Office of the Anchalik Panchayat and the Resolution adopted on 16.01.2021 and the subsequent approval being granted by the Respondent No.3 vide the letter dated 21.01.2021 are all without jurisdiction in view of the fact that the Secretary of the concerned Gaon Panchayat could not have referred the matter to the Anchalik Panchayat before the elapse of fifteen days from the date of receipt of the Notice by the Petitioner.

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9. Accordingly the letter dated 08.01.2021 issued by the Secretary to the President of the Goroimari Anchalik Panchayat, the Notice dated 12.01.2021 in respect to the meeting to be held on 16.01.2021 at the Office of the Goroimari Anchalik Panchayat, Resolution adopted on 16.01.2021 at the Special Meeting held in the Office of the Goroimari Anchalik Panchayat whereby the Gaon Panchayat voted in favour of NoConfidence-Motion against the President as well as the approval being granted by the Respondent No.3 on 21.01.2021 to the said No-

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Confidence-Motion are all without jurisdiction and accordingly interfered with and set aside.

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10 . In view of the said interference by this Court the Petitioner is reinstated to the position of President of No.1 Jorshimalu Gaon Panchayat with immediate effect. Taking into consideration that the petitioner in view of the instant proceedings has due notice of the requisition dated 24.12.2020 as would also be apparent from paragraph 5 of the writ petition and a copy of the said Notice also being handed over to the learned counsel of the Petitioner, Mr. P. Mahanta by Mr. A. Roy, learned Standing Counsel, P&RD Department today, it would be deemed that the Petitioner has notice of the said requisition with effect from today for the purpose of Section 15(1) of the Act of 1994. Thereafter the Petitioner would be at liberty to act in terms with Section 15(1) of the Act of 1994 and if the Petitioner does not act, the consequences in terms with the said section shall follow as mandated therein.

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11 . With the above observations, the writ petition stands disposed of.

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JUDGE

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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

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