Allowed

Ashish Nath v. the State of Assam and 3 Ors.

Gauhati HC18 Aug 2022WP(C)/5512/2021

Case brief

AI extract

What is this about?

A Zilla Parishad President validly withdrew his resignation by emailing the Government within the statutory period. The court quashed four contrary communications and deemed him to have continued in office. It directed resumption of the no-confidence motion within one month, restricting him to day-to-day functions without major financial decisions pending its outcome.

What did the court decide?

Four communications quashed; continuity as President recognised. No-confidence meeting ordered within one month; only day-to-day functions permitted, without major financial decisions, pending decisio

Ashish Nath Vs the State of Assam and 3 Ors. — Election Law | Gauhati HC (2022)

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GAHC010171272021

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THE GAUHATI HIGH COURT

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

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W.P.(C) No. 5512/2021

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Sri Ashish Nath, Aged 47 years, Son of Parimal Ch. Nath, Resident of Village – Paladahar, P.O. Bazarghat, P.S. Ratabari, District–Karimganj, Assam, Pin. 788733.

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……………… Petitioner

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Versus -

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The State of Assam,

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represented by the Principal Secretary to the Government of Assam, Panchayat & Rural Development Department, Dispur, Guwahati– 781006.

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The Commissioner, Panchayat & Rural Development Department, Juripar, Panjabari, Guwahati-781022.

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The Deputy Commissioner, Karimganj, Assam.

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The Chief Executive Officer, Karimganj Zilla Parishad, Karimganj, Assam.

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……………… Respondents

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W.P.(C) No. 5615/2021

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Sri Ashish Nath, Aged 47 years, Son of Parimal Ch. Nath, Resident of Village – Paladahar, P.O. Bazarghat, P.S. Ratabari,

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District–Karimganj, Assam, Pin. 788733.

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……………… Petitioner

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- Versus -

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The State of Assam, represented by the Principal Secretary to the Government of Assam, Panchayat & Rural

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Development Department, Dispur, Guwahati– 781006.

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The Commissioner, Panchayat & Rural Development Department, Juripar, Panjabari, Guwahati-781022.

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The Deputy Commissioner, Karimganj, Assam.

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The Chief Executive Officer, Karimganj Zilla Parishad, Karimganj, Assam.

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Smti. Bimala Suklabaidya, Member Karimganj Zilla Parishad, P.O. Karimganj, Assam.

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……………… Respondents

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Advocates : Petitioner : Mr. S.K. Talukdar, Advocate Respondent : Mr. K. Konwar, Standing Counsel, Panchayat & Rural Development [P&RD], Department, Mr. P.K. Handique, Advocate Respondent : Mr. R. Talukdar, Junior Government Advocate, Assam Mr. R.A. Choudhury, Advocate Date of Hearing : 29.06.2022 Date of Judgment & Order : 18.08.2022

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER

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In the first of the two writ petitions filed by the petitioner under Article 226 of the Constitution of India, that is, W.P.[C] no. 5512/2021, the petitioner has, inter alia, sought for setting aside and quashing of a letter bearing no. KDV[G]29/Pt-II/2019/15 dated 05.10.2021 of the respondent no. 3 i.e. the Deputy Commissioner, Karimganj wherein it is observed that the letter of withdrawal of resignation from the petitioner was received on 04.10.2021, which was after the expiry of the statutory period of 15 [fifteen] days from the date of the petitioner’s letter of resignation from the office of President, Karimganj Zilla Parishad dated 18.09.2021, and also for a direction to the respondent authorities to approve the withdrawal of the letter of resignation dated 01.10.2021. After institution of the first writ petition, W.P.[C] no. 5512/2021 on 07.10.2021, the petitioner has instituted the second writ petition, W.P.[C] no. 5615/2021 on 22.10.2021 challenging [i] a letter bearing no. PDA.208/2021/3 dated 11.10.2021 of the respondent no. 1 i.e. the Principal Secretary to the Government of Assam, Panchayat & Rural Development Department informing the respondent no. 3 that the resignation of the petitioner from the office of President, Karimganj Zilla Parishad had been accepted as per the provision of Section 72[1] of the Assam Panchayat Act, 1994, as amended; [ii] a letter bearing no. KDV[G]29/Pt-II/2019/20 dated 19.10.2021 of the respondent no. 3 and addressed to the respondent no. 4 i.e. the Chief Executive Officer, Karimganj Zilla Parishad intimating about acceptance of the letter of resignation of the petitioner; and [iii] a letter bearing no. KZP.186/2021/1047 dated 19.10.2021 of the respondent no. 4 and addressed to the respondent no. 1 whereby it has been informed that the respondent no. 5 who has been acting as the Vice-President of Karimganj Zilla Parishad, had submitted his joining report on 19.10.2021 as the In-Charge President of Karimganj Zilla Parishad, by signing the oath of affirmation of the said office.

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As the issues involved in the two writ petitions are inter-connected and relate to the matters of the petitioner’s tendering of resignation and subsequent act of withdrawal of

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resignation and also about validity of acceptance or otherwise of withdrawal of resignation from the post of President, Karimganj Zilla Parishad, they are taken up together at the stage of admission at the request of the learned counsel for the parties.

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The sequence of events which have led the petitioner to institute the two writ petitions can be exposited, in brief, as follows :

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3.1. In the Panchayat General Election, the petitioner got directly elected as a Member of the Karimganj Zilla Parishad from one of its territorial constituencies. After constitution of the Karimganj Zilla Parishad, the petitioner had been elected as the President of the Karimganj Zilla Parishad in terms of the provisions contained in Section 70 of the Assam Panchayat Act, 1994, as amended [‘the Assam Panchayat Act’, for short], on 07.11.2019. After being so elected, the petitioner took the oath of affirmation of the said office.

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3.2. It was on 18.09.2021 the petitioner addressing a letter of resignation of even date to the respondent no. 3, informed the respondent no. 3 that he had tendered resignation from the office of President of Karimganj Zilla Parishad due to personal reasons. The letter of resignation dated 18.09.2021 was received by the respondent no. 3 on 18.09.2021 and on receipt of the same, the respondent no. 3 forwarded the said letter of resignation dated 18.09.2021 of the petitioner to the respondent no. 1 on 18.09.2021 itself by a letter bearing no. KDV[G]29/Pt-II/2019/13 dated 18.09.2021.

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3.3. At this juncture, it is apposite to mention that prior to the event of tendering the resignation from the office of President, Karimganj Zilla Parishad by the petitioner on 18.09.2021, 9 [nine] nos. of Members of Karimganj Zilla Parishad had submitted a requisition notice expressing want of confidence in the petitioner against his continuance as the President of Karimganj Zilla Parishad. Based on such requisition notice, a special meeting was convened at 11-00 a.m. on 20.09.2021 in the Conference Hall of the office of the Deputy

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Commissioner, Karimganj with the approval of the respondent no. 3. The special meeting was started on 20.09.2021 as scheduled. The special meeting was chaired by the District Development Commissioner, Karimganj and the same was attended by 15 [fifteen] nos. of Members of Karimganj Zilla Parishad and the respondent no. 4 along with other officials of Karimganj Zilla Parishad. As in the meantime the petitioner had tendered his resignation on 18.09.2021, the District Development Commissioner, Karimganj apprised the House at the inception of the special meeting that since the petitioner had submitted his resignation from the office of President, Karimganj Zilla Parishad on 18.09.2021 to the respondent no. 3 i.e. the Deputy Commissioner, Karimganj and the said letter of resignation had already stood forwarded to the Government in the Panchayat & Rural Development Department, the special meeting would stand adjourned till further notification.

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The contestation of the parties had started to arise on and from 01.10.2021 in the following manner :

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4.1. The petitioner has claimed that he submitted a letter on 01.10.2021 to the respondent no. 1 withdrawing his letter of resignation from the office of President, Karimganj Zilla Parishad, submitted earlier on 18.09.2021 before the respondent no. 3, owing to demands from the public as well as from the Members of the Zilla Parishad. By the said letter, the petitioner stated to have requested the respondent no. 1 to take necessary steps as per the provisions of Section 72[1] of the Assam Panchayat Act and to allow the petitioner to continue as the President of Karimganj Zilla Parishad.

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4.2. The petitioner has asserted that he had submitted a letter again on 02.10.2021 to the respondent no. 3 informing about his withdrawal of resignation dated 18.09.2021. The petitioner has claimed that the said letter dated 02.10.2021 was also communicated to the respondent no. 3 through a WhatsApp message at 01-35 p.m. on 02.10.2021 which was duly seen by the respondent no. 3. The petitioner has further asserted that a copy of the letter dated 02.10.2021 was also sent in the official website of the Panchayat & Rural Development

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Department through e-mail at 12-35 p.m. on 02.10.2021 in the e-mail account : [email protected].

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4.3. On 05.10.2021, the respondent no. 3 apprised the respondent no. 4 in writing vide a letter bearing no. KDV[G]29/Pt-II/2019/15 of even date that after receipt of the letter of resignation dated 18.09.2021 from the petitioner resigning from the office of President, Karimganj Zilla Parishad, the same was sent to the respondent no. 1 vide his letter bearing no. KDV[G]29/Pt-II/2019/13 dated 18.09.2021. It was further informed that the respondent no. 3 had received a letter of withdrawal of resignation from the petitioner on 04.10.2021. It was observed by the respondent no. 3 in his said letter dated 05.10.2021 that the letter of withdrawal of resignation, received on 04.10.2021, was after expiry of statutory period of 15 [fifteen] days from the petitioner’s letter of resignation, as envisaged under Section 72[1] of the Assam Panchayat Act. A copy of the letter no. KDV[G]29/Pt-II/2019/15 was also forwarded by the respondent no. 3 to the respondent no. 1 along with a copy of the letter of withdrawal of resignation dated 04.10.2021 for favour of information of the respondent no. 1.

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4.4. Immediately after the letter dated 05.10.2021 [supra] of the respondent no. 3, the petitioner had instituted the first of the two writ petitions, W.P.[C] no. 5512/2021. When the said writ petition, W.P.[C] no. 5512/2021 was moved on 08.10.2021 assailing the observations made by the respondent no. 3 in his said letter dated 05.10.2021 regarding the expiry of the statutory period of 15 [fifteen] days prescribed under Section 72[1] of the Assam Panchayat Act, inter alia, contending that the respondent no. 3 had no power and authority to either accept or reject a letter of withdrawal of resignation of the President of a Zilla Parishad under Section 72[1] of the Assam Panchayat Act. The Court after hearing the learned counsel for the parties and perusing the materials on record, posted the writ petition on 28.10.2021 to enable the respondent no. 1 to apprise as to when the petitioner submitted his application for withdrawal of the resignation letter dated 18.09.2021 and ordered, in the interim, that till the returnable date, the operation of the impugned letter dated 05.10.2021 shall remain suspended.

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4.5. On 11.10.2021, the respondent no. 1 wrote to the respondent no. 3 vide letter no. PDA.208/2021/3 informing thereby that the resignation of the petitioner from the office of President, Karimganj Zilla Parishad had been accepted as per the provisions of Section 72[1] of the Assam Panchayat Act. It was further informed that the Vice-President of Karimganj Zilla Parishad had been entrusted with the responsibility vested upon him under Section 77[2] of the Assam Panchayat Act to act as the President In-Charge of Karimganj Zilla Parishad on temporary basis until further order. The letter further stated that it had the approval of the Hon’ble Minister, Panchayat & Rural Development Department.

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4.6. After receipt of the afore-mentioned letter dated 11.10.2021 [supra] from the respondent no. 1, the respondent no. 3 wrote to the respondent no. 4 vide the letter bearing no. KDV[G]29/Pt-II/2019/20 dated 19.10.2021 intimating about acceptance of the letter of resignation of the petitioner and requesting to the respondent no. 4 to take necessary action as per instructions given in the letter dated 11.10.2021 of the respondent no. 1.

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4.7. In consequence of the letter dated 11.10.2021 [supra] of the respondent no. 1 and the letter dated 19.10.2021 [supra] of the respondent no. 3, the letter bearing no. KZP.186/2021/1047 dated 19.10.2021 was written by the respondent no. 4 to the respondent no. 1 whereby it was informed that the respondent no. 5 who had been acting as the VicePresident of Karimganj Zilla Parishad, had submitted his joining report on 19.10.2021 as the In-Charge President of Karimganj Zilla Parishad by signing the oath of affirmation of the said office.

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4.8. The letter dated 11.10.2021 [supra] of the respondent no. 1, the letter dated 19.10.2021 [supra] of the respondent no. 3 and the letter dated 19.10.2021 [supra] of the respondent no. 4 have been made the subject-matter of challenge in the second writ petition, W.P.[C] no. 5615/2021.

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I have heard Mr. S.K. Talukdar, learned counsel for the petitioner; Mr. K. Konwar, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department assisted by Mr. P.K. Handique, learned counsel for the respondent nos. 1, 2 and 4; and Mr. R. Talukdar, learned Junior Government Advocate, Assam for the respondent no. 3 in both the writ petitions. I have also heard Mr. R.A. Choudhury, learned counsel for the respondent no. 5 in the writ petition, W.P.[C] no. 5615/2021. The learned Standing Counsel, Panchayat & Rural Development Department has also placed the relevant records before the Court for perusal.

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Mr. Talukdar, learned counsel for the petitioner has submitted that the matters of resignation by the petitioner from the office of President of the Zilla Parishad and of withdrawal of resignation are to be considered under sub-section [1] of Section 72 of the Assam Panchayat Act by taking into purview the concept of resignation envisaged and the procedure prescribed therein. Submitting that the petitioner had submitted his letter of resignation on 18.09.2021 in the proper manner, Mr. Talukdar has further submitted that the petitioner had submitted his letter of withdrawal of resignation on 01.10.2021 to the respondent no. 3. Even if it is assumed that the letter of withdrawal of resignation was not submitted in the proper manner on 01.10.2021, the petitioner had forwarded his letter of withdrawal of resignation to the respondent no. 3 through WhatsApp message on 02.10.2021 and also sent the e-mail in the website of the Panchayat & Rural Development Department on 02.10.2021 intimating his withdrawal of resignation from the post of President of the Zilla Parishad.

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6.1. If the date, 02.10.2021 is taken as the date of withdrawal of resignation, then the date of withdrawal was very much with the period of 15 [fifteen] days from the date of resignation, 18.09.2021. It is his submission that the requirement for withdrawal of resignation under Section 72[1] of the Assam Panchayat Act is of sending the letter of withdrawal to the Government and receipt of the letter of withdrawal within the 15 [fifteen] days period is never a requirement. As the petitioner had sent his letter of withdrawal of

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resignation to the Government by sending e-mail in the account of the Government in the Panchayat & Rural Development Department through its website on 02.10.2021, which fact is not denied by the State respondent at any point of time, the petitioner had completed the action required from his end.

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6.2. It is his further submission that with the 2^nd day of October, 2021 being a public holiday and the 3^rd day of October, 2021 being a Sunday, the last day of the 15 [fifteen] days’ period had to be taken as 04.10.2021, in view of the provisions contained in Section 9 of the General Clauses Act, 1897. He has pointed out that the respondent no. 3 had admitted in his letter dated 05.10.2021 that he received the letter of withdrawal of resignation from the petitioner on 04.10.2021 and forwarded the same to the Government by his said letter dated 05.10.2021, it is evident that the petitioner had sent his letter of withdrawal within the period of 15 [fifteen] days before the jurisdictional Deputy Commissioner, who is the competent authority to receive a letter of resignation from the post of President for its onward transmission to the Government.

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6.3. With acceptance of resignation is not contemplated as a requirement under the Assam Panchayat Act, it is not open for the respondent authorities to take a stand contrary to the provisions contained in the governing statute, that is, the Assam Panchayat Act. He has, thus, contended that the State respondents could not have held that the sending of the letter from the end of the petitioner intimating his intention of withdrawing the letter of resignation was after the expiry of a period of 15 [fifteen] days from 18.09.2021 and in such view of the matter, the impugned actions on the part of the State respondents, assailed in these writ petitions, are bad in law being contrary to the statutory provisions contained in the Assam Panchayat Act.

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Mr. Konwar, learned Standing Counsel, Panchayat & Rural Development Department has referred to the stands taken in the affidavit-in-opposition filed on behalf of the respondent no. 1 to controvert the submissions and contentions advanced on behalf of the petitioner. He has

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submitted that the Department had received the petitioner’s letter of resignation dated 18.09.2021 only on 08.10.2021. After receipt of the petitioner’s letter of resignation dated 18.09.2021 on 08.10.2021, the matter was processed and the resignation of the petitioner from the office of President, Karimganj Zilla Parishad was accepted with the approval of the Departmental Minister and thereafter, the approval was communicated by the letter dated 11.10.2021 to the petitioner. Stating that by the time the petitioner’s letter of withdrawal of resignation dated 01.10.2021 was received on 08.10.2021 at the office of the respondent no. 1 by Dak, the period of 15 [fifteen] days had already expired.

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7.1. Mr. Konwar has further submitted that the letter dated 02.10.2021 wherein the petitioner had expressed his intention to withdraw the resignation, was addressed not to the Government in the Panchayat & Rural Development Department but only to the jurisdictional Deputy Commissioner i.e. the respondent no. 3, who is not the authority to whom the letter of withdrawal of resignation is required to be submitted in terms of the provisions of Section 72[1] of the Assam Panchayat Act. By contending so, Mr. Konwar has submitted that the letter of the petitioner dated 02.10.2021 cannot be construed to be a letter of withdrawal of resignation within time.

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7.2. In so far as sending of the letter of withdrawal of resignation dated 02.10.2021 in official website/e-mail account of the Department on 02.10.2021 is concerned, the day [02.10.2021] it was sent, was a holiday being Gandhi Jayanti and next day [03.10.2021] being a Sunday, the letter was received after resumption of the normal office hours. It is also the stand of the respondents that the letter dated 05.10.2021 of the respondent no. 3 enclosing the petitioner’s letter of withdrawal of resignation dated 02.10.2021, received by the respondent no. 3 on 04.10.2021, was received at the office of the respondent no. 1 on 27.10.2021. One of the contentions advanced on behalf of the respondent no. 1 is, thus, to the effect that the petitioner had addressed his letter dated 02.10.2021 intimating his withdrawal of resignation only to the jurisdictional Deputy Commissioner i.e. the respondent no. 3 and the respondent no. 3 is not the authority to whom such letter of withdrawal of resignation is to be addressed

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under the statutory provisions. He has further contended, by referring to the decisions of the Hon’ble Supreme Court of India in Anvar P.V. vs. P.K. Basheer and others, [2014] 10 SCC 473 and Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others, [2020] 7 SCC 1, that there would also be the question of admissibility or otherwise of the letter of withdrawal of resignation.

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7.3. As the letter of withdrawal of resignation, sent by the petitioner, was received and/or seen after expiry of 15 [fifteen] days, the Vice-President of Karimganj Zilla Parishad was entrusted the responsibility to exercise the powers and perform the duties of the President of the Zilla Parishad in terms of the provisions contained in Section 77[2] of the Assam Panchayat Act. Summing up his submissions, the learned departmental counsel has submitted that the writ petitions lack merit and as such, the same are liable to be dismissed.

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Mr. R. Talukdar, learned Junior Government Advocate, Assam appearing for the respondent no. 3 in both the writ petitions and Mr. R.A. Choudhury, learned counsel for the respondent no. 5 in the writ petition, W.P.[C] no. 5615/2020 have substantially adopted the submissions of the learned Departmental Counsel.

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I have given due consideration to the submissions advanced by the learned counsel for the parties and have also perused the materials brought on record by the pleadings. I have also gone through the provisions of the Assam Panchayat Act and the records placed before the Court by the learned Departmental Counsel, apart from the various decisions cited at the bar.

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At the inception, it is apposite to refer to the provisions contained in sub-section [1] of Section 72 of the Assam Panchayat Act which has, inter alia, provided for tendering of resignation by a President of a Zilla Parishad and also about withdrawal of such resignation. As per Section 72[1], a Member holding the office as President of a Zilla Parishad may resign

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his office at any time by writing and sending it to the Government through the Deputy Commissioner and the office shall become vacant on the expiry of 15 [fifteen] days from the date of such resignation unless within the said period of 15 [fifteen] days he withdraws such resignation by writing and by sending it to the Government.

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From the provisions contained in Section 72[1] of the Assam Panchayat Act, it is evident that a President of a Zilla Parishad can resign from the office of President by tendering his resignation in writing and by sending it to the Government through the jurisdictional Deputy Commissioner. The resignation will become effective after expiry of 15 [fifteen] days from the date of such resignation, meaning thereby, the resignation will become effective only on and from the sixteenth day from the date of submission of the letter of resignation. A President who has tendered the resignation in writing has, however, the option to withdraw such resignation which he can do by writing a letter of withdrawal of resignation and by sending it to the Government within the said period of 15 [fifteen] days from the date of his earlier letter of resignation.

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The resignation when it takes effect is dependent upon the aspect as to whether the resignation is of unilateral character or of bilateral character. In the case of Moti Ram vs. Param Dev and another, reported in [1993] 2 SCC 725, the concept of ‘resignation’ came to be discussed by the Hon’ble Supreme Court of India. It has been observed therein that ‘resignation’ means the spontaneous relinquishment of one’s own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. The act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any

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action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event, it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of that intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish e.g. acceptance of the said request to relinquish the office and in such a case, the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it. The decision in Moti Ram has referred to various offices under the Constitution of India which can be relinquished by unilateral act of the holder of the office and where no acceptance of resignation is required e.g. President [Article 56(a)], VicePresident [Article 67(a)], Speaker and Deputy Speaker of Lok Sabha [Article 94(b)], Judge of the Supreme Court [Article 124(2)(a)], Judge of a High Court [Article 217(1)(a)]. The decision in Moti Ram has also observed that a contract of employment can stand on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee can become effective only on acceptance of the same by the employer.

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From the prescription contained in Section 72[1] of the Assam Panchayat Act, it is clear that the act of resignation on the part of a President of a Zilla Parishad is of unilateral character as it has not envisaged any further act of acceptance, etc. by any other authority. However, an act of resignation has to fulfill the essential conditions, firstly, it has to be in writing and secondly, the same is to be sent to the Government through the jurisdictional Deputy Commissioner. In the event the above two essential conditions are fulfilled in relation to the act of resignation, which is prospective in nature as per the prescription contained in Section 72[1], it will take effect only after expiry of 15 [fifteen] days from the date of such resignation. The statutory provision contained in Section 72[1] has also given an option to such a holder of the office of President of a Zilla Parishad who has tendered resignation from the office to withdraw such resignation within the period of 15 [fifteen] days. Likewise,

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withdrawal of resignation has to meet the essential conditions, firstly, such withdrawal of resignation must be in writing and secondly, such withdrawal of resignation has to be sent to the Government. Like the act of resignation, the act of withdrawal of resignation is also of unilateral character as it does not require any further action on the part of any authority. If such an act of withdrawal of resignation fulfils the above conditions, the same would nullify the earlier act of resignation.

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Another aspect that has arisen for consideration is computation of the time period of 15 [fifteen] days. The learned counsel for the petitioner has referred to the provisions contained in Section 9 and Section 10 of the General Clauses Act, 1897 [‘the 1897 Act’, for short]. While Section 9 has provided for commencement and termination of time, Section 10 has provided for computation of time. As per Section 9[1] of the 1897 Act, if any Central Act or Regulation made after the commencement of the 1897 Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word ‘from’, and, for the purpose of including the last in a series of days or any other period of time, to use the word ‘to’. Section 10[1] of the 1897 Act has laid down that where, by any Central Act or Regulation made after the commencement of the 1897 Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open.

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14.1. As can be seen from above, the provisions of Section 9 and Section 10 are applicable to any Central Act or Regulation whereas the Assam Panchayat Act, 1994 is a State Act. This Court is of the considered view that in respect of commencement and termination of time and computation of time, the provisions of the Assam General Clauses Act, 1915 [‘the 1915 Act’, for short] are found applicable. On a comparative analysis of the provisions of Section 9 and Section 10 of the 1897 Act vis-à-vis the provisions of Section 9 and Section 10 of the 1915 Act, it is found that the provisions are pari materia and in such view of the

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matter, the interpretation made in relation to Section 9 and Section 10 of the 1897 Act can be readily applied in relation to Section 9 and Section 10 of the 1915 Act.

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The language used in Section 9 of the 1897 Act came to be considered by the Hon’ble Supreme Court of India in the case of Tarun Prasad Chatterjee vs. Dinanath Sarma, reported in [2000] 8 SCC 649, wherein it is held that in order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed ‘from’ a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged in Section 9 of the 1897 Act requires to exclude the first day. The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word ‘from’ is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word ‘to’ is to be used. In order to exclude the first day of the period, the crucial thing is to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. The same has been intended to obviate the difficulties or inconvenience that may be caused to some parties.

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15.1. After referring to the decision in Tarun Prasad Chatterjee [supra] and a host of other decisions on the point in the context of Section 9 of the 1897 Act, a three-judge decision of the Hon’ble Supreme Court of India in Econ Antri Limited vs. Rom Industries Limited and another, reported in [2014] 11 SCC 769, is of the view that the words ‘of’, ‘from’ and ‘after’ may, in a given case mean really the same thing. The word ‘of’ is sometimes the equivalent of ‘after’.

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15.2. Thus, the above interpretation of Section 9 of the 1897 Act leads to the conclusion that the first day of the period is required to be excluded from consideration in computation of the time period mentioned in Section 72[1] of the Assam Panchayat Act. Admittedly, the letter of resignation was submitted by the petitioner on 18.09.2021 and as such, the date – 18.09.2021 is to be excluded from consideration while computing the period of 15 [fifteen] days. Viewed in that context, the last day of 15 [fifteen] days period for

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withdrawal of the letter of resignation was 03.10.2021. It is not in dispute that the day, 03.10.2021 was Sunday. Therefore, the last date for the petitioner to send the letter of withdrawal of resignation would have to be held as 04.10.2021, Monday.

¶92

The prescription contained in Section 72[1] of the Assam Panchayat Act has made it clear that the office of the President of a Zilla Parishad shall become vacant on the expiry of 15 [fifteen] days from the date of such resignation unless within the said period of 15 [fifteen] days the incumbent of the office of President withdraws such resignation by writing and by sending it to the Government. By taking note of the provision contained in Section 9 of the 1915 Act if the period of 15 [fifteen] days is computed from the date of resignation submitted by the petitioner in writing, that is, 18.09.2021, then in order to compute the period of 15 [fifteen] days the first day, 18.09.2021 is to be excluded and if after excluding the first day [18.09.2021] the period of 15 [fifteen] days is computed then the fifteenth day falls on 03.10.2021. If the last day of the prescribed time period which is 03.10.2021 in the case in hand which was a closed day for the office being a Sunday, then by virtue of Section 10 of the 1915 Act the fifteenth day had to be taken as 04.10.2021.

¶93

As has been already indicated in paragraph no. 13 above, if a President of a Zilla Parishad who has earlier submitted a letter of resignation, wants to withdraw his such letter of resignation then he has to send such letter of withdrawal of resignation to the Government. One distinguishing aspect between the act of resignation and the act of withdrawal of resignation is that in respect of the former act, the letter of resignation has to be sent to the Government through the jurisdictional Deputy Commissioner but in case of the later act there is no such requirement of sending the letter of withdrawal of resignation through the jurisdictional Deputy Commissioner. The President can directly send the letter of resignation to the Government.

¶94

The word ‘send’, as per the Oxford Dictionary of English, Third Edition, means ‘cause to go or be taken to a particular destination; arrange for delivery of, especially by post’. The

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provision in Section 72[1] of the Assam Panchayat Act is silent about any requirement of receiving the letter of withdrawal of resignation either by the jurisdictional Deputy Commissioner or by the Government. If the incumbent in the office of President of a Zilla Parishad who had earlier submitted a letter of resignation, performs the act of sending the letter of withdrawal of resignation to the Government within the period of 15 [fifteen] days from the date of his earlier of letter of resignation then the act of resignation is not supposed to take effect and in such a case, the incumbent in the office of President of the Zilla Parishad shall not be deemed to have vacated the office, in the absence of any concomitant act to be performed by the jurisdictional Deputy Commissioner or by the competent authority in the Government to accept such letter of resignation or such letter of withdrawal of resignation, as the case may be.

¶97

The petitioner has asserted to the effect that apart from sending the letter of withdrawal of resignation to the jurisdictional Deputy Commissioner, he had sent an e-mail to the Panchayat & Rural Development, Government of Assam in its e-mail account, [email protected] with the same letter of withdrawal of resignation on 02.10.2021. With such assertion, the petitioner has contended that he had performed the process required on his part to withdraw his resignation by sending the letter of withdrawal of resignation to the Government in the Panchayat & Rural Development Department within the stipulated time period, that is, within the period of 15 [fifteen] days from the date of submission of the letter of resignation on 18.09.2021. The respondent no. 1, in his affidavit-in-opposition, has not denied about sending of the letter dated 02.10.2021 in the official website of the Panchayat & Rural Development Department on 02.10.2021. A stand has been taken to the effect that the day, 02.10.2021 was a holiday being Gandhi Jayanti and the next day, 03.10.2021 being Sunday, the letter dated 02.10.2021 was received after resumption of the normal office hours. It has been pointed out that the signed copy of the letter of withdrawal of resignation, forwarded by the Deputy Commissioner, Karimganj was received only on 27.10.2021. By such stand, a plea has been sought to be raised on behalf of the State respondents that the act of withdrawal of resignation performed by the petitioner was the beyond of period of 15 [fifteen] days from 08.10.2021. Such plea, in the considered view of this Court, is not tenable

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because the Governing statute has cast an obligation to the holder of the office of the President of the Zilla Parishad only to send the letter of withdrawal of resignation to the Government within 15 [fifteen] days from the date of submission of the letter of resignation.

¶100

19.1. By sending the letter of withdrawal of resignation to the e-mail account of the Government in the Panchayat and Rural Development Department, the petitioner had taken the requisite steps as may be reasonably required on his part to inform about his intention to withdraw his earlier letter of resignation to the Government in the ordinary course within 15 [fifteen] days time period and it is another matter whether or not the fact of such withdrawal of resignation had actually been known or not to the Government within 15 [fifteen] days time period, because the act of withdrawal of resignation being also of unilateral character. The condition laid down in Section 72 [1] of the Assam Panchayat Act is fulfilled when the holder of the office of the President of a Zilla Parishad takes the necessary steps for sending of the letter of withdrawal of resignation within the stipulated time period by ensuring that it reaches at the proper destination, that is, the Government in course of time. The Court is also not oblivious of the proposition that a provision relating to giving or sending of a notice calls for a liberal interpretation for the person who has the statutory obligation of giving or sending a notice because he is presumed to be loser in the process and it is for the safeguard of his interest the very provision has been incorporated in the statute. In the case in hand, the petitioner has been seen to have performed the act of sending the letter of withdrawal of resignation to the Government within 15 [fifteen] days from the date of submission of earlier letter of resignation on 18.09.2021 by sending the e-mail to the e-mail account of the Government, [email protected] at 12-35 p.m. on 02.10.2021. The e-mail was sent under the subject : Withdrawal of resignation from the post of President, Zilla Parishad, Karimganj. From the discussion made above, it has already found that the time period available at the petitioner’s disposal to withdraw his letter of resignation was up to 04.10.2021 and the petitioner had performed the act of withdrawal of resignation within the stipulated time period. Though a question with regard to admissibility of the letter of withdrawal of resignation, sent by e-mail on 02.10.2021, has been raised but acknowledgement of receipt of the signed copy of the said letter at a later date by the

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respondent no. 1 in its affidavit-in-opposition has substantiated the fact of sending the letter of withdrawal of resignation by the petitioner within the stipulated time period of 15 [fifteen] days. Thus, the decisions referred to by the learned Departmental Counsel on the admissibility or otherwise appear to be not of relevance for the case in hand. In such view of the matter, this Court is of the considered view that the office of the President of the Karimganj Zilla Parishad did not cease to have been vacated by the petitioner at any point of time, contrary to the view held by the State respondent authorities.

¶103

The upshot of the above discussion is that in view of sending of the letter of withdrawal of resignation by the petitioner within the prescribed period of time, as stipulated in Section 72[1] of the Assam Panchayat Act, the office of the President of Karimganj Zilla Parishad cannot be deemed to have been vacated by the petitioner on and from the sixteenth day from the date of submission of his letter of withdrawal on 18.09.2021. In view of reacting at the aforesaid finding, [i] the letter bearing no. KDV[G]29/Pt-II/2019/15 dated 05.10.2021 of the respondent no. 3; [ii] the letter bearing no. PDA.208/2021/3 dated 11.10.2021 of the respondent no. 1; [iii] the letter bearing no. KDV[G]29/Pt-II/2019/20 dated 19.10.2021 of the respondent no. 3; and [iv] the letter bearing no. KZP.186/2021/1047 dated 19.10.2021 of the respondent no. 4, assailed in the two writ petitions, are held to be incongruent to the provisions contained in Section 72[1] of the Assam Panchayat Act and as such, the same are liable to be set aside and quashed. It is accordingly ordered. Resultantly, the two writ petitions are allowed. As a corollary, the petitioner is deemed to have continued as the holder of the office of President, Karimganj Zilla Parishad, notwithstanding the letter of resignation dated 18.09.2021.

¶104

There is another pertinent aspect associated with the case in hand which cannot be overlooked in the obtaining fact situation. The concept of tenure of an elected office-bearer of any Panchayati Raj Institution like a Zilla Parishad, governed by democratic principles, is controlled by a limitation of no confidence and the fixed tenure provided in the governing statute, that is, the Assam Panchayat Act can get shortened due to removal from loss of

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confidence in such elected office-bearer, as provided for in the statute. This truncation in the tenure in view of removal of an elected office-bearer is based on the democratic principle that the elected office-bearer against whom such motion is passed, has ceased to enjoy the support and confidence of the requisite majority of Members, as fixed by the governing statute. In case of President of a Zilla Parishad, it is a majority of two-thirds of the total number of Members elected directly as Zilla Parishad Members.

¶107

The petitioner has himself averred that there has been a move to unseat him from the office of the President of Karimganj Zilla Parishad as 9 [nine] nos. of Members of the Zilla Parishad had expressed clear intention to bring a motion of no confidence against the petitioner and in that connection, a special meeting was convened at the Conference Hall of the office of the Deputy Commissioner, Karimganj to discuss the said motion of no confidence at 11-00 a.m. on 20.09.2021. The special meeting so convened to discuss the motion of no confidence against the petitioner stood adjourned till further notification as in the meantime on 18.09.2021, the petitioner had submitted his letter of resignation from the office of President, Karimganj Zilla Parishad and the said letter of resignation was forwarded to the Government by the jurisdictional Deputy Commissioner.

¶108

In such fact situation, the motion of no confidence cannot be held to have been lost. Thus, having regard to the entire conspectus of background fact situation obtaining in the case in hand, this Court is of the considered view that the motion of no confidence, brought against the petitioner to continue in the office of President of Karimganj Zilla Parishad, should proceed from the stage it was on 20.09.2021 in order to bring it to its logical conclusion. It is, therefore, directed that the jurisdictional Deputy Commissioner i.e. the Deputy Commissioner, Karimganj shall convene and hold a special meeting to discuss the motion of no confidence by serving requisite notices upon all the stakeholders including the petitioner, to attend the special meeting and by fixing the time, date and venue of such special meeting. The special meeting shall be held within a period of 1 [one] month from the date of this order. In order to ensure that the proceedings in such special meeting are carried out properly, the Deputy

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Commissioner, Karimganj shall depute one of the officers not below the rank of Additional Deputy Commissioner as an observer for the purpose of the special meeting.

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Until the special meeting to discuss the no confidence motion against the petitioner is held and the no confidence motion is decided, the petitioner will continue to function as the President of Karimganj Zilla Parishad discharging its day to day functions but he shall not take any major decision in respect of financial matters.

¶112

The writ petitions are allowed to the extent indicated above, with the afore-mentioned observations and directions. The interim order stands merged with this order. There shall, however, be no order as to cost.

¶113

A copy of this order be furnished to Mr. K. Konwar learned Standing Counsel, P&RD Department and Mr. R. Talukdar, learned Junior Government Advocate, Assam for the purpose of taking necessary steps for compliance from their ends.

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JUDGE

¶115

Comparing Assistant

Ashish Nath v. the State of Assam and 3 Ors.

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Ashish Nath v. the State of Assam and 3 Ors.

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