PADMINI SINGHA versus THE STATE OF ASSAM & OTHERS on 27 September 2018

[2018] 12 S.C.R. 235

PADMINI SINGHA

v.

THE STATE OF ASSAM & OTHERS

(Civil Appeal No. 4677 of 2018)

SEPTEMBER 27, 2018

[DIPAK MISRA, CJI, A.M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Assam Panchayat Act, 1994– s.15(1)– Mandatory provision–Waiver of – No Confidence Motion passed against respondentno. 6, President of the concerned Panchayat in a meeting presidedover by the Block Development Officer (BDO) – Respondent no. 6lost her Presidentship and the appellant, Vice President, was directedto function as incharge President of the concerned Panchayat forthe time being– Writ petition filed by respondent no.6 challengingthe legal acceptability and validity of the resolution expressing wantof confidence against her, allowed– Held: On a plain reading ofthe s.15(1), it is clear that the meeting has to be convened by theDeputy Commissioner within a stipulated time and the said authorityhas also been conferred the power to depute one Gazetted Officerunder him not below the rank of Class I Gazetted Officer to presideover the meeting – A mandatory provision of law requires strictcompliance but there are situations where even if a provision ismandatory, non-compliance would not result in nullification of theact – One such exception is, if a certain requirement or condition isprovided 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 – Inthe present case, respondent no. 6 who was a beneficiary attendedthe meeting wherein voting had taken place and no public interestwas affected – Further, the BDO presided over the meeting andeveryone including respondent no.6 knew that the meeting was calledfor passing a resolution either in favour of or against the NoConfidence Motion – After losing in the voting process, theprocedure of calling the meeting was assailed – Having participated,respondent no. 6 waived the condition precedent – Resolutionpassed against respondent no. 6 valid – Waiver.

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AAllowing the appeal, the Court

HELD: 1.1 On a plain reading of the Section 15(1), AssamPanchayat Act, 1994 it is crystal clear that the meeting has to beconvened by the Deputy Commissioner within a stipulated timeand the said authority has also been conferred the power to deputeBone Gazetted Officer under him not below the rank of Class IGazetted Officer to preside over the meeting. The said situationcomes into existence after the Deputy Commissioner is informedto convene the meeting. [Para 9] [240-G]

Conclusion

1.2 The resolution passed in the meeting on 31.03.2014Crecords that the respondent no. 6 was present in the meetingand signed. The meeting was held to discuss the Motion of No-Confidence. The respondent no. 6 who was a beneficiary attendedthe meeting and voting had taken place. It is well settled in lawthat a mandatory provision of law requires strict compliance butthere are situations where even if a provision is mandatory, non-Dcompliance would not result in nullification of the act. There arecertain exceptions. One such exception is, if a certain requirementor condition is provided in a statute for the benefit or interest ofa particular person, the same can be waived by him if no publicinterest is involved. The ultimate result would be valid even ifEthe requirement or condition is not performed. In the obtainingfact situation, no public interest was affected. The BlockDevelopment Officer (BDO) presided over the meeting and everyone knew that the meeting was called for passing a resolutioneither in favour of or against the No Confidence Motion. Therespondent no. 6 knowing fully well participated in the meetingFand the resolution was passed against her. After losing in thevoting process, the assail was made to the procedure of callingthe meeting. Had the respondent no.6 not participated in themeeting, the matter would have been absolutely different. Havingparticipated, it has to be held that the respondent no. 6 had waivedGthe condition precedent. The orders passed by the SingleJudge as well as the Division Bench are set aside. The resolutionpassed against the respondent no. 6 is treated as valid.[Paras 11, 13 and 14] [241-F-G; 242-D-H; 243-A]

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4677of 2018.

From the Judgment and Order dated 24.11.2017 of the GauhatiHigh Court in Writ Appeal No. 310 of 2016.

Pijush Kanti Roy, Mrs. Kakali Roy (for Rajan K. Chourasia),Advs. for the Appellant.

The Judgment of the Court was delivered by DIPAK MISRA, CJI. 1. On 30.01.2014, the appellant alongwith seven members of Masughat Gaon Panchayat submitted a NoConfidence Motion against the President, respondent no. 6 herein, andfor requisition of a special meeting to prove the majority of Gaon PanchayatPresident as per Section 15(1) of the Assam Panchayat Act, 1994 (forbrevity, ‘the Act’). On 15.02.2014, the Secretary, Masughat GaonPanchayat forwarded the said requisition to the President, BorkholaAnchalik Panchayat stating therein that the matter had already been putup before the President, Masughat Gaon Panchayat on 07.02.2014 fortaking necessary action but she asked to wait due to some legalcomplications. Since the stipulated period of calling a special meetingwas over, the petition was being referred for taking necessary action asper provisions of the Act. By virtue of letter dated 26.02.2014, theBlock Development Officer (BDO), Borkhola Development Blockreferred the matter to the Deputy Commissioner, Cachar, Silchar statingthat he had already put the matter before the President of the concernedPanchayat on 20.02.2014; that she stated to wait and that since thestipulated period for calling a special meeting was over, the matter wasbeing 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 Blockwhich is as follows:- “No. CDO.1/2014/11Dated, Silchar,the 17[th] March, 2014

To,The Block Development Officer,Borkhola Development Block.

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ASub. Special Meeting of No Confidence Motion against thePresident Masughat GP.

Ref.BDE/E-11/92-98/Pt.II/APEstablishment, Dated 26-02-2014

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I am to return herewith the proposal submitted by you forconvening a special meeting of No Confidence Motion againstthe G.P. President Masughat G.P. and request you to take necessaryaction as per provision laid down in the Assam Panchayat RajAct, 1994 Sec. 15(1).

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The extract copy of relevant portion of the said ActSec. 15(1) is enclosed herewith for favour of your kind necessaryaction.

Encl: As stated aboveD

A.R. Sheikh, ACS

Addl. Deputy Commissioner (Dev.) Chchar, Silchar”

3. In compliance of the above communication, on 21.03.2014, theBDO wrote to the President, Masughat Gaon Panchayat informing herEto attend the special meeting of No Confidence to be convened on31.03.2014 at 12:30 p.m. in the office of the BDO. On 31.03.2014, themeeting was presided over by BDO. In the meeting, nine members casttheir votes in favour of the No Confidence Motion and one member castvote against the No Confidence Motion. Thus, the President, respondentno. 6 herein, lost her Presidentship and the Vice President, appellantFherein, was directed to function as incharge President of the concernedPanchayat for the time being.

4. Being aggrieved by the passing of the No Confidence Motionagainst her, the respondent no. 6 herein filed a writ petition, being WritPetition (Civil) No. 2051 of 2014, before the Gauhati High Court. In theGwrit petition, she challenged the legal acceptability and validity of theresolution expressing want of confidence against her in a special meetingheld on 31.03.2014. The learned single Judge of the High Court, videjudgment and order dated 09.08.2016, allowed the writ petition on theground that vide letter dated 17.03.2014, the Deputy Commissioner,instead of taking action in the matter, merely wrote back to the BDO toH

take steps in accordance with Section 15 of the Act and there was nodelegation of authority to the BDO to preside over the meeting. Nodocument had been produced showing delegation of authority. It wasthe Deputy Commissioner who ought to have taken steps in terms of theprovisions of the Act by convening a meeting. A meeting convened andpresided over by an authority alien to the mandate postulated in Section15 of the Act could not sanctify the proceeding of a meeting. On thisfoundation, the resolution adopted expressing no confidence against thePresident was set aside and declared null and void.

5. Being grieved by the judgment and order of the learned singleJudge, the appellant filed Writ Appeal (Civil) No. 310 of 2016 before theDivision Bench of the High Court which, by the impugned judgment andorder dated 24.11.2017, dismissed the Writ Appeal. The Division Benchheld that it is only the Deputy Commissioner who can convene the meetingwithin seven days from the date of receipt of the information and Section15 does not authorize the Deputy Commissioner to delegate his powerof convening the meeting to the BDO. The BDO can preside over themeeting being a Gazetted officer only when the Deputy Commissioneris unable to preside over the meeting and it is so conveyed by him. Theappellate Bench opined that as per Section 15 of the Act, the meetingwas to be convened by the Deputy Commissioner and no one else andwhen law provides to do a certain thing in a certain way, the thing mustbe done in that way or not at all. Being of this view, it concurred withthe opinion expressed by the learned single Judge and dismissed theintra court appeal.

6. In the present appeal by special leave, the appellant has assailedthe correctness of the impugned judgment.

7. Despite service of notice, there has been no appearance. Wehave heard Mr. Pijush Kanti Roy, learned counsel for the appellant.

8. The relevant part of Section 15 reads as follows:- “Section 15 - No confidence motion against the Presidentand Vice President:–

(1) Every President or Vice-President shall be deemed to havevacated his office forthwith when resolution expressing want ofconfidence in him is passed by a majority of two third of the totalnumber of members of the Gaon Panchayat.

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Such a meeting shall be specially convened by the Secretaryof the Gaon Panchayat with approval of the President of the GaonPanchayat. Such meeting shall be presided over by the Presidentif the motion is against the Vice- President, and by the Vice-President, if the motion is against the President. In case such ameeting is not convened within a period of fifteen days from thedate of receipt of notice, the Secretary of the Gaon Panchayatshall within three days, refer the matter to the President of theconcerned Anchalik Panchayat, who shall convene the meetingwithin seven days from the date of receipt of the informationfrom the Secretary of the Gaon Panchayat and preside over suchmeeting.

In case the President of the Anchalik Panchayat does nottake action as above, within the specified seven days time, theconcerned Gaon Panchayat Secretary shall inform the matter tothe Deputy Commissioner/Sub-Divisional Officer (Civil) as thecase may be within three days after the expiry of the stipulatedseven days time and the concerned Deputy Commissioner/Sub-Divisional Officer (C) shall convene the meeting within sevendays from the date of the receipt of the information with intimationto the Zilla Parishad and the Anchalik Panchayat and preside overthe meeting so convened :

Provided that the concerned Deputy Commissioner/Sub-Divisional Officer (C) as the case may be, in case of his inabilityto preside over the meeting, may depute one Gazetted Officerunder him not below the rank of Class-I Gazetted Officer to presideover such meeting:

Provided further that when a non-confidence motion is lost,no such motion shall be allowed in the next six months.”

9. On a plain reading of the said provision, it is crystal clear thatthe meeting has to be convened by the Deputy Commissioner within astipulated time and the said authority has also been conferred the powerto depute one Gazetted Officer under him not below the rank of Class IGazetted Officer to preside over the meeting. The said situation comesinto existence after the Deputy Commissioner is informed to convenethe meeting. The Division Bench has observed, placing reliance on thecommunication of the Deputy Commissioner that he has not really convened the meeting and that apart, he has not delegated the power orauthority to the BDO to preside over the meeting. It has been furtherheld that the BDO at the most could have presided over the meetingwhen the Deputy Commissioner was unable to preside over the meetingso convened by him. But as the meeting was not convened, the wholething was illegal.

10. It may be noted that a ground has been taken in this appealbefore us that the beneficiary, namely, the respondent no. 6, had attendedthe meeting. On a perusal of the judgment of the learned single Judge,we do not notice that any such assertion was made. The entire discussion,as we find, relates to what is meant by the Deputy Commissioner by hiscommunication dated 17.02.2014 and further, regarding the delegationof authority to the BDO to preside over the meeting. The ultimateconclusion that has been recorded by the learned single Judge is expressedin para 22 of the judgment which reads thus:-

“22. In view of the above discussions, the resolution adoptedexpressing no confidence against the petitioner is set aside anddeclared null and void. But the matter does not rest here. ThisCourt cannot remain oblivious of the fact that a requisition for NoConfidence Motion was given against the petitioner and expressionof no confidence was negatived for procedural irregularities asmentioned above and, therefore, this Court will be failing in itsduty in exercising power under Article 226 of the Constitution ofIndia if this Court does not direct the petitioner to hold a meetingto decide the No Confidence Motion brought against her.”

11. Interpreting Section 15 of the Act, the Division Bench opinedthat the Deputy Commissioner has not acted as provided under Section15. The resolution passed on 31.03.2014 which has been brought onrecord as Annexure P-6 records that the respondent no. 6 was presentin the meeting and signed. In such a situation, the issue that emerges forconsideration is whether the ultimate resolution of the meeting couldhave been discarded.

12. To appreciate the said aspect, it is appropriate to reproducethe content of the resolution. It reads thus:- “The meeting is presided over by Shri Kishore Baruah, BDO,Borkhola Development Block as per Assam Panchayat Act, 1994.

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AAt the outset of the meeting BDO asked the Members any opinionif they have. They replied that they want voting then by secretballot voting is done. Ballot box is open at 1.30 p.m. After openingthe Ballot Box as found 9 G.P. Members casted their votes forNo-Confidence motion and 1 G.P. Member caste vote againstthe No-Confidence Motion. As per Assam Panchayat Act 2/3[rd]B(section 15) majority of the total G.P. members should caste voteseither in support of No-Confidence motion or against theNo-Confidence motion. In this connection 2/3[rd] i.e., 7 membersout of 10 members required. But after opening Ballot Box, it isfound that 9 G.P. Members casted vote in favour ofCNo-Confidence Motion and 1 G.P. Member casted vote againstthe No-Confidence Motion. As a result of which Rita Rani Dusad,President, Masughat G.P. lost her Presidentship and as per Act,Vice President Masughat G.P. will act and perform and functionas i/c, President, Masughat G.P. for the time being.”

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D13. From the foregoing, it is quite vivid that the meeting was heldto discuss the Motion of No-Confidence. The respondent no. 6 who wasa beneficiary attended the meeting and voting had taken place. It is wellsettled in law that a mandatory provision of law requires strict compliancebut there are situations where even if a provision is mandatory, non-compliance would not result in nullification of the act. There are certainEexceptions. One such exception is, if a certain requirement or conditionis 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. Theultimate result would be valid even if the requirement or condition is notperformed. We are disposed to think that in the obtaining fact situation,Fno public interest was affected. The BDO presided over the meetingand every one knew that the meeting was called for passing a resolutioneither in favour of or against the No Confidence Motion. The respondentno. 6 knowing fully well participated in the meeting and the resolutionwas passed against her. After losing in the voting process, the assailwas made to the procedure of calling the meeting. We are inclined toGthink, had the respondent no. 6 not participated in the meeting, the matterwould have been absolutely different. Having participated, it has to beheld that the respondent no. 6 had waived the condition precedent.

14. In view of the aforesaid premises, the appeal is allowed andthe orders passed by the learned single Judge as well as the DivisionH

Bench are set aside. The resolution passed against the respondent no. 6is treated as valid. The competent authority is directed to carry out theconsequences of the resolution. In the facts and circumstances of thecase, there shall be no order as to costs.

Divya Pandey

Appeal allowed.

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