PADMINI SINGHAversusTHE STATE OF ASSAM & OTHERS

                         [2018] 12 S.C.R. 235                               235


                         PADMINI SINGHA                                     A
                                   v.
                THE STATE OF ASSAM & OTHERS
                   (Civil Appeal No. 4677 of 2018)
                        SEPTEMBER 27, 2018                                  B
       [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 respondent
                                                                            C
no. 6, President of the concerned Panchayat in a meeting presided
over by the Block Development Officer (BDO) – Respondent no. 6
lost her Presidentship and the appellant, Vice President, was directed
to function as incharge President of the concerned Panchayat for
the time being– Writ petition filed by respondent no.6 challenging
the legal acceptability and validity of the resolution expressing want      D
of confidence against her, allowed– Held: On a plain reading of
the s.15(1), it is clear that the meeting has to be convened by the
Deputy Commissioner within a stipulated time and the said authority
has also been conferred the power to depute one Gazetted Officer
under him not below the rank of Class I Gazetted Officer to preside
                                                                            E
over the meeting – A mandatory provision of law requires strict
compliance but there are situations where even if a provision is
mandatory, non-compliance would not result in nullification of the
act – One such exception is, if a certain requirement or condition is
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 – In        F
the present case, respondent no. 6 who was a beneficiary attended
the meeting wherein voting had taken place and no public interest
was affected – Further, the BDO presided over the meeting and
everyone including respondent no.6 knew that the meeting was called
for passing a resolution either in favour of or against the No
                                                                            G
Confidence Motion – After losing in the voting process, the
procedure of calling the meeting was assailed – Having participated,
respondent no. 6 waived the condition precedent – Resolution
passed against respondent no. 6 valid – Waiver.

                                                                            H
                                  235
236            SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A           Allowing the appeal, the Court
            HELD: 1.1 On a plain reading of the Section 15(1), Assam
      Panchayat Act, 1994 it is crystal clear that the meeting has to be
      convened by the Deputy Commissioner within a stipulated time
      and the said authority has also been conferred the power to depute
B     one Gazetted Officer under him not below the rank of Class I
      Gazetted Officer to preside over the meeting. The said situation
      comes into existence after the Deputy Commissioner is informed
      to convene the meeting. [Para 9] [240-G]
            1.2 The resolution passed in the meeting on 31.03.2014
C     records that the respondent no. 6 was present in the meeting
      and signed. The meeting was held to discuss the Motion of No-
      Confidence. The respondent no. 6 who was a beneficiary attended
      the meeting and voting had taken place. It is well settled in law
      that a mandatory provision of law requires strict compliance but
      there are situations where even if a provision is mandatory, non-
D     compliance would not result in nullification of the act. There are
      certain exceptions. One such exception is, if a certain requirement
      or condition is 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. The ultimate result would be valid even if
E     the requirement or condition is not performed. In the obtaining
      fact situation, no public interest was affected. The Block
      Development Officer (BDO) presided over the meeting and every
      one knew that the meeting was called for passing a resolution
      either in favour of or against the No Confidence Motion. The
      respondent no. 6 knowing fully well participated in the meeting
F     and the resolution was passed against her. After losing in the
      voting process, the assail was made to the procedure of calling
      the meeting. Had the respondent no.6 not participated in the
      meeting, the matter would have been absolutely different. Having
      participated, it has to be held that the respondent no. 6 had waived
G     the condition precedent. The orders passed by the Single
      Judge as well as the Division Bench are set aside. The resolution
      passed against the respondent no. 6 is treated as valid.
      [Paras 11, 13 and 14] [241-F-G; 242-D-H; 243-A]


H
      PADMINI SINGHA v. STATE OF ASSAM & OTHERS                                237


      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4677                     A
of 2018.
      From the Judgment and Order dated 24.11.2017 of the Gauhati
High Court in Writ Appeal No. 310 of 2016.
      Pijush Kanti Roy, Mrs. Kakali Roy (for Rajan K. Chourasia),
Advs. for the Appellant.                                                       B

      The Judgment of the Court was delivered by
       DIPAK MISRA, CJI. 1. On 30.01.2014, the appellant along
with seven members of Masughat Gaon Panchayat submitted a No
Confidence Motion against the President, respondent no. 6 herein, and          C
for requisition of a special meeting to prove the majority of Gaon Panchayat
President as per Section 15(1) of the Assam Panchayat Act, 1994 (for
brevity, ‘the Act’). On 15.02.2014, the Secretary, Masughat Gaon
Panchayat forwarded the said requisition to the President, Borkhola
Anchalik Panchayat stating therein that the matter had already been put
up before the President, Masughat Gaon Panchayat on 07.02.2014 for             D
taking necessary action but she asked to wait due to some legal
complications. Since the stipulated period of calling a special meeting
was over, the petition was being referred for taking necessary action as
per provisions of the Act. By virtue of letter dated 26.02.2014, the
Block Development Officer (BDO), Borkhola Development Block                    E
referred the matter to the Deputy Commissioner, Cachar, Silchar stating
that he had already put the matter before the President of the concerned
Panchayat on 20.02.2014; that she stated to wait and that since the
stipulated period for calling a special meeting was over, the matter was
being referred to him for taking necessary action as per the Act.
                                                                               F
      2. On 17.03.2014, the Additional Deputy Commissioner, Cachar,
Silchar sent a communication to the BDO, Borkhola Development Block
which is as follows:-
      “No. CDO.1/2014/11           Dated, Silchar,
      the 17th March, 2014                                                     G
      To,
      The Block Development Officer,
      Borkhola Development Block.
                                                                               H
238            SUPREME COURT REPORTS                         [2018] 12 S.C.R.


A           Sub. Special Meeting of No Confidence Motion against the
            President Masughat GP.
            Ref.BDE/E-11/92-98/Pt.II/AP
            Establishment, Dated
            26-02-2014
B                  I am to return herewith the proposal submitted by you for
            convening a special meeting of No Confidence Motion against
            the G.P. President Masughat G.P. and request you to take necessary
            action as per provision laid down in the Assam Panchayat Raj
            Act, 1994 Sec. 15(1).
C                 The extract copy of relevant portion of the said Act
            Sec. 15(1) is enclosed herewith for favour of your kind necessary
            action.


D           Encl: As stated above                         A.R. Sheikh, ACS
                                          Addl. Deputy Commissioner (Dev.)
                                                    Chchar, Silchar”
             3. In compliance of the above communication, on 21.03.2014, the
      BDO wrote to the President, Masughat Gaon Panchayat informing her
E     to attend the special meeting of No Confidence to be convened on
      31.03.2014 at 12:30 p.m. in the office of the BDO. On 31.03.2014, the
      meeting was presided over by BDO. In the meeting, nine members cast
      their votes in favour of the No Confidence Motion and one member cast
      vote against the No Confidence Motion. Thus, the President, respondent
      no. 6 herein, lost her Presidentship and the Vice President, appellant
F     herein, was directed to function as incharge President of the concerned
      Panchayat for the time being.
             4. Being aggrieved by the passing of the No Confidence Motion
      against her, the respondent no. 6 herein filed a writ petition, being Writ
      Petition (Civil) No. 2051 of 2014, before the Gauhati High Court. In the
G     writ petition, she challenged the legal acceptability and validity of the
      resolution expressing want of confidence against her in a special meeting
      held on 31.03.2014. The learned single Judge of the High Court, vide
      judgment and order dated 09.08.2016, allowed the writ petition on the
      ground that vide letter dated 17.03.2014, the Deputy Commissioner,
H     instead of taking action in the matter, merely wrote back to the BDO to
      PADMINI SINGHA v. STATE OF ASSAM & OTHERS                               239
                  [DIPAK MISRA, CJI]

take steps in accordance with Section 15 of the Act and there was no          A
delegation of authority to the BDO to preside over the meeting. No
document had been produced showing delegation of authority. It was
the Deputy Commissioner who ought to have taken steps in terms of the
provisions of the Act by convening a meeting. A meeting convened and
presided over by an authority alien to the mandate postulated in Section
                                                                              B
15 of the Act could not sanctify the proceeding of a meeting. On this
foundation, the resolution adopted expressing no confidence against the
President was set aside and declared null and void.
       5. Being grieved by the judgment and order of the learned single
Judge, the appellant filed Writ Appeal (Civil) No. 310 of 2016 before the
Division Bench of the High Court which, by the impugned judgment and          C
order dated 24.11.2017, dismissed the Writ Appeal. The Division Bench
held that it is only the Deputy Commissioner who can convene the meeting
within seven days from the date of receipt of the information and Section
15 does not authorize the Deputy Commissioner to delegate his power
of convening the meeting to the BDO. The BDO can preside over the             D
meeting being a Gazetted officer only when the Deputy Commissioner
is unable to preside over the meeting and it is so conveyed by him. The
appellate Bench opined that as per Section 15 of the Act, the meeting
was to be convened by the Deputy Commissioner and no one else and
when law provides to do a certain thing in a certain way, the thing must
be done in that way or not at all. Being of this view, it concurred with      E
the opinion expressed by the learned single Judge and dismissed the
intra court appeal.
      6. In the present appeal by special leave, the appellant has assailed
the correctness of the impugned judgment.
                                                                              F
      7. Despite service of notice, there has been no appearance. We
have 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 President
      and Vice President:–                                                    G
      (1) Every President or Vice-President shall be deemed to have
      vacated his office forthwith when resolution expressing want of
      confidence in him is passed by a majority of two third of the total
      number of members of the Gaon Panchayat.
                                                                              H
240             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A                Such a meeting shall be specially convened by the Secretary
            of the Gaon Panchayat with approval of the President of the Gaon
            Panchayat. Such meeting shall be presided over by the President
            if the motion is against the Vice- President, and by the Vice-
            President, if the motion is against the President. In case such a
            meeting is not convened within a period of fifteen days from the
B
            date of receipt of notice, the Secretary of the Gaon Panchayat
            shall within three days, refer the matter to the President of the
            concerned Anchalik Panchayat, who shall convene the meeting
            within seven days from the date of receipt of the information
            from the Secretary of the Gaon Panchayat and preside over such
C           meeting.
                   In case the President of the Anchalik Panchayat does not
            take action as above, within the specified seven days time, the
            concerned Gaon Panchayat Secretary shall inform the matter to
            the Deputy Commissioner/Sub-Divisional Officer (Civil) as the
D           case may be within three days after the expiry of the stipulated
            seven days time and the concerned Deputy Commissioner/Sub-
            Divisional Officer (C) shall convene the meeting within seven
            days from the date of the receipt of the information with intimation
            to the Zilla Parishad and the Anchalik Panchayat and preside over
            the meeting so convened :
E
                  Provided that the concerned Deputy Commissioner/Sub-
            Divisional Officer (C) as the case may be, in case of his inability
            to preside over the meeting, may depute one Gazetted Officer
            under him not below the rank of Class-I Gazetted Officer to preside
            over such meeting:
F
                 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 that
      the meeting has to be convened by the Deputy Commissioner within a
G     stipulated time and the said authority has also been conferred the power
      to depute one Gazetted Officer under him not below the rank of Class I
      Gazetted Officer to preside over the meeting. The said situation comes
      into existence after the Deputy Commissioner is informed to convene
      the meeting. The Division Bench has observed, placing reliance on the
      communication of the Deputy Commissioner that he has not really
H
      PADMINI SINGHA v. STATE OF ASSAM & OTHERS                              241
                  [DIPAK MISRA, CJI]

convened the meeting and that apart, he has not delegated the power or       A
authority to the BDO to preside over the meeting. It has been further
held that the BDO at the most could have presided over the meeting
when the Deputy Commissioner was unable to preside over the meeting
so convened by him. But as the meeting was not convened, the whole
thing was illegal.
                                                                             B
       10. It may be noted that a ground has been taken in this appeal
before us that the beneficiary, namely, the respondent no. 6, had attended
the 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 his
communication dated 17.02.2014 and further, regarding the delegation         C
of authority to the BDO to preside over the meeting. The ultimate
conclusion that has been recorded by the learned single Judge is expressed
in para 22 of the judgment which reads thus:-
      “22. In view of the above discussions, the resolution adopted
      expressing no confidence against the petitioner is set aside and       D
      declared null and void. But the matter does not rest here. This
      Court cannot remain oblivious of the fact that a requisition for No
      Confidence Motion was given against the petitioner and expression
      of no confidence was negatived for procedural irregularities as
      mentioned above and, therefore, this Court will be failing in its      E
      duty in exercising power under Article 226 of the Constitution of
      India if this Court does not direct the petitioner to hold a meeting
      to decide the No Confidence Motion brought against her.”
       11. Interpreting Section 15 of the Act, the Division Bench opined
that the Deputy Commissioner has not acted as provided under Section         F
15. The resolution passed on 31.03.2014 which has been brought on
record as Annexure P-6 records that the respondent no. 6 was present
in the meeting and signed. In such a situation, the issue that emerges for
consideration is whether the ultimate resolution of the meeting could
have been discarded.
                                                                             G
      12. To appreciate the said aspect, it is appropriate to reproduce
the 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.
                                                                             H
242             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           At the outset of the meeting BDO asked the Members any opinion
            if they have. They replied that they want voting then by secret
            ballot voting is done. Ballot box is open at 1.30 p.m. After opening
            the Ballot Box as found 9 G.P. Members casted their votes for
            No-Confidence motion and 1 G.P. Member caste vote against
            the No-Confidence Motion. As per Assam Panchayat Act 2/3rd
B
            (section 15) majority of the total G.P. members should caste votes
            either in support of No-Confidence motion or against the
            No-Confidence motion. In this connection 2/3rd i.e., 7 members
            out of 10 members required. But after opening Ballot Box, it is
            found that 9 G.P. Members casted vote in favour of
C           No-Confidence Motion and 1 G.P. Member casted vote against
            the 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 function
            as i/c, President, Masughat G.P. for the time being.”
D            13. From the foregoing, it is quite vivid that the meeting was held
      to discuss the Motion of No-Confidence. The respondent no. 6 who was
      a beneficiary attended the meeting and voting had taken place. It is well
      settled in law that a mandatory provision of law requires strict compliance
      but there are situations where even if a provision is mandatory, non-
      compliance would not result in nullification of the act. There are certain
E     exceptions. One such exception is, if a certain requirement or condition
      is 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. The
      ultimate result would be valid even if the requirement or condition is not
      performed. We are disposed to think that in the obtaining fact situation,
F     no public interest was affected. The BDO presided over the meeting
      and every one knew that the meeting was called for passing a resolution
      either in favour of or against the No Confidence Motion. The respondent
      no. 6 knowing fully well participated in the meeting and the resolution
      was passed against her. After losing in the voting process, the assail
      was made to the procedure of calling the meeting. We are inclined to
G     think, had the respondent no. 6 not participated in the meeting, the matter
      would have been absolutely different. Having participated, it has to be
      held that the respondent no. 6 had waived the condition precedent.
            14. In view of the aforesaid premises, the appeal is allowed and
      the orders passed by the learned single Judge as well as the Division
H
      PADMINI SINGHA v. STATE OF ASSAM & OTHERS                              243
                  [DIPAK MISRA, CJI]

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


Divya Pandey                                               Appeal allowed.   B




                                                                             C




                                                                             D




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