IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.17740 of 2010
AWADHESH PRASAD .
Versus
THE STATE OF BIHAR & ORS .
For the Petitioner: Mr. N.K. Agrawal, Sr. Adv.
: Mr. Amresh Kumar Sinha, Adv.
For the State : Mr. Rajesh Kumar Sinha, Adv.
: Mr. Brajesh Kumar, A.C. to S.C.17.
For Respondent No.23: Najmul Hoda, Adv.
Arun Prasad, Adv.
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2/ 07/12/2010 Heard learned counsel for the petitioner, State
and for respondent No.23, one of the members of the
Panchayat, who has appeared suo motu.
The petitioner is stated to be the Up Pramukh
of the Asthawa Panchayat Samiti, Block- Asthawa,
District- Nalanda. He is aggrieved by the notice dated
20.10.2010 issued by the Executive Officer-cum-Block
Development Officer convening a special meeting on
28.10.2010 for discussion of the No Confidence Motion
tabled against him by the requisite number of members.
Learned counsel for the petitioner submits that
Section-44(3)(v) of the Bihar Panchayat Raj Act
(hereinafter referred to as the Panchayat Act) states the
reasons/charges on basis of which No Confidence Motion
has to be moved against the Up Pramukh shall be clearly
mentioned in the notice summoning the meeting for
consideration of the No Confidence Motion. The notice
dated 20.10.2010 does not meet the statutory
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requirements. It does not contain, mention or the reasons
and/or charges on which the No Confidence Motion was
proposed to be tabled. He submits that if the statutory
provisions require a particular act to be done in a
specified manner mentioned in the Statute Book, the act
can be done only in that manner and other modes of
performance are necessarily forbidden. The notice dated
20.10.2010 itself being illegal, the No Confidence Motion
passed on 28.10.2010 is clearly non est and the
respondents cannot be permitted to go ahead with the
fresh meeting on 11.12.2010 for election of a Pramukh
afresh.
Learned counsel for the State and respondent
No.23 point out that the notice does satisfy the
requirements of Section-46(4) of the Panchayat Act as it
gives clear seven days notice for the holding of the
meeting. Learned counsel for the respondents, however
find it difficult to satisfy the Court from the notice dated
20.10.2010 that it contains details of the
reasons/charges on basis of which No Confidence
Motion was proposed to be tabled.
Learned counsel for the State submits that if a
No Confidence Motion has been tabled on the Floor of the
House in the Panchayat, even if there be procedural
infirmities, only the Courts can interfere with the same,
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not the State Government.
This Court has come across more than one
order where the Block Development Officer-cum-Chief
Executive Officer in different Panchayats have issued
notices for convening special meeting to discuss a No
Confidence Motion without complying with the statutory
provisions, both with regard to the time period stipulated
in the Act for holding of the meeting as is required to be
mentioned in the notice and also the requirement of the
Law with regard to the contents of the notice as
discussed above. Those constituting the Panchayat at the
grassroots level may not necessarily have the same
educational background and understanding as a Block
Development Officer-cum-Chief Executive Officer who is
recruited after a competitive examination conducted by
the Bihar Public Service Commission. There is a
presumption that the Executive Officer understands the
Law and being able to read the statutory provisions is
aware of the nature of his powers, the manner of exercise
and limitations upon the same. If he is not, he may have
very serious questions to answer with regard to his own
employment and status.
A No Confidence Motion is tabled by members
of the Panchayat in an effort to make grassroots
democracy work. The Executive Officer throttles the same
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by issuing a notice in exercise of his Statutory powers in
teeth of the provisions notwithstanding the fact that he
has the benefit of a Government Pleader also in the
district and the level of understanding where a
presumption arises of his full awareness of his Statutory
powers. This Court has already discussed that the
Executive Officer is recruited through a competitive
public examination in which inheres a certain level of
intelligence.
This Court today on the record as it stands
could have directed stay of the notice dated 20.10.2010
and any further action taken or proposed to be taken in
pursuance thereof while issuing notice to the other
members of the Panchayat impleaded as private
respondents, as only one of them has appeared. At this
stage, the Court is not concerned with the correctness or
falsity of the No Confidence Motion that was proposed to
be moved. The Court is concerned with working of the
grassroots democracy. The Panchayat wants the
democracy to work, the Executive Officer by one stroke of
pen throttles it. The Court shall then grant stay.
Grassroots democracy shall not work till such time that
all the parties have appeared before this Court and filed
their affidavits. In the meantime, a person whom the
Panchayat does not want to function shall continue to
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function. Nothing stated herein shall mean any
indictment of the petitioner with regard to the No
Confidence Motion as it has already been observed
hereinabove that this Court is not concerned with the
correctness or incorrectness of the No Confidence Motion
which has to be tested on its own merits in the
Panchayat pursuant to a meeting summoned in
accordance with law. Perhaps, it is time for the State
Government to wake up and realize its duties to enable
grassroots democracy to work keeping in mind the
constitutional mandate.
No useful purpose is going to be served by
staying the operation of the orders, letting the writ
petition be pending here for years as similar writ petitions
will keep coming as they have kept coming.
Let the petitioner file an application before the
State Government under Section-154 of the Bihar
Panchayat Act. It vests power in the State Government on
its own motion or on an application made by any person
interested to call for and examine the records of a
Panchayat or a Standing Committee in respect of any
proceedings to satisfy itself as to the correctness, legality
or propriety of any decision or order passed therein or as
to the regularity of the said proceedings and take action
appropriately in accordance with law after hearing the
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concerned. This Court does not concur with the
submission on behalf of the State that Section-154 of the
Act does not empower the State Government to interfere
with grassroots democracy and motions tabled on the
Floor of the House notwithstanding the fact that they
may be in teeth of the statutory provisions and may
suffer from gross illegality and irregularity of proceedings.
The Court expects the State Government to take
appropriate action so that orders of the present nature do
not continue to be passed notwithstanding repeated
orders of this Court holding that such notices were illegal
in more than one case.
Liberty is granted to the petitioner to also seek
interim relief under Section-154(2) of the Act before the
State Government and which is required to be disposed
off without any delay before 11.12.2010 so as not to
frustrate his representation in view of the fresh elections
proposed to be held on 11.12.2010 in light of the present
discussion that the learned counsel for the State has not
been able to satisfy the Court that the notice dated
20.10.2010 based on the recitals contained therein fulfils
the requirement of Section-44(3)(v) of the Panchayat Act.
Learned counsel for the State submits that the
petitioner may be advised to file his application before the
Principal Secretary, Department of Panchayati Raj,
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Government of Bihar.
The writ application stands disposed with the
aforesaid observations and directions.
KC ( Navin Sinha, J.)