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Chandeshwar Prasad And Anr. vs The State Of Bihar And Ors. on 1 November, 2001

Patna High Court
Chandeshwar Prasad And Anr. vs The State Of Bihar And Ors. on 1 November, 2001
Equivalent citations: 2001 (3) BLJR 2345
Author: N Rai
Bench: N Rai


JUDGMENT

Nagendra Rai, J.

1. The two petitioners, who were duly elected as Pramukh and Up-pramukh, respectively, of Minapur Panchayat Samiti, have filed the present writ application for quashing the resolution dated 4-9-2001 (Annexure 4) taken in the meeting of the Panchayat Samiti in question, whereby no confidence motion has been passed against them by 21 votes.

2. The facts necessary for disposal of the present writ application are that on 19-6-2001, an election was held, in which petitioner No. 1 Chandeshwar Prasad was elected as Pramukh and petitioner No. 2 Krishnadeo Prasad was elected as Up-pramukh of the said Panchayat Samiti. They took charge of the aforesaid posts and started functioning thereon. It is to be stated that up-till now there is no devolution of power and function to the Panchayat Samitis. respondent No. 5, namely, Suresh Rai, a member of the said Panchayat Samiti, was the candidate for the post of Pramukh and was defeated. According to the petitioners, respondent No. 5 with a view to remove the petitioners started manoeuvring everything from the very beginning. He obtained signatures of some of the members and without asking the petitioner No. 1, who is Pramukh, to convene a special meeting for considering the no confidence motion, filed a petition before the Sub-Divisional Magistrate and, thereafter a so-called meeting was convened by the Executive Officer of the Panchayat Samiti by notice dated 24-8-2001 for holding a meeting to consider the no confidence motion against the Pramukh and Up-pramukh on 4-9-2001 at 11 A.M. In the said meeting, the petitioners also participated and petitioner No. 1 requested for a discussion before passing of the no confidence motion, where he could have raised question regarding the validity of the meeting and other things, but he was not allowed to do so by respondent No. 6 Maheshwar Singh, who was nominated by the members present there on 4-9-2001 to preside over the meeting of the special meeting convened for the purpose of considering the no confidence motion.

3. The petitioners have challenged the said decisions on the following grounds. The meeting was convened by the Block Development Officer, who was not notified as the Executive Officer of the Panchayat Samiti. The procedures as prescribed for holding the meetings for passing of no confidence motion under Section 44(3) and (4) of the Bihar Panchayat Raj Act, 1993 (hereinafter referred to as ‘the Act’) have not been followed, as a result of which the issuance of notice for holding special meeting on 4-9-2001 to consider the matter of no confidence motion and the decision taken in the meeting on the said date are vitiated in law.

4. Respondents No. 5 to 25 have filed counter-affidavit and supplementary counter-affidavit. No affidavit has been filed by the State and its officers. Their stand is that the Block Development Officer is an officer of the rank of Deputy Collector and by the Government notification dated 23-12-1993 he has been declared as Executive Officer and the Government has reiterated the aforesaid decision vide notification dated 16-8-2001. Copies of the said notifications have been appended as Annexures ‘A’ and ‘B’ respectively, to the counter-affidavit. In view of the aforesaid notifications, respondent No. 4 the Block Development Officer, who is an officer of the rank of Deputy Collector, is the Executive Officer of the Minapur Panchayat Samiti and he is functioning as such. After election, the petitioners started behaving eratically and against the people’s interest, as a result of which 20 elected members gave a notice for calling a special meeting to consider the questin of no confidence motion against the petitioners, but the petitioners declined to call the special meeting. In support of the said fact, copies of the certificates of posting have been Annexed as Annexures D and D/A to the counter-affidavit. On 14-8-2001, 21 elected members gave notice of the aforesaid resolution to the Block Development Officer-cum-Executive Officer for calling a special meeting to consider the no confidence motion against the Pramukh and Up-pramukh, with copies thereof to the Sub-Divisional Officer, East Muzaffarpur as well as to the petitioners. A copy of the proposed resolution dated 14-8-2001 has been annexed as Annexure ‘E’ to the counter-affidavit. On 24-8-2001, the Executive Officer issued a notice to the members of the Panchayat Samiti to hold a special meeting under Section 44(4) of the Act on 4-9-2001, on which date a meeting was held to consider the no confidence motion against the petitioners, respondent No. 6 Maheshwar Prasad a member of the said Panchayat Samiti, was elected to preside over the meeting and no confidence motion was moved and in the meeting 21 members out of the total strength of 40, voted in favour of the no confidence motion and 15 members voted in favour of the petitioners and, accordingly, a resolution was passed. The District Magistrate-cum-District Election Officer, (Panchayat), Muzaffarpur, on 8-9-2001 forwarded the said resolution to the State Election Commission for further direction and, thereafter, the Sub-Divisional Officer, East Muzaffarpur, was directed to hold meeting for election to the posts of Pramukh and Up-pramukh, for which 16-10-2001 was fixed as the date for holding the election.

5. Learned Counsel for the petitioners submitted that no Executive Officer of the said Panchayat Samiti has been appointed and in that view of the matter the calling of the special meeting for discussing the no confidence motion against the petitioners by the Block Development Officer is invalid, as a result of which the meeting held on 4-9-2001 is illegal and invalid. He further submitted that at no point of time any request was made by the members of the Panchayat Samiti to the Pramukh or to the Up-pramukh to call a meeting for discussion of no confidence motion against them, and, on the other hand, they directly made requests to the Executive Officer and the Sub-Divisional Magistrate to call a special meeting for discussion of no confidence motion, which is in breach of the provisions contained in Section 44(3) of the Act.

6. Learned Counsel appearing for respondent Nos. 5 to 25, on the other hand, submitted that the Block Development Officer (respondent No. 4) is of the rank of Deputy Collector and he has been notified as the Executive Officer of the Panchayat Samiti and in support of the same he has relied upon the notifications contained in Annexures ‘A’ and ‘B’ to the counter-affidavit. He also submitted that the request was made by 21 members, which is more than the requisite number in terms of Section 44(3) of the Act to the petitioner No. 1 Pramukh to call a meeting to consider the no confidence motion and when they failed then a request was made to the Executive Officer, who called a special meeting in terms of Section 44 of the Act and, thereafter, a meeting was held, wherein the majority of members passed a resolution of no confidence motion against the petitioners.

7. So far as the first point raised by the petitioners is concerned, the same is devoid of any substance. Annexures ‘A’ and ‘B’ to the counter-affidavit clearly show that the Block Development Officer of the rank of Deputy Collector has been declared as Executive Officer of the Panchayat Samiti and as such respondent No. 4 being an officer of the rank of Deputy Collector is an Executive Officer of the Panchayat Samiti in question.

8. To appreciate the second point urged on behalf of the petitioners, it is necessary to refer the provisions of the Act having bearing on the question. Section 42 (3) of the Act provides that a Pramukh or Up-pramukh of the Panchayat Samiti shall be deemed to have vacated his office for which if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the Panchayat at a meeting specially convened for the purpose. Section 44 of the Act deals with the meetings of Panchayat Samiti and it speaks of two types of meetings, namely, (i) ordinary meeting, which is to be called at least once in two months and (ii) special meeting. Sub-section (3) thereof provides, inter-alia, that the Pramukh may, whenever he thinks fit, shall, upon the written request of not less than one-third of the total number of members and on a date within fifteen days from the receipt of such request, call a special meeting. Such request shall specify the object for which the meeting is proposed to be called. In case the Pramukh fails to call a special meeting, the Up-pramukh or one-third of the total number of members may call the special meeting for a day not more than fifteen days after presentation of such request and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting. Sub-section (4) thereof provides, inter-alia, that in a case of special meeting, seven days’ clear notice specifying the time on which the meeting is to be held and the business to be transacted thereat, shall be sent to the members and pasted up at the office of the Panchayat Samiti. In the case of special meeting, such notice shall include any motion or proposition mentioned in the written request made for such meeting. Sub-section (6) thereof postulates that every meeting is to be presided over by the Pramukh or if he is absent by the Up-Pramukh and if both are absent or if the Pramukh is absent and there is no Up-Pramukh the members present shall elect one from among themselves to preside. Sub-section (9) thereof provides that if the person presiding the meeting has pecuniary or personal interest in the matter under discussion or if a motion to that effect be carried, he shall not preside at the meeting during such discussion or vote on or take part in it.

9. Thus, a conspectus of the aforesaid provisions makes it clear that a special meeting has to be convened considering the no confidence motion when at least one-third members of the total number of members makes a request specifying the object, for which the meeting is proposed to be called and if the Pramukh fails to call a special meeting, the Up-Pramukh or one-third of the total number of members may call a special meeting within the time as mentioned therein and require the Executive Officer to take appropriate action in the said direction. While sending a notice for special meeting, the motion or proposition mentioned in the written request of the members should be also mentioned in the notice. The question for consideration in this case is as to whether the procedures have been followed or not?

10. Once office-bearers are elected to the Panchayats or Panchayat Samitis, they can resign or can be removed from the office in the manner as prescribed under Section 42 of the Act. The meeting called to express want of confidence against them results in removal of the office-bearers from the office, and for that elaborate procedures have been provided under the Act. Such procedures are to be strictly and substantively followed. If there is any substantial breach of the provisions contained in Section 44(3) of the Act, then the decision taken in the special meeting will be vitiated. According to the petitioners, no notice by the one-third or more of the total number of members making a request for holding a special meeting for expressing want of confidence in them was ever served on the Pramukh or Up-Pramukh. The respondents No. 5 to 25 have asserted in their counter-affidavit that such notices were sent to the petitioners and in support of the same they have only annexed the certificates of posting as Annexures D and D/A to the counter-affidavit. No copy of the request mentioning the purpose for calling the special meeting has been annexed to show that any such request was made to the Pramukh or Up-pramukh. They have also not annexed any notice/request addressed to the Executive Officer of the said Panchayat Samiti and only documents Annexed by them are Annexures E and E/1 – the letters addressed to the Sub-Divisional Officer signed by 21 members requesting him to call a special meeting for expressing want of confidence in the petitioners.

11. The surprising feature to be noticed is that in the said notices (Annexures E and E/1 to the counter-affidavit) there is neither any whisper nor any mention of the fact that prior to sending a request by the members of the Panchayat Samiti to the Sub-Divisional Officer, any such request was made to the Pramukh or Up-pramukh i.e. the petitioners. Thus, the stand taken by the respondents that a request was made to the petitioners in terms of Section 44(3) of the Act to convene a special meeting for expressing want of confidence in them cannot be accepted. This apart, though their assertion is that a request was made to the Executive Officer, but no such document has been appended. The notice sent to the members calling a special meeting for expressing want of confidence in the petitioners has been annexed as Annexure T to the writ application. It only mentions about the date fixed and the purpose of the said meeting. The motion or proposition mentioned in the written request of the members as required to be stated in the notice in terms of Section 44(4) of the Act have also not been given in the notice.

12. Thus, there is no compliance of the requirements of calling of special meeting as provided under Section 44(3) and (4) of the Act and, accordingly, the very notice issued by the Executive Officer fixing a special meeting for considering the no confidence motion against the petitioners is invalid in law. In the meeting held on 4-9-2001, the petitioners were present. They wanted to have a discussion on the point before expressing want of confidence in them but they were not allowed to speak, which is evident from the proceeding itself. Had they been allowed to have a say in the meeting then they would have pointed out these defects about non-observance of provisions as enshrined in Section 44(3) and (4) of the Act, but they were not allowed to do so. Therefore, the procedure as prescribed for convening a special meeting for expressing want of confidence in the petitioners was not valid at all and on this ground alone, the notice, as contained in Annexure 1 and the decision taken in the meeting held on 4-9-2001, as contained in Annexure 4, are vitiated in law and, accordingly, they are quashed. However, quashing of the resolution/decision expressing want of confidence in the petitioners will not preclude the members of the Panchayat Samiti in question from taking fresh steps for expressing want of confidence in the petitioners in accordance with law.

13. In the result, this writ application stands allowed.

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