Zainal Haque Ansari v. State Of Bihar — 1991 DIGILAW 455 (PAT)

Judgment S. B. Sinha, J. 1. The petitioner in this application has sought for issuance of an appropriate writ for quashing of a resolution of the Executive Committee of ararha Gram Panchayat dated 15-1-1991 as contained in Annexure-2 to the writ application whereby and whereunder a no-confidence motion was passed against the petitioner as Mukhiya of the said Gram Panchayat and also for quashing of the order as contained in letter dated 29-1-1991 issued by respondent No 2 to respondent No.4 whereby the petitioner was removed from the post of Up-Mukhiya and respondent No.3 was elected as up Mukhiya. 2. The fact of the matter lies in a very narrow compass and are not at all in dispute, 3. The petitioner was elected Up Mukhiya by the Executive Committee in a meeting held in June, 1978. The Mukhiya of the aforementioned Gram panchayat died on 22-12-1989 and in terms of the provisions contained in section 11 A (1) of the Bihar Panchayat Raj Act, 1947 , the petitioner began discharging the functions of the Mukhiya till a new Mukhiya was elected. The Executive Committee by reason of a resolution taken in a meeting held on 15-1-1991 and as contained in Annexure-2 to the writ application, adopted a resolution of no-confidence against the petitioner as Up Mukhiya. By reason of the said resolution, allegedly respondent No.4 was also elected to act as Up Mukhiya 4. Respondent No.2 purported to be in terms of the aforementioned resolution informed the petitioner that he is no longer the Up Mukhiya and the respondent No.3 shall exercise the powers and duties of Up Mukhiya. 5. Mr. S. Anwar learned counsel appearing for the petitioner has raised two contentions in support of this application, Learned counsel firstly submitted that the resolution as contained in Annexure-2 passed by the executive Committee and the decision of the respondent no.2 approving the same is wholly illegal and without jurisdiction Learned counsel next contended that a duly elected Up Mukhiya cannot be removed by a resolution of vote of no-confidence, as, such power is vested only in Gram Panchayat upon complying with the mandatory provisions of Sec.13 of the Bihar panchayat Raj Act. 6. 6. Bihar Panchayat Raj Act 1947 (hereinafter to be referred to for the sake of brevity as the said Act) was enacted to establish the develop local self Government in the village communities of the Province of Bihar. executive Committee* has been defined in Sec.2 (e) to mean :- "the Executive Committee of the Grain Panchayat consisting of the mukhiya elected under Sec.10 and the members appointed under Sec.11. " mukbiya has been defined in Sec.2 (j) to mean. "the head of the Executive Committee elected under Sec.10" the provisions relating to election of Up Mukhiya and his powers and duties were contained in Sec.11-A of the said Act which reads as follows :- "election of Up Mukhiya and his power and duties :- (1) The members of the Executive Committee shall elect in the prescribed manner, one of their members to be the Up Mukhiya. (2) The Mukhiya may with the approval of the Executive Committee delegate all or any of his duties and powers to the Up Mukhiya and may at any time with the like approval withdraw or modify the same. " (3) The Up Mukhiya shall during the vacancy in the office of the mukhiya, or due to the incapacity or temporary absence of the mukhiya perform all his duties and exercise all his powers and at any other time perform any duty and exercise any power delegated to him by the mukhiya under sub-section (2 ). " The procedure for election of an Up Mukhiya has been prescribed in rule 57 of the Bihar Gram Pancbayat Election Rules. 7 The said Act, however, was amended by Act No. VII of 1990 and section 11-A (i) was deleted and renumbered as 12 (ka) thereof. By reason of the said Bihar Act No. VII of 1990 sub-section (3) of section 13 has been deleted 8. Section 13 of the said Act as it now stands after enactment of Bihar act No. VII of 1990 reads as follows:- It is not in dispute that election of Mukhiya has not yet taken place in terms of sub-section (5) of Sec.13 of the said Act. Section 13 of the said Act as it now stands after enactment of Bihar act No. VII of 1990 reads as follows:- It is not in dispute that election of Mukhiya has not yet taken place in terms of sub-section (5) of Sec.13 of the said Act. 9 In view of the fact that sub-section (3) of Sec.13 of the Bihar panchayat Raj Act has been deleted, it is evident that the petitioner could not have been removed from the post of Mukhiya on the basis of a no-confidence motion passed on a resolution in the prescribed manner by a majority of not less than 2/3rd of the total membership of the Executive committee. 10. In this view of the matter, there cannot be any doubt whatsoever that the petitioner could have been removed from the post of Mukhiya and/or up-Mukchiya only in a specially convened meeting of Gram Panchayat as contemplated under sub-section (I) of Sec.13 f the said Act. 11. No counter affidavit has been filed on behalf of the State. However, a counter affidavit has been filed on behalf of respondent no.3. In the said counter affidavit, also it has not been nor could be contended that the impugned resolution dated 15-1-1991 was passed by the Gram Panchayat in a meeting specially convened for the purpose. It is also not the case of the state and/or respondent no.3 that prior to passnig of the impugned order dated 29-1-1991 the State Government had adopted the procedure laid down under sub-section (2) of Sec.13 of the said Act. 12. It is, therefore, clear that on the admitted facts, the impugned resolution dated 15-1-1991 as contained in Annexure-2 as also the order of the State Government dated 19 1-1991 is wholly illegal and without jurisdiction. 13. Learned Government Pleader no.2 appearing 00 behalf of the state fairly conceded that the impugned resolution and the order as contained in Annexures-2 and 3 to the writ application are not sustainable in law. 14. Mr. V. P. Singh learned counsel appearing on behalf of respondent no 3, however submitted that on the basis of Sec.12 (2) (ka) that the petitioner could not have continued to function as Mukhiya for a period exceeding six months. Sec.12 (2) (ka) reads as follows : - 15. 14. Mr. V. P. Singh learned counsel appearing on behalf of respondent no 3, however submitted that on the basis of Sec.12 (2) (ka) that the petitioner could not have continued to function as Mukhiya for a period exceeding six months. Sec.12 (2) (ka) reads as follows : - 15. From a bare perusal of the aformentioned provision it is evident that the same has no application in the facts and circumstances of this case inasmuch as it has not been disputed that the post of Mukhiya has not yet been filled up by holding an election as provided for under Sec.13 (5) of the Act. 16. In any view of the matter, by reason of Annexure-3 to the writ application, the petitioner could not have been removed from the post of up-Mukhiya on the basis of no-confidence motion dated 15-1-1991. 17. Mr. Singh, thereafter, submitted that in terms of Sec.19 of the Bihar and Orissa General Clauses Act, the Executive Committee could have removed the petitioner from the post of Up-Mukhiya as he was elected to that post by the said Committee. 18. The contention of Mr Singh is fallacious. Sec.19 of the Bihar and Orissa General Clauses Act can by no stretch of imagination be said to have any application whatsoever in the facts and circumstances of this case. The procedure to elect an Up-Mukhiya of a Gram Panchayat as also the procedure to remove him has been laid down in the said Act itself. The petitioner, therefore, could have been removed from the post of Mukhiya/up-Mukhiya only upon strict compliance of the provisions contained in Sec.13 of the said Act and not otherwise. 19. Evidently the petitioner was removed and respondent no.3 was sought to be elected be elected as an Up-Mukhiya in a general meeting by reason of a resolution of no-confidence. 20. Section 13 (3) as it stood prior to enactment of Act No. VIJ of 1990 being no longer in existence, the same could not have been taken recourse to at all. It is now well known that this Court cannot supply cautious-omissus. 21. Mr. Singh thereafter submitted that in any event as respondent no 3 having been elected as an Up-Mukhiya, his election car, be set aside by filing an election petition in terms of Rule 10 of the Bihar Panchayat Raj election Rules. 22. It is now well known that this Court cannot supply cautious-omissus. 21. Mr. Singh thereafter submitted that in any event as respondent no 3 having been elected as an Up-Mukhiya, his election car, be set aside by filing an election petition in terms of Rule 10 of the Bihar Panchayat Raj election Rules. 22. Rule 70 of the Bihar Panchayat Raj Election Rules does not and cannot debar this Court from exercising its jurisdiction under Article 226 of the Constitution of India. It is now a well set sled principle of law that this court should not ordinarily direct a writ petitioner to take recourse to alternative remedy once a writ petition has been admitted. Further, in this case, the pstitioner has principally questioned the validity of the resolution dated 15 1-1991 as contained in Annexure-2 and the order passed by respondent no.2 as contained in Annexure-3 to the writ application whereby he has been removed from the post of Mukhiya/up-Mukhiya. 23. In view of my findings aforementioned as the petitioner has not been removed validly, the question of filing up of the vacancy by electing respondent no.3 as Up-Mukhiya does not arise. Rule 70 of the said Rules, therefore, cannot be taken recourse to in this case. 24. In the result, this application is allowed. The impugned resolution dated 15-1-1991 as contained in Annexure 2 and the order dated 22-1-1991 as passed by respondent no.2 are hereby quashed. However, it is observed that in view of Sec.13 (5) of the said Act, the election for the post of mukhiya should be held forthwith. In the facts and circumstances of this case, there will be no order as to costs. Writ application allowed.