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2002 DIGILAW 373 (PAT)

Chandeshwar Prasad v. State of Bihar

2002-03-19

R.S.GARG

body2002
ORDER By this petition under Article 226 of the Constitution of India, the petitioners seek to challenge the proceedings recorded in Minapur Panchayat on 26.11.2001 relating to the consideration of the No Confidence Motion moved against the Pramukh and Up-pramukh. Under Annexure-5, the No Confidence Motion was carried against both the petitioners, therefore, they have come to this Court. The case of the petitioners, in brief, is that Minapur Panchayat is constituted of 40 elected members. After the elections in a meeting held to elect Pramukh and Up-Pramukh, the petitioner no.1 was elected as Pramukh while the petitioner no.2 was elected as up-Pramukh. The submission of the petitioners is that the respondent no.5 had also contested election for the office of Pramukh but he ultimately lost, therefore he along with his lietenants was not allowing the petitioners to function smoothly and was causing all the hindrances. It is alleged that the respondent no.5 and his lieutenants moved a Motion of No Confidence against the petitioners. The respondent no.4 an earlier occasion issued a Memo No. 505 dated 24.8.2001 for convening a meeting on 4.9.2001 to consider the said motion. The motion was carried by the majority, and ultimately the said motion was challenged by the petitioners in this Court by filing C.W.J.C. No. 11799 of 2001. After hearing the parties this Court allowed the petition and held that the notices were illegal and the proceedings recorded in the meeting could into be allowed to stand. The said judgment is reported in 2001(4) PLJR 616 (Chandeshwar prasad & anr. vs. The State of Bihar & ors.). According to the petitioners after the judgment of the High Court they were reinstated and took charge of their office. According to them no financial powers have been conferred upon them, therefore, they could not undertake any work. It is alleged that the respondent no.5 and his fellow men again moved an application on 19.11.2001 proposing a vote of No Confidence against the petitioner no.1 only. A copy of the said application/notice given by the dissatisfied members is annexed to the petition as Annexure-1. At this stage it would be necessary to refer to certain facts detailed in the counter affidavit filed by the respondents no. 2 and 4. A copy of the said application/notice given by the dissatisfied members is annexed to the petition as Annexure-1. At this stage it would be necessary to refer to certain facts detailed in the counter affidavit filed by the respondents no. 2 and 4. According to them 22 out of 40 members of the Panchayat Samiti, Minapur filed applications in the office of the Pramukh and Up-Pramukh on 7.11.2001 proposing to move the No Confidence Motion. It is further contended that the Pramukh and Up-Pramukh did not come to the office, therefore, on 19.11.2001 yet other notices were given to the petitioners that the said 22 members were expressing no confidence in them. Copies of the motions dated 7.11.2001 are annexed to the counter as Annexure-B & B/1. Copies of the motions dated 19.11.2001 are annexed to the counter as Annexure-B/2 and B/3. It is contended by all the respondents that the petitioners have suppressed material facts and for the purposes best known to them rather to mislead this Court, the petitioners did not refer to the notices dated 7.11.2001 and the motion moved against the Up-Pramukh. The respondents in their counter also say that on 19.11.2001 the Pramukh passed an order on the same date for convening a special meeting on 26.11.2001 for consideration of the said no Confidence Motion against the Pramukh only. According to them the pramukh did not pass any orders on the notices submitted against the Up-Pramukh. Placing reliance upon the proceedings dated 19.11.2001 it is contended by the respondents that it was informed to the Pramukh that a notice for No Confidence Motion was also made against the up-Pramukh and the applications were received on 7.11.2001 and 9.11.2001, therefore, if permitted the Pramukh may please to direct issuance of proper orders. The Pramukh, as at appears from the proceedings, directed that as the notice of No confidence Motion was addressed to the Up-Pramukh and not to the Pramukh, the said application could not be allowed. However, the Pramukh was again inforwed that the district Magistrate, Muzaffarpur vide his letter dated 23.11.2001 has required the Pramukh to hold the meeting on 26.11.2001 and if allowed in view of the directions issued by the district Magistrate, the notices of No Confidence Motion submitted against the Pramukh and Up-Pramukh be taken up for consideration in the meeting dated 26.11.2001. The Pramukh was again informed that in view of the facts if the notice made against the Up-Pramukh cannot be considered in meeting dated 26.11.2001 then some other date be fixed. The Pramukh was further informed that both the letters (No Confidence Motions) were received in the office on the same day and in accordance with the directions of the district Magistrate, the petitioner (Pramukh) was being informed. The Executive Officer requested the Pramukh to include the motion of no confidence made against the Up-Pramukh in the agenda, adjourn the meeting dated 26.11.2001 and fix a date for consideration of both the motions. On 23.11.2001 the Pramukh ordered that both the motions be put up for consideration in the meeting dated 26.11.2001. The respondents accordingly submitted that the petitioners have suppressed material facts and the petitioners have not come with clean hands to this Court. The meeting was held on 26.11.2001, as No Confidence Motions were moved against the Pramukh and up-Pramukh, they were not allowed to chair the meeting and as it appears from the proceedings dated 26.11.2001 one Anand Kumar was allowed to chair the meeting under a unanimous decision of the members. One Suresh Rai expressed his no confidence in the Pramukh and the Up-Pramukh. The Chairperson requested the members to discuss the subject. The Pramukh floated certain questions in the House and requested the Executive officer to inform as to why his direction dated 19.11.2001 were rot adhered to by the Executive officer. On this, the Executive Officer informed the House that the members were informed about the necessary details. From para 7 of the minutes it appears that the members took active part in the discussions and made serious allegations against the petitioners. Ultimately the members were required to express their confidence or no confidence in the Pramukh and the Up-Pramukh. 22 persons expressed their no confidence against both the petitioners and as a token of their expression signed the proceedings. In accordance with Section 42(3) of the Bihar Panchayat Raj Act, 1993 the House declared that the petitioners ceased to hold the office forthwith. The petitioners are aggrieved by the proceedings dated 26.11.2001 under which the no confidence motion has been carried against them. In accordance with Section 42(3) of the Bihar Panchayat Raj Act, 1993 the House declared that the petitioners ceased to hold the office forthwith. The petitioners are aggrieved by the proceedings dated 26.11.2001 under which the no confidence motion has been carried against them. The petitioners have contended before this Court that the motion notice submitted against each of the petitioners was cryptic, cavalier and was lacking in details, therefore, on strength of such a motion, a meeting should not have been summoned or convened and on strength of such a notice, the motion could not be carried. It is further submitted that notice of the meeting issued by the Executive officer lacks in details, therefore, also the meeting was bad. It was also contended that no 7 clear days margin was given between the date of issuance of the notice and the date of the meeting, therefore, the meeting was held in violation of the statutory provisions and as such no business could be transacted in the said illegal meeting. Strong reliance has been placed upon a single Bench judgment of this Court in the matter of Chandeshwar Prasad vs. State of Bihar and others ( 2001 (4) PLJR 616 ), (the earlier petition filed by the petitioners) and a Division Bench judgment of this Court in the matter of Sindhu Devi vs. State of Bihar and other ( 2002 (1) PLJR 281 ) to contend, that if the meeting is contrary to the provisions of law or the notice issued to the members lacks in particulars or the Motion of No Confidence lacks in details of particulars and charges then neither the meeting could be convened nor the motion could be carried and in such a case the proceedings conducted by the panchayat Samiti would become bad. On the other hand learned counsel for the State and the private respondents contended that the judgment in the matter of Chandeshwar Prasad (supra) has nothing in the matter of Sindhu Devi is in oblivion to the legal requirements and the provisions of law expecially the provisions relating to moving of the No confidence Motion, the judgment should be held to be per incuriam and this Court Should hold that the judgment in the matter of Sindhu Devi does not lay down correct law. Placing reliance upon certain judgments of the Supreme Court, which shall be referred at the appropriate stage, it is contended that if the judgment is per incuriam of the provisions of law and if the court reads something in the provisions of law which otherwise is not provided itself then the findings given by a Division Bench would not bind the single Judge. According to them the Division Bench illegally and contrary to law read the provisions of sub-section (4) of Section 42 in sub-section (3) of Section 42 of the Act. It is also contended that the courts are not authorized legislate, enact or amend the law but their jurisdiction and function is only to interpret the law. To counter the attack, made by the respondents, learned counsel for the petitioners also placed reliance upon certain judgments to say that ordinarily the courts cannot add anything to the provisions of law but if the plain words lead to absurdity or create a situation of impossibly then the courts are not debarred from taking assistance of the other provisions of law and fill up the lacuna. It is contended by the learned counsel for the petitioners that the Division Bench judgment holds field and in accordance with the ratio of the said case the petition must be allowed. For proper appreciation of the controversy it is necessary to refer to Section 42 and material provisions of Section 44 of Bihar Panchayat Raj Act, 1993. Section 42 reads as under: "42. For proper appreciation of the controversy it is necessary to refer to Section 42 and material provisions of Section 44 of Bihar Panchayat Raj Act, 1993. Section 42 reads as under: "42. Resignation or Removal of Pramukh and Up-Pramukh : (1) The Pramukh may resign his office by writing under his hand addressed to the Sub-Divisional Magistrate and the Up-Pramukh may resign his office by writing under his hand addressed to the Pramukh and in the absence of Pramukh to he Sub-Divisional Magistrate and the said office shall be deemed to be vacant on the expiry of fifteen days from the date of such resignation unless within the said period of fifteen days from the date of such resignation unless within the said period of fifteen days he withdraws such resignation by writing under his hand addressed to the Sub-Divisional Magistrate or the Pramukh, as the case may be." "(2) A Pramukh or Up-Pramukh shall vacate office if he ceases to be a member of the Panchayat Samiti." "(3) A Pramukh/Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forth with 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." "(4) A Pramukh/Up-Pramukh of the Panchayat Samiti shall after an opportunity of being heard be removed from his office as Pramukh or Up-Pramukh, by the Government for misconduct in the discharge of his duites, for being persistently remiss in the discharge of his duties and a Pramukh or Up-Pramukh so removed, who does not cease to be the member, shall not be eligible for re-election as Pramukh or Up-pramukh during the remaining term of offices, as member of such Panchayat Samiti." "(5) A pramukh or Up-Pramukh removed from his office under sub-section (4) may also be removed by the Government from membership of the Panchayat Samiti." Section 44, sub-section (1) to sub-section (4) are material for the purposes of the present petition. The said provisions read as under: "44 Meetings of Panchayat Samiti : (1) A Panchayat Samiti shall hold a meeting for the transaction of business at least once in two months (hereinafter in this section called the ordinary meeting and shall subject to the provisions of the following sub-sections, make regulations in confirmation with this Act, or with any rules made thereunder with respect to the day, hour, notice, management and adjournment of its meetings and generally with respect to the transaction of business thereto." "(2) Every meeting of the Panchayat Samiti shall ordinarily be held at the headquarters of the Panchayat Samiti." "(3) The date, of the 'first meeting of the Panchayat Samiti, after its constitution shall be fixed by the Sub-Divisional Magistrate who shall preside at such meeting and date of each subsequent ordinary meeting shall be fixed at the previous meeting of the Panchayat Samiti, provided that the Pramukh may for sufficient reasons, alter the day of the meeting to a subsequent date. 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. If 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." "(4) Ten clear days' notice of an ordinary meeting and seven clear days' notice of a special meeting specifying the time at which such meeting is to be held and the business to be transacted thereat, shall be sent to the members and affixed up at the office of the Panchcyat Samiti. Such notice shall include n case of special meeting any motion or proposition mentioned in the written request made for such meeting." Section 38 of the Act provides that the elected members of the Panchayat Samiti as referred in Section 34 shall, as soon as may be, elect two members from amongst them to be respectively Pramukh and Up-Pramukh of the Panchayat Samiti. Undisputedly the petitioners were elected as Pramukh and Up-Pramukh. Section 44(1) provides that a Panchayat Samiti shall hold a meeting at least once in two months which is commonly known as the ordinary meeting and shall subject to the other provisions of Section 44 make regulations in confirmation with the Act or the rules made there under. Sub-section (3) provides that the date of the first meeting of the Panchayat Samiti after its constitution shall be fixed by the Sub-Divisional Magistrate, who shall preside at such meeting and date of such subsequent meeting shall be fixed at the previous meeting of the Panchayat Samiti. The Pramukh, however, for sufficient reasons can change the date of the meeting to any subsequent date. 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 within fifteen days from the receipt of such request call a special meeting on a date to be fixed by him. Such request made by the members 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 the 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. According to sub-section (4) ten clear days' notice and seven clear days' notice are to be given for convening ordinary and special meeting respectively specifying the time at which such meeting is to be held and the business to be transacted thereat. The notice shall be sent to the members and affixed at the office of the Panchayat Samiti such notice shall include in case of a special meeting any motion or proposition mentioned in the written request made for such meeting. The notice shall be sent to the members and affixed at the office of the Panchayat Samiti such notice shall include in case of a special meeting any motion or proposition mentioned in the written request made for such meeting. It is a clear understanding between all concerned that a meeting to consider the No Confidence Motion can be requested by one-third elected members constituting the Panchayat Samiti and after receipt of such a notice, the pramukh is obliged to hold the meeting within fifteen days of the request and in case of his failure, the Up-Pramukh or one-third of the total number of members may call the said meeting for a day not more than fifteen days after presentation of such request and such members may require the Executive officer to give notice to the members and to take such action as may be necessary to convene the meeting. Section 42 in substance says that the Pramukh may resign his office by tendering his resignation under his hand addressed to the Sub-Divisional Magistrate and the Up-Pramukh may resign his office by writing under his hand addressed to the pramukh and ill the absence of Pramukh to the Sub-Divisional Magistrate and the said office shall be deemed to be vacant on the expiry of fifteen days from the date of such resignation unless within the said period of fifteen days such resignation/resignations is/are withdrawn. Sub-section (2) of Section 42 provides that a Pramukh or Up-Pramukh, if ceases to be a member of the Panchayat Samiti, he shall vacate the office. Sub-section (3) of Section 42 provides that a Pramukh/Up-Pramukh shall be deemed to have vacated his office forth with if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members at a meeting specially convened for the said purpose. Sub-section (4) provides that the State Government after giving due opportunity of hearing to the pramukh or Up-pramukh in case of misconduct of Pramukh or Up-Pramukh may remove him from his office. Sub-section (5) provides that a Pramukh or Up-Pramukh removed on the ground of misconduct under sub-section (4) may be removed by the Government from membership of the Panchayat Samiti. A fair perusal of the four different subsections of Section 42 would clearly provide four different modes of removing the Pramukh or Up-Pramukh. Sub-section (5) provides that a Pramukh or Up-Pramukh removed on the ground of misconduct under sub-section (4) may be removed by the Government from membership of the Panchayat Samiti. A fair perusal of the four different subsections of Section 42 would clearly provide four different modes of removing the Pramukh or Up-Pramukh. The Pramukh or Up-Pramukh may vacate the office by tendering his/their resignation. He/they would vacate the office if he/they cease to be a member of the Panchayat Samiti, the office would be deemed to be vacated if a motion of no confidence is passed in accordance with law and the Pramukh or Up-Pramukh can be removed from the office by the State Government on the foundation of the misconduct committed by the Pramukh or Up-Pramukh. I am referring to the above referred provisions in details to show that each subsection considers a different situation and a different contingency. While sub-section (1) of Section 42 talks of an independent and voluntary act on the part of the petitioners, sub-section (4) refers to the powers of the State Government. Sub-section (3) considers a situation of no confidence while sub-section (2) takes into consideration the effect of the facts and the legal position. From the scheme of Section 42 it would clearly appear that each sub-section applies to a different situation and covers a different specific and separate field. In a case where the Pramukh or Up-Pramukh ceases to be a member of the Panchayat Samiti, a show cause notice is not required to be sent. They are not required to be heard because a Pramukh or Up-Pramukh firstly must be an elected member of the Panchayat Samiti, if he ceases to be so, the law would take its own effect and such Pramukh because the very foundation for holding the office would not be available in his favour. In a case where because of one's own volition or for the reasons personal to him, he tenders his resignation in accordance with law then again he is not required to be given a show cause notice. The law simply provides a safeguard that if the Pramukh or Up-Pramukh under the heat of the moment or passion or for some other reason had tendered his resignation then within a period of fifteen days he may reconsider his resignation, re-analyse the entire situation and on a second thought may withdraw his resignation. The law simply provides a safeguard that if the Pramukh or Up-Pramukh under the heat of the moment or passion or for some other reason had tendered his resignation then within a period of fifteen days he may reconsider his resignation, re-analyse the entire situation and on a second thought may withdraw his resignation. In a case where a resignation is tendered neither a hearing is to be afforded to the Pramukh or Up-Pramukh nor he is required to be given a notice. Sub-section (4) of Section 42 provides that the State Government may remove the Pramukh or Up-Pramukh from his office on account of misconduct committed by him in discharg of his duties. Sub-section (4) provides that an opportunity of being heard is to be given to the Pramukh or Up-Pramukh. Issuance of a notice to the Pramukh or Up-Pramukh and to provide an opportunity of hearing before an order is passed against the interest of the Pramukh or Up-Pramukh under sub-section (4) by the appropriate Government in fact is the requirement of the principles of natural justice. The law protects the Pramukh and Up-pramukh from their being bundled out of thier office just on the formation of the opinion by the Government. The requirement of the law is that before the doors are shut on the face of Pramukh or up-Pramukh, give them an opportunity of hearing, allow them to explain their conduct, the reasons for which the notice must be discharged and respect the mandate of the public in electing them as members of the samiti and also respect the mandate of the members of the Samiti, who reposed their confidence in the said Pramukh or Up-Pramukh by electing them as such. It is not unknown to the present politics that people who belong to rival parties are always considered as second class citizens. The ruling party generally tries to capture the local bodied so that they may develop their deep roots at the ground level and may confer power on their own people at the grass root. In a case where the State Government wants to remove the Pramukh or Up-Pramukb from their office, if no opportunity of hearing is given to them then that may lead to political anarchism. In a case where the State Government wants to remove the Pramukh or Up-Pramukb from their office, if no opportunity of hearing is given to them then that may lead to political anarchism. With the change of the Government or after transfer of the power from one party to another party, the mandate of the public would be crushed under the whims and caprice of the party ruling at the key office. Sub-section (4) in fact is a safeguard provided in favour of the Pramukh or Up-Pramukh. The government cannot assume the role of a Judge in its own cause, pass a unilateral order and throw out the elected officers from their respective offices. Sub-section (3) deals with a No Confidence Motion. In a democratic set up of society where the mandate issued by the general voters is to be respected one has to show that the public reposes confidence in him and the persons who have the majority in their favour are allowed to rule and take policy decisions. In a case where the majority loses confidence in the ruler that is the Pramukh or Up-Pramukh then by expressing their no confidence in the Pramukh or Up-Pramukh they can remove them from their offices. At this stage it would be necessary to refer to section 38 of the Act. Section 38 in fact says that only such persons would be elected as Pramukh and up-Pramukh, who have the majority support in their favour. The law says that when the majority elects somebody from amongst themselves then by expressing no confidence in such a person the majority can withdraw the power from them. True it is that democracy is not a synonym to the mobocracy but the democracy would not mean a dictatorship. In the democracy the will of the majority is to be respected. The majority runs the Government and the majority in fact rules the nation. The democracy means a Government of the people, by the people, for the people. If the majority does not have confidence in the ruler then the ruler would not be entitled to occupy the office and would be obliged to vacate the office. In the democracy the majority decides its own fate and others. The majority mayor may not be wise but their will counts. If the majority does not have confidence in the ruler then the ruler would not be entitled to occupy the office and would be obliged to vacate the office. In the democracy the majority decides its own fate and others. The majority mayor may not be wise but their will counts. It has nothing to do with the quality but the heads are only to be counted for deciding the majority. In a case of leadership, the quality counts. In a democratic set up unintelligent majority may select some unintelligent person to rule them or may elect someone who is intelligent. The leadership in the democracy which is a result of manority has nothing to show with the intelligentia. A person enters the office with the will of the people who elects him and vactes the office when such persons do not repose confidence in him. In the matter of Chandeshwar Prasad (supra) the question under consideration was whether a request was made to the petitioners in terms of Section 44(3) or not. This Court observed on the facts that there was absolute non-compliance of the requirements of calling of special meeting as provided under Section 44(3) and (4) of the Act. The High Court observed that the very notice issued by the Executive Officer for a special meeting for considering the No Confidence Motion was invalid in law. The High Court also observed that the petitioners of that case wanted to have a discussion on the point in issue but they were not allowed to speak. The said was decided on its own facts. In the matter of Sindhu Devi certain persons moved a motion of no confidence, the motion was carried and the aggrieved persons came to the High Court. A learned single Judge allowed the petition and being aggrieved by the said order the persons who moved the No Confidence Motion filed the Letters Patent Appeal. A Division Bench of this Court observed that mob majority has been misunderstood as democracy. In the said matter a No Confidence Motion was moved against one Shaligram Singh, who was bundled out of his office, therefore, came to the High Court in a writ petition with a grievance that a motion of no confidence had been brought against him without specifying any misdemeanor or charges and the motion had been acted upon. In the said matter a No Confidence Motion was moved against one Shaligram Singh, who was bundled out of his office, therefore, came to the High Court in a writ petition with a grievance that a motion of no confidence had been brought against him without specifying any misdemeanor or charges and the motion had been acted upon. The learned single Judge noticed and found that the notice or the request which was the very foundation of the motion of no confidence did not indicate the ground, the basis or the proposition on which the action for motion of no confidence was contemplated. The learned single Judge in the face of a groundless and baseless request quashed the motion of no confidence. The Division Bench in the matter of 'Sindhu Devi' firstly referred to the notice issued by the Pramukh to the members of the Panchayat Samiti and after quoting the said notice verbatim, the Division Bench observed that there was not a shred nor whisper of what was the wrong done by the Pramukh and what exactly he was up against when he will face an opportunity, to reply as to why he should not be bundled out of his office. The Division Bench further observed that the brute majority cannot belittle democratie institutions. The Division Bench also observed that an action may be brought for a motion of no confidence against a Pramukh or a Up-Pramukh of Panchayat Samiti but such an action is not in a vacum. According to the Division Bench the law itself contemplated that the member charged will have an opportunity of being heard before being removed from his office for misconduct in discharge of his duties. Referring to sub-section (4) of Section 42, the Division Bench observed that the expressions "an opportunity of being heard" and the expressions "misconduct in the discharge of his duties" were all material in nature. The Division Bench also observed that the expression used in the enactment is "specify the object for which the meeting is proposed to be called is mentioned in sub-section (3) of Section 44." The Division Bench proceeded to observe that a notice is to be given by members in writing a notice which indicates the charges of misconduct or the misdemeanor which a Pramukh or a Up-Pramukh of a panchayat Samiti may have to face then only the business is to be transacted. The Division Bench was of the opinion that the law enjoins a fair opportunity to the person who faces charge on an allegation for misconduct or misdemeanor to avail of the opportunity and give his defence before the panchayat Samiti. The Division Bench observing that the notice issued to the members of the Panchayat Samiti sans reasons or the misconduct committed by the Pramukh, such a notice was contrary to law and on the basis of such notice, the meeting could not be convened and the motion could not be discussed. At this stage it would be necessary to refer to the practice and procedure of parliament. A No Confidence Motion in the Council of Ministers is distinguished from a Censure Motion. Whereas a Censure Motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions a motion of no confidence need not to set out any grounds on which it is based. According to the parliamentary procedure even if the grounds are mentioned in the notice and read out in the House, they do not form part of the No Confidence Motion. It would be relevant to note that the Bajpayee Government in the centre could not prove the confidence of the Members of Parliament and had to vacate the office. In the case of H.D. Devegoda the opposition moved a motion of no confidence. It was a single line motion wherein the opposition said that the opposition expresses no confidence in the Council of Ministers. The matter was discussed in the Parliament but the question that the No Confidence Motion was bereft of the reasons was not considered. The pertinent question for consideration is whether the electors have to give a reason that for what they have lost confidence in the elected members and they are still required to prove that the elected has they are still required to prove that the elected has committed some misconduct or has shown some misdemeanor. According to the parliamentary procedure the person who has been granted leave of the House to move the motion of no confidence would initiate the discussion but chair may permit such member merely to move the motion without making speech and allowing another member of his party to open the debate. According to the parliamentary procedure the person who has been granted leave of the House to move the motion of no confidence would initiate the discussion but chair may permit such member merely to move the motion without making speech and allowing another member of his party to open the debate. When the leave is given to move the No Confidence Motion the discussions are not confined to the grounds mentioned In the notice of that motion but it is open to any member to raise any other matter he likes during the course of the discussion on the motion in alternative to the well established procedural device of motion of no confidence. Under Rule 198(1) of the Parliamentary Rules' the motion of confidence is also used to test the majority of the Government of the day. No form of showing the no confidence is provided either under the constitution of India or under the Parliamentary Rules or under the Bihar panchayat Raj Act. It is expected of the legislature that it knows that in what manner a No Confidence Motion is to be moved and floated. When the law itself does not say that the No Confidence Motion shall provide any misconduct or misdemeanor against the particular ruler then would it be justifiable to hold that such a No Confidence Motion should detail the reasons so that the person, who has to prove his majority gives his definite reply to the alleged charges. From the scheme of Section 42 it would clearly appear that in a case where the Government wants to remove the Pramukh or Up-Pramukh then the details of the misconduct are to be supplied to him and an opportunity of hearing is to be provided. In the present case the details of the charges were not detailed in the motion of no confidence but from the proceedings it would clearly appear that an opportunity of hearing was afforded to the petitioners. The question posed before me is whether the requirement of sub-section (4) can be read into sub-section (3) of Section 42 of the Act. In my humble opinion, the Division Bench did not consider the basic requirements of sub-section (3). The question posed before me is whether the requirement of sub-section (4) can be read into sub-section (3) of Section 42 of the Act. In my humble opinion, the Division Bench did not consider the basic requirements of sub-section (3). When the law did not require the notice of no confidence to contain to details of the charges then there was no scope to hold that the details of charges were required to be given because sub-section (4) of Section 42 so provides. I have already found that sub-section (3) and sub-section (4) of Section 42 cover different fields. In the matter of State of Utter Pradesh vs. Synthetics and Chemicals Ltd. and another (1991) 4 SCC 139 ) a two Judges Bench of the Supreme Court observed that the judgment of the five Judges Bench in the earlier matter was in oblivion of the legal provisions Two Judges Bench held that the Supreme Court in the earlier judgment of Synthetics & Chemicals Ltd., case has not and could not have, intended to say that the price control orders made by the Central Government under the I.D.R. Act imposed a fetter on the legislative power of the State under Entry 54 to levy taxes on the sale or purchase of goods. The Bench observed that the reference to sales tax in para 86 of that judgment was merely accidental or per incuriam and has, therefore, no effect on the impugned levy. The Bench further observed that the conclusion of law drawn by the Constitution Bench of the Supreme Court in Synthetics & Chemicals case ( 1990 (1) SCC 109 ) that no sales or purchase tax could be levied on industrial alcohol fell in both the exceptions, namely, rule of sub-silentio and being in perincuriam, to the binding authority of the precedents. The Bench further observed that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contempiated by Article 141. Uniformity and consistency are core of judicial discipline. But that which excapes in the judgment without any occasion is not ratio decidendi any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature/binding as a precedent. Uniformity and consistency are core of judicial discipline. But that which excapes in the judgment without any occasion is not ratio decidendi any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature/binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. Learned counsel for the petitioners has placed his reliance on a judgment of the Supreme Court in the matter of M/s Girdhari Lal & Sons. v. Balbir Nath Mathur and others ( AIR 1986 SC 1499 ) to contend that the Court must so interpret the stat to as to promote and advance the object and purpose of the enactment. In the said matter the Supreme Court observed as under: "Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from the statue itself, next from the preamble to the statute, next from the Statement of objects and Reasons thereafter from Parliamentary debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light. Regard must be had to legislative history too." "Once Parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the Court to give the statute a purposeful or a functional interpretation. This is what is meant when, for example, it is said that measures aimed at social amelioration should receive liberal or beneficent construction. Again, the words of a statute may not be designed to meet the several un-contemplated forensic situations that may arise. The draftsman may have designed his words to meet what Lord Simon of Glaisdale calls the 'primary situation'. It will then become necessary for the Court to impute an intention to Parliament in regard to 'secondary situation'. such 'secondary intention' may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation." "So we see that the primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. such 'secondary intention' may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation." "So we see that the primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary." From the above referred observations of the Supreme Court it would certainly appear that to avoid patent injustice, anomaly or absurdily or to avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word, if necessary. But while making such observations the Supreme Court also observed that the preliminary intention may be gathered from several sources. The first one, is the statute itself, the next is the preamble to the Constitution, thereafter the statement of objects and reasons, the parliamentary debate reports of committees and commissions etc. the Supreme Court in fact had observed that once preliminary intention is ascertained and the objects and reasons of the legislation is know, it then becomes the duty to the Court to give the statute a purposeful or a functional interpretation. The golden rule of interpretation is that the courts cannot legislate, create, enact or amend the law. It has to interpret the law as it is while interpreting the law, the Court must keep in mind that the legislature does not use superfluous words nor leaves any lacuna. The golden rule of interpretation is that the courts cannot legislate, create, enact or amend the law. It has to interpret the law as it is while interpreting the law, the Court must keep in mind that the legislature does not use superfluous words nor leaves any lacuna. If in a given situation the Court comes to the conclusion that the intention of the legislature was different but the language employed in the enactment is defective then in such a case the court can bridge the gap, supply the words and make the provision meaningful and purposeful but such a situation rarely rather selcom occurs. In a given case where the court comes to the conclusion that a particular phrase ought to have been used in a different Section or sub-section of the same enactment then the court but for expressing a word of sorry cannot abruptly lift a particular phrase from a particular provision of law and read the same in some other sub-section or another provision of the same enactment. It would always be presumed that the action of the legislature is valid and knew that what was being enacted by it. In the matter of Balasionr Nagrik Cooperative Bank Ltd., v. Babubhai Shankeralai Pandya and others ( AIR 1987 SC 849 ) the Supreme Court observed that it is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section. In the opinion of this Court, these observations of the Supreme Court in fact would clinch the issue. A juxtapose reading of all the five sub-sections contained in Section 42 would make it clear that sub-section (1) to sub-section (4) cover different fields. It ventilates that the legislature with the open eyes and applying its fullest wisdom did not include particular words in sub-section (3) which were employed by the legislature in sub-section (4) of Section 42. When an enactment is the conscious act of the legislature then a court would not be justified in observing that the legislature committed a mistake by not employing a particular phrase in a particular provision of law. When an enactment is the conscious act of the legislature then a court would not be justified in observing that the legislature committed a mistake by not employing a particular phrase in a particular provision of law. Even if the charge/the misconduct/the misdemeanor is not mentioned in sub-section (3), according to the intention of the legislature, a person has to vacate his office the moment he loses confidence of the majority. The words "confidence of majority' are not empty words. Behind these words they have the strength and the power of the majority which confers the power upon elected to act in accordance with law in accordance with the will of the majority which confers the power upon elected to act in accordance with law in accordance with the will of the majority and the moment the majority feels that the elected has lost confidence of the majority then the majority certainly can remove him. In a democratic set up, is it necessary for the majority to give a show cause notice giving the details of the charges, the misconduct or misdemeanor before removing a person in whom they had expressed confidence. If such was the Intention of the legislature then nothing prevented the legislature from employing the said terms in sub-section (3) of Section 42., Non-inclusion of the particular words in sub-section (3) would certainly express the intention of the legislature because it simply wanted to say that if you have the majority, you have the power and authority to rule, and the moment you are in minority or lose confidence, go home. The provisions of show cause and opportunity of hearing as provided under subsection (4) are for that sub-section and are to be ostracized from sub-section (3). In the matter of Union of India Vs. Deoki - Nandan Agrawal ( AIR 1992 SC 96 ) the Supreme Court observed as under: "....The Court cannot rewrite recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries (1990) 1 SCR 482 at p. 488 : ( AIR 1990 SC 933 at p. 936), Mangilal v. Sugamchand Rathi (1965) 5 SCR 239 : ( AIR 1965 SC 101 ), Sri Ram Ram Narain Medhi v. The State of bombay, 1959 Supp. (1) SCR 489 : ( AIR 1959 SC 459 ). Smt. Hira Devi v. District Board, Shahjahanpur 1952 SCR 1122 at p. 1131 : ( AIR 1952 SC 362 at p. 365), Nalinakhya Bysack v. Shyam Sunder Haldar ( 1953 SCR 533 at p. 545) : ( AIR 1953 SC 148 at p. 152), Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCR 146 : ( AIR 1980 SC 1896 ), S. Narayanaswami v. G. Punnerselvam (1973) 1 SCR 172 at p.182 : ( AIR 1972 SC 2284 at p. 2289), N.S. Vardachari v. G. Vasantha Pai (1973) 1 SCR 886 ) : ( AIR 1973 SC 38 ), Union of India v. Sankal chand Himatlal Seth (1978) 1 SCR 423 : ( AIR 1977 SC 2328 ) and Commr. of Sales Tax, U.P. v. Auriya Chamber of Commerce, Allahabad (1986) 2 SCR 430 at p. 438 : ( AIR 1986 Sc 1556 at pp. 1559-60). Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by Courts sometimes in order to avoid discrimination. 1559-60). Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by Courts sometimes in order to avoid discrimination. If we may say so what the High Court has done in this case is a clear and naked usurpation of legislative power." The rule of interpretation says that the plain words should be given their plain meaning, unless they lead to absurdity. If the Court finds that there is no ambiguity therein the plain words should be assigned the plain meaning. When the words of a legislation are clear, the Court must give effect to them as they stand and cannot demur on the ground that the legislature must have intended otherwise. In the matter of Vishin N. Khanchandani and another v. Vidya lachmandas Khanchandani and another, (2000) 6 SCC 724 , the Supreme Court observed that no doubt that by the non obstante clause the legislature devises means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. To attract the applicability of the phrase the wholde of the section, the scheme of the Act and the objects and reasons for which such an enactment is made have to be kept in mind. When the objective of a provision is borne in mind its interpretation is not difficult. In the present case, I have already found that subsection (3) and sub-section (4) cover different fields. Sub-section (4) refers to the powers of the State Government to remove a pramukh. While conferring such powers the legislature thought fit that before removing the Pramukh or Up-Pramukh from the office, the details of the charge should be given to him and an opportunity of hearing must be provided. Subsection (3) does not refer to any misconduct, but only talks of the confidence. In such a case the details of the charges are not required to be mentioned. In my humble opinion, the Division Bench was not justified in reading the requirement of sub-section (4) into subsection (3) of Section 42 because by doing so, the Division Bench in fact was inadvertently legislating and amending the law. In such a case the details of the charges are not required to be mentioned. In my humble opinion, the Division Bench was not justified in reading the requirement of sub-section (4) into subsection (3) of Section 42 because by doing so, the Division Bench in fact was inadvertently legislating and amending the law. The Pramukh and Up-Pramukh are not accused in a criminal case where they are required to be served with the allegations made against them and face a charge. The petitioners are not even the delinquents in some departmental enquiry where the charge-sheet is required to be served upon them in my opinion, the petitioners are only entitled to a notice that the majority is expressing no confidence in them and requiring the Pramukh and/or Up-Pramukh to prove that he still enjoys the confidence of the majority. It would also be necessary to consider that a notice of meeting is to be issued by the Pramukh himself. If the Pramukh does not give the details of the charges and the business to be transacted in the proposed meeting or does not leave seven clear days margin between the date of the issuance of the notice and the date of the meeting then can he be allowed to take advantage of his own wrong. In the present case it would clearly, appear that two notices were submitted to the Pramukh by leaving the same in his office and copies of the same were supplied to the Executive officer on 7.11.2001. The Pramukh did not attend the office upto 19.11.2001 and on the same day he received copies of the other notices and fixed the date for 26.11.2001, in fact, by his own act, he did not leave the margin of seven days in between the issuance of notice and the date of the meeting. If the pramukh himself issues the notice to the members and does not give the details of the charges and the business to be transacted in the proposed meeting then would he be allowed to say at a later stage that the notice lacked in details, therefore, the notice was illegal and the consequent meeting was bad. In the matter of Sindhu Devi (supra) said Shaligram Singh himself had issued the notice but did not give the details of the motion of no confidence etc. In the matter of Sindhu Devi (supra) said Shaligram Singh himself had issued the notice but did not give the details of the motion of no confidence etc. How can such a person be allowed to take advantage of his own wrong. The further submission in the present matter is that as there are no rules in relation to conduction of a meeting to consider a No confidence Motion and as the Act does not provide the formation of the motion therefore in absence of the Rules, it must be held that one line motion expressing no confidence in the Pramukh or Up-Pramukh, would be bad and liable to be rejected. In my considered opinion, the judgment of the Division Bench in the matter of Sindhu Devi (supra) needs a re-consideration in view of the aforesaid discussions. Let the matter be placed before My Lord, the Chief Justice for issuing proper directions to place the matter before a larger bench. The Division Bench may also like to issue instructions/directions to the State Government to issue instructions or to frame rules in relation to form, submission and consideration No confidence Motion, specially that if pramukh himself fixes the date of such meeting to consider the No Confidence Motion, he shall be obliged, to fix the meeting giving a clear margin of seven days between the date of issuance of notice and the date of the meeting so also to give the details of No confidence Motion and nature of allegations if made against the Pramukh or Up-Pramukh or annexing a copy of No Confidence Motion with the notice enabling all concerned to know that what are the allegations and what is to be faced by the Pramukh or Up-Pramukh, And, in a case where a date is fixed by the Executive Officer, to fix a date, giving clear margin of seven days between the above said two dates and give fullest details of the No Confidence Motion and the charges, if levelled against terring Pramukh and/or Up-Pramukh or in the alternative to annex a copy/copies of the No Confidence Motion/Notice moved/submitted against the Pramukh and/or Up-Pramukh. The matter may accordingly be placed before My Lord, the Chief Justice.