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2002 DIGILAW 742 (PAT)

Md. Aslam v. State Of Bihar

2002-07-15

AFTAB ALAM

body2002
Judgment 1. There are two petitioners before this court. They seek to challenge the resolution which according to respondents 5 to 16 was adopted in the meeting of Panchayat Samiti, Adapur block held on 22.10.2001 adopting a motion of no confidence against the two petitioners and purporting to remove them from the offices of Pramukh and Up Pramukh respectively of Adapur Panchayat Samiti. The relevant facts are brief and can be stated as follows. 2. Adapur Panchayat Samiti consists of 42 members, out of whom 23 are elected members and the remaining 19 are ex officio members. In the election held on 19.4.2001 petitioners 1 and 2 were elected to the offices of Pramukh and Up Pramukh respectively. They took their oaths of office on 15.6.2001 and on 24.7.2001 the first meeting of the Panchayat Samiti was held which was presided over by the Sub-divisional Officer and was attended by all the 42 members of the Samiti. The second meeting of the Samiti was held on 7.8.2001. This was presided over by petitioner no. 1 and was attended by 41 members. In this meeting out of 25 schemes taken up for consideration, 11 were passed by the Samiti and were sent to the Zila Parishad for their approval and execution. It seems that those schemes later became the bone of contention. Some of the elected members of the Samiti were of the view that the schemes forwarded to the Zila Parishad were not the same as were approved in the meeting of the Samiti held on 7.8.2001. 3. According to the dis-satisfied members (who are 12 in number and are impleaded as respondents 5 to 16) a notice for requisitioning a special meeting of the Samiti for moving a vote of no confidence against the Pramukh and Up-Pramukh was sent to the two petitioners by registered posts. The notice, however, returned unserved because the petitioners refused to accept the registered envelops. (The petitioners deny the allegation that the notice was ever addressed to them. According to the petitioners, the notice was sent to the office and the Office Clerk refused to take delivery of the letter). It was in this back ground that the third meeting of the Samiti was convened by the Block Dev. Officer (the Executive Officer of the Samiti) on 12.10.2001. In this meeting some members orally moved a motion of no confidence against the petitioners. It was in this back ground that the third meeting of the Samiti was convened by the Block Dev. Officer (the Executive Officer of the Samiti) on 12.10.2001. In this meeting some members orally moved a motion of no confidence against the petitioners. According to the petitioners the motion was introduced without any prior notice and even without indicating the reasons for which the petitioners were sought to be removed. In that meeting, petitioner no. 1 fixed 22.10.2001 as the date for the next meeting to consider the motion of no confidence moved by some of the members against him and petitioner no. 2. 4. According to the respondents, after the meeting was fixed for 22.10.2001 petitioner no. 1 made a representation before the Collector requesting him to postpone the meeting for various reasons. On 14.10.2001 a wireless message was received from the Dist. Magistrates office asking the Block Dev. Officer to postpone the meeting of 22.10.2001 on account of its close proximity with the festival of Dushhera when the State administration would be completely engaged in the maintenance of law and order etc. On the basis of the direction from the Dist. Magistrate, the Block Dev. Officer issued a letter, dated 16.10.2001 postponing the meeting of the Samiti scheduled to be held on 22.10.2001. 5. Notwithstanding the postponement of the meeting by the Block Dev. Officer, the twelve disgruntled members of the Samiti met on that date and purported to pass the motion of no confidence against the Pramukh and the Up-Pramukh (the two petitioners). 6. This writ petition was then filed on 28.11.2001 for quashing the so called resolution adopted by the twelve members of the Samiti on the meeting supposedly held on 22.10.2001. 7. Before concluding the narration of facts, it may be noted that during the pendency of this writ petition, the Block Dev. Officer issued notices fixing 14.2.2001 as the date for holding the postponed special meeting to consider the motion of no confidence brought by respondents 5 to 16 against the petitioners. That meeting, however, could not be held as the respondents refused to take part in any further meeting for that purpose, maintaining that the two petitioners were already removed from.their respective offices in pursuance of the resolution, dated 22.10.2001. 8. That meeting, however, could not be held as the respondents refused to take part in any further meeting for that purpose, maintaining that the two petitioners were already removed from.their respective offices in pursuance of the resolution, dated 22.10.2001. 8. At this stage it may be noted that an intervention petition has been filed in this case on behalf of 17 members of the Panchayat Samiti; some of the intervenors are elected members and some ex-officio members. They fully support the case of the petitioners and according to them, no meeting was held on 22.10.2001 and, therefore, there can be no question of passing any resolution of no confidence against the petitioners. 9. In the aforesaid facts and circumstances, it does not require much argument to see that the so called resolution adopting the motion of no confidence against the two petitioners in the "meeting" held on 22.10.2001 was wholly illegal, ineffectual and inoperative. 10. Mr. Raghib Ahsan appearing for the petitioners submitted that the motion of no confidence was introduced within six months of the assumption of office by the petitioners and it was, therefore, hit by two orders passed by a bench of this court in Smt. Shyama Devi vs. State of Bihar & Ors., 2002 (2) PLJR 675 and Lalan Singh and Ors. vs. State of Bihar & Ors. 2002 (3) PLJR 201 . Apart from this, Mr. Ahsan submitted that the holding of the meeting and the passing of the impugned resolution were in complete contravention of more than one provision of the Bihar Panchayat Raj Act, 1993. 11. Mr. Ahsan submitted that in the meeting of 12.20.2001 petitioner no. 1 had himself fixed 22.10.2001 as the date for the special meeting to consider the motion of no confidence introduced orally on that date. But the special meeting was postponed by letter, dated 16.10.2001 issued by the Executive Officer of the Samiti on the basis of the direction from the Dist. Magistrate. 12. Mr. Jitendra Kumar Roy, learned counsel appearing for the contesting private respondents submitted that the postponement of the meeting was quite illegal inasmuch as neither the Dist. Magistrate nor the Executive Officer of the Samiti had any such authority or power under the Act. The date of the special meeting was fixed by the Pramukh himself in the meeting of 12.10.2001 and thereafter it was not open to the Dist. Magistrate nor the Executive Officer of the Samiti had any such authority or power under the Act. The date of the special meeting was fixed by the Pramukh himself in the meeting of 12.10.2001 and thereafter it was not open to the Dist. Magistrate or the Block Dev. Officer to postpone the meeting or change its date. 13. Viewed strictly from a legal point of view the submission of Mr. Jitendra Kumar Roy is not incorrect and in case this question had arisen before 22.10.2001, this court might have intervened in his favour and allowed the meeting to be held on that date notwithstanding the letter issued by the Block Dev. Officer postponing it. But the fact remains that the Dist. Magistrate had issued such a direction acting on which the Block Dev. Officer issued a letter postponing the meeting of 22.10.2001. 14. The question, therefore, is not whether the Dist. Magistrate/Block Dev. Officer had the power to postpone the meeting but the question is whether in those circumstances the petitioners, and the 28 other members of the Samiti who did not attend the meeting can be held responsible or blamed for their absence. To my mind the answer can only be in the negative. The direction issued by the Dist. Magistrate coupled with the letter issued by the Block Dev. Officer was sufficient to lead the two petitioners and the 28 other members of the Samiti to the bona fide belief that the meeting was postponed and, therefore, it cannot be said that the petitioners and the other 28 members absented themselves from the meeting deliberately and by design. 15. Mr. Roy submitted that unlike subsection (4) of section 42 under which a Pramukh/Up-Pramukh can be removed by an order passed by the Government, under sub-section (3), there was no provision for giving an opportunity of hearing to the Pramukh/Up-Pramukh for his/ their removal from office by a vote of no confidence and, therefore, it was immaterial if the petitioners were not present in the meeting of 22.10.2001. 16. The submission is unacceptable for more reasons than one. First, a bench of this court In Sindhu Devi and others vs. State of Bihar and others, 2002 (1) PLJR 281 has held that the principles of natural justice are inseparable from the provisions of sub-section (3) of section 42 of the Act. 16. The submission is unacceptable for more reasons than one. First, a bench of this court In Sindhu Devi and others vs. State of Bihar and others, 2002 (1) PLJR 281 has held that the principles of natural justice are inseparable from the provisions of sub-section (3) of section 42 of the Act. Apart from this, an opportunity of being heard and the right of participation in the meeting in which the vote of no confidence is to be moved are two different things. Even without going into the question of opportunity of hearing the right of participation in the meeting in which the motion of no confidence is to be moved, normally must be held to be an inalienable right of the concerned person and unless it is shown that he/she did not attend the meeting despite notice and on his own volition the meeting cannot be held to be valid and lawful. 17. In other words, if the concerned person is able to show that he was prevented from attending the meeting by unlawful means or he was not able to attend the meeting even after exercising due deligence, caution and care, then under normal circumstances it would be very difficult to sustain the adoption of the no confidence motion in absentia. 18. Here it may be clarified that this principle like almost all other legal principles is not absolute. There may be circumstances in which this principle may have no application e.g., where the person concerned after being convicted of an offence is lodged in jail. 19. But in the facts of this case the principle will apply with full force. In this case it was not only the two petitioners but 28 other members of the Samiti who were prevented from attending the meeting under the bona fide belief that the meeting was adjourned by the Block Dev. Officer vide his letter, dated 16.10.2001. There was, therefore, no meeting in the eyes of law in which the motion of no confidence could be adopted against the petitioners. 20. The meeting was further in violation of sub-section (5) of section 44 of the Act which provides for a quorum for the meeting and lays down that half of the total number of members of the Panchayat Samiti shall form a quorum for transacting business at a meeting of the Panchayat Samiti. 21. Mr. 20. The meeting was further in violation of sub-section (5) of section 44 of the Act which provides for a quorum for the meeting and lays down that half of the total number of members of the Panchayat Samiti shall form a quorum for transacting business at a meeting of the Panchayat Samiti. 21. Mr. Roy submitted that the provision of quorum as contained in section 44(5) would only apply to the ordinary meetings of the Samiti held for transacting its day to day business and would not apply to a meeting specially convened to consider the vote of no confidence against the Pramukh/Up-Pramukh. Learned counsel submitted that on a vote of no confidence it was only the elected members who had the right to vote and, therefore, the provision of quorum requiring the presence of half of the total number of members of the Samiti would hardly make any sense or relevance. 22. I am unable to accept Mr. Roys submission and I am in agreement with Mr. P.K. Verma, learned counsel appearing for the intervenors. 23. Mr. Verma submitted that the provision of section 44 (5) of the Act would apply equally to a meeting specially convened for considering a vote of no confidence against the Pramukh/ Up-Pramukh. Mr. Verma is right in his submission that this was ininherent check against frivolous motions of no confidence against the persons holding elected office. 24. I have, therefore, no doubt in my mind that the so-called meeting of 22.10.2001 and the impugned resolution said to have been adopted in that meeting apart from being violative of section 42(3) were also in contravention of section 44(5) of the Act. 25. For all these reasons, the impugned resolution as contained in Annexure 1 is held to be illegal, invalid and inoperative and it is accordingly set aside. 26. In the result, this writ petition is allowed but with no order as to costs.