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2003 DIGILAW 541 (PAT)

Raj Kumar Rai v. State Of Bihar

2003-05-07

R.S.GARG

body2003
Judgment 1. Heard learned counsel for the parties. 2. At the very outset learned counsel for the State submits that the no confidence motion was defeated and the petitioner continues to be Pramukh therefore, this petition has become infructuous. 3. Learned counsel for the petitioner, however, submits that he has challenged the authority of the S.D.O. in issuing a direction to the B.D.O. to convene the meeting to consider the question of no confidence. According to him when the Act provides the procedure then that procedural law is to be followed and the S.D.O. or any other authority would not have any jurisdiction to issue such directions. The respondent State through Secretary, Rural Development Department in paragraph 9 of the counter has stated that from a reading of Section 44 of the Bihar Panchayat Raj Act, 1993 it would be clear that the S.D.O. does not have any powers in the said Act to convene meetings of Panchayat Samiti. It is further submitted that the S.D.O. being the supervisory Officer of the B.D.O.-cum-Executive Officer of Panchayat Samiti appears to have issued the impugned letter in exercise of his general powers of superintendence over the work of the B.D.O.I fail to understand the propriety of the later part of the observation. If Section 44 does not confer any jurisdiction upon the S.D.O. to direct the B.D.O. to convene the meeting to consider the motion of no confidence then even under the supervisory powers he cannot exercise his jurisdiction not vested in him under the law. 4. When an act is to be done in accordance with law or within a particular procedure then it has to be done accordingly after following the procedure or not at all. The S.D.O. may be a supervisory authority or officer of the B.D.O. for general administration but under the Bihar Panchayat Raj Act, 1993 he does not have any jurisdiction to issue any directions to the B.D.O. to convene a meeting to consider the no confidence motion. 5. Section 44 sub-section (3) of the Act provides that the Pramukh may whenever thinks fit upon the written request of not less than 1/3rd of total number of members on a date within 15 days from the receipt of such request may call a meeting. 5. Section 44 sub-section (3) of the Act provides that the Pramukh may whenever thinks fit upon the written request of not less than 1/3rd of total number of members on a date within 15 days from the receipt of such request may call a meeting. If the Pramukh fails to call a special meeting the Up-pramukh or 1/3rd of total number of members may call a special meeting for a date not more than 15 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. 6. The scheme of the Bihar Panchayat Raj Act, 1993 simply is that the authority must vest in the panchayat and the members constituting Panchayat. If 1/3rd members make a request to the Pramukh then he is obliged to convene the meeting and if he fails then the Up-pramukh may request the Executive Officer to convene the meeting and even otherwise 1/3rd of the total number of members may request the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting. After giving my anxious consideration to the provisions of law, I am unable to read anything which authorises or empowers the S.D.O. to issue any direction to the B.D.O. or the Executive Officer. If the law says that the authority must vest in Pramukh, Up-pramukh or the members then by no executive fiat the S.D.O. can direct the B.D.O. to convene the meeting. The S.D.O. simply is a public servant and not a public boss to direct a democratic body to convene a meeting as and when the said S.D.O. desires. In the present matter the meeting could not be convened under the directions of the S.D.O. Be that as it may, the propriety of this meeting has lost its efficacy because the motion has already been defeated, but the legal provisions are required to be explained to such S.D.Os. and B.D.Os. that in future the S.D.Os. do not transgress their limits and the B.D.Os. are not oppressed under the assumed supervisory authority of the S.D.O. When the B.D.O. acts as an executive officer of the Panchayat Samiti then he is not a subordinate of the S.D.O. because he holds an independent post. and B.D.Os. that in future the S.D.Os. do not transgress their limits and the B.D.Os. are not oppressed under the assumed supervisory authority of the S.D.O. When the B.D.O. acts as an executive officer of the Panchayat Samiti then he is not a subordinate of the S.D.O. because he holds an independent post. Though for all other practical purposes he continues to be a B.D.O. but for convening the meeting he assumes a different character. 7. It is hereby declared that not even a single S.D.O. of this State has any authority to direct any B.D.O. to convene the meeting to consider a no confidence motion moved against the Pramukh. 8. I required the learned counsel for the State to advise the Secretary of the Department to issue direction to all S.D.Os. that in view of Section 44 of the Act, the Secretary must inform all the S.D.Os. not to exercise such powers but the learned counsel for the State submits that this Court must issue such a direction to the Secretary. 9. Let the Secretary of the Department issue a circular notice to all the Collectors and all the Sub Divisional Officers clearly directing them that the S.D.Os. or any other administrative officer would have no jurisdiction in matters of Section 44 of the Act to direct the B.D.O. to convene a meeting to consider a no confidence motion. He may also inform them that non-observance of this order may expose them to a serious risk. The petition is allowed. 10. A copy of this order be given to the counsel for the State.