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2004 DIGILAW 257 (PAT)

Brij Nandan Sharma v. State Of Bihar

2004-03-03

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the communication dated 7.11.2002 (Annexure-8) of the Secretary, Rural Development Department addressed to the District Magistrate, Jehanabad in which it has been observed that the no-confidence motion passed against respondent no.5 is illegal and she will continue as Pramukh of Panchayat Samiti, Jehanabad. 2. The facts necessary for the decision of the present writ application are that the petitioner is an elected member of Jehanabad Panchayat Samiti whereas respondent no.5 Rekha Devi happens to be its Pramukh and a special meeting to consider the no-confidence motion against respondent no.5 was held on 28.9.2002 in which out of the total number of the elected members of the Panchayat Samiti i.e. 20, 19 members including respondent no. 5 were present. According to the petitioner himself out of 19 members present in the meeting 14 took part in the voting and 5 abstained from the voting and out of 14 members who voted in the special meeting, 7 voted in favour of the no-confidence motion and 7 against the motion. According to the petitioner, in case of equality of votes, the Up-Pramukh who was presiding the meeting, gave the casting vote in favour of no-confidence motion and accordingly, the motion of no-confidence was passed on 28.9.2002 by majority. When this fact came to the notice of the Secretary of the Rural Development Department, he by the impugned order, held that the motion of no-confidence passed against respondent no.5 is not in accordance with law and accordingly, directed that respondent no. 5 shall continue as the Pramukh of the Panchayat Samiti. 3. Mr. R.S. Pradhan, Senior Advocate, appearing on behalf of the petitioner submits that the motion of no-confidence carried out against respondent no.5, cannot be tinkered by the Secretary who under the scheme of the Act, has no authority to interfere with the motion. In support of his submission, he has placed reliance on a judgment of this Court in the case of Hare Ram Acharya Vs. The State of Bihar and ors. [2002 (4) PUR 640] and my attention has been drawn to the following passage from the said judgment: "7. In support of his submission, he has placed reliance on a judgment of this Court in the case of Hare Ram Acharya Vs. The State of Bihar and ors. [2002 (4) PUR 640] and my attention has been drawn to the following passage from the said judgment: "7. xxx It is thus to be seen that the District Magistrate or the Sub-divisional Officer have no role to play in calling a special meeting of the Panchayat Samiti and in the legislative scheme a requisition for summoning a special meeting of the Samiti is to be made directly to the Pramukh. In case the Pramukh does not call the meeting, being disinclined to face a vote of no-confidence, as it is seen in a number of cases, the Up Pramukh may call the meeting and if he too does not oblige then it is open to the requisite number of members (one-third of the total number of members of the Samiti) to themselves fix the date of the meeting and require the Executive Officer (the B.D.O.) to give notice of the meeting to the members and to take such action as may be necessary to convene the meeting. In that situation, unless there is any other legal bar, the Block Development Officer will be legally obliged to act upon the requisition, convene the meeting on the date fixed by the requisite number of members, give notice of the meeting to the members and take all actions as may be necessary for convening the meeting. He will discharge his duty under the Act as the Executive Officer of the Samiti without asking for or following the directions of his superiors in the district administration. The Samity is thus to act on its own as a truly democratic body on the ground level and its members are not to view themselves as dependent upon the District Magistrate or the Subdivisional Officer for running the affair of the Samity." Underlining by me Junior Counsel to Standing Counsel No. VI appears on behalf of the State whereas respondent no.5 is represented by Mr. Binod Shankar Tiwary. 4 Mr. Tiwary appearing on behalf of respondent no. Binod Shankar Tiwary. 4 Mr. Tiwary appearing on behalf of respondent no. 5, however, contends that the State Government has the power to call for any record of the Panchayat and when the record was called for, an apparent illegality was found and the State Government held the no-confidence motion passed against the petitioner to be illegal and accordingly directed for continuance of respondent no.5 as Pramukh. 5. Having considered the rival submission, I find substance in the submission of Mr. Pradhan. Section 129 of the Bihar Panchayat Raj Act, hereinafter referred to as the Act, reads as follows: "129. Directions from Government.- (1) Notwhithstanding anything contained in this Act it shall be lawful for the Government to issue directions to any Panchayat in matters relating to State and national policies and such directions shall be binding on the Panchayat. (2) The Government may- (a) call for any record or register or other document in possession or under the control of any Panchayat; (b) require any Panchayat to furnish in return, plan estimate, statement, account or statistics, and, (c) require any Panchayat to furnish any information or report on any matter connected with such Panchayat. 6. From a plain reading of the aforesaid section it is evident that the State Government passes power to issue directions to any Panchayat in matters relating to State and national policies and in that context call for any record or register or other document in possession or under the control of any Panchayat. Said provision does not confer authority on the State Government to nullify the no-confidence motion passed against the Pramukh. 7. According to the petitioner the total elected members of the Panchayat Samiti is 20 and out of 14 members present and voting 8 members voted in favour of the no-confidence motion. Mr. Pradhan contends that the same fulfils the condition of passing the no-confidence motion and in this connection has drawn my attention to Section 44(7) of the Act which provides that all questions shall be decided by majority of votes of the members present and voting. Section 44(7) of the Act, which is relevant for the purpose reads as follows: "44 Meeting of Panchayat Samiti.- xx xx xx (7) All questions shall unless otherwise especially provided be decided by a majority of votes of the members present and voting. Section 44(7) of the Act, which is relevant for the purpose reads as follows: "44 Meeting of Panchayat Samiti.- xx xx xx (7) All questions shall unless otherwise especially provided be decided by a majority of votes of the members present and voting. The presiding member, unless he refrains from voting, shall give vote before declaring the number of vote for and against a question and in case of equality of votes he may give his casting vote." xx xx xx 8. Mr. Tiwary, however, submits that in view of Section 42 (3) of the Act, motion of no-confidence can be carried out by majority of the total number of elected members and not the members present and voting. Section 42(3) of the Act, which is relevant for this purpose reads as follows :- "42. Resignation or Removal of Pramukh and Up-Pramukh: xx xx xx (3)A Pramukh/Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forthwith 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." 9. From a plain reading of Section 44(7) of the Act, it is evident that all questions shall be decided by a majority of votes of the members present and voting unless otherwise especially provided. Section 42(3) of the Act, in specific term provides that the resolution expressing want of confidence in a Pramukh or Up-Pramukh shall be passed by the majority of total number of elected members of the Panchayat. Thus, when Section 42(3) of the Act has specifically provided that motion of no-confidence can be carried out by majority of the total number of elected members of the Panchayat, the general provision will give way to the special provision. In my opinion special provision i.e. Section 42(3) having provided for passing of resolution by a majority of the total number of elected members same shall govern the field. Hence the submission of Mr. Pradhan that it shall be decided by majority of votes of the. members present and voting, is not fit to be accepted. 10. Although I have held that the Secretary of the Department has no power to nullify a no-confidence motion but the question is as to whether same requires to be interfered with by this Court in exercise of its writ jurisdiction. members present and voting, is not fit to be accepted. 10. Although I have held that the Secretary of the Department has no power to nullify a no-confidence motion but the question is as to whether same requires to be interfered with by this Court in exercise of its writ jurisdiction. In my opinion, power to issue prerogative writs and orders have been conferred on superior Courts to do justice. It is well settled that this Court does not interfere with an order, the quashing whereof will revive an illegal order. In the present case, quashing of impugned order will revive no-confidence motion passed against the petitioner, which is absolutely illegal. In that view of the matter, in exercise of my power under Article 226 of the Constitution of India, I quash the resolution dated 28.9.2002 (Annexure 5) and decline to interfere with the impugned order. 11. The result of the aforesaid discussion is that there is no merit in this application and it is dismissed with cost to be paid by the petitioner to respondent no.5, which I assess at Rs. 1100/-.