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2004 DIGILAW 258 (PAT)

Avinash Kumar Chaurasiya 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 resolution dated 14th August, 2003 (Annexure-6) whereby a motion of no confidence has been passed against the petitioner. 2. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner is a Parmukh of Panchayat Samiti, Nath Nagar and a requisition addressed to him and Up-Parmukh was given by the members of the Panchayat Samiti to consider the no confidence motion against the petitioner. It is the assertion of the petitioner that the special meeting of the Panchayat Samiti to consider the no confidence motion was convened by respondent no. 6, the Executive Officer of the Panchayat Samiti, and for that purpose he issued notice dated 16.7.2003. 3. Counter affidavit has been filed on behalf of respondent no.6 in which the assertion of the petitioner that the meeting was convened by the Executive Officer has not been denied. In that view of the matter, there is no escape from the conclusion that the meeting to consider the no confidence motion was convened by the Executive Officer. 4. Mrs. Priyadarshni appearing on behalf of the petitioner has raised several points to assail the no confidence motion carried out against the petitioner but as the writ application is to succeed on a very short point. I am not inclined either to incorporate or answer the same. Learned counsel contends that in view of section 44(3) of the Bihar Panchayat Raj Act. (for short the Act), the meeting is to be convened by the Parmukh or the Up-Parmukh and in case of their failure by 1/3rd of the total number of members and in no case it can be convened by the Executive Officer but has been done in the present case and hence the resolution of no confidence passed in such a meeting vitiated. In support of the submission reliance has been placed on a decision of this Court in the case of Chandrakanti Devi Vs. State of Bihar [ 2003(4) PLJR 429 ] and my attention has been drawn to paragraph 7 of the judgment, which reads as follows:- "7. On consideration of the submission made by the learned counsel for the parties and the material on record this much is evident that the requisition for convening special meeting signed by 12 members of the Panchayat Samiti was filed before the Parmukh. On consideration of the submission made by the learned counsel for the parties and the material on record this much is evident that the requisition for convening special meeting signed by 12 members of the Panchayat Samiti was filed before the Parmukh. The total number of members of the Panchayat Samiti was 40. The Pramukh did not convene the meeting. Thereafter, no petition was filed before the Up-Pramukh as required under sub-section (3) of Section 44 of the Act. The meeting was convened on the petition signed by 12 members of the Panchayat Samiti filed before the Executive Officer though under sub-section (3) of Section 44 of the Act the Executive Officer is not an authority to convene special meeting. In case Pramukh and Up-Pramukh both fail to call special meeting, one-third of the total number of the members of the Panchayat Samiti may convene special meeting them selves and intimation of the meeting is to be circulated amongst the members by the Executive Officer but the said procedure was not followed. (Underlining mine) 5. Mr. A.B.Sinha S.C.X appearing on behalf of the State and its official and Mr. Rajesh Sinha appearing on behalf of respondent no.8, however, contend that the Executive Officer was right in giving the notice and as such the decision taken in the meeting so held cannot be said to be illegal. 6. Having considered the rival submission. I find substance in the contention of Mrs. Priyadarshni. Section 44(3) of the Act, which is relevant for the purpose reads as follows:- "44. Meetings of Panchayal Samiti- XX XX XX (3) The date of the first meeting of the Panchayat Samiti, after its constitution shall be fixed by the Subdivisional Magistrate who shall preside at such meeting and date of each subsequent ordinary meeting shall be fixed at the previous meeting of the Panchayal Samiti, provided that the Parmukh 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. 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 take such action as may be necessary to convene the meeting." 7. From a plain reading of the aforesaid provision it is evident that in case of failure on part of the Pramukh and Up- Pramukh to convene the special meeting to consider no-confidence motion one-third member can convene the meeting and ask the Executive Officer to issue notice for that purpose. There is suttle distinction between convening the meeting and issuing notice for the meeting. Here in the present case the Executive Officer has not only issued the notice but has convened the meeting which jurisdiction he does not possess in view of the clear language of Section 44(3) of the Act. The view which I have taken finds support from the judgment of this Court in the case of Hare Ram Acharya Vrs. State of Bihar and ors. (2002)4 PUR 640 in which it has been held as follows:- "7. it is thus to be seen that the District Magistrate or the Subdivisional Officer has 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. it is thus to be seen that the District Magistrate or the Subdivisional Officer has 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 Samity) 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 Samiti 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 affairs of the Samity." 8. Having held that the meeting has been convened by an Executive Officer, who had no jurisdiction to do so, next question which falls for determination is in regard to the effect of such illegality on the resolution ultimately passed in the meeting so held. It is well settled that when a statute requires a particular thing to be done in a particular manner that has to be done in that manner and the other mode of doing that thing is prohibited. Panchayat Samiti is democratic body of the local self- government and the executive officer is its servant, where as the members of the Panchayat Samiti are servants of sovereign and are to act in fulfilment of their wishes. Panchayat Samiti is democratic body of the local self- government and the executive officer is its servant, where as the members of the Panchayat Samiti are servants of sovereign and are to act in fulfilment of their wishes. Therefore, convening of the meeting by an Executive Officer, a servant of the Panchayat Samiti illegally shall render the resolution illegal in the eye of law. I am of the considered view that as the meeting has been convened by a person not authorised in law, the decision taken on a meeting so held is vitiated and in that view of the matter, the resolution of no confidence motion passed against the petitioner cannot be allowed to stand. 9. This Court had the occasion to consider this question in the case of Hare Ram Acharya (supra), wherein it has been held as follows:- "8. Unfortunately, in this case the members demanding a special meeting over-looked this basic and cardinal fact and instead of giving the requisition to the Pramukh and requiring him to summon the meeting approached the District Magistrate and meeting was held on his direction. This to my mind introduced a basic flaw in the whole process as a result of which the meeting itself must be held to have been vitiated along with the resolution adopted in that meeting." "10. I am unable to agree. This is not a matter in which the court may feel persuaded to reject the petitioners grievance on the plea of substantial compliance with the provisions. The proper functioning of the ground level democratic bodies is too important to be disregarded on the plea of substantial compliance with the provisions and for the reason that the petitioner was aware of the developments, at least by means other than as provided in law. A tendency to involve the Government officials and to act on the basis of their direction, if allowed unchecked, is bound to undermine the basic democratic character of these bodies. Any unauthorised interference in their affairs must, therefore, be checked and curbed at the outset." 10. A tendency to involve the Government officials and to act on the basis of their direction, if allowed unchecked, is bound to undermine the basic democratic character of these bodies. Any unauthorised interference in their affairs must, therefore, be checked and curbed at the outset." 10. I have found the resolution passed against the petitioner to be illegal on account of the fact that the meeting in which said resolution was passed was convened by a person not authorised in law and hence it shall not stand in the way of the members of the Panchayat Samiti to bring an appropriate motion of no confidence against the petitioner in accordance with law. 11. In the result, the application is allowed and motion of no confidence passed against the petitioner in the meeting of the Panchayat Samiti held on 14.8.2003 (Annexure-6) is quashed with the observation aforesaid. No cost.