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2004 DIGILAW 313 (PAT)

Lallan Singh v. State Of Bihar

2004-03-17

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing a portion of the resolution of the Panchayat Samiti dated 24.1.2003 whereby no confidence motion has been passed against the petitioner. 2. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner happens to be the Parmukh of Panchayat Samiti, Garhani, Bhojpur. A notice to convene the special meeting of the Panchayat Samiti to consider the no confidence motion was given and ultimately the Executive Officer by notice dated 16.1.2003 informed the members that the special meeting of the Panchayat Samiti shall be held on 24.1.2003 to consider the no confidence motion against the petitioner. In the meeting so held, the motion of no confidence has been passed against the petitioner by required majority. 3. It is the assertion of the petitioner that notice of the meeting being illegal, consequently the decision taken in the said meeting shall be vitiated in the eye of law. Petitioner in paragraph 17 of the writ application has stated as follows:- "17. That it is pertinent to mention here that in the notice the date has been shown as 16.1.2003. However, the dispatch register of the Panchayat Samitee shows that the notices were dispatched on 20th of January, 2003. This is most respectfully stated that the petitioner received the notice on 21.1.2003 at 12.40 P.M. The requirement of law as per sub-section (4) of section 44 of the Act is that a seven days notice is must for convening the special meeting. In the aforementioned facts and circumstances the notice for convening meeting on 24.1.2003 is equally illegal on this ground." 4. In reply thereto respondent no. 4 i.e. the Executive Officer of the Panchayat Samiti had averred as follows:- "20. That with respect to the statements made in para 17 of the writ petition under reply it is humbly stated that the notices were issued on 16.1.2003. This shall be apparent from perusal of the notice itself." 5. In the supplementary affidavit filed on behalf of the petitioner, photostat-copy of the peon book has been placed on record in support of the assertion that notice dated 16.1.2003 was in fact given for service on the members on 20.1.2003. 6. Mr. This shall be apparent from perusal of the notice itself." 5. In the supplementary affidavit filed on behalf of the petitioner, photostat-copy of the peon book has been placed on record in support of the assertion that notice dated 16.1.2003 was in fact given for service on the members on 20.1.2003. 6. Mr. Tara Kant Jha, Senior Advocate appearing on behalf of the petitioner has raised several points to assail the no confidence motion but as the writ application is to succeed on a very short point, I deem it inexpedient either to incorporate or answer the same. Mr. Jha contends that Section 44(4) of the Bihar Panchayat Raj Act, 1993 (for short the Act) requires seven clear days notice of a special meeting to consider the no confidence motion. He points out that the notice dated 16.1.2003 having been sent on 20.1.2003, it does not conform to the requirement of the aforesaid provision. J.C. to S.C. VI, however, contends that in fact the notice was sent on 16.1.2003 fixing 24th of January, 2003 as the date of meeting and as such it is in conformity with Section 44(4) of the Act. 7. Having considered the rival submission I find substance in the contention of Mr. Jha. Section 44(4) of the Act which is relevant for the purpose reads as follows:- "44(4). Meetings of Panchayat Samiti XX XX XX (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 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." XX XX XX 8. From the plain reading of the aforesaid section, it is evident that notice of a special meeting has to be sent to the members giving seven clear days notice and in case it is held that the notice was sent on 20th of January, 2003, same would not be in conformity with law. In my opinion the question is not when the petitioner received the notice but the date on which Executive Officer sent it. In my opinion the question is not when the petitioner received the notice but the date on which Executive Officer sent it. Hence the endeavour made by the counsel representing the contesting respondents is that in fact it was sent on 16.1.2003. The averment of the petitioner in the writ application has been quoted hereinbefore and the answer of respondent no. 4 has also been stated. Respondent no. 4 in the counter affidavit has not placed any document to show that in fact the notice was sent on 16.1.2003. Notice was sent by him and it was within his personal knowledge and, therefore, he ought to have placed on record the document to show that notice in fact was sent on 16.1.2003. Instead, petitioner has placed on record the peon book to show that notice in fact was dispatched on 20.1.2003. Once it is held that notice was sent on 20th of January, 2003 holding of the meeting on 24.1.2003 is in the teeth of the provision of Section 44(4) of the Act, which will render the holding of the meeting illegal and the natural corollary of the same would be that the decision taken in the said meeting shall be vitiated in the eye of law. 9. The view which I have taken, finds support from the judgment of this Court in the case of Arun Kumar Singh vs. The State of Bihar and others (AIR 2004 Patna 24) [: 2004(2) PLJR 367 ] and in the case of (Nagendra Prasad Singh vs. The State of Bihar & ors.) [ 2004 (1) PLJR 531 ]. 10. In the case of Arun Kumar Singh (supra) it has been held as follows:- "7 ...The agenda of the special meeting is to consider the no confidence motion. No confidence motion is brought against an elected person by elected representative and in a democratic country governed by the rule of law, policies and programmes are criticised or defended in such meeting and in such circumstances the legislature has provided for seven clear days notice so as to enable the elected representatives to deliberate and defend the motion. In my opinion, if the provisions of Section 44(4) of the Act is held to be directory, same, may in a given case, will not provide to the office bearer sufficient time to convince the member the futility of the no confidence motion. In my opinion, if the provisions of Section 44(4) of the Act is held to be directory, same, may in a given case, will not provide to the office bearer sufficient time to convince the member the futility of the no confidence motion. Hence I have no manner of doubt that provision of Section 44(4) of the Act requiring seven clear days notice is mandatory in nature. Once it is held so, the Parmukh who has to convene the meeting within fifteen days of the notice under Section 44(3) of the Act shall have to act in manner that the meeting is held within 15 days and the decision is taken within such time so that sufficient time is left out to give seven clear days notice to hold the meeting." 11. Further in the case of Nagendra Prasad Singh (supra) it has been held as follows:- "6 ... Thus seven clear days notice was not given to hold the meeting. This itself vitiates the notice. Consequently, the business transacted on 30th of September, 2003 is not in accordance with law. Resultantly the motion of no confidence passed against the petitioner is non-est in the eye of law, which cannot be allowed to stand." 12. To put the record straight, I may state that Mr. Amanullah appearing on behalf of respondents 6 to 8 and 12 to 14 prays for dismissal of the writ application on the ground that in the facts of the present case the discretionary power under Articles 226 and 227 of the Constitution of India is not fit to be exercised. He also contends that the petitioner having not approached this Court with clean hands, the writ application deserves to be dismissed on this ground alone. In support of his submission he has placed reliance on the judgments of the Supreme Court in the case of Suresh vs. Vasant and others ( AIR 1972 SC 1680 ) and Panchugopal Barha vs. Umesh Chandra Goswami ( AIR 1997 SC 1041 ). 13. True it is that jurisdiction to issue prerogative right has been conferred on the superior courts for doing justice between the parties, but justice, as it is well established, has to be done in accordance with law. Principle of equity and good conscience come only when the law is silent. 13. True it is that jurisdiction to issue prerogative right has been conferred on the superior courts for doing justice between the parties, but justice, as it is well established, has to be done in accordance with law. Principle of equity and good conscience come only when the law is silent. Here in the present case, as stated earlier, the notice to consider the no confidence motion has been found to be not in conformity with the Section 44(4) of the Act. It is not the case of the respondents that the petitioner had attended the meeting. Consequently the decision taken in the said meeting is vitiated in the eye of law and as such I am not inclined to dismiss the writ application on the grounds urged by Mr. Amanullah. 14. As I have held that the no confidence motion has been vitiated on account of the fact that the notice was not in conformity with the provision of Section 44 (4) of the Act and hence the quashing of the resolution shall not stand in the way of the members to convene another meeting to consider the no confidence motion against the petitioner and pass appropriate resolution in accordance with law. 15. In the result, the application is allowed and the resolution is quashed with the liberty aforesaid. No cost.