Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 429 (PAT)

Harihar Musahar v. State Of Bihar

2004-04-15

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. In both the writ applications prayer of the petitioners is to issue a writ in the nature of quo warranto for removal of respondent no. 5 as the Up-Parmukh of the Panchayat Samiti, Bagha-1. 2. Petitioner are the members of the Panchayat Samiti, Bagha-1. Respondent no. 5 Bechari Ram is also a member of the said Panchayat Samiti and thereafter he has been elected as the Up-Parmukh of the said Panchayat Samiti. It is the allegation of the petitioner that said Bechari Ram tendered his resignation by a letter addressed to the Parmukh dated 6.3.2002 and although his resignation has been accepted, still he is functioning as the Up- Parmukh and on account of the vacancy created to the office of the Parmukh, he is also performing the function of the Parmukh. It is their stand that once the resignation of respondent no. 5 has been accepted, he cannot be permitted to function either as Up-Parmukh or Parmukh of the Panchayat Samiti. By order dated 12.9.2003 passed in CWJC No. 9677 of 2003 and order dated 19.12.2003 passed in CWJC No. 4797 of 2003. both the writ applications were directed to the heard along with CWJC No. 11778 of 2002. In the said writ application the Parmukh of the said Panchayat Samiti had challenged the motion of no-confidence passed against him. In the said case counter affidavit has been filed on behalf of the Executive Officer of the Panchayat Samiti and he has denied the assertion made by the petitioner. In the counter affidavit he has stated that Behcari Ram although tendered his resignation but he withdrew the same within the stipulated period of 15 days and his resignation was never accepted. 3. Thus there is claim and counter claim in regard to the alleged resignation by respondent no. 5 as the Up-Parmukh. Petitioners assert that respondent no. 5 had resigned whereas the Executive Officer accepts the fact of resignation but emphatically contends that within 15 days from the date of such resignation he withdrew his resignation and as such his office shall not be deemed to have been vacated. 4. Mr. S.S. Dvivedi, Senior Advocate appearing on behalf of the petitioner contends that resignation of respondent no. 5 having been accepted, he cannot be allowed to function as Up-Pramukh and this is fit case in which writ of quo warranto deserves to be issued. 4. Mr. S.S. Dvivedi, Senior Advocate appearing on behalf of the petitioner contends that resignation of respondent no. 5 having been accepted, he cannot be allowed to function as Up-Pramukh and this is fit case in which writ of quo warranto deserves to be issued. Learned counsel appearing on behalf of the respondents however contend that very assumption of the petitioner that resignation of respondent no. 5 was accepted is unfounded on fact. Having considered the rival submission I do not find any substance in the submission of Mr. Dvivedi. 5. In the face of the counter affidavit filed on behalf of the Executive Officer of thPanchayat Samiti, it seems more probable that although respondent no. 5 had resigned but within the expiry of 15 days he withdrew the same. It is relevant here to state that Section 42 of the Bihar Panchayat Raj Act clearly contemplates that the office of the Up-Parmukh shall be deemed to be vacant only after expiry of 15 days from the date of the resignation. Nothing prevents withdrawal of resignation before the expiry of the stipulated period. Hence it cannot be said that the office held by respondent no. 5 got vacated by virtue of resignation and as such the writ of quo warranto sought for by the petitioner is not fit to be granted. 6. In the result, I do not find any merit in the application and it is dismissed accordingly. No cost.