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2004 DIGILAW 838 (PAT)

Arun Kumar Singh @ Arun Singh v. State Of Bihar

2004-08-18

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of an appropriate writ for quashing the notice dated 8.4.2003 issued by the Executive Officer of the Panchayat Samiti conveying to the members that the special meeting of the Panchayat Samiti shall be held on 15.4.2003 to consider the no confidence motion brought against the Parmukh and Up Parmukh of Ramgarh Panchayat Samiti. Thereafter the meeting of the Panchayat Samiti was held and the motion of no confidence has been carried out against the petitioners and their prayer is to quash that motion also. Further prayer of the petitioner is to set aside the election of the Parmukh and Up Parmukh which had taken place on account of the vacancy created by removal of the petitioner as Parmukh and Up Parmukh. 2. Short facts giving rise to the present application are that the petitioners are Parmukh and Up Parmukh of Panchayat Samiti, Ramgarh. A requisition to convene the special meeting to consider the no confidence motion was brought against them and on that basis, meeting was convened on 15.4.2003 and in the said meeting motion of no confidence has been passed against the petitioners. Thereafter elections to the vacant office of the Parmukh and Up Parmukh were held and members have been elected as such. 3. It is the assertion of the petitioners that the special meeting which was fixed to consider the no confidence motion against the petitioners was presided over by the Subdivisional Officer and in paragraph 21 of the counter affidavit filed on behalf of respondents 3 to 5, which includes the Subdivisional Officer, Mohania it has been admitted that the meeting was presided over by the Subdivisional Officer with the consent of the elected members. 4. Several points have been taken by the petitioners to assail the notice convening the meeting, passing of the no confidence motion and election of the Parmukh and Up Parmukh subsequently but when the matter is taken up Mr. Vinod Kumar Kanth, Senior Advocate appearing on behalf of the petitioners, submits that the special meeting fixed to consider the no confidence motion against the petitioners having been presided by the Subdivisional Officer, this itself vitiates the motion of no confidence passed against the petitioners. 5. J.C. to S.C. VI as also. Mr. Vinod Kumar Kanth, Senior Advocate appearing on behalf of the petitioners, submits that the special meeting fixed to consider the no confidence motion against the petitioners having been presided by the Subdivisional Officer, this itself vitiates the motion of no confidence passed against the petitioners. 5. J.C. to S.C. VI as also. Mr. Surendra Kumar Singh appearing on behalf of the State and some of the respondents respectively, however, contend that the Subdivisional Officer presided over the special meeting with the consent of the elected members and in that view of the matter the action of the Subdivisional Officer cannot be said to be illegal and the decision taken in the said meeting cannot be faulted. 6. Having considered the rival submission, I find substance in the submission of Mr. Kanth. Section 44(6) of the Bihar Panchayat Raj Act, 1993 (hereinafter referred to as the Act) provides for the person who shall preside over the meeting of the Panchayat Samiti, same reads as follows: "44. Meetings of Panchayat Samiti: XX XX XX (6) Every meeting shall be presided over by the Pramukh or if he is absent by the Up-Parmukh and if both are absent or if the Pramukh is absent and there is no Up-Parmukh the members present shall elect one from among themselves to preside." XX XX XX 7. From a plain reading of Section 44(6) of the Act, it is evident that every meeting of the Panchayat Samiti has to be presided over by the Parmukh or in his absence Up Parmukh and in case when both are absent the members present have to elect one amongst themselves to preside. Thus the mandate of law is clear that in case of Parmukh and Up Parmukh being absent the members present are required to elect one from amongst themselves to preside over the meeting. Under the scheme of the Act, no outsider can be elected to preside over the meeting. It is well settled that when a statute prescribes a thing to be done in a particular manner it has to be done in that manner alone. Under the scheme of the Act the Subdivisional Officer does not come in picture so far as the presiding of the meeting of the Panchayat Samiti is concerned except the first meeting of the Panchayat Samiti as provided under Section 44(3) of the Act. Under the scheme of the Act the Subdivisional Officer does not come in picture so far as the presiding of the meeting of the Panchayat Samiti is concerned except the first meeting of the Panchayat Samiti as provided under Section 44(3) of the Act. In that view of the matter, even if the Subdivisional Officer has presided over the meeting with the consent of the members, that shall not authorise him to preside over the meeting. 8. As the meeting has been presided over by a person not authorised in law, the decision taken in the said meeting is vitiated and the motion of no confidence passed against the petitioners has to be held to be illegal. However, in the peculiar facts of the present case, my holding that the no confidence motion is vitiated itself shall not entitle the petitioners to function as Parmukh and Up Parmukh. In the facts of the present case, I do hereby direct that the Executive Officer of the Panchayat Samiti, within two weeks from the date of receipt of the order, issues a notice giving 7 clear days notice for holding the special meeting to consider the no confidence motion against the petitioners. Said meeting shall be presided over by persons as provided under Section 44(6) of the Act and nobody else. In case the motion is carried out by the required majority, persons subsequently elected shall continue to hold the office as Parmukh and Up Parmukh. However, in case the motion fails, petitioners shall continue as Parmukh and Up Parmukh and the person elected shall vacate the office. For the purpose of said meeting petitioners shall be treated as Parmukh and Up Parmukh and shall exercise such powers as conferred on them and the person elected as such subsequently will not exercise such power. It is clarified that in case motion is passed or defeated against one, the aforesaid consequence shall follow in regard to that office only. 9. Writ application stands allowed in the aforesaid term.