Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 249 (PAT)

Hiralal Mandal v. State Of Bihar

2005-03-03

V.N.SINHA

body2005
Judgment V.N.Sinha, J. 1. Heard learned counsel for the petitioner, the State and Private respondents. 2. The petitioner who is the Pramukh of Chandan Panchayat Samiti has filed this writ application assailing the requisition, signed by 10 elected Members of the Panchayat Samiti served on him under Letter No. 741, dated 24.11.2003 of the Block Development Officer, Chandan, Annexure-2 as also the Resolution of the Chandan Panchayat Samiti dated 18.12.2003, Annexure-4, passed on the basis of the said requisition removing him from the office of the Pramukh, Chandan Panchayat Samiti by a majority of 10 votes. The ground of challenge raised against the requisition served on the petitioner under Letter dated 24.11.2003. Annexure-2 is that the same was signed by only 10 elected Members of the Panchayat Samiti which is violative of Sub-sec. (3) of sec. 44 of the Bihar Panchayati Raj Act, 1993 (hereinafter referred to as the Act) which requires at least 1/3rd of the total number of the Members of the Panchayat Samiti to requisition a special meeting of the Panchayat Samiti to consider the removal of the Pramukh. He has further assailed the said requisition on the ground that the same is violative of Sub-sec. (7) of sec. 42 of the Act as the requisition does not contain the specific charges which have been alleged, against him. He has questioned the Resolution dated 18.12.2003. Annexure-4 on the ground that the same is violative of Sub-sec. (3) of sec. 42 of the Act whereunder Pramukh could be removed from the office on the basis of a motion of no confidence having been carried by a majority of total number of elected Members of the Panchayat Samiti and in the present case motion of no confidence having been carried by majority of 10 votes in a house of 20 elected members the motion is not carried by a majority as majority shall constitute of 11 Members, the Resolution dated 18.12.2003, Annexure-4 is violative of Sub-sec. (3) of Sec. 42 of the Act. (3) of Sec. 42 of the Act. In support of his submission, learned counsel for the petitioner has relied on a Division Bench judgment of this Court, passed in the case of Uday Shankar Singh V/s. The State of Bihar and Ors., reported in 2003 (2) PLJR 123 , paragraphs/15, 18, 19 and 20 and another judgment of the Single Judge of this Court in the case of Sanjay Singh Som V/s. The State of Bihar and Ors., reported in 2002 (3) PLJR 589 . In the Division Bench case, the Chairman of the Zila Parishad was ousted from his office in purported compliance of the provisions contained in sec. 68 of the Act on the basis of requisition which was not signed by 1/5th of the total Membership of the Zila Parishad and a Single Judge of this Court did not interfere with the motion of no confidence passed on the requisition which was not signed by the 1/5th of the total Members of Zila Parishad but the Division Bench in the said case not only set aside the order of the Single Judge but restored the Chairman of the Zila Parishad to his office as he was removed from the said office on the basis of requisition which was signed by Members less than 1/5th of the total number of the Members of the said Zila Parishad. Drawing parity from the judgment rendered in the case of Uday Shankar Singh, (supra) learned counsel for the petitioner asserted that in the present case the petitioner has been removed from the office on the basis of the requisition, Annexure-2 signed by only 10 elected members which does not constitute 1/3rd of the total number of the Membership of the Panchayat Samiti which has total strength of 41 Members out of which 21 are ex-officio Members with no voting power the requisition, Annexure-2 and subsequent resolution of no Confidence dated 18.12.2003, Annexure-4 both should be quashed and petitioner be restored to his office of Pramukh. 3. Learned counsel further assailed the Resolution dated 18.12.2003, Annexure-4 on the ground that the same is violative of the provisions of Sub-sec. (3) of Sec. 42 of the Act as in terms thereof a Pramukh can be voted out of office only by a majority of the total number of the elected Members of the Panchayat Samiti. 3. Learned counsel further assailed the Resolution dated 18.12.2003, Annexure-4 on the ground that the same is violative of the provisions of Sub-sec. (3) of Sec. 42 of the Act as in terms thereof a Pramukh can be voted out of office only by a majority of the total number of the elected Members of the Panchayat Samiti. According to the learned counsel for the petitioner, as there are 20 elected Members of the Samiti, majority shall consist of 11 Members and as only 10 votes were cast against the petitioner, Resolution dated 18.12.2003, Annexure-4 removing him from the office has not been carried by a majority of the total number of the elected members, should be quashed as violative of Sub-sec. (3) of sec. 42 of the Act. In support of the aforesaid submission, learned counsel for the petitioner placed reliance over the judgment of a Single Judge of this Court in the case of Brij Nandan Sharma V/s. The State of Bihar, reported in 2004 (2) PLJR 244 , paragraph 9. Perusal of the aforesaid judgment in the case of Brij Nandan Sharma (supra) would indicate that this Court in a case of tie of seven votes in the meeting of Panchayat Samiti held that Pramukh was rightly restored in her office and ought not to have been removed on the basis of seven votes cast against her as the seven votes did not constitute the majority of the total number of elected members. Learned counsel for the petitioner further submitted with reference to paragraphs 15 and 16 of the writ application that Pandemonium prevailed in the Meeting Hall on 18.12.2003 as the Mukhia Members of the Panchayat Samiti who were not authorised to vote had forcibly entered the Meeting Hall forcing the petitioner to submit his resignation to the Executive Officer and walk out from the Meeting Hall and thereby petitioner was deprieved from voting in the Meeting on 18.12.2003. In this connection, he relied on the decision of the Hon ble Supreme Court passed in the case of Ramesh Mehta V/s. Sanwal Chand Singhvi and Ors., reported in AIR 2004 SC 2258 paragraph-9. 4. On the other hand, the counsel for the respondent-State as also the private respondents have relied on the provisions contained in Secs. 2 (1) and 2 (r) and Sub-sec. (2) of sec. 4. On the other hand, the counsel for the respondent-State as also the private respondents have relied on the provisions contained in Secs. 2 (1) and 2 (r) and Sub-sec. (2) of sec. 34 of the Act, which, inter alia, define the term Member of the Panchayat, and provide that only elected members are authorised to consider the motion of no confidence against Pramukh. Member of the Panchayat means an elected member of that Panchayat, Panchayat means an institution of Self-Government constituted under Art. 2438 of the Constitution of India for the rural areas. In terms of Sub-sec. (2) of sec. 34 of the Act only elected Members of the Panchayat are entitled to vote in a meeting convened for election/removal of Pramukh from his office. Laying emphasis on the aforesaid three provisions, namely, Sub-sec. s (1) and (r) of sec. 2 and Sub-sec. (2) of sec. 34 of the Act learned counsel for the State and private respondents submitted that when in the special meeting to consider the removal of Pramukh from his office, only elected members are entitled to vote, the requisition calling for such a special meeting should be signed by 1/3rd of the total number of elected members and since in the present case, half of the elected members have signed the requisition Annexure-2 on the basis of which the Pramukh has been removed should not be interfered with. In this connection, they relied on the judgment of the Hon ble Supreme Court in the case of Ramesh Mehta v. Sanwal Chand Singhvi and Ors., reported in AIR 2004 SC 2258 in which their Lordships of the Hon ble Supreme Court, with reference to the Rajasthan Municipalities Act, 1959 as amended in 1994 held that the expression whole number of members shall include only elected members and not the nominated ex-officio Members. 5. As regards the proceedings dated 18.12.2003, Annexure-4 learned counsel for the State and the private respondents submitted that the petitioner having participated in the meeting on 18.12.2003 purposely withdrew from the Meeting Hall when the voting was about to begin after submitting his resignation to the Executive Officer as is evident from the proceeding itself. 5. As regards the proceedings dated 18.12.2003, Annexure-4 learned counsel for the State and the private respondents submitted that the petitioner having participated in the meeting on 18.12.2003 purposely withdrew from the Meeting Hall when the voting was about to begin after submitting his resignation to the Executive Officer as is evident from the proceeding itself. Had he participated in the voting and voted in his favour there would have been a tie of 10 votes for and against the motion of no confidence and then situation would have been governed in terms of the provision contained in Sub-sec. (7) of sec. 44 of the Act which empowers the presiding member to cast his vote in the event of a tie. In this connection, the counsel for the State as also the private respondents relied on the averments made in paragraphs 14 and 15 of the counter affidavit filed on behalf of official respondents 4, 5 and 7 and private respondents 8, 11 and 42. Persual of the averments made in those paragraphs indicate that according to the State as also the private respondents the meeting to consider no confidence motion against the petitioner on 18.12.2003 was proceeding peacefully in which the petitioner also had participated in the discussion but when the secret voting was about to begin the petitioner chose to walk out from the venue of the meeting after submitting his resignation to the Executive Officer. It is clarified in those paragraphs that the Mukhia of the Gram Panchayat did not participate in the voting. On the basis of the aforesaid averment counsel for the State as also the private respondents submitted that the situation is entirely of the making of the petitioner himself and this Court should not come to his rescue even when he has subsequently withdrawn his resignation. 6. In reply, learned counsel for the petitioner besides reiterating the earlier submission further submitted that the Panchayat Samiti has been defined in Sec. 2 (t) of the Act and the definition of member of Gram Panchayat in Sec. 2 (1) of the Act does not apply to the Panchayat Samiti as defined under Sec. 2 (t) of the Act. 7. Having considered the rival submissions, this Court is or the opinion that in view of provisions contained in Secs. 2 (1), 2 (r) and 2 (t) and Sub-sec. (2) of sec. 7. Having considered the rival submissions, this Court is or the opinion that in view of provisions contained in Secs. 2 (1), 2 (r) and 2 (t) and Sub-sec. (2) of sec. 34 of the Act there is no difficulty in holding that only 1/3rd elected Members of the Panchayat Samiti are sufficient to requisition a special meeting for discussing the no confidence motion against the Pramukh/Up-Pramukh as in terms of the provisions contained in Sub-sec. (2) of sec. 34 of the Act, it is only the elected Members of the Panchayat Samiti who are authorised to vote on a motion of no confidence against Pramukh/Up-Pramukh. In the present case, the requisition, Annexure-2 was signed by 10 of the elected members and also contain the details of allegation set out against the petitioner, as such in my opinion, the requisition, Annexure-2 is in accordance with law and there is no infirmity in the same. So far the submission that the petitioner was removed from his office only on the basis of 10 votes which is not a majority out of 20 is concerned, the situation is entirely of the making of the petitioner as he purposely walked out from the Meeting Hall and thereby allowed the situation to drift to this pass. Had he participated in the voting then in the case of a tie of 10 votes the Chairman who presided over the meeting on 18.12.2003 ought to have given his casting vote and then the motion would have been carried/by 11 votes which is the majority of the total of the 20 elected members. Petitioner, in my opinion, should not be allowed to take advantage of his own mischief not to participate in the voting held during the meeting dated 18.12.2003. 8. I, therefore, see no merit in this application, which is accordingly dismissed. No cost. The interim order dated 24.3.2004 is vacated and the respondents are directed to hold the election of Pramukh as early as possible, and in any case within one month from the date of receipt/production of the certified copy of this order.