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2005 DIGILAW 30 (PAT)

Dharmendra Kumar v. State Of Bihar

2005-01-12

R.S.GARG

body2005
Judgment 1. Heard learned counsel for the parties. 2. This order shall finally decide C.W.J.C. No. 5541 of 2003 (Dharmendra Kumar V/s. The State of Bihar & Ors.) and C.W.J.C. No. 10540 of 2003 (Dharmendra Kumar V/s. The State of Bihar & Ors.) 3. The petitioner, an elected Pramukh, is before this Court challenging the notice of no confidence, the proceedings taken in the meeting and his removal, in C.W.J.C. No. 5541 of 2003 and in C.W.J.C. No. 10540 of 2003 he is challenging the elections which were held because of the alleged vacancy caused in light of his removal on basis of the no confidence. 4. The facts in nutshell are that the petitioner was elected as Pramukh under Certificate dated 15.6.2001 (Annexure-1). It appears that number of the members of the Panchayat Samiti expressed their no confidence in the Pramukh and made a representation to the Sub Divisional Officer, Sadar, Gaya that the Pramukh, Dharmendra Kumar be removed from his office and new Pramukh be elected. It appears that the Sub-Divisional Officer after receiving the application referred the same to the Block Development Officer who in his turn wrote letter dated 16.5.2002 to the Pramukh of Panchayat Samiti annexing a copy of the no confidence motion with a request to him that in accordance with Section 42 of the Act a meeting be held within 15 days. It appears that in the meanwhile a Division Bench of this Court made certain observations therefore, the meeting could not be conducted. After the said judgment of the Division Bench was explained by the Supreme Court in the matter of Mithilesh Singh & Ors. V/s. The State of Bihar & Ors., 2002(4) PLJR 76 (SC), under Annexure-5 some of the members who were party to the no confidence motion made an application to the Block Development Officer that in light of the judgment of the Supreme Court the matter relating to no confidence be taken up. The Block Development Officer issued a notice to the petitioner that in accordance with law a meeting for consideration of the no confidence be held and if he fails to do the same then the meeting would be convened on 24.12.2002. It appears that the petitioner did not direct conduction of the meeting therefore the meeting was convened on 24.12.2002. The Block Development Officer issued a notice to the petitioner that in accordance with law a meeting for consideration of the no confidence be held and if he fails to do the same then the meeting would be convened on 24.12.2002. It appears that the petitioner did not direct conduction of the meeting therefore the meeting was convened on 24.12.2002. The petitioner, it appears, lost to prove the confidence of the members therefore the said no confidence motion was carried against him. Annexure-8 is the order passed by Block Development Officer, Manpur, Gaya observing that the petitioner stands relieved from the office of the Pramukh. The petitioner submits that the meeting could not be convened on 24.12.2002 because the notice of no confidence motion or a request to convene the special meeting for the special purpose was never addressed to the petitioner. He submits that if a meeting is required to be conducted in accordance with the provision of iaw then such a meeting should be conducted or convened as provided under the law only. He submits that if the motion of no confidence and the proceedings dated 24.12.2002 fall then no vacancy would occur and the authorities would not be entitled to hold the fresh elections and under such circumstances the election subsequently held would also fall to ground. 5. Learned counsel for the respondent no. 6 and 10 to 14 referring to Annexure-2 submitted that the notice in fact was given to the Pramukh itself. He submits that the technical objection raised by the petitioner should not defeat the purpose of the Act and from the records it would be clear that the petitioner has lost the confidence of the majority 6. On being asked that the annexure appended to Annexure-2 was not addressed to the Pramukh himself with a request to convene the meeting then what shall be the effect of the same, learned counsel for the contesting respondents submitted that as the Annexure-2 was sent by. the Block Development Officer along with the motion of no confidence to the Pramukh it must be presumed that the motion of no confidence was submitted to the Pramukh himself. 7. I have heard the parties at length. 8. the Block Development Officer along with the motion of no confidence to the Pramukh it must be presumed that the motion of no confidence was submitted to the Pramukh himself. 7. I have heard the parties at length. 8. Section 42(3) says that a Pramukh/ Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forthwith, if a resolution expressing want of confidence in him is passed by the majority of the total number of elected members of the Panchayat in a meeting specially convened for the purpose. From sub-section (3) of Section 42 it would be clear that the motion of no confidence may be considered in a meeting specially convened for the purpose. The meeting of Panchayat Samiti is to be conducted in accordance with Section 44. Sub-section (3) of Section 44 apart from its generality, especially provides that the Pramukh may, whenever, he thinks fit, shall upon the written request of not less than one-third of total number of members and on a date within 15 days from the receipt of such request call special meeting. A fair understanding of subsection (3) would make it clear that if a special meeting is sought to be convened then a requisition is to be given by not less than one-third of the total number of members to the Pramukh and the Pramukh within 15 days has to call the special meeting. 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 on a date not more than 15 days after presentation of such request and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting. 9. In the present matter the notice/ motion of no confidence or the request to convene the meeting for consideration of the no confidence motion was never given to or served upon the Pramukh. It appears that vide the document appended to Annexure-2 the request was made to the Sub Divisional Officer, who in his turn sent the document to the Block Development Officer and the Block Development Officer required the petitioner to convene the meeting. The submission of the request letter to the Sub Divisional Officer is not the requirement under the law. It appears that vide the document appended to Annexure-2 the request was made to the Sub Divisional Officer, who in his turn sent the document to the Block Development Officer and the Block Development Officer required the petitioner to convene the meeting. The submission of the request letter to the Sub Divisional Officer is not the requirement under the law. The law simply says that the request will have to be made to the Pramukh. Assuming there was a failure on the part of the Pramukh to convene the meeting then the Up-Pramukh was obliged to call the meeting or the one-third of the total number of members could call for the special meeting and require the Executive Officer to give the notice to the members. In the present matter it does not appear that the Up-Pramukh or one third of the members called for the meeting rather it appears that the Block Development Officer under Annexure-7 letter No. 1513 dated 7.12.2002 required the Pramukh to convene the meeting on 21.12.2002 and directed that if the meeting is not convened then in the alternative the meeting would be convened on 24.12.2002. The Block Development Officer had no authority to fix the date for conducting the business because under the law the Up-Pramukh or the one third members could fix the date and require the Block Deveiopment Officer to issue the notice. 10. In the present matter neither the request to convene the special meeting or conduct a special business was served upon the Pramukh nor the meeting was convened in accordance with law. As the meeting was illegally convened on a request made to the Sub Divisional Officer, the proceedings recorded in the meeting dated 24.12.2002 can not be approved. I must also quash the notice expressing no confidence which was submitted to the Sub Divisional Officer. As the proceedings dated 24.12.2002 are being quashed, I must further observe that there was no vacancy on 24.12.2002 to hold the election. The moment proceedings dated 24.12.2002 are quashed the parties would be relegated back to their original position as they occupied on 24.12.2002. The petitioner, on 24.12.2002 and subsequent thereto would be presumed to hold the office of the Pramukh and if he was holding the office there could be no vacancy to hold further elections. The elections held on 7.10.2003 wherein Birendra Kumar was elected as Pramukh is also quashed. The petitioner, on 24.12.2002 and subsequent thereto would be presumed to hold the office of the Pramukh and if he was holding the office there could be no vacancy to hold further elections. The elections held on 7.10.2003 wherein Birendra Kumar was elected as Pramukh is also quashed. Both the writ applications are allowed. 11. It goes without saying that the rejection of the no confidence motion, which was submitted to the Sub Divisional Officer would not come in the way of the members of the Panchayat Samiti in submitting the no confidence motion or in making a request to Pramukh for convening a special meeting in accordance with law. The rejection of the no confidence would also not provide any good ground in favour of the petitioner because this Court is not saying that the motion of no confidence was defeated. In fact this Court is observing that the notice was illegal and consequently the meeting was illegal. The dissatisfied members would have an absolute right to make a request for consideration of any business or conducting any business in a meeting which can be specially convened in accordance with law. Both the writ applications are allowed.