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2008 DIGILAW 1268 (PAT)

Sumita Devi Roy v. State Of Bihar

2008-08-29

RAMESH KUMAR DATTA

body2008
Judgment 1. Heard learned counsel for the petitioner, learned Additional Advocate General No.5 for the State and learned counsel for the Zila Parishad, Khagaria. 2. The petitioner seeks quashing of the resolution dated 11.8.2008 by which no confidence motion has been passed against her at the special meeting of the Zila Parishad and further prayer has been made to stay the election to the said post of Up-Pramukh proposed to be held today i.e., 29.8.2008, in the meeting called for by notice dated 21.8.2008 (Annexure-9) issued by the District Magistrate. 3. The main contention of learned counsel for the petitioner is that pursuant to an earlier requisition dated 29.7.2007 for convening a special meeting for considering the no confidence motion against the Chairman of the Zila Parishad, Khagaria it was ordered on 4.8.2008 by the Chairman of the Zila Parishad to convene the said meeting on 11.8.2008. On 4.8.2008 a requisition for convening a meeting for considering no confidence motion against the petitioner was presented before the Chairman of the Zila Parishad. However, instead of fixing the date of holding the meeting for the said purpose she merely referred the matter to the District Magistrate who fixed the same date, that is, 11.8.2008 for considering the no confidence motion. 4. Learned counsel for the petitioner submits on the basis of the provisions of Section 70(4) of the Act that the meeting could have been convened within seven days of the date of receipt of such requisition by the Adhyaksha herself and the District Magistrate could have acquired the authority to convene the said meeting only on the failure of the Adhyaksha to fix the date for the said meeting within seven days of the receipt of the requisition. Hence, the convening of the meeting by the District Magistrate is contrary to the provisions of the Act and thus the meeting as well as the resolution passed therein are illegal and the same are fit to be quashed. 5. Learned Additional Advocate General No. 5 and learned counsel for the Zila Parishad on the other hand rely upon a Single Judge Bench decision of this Court in the case of Balram Singh Yadav Vs. 5. Learned Additional Advocate General No. 5 and learned counsel for the Zila Parishad on the other hand rely upon a Single Judge Bench decision of this Court in the case of Balram Singh Yadav Vs. The State of Bihar & Ors.: 2005(3) PLJR 582 , in which it has been held that the petitioner having participated in the meeting held for no confidence motion and having been voted out of office he is stopped from challenging the proceeding of the meeting on the ground of illegal requisition and notice. In the said case, the petitioner and the respondents of that case had relied respectively upon the decisions of two Division Benches of this Court in the case of Uday Shankar Singh Vs. The State of Bihar & Ors.: 2003(2) P.L.J.R. 123 and Raghuni Nayak, Hansi Lal Sahani & Ors. Vs. The District Magistrate, Darbhanga & Ors.: 1958 B.L.J.R. 177. The Division Bench in Uday Shankar Singhs case noticing the illegality in the requisition, set aside the subsequent proceedings of special meeting and directed the petitioner to be reinstated in his office. In Raghuni Nayaks case the previous Division Bench held that the petitioners of that case having participated in the election to the post of Municipal Commissioners despite being aware of certain discrepancies with respect to electoral rolls, etc. were estopped from challenging the election on the ground of estoppel and acquiescence. The learned Single Judge in Balram Singh Yadavs case (supra) held that the decision in Uday Shankar Singh is per incuriam since it has not considered the earlier decision of the Division Bench in Raghuni Nayaks case. 6. On a consideration of the aforesaid decisions, it is evident that the Division Bench in Uday Shankar Singhs case (supra) considered the provisions of the Bihar Panchayat Raj Act, 1993 relating to removal from office under Panchayat through no confidence motion which were in pari materia with those of the present Act and in practically the same situation. Raghuni Nayaks case, on the other hand, related to election of Municipal Commissioners in which certain discrepancies were alleged in the electoral rolls. Hence the situation appears to be entirely different. The two decisions were thus not really in similar factual matrix and thus it could not prima facie be inferred that the later decision is per incuriam the earlier decision. 7. Hence the situation appears to be entirely different. The two decisions were thus not really in similar factual matrix and thus it could not prima facie be inferred that the later decision is per incuriam the earlier decision. 7. Secondly, the provisions of the Bihar Panchayat Raj Act, 2006 and of the earlier Act which it repeals and reenacts have been made pursuant to the constitutional amendments by which Part IX of the Constitution had been inserted by the Constitution (73rd Amendment) Act, 1992 by which a Constitutional status was granted to the Panchayats. Hence the matter regarding the removal from offices under the Panchayats relates to holders of Constitutional offices, although elaborated by the Panchayat Raj Act, and the provisions should, therefore, normally be strictly construed. 8. Further, it is a well-settled proposition that there can be no estoppel against the statute. 9. In view of the aforesaid legal propositions, I am of the view that the entire legal issues require to be reconsidered by a Division Bench of this Court. 10. The matter is accordingly referred to a Division Bench. 11. Put up before the appropriate Division Bench after obtaining the orders of the Honbie the Chief Justice. 12. It is made clear that any election pursuant to the notice dated 21.8.2008 shall be subject to the result of the writ petition. 13. Learned counsel for the petitioner is directed to file a second copy of the brief within one week from today.