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2014 DIGILAW 168 (JHR)

Satya Narayan Yadav v. State of Jharkhand

2014-01-27

R.BANUMATHI, SHREE CHANDRASHEKHAR

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Order : Challenging vires of Section 58(1) of the Jharkhand Panchayati Raj Act, 2001, present writ petition has been filed. 2. The petitioner is the Vice-Chairman of Zila Parishad, Garhwa. On 21.08.2012, a 'No Confidence Motion' was moved against the Chairman, Zila parishad, Garhwa in which 42 members participated. The Zila parishad is constituted with 44 members which included elected as well as nominated members. In the 'No Confidence Motion', out of 42 members who participated, 26 members supported the Motion and 12 members opposed the Motion for 'No Confidence'. In view of the aforesaid facts, the petitioner has approached this Court challenging the provision in Section 58(1) of the Jharkhand Panchayati Raj Act, 2001 on the ground that the requirement of 3/4th members supporting the 'Motion' is not in consonance with the earlier provision of the Act and also not in consonance with the Bihar Panchayati Raj Act. 3. A counter-affidavit has been filed narrating the constitution of Zila Parishad as envisaged under Section 49 (1) of the Jharkhand Panchayati Raj Act, 2001. It is stated that Section 49(2) of the Act provides that all the members of Zila Parishad shall have the right to vote in the meetings of the Zila Parishad. 4. The learned counsel appearing for the petitioner has submitted that the provision under Section 58(1) of the Jharkhand Panchayati Raj Act, 2001 is ultra vires in as much as it is not in consonance with sub-Section (ii) of Section 55. The learned counsel has further submitted that the requirement of 3/4th member present and voting in the 'No Confidence Motion' against Chairman/Vice-Chairman of the Zila Parishad is not in consonance with the similar provisions contained in Bihar and Andhra Pradesh Act and therefore, the provision under Section 58(1) of the Jharkhand Panchayati Raj Act, 2001 is liable to be declared ultra vires. The learned counsel for the petitioner has further submitted that, since the only elected members have elected the Chairman/Vice-Chairman of the Zila Parishad, the nominated members cannot be permitted to participate in the 'No Confidence Motion' and thus, the provision under Section 58(1) of the Jharkhand Panchayati Raj Act, 2001 is liable to be struck down. 5. Mr. Rajesh Shankar, the learned Government Advocate has submitted that the present writ petition is misconceived. In the garb of challenging proceeding of 'No Confidence Motion', the present writ petition has been filed. 5. Mr. Rajesh Shankar, the learned Government Advocate has submitted that the present writ petition is misconceived. In the garb of challenging proceeding of 'No Confidence Motion', the present writ petition has been filed. Relying on the provision under Section 49(2) and Section 54 of the Act, the learned counsel for the respondent-State of Jharkhand has stated that the contention of the learned counsel for the petitioner is liable to be rejected as the said provisions clearly indicate that the elected as well as the nominated members are entitled to elect the Chairman/Vice-Chairman of the Zila Parishad and they are entitled to participate and to vote in the meetings of the Zila Parishad. 6. Having heard the learned counsel for the parties and appreciated the rival contentions made on behalf of the parties, we are of the opinion that the grounds raised by the petitioner for challenging vires of Section 58(1) of the Jharkhand Panchayati Raj Act, 2001, are misconceived. The composition of Zila Parishad includes the following: - 49.(1)(a), The members directly elected from territorial constituencies in the district as determined under the Act; (b) The Pramukhs of all Panchayat Samities in the district provided that the Pramukh of a Panchayat Samiti, who is a member under the Parishad, shall not be a member of the standing committee under section (72); (c) Such members of the Lok Sabha and the State legislative Assembly who represent any part or the whole of the district and whose constituency falls within the district; (d) The members of the Rajya Sabha who are registered as electors within the district; Provided that if any such member of the Parliament or the State Legislature who is member of a Zila Parishad, is unable to attend any meeting due to absence, illness or any other cause, he may nominate his such representative to attend the meeting who has such qualifications as prescribed therefore; (e) One distinguished person of the Zila Parishad area to nominated by the State Government by notification.” 7. Section 54 of the Jharkhand Panchyati Raj Act, 2001 provides that the Chairman/Vice-Chairman would be elected in the meeting convened by the prescribed Authority. It is apparent from Section 54 that the elected as well as the nominated members would participate in the meeting for electing Chairman/Vice-Chairman of the Zila Parishad. Section 54 of the Jharkhand Panchyati Raj Act, 2001 provides that the Chairman/Vice-Chairman would be elected in the meeting convened by the prescribed Authority. It is apparent from Section 54 that the elected as well as the nominated members would participate in the meeting for electing Chairman/Vice-Chairman of the Zila Parishad. Section 49 was amended by Jharkhand Act, 07 of 2002 and sub-Section (2) has been inserted which provides that all the members of the Zila Parishad shall have right to vote in the meetings of the Zila Parishad. 8. In the present writ petition, the petitioner has raised a plea that only elected representatives of the Zila Parishad should have a right of voting and thus, the petitioner is seeking exclusion of all other members from participating in 'No Confidence Motion'. The plea taken by the petitioner is contrary to the provisions contained in Section 54 & 49(2) of the Act. The petitioner has not challenged the provision contained under Section 49(2) and Section 54 of the Jharkhand Panchayati Raj Act, 2001. The learned counsel for the petitioner relying on the provision under Section 68(4) of the Bihar Panchyati Raj Act, 1993 contended that the provision contained under Section 58(1) of the Jharkhand Panchayati Raj Act, 2001 is arbitrary and discriminatory. We find no substance in the contention raised by the learned counsel for the petitioner. The provision of the Jharkhand Panchayati Raj Act, 2001 cannot be assailed on the ground that in another enactment there is a different provision for removal of the Chairman/Vice-Chairman of the Zila Parishad. 9. In the result the writ petition fails and accordingly, it is dismissed.