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2014 DIGILAW 915 (PAT)

Ramendra Ram v. State of Bihar

2014-08-26

JYOTI SARAN

body2014
ORDER Heard Mr. S.B.K. Manglam, learned counsel appearing on behalf of the petitioners, Mr. Ujjwal Kumar Sinha, learned Assisting Counsel to Additional Advocate General No.XI for the State and Mr. Sanjay Kumar Tiwary for the private respondents, i.e. respondent nos.4 to 14. 2. The petitioners had initially questioned the requisition dated 24.7.2014 placed at Annexure-5 to the writ petition, inter alia, on grounds of being contrary to the provisions underlying section 44 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Act’) as regarding the allegations set out thereunder as well as its mode of presentation. While the matter was pending consideration that the notice convening special meeting was issued by the Executive Officer, Panchayat Samiti, Nauhatta, District- Rohtas on 9.8.2014 convening special meeting on 16.8.2014 which was sought to be challenged through interlocutory application bearing I.A. No.5840 of 2014, inter alia, on grounds of absence of seven days notice in terms of the provisions underlying section 46(4) of ‘the Act’ and since in the meanwhile the no confidence motion has been passed on 19.8.2014 unseating the petitioners from the post of Pramukh and Up Pramukh and the same is sought to be questioned on grounds that no discussion took place as mandated under section 44 (3) (vi) of ‘the Act’. 3. The facts of the case briefly stated is that even earlier a requisition was moved against the petitioners on 3.7.2013 a copy whereof is placed at Annexure-1 and the motion being discussed in the special meeting held on 23.7.2013, it failed and thus the petitioners continued on the post of Pramukh and Up-Pramukh. The proceedings are placed at Annexure-3 to the writ petition. Immediately on expiry of one year of the failing of the first motion that the present requisition was moved on 24.7.2014 and was duly forwarded by the Executive Officer –cum- Block Development Officer on 24.7.2014 itself to Pramukh. The copies are placed at Annexures 5 and 5/1 to the writ petition. 4. It is not in dispute that the requisition was received by the petitioner Pramukh through speed post as admitted by him in paragraph 3 of the interlocutory application. What is being questioned is the manner of service and not the absence of service on the petitioners who happen to be the Pramukh and Up-Pramukh of the Panchayat Samiti in question. It is not in dispute that the requisition was received by the petitioner Pramukh through speed post as admitted by him in paragraph 3 of the interlocutory application. What is being questioned is the manner of service and not the absence of service on the petitioners who happen to be the Pramukh and Up-Pramukh of the Panchayat Samiti in question. Even after receiving the requisition, the petitioner Pramukh instead of proceeding in the manner required under section 44(3) (i) of ‘the Act’, issued show cause to the Executive Officer questioning the manner of presentation. Since the petitioner Pramukh failed to fix the date for convening special meeting in the manner provided under section 44(3)(i) of ‘the Act’, the requisitionists took a decision and accordingly informed the Executive Officer that the date of special meeting was fixed on 16.8.2014 vide notice circulated on 9.8.2014. Though the petitioners have sought to question the said notice on grounds of absence of 7 days clear notice in between the notice and the date fixed for special meeting but the counter affidavit filed on behalf of the respondent-State encloses the corrigendum bearing Memo No.991 dated 9.8.2014 placed at Annexure-J to the counter affidavit and following which a fresh notice was issued on the same day, i.e. 9.8.2014 with the corrected date of special meeting, i.e. 19.8.2014. The special meeting thereafter was held on 19.8.2014 when the motion was passed and the petitioners have lost the confidence of the house. 5. Mr. Manglam, learned counsel appearing on behalf of the petitioners has questioned the entire proceedings culminating in the no confidence motion on the following grounds: (a) The requisition has not been served in the manner prescribed and the communication of the requisition by speed post is not in tune with the legal provisions nor was there any occasion for the Executive Officer to transmit the requisition by speed post for it reflects personal bias; (b) Even the corrigendum dated 9.8.2014 placed at Annexure-J pursuant whereto the notice convening special meeting was extended to 19.8.2014, the date of special meeting so re-fixed was not communicated to the petitioners in the manner prescribed; (c) That the notice with the corrected date of special meeting on 19.8.2014 also bears the same letter number as the earlier notice convening the date of special meeting as on 16.8.2014 placed at Annexures-9 and 10 which shows that the letters are ante-dated. (d) The allegations which form the basis for the first requisition dated 3.7.2013 and the reasons assigned in the present requisition dated 24.7.2014 are practically the same. 6. A comprehensive counter affidavit has been filed on behalf of the State in which the infirmities in the proceedings are sought to be explained and it is stated that since an attempt to serve the notice upon the petitioners failed as they were not even at their respective places as is manifest from the process server’s report placed at Annexure-C that the recourse of sending the requisition by speed-post was adopted by the Executive Officer. 7. As regarding the infirmities in the notice fixing special meeting on 19.8.2014 it is submitted that although the copy of the notice fixing special meeting on 19.8.2014 was produced during the course of hearing of this proceedings on 14.8.2014 and yet the petitioners did not choose to participate in the special meeting they cannot take any objection regarding absence of knowledge or technical infirmities in notice. In response to the objection regarding absence of discussion it is replied that the motion had been read over before the house and since there was uniformity on the allegations with no opposition forthcoming from any of the members, the motion ended in the secret voting. It is contended that where the allegations itself was admitted by all the members there remains no occasion for any further discussion thereon. It is submitted that the motion having been passed the petitioners have lost confidence of the House. 9. I have heard learned counsel for the parties and I have perused the materials on record. 10. In so far as the issue of presentation of requisition is concerned, all that the provision requires is that the requisition should be presented to the Pramukh in writing with a copy to the Executive Officer. The mode and manner of presentation is not explained and thus the legislative intendment has to be seen for there may be circumstances where the Pramukh avoids service of notice and in such circumstances as well as in circumstances where the repeated efforts by the process server fails, all other options would be available to the Executive Officer to get it served, whether through registered post/speed post or in the manner provided under Order-V rule 17 of the Code of Civil Procedure all modes are available. When the provision requires the presentation of the requisition to the Pramukh it does not mean that it can only be served personally upon him by the requisitionists rather all that is required is that the requisition should reach the Pramukh and the manner in which it reaches becomes irrelevant, so long as the receipt is not in question. 11. Thus any requisition which is addressed to the Pramukh and in particular circumstances where it cannot be served upon him, until such time that such requisition reaches the Pramukh in whatever mode and manner, no objection can be raised by the Pramukh on the manner of presentation. In so far as the present case is concerned it is the admission of the petitioners that they have received requisition by speed-post well in advance of the special meeting and thus the objection is only taken to be rejected. 12. In so far as the objection regarding 7 days clear notice as also the discrepancy in the letter number on the notice of convening special meeting is concerned, in the opinion of this Court the same being infirmities of technical nature with nothing suggesting interpolation this Court would not find the infirmity gross enough to interfere with the process and the said objection is accordingly rejected. 13. The last issue raised by Mr. Manglam is regarding similarity in the nature of allegations which accompanied the first requisition which failed and the second requisition. Apart from the fact that there is no prohibition in the Act for maintaining a requisition which contains reasons including such reasons which reiterates allegations of a failed motion, the only bar manifest from section 44(3) (iii) of ‘the Act’ is that a motion once rejected on the allegations set out no fresh motion can be brought within one year of rejection of such motion. The provisions nowhere suggest that the reasons which had not found favour on the earlier occasion cannot be reiterated in the second motion. The reasons/allegations in the successive motion may be the same but the relevant feature would be whether the allegations on which the motion is founded, has persuaded the members to vote against the Pramukh/Up-Pramukh and if the answer is affirmative then the issue becomes academic. 14. The reasons/allegations in the successive motion may be the same but the relevant feature would be whether the allegations on which the motion is founded, has persuaded the members to vote against the Pramukh/Up-Pramukh and if the answer is affirmative then the issue becomes academic. 14. In the opinion of this Court whatever be the merits of the allegations, once they are put to motion and after following the lawful procedure, has resulted in the Pramukh/Up Pramukh as the case may be, loosing the confidence of the house, there can be no judicial review either on the merits of allegations or the right of the members to maintain a second motion on identical allegations. A discussion on the allegations as provided under section 44(3) (vi) would gain relevance only where there is opposition to it or where the Pramukh/Up Pramukh decides to contest the same and vindicate their stand. It is an opportunity provided to the holder of the post and may be of a persuasive value but the outcome of the motion lies in the secret voting and if the same goes in favour of the no confidence motion, the outgoing Pramukh/Up Pramukh would have to honour the view of the house unless it suffers from procedural infraction. 15. In so far as the present case is concerned the petitioners having lost the confidence of the house with no legal infirmities in the no confidence motion passed against them, they have no right to continue. 16. The writ petition and the interlocutory applications are dismissed.