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2014 DIGILAW 942 (PAT)

Devendra Yadav v. State of Bihar

2014-09-02

JYOTI SARAN

body2014
ORDER : Heard Mr. Shri Prakash Srivastava, learned counsel appearing on behalf of the petitioner, Mr. Jawahar Prasad Karn, learned Additional Advocate General No.4 for the State, learned counsel for the State Election Commission and Mr. Ram Suresh Roy, learned senior counsel appearing on behalf of the private respondents. This writ petition was filed questioning the requisition moved by the Members of the Panchayat Samiti, Patahi in the district of East Champaran as against the petitioner who happens to be the Up-Pramukh of the said Panchayat Samiti. The requisition is dated 23.7.2013 and is placed at Annexure-1 to the writ petition. Pursuant to the requisition, the Executive Officer vide letter dated 25.7.2013 placed at Annexure-3 intimated the date of special meeting which was fixed by the Pramukh on 2.8.2013 and on which date the special meeting took place and the petitioner lost the confidence of the house to continue as a Up-Pramukh. The proceedings of the special meeting dated 2.8.2013 is impugned vide I.A. No.6427 of 2014 and is placed at Annexure-5 to the interlocutory application. Since during the pendency of the writ petition, the date for election had been notified hence the petitioner prayed for stay of the notice dated 11.8.2013 impugned vide I.A. No.5671 of 2013 and vide order passed on 19.8.2013 the operation of the notice dated 11.8.2013 was stayed. The private respondents appeared through counsel and filed I.A. No.6650 of 2013 for vacating the order of stay dated 19.8.2013 and also filed a counter affidavit and it is thereafter that the matter has been taken up and though listed under the heading ‘For orders on petitions’, with the consent of the parties it has been heard with a view to its final disposal. I have heard learned counsel for the parties and I have perused the materials on record. The requisition is placed at Annexure-1 to the writ petition and though it is addressed to the Pramukh as mandated under section 44(3)(i) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Act’) but it has been routed through the Block Development Officer who also happens to be the Executive Officer of the Panchayat Samiti. In the opinion of this Court, the requisition itself is invalid for though it is addressed to the Pramukh, it has been routed through the Executive Officer and which is not the prescription of law. In the opinion of this Court, the requisition itself is invalid for though it is addressed to the Pramukh, it has been routed through the Executive Officer and which is not the prescription of law. Although the provisions underlying section 44(3)(i) of ‘the Act’ provides for presentation of the requisition to the Pramukh with a copy endorsed to the Executive Officer but it does not require a presentation through the Executive Officer rather it has to be presented to the Pramukh directly. There may be circumstances where the requisition cannot be served on the Pramukh who may be avoiding its service and in which circumstance, the requisition can be served through any alternative mode and manner but in no circumstances the requisition itself can be addressed to the Pramukh through the Block Development Officer. In the opinion of this Court this single infirmity has infracted the proceeding. As a consequence the requisition as contained in Annexure-1, the notice dated 25.7.2013 as contained in Annexure-3 as well as no confidence motion passed in the special meeting held on 2.8.2013 impugned at Annexure-5 cannot be upheld are held illegal and thus set aside. The writ petition is allowed. The interlocutory applications stands disposed of. This order, however, would not preclude the private respondents/requisitionists to proceed in the matter afresh by moving a fresh requisition in accordance with law.