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2017 DIGILAW 1139 (PAT)

Mukesh Kumar Pandey v. State of Bihar

2017-08-30

ANIL KUMAR UPADHYAY, RAJENDRA MENON

body2017
ANIL KUMAR UPADHYAY, J.:–A group of six Councilors on one side outweighed the group of 24 Councilors and Pramukh and Up-Pramukh were elected from amongst the group of 6 uncontested is the background of the present appeal. 2. The 24 writ petitioners are the appellants in this Letters Patent Appeal. They are aggrieved by the judgment of the Writ Court dated 19.6.2017 passed in CWJC No. 15373 of 2016 whereby the Writ Court declined to interfere with the election of Pramukh and Up-Pramukh of Panchayat Samiti, Kanti, Muzaffarpur and upheld the order of the District Magistrate dated 18.8.2016 passed in Miscellaneous Case No. 1(Misc.) of 2016-17 whereby the learned District Magistrate rejected the petition filed by the appellants for quashing of the proceedings of the meeting dated 29.6.2016 in which only 6 members were present and elected the Respondent No. 7. 3. Sri Mukhtar Ahmed Lone as Pramukh and Respondent No. 8 Sri Bipin Jha as Up-Pramukh. 4. The foundational fact for adjudication of the present Letters Patent Appeal lies in a narrow compass. There are 30 members in the Panchayat Samiti, Kanti in the District of Muzaffarpur who were elected in the election of Panchyat 2016. The Sub-Divisional Officer-cum- Election Officer, West Muzaffarpur fixed 29.6.2016 as the date of election for the post of Pramukh and Up-Pramukh of Kanti Block and notice in Form -24 was issued by the Sub-Divisional Officer to the newly elected members. The notice indicate that the meeting was to be held in the precinct of Kanti Block at 10.00 A.M. on 29.6.2016. In the meeting 6 newly elected members of the Panchayat Samiti took oath and thereafter elected the respondent No. 7 as Pramukh and Respondent No. 8 as Up-Pramukh. 5. There is dispute on the point of service of notice on 3 elected members. The appellants have claimed that notice was not duly served in accordance with law to three of the members, whereas the affidavit of the Respondent Nos. 4 and 5 controverts this allegation and placing reliance on Annexure-B series, the respondents submit that notice was duly served. However, the document contained in Annexure-B series do not indicate the time and date of issuance of notice. From Annexure-B series it transpires that some of the elected members have received the notice on 23rd of June, 2016. 4 and 5 controverts this allegation and placing reliance on Annexure-B series, the respondents submit that notice was duly served. However, the document contained in Annexure-B series do not indicate the time and date of issuance of notice. From Annexure-B series it transpires that some of the elected members have received the notice on 23rd of June, 2016. There was no reference either in the Annexure-B series or the original record which was called for by this Court vide order dated 12.7.2017 the actual date of issuance of notice in Form-24 and actual date and time of service of notice. 6. Under the notification contained in Annexure-4/1 Gazette Notification dated 31st August, 2010 there is requirement of notice at least 5 days ahead in Form-24. Under clause 17 of the said notification dated 31st August, 2010, there is no requirement of any quorum for holding the election of Pramukh and Up-Pramukh. From the proceeding of the election it appears that election was held on 29.6.2016 and the Respondent Nos. 7 and 8 were elected as Pramukh and Up-Pramukh uncontested. 7. After election of Pramukh and Up-Pramukh on 29.6.2016, a complaint was filed before the respondent-District Magistrate-cum- Retuning Officer (Panchayat) alleging that in arbitrary manner the election was held on 29.6.2016 and only 6 out of 30 members participated in the election and contrary to the concept of Participatory Democracy at Grass-root level in a clandestine manner, Mukhtar Ahmed Lone and Bipin Jha were declared elected uncontested as Pramukh and Up-Pramukh of Kanti Panchayat Samiti. 8. In the complaint before the District Magistrate, Muzaffarpur the appellant Nos. 3, 10 and 12, namely, Sheela Devi, Ajit Kumar and Chanda Devi have pleaded that they were not informed about the holding of election and as such they were not available to participate in the election, whereas the other members who could not reach in time, were not allowed to take oath and participate in the election of the Pramukh and Up-Pramukh. 9. It appears from Annexure-G to the counter affidavit that the District Magistrate-cum-District Returning Officer (Panchayat) Muzaffarpur wrote letter No. 846 dated 5.7.2016 on the point of belated appearance of the 24 members in the meeting and as such they were deprived of taking oath and participating in the election of Pramukh and Up-Pramukh, the District Magistrate under the aforesaid circumstances sought guidelines from the Election Commission. From Annexure-G it appears that the Secretary of the Election Commission communicated the District Magistrate-cum-District Returning Officer (Panchayat) that since on 29.6.2016 members of the Panchayat Samiti took oath and thereafter validly elected the Pramukh and Up-Pramukh and as such no fresh election of Pramukh and Up-Pramukh shall be conducted. The remaining 24 members of the Panchayat Samiti may be administered oath during the office hours on 13.7.2016. It may be clarified that if they fail to take oath within three months, their seats shall be treated as vacant in terms of Section 138(4) of the Bihar Panchayat Raj Act, 2006. 10. Thus after the communication dated 8.7.2016 as a formality, hearing was conducted by the District Returning Officer (Panchayat)-cum-District Magistrate as after the decision of the State Election Commission that the election was duly held, there is no point of re-election and the hearing before the District Magistrate was reduced to only a formality. In the proceeding before the District Magistrate in Misc. Case No. 1/2016 18.8.2016 was fixed for hearing. The Sub-Divisional Officer, Muzaffarpur West filed her written statement which is contained as Annexure-F of the counter affidavit. The Sub-Divisional Officer in para-8 has admitted that the proceeding of oath started at 11.30 AM and at 11.35 the nomination process for the post of Pramukh and Up-Pramukh started and at 12.05 the election process of Pramukh and Up-Pramukh was completed and thereafter the 24 members reached the place after declaration of the election of Pramukh and Up-Pramukh. The District Magistrate after hearing the parties held out that there is no infirmity in the election dated 29.6.2016. 11. The appellants herein thereafter filed CWJC No. 15373 of 2016. In the writ proceedings the pen drive of the videograph of the proceeding dated 29.6.2016 was produced. 12. The Writ Court in the order dated 1.5.2017 has mentioned the details of the videography which is reproduced here:— SL. No. Video Date & Time Particulars 1. 00000 28-06-2016, 09:06 PM Entry of SDO office staff 2. 00007 28-06-2016, 11:05 PM Entry of the Returning Officer’s Vehicle. 3. 00010 28-06-2016, 11:47 PM Entry of one of Panchayat Samiti Member 4. 00011 28-06-2016, 11:56 PM Entry of some Panchayat Samiti Members 5. 00012 28-06-2016, 11:57 PM Entry of some Panchayat Samiti 6. 00000 28-06-2016, 09:06 PM Entry of SDO office staff 2. 00007 28-06-2016, 11:05 PM Entry of the Returning Officer’s Vehicle. 3. 00010 28-06-2016, 11:47 PM Entry of one of Panchayat Samiti Member 4. 00011 28-06-2016, 11:56 PM Entry of some Panchayat Samiti Members 5. 00012 28-06-2016, 11:57 PM Entry of some Panchayat Samiti 6. 00023 29-06-2016, 01:03 AM Entry of petitioner No. 1 Relevant Entries of Second Videography Footage which starts from 4:35 P.M of 01-07-2016 which runs for about 01.04:50 hrs. Running time of Video Particulars 04:40 Commencement of Oath of all six members 06:00 End of oath by the said members 08:03 Nomination form taken by Respondent No. 7 from RO 13:18 Declaration by the RO, regarding election of the Pramukh 13:56 Declaration by the RO regarding nomination to be filed for post of Up-Pramukh. 17:00 Declaration by the RO regarding election of the Up-Pramukh 19:20 BDO, Kanti meeting the RO 20:47 Panchayat samiti members protesting at Grill as they are not allowed entry 22:10 Ardail of the RO along with the fellow who was sitting besides the RO, Locking the grill 24:30 Empty premise near grill as Protesting panchayat samati members were driven out by the police force 29:44 Election certificate given to the Pramukh by the RO 29:53 Election certificate given to the Up-Pramukh by the RO 35:30 RO was surrounded by the protesting Panchayat samiti Member after she came out of the venue/hall. 13. From the entries of the videograph as mentioned in the order sheet it reflects that the footage of the videograph starts from 9.06 P.M. of 28.6.2016. The entry of second videography footage starts from 4.35 PM of 1.7.2016. None of the videographs pertains to the time of election dated 29.6.2016 and as such it is of no use in the matter of deciding the dispute regarding the actual time of commencement of election process for the election of Pramukh and Up-Pramukh and on the point of strict adherence to election norms. It is to be noted here that the idea behind Videography of entire election process is to ensure transparency and credibility of fair election which is sine qua non of democracy. But the videography of the election of Pramukh and Up-Pramukh does not reflect the actual time of the events. In fact it is not continuous and it is in the nature of clips. But the videography of the election of Pramukh and Up-Pramukh does not reflect the actual time of the events. In fact it is not continuous and it is in the nature of clips. The Writ Court after hearing the parties dismissed the writ application on the ground that the writ petitioners have the personal knowledge about the meeting at 10.00 A.M. on 29.6.2016 and they belatedly reached the venue at their own peril much after the process of administering of oath and holding of election of Pramukh and Up-Pramukh. The Writ Court referring to the judgments in the case of Sunita Devi Vs. The State of Bihar & Ors: 2016 (1) PLJR 182 held out that the proceedings of the election cannot be faulted and the Writ Court declined to interfere on the ground that facts are hotly contested and as such the Writ Court may not be the proper forum for adjudication. 14. Mr. P.K. Shahi, senior Advocate appearing on behalf of the appellants has submitted that the election of the Pramukh and Up-Pramukh of Kanti Panchayat Samiti is the celebrated example of fraud in the conduct of the election. He submitted that the entire election was conducted in a most clandestine manner and the Sub-Divisional Officer conducted the election in hot haste and defeated the objective of the election of democratic institution. Thus in connivance with the official respondents, respondent Nos. 7 and 8 were elected as Pramukh and Up-Pramukh by only 6 members out of 30 members who took oath at 11.30 A.M. and within a few minutes the formality of election of Pramukh and Up-Pramukh was completed to frustrate the election and deprive 24 members to participate in the administration of oath and participating in the election of Pramukh and Up-Pramukh. Such act of holding election is against the idea of Participatory Democracy at the Grass Root Level. 15. Mr. Shahi referring to call details and SMS details submitted that the appellants time and again informed the Sub-Divisional Officer that they were on the way but the SDO neglected their request and conducted the election on hot haste. 16. Mr. Amit Shrivastava, appearing on behalf of the State Election Commission has submitted that the election was held as per the schedule and there is no infirmity in conducting the election and the Pramukh and Up-Pramukh have been validly elected after following the process of election. 16. Mr. Amit Shrivastava, appearing on behalf of the State Election Commission has submitted that the election was held as per the schedule and there is no infirmity in conducting the election and the Pramukh and Up-Pramukh have been validly elected after following the process of election. There is no provision of quorum in terms of Clause 17 of the notification dated 31st August, 2010. Since the appellants did not reach the place of administering of oath and election of Pramukh and Up-Pramukh on time, they cannot be heard raising a grievance against the election of Pramukh and Up-Pramukh by six members. 17. Mr. Patanjali Rishi, Advocate appearing on behalf of the official respondents has submitted that the official respondents have acted in accordance with law and have committed no illegality in the election of Pramukh and Up-Pramukh and once the election is validly held, the remedy is not under Article 226 of the Constitution but election petition. 18. Mr. Y.V. Giri, learned senior counsel appearing on behalf of the private respondents has submitted that the writ petitioners have not approached the Writ Court with clean hands as there is discrepancy in the statement in different paragraphs of the writ application which falsifies their stand. He submitted that in fact all the 24 members were aware of the holding of election but they were busy in the court proceeding for obtaining bail of appellant no. 1 and as such they have deliberately not reached the place of election within time and as such they cannot be heard raising a grievance of not allowing them to take oath and participate in the election. He submitted that the complaint with regard to the service of notice in Form-24 is no more relevant in view of the fact that every one, as per their pleading, was aware of the holding of election at 10.00 A.M. on 29.6.2016. 19. Mr. Giri, has submitted that the concept behind notice in Form-24 is to address the elected members about the date and place of administering oath and holding of election and from the pleadings it appears that all the members were aware of the holding of meeting on 29.6.2016 at 10.00 A.M. 20. Mr. Giri referred to the judgments of the High Court as well as the Apex Court reported in the cases of Sabila Khatoon & Ors. Vs. The State of Bihar & Ors. Mr. Giri referred to the judgments of the High Court as well as the Apex Court reported in the cases of Sabila Khatoon & Ors. Vs. The State of Bihar & Ors. : 2017 (2) PLJR 29 , Sunita Devi Vs. The State of Bihar & Ors.: 2016 (1) PLJR 182 , K. Kamaraja Nadar Vs. Kunju Thevar and others: AIR 1958 SC 687 and F.A. Sapa Etc., Etc., Vs. Singora and others, etc.: AIR 1991 SC 1557 to submit that there is substantial compliance of notice in terms of Form-24 and they have not suffered any prejudice and as such, even if there is infraction of service of notice, it will not be consequential in the present case. 21. Mr. Giri also submitted that a person who has not come with clean hands is not entitled to any relief in a proceeding under Article 226 of the Constitution. He also referred to various provisions of the Panchayat Election Rules and the Bihar Panchayat Raj Act, particularly Sections 26,40,44 and 46 and the Gazette Notification dated 31st August, 2010 and submitted that the election of Pramukh and Up-Pramukh was validly held and referring to Clause 12 (i) and (ii) of Annexure 4/1he submitted that members shall be allowed to participate in the meeting within one hour of the time prescribed in Form-24 but once the nomination process has started, no members reaching thereafter shall be allowed to participate in the meeting. 22. In the present appeal noting the fact that 6 elected members have elected the Pramukh and Up-Pramukh by default of 24 members and despite 24 members opposing the election of Pramukh and Up-Pramukh, the Pramukh and Up-Pramukh will be immuned from any process of removal for two years coupled with the fact that the order dated 1.5.2017 containing the details of the videography manifest that videography was not the true reflection of the time and date corresponding to the election dated 29.6.2016, the Court vide order dated 12.7.2017 issued notice to the respondent Nos. 9,10,11 and 12 and Mr. Amit Shrivastava, learned counsel appearing for the State Election Commission was directed to bring the entire original records of the proceedings held in the meeting on 29.6.2016 for election of Pramukh and Up-Pramukh of the Panchayat Samiti in question. Mr. 9,10,11 and 12 and Mr. Amit Shrivastava, learned counsel appearing for the State Election Commission was directed to bring the entire original records of the proceedings held in the meeting on 29.6.2016 for election of Pramukh and Up-Pramukh of the Panchayat Samiti in question. Mr. Amit Shrivastava, Advocate produced the original records of the proceedings of the election dated 29.6.2016 with regard to the election of Pramukh and Up-Pramukh i.e. one Proceeding Register and one file/folder bearing No. 47-5/16. 23. From the Register of the proceeding dated 29.6.2016 it appears that (1) Rupam Sahi, (2) Md. Hussain Ansari, (3) Mukhtar Ahmed Lone, (4) Bipin Jha, (5) Rinki Kumari and (6) Pramila Devi were present in the meeting. The proceeding register indicates that not a single member was present at 10.00 A.M. despite announcement on microphone started at 9.30 A.M., the announcement continued till 11.00 A.M. and by that time only six members were present and at 11.30 the present six members were administered oath and thereafter the process of election started. The time of nomination of Pramukh was fixed at 11.30 to 11.40 and only one nomination of Md. Mukhtar Ahmed Lone was filed which was accepted and since only one nomination was received Md. Mukhtar Ahmed Lone was declared elected. The proceeding book is conspicuously silent as to who was the proposer and who was seconder of the nomination of Md. Mukhtar Ahmed Loan. The proceeding book further indicates that the nomination of Up-Pramukh started at 11.50 and at 12.00 noon the nomination process completed and since there was only one nomination of Mr. Bipin Jha, his nomination was accepted and he was declared elected uncontested. Again the proceeding book is silent as to who was the proposer and seconder in the nomination of Shri Bipin Jha for the election of Up-Pramukh. The proceeding book is signed by Md. Mukhtar Ahmed Lone, Mr. Bipin Jha, Rupam Sahi, Md. Hussain Ansari and Smt. Pramila Devi and the elected Pramukh, Md. Mukhtar Ahmed Lone and Up-Pramukh Sri Bipin Jha have received the certificate of their election as per the entry in the proceeding book. 24. File No. 47-5/16 with regard to the election of Pramukh and Up-Pramukh of Panchayat Samiti, Kanti Muzaffarpur was produced by Mr. Amit Srivastava. 25. The file contains 125 pages on the correspondence side and note sheet in 7 pages. 24. File No. 47-5/16 with regard to the election of Pramukh and Up-Pramukh of Panchayat Samiti, Kanti Muzaffarpur was produced by Mr. Amit Srivastava. 25. The file contains 125 pages on the correspondence side and note sheet in 7 pages. Relevant pages of the file for the present appeal are discussed hereininafter to demonstrate that fairness and transparency which is hallmark of Election was lacking in the election of Pramukh and Up-Pramukh. Page Nos. 1 and 2 contains the order of the District Election Officer (Panchayat)-cum- District Magistrate, Muzaffarpur dated 13.7.2016 wherein he has fixed the date for administering of oath and holding the election of Pramukh and Up-Pramukh. From the order dated 13.7.2016 it appears that for the Panchayat Samiti of Marban and Kanti 29.6.2016 was fixed for oath and the Sub-Divisional Officer, West Muzaffarpur was directed to issue notice in Form-24 to the elected members about the date of meeting, its time and place and the SDO was directed to maintain record of the service of notice. The notice was directed to be issued 5 days ahead the meeting and the SDO was further directed that oath of the members should be administered in Form-28 and the election of Pramukh and Up-Pramukh, Mukhiya and Up-Mukhiya etc. should be in Forms 25, 26 and 27 and after election the certificate should be issued in Form-22. 26. Pages 10 to 38 are copies of notices in Form-24 and the service report thereof. The notice bears the initial of the Sub-Divisional Officer but it does not contain the date of issuance of notice and the date when it was actually served to the elected members through the Block Development Officer in terms of letter no. 469 dated 14.6.2016. Page 40 is the contents of letter no. 1572 whereby the Block Development Officer, Kanti on 24.6.2016 submitted the report of service of notice in Form- 24 to the elected members of the Panchayat Samiti. Page 43 contains the objection of 24 members who were not allowed to take oath and participate in the election of Pramukh and Up-Pramukh. Page 44 contains letter no. 490 whereby the Sub-Divisional Officer, West Muzaffarpur communicated the District Election Officer (Panchayat)-cum-District Magistrate, Muzaffarpur about the conduct of the election of Pramukh and Up-Pramukh informing the District Magistrate that only 6 members were present in the meeting and they have elected the Pramukh and Up-Pramukh. Page 44 contains letter no. 490 whereby the Sub-Divisional Officer, West Muzaffarpur communicated the District Election Officer (Panchayat)-cum-District Magistrate, Muzaffarpur about the conduct of the election of Pramukh and Up-Pramukh informing the District Magistrate that only 6 members were present in the meeting and they have elected the Pramukh and Up-Pramukh. She also mentioned that the other members are requesting for fixing new date of oath and election of Pramukh and Up-Pramukh and as such the Sub-Divisional Officer, West Muzaffarpur requested the District Magistrate to seek instruction at his own level from the State Election Commission. Page 45 contains the direction of the Election Commission that the election of the Pramukh and Up-Pramukh is legal and valid. Pages 74 to 85 contains the appeal filed by the appellants herein under Section 40(4) of the Bihar Panchayat Raj Act, 2006 for quashing of the proceedings of the meeting dated 29.6.2016. Page 110 is the copy of the letter of the SDO West Muzaffarpur dated 2.5.2017 addressed to the Block Development Officer, Kanti with regard to the clarification that the oath of the Panchayat Samiti and the election of the Pramukh and Up-Pramukh was not videographed in continuity. The DVD by the videographer contains small clippings and as such direction was issued that videography agency/videographer should be blacklisted after seeking explanation. Page 112 is the explanation of the videographer to the Block Development Officer wherein it was explained that after videography on 29.6.2016 in the election, the CD was converted into DVD and due to paucity of time the separate clips were not assimilated. Page 116 is the letter of the Block Development Officer regarding blacklisting of videographer/proprietor of Vishal Computer and studio, Kanti. Page 124 is the copy of e-mail regarding providing the original record of election. Page 125 is the letter of the Joint Secretary, State Election Commission to the District Magistrate-cum- Returning officer (Panchayat) for providing all original documents with regard to the election of the Pramukh and Up-Pramukh. Page 126 is the letter of the District Magistrate to the SDO-cum-Election Officer to provide all original documents in connection with the election of Pramukh and Up-Pramukh. Page 127 is the letter no. Page 126 is the letter of the District Magistrate to the SDO-cum-Election Officer to provide all original documents in connection with the election of Pramukh and Up-Pramukh. Page 127 is the letter no. 219 dated 26.7.2017 addressed by the SDO to Shri Amit Shrivastava that the original record in connection with election of Pramukh and Up-Pramukh as contained in file No. 47-5/2016 in original is being sent through Smt. Praveen Jaha, Sub-Election Officer, West Muzaffarpur. 27. Although this Court passed specific order for production of the original record with regard to the election of Pramukh and Up-Pramukh and from the different correspondences available in File No. 47-5/16, it is candid that they were aware of the fact that the Court had asked for production of the original record with regard to the holding of election of Pramukh and Up-Pramukh but the nomination papers in terms of Form-25, the certificate in terms of Form 22. The details with regard to proposer and seconder of the nomination which is crucial in the matter of deciding the dispute in the present case, was not placed before the Court. 28. From the proceedings of the election dated 29.6.2016, it appears that there is no clarification when at 9.30 the announcement was made about the time of the oath and election at 10.00 A.M. why at 11.30 the oath of six members were administered, why not within the time of 10 to 11 A.M. as per Form-24. The SDO has not completed the proceeding of administering oath and election at the time informed under Form 24 if the time was so sacrosanct. There is also no explanation why the SDO waited up to 11.30 A.M. even though there was no requirement of quorum in terms of Clause 17 of the notification dated 30.10.2010. If the SDO was required to follow the time schedule in terms of Form-24, then the SDO could have completed the entire formality upto 11.00 A.M. but once the SDO departured from the time frame of 1 hour as to administering oath, there is no justification to administer oath at 11.30 A.M., what was the special reason for affirming oath at 11.30 A.M. has not been explained and the proceeding book is conspicuously silent as to the time when actually the six members assemble. It is also silent as to the submission of nomination in Form-25 and for election of the Pramukh and Up-Pramukh. There is no reference that as to who was the proposer and seconder. Thus it makes the entire conduct of election of Pramukh and Up-Pramukh under serious cloud. In the proceeding book when it was mentioned about the notice in Form -24 by same analogy, the SDO was required to explain the process which was mandated for holding of the election of Pramukh and Up-Pramukh by referring to the nomination in Form-25 and also declaration of result in Form-22. 29. The letter of the Election Commission dated 8.7.2016, whereby the District Returning Officer, Panchayat was communicated the decision of the Election Commission that the election of the Pramukh and Up-Pramukh held on 29.6.2016 is legal and valid demonstratte that the entire action thereafter by the District Magistrate in deciding the Misc. Case No. 1/2016 is only an empty formality as the District Returning Officer has endorsed the findings as to legality of election as per letter No. 5818 dated 8th July, 2016 of the Secretary, State Election Commission. 30. From file No. 47-5/16 it appears that there is pagination and repagination apart from non-production of the nomination paper for election of Pramukh and Up-Pramukh. There is no explanation why there was pagination and repagination in the file. The file relating to the action of blacklisting of the videographer on the ground that the videography is in clips and not videographed in continuity is self explanatory as to the authenticity of the videography. 31. The order sheet of the Writ Court dated 1.5.2017 which has been quoted earlier demonstrate the discrepancy in the time of election and the time of videography. The order sheet dated 1.5.2017 and the action of blacklisting of the videographer who videographed the election dated 29.6.2016 is reflection on the manner of conducting election. Thus, there is serious violation of the directives of the Election regarding the videography of the election and such violation goes to the root of election and renders the election itself under serious cloud. 32. Thus, there is serious violation of the directives of the Election regarding the videography of the election and such violation goes to the root of election and renders the election itself under serious cloud. 32. Adverting to the issue of hotly disputed fact which was the reason for dismissing the writ application, on perusal of the file No. 47-5/16 and the proceeding book of the election of Pramukh and Up-Pramukh dated 29.6.2016, the undisputed factual position which emerges are that the notice of election in Form-24 was purportedly served by the Block Development Officer, Kanti but neither the notice nor the receiving therein indicate actual time of service of notice. Under the scheme of election the requirement was 5 days clear notice which excludes the date of notice and the date of election at 10.00 A.M. From the receiving of Dinkar Singh, it appears that the notice was served on 23.6.2016. However, there is no mention that it was served before 10.00 A.M. as the meeting of the election was fixed on 29.6.2016 at 10.00 A.M. and as such 5 days clear notice was required to be served before 10.00 A.M. on 23rd of June, 2016. In addition thereto the receiving of the notice does not reflect that all the members were duly served. From the receiving it appears that notice in Form-24 of Md. Hussain Ansari was received by one Md. Aftab Ansari, Md. Hussain Ansari is one of the respondents of this case whereas the notice to appellant no. 10, Ranjit Kumar was received by the same Md. Aftab Ansari, there is no reasonable explanation as to how and why the notice in terms of Form 24 was received by Md. Aftab Ansari on behalf of Md. Hussain Ansari as well as Ajit Kumar. 33. After hearing the parties and on perusal of the records, the Court finds that in the holding of election transparency was not maintained. Firstly, from the order sheet dated 1.5.2017 of the Writ Court one can only infer that there was no proper videography of the election dated 29.6.2016. Secondly, from perusal of File No. 47-5/16 it is evident that the videographer, who had videographed the election of Pramukh and Up-Pramukh in order to maintain transparency in the election was blacklisted as there was no continuous videography but it was in clips. Secondly, from perusal of File No. 47-5/16 it is evident that the videographer, who had videographed the election of Pramukh and Up-Pramukh in order to maintain transparency in the election was blacklisted as there was no continuous videography but it was in clips. From the records it is also apparent that the Collector who was obliged to decide the application of the appellants under Section 40(4) as quasi-judicial Officer has completed the formality and after the election he sought guidelines from the Election Commission and the Election Commission in its reply dated 8.7.2016 has already declared that the election of the Pramukh and Up-Pramukh of Kanti Panchayat Samiti as legal and valid and as such the power exercised by the District Magistrate was only an eye wash. 34. From perusal of the proceeding book one cannot find the reflection of actual state of affairs of the nomination whether the nomination was legal or valid or not, who was the proposer and who was the seconder of the Pramukh and Up-Pramukh as no such details have been mentioned in the proceeding book, the proceeding book is also silent about the issuance of certificate of election in Form-22. The proceeding book is conspicuously silent as to the requirement of Clause 3(v) with regard to the nomination of Pramukh and Up-Pramukh as contained in Annexure 4/1. 35. In view of the aforesaid undisputed premise of fact and to crown it all despite clear order of this Court dated 12.7.2017 for production of the entire record with regard to the election of the Pramukh and Up-Pramukh only the selective documents in the nature of proceeding book of the election of Pramukh and Up-Pramukh and File No. 47-5/16 has been produced before this Court. When confronted about the non-production, Mr. Amit Srivastava submitted that record with regard to the nomination and election of the Pramukh and Up-Pramukh is kept in different file in terms of Rule 103 of the Bihar Panchayat Election rules. No explanation was furnished for non-production of the same despite clear direction of the Court dated 12.07.2017. 36. The Court is unable to understand the reason for non-supply of the election records despite clear order dated 12.7.2017 and the correspondences of the counsel for the Election Commission to the District Magistrate as well as the communication from the Election Commission to the District Magistrate and the Sub-Divisional Officer. 36. The Court is unable to understand the reason for non-supply of the election records despite clear order dated 12.7.2017 and the correspondences of the counsel for the Election Commission to the District Magistrate as well as the communication from the Election Commission to the District Magistrate and the Sub-Divisional Officer. The non-production of the election record contrary to the direction of this Court dated 12.7.2017 and the pagination and repagination of the file No. 47-5/2016, the blacklisting of the videographer for not videographing in continuity and the discrepancy in the time and date of election in the videography as is evident from the order sheet of the Writ Court dated 1.5.2017, make it crystal clear that the election of Pramukh and Up-Pramukh was not conducted in transparent manner. The manner in which only 6 members elected Pramukh and Up-Pramukh and 24 members were not allowed to participate in the election process is manifestly illegal and defeats the very objective of the Participatory Democracy at the Grass Root level. 37. The idea of Panchyati Raj by 73rd amendment was introduced with a view to translate the Gandhian philosophy of Panchyati Raj. The aims and objects of Gandhian philosophy of governance was set out in Article 40 of the Constitution as Directive Princiles of State Policy. 38. After nearly four decades of the framing of the Constitution by way of 73rd amendment the Panchayati Raj system was made a reality. The Apex Court judgment in the case of Bhanumati, etc. etc. Vs. State of U.P. and others : AIR 2010 SC 3796 contains detail discussion of the objective behind amendment in Part-IX of the Constitution and insertion of scheme with regard to Panchayati Raj where the Apex Court referring to the Constitutional Assembly debate, the ideas of Gandhian philosophy discussed in book ‘Indian Constitution a Corridor of Stone of Nation’ by Granville Austin and on scrutiny of the scheme of 73rd amendment has enumerated that the whole objective of Panchayati Raj is Participatory Democracy at the Grass Root level. The Participatory Democracy means the actual participation, democracy in true sense and not a tool in the hands of handful people. In the instant case 6 members on the basis of election on 29.6.2016 have out-weighed 24 members which is beyond comprehension. The Participatory Democracy means the actual participation, democracy in true sense and not a tool in the hands of handful people. In the instant case 6 members on the basis of election on 29.6.2016 have out-weighed 24 members which is beyond comprehension. The Court in the present compelling circumstance is of the considered view that though Clause 17 may not fix the quorum for holding election of Pramukh and Up-Pramukh but in the totality of the fact situation the court is constrained to hold that the Rule 17 has to be read in the manner to meet the object of fair election of Pramukh and Up-Pramukh by majority and uncontested election by six out of 30 members can never be the intention of the framers of Clause 17 of the notification dated 31.8.2010. The Court is constrained to hold that there may not be quorum of holding election but in no case by default members can elect Pramukh and Up-Pramukh without clear majority in the Panchayat Samiti particularly, having regard to the restriction of ‘No Confidence Motion’ for a period of two years in terms of Section 44 (3) (ii). 39. In this regard the judgment of the Supreme Court in Bhanumati case (supra) in paras 43 to 45, 77 and 85 is illuminating on the point of Participatory Democracy at grass root level and the same is quoted hereinafter for ready referene:— “43. When faced with a challenge to interpret such laws, Courts have to discharge a duty. The Judge cannot act like a phonographic recorder but he must act as an interpreter of the social context articulated in the legal text. The Judge must be, in the words of Justice Krishna Iyer, "animated by a goal oriented approach" because the judiciary is not a "mere umpire, as some assume, but an active catalyst in the Constitutional scheme" [See Authorized Officer, Thanjavur and another Vs. S. Naganatha Ayyar and others, (1979) 3 SCC 466 ]. 44. The Panchayati Raj Institutions structured under the said amendment are meant to initiate changes so that the rural feudal oligarchy lose their ascendancy in village affairs and the voiceless masses, who have been rather amorphous, may realize their growing strength. S. Naganatha Ayyar and others, (1979) 3 SCC 466 ]. 44. The Panchayati Raj Institutions structured under the said amendment are meant to initiate changes so that the rural feudal oligarchy lose their ascendancy in village affairs and the voiceless masses, who have been rather amorphous, may realize their growing strength. Unfortunately, effect of these changes by way of Constitutional Amendment has not been fully realized in the semi-feudal set up of Indian politics in which still voice of reason is drowned in an uneven conflict with the mythology of individual infallibility and omniscience. Despite high ideals of Constitutional philosophy, rationality in our polity is still subordinated to political exhibitionism, intellectual timidity and petty manipulation. The 73rd Amendment of the Constitution is addressed to remedy these evils. 45. The changes introduced by the 73rd Amendment of the Constitution have given Panchayati Raj Institutions a Constitutional status as a result of which it has become permanent in the Indian Political system as a third Government. 72. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the 73rd Constitution amendment and has been continued even thereafter. Similar provisions are there in different States in India. 85. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.” In Participatory Democracy purity in election is first and foremost consideration and transparency in the election process cannot be compromised at any cost. 40. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.” In Participatory Democracy purity in election is first and foremost consideration and transparency in the election process cannot be compromised at any cost. 40. In the totality of the fact situation, I am of the considered view that the manner in which the election dated 29.6.2016 was held cannot be taken as transparent election and accordingly the election of Pramukh and Up-Pramukh held on 29.6.2016 of Kanti Panchayat Samiti in the District of Muzaffarpur is held to be illegal and accordingly the same is quashed. 41. The District Magistrate-cum- District Returning Officer (Panchayat), Muzaffarpur is directed to take steps for holding fresh election of the Pramukh and Up-Pramukh at the earliest preferably within a period of one month from today. 42. The respondents are directed to henceforth ensure videography continuously of the entire election process for added credibility and must ensure that videography reflect the correct and corresponding time of election, for transparency and authenticity. 43. The appeal is allowed. However, there shall be no order as to costs. RAJENDRA MENON, J.–I agree.