Patna High Court - Orders
Rita Devi vs The State Of Bihar on 16 July, 2024
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3957 of 2024
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Rita Devi
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Kumar Chandra Shekhar, Adv
For the Respondent/s : Mr. Government Advocate 13
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 16-07-2024I. A. No. 1 of 2024 Heard the parties.
2. The aforesaid Interlocutory application has been preferred for additional relief incorporated in paragraph -10 of the application and read as follows:
That in light of the above development the petitioner seeks to add/ substitute the following reliefs:-
1. To issue a writ in the nature of CERTIORARI for setting aside the notice bearing Letter no. 05 dated 23.02.2024 issued by the Executive Officer (respondent no. 6), in contrary to the provisions of the Bihar Gram Panchayat Raj Act, by which he has informed the members of the Block Panchayat Samiti that the special meeting of Block Panchayat Samiti has been conveyed on 01.03.2024 for consideration of No Confidence Motion against the Petitioner. On the grounds Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 2/14
(a) That the impugned notice has been issued by the Executive Officer (respondent no. 6), on the basis of a requisition which is thoroughly illegal in view of the provisions contained under Sub Section-3(i) and 3(iv) of Section 44 of the Gram Panchayat Raj Act.
(b) The impugned notice is contrary to the provisions of Section 46 (4) of the Bihar Panchayat Raj Act 2006 read with Rule 16(1) of the Bihar Panchayat Raj Institution (Conduct of Business) Rules 2015 because the same did not gave clear seven days notice
(c) That the impugned notice was served to the petitioner on 27.02.2024 and hence attract the provisions of Section 46 (4) of the Bihar Panchayat Raj Act 2006 read with Rule 16(1) of the Bihar Panchayat Raj Institution (Conduct of Business) Rules 2015.
(d) The impugned notice does not fulfill the requirements of a valid notice as contained under the Act.
3. There is no opposition from the other side.
4. The Interlocutory application no. 1 of 2024 stands allowed.
5. Let the Paragraph no. 10 of the Interlocutory application no. 1/24 be deemed as the main relief. Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 3/14 I.A No. 2 of 2024 The aforesaid Interlocutory Application no. 2/2024 has been preferred for impleading the State Election Commission, Bihar Patna as also the Officer on Special Duty, State Election Commission, Bihar as respondent No. 30 and 31.
2. There is no opposition from the other side.
3. The Interlocutory application no. 2 of 2024 stands allowed.
4. Let the aforesaid two respondents are incorporated as respondent nos. 30 and 31.
CWJC No. 3957 of 2024 Heard the parties.
2. The present writ petition has been preferred for the following relief(s):
(i) To quash the undated requisition signed by those elected members of Block Panchayat Samiti, Haveli Kharagpur, District Munger, who were not present in the General Body Meeting dated 07.02.2024, by which the petitioner has been requested to convene a special meeting for discussion on confidence Motion proposed against him;
(ii) further prayer in the present writ application is for a direction to Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 4/14 respondent Block Development Officer cum Executive Officer of Block Panchayat Samiti, Haveli Kharagpur District Munger to consider the objection representation of the petitioner dated 17.02.2024 raising his protest and serious objection to the Letter contained in Letter No. 210 dated 07.02.2024, whereby the respondent Block Development Officer, cum Executive Officer has asked the petitioner to convene Special Meeting for placing the No Motion against her and her removal from the post of Pramukh. Thereby the petitioner prays for a direction to the respondent Block Development Officer cum Chief Executive Officer, Haveli Kharagpur, Munger to take in to account the fact that even though the said undated requisition has been addressed to the petitioner, the same admittedly has not been presented before her in complete contravention of Sub Rule 3 (i) of Rule 44 of Bihar Confidence Panchayat Raj Act, 2006;
(iii) the petitioner further prays that till passing of a final order by the Respondent Block Development Officer cum Chief Executive Officer, Panchayat Samiti Haveli Kharagpur Munger, the respondent Block Development Officer, cum Chief Executive Officer and/or any other authority prescribed in Rule 44 of Bihar Panchayat Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 5/14 Raj Act, 2006 be restrained from convening any such special Meeting for discussion on the no Confidence Motion against the petitioner as Pramukh of Block Panchayat Samiti Haveli Kharagpur on the strength of such illegal undated requisition submitted in complete contravention of Rule 44 (3) (i) of the Bihar Panchayat Act, 2006.
3. The requisition that has been made for convening a special meeting which should have been directly served upon the Pramukh, it was never served upon her, rather, it was handed over to the concerned respondent No. 6. The Block Development Officer-cum- Executive Officer, Panchayat Samiti, Block Haveli, Kharagpur, Munger and only then served upon her.
4. Learned counsel for the petitioner submits that it is in the teeth of the order passed by the learned Single Judge in a case of Santosh Kumar Rai and Anrs. Vs. State of Bihar & Ors. reported in 2019 (2) PLJR 380 wherein para 18 read as follows:
18. "since there is no denial on the part of the private respondents that the requisiton dated 04.07.2018 was not served on the petitioners at the first instance rather it was submitted with respondent no. 6, this Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 6/14 Court would have no hesitation in holding that the requisition dated 04.07.2018 was not served in accordance with law on the petitioners and, therefore, the mandatory provision of Section 44(3) (I) of the Act of 2006 was not followed. This being the position, the private respondents (requisitionist) could not have again on 17.07.2018 directly approached the respondent no. 6 for holding the special meeting. The respondent no. 6 has, thus, by holding special meeting on the request of the requisitionsts, vide Annexure-R8 to the counter affidavit of the private respondents, acted illegally and without jurisdiction."
5. The second point raised by the petitioner is that of violation of Section 46(4) of 'the Act' inasmuch as the requisition made on 23.02.2024 was actually served upon her on 27.02.2024 and the meeting date was 01.03.2024 as such seven clear days mandate was not followed.
6. Section 46(4) of 'the Act' read as follows:
"Ten clear days' notice of an ordinary meeting and seven clear days' notice of a special meeting specifying the time at which such meeting is to be held and the business to be transacted thereat shall be Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 7/14 sent to the members and affixed at the office of the Panchayat Samiti. Such notice shall include in case of a special meeting any motion or proposition mentioned in the written request made for such meeting."
7. Mr. Mangalam, representing the respondent No. 7 submits that in the case of Dharamsheela Kumari Vs. Hemant Kumar & others reported in (2021) 3 PLJR 346, Section 46 of 'the Act' has already been decided in Paragraph 118 as issue No. 2 which read as follows:
"118. (Issue No. ii):- The procedure prescribed under the provisions of Section 46 of the Act for convening a special meeting is neither applicable nor can it be read into for the meeting stipulated under Section 44 of the Act."
8. He as such submits that Section 46 of the Act has now become redundant in view of the Division Bench judgement in the case of Dharmsheela Kumari (supra).
9. Now, the only issue remains as to whether in case, the Pramukh refuses to accept the notice, the same can be routed through the Executive Officer to him/her, in this case, the petitioner or not.
10. In the opinion of the Court, if in the situation, Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 8/14 where the elected Pramukh chooses to avoid 'no confidence motion' and sents request letter by absenting himself/herself for a long period from the headquarter whether the request can be routed through the Executive Officer-cum-Block Development Officer to the concerned individual or not.
11. Section 44 of 'the Act' deals with the reservation of Pramukh and Up-Pramukh which read as follows:
44. Resignation and Removal of Pramukh and Up-Pramukh.-(1) The Pramukh may resign his office by writing under his hand and addressed to the Subdivisional Magistrate and the Up-Pramukh may resign his office by writing under his hand addressed to the Pramukh and in the absence of Pramukh to the Subdivisional Magistrate and the said office shall be deemed to be vacant on the expiry of seven days from the date of such resignation unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Subdivisional Magistrate or the Pramukh, as the case may be.
(2) A Pramukh or Up-Pramukh shall vacate office if he ceases to be a member of the Panchayat Samiti.
(3) (i) A Pramukh/Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forthwith if a resolution Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 9/14 expressing want of confidence in him is passed by a majority of the total number of elected members of the Panchayat Samiti at a meeting specially convened for the purpose.
The requisition for such a special meeting shall be presented to the Pramukh in writing with a copy to the Executive Officer of the Panchayat Samiti, by not less than one third of the total number of members elected directly from the territorial constituencies of the Panchayat Samiti. The Executive Officer shall immediately bring the requisition to the notice of the Pramukh. The Pramukh shall convene such meeting on a date falling within 15 days of such requisition. If the Pramukh fails to call the special meeting, the Up-Pramukh or one third of the total number of directly elected members may fix a date for such meeting and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting. The Executive Officer shall necessarily issue such notice in time and convene the meeting. No such meeting shall be postponed once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion.
(ii) No confidence motion shall not be moved against the Pramukh or the Up- Pramukh within the first two year period of their tenure. [Such a no confidence motion may be brought only Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 10/14 once in the whole tenure of Pramukh/Up- Pramukh.] [x x x]2 3[(iii) No confidence motion against the Pramukh or Up-Pramukh or both, as the case may be, shall not be brought during the last six months of the term of the Panchayat Samiti as mentioned in Section 39 (1) of this Act.
(iv) Such reasons/charges, on the basis of which no confidence motion has to be moved against the Pramukh or Up-Pramukh, shall be clearly mentioned in the notice of meeting called to consider the no confidence motion.
(v) As soon as the meeting called under this Section begins, the presiding member of this meeting shall read out the motion on which the meeting has been called to consider before the members present and declare it open for discussion. Any discussion on the motion shall not be adjourned.
(vi) During discussion, opportunity shall be given to the Pramukh/Up-Pramukh against whom no confidence motion has been moved for his defence before the Panchayat Samiti. The motion shall be put to vote on the same day after discussion and shall take place by secret ballot in the prescribed manner.
(vii) In case of no confidence motion against a Pramukh, the meeting shall be presided by the Up-Pramukh, in case of motion against Up- Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 11/14 Pramukh by the Pramukh and in case of motion against both Pramukh and Up Pramukh, by any member elected from among the members of the Panchayat Samiti present in the meeting.
In case of the post of Up-Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Pramukh or the post of Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Up-Pramukh, as the case may be, shall be presided over by any member elected from amongst the directly elected members from the territorial constituency of the Panchayat Samiti present in the meeting.
(4) Without prejudice to the provisions under this Act, if in opinion of the [Government] having territorial jurisdiction over the Panchayat Samiti, a Pramukh or an Up-Pramukh of Panchayat Samiti absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties [Disobedience of order of an authority established by law or) or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the [Government] may, after Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 12/14 giving the Pramukh or Up-Pramukh, as the case may be, a reasonable opportunity for explanation, by order, remove such Pramukh or Up-Pramukh, as the case may be, from office.
[Provided when a system of Lok Prahari, instituted under sub-section (5) of Section-152 comes into force by a valid notification of the State Government, the Government may only pass order of removal of such Pramukh/Up-Pramukh, as the case may be in the light of in inquiry and recommendation of Lok Prahari for the removal.] [The Pramukh or Up-Pramukh so removed on the charge of being found guilty of misuse of vested powers or of misconduct in the discharge of his duties shall not be eligible for election to any Panchayat bodies till further five years from the date of such removal. The Pramukh or Up-Pramukh so removed on rest of the charges shall not be eligible for re-election as Pramukh or Up-Pramukh during the remaining term of office of such Panchayat Samiti.] (5) A Pramukh or Up-Pramukh removed from his office under sub-section (4) may also be removed by the Government from membership of the Panchayat Samiti.
12. Before taking a decision in the matter and if required referring the matter to the Division Bench to consider the situation as envisaged in para 10 of this order vis-a-vis the Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 13/14 order passed by the learned Single Judge in Santosh Kumar (Supra) case, it would be appropriate that the respondents file their respective affidavits.
13. Mr. S.B.K. Mangalam duly assisted by Ms. Sweta are representing respondent No. 7. The State shall be filing a counter affidavit on behalf of the District Magistrate, Munger (respondent No. 3).
14. Issue notice to the respondent nos. 8 to 29 through both processes i.e. ordinary as well as registered cover with A/D for which requisites etc. must be filed within a period of three weeks failing which the application shall stand rejected without further reference to the Bench.
15. In case, the order passed is not complied and the matter accordingly stands dismissed, subsequently, the same be posted under the heading 'To be Mentioned' alongwith 'Tied Up' matters before the Bench on the 'TIED UP' day.
16. The State's counter should come in next 4 weeks so that the petitioner is able to submit its reply in two weeks.
17. Respondent No. 7 shall also be filing its counter affidavit in the meanwhile.
18. Since the respondent No. 7 has already appeared, learned counsel for the petitioner undertakes to provide copy of Patna High Court CWJC No.3957 of 2024(2) dt.16-07-2024 14/14 the writ petition by friday and the receipt shall be submitted in the office.
19. List this case after eight weeks.
(Rajiv Roy, J) Jagdish/-
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