Patna High Court
Mohammad Zainul Abedin And Anr. vs State Of Bihar And Ors. on 25 July, 1984
Equivalent citations: AIR1985PAT61, 1985(33)BLJR232, AIR 1985 PATNA 61, 1985 BBCJ 56 1985 BLJR 232, 1985 BLJR 232
JUDGMENT Sandhawalia, C.J.
1. Whether a notice of no-confidence in the Pramukh or Up-Pramukh of a Panchayat Samiti envisaged by Section 32 of the Bihar Panchayat Samitis and Zila Parishads Act, 1961, can be validly considered in a meeting held on a holiday -- is the somewhat ticklish question necessitating this reference to the Full Bench. Equally at issue is the correctness of a Division Bench judgment in kamlesh Roy v. Rudra Narain Rai AIR 1981 Pat 264 and a conflict of precedent within this Court on the point
2. The facts are undisputed and lie in a narrow compass. Respondent No. 3 Baidyanath Prasad was elected the Pramukh of Belsand Panchayat Samiti some time the year 1979. A motion expressing want of confidence was proposed against him and notice requisitioning meeting of the members of the respondent Samiti signed by more than the requisite number of members was made over to the said respondent on the 17th of March, 1983, who, however, refused to receive the requisition. Consequently the. said requisition was presented to the Block Development Officer-Ex Officio Secretary of the Samiti, who forwarded the same to respondent No. 3 with an endorsement to call a special meeting for considering the no-confidence motion. On behalf of the two writ petitioners it has been averred that respondent No. 3 nevertheless paid no heed to the said requisition and in accordance with Rule 7 of the Bihar Panchayat Samitis and Zila Parishads (Conduct of Business) Rules, 1963, respondent No. 5 called a meeting of all the members of the respondent Samiti on the 27th of March, 1983, at 1 P.M. for considering the no-confidence motion under a notice issued by him in this behalf on the 25th of March, 1983. The writ petitioners have averrred that because the motion was directed against respondent No. 3, the Pramukh of the Samiti, petitioner . No. 1 Mohammad Zainul Abedin, who was the Up-Pramukh of the said Samiti, acted as the Chairman of the said meeting which was attended by 33 members constituting more than two-thirds of the strength of the total members of the Samiti, and after a deliberation of over two hours the said motion was unanimousely carried Thereafter respondent No. 5 who was unanimously carried. Thereafter respondent No. 5 who was present at the meeting affixed the resolution expressing want of confidence in respondent No. 3 on the Notice Board of the respondent Samiti (Annexure 2 to the petition).
3. The primary grievance of the writ petitioners is that the respondent State of Bihar acting under Section 68 of the Act proceeded to cancel the resolution aforesaid on the ground that the meeting had been held on the 27th of March, 1983, which was a Sunday and under Rule 3 no such meeting can be held on a holiday and further that the holding of the requisitioned meeting had earlier been stayed under the orders of the State Government passed on the 25th of March, 1983, itslf.
4. In the counter-affidavit filed on behalf of respondents Nos. 1 and 2 it has been averred that the Director-Cum-Additional Secretary (respondent No. 2) by his office letter dated the 24th of March, 1983, had issued an order communicating the decision of the Government to postpone the published meeting of no-confidence against the Pramukh but despite the said decision duly communicated the meeting was nevertheless sought to be held on the 27th of March, 1983, in which a vote of no-confidence was passed. It is the case that the said meeting was a deliberate disobedience of the order of the State Government and equally flagrant violation of Rule 3, which forbids the holding of a meeting on a holiday. It is then the claim that the State Government is empowered under Section 68 to cancel any resolution by the Panchayat Samiti and in the present case the said resolution being in violation of the statutory provisions has been rightly set aside.
5. Now the basic, if not the solitary, argument raised by learned counsel on behalf of the writ petitioners is that R, 3 which prescribes that the meeting of the Samiti shall not be held on a holiday has no relevance or applicability to a special meeting for considering the no-confidence motion against the Pramukh or Up Pramukh as envisaged by Rule 7. On this premise the submission was that such a meeting can be held on a holiday without any blemish, and primary reliance for this submission was on the. observation in C W. J. C No. 1013 of 1981 which undoubtedly buttresses this stand.
6. Inevitably the contention aforesaid has to be evaluated within the parameters of the statutory provisions. A reference must first be made to Section 32(1) which is in the following terms:
"32(1) A motion expressing want of confidence in the Pramukh or the Up-pramukh of a panchayat samiti may be made by a notice signed by not less than one-third of the total number of the members of the panchayat samiti and it shall be dealt with in accordance with the prescribed procedure." Now, the prescribed procedure referred to in the afore-quoted section is spelt out by the Bihar Panchayat Samitis and Zila Parishads (Conduct of Business) Rules, 1963. Therein the relevant rules, which call for notice in extenso, are :
"3. Every Samiti/Parishad shall meet at least once in every two months for the transaction of business upon such days, not being holidays and such hours of the day as it may arrange and also at other times as often as a meeting is called by the Pramukh of the Samiti/ Adhyaksha of the Parishad."
"5(1) No meeting shall be held unless notice of the place, date and time of the meeting and of the business to be transacted thereat, is given in writing to members at least ton clear days before the date of the meeting. A copy of the notice shall be pasted on the Notice Board of the Panchayat Samiti/Zila Parishad."
"7(1) The Pramukh/Adhyaksha shall call for a special meeting including the meeting for considering no confidence motion against the Pramukh or Up-Pramukh/Adhyaksha or Up-Adhyaksha within seven days of the receipt of the request in writing signed by not less than one-third of the total number of members of the Samiti/Parishad specifying. the resolution which it is proposed to move :
Provided that where the Pramukh/Adhyaksha does not call the meeting within the time-limit the Block Development Officer/ Secretary shall call the meeting within three days thereafter.
(2) The procedure for dealing with the no-confidence motion shall be the same as laid down in rules 29 to 43 of these rules:
Provided that the motion of no-confidence shall be carried with the support pf not less than two-thirds of the members present and voting."
"29. Any matter requiring the decisions of the Samiti/Parishad shall be put in the form of a resolution."
"32. Notice of resolution shall be in writing and signed by the mover and should contain a copy of the resolution."
"33. Resolutions, the notice of which has been given at least seven clear days before the convening of any meeting, shall only be considered in that meeting, -but the presiding member may allow, for reasons to be stated by him a resolution to be entered on the list of business with shorter notice."
A plain look at the contents and language of Rule 7(1) would show that it spells out the methodology for calling a special meeting of the Samiti or the Parishad. It prescribes that on the requisition in writing signed by not less than one-third of the total number of members the Pramukh must call a special meeting within seven days therefrom. Further, as a matter of abundant caution, the proviso to Sub-rule (1) lays down that on the failure of the Pramukh or the Adhyaksha to call the meeting within the time-limit the block Development Officer or the Secretary shall call such a special meeting within three days thereafter.
7. Now, the threshold question herein is whether the mandate and the prescriptions of time aforesaid for calling a special meeting mean the actual holding of such a meeting or merely the calling thereof, i.e., the fixation of the place, date and time of the meeting and adequate notice thereof to the members. On behalf of the writ petitioners, it was strenuously sought to be contended that the intent of R, 7(1) is that the special meeting for considering the no confidence meeting should be expeditiously held forthwith, within seven days of its requisitioning. On that premise, it was further contended that Rules 3 and 5 and some other rules would have no relevance or applicability to a special meeting for considering the no confidence motion, held under Rule 7
8. I regret, my inability to subscribe to the aforesaid submission of the learned counsel for the writ petitioners which appears to me as fallacious. From what would follow in some detail hereinafter, it would be plain that merely the calling of a meeting is not the actual holding thereof. The two acts, in my view, are distinct and separate. Consequently, Rule 7 merely prescribes the time-limit within which, on receipt of a requisition, the meeting is to be called either by the Pramukh or the Adhyaksha and on his failure to do so, by the Block Development Officer or the Secretary respectively. The calling of a meeting herein merely means that adequate notice of the place, date and time of the meeting and of the business to be transacted therein has to be duly given to the members of the respective bodies. On this preliminary point, I would hold that Rule 7 does not prescribe the time for the actual holding of the meeting but only lays down the period of seven days and three days respectively for the calling of a special meeting as such.
9. Yet again, it was contended on behalf of the writ petitioners that Rule 7 was itself a self-contained code and barring Rules 29 to 43, to which specific reference is made by Sub-rule (2), the other rules (and, in particular, Rules 3 and 5) have no relevance to special meeting called thereunder for considering a no confidence motion. I regret my inability to accept any such submission. To my mind, Rule 7 far from being a self-contained code unaffected by the other rules, is only confined to the methodology for calling a special meeting. A perusal of the same would make it plain that this rule is not confined only to a no confidence motion as such against the Pramukh or the Up-Pramukh or the Adhyaksha or the Up-Adhyaksha but, on the other hand, it is a general provision for the calling of a special meeting on the written requisition by one-third or more members of the Samiti or the Parishad for considering any other business to be transacted thereat By virtue of Section 32(1) as also by specific reference, in Rule 7(1) a no confidence motion is also included in, and covered by, the modus of calling a special meeting. The larger scheme of the rule would indicate that under Rule 3 ordinary meetings are to be called by the Pramukh of the Samiti or the Adhyaksha of the Parishad On the other hand, an alternative method of calling or requisitioning a special meeting is also provided by Rule 7 which prescribes that this must be on the written requisition of one-third or more of the total number of members of the Samiti or the Parishad. The distinction betwixt the two, therefore, is that of an ordinary meeting of the Samiti or the Parishad called by its Pramukh or Adhyaksha, as against a special meeting requisitioned at the instance of the requisite number of members under Rule 7. However, this distinction betwixt the ordinary meeting and special meeting loses any further significance once the said meeting has been properly called and thereafter the procedure for conducting the said meeting is broadly similar and identical Rule 7(1), therefore, is not a self-contained code or a law unto itself but provides only a method of convening or requisitioning a meeting which thereafter has to conform to the general or special rules for the holding thereof. On this finding, when once meeting has been duly requisitioned and called in terms of Rule 7 then the other rules automatically shall be attracted thereto and, in particular, the preceding Rules 3 and 5 as well. Indeed, the larger scheme of the rule would indicate that Rule 7 is not to be construed in isolation but as a part of the mosaic of the other rules, in which it is in-laid Part II of the Rules has been given the heading of "Conduct of Business at Meetings of Panchayat Samitis. and Zila Parishads". Consequently, the rules thereunder would be attracted equally to ordinary or special meetings. It would appear that wherever the word 'meeting' has been used in the Rules, the same would include within its sweep both an ordinary and a special meeting requisitioned by more than one-third of the members. Therefore, Rules 3 to 21, which form part of the sub-chapter labelled as 'General', are equally applicable to every ordinary or special meeting called thereunder,
10. It calls for pointed notice herein that once a special meeting has been requisitioned under Rule 7, no particular procedure for giving of notice thereafter is spelt out in the said rule itself. Even though pointedly asked, learned counsel for the writ petitioners could not refer us to any provision which provides differently for the calling of a special meeting. It is, therefore, plain that straightway the provisions of Rule 5(1) would be attracted, which lay down that notice of a meeting with date, time and place thereof including the business to be transacted thereat must be given in writing to the members at least ten clear days before the date of such a meeting. One cannot easily imagine that the meeting of a large statutory body like the Samiti or the Parishad can be held dehors any rules for giving notice thereof and calling of the same. I am clearly of the opinion that Rule 5 is equally and squarely applicable to the calling of a special meeting, as it obviously is to the ordinary meetings.
11. Again, Sub-rule (2) of Rule 7 itself gives a lie direct to the stand that the said rule is in any way a self-contained code for the purpose of either holding a special meeting or for considering a no confidence motion. Indeed, the sub-rule, in terms, prescribes that the procedure for dealing with any no confidence motion shall be the same as laid down in Rules 29 to 43. The sub-chapter of 'Resolution' comprising therein Rules 29 to 43 is plainly attracted to both ordinary and special meetings. It is mandated by Rule 29 that any matter requiring the decision of the Samiti or the Parishad shall be put in the form of a resolution. Rule 32 itself provides that the notice of such resolution must be in writing and signed by the mover and should contain a copy of the said resolution. It is significant that Rule 33 lays down that ordinarily a resolution shall only be considered if a clear notice thereof has been given seven clear days before the convening of a meeting. This rule again negatives the somewhat tenuous stand of the writ petitioners noticed earlier that the meeting for considering a no confidence motion under Rule 7 must be held within seven days of its requisition.
12. Once it is held that apart from the methodology of requisitioning a special meeting under Rule 7, the rest of the rules for the conduct of business at such meetings are common, it would follow that Rule 3 would be equally attracted to a special meeting. It, in terms, prescribes that the Samiti or the Parishad is to meet upon such days which are not holidays. The Samiti and the Parishad being large bodies (some of them have a membership of 50 to 100 persons), the framers of the rule have taken care to prescribe in great detail not only the methodology of convening a meeting but also of conducting such meetings by as many as 59 precise rules therefor. Some of the matters have been gone into in meticulous detail by these provisions. Now, if the bar of holding an ordinary meeting on a holiday has been specifically laid, one sees no particular reason why this would not be made applicable to a special meeting as well which, as I have already said, is distinct only as regards the manner of calling or requisitioning the same. It is common knowledge that Legislatures and other important statutory bodies are chary of holding meetings on notified holidays. On principle and on the scheme and the language of the rule, I am clearly inclined to the view that Rule 3 is equally applicable and attracted to the holding and conduct of a special meeting (including one for considering a no confidence motion against the Pramukh or the Up-Pramukh) and bars the same to be held on a holiday.
13. Inevitably one must now turn to the precedents of this Court and doubts raised with regard thereto which, indeed, have necessitated this reference to a larger Bench. Pride of place must be given to a Division Bench judgment in Kamlesh Roy v. Rundra Narain Rai AIR 1981 Pat. 264 in which, though the reasoning is somewhat cryptic, the conclusion is entirely in consonance with the view I have taken above for detailed reasons. Therein one of the principal points raised was that the meeting of the Panchayat Samiti held on holiday was hit by Rule 3 and, therefore, invalid. It was observed as follows (at.P. 267) :
"In the meantime a special notice, was given by respondent No. 2 on 4-10-79 fixing the meeting on 7-10-79 which was a holiday. It was hit by Rule 3 as no such meeting could be held on a holiday. The rules have been framed under Section75 of the Act for carrying out the purposes of the Act and it requires to be laid before each House of the Legislature for a total period of 15 days. The rules thus being statutory rules have the same force as the provisions of the Act. Rule 3 being a complete embargo on a meeting being held on a holiday, the meeting held on 7th Oct. 1979, was against the express provision of Rule 3."
14. Learned counsel for the writ petitioners, however,' attempted some misplaced reliance on an observation in Rajendra Singh v. State of Bihar 1982 Pat. LJR 159 : (AIR 1982 NOC 178). In the said case, the question of applicability of Rule 3 and of holding a meeting of the Samiti on a holiday did not even remotely come for consideration. The case is thus not of the least assistance to the writ petitioners. After a consideration of the scheme of the rules in general, it was observed in para 5 of the report that a no confidence motion has to be considered in a special meeting called for and conducted under Section 32 read with Rule 7 and not according to the procedure for convening the ordinary meeting. There can be no quarrel with this proposition. As has been repeatedly said by me earlier, a no confidence motion, in view of the procedure prescribed, has to be considered in a special meeting called under Rule 7. The aforesaid observation is thus not the least basis for the proposition that Rules 3 and 5 would not be attracted or applicable to such a meeting. It must, therefore, be held that the case of Rajendra Singh (supra) is plainly distinguishable.
15. It now remains to advert to a single Bench judgment in Devta Charan Lal v. The State of Bihar (C. W. J. C. No. 1013 of 1981 decided on the 2nd of April 1981). Reading of the brief judgment therein indicates that the matter was not adequately debated or canvassed before the Bench and neither principle nor precedent was cited nor the larger conspectus of the rules adequately highlighted. The binding precedent of the Division Bench in Kamlesh Roy's case (AIR 1981 Pat 264} (supra) rendered on the 2nd of Jan, 1981 was not brought to the notice of the learned single Judge either. The finding in the judgment being plainly contrary to the larger Bench judgment in Kamlesh Roy's case thus seems to have been rendered per incuriam. However, there is no manner of doubt that an observation was made thereto that the provisions of Rule 3 were not applicable to the special meeting convened under Rule 7, which is not sound law in view of the detailed reasons given above. With the greatest respect, therefore, the judgment in Devta Charan Lal's case (supra) has to be overruled.
16. To conclude, the answer to the question posed at the very outset is rendered in the negative, and it is held that in view of Rule 3 a motion of no confidence against the Pramukh or the Up-Pramukh of a Panchayat and passed, in a meeting held on a holiday. The earlier view of the Division Bench in the case of Kamlesh Roy v. Rudra Narain Rai is hereby affirmed.
17. Once the legal position is settled as above, it is plain that this writ petition must fail. It is common ground that in view of the fact that the meeting had been called for the 27th of March, 1983, which was a Sunday, the State Government, in pursuance of the mandate of Rule 3, had stayed the holding of any such meeting. It could not be and, indeed, was not even remotely urged before us that the State Government did not have the power to order such stay. It must, therefore, be held as valid. Nevertheless, in flagrant violation thereof a meeting was held in haste on a holiday. Consequently, the State Government was compelled under the mandate of Rule 3 to cancel the said resolution passing the vote of no confidence on a holiday. In the writ jurisdiction I find not the least justification to interfere with the action of the respondent State, which was within its jurisdiction and equally in conformity with the statutory rules. The writ petition, therefore, must be dismissed, but in view of the intricacy of the question and some conflict of precedent (which necessitates the overruling of the earlier single Judge judgment in Devta Charan Lal's case) I would leave the parties to bear their own costs.
Hari Lal Agrawal, J.
18. After having read the lucid judgment prepared by the learned Chief Justice, there hardly remains anything useful which I can add, but since the correctness of one of the judgments in the case of Rajendra Singh v. State of Bihar 1982 Pat LJR 159 : (AIR 1982 NOC 178), which has been rendered by me, also did arise for consideration, I would like to add a few observations of my own.
19. It has been rightly observed by the learned Chief Justice that the main question referred to the Full Bench did not arise in that case. The principal question that arose in that case was as to the limitation for holding the adjourned meeting for consideration of a motion of no confidence against a Pramukh and an Up-Pramukh. By the observation in para 5 of the judgment that "a no confidence motion has to be considered in a special meeting called for and conducted under Section 32 read with Rule 7 and not according to the procedure for convening ordinary meeting", I did not mean that the other procedures and the rules for convening a meeting did not apply altogether.
I entirely agree that the period of seven days for convening a special meeting for considering a no confidence motion under Rule 7 of the Bihar Pancbayat Samitis and Zila Parishads (Conduct of Business) Rules, 1963, does not mean that the meeting itself must be held within the period of seven days from the receipt of the written request by the prescribed number of members of the Samiti. Similarly a three days time limit prescribed for the Block Development Officer or the Secretary to call the meeting in case of the failure of the Pramukh to call for the meeting within the time limit prescribed for him, does not mean, that the meeting itself should be held within' the period of three days. Such construction would be unworkable in view of the large number of the members of the Samiti and its constitution. No time limit appears to have been fixed under the law regulating the convening of the special meetings for holding the meetings either by the Pramukh or the Executive Authority of the Samiti. The law simply enjoins upon them a duty that no delay beyond the time of seven days and three days should take place by the respective authorities in calling for the special meeting. The date of the meeting obviously may be after the respective periods of seven days and three days. In that view of the matter, while fixing the date for convening the meeting, days of holiday have to be avoided in view of the special provision contained in Rule 3 in this regard. As the meeting in question had been convened on a Sunday, it was invalid in law being hit by rule 3. The application, therefore, must be dismissed.
R.C.P. Sinha, J.
1. I agree.