Patna High Court
Smt. Rambha Sinha vs The State Of Bihar And Ors. on 12 April, 2004
Equivalent citations: 2004(2)BLJR1408
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
JUDGMENT Chandramauli Kr. Prasad, J.
1. This application has been filed for quashing the notice (Annexure-4) issued by the Executive Officer of Panchayat Samiti, Katra intimating that the special meeting of the Panchayat Samiti shall be held on. 7.1.2002 to consider the motion of no confidence brought against the Pramukh. By way of amendment prayer of the petitioner is to quash another notice (Annexure-9) issued by the Executive Officer dated 4.2.2002 conveying that the special meeting of the Panchayat Samiti shall be held on 11.2.2002 to consider the motion of no confidence against the Pramukh. Petitioner has also prayed for quashing of the resolution dated 11.2.2002 whereby the motion of no confidence has been carried out against her.
2. Shorn of unnecessary details facts giving rise to the present application are that the petitioner was elected as the Pramukh of the Panchayat Samiti, Katra and a requisition (Annexure-1) to convene a special meeting of the Panchayat Samiti was given to her to consider the no confidence motion. Petitioner by order dated 29.12.2001 (Annexure-2) rejected the said prayer, inter alia, on the ground that out of 30 members 18 have shown their confidence in her. Ultimately the Executive Officer of the Panchayat Samiti gave notice intimating to the members that special meeting of the Panchayat Samiti shall be held on 7.1.2002 to consider the no confidence motion brought against the petitioner. The meeting as scheduled was held and 15 members voted in favour of the motion and the proceeding indicates that the motion was carried out against the petitioner.
3. It is relevant here to state that total number of elected members of the Panchayat Samiti is 30 and out of that 15 members had shown no confidence against the petitioner and whether that would be sufficient to carry out the no confidence motion, the District Magistrate by his memo dated 14.1.2001 (Annexure-6) sought instruction from the Secretary of the Panchayati Raj Department. The Secretary by his memo dated 30.1.2002 (Annexure- 7) observed that for carrying out the motion of no confidence, 16 members' vote is necessary and as such motion of no confidence supported by 15 members shall be deemed to have been defeated.
4. It is the stand of the petitioner that on the basis of the same requisition special meeting of the Panchayat Samiti was fixed on 7.2.2002 and on that date the motion of no confidence was passed against the petitioner. Stand of the answering respondent, however, is that the first requisition was made on 24.1.2001 and on that requisition meeting was held on 31.12.2001 whereas the second requisition was made on 22.1.2002 and on that basis the meeting was held on 7.2.2002 and on that date motion of no confidence was carried out against the petitioner.
5. It is relevant here to state that during the pendency of the writ application, fresh election to the office of the Pramukh was held and by order dated 5.6.2002 same was made subject to the final decision of the present writ application.
6. Mr. Vinod Kumar Kanth, appearing on behalf of the petitioner had advanced several submissions to assail the impugned resolution but as the writ application is to succeed on a very short point, I deem it inexpedient to either incorporate or answer the same. He submits that notice of the meeting held on 11.2.2002 in which motion of no confidence has been carried out against the petitioner was sent on 4.2.2002 and as such same does not conform to the requirement of Section 44(4) of the Bihar Panchayat Raj Act (hereinafter referred to as the Act). He submits that Section 44 (4) of the Act contemplates seven clear days notices for holding the special meeting, which would obviously mean that the date on which the notice is sent and the date on which the meeting is held have to be excluded for calculating the number of days. Mr. Mihir Kumar Jha with usual brilliance, however, submits that in case the provisions of Section 44(3) and (4) of the Act are read together and principles of harmonious construction applied, one of the two days. i.e. the day on which the notice was sent or the day on which meeting was held, has to be excluded. It is common ground that in case one of the days is excluded the notice conforms to the requirement of Section 44 (4) of the Act, otherwise not.
7. Rival submission necessitates examination of Section 44(3) and (4) of the Act. Same read as follows :--
"Meetings of Parichayat Samiti :--xx xx xx (3) The date, of the first meeting of the Panchayat Samiti, after its constitution shall be fixed by the Sub- Divisional Magistrate who shall preside at such meeting and date of each subsequent ordinary meeting shall be fixed at the previous meeting of the Panchayat Samiti, provided that the Pramukh may for sufficient reasons, alter the day of the meeting to a subsequent date. The Pramukh may, whenever he thinks fit, shall, upon the written request of not less than one-third of the total number of members and on a date within fifteen days from the receipt of such request call a special meeting. Such request shall specify the object for which the meeting is proposed to be called. If the Pramukh fails to call a special meeting, the Up- Pramukh or one-third of the total number of members may call the special meeting for a day not more than fifteen days after presentation of such request and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting."
"4. 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 sent to the members and affixed up 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."
8. From a plain reading of Section 44(3) of the Act it is evident that the Pramukh has necessarily to call a special meeting upon the written request of not less than one-third of total members within fifteen days from the receipt of such request and in case the Pramukh fails to call the special meeting the Up-Pramukh or one-third of the total number of members may call the special meeting for a day not more than fifteen days after presentation of such request. Here I am not going to the question of the meaning of the expression the total number of members', excepting to make a passing reference that in case the total number would mean to include members who have no right to vote, in many of the Panchayats the numbers of members required to give valid requisition for convening the special meeting to consider the no confidence motion would be more than the number required to pass the no confidence motion. By no process of interpretation the special meeting can be held within fifteen days from the date of receipt of requisition, in case the Pramukh fails to call a special meeting. In my opinion, the Pramukh has to take the decision to call a special meeting upon the written request of not less than one-third of the total number of members sufficiently in advance so as the notice of the meeting conforms to the requirement of seven clear days notice. The members who had given the requisition to call a special meeting shall not have to wait for fifteen days from the date of receipt of such request by the Pramukh but on expiry of such time which shall not permit seven clear days notice, it shall be deemed that the Pramukh had failed to call a special meeting and then one-third of total number of members or the Up-Pramukh may call the special meeting with a rider that the special meeting shall be held on a day not more than fifteen days after presentation of such request. The Up-Pramukh or one-third of the total number of members have been given the authority to call the special meeting concurrently and one-third of the members are not to wait till the Up-Pramukh calls the special meeting. Under the scheme of the Act the Up-Pramukh or one-third of the total number of members have the authority to call the special meeting in case the Pramukh fails to call a special meeting. In my opinion, in case it is held that after the Pramukh fails to call a special meeting, one-third of the total number of members will have to wait for the decision of the Up-Pramukh, the provisions to call the special meeting for a day for more than fifteen days after presentation of such request will never be adhered to. The command of the legislature to the Pramukh to call a special meeting within fifteen days from the receipt of requisition shall not necessarily mean that the Up-Pramukh or one-third of total number of members shall have to call the special meeting within fifteen days from receipt of the requisition by the Pramukh. The authority granted to the Up-Pramukh or one-third of the total number of members to call the special meeting for a day not more than fifteen days shall commence on presentation of such request to him.
9. So far as Section 44(4) of the Act is concerned, same in emphatic terms provides for seven clear days notice of a special meeting. The question is what is the meaning of the expression "seven, clear days notice". Probably no question has more exercised the mind of Judges in former time than the question as to proper mode of computing time. The statute requiring that notice of grounds of appeal was to be given fourteen days at least before the first day of session, it was decided that fourteen days at least meant fourteen clear days. The expression "not being less than fifteen days" was considered to mean fifteen clear days. Here the Legislature itself has used the expression "seven clear days notice". In case I hold that one of the days is to be reckoned inclusive and the other exclusive I shall be held guilty of rendering the words used by the Legislature superfluous. It is sound principles of interpretation that the Legislature is deemed not to waste its words or to say anything in vain and the Court while considering the provisions shall not lean towards a construction which renders the words used by the legislature redundant except for compelling reason. To brush aside words in a statute is not a sound principle of construction and effort has to be made to give meaning to each and every words used by the legislature. Here the legislature has used the words seven clear days notice and from that its intention is clear that the day on which the notice is sent and the day on which the meeting is held, have to be excluded for computing seven clear days. The Legislature in its wisdom has provided for seven clear days notice so as to enable the elected representatives to deliberate and defend the motion. Therefore, on first principle I am of the opinion that for computing seven clear days the day on which the notice is issued and the date of meeting shall be excluded.
10. I had the occasion to consider this question on first principle in the case of Arun Kumar Singh v. The State of Bihar and Ors., AIR 2004 Pat 24, wherein I have held as follows :--
"8. Having answered this, the next question which falls for determination is as to how the period of seven clear days notice is to be calculated. It is well settled that when a statute provides for stated period of notice to be given, this requirement must be met, otherwise the meeting will be invalid. In the present case, Section 44(4) of the Act had in no uncertain term provided for seven clear days notice which would obviously mean that the notice shall be exclusive of the day on which it is issued and of the meeting. Applying the aforesaid principle, I am of the opinion that the notice to hold the meeting is invalid in the eye of law as seven clear days was not given."
11. Further in the case of Nagendra Prasad Singh v. The State of Bihar and Ors., 2004 (1) PLJR 531, I have held as follows :--
"6. Having appreciated the rival submissions, I find substance in the submission of Mr. Singh. The notice for holding the meeting on 30.9.2003 was issued on 23rd September, 2003. Thus seven clear days notice was not given to hold the meeting. This itself vitiates the notice. Consequently, the business transacted on 30th of September, 2003 is not in accordance with law. Resultantly the motion of no confidence passed against the petitioner is non-est in the eye of law, which cannot be allowed to stand."
12. The frequently with which this question is coming for adjudication before this Court, I decided to deal with this question in little detail and I have come to the conclusion that the long line of precedents also support the view which I have taken.
13. In re Railway Sleepers Supply Company, 1885 (2) Chancery Division it has been held as follows :--
"The Court considered its judgment, and then decided that one of the days was to be reckoned inclusive, and the other exclusive, but not being subsequently satisfied with that decision, the matter was reconsidered; and the Court held that the words "not being less than fifteen days," meant fifteen all days or clear days. In Young v. Higgon, 6 M & W 49, a calendar month's notice was required to be given, and the Court held that the first days must be excluded from the reckoning. Alderson, B., in his judgment said (1) : "Where there is given, to a party a certain space of time to do some act, which space of time is included between two other acts, to be one by another person, both the days of doing those acts ought to be excluded, in order to ensure to him the whole of that space of time." In Blunt v. Heslop, 8 Ad and E 577 which turned on 2 Geo. 2, c. 23, the statute which then related to solicitors, under which an attorney was not entitled to commence an action for his fees until the expiration of one month or more after he had delivered his bill, it was held that time was to be reckoned exclusively of the day on which the bill was delivered and the action brought; on the same principles as those which were stated in the case of Young v. Higgon, 6 M & W 49. These cases are not, in my opinion, distinguishable from the case before me; which, as I have said, is that there must be an interval of not less than fourteen days. That means fourteen clear days; and as Little date, J, said in Reg v. Justices of Shorpshire, 8 Ad and E 175, I do not see any distinction between "fourteen days" and "at least fourteen days". I must come therefore to the conclusion that resolution is bad.
14. In re Hector Whaling, Limited, 1936 Chancery Division 208, it has been held as follows :
"I do not think there is any doubt about its meaning, and I propose to found my decision on Rex v. Turner, (1910) 1 KB 346 and Chambers v. Smith, 12 M and W 2 and to decide that the phrase means twenty-one clear days exclusive of the day of service and exclusive of the day on which the meeting is to be held."
15. In Shackleton on the Law and Practice of Meetings, Ninth Edition, in paragraph 5-08 (8) it has been stated as follows :--
(8) Length of notice :
"It is clear where the regulations provide for a stated period of notice to be given, this requirements must be met or the meeting will be invalid".
xx xx xx "Under many regulations affecting the service of notices it is provided that "clear days" must be given, that is to say that the notice shall be exclusive of the day on which it is served, and of the meeting. It is established that, even in the absence of specific provision, "days" means clear days, since it has been held that the words "at least 14 days before the date" of a meeting means 14 clear days between the date of the advertisement or notice calling the meeting and the day of the meeting, and an interval of "not less than fourteen days"
between two meetings, means an interval of 14 clear days, exclusive of the respective days of meeting."
16. A Division Bench of the Nagpur High Court had the occasion to consider this question in little detail in the case of Rambharoselal Gahoi v. State of Madhya Pradesh and Ors., AIR 1955 Nagpur 35, in which the meaning of the expression "clear days" has been explained and it has been unequivocally held that in case of use of such expression the two terminal days must be excluded. Relevant portion of the judgment reads as follows :
"9. The rule of law is that when words such as so many "clear days" or so many days "at least" are used, the two terminal days must be excluded. This rule is summarised by Maxwell on the Interpretation of Statutes, 10th Edn., at page 351, in these words :
"Again, when so many 'clear days', or so many days 'at least' are given to do an act, or not 'less than' so many days are to intervene, both the terminal days are excluded from the computation. In other cases, it would seem, the rule is to exclude the first and include the last day."
This statement is based on many cases cited by Maxwell, but the learned author has not referred to Lord. Tenterden's Test which was approved and applied Lord Wensleaydale (then Parke N.) in Webb v. Fairmaner, (1834) 3 M and W 473 (C) and Young v. Higgon, (1840) 6 M and W 49 at p. 54 (D)."
17. A Division Bench of the Rajasthan High Court in the case of Anokhmal Bhurelal v. Chief Panchayat Officer, Rajasthan Jaipur and Ors., AIR 1957 Raj 388, had the occasion to consider the meaning of the expression "at least 7 days" which expression is synonymous with seven clear days and has held that in computing the period seven days clear interval is required. Relevant portion of the judgment reads as follows :--
"The answer to the question was therefore given in the negative and the notice was held to be invalid. The language of Rule 4 is not similar to the language of Section 22 of the Income-tax Act. In Rule 4 the language used is "at least seven days" before the date of election. The language of the provision of the statute that came up for consideration in (1838) 8 Ad and E 173 (B) is every much similar to the language of Rule 4 and the observation referred to above the learned Judges in that case may serve as of assistance in this case. "At least seven days before the date of election" clearly means that 7 days' period must intervene between the date of the announcement of the notice and the date of election. In other words "seven days" clear interval is required by the law to lapse between the date of the announcement of notice and the date of election. The general rule of law of the computation of time is that fractions of a day are not reckoned. Bose J. in Ramkrishna Bahau v. Shrawak Kisan, AIR 1944 Nag 356 (K) observed that :
"In the first place, it is accepted that the day on which the copies are applied for and the day on which they are delivered are both to be excluded. Why? Because the law takes no account of the fractions of a day."
"The learned Judge accepted the general rule of law that has been stated above. Having regard to the said general rule of law the interval between the date of the publication and the date of election in the present case cannot be considered to be more than days, because the act of announcement has to be considered as co-extensive in time with the day on which it was announced.
The date of announcement in the present case is, as stated earlier, 14th of October, 1955, and the date of election is 21st of October, 1955. Excluding the date of announcement and the date of election the intervals comes to 6 days only."
18. The use of the expression 'not less than ten days' in a statute was held to mean ten clear days and while interpreting the said provisions a Division Bench of the Punjab High Court in the case of Jai Bhagwan Sharma and Anr. v. Matu Ram Bhola Ram and Ors., AIR 1964 Punj 135 held that in a case in which the election programme was published on 29.7.1961 the last date for making nomination was fixed for 8.8.1961 then only nine days intervened between the two dates which was not in conformity with the statutory rules providing for not less than ten days time. Relevant portion of the judgment reads as follows :--
"......It was held that fourteen clear days must elapse between the dates of service and that of return. It is, therefore, quite obvious that in the present case ten clear days had to intervene between the date of publication of the election programme and the first of the dates specified in it, namely, 29th. July, 1961 and 8th August 1961. Admittedly in this view of the matter there was a contravention of the mandatory provisions of the aforesaid rule."
19. In the case of Pioneer Motors Ltd. v. Municipal Council, Nagercoil, AIR 1967 SC 684, the Supreme Court has held that when the statute uses the expression 'not more than so many days' both the terminal days have to be excluded and the number of days mentioned must be clear days. Here the statute itself has used the word seven clear days and, therefore, both the terminal days have to be excluded. Relevant passage from paragraph 8 of the judgment reads as follows :--
"......The words "not being less than one month" do imply that clear one month's notice was necessary to be given, that is, both the first days and the last day of the month had to be excluded. To put it in the language used by Maxwell on Interpretation of statutes, 10th Edition, p. 351 :--
"When......"not less than" so many days are to intervene, both the terminal days are excluded from the computation."
20. The aforesaid view has been reiterated by the Supreme Court in the case of Jai Charan Lal Anal v. The State of U.P. and Ors., AIR 1968 SC 5, wherein it has been held as follows :--
"It is no doubt true that where the expression is 'not less than so many days' both the terminal days have to be excluded and the number of days mentioned must be clear days but the force of the words 'not earlier than thirty days', is not the same. 'Not earlier than thirty days' means that it should not be the 29th day, but there is nothing to show that the language excludes the 30th days from computation. In other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not to go in breach of the expression 'not earlier than thirty days'. The 25th of November was the 30th day counting from October 26 leaving out the initial day and, therefore, it cannot be described as earlier than thirty days. In other words, it was not earlier than thirty days from the date on which the notice under Sub-section (2) was delivered to the District Magistrate. This reading is also borne out by the other expression 'not later than thirty-five days' which is used in the section, in this Court, Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271, the expression 'not later than 14 days' as used in Rule 119 under the Representation of the People Act was held to mean the same thing as 'within a period of fourteen days". In that expression the number of days, it was held, should not exceed the number fourteen. In the sub-section we are dealing with the number of days should not exceed thirty five days. On a parity of reasoning not earlier than thirty days should include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were "not earlier than thirty days and not later than thirty days" it is obvious that only the 30th day could be meant. This proves that the fixing of the date of the meeting was, therefore, in accordance with law and we respectfully disapprove of the view taken in the Andhra Pradesh case."
21. The aforesaid discussion leads me to come to the same conclusion which I have reached in the case of Arun Kumar Singh (supra) on first principle that Section 44 (4) of the Act which had in no uncertain term provided for seven clear days notice would mean that the notice shall be exclusive of the day on which it is issued and of the meeting.
22. To put the record straight, Mr. Jha has suggested for reading down the provision of Section 44(4) of the Act in relation to the days of notice on the plea that if seven days is counted by exclusion of the day of notice and the meeting, Section 44(3) of the Act shall not be workable. In support of his submission he has placed reliance on a Full Bench judgment of this Court in the case of Braj Kishore Singh others v. The State of Bihar and Ors., 1997 (1) PLJ R 509 and my attention has been drawn to paragraph 25 of the judgment, which reads as follows :--
"In the present case also in view of the inherent "unworkability' of the impugned provisions regarding prior approval of the State Government the provisions can be read down in the manner indicated above. The soul of the provisions is not violated and the purpose is also achieved. The purpose in making these provisions is to pre-empt illegal and uncalled for appointments. Large scale illegal appointments without availability of posts have been made in different establishments/organisations in this State in recent time and the legislature thought it appropriate to intervene and make the provisions which would deter the College/University authorities from making illegal appointments because, more often than not, it is the State which has to bear the financial burden of the appointments. The purpose underlying the provisions, therefore, has not only to be lauded but also achieved. If Section 36 is interpreted in the manner indicated above, not only the provisions would be substantially complied with but the purpose also would be fulfilled."
23. There is not difficulty in accepting the broad submission of Mr. Jha that is order to sustain the provision in a statute, while interpreting the same can be read down so that the objects underlying the provision is achieved. To effectuate the purpose of the statute recourse to the aforesaid process of interpretation is well know and the doctrine of reading down can also be applied on the ground of vagueness or ambiguity in the statute, where the intention of the legislature can be ascertained from the object of the statute, its context and the purpose. In the instant case, the interpretation which I have put in regard to Section 44(3) of the Act in the background of what has been required by Section 44(4) of the Act, I am of the opinion that there is no ambiguity and as such doctrine of reading down, a doctrine which is applied as a matter of last recourse is not fit to be invoked. I am of the considered opinion that the provisions under consideration are neither unworkable nor ambiguous or vague to attract the aforesaid doctrine for interpretation.
24. Mr. Jha feebly suggests that provisions of Section 44(4) of the Act requiring seven clear days notice is directory in nature and even it if it is held that the notice did not conform to the aforesaid requirement, the decision of no confidence motion passed in such meeting shall not be vitiated. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Pioneer Motors Motor Ltd. v. Municipal Council, Nagerciol, AIR 1967 SC 684, relied by the petitioner also. He has drawn my attention to the following passage from paragraph 9 of the judgment, which reads as follows :--
"......The object of the notification is to inform the future rate payers and to invite objection from them. The proviso itself uses words "reasonable time." Reading "reasonable time" and "not being less than one month" together, it is clear that the time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed. In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provisions which is directory in its later part".
25. I do not find any substance in the submission of Mr. Jha. In the case relied on by him the power of municipality to levy the tax did not depend upon the period prescribed for notice for objection and to give the tax payers reasonable time of not being less than one month, the prescription of period was held to be directory in nature. Here the Legislature in no uncertain term and provided for seven clear days notice. The object of the notice is to consider the no confidence motion against an elected person. Hence in order to give sufficient time to the members bringing the motion to convince other members the undesirability of continuance of elected person and the person elected to convince the members to the futility of such motion. In view of the object underlying, I am of the opinion that the provisions cannot be said to be directory in nature. This point pointedly come up for consideration before the Division Bench of the Nagpur High Court in the case of Rambharoselal (supra) in which in paragraph 11 it has been held as follows :--
"......In our opinion, the rules do require that ten clear days should elapse between the notice of a resolution of no confidence and the motion of no confidence. The rule of a ten days which is framed is in the interest of municipal administration and also of the electors whose representative the president is. The section which enables a vote of no confidence to be moved enables the members of the committee to get rid of a president with whom they cannot work. But in this clash of principles, the Legislature has thought it wise to put in a provision about ten clear days. We cannot regard that provision, in the circumstances, as merely directory."
26. The Rajasthan High Court in the case of Anokhmal Bhurelal (supra) had also answered this question in the following words :--
"The use of the words "at least seven days before date of election" in Rule 4 clearly indicate that the law contemplates exclusion of the date of election in the computation of the interval of 7 days for the purpose of that rule; We are of the opinion that seven clear days interval is required between the date of announcement of the notice and the date of election under Rule 4, and as in the present case the interval comes to only six days even if 14th of October, 1955, is taken to be the date of announcement, a case of contravention of Rule 4 has been made out. Disregard to the provisions of Rule 4 which a mandatory provisions renders the proceedings of election illegal. We are, therefore, constrained to hold that the ejection, in the present case, cannot be regarded as valid on account of disregard of the mandatory provisions of Rule 4."
27. The Punjab High Court had also held such provision to be mandatory in the case of Jai Bhagwan (supra) which would be evident from the passage quoted above.
28. The book, Shackleton on the Law and Practice of Meetings, seventh edition, has also stated that where the regulation provides for stated period of notice to be given this requirement must be met or the meeting will be a invalid, which would be evident from the passage quoted in the proceedings paragraph of this judgment.
29. Bearing in mind the purpose of the meeting and the object of the notice I have no manner of doubt that the requirement of giving seven clear days notice is mandatory in nature. I had the occasion to consider this question in the case of Arun Kumar Singh (supra) wherein I have held in paragraph 7 of the judgment as follows :--
"......The use of the word 'shall' raises a presumption that this provision is imperative. The agenda of the special meeting is to consider the no confidence motion. No confidence motion is brought against an elected person by elected representative and in a democratic country governed by the rule of law, policies and programmes are criticised or defended in such meeting and in such circumstances the legislature has provided for seven clear days notice so as to enable the elected representatives to deliberate and defend the motion. In my opinion, if the provisions of Section 44(4) of the Act is held to be directory, same, in given case, will not provide to the office bearer sufficient time convince the member the futility of the no confidence motion. Hence I have no manner of doubt that provision of Section 44(4) of the Act requiring seven clear days notice is mandatory in the notice."
30. As a last straw, Mr. Jha submits that during the pendency of the writ application respondent No. 6 has been elected as Pramukh of the Panchayat Samiti and in case no confidence motion passed against the petitioner is held to be illegal, in sum and substance respondent No. 6 shall Have to vacate the office. He points out that election of Pramukh can only be challenged by way of election petition and as such the relief sought for by the petitioner, if granted, would amount to setting aside the election of respondent No. 6 as Pramukh which is impermissible. In this connection he has drawn my attention to Article 243-O of the Constitution of India which provides that no election to any Panchayat Shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. In this connection Mr. Jha has also referred to Section 140 of the Act which mandates that election to any office of a panchayat or a Gram Kutchery shall not be called in question except by an election petition as prescribed.
31. The submission advanced by Mr. Jha prima facie seems attractive but on scrutiny I find the same to be without any merit. It is relevant here to state that this Court by order dated 5.6.2002 had directed that any election held during the pendency of the application shall be subject to its final decision. Here petitioner cannot be shown the door on the ground that in the meanwhile respondent No. 6 has been elected as Pramukh. Further in the present case, petitioner, is not directly challenging the election of respondent No. 6 as Pramukh of the Panchayat Samiti. She is aggrieved by her removal on account of the motion of no confidence having been carried out against her. No remedy has been provided under the Act to question the validity of the no confidence motion. Hence, in my opinion, this Court shall have jurisdiction to go into the legality or otherwise of the motion of no confidence and in case it is found to be illegal, the election of a person on account of the vacancy created by no confidence motion would be a matter which would be consequential to the decision on the question of validity of the no confidence motion. The validity of the motion of no confidence passed against a person cannot be gone into in an election petition contemplated under Section 140 of the Act and in case it is held that election of a person to a seat becoming vacant on account of passing of the no confidence motion cannot be gone into in a writ petition, virtually a person suffering an illegal motion of no confidence shall be remediless. The effect on the office of the Pramukh as a result of a person getting elected because of the vacancy occurring on account of the no confidence motion is consequential in nature and, therefore, the writ application is not fit to be dismissed on the ground urged by Mr. Jha.
32 Now I come to the end of the judgment. The question is as to what relief the petitioner is entitled. In view of my finding that seven clear days notice for the special meeting was not given and the said provision being mandatory in nature, the motion of no confidence necessarily has to be held to be illegal. But in the peculiar facts of the present case, I am of the opinion that the petitioner shall not be reinducted as the Pramukh till a fresh decision on the no confidence motion. Hence I direct the Executive Officer to issue a notice of the special meeting of the Panchayat Samiti giving seven clear days notice within two weeks from the date of receipt of a copy of this judgment to consider the no confidence motion against the petitioner and in case the same is defeated, by respondent No. 6 shall vacate the office and petitioner shall continue to function as the Pramukh of the Panchayat Samiti. However, in case the motion is carried out by required majority, respondent No. 6 shall continue as the Pramukh. For the purpose of the said meeting petitioner shall be deemed to be the Pramukh and as such exercise such power as is conferred on the Pramukh and on that day the status of respondent No. 6 shall not be of Pramukh.
33. Writ application stands allowed in the aforesaid term. No cost.