Patna High Court
Balram Singh Yadav vs State Of Bihar And Ors. on 20 April, 2005
Equivalent citations: AIR2005PAT172, AIR 2005 PATNA 172, (2005) 3 PAT LJR 582
Author: V.N. Sinha
Bench: V.N. Sinha
ORDER V.N. Sinha, J.
1. Heard learned Counsel for the petitioner, the State and the Private Respondent No. 9.
2. Petitioner, who was elected as a Chairman of the Zila Parishad, Supaul, has filed this writ application assailing the requisition dated 7-2-2002, Annexure-1, notice dated 14-2-2002, Annexure-2 and the proceedings of the special meeting of the Zila Parishad dated 26-2-2002, Annexure-3 to this application, whereunder no confidence motion for his removal from the said office has been passed on the ground that the said Requisition, notice and the proceedings of the special meeting is violative of the provisions contained in Sub-section(4) of Section 68 of the Bihar Gram Panchayat Act, 1993 (hereinafter referred to as the Act), which inter alia, provides that requisition for calling a special meeting of the Gram Panchayat to consider the motion of removal against the Adhyaksha and the Upadhyaksha should be submitted to the Adhyaksha and the Upadhyaksha and not directly to the District Magistrate and in the present case the requisition dated 7-2-2002, Annexure-1 was submitted directly to the District Magistrate who issued notice dated 14-2-2002. Annexure-2 on the basis of which special meeting to consider the no confidence motion was held on 26-2-2002, Annexure-3, as such, requisition, notice and the proceedings of the special meeting are illegal and contrary to the provisions laid down in Sub-section (4) of Section 68 of the Act. In support of the aforesaid contention, learned Counsel for the petitioner has relied upon the judgment of Division Bench of this Court in the case of Uday Shankar Singh v. State of Bihar, reported in 2003 (2) Pat L J R 123 : 2003 AIHC 1348. Perusal of the said judgment would indicate that in the said case no confidence was passed against the chairman of the Zila Parishad concerned on the basis of a requisition, which was contrary to the provisions contained in Sub-section (4) of Section 68 of the Act and this Court having noticed the illegality in the requisition, set aside the subsequent proceedings of special meeting carried by minority of 18 in the house of 58 taken in the light of the illegal requisition.
3. On the other hand, counsel for the State as also the counsel for the Private Respondent No. 9 submitted that requisition dated 7-2-2002, Annexure was directly submitted to the District Magistrate, Supaul may be contrary to the provisions contained in Sub-section (4) of Section 68 of the Act, but as petitioner participated in the special meeting held on the basis of requisition and notice dated 7/14-2-2002 on 26-2-2002, which fact is evident from the proceedings recorded on 26-2-2002, as such, he is stopped from challenging the requisition, subsequent notice and the proceedings of the special meeting dated 26-2-2002, Annexure-3 on the ground of estoppel as he being aware of the illegality acquiesced to the illegality. In support of the aforesaid contention, learned State Counsel as also Counsel for the Private Respondent No. 9 has relied upon a decision of this Court in the case of Raghuni Nayak, Hansi Lal Sahani v. District Magistrate, Darbhanga, . A Division Bench of this Court in the aforesaid case dismissed the writ petition and upheld the election on the ground that petitioners having participated in the election and having lost the same were stopped from challenging the same on the ground of acquiescence and estoppel. Learned State Counsel and the Counsel for the Private Respondent No. 9 distinguished the case relied by the counsel for the petitioner, namely, the case of Uday Shankar Singh. (supra) on the ground that Principle of Estoppel /acquiescence was not discussed while setting aside the proceeding of no confidence carried by a minority of 18 in the house of 58. They further submitted that case of Uday Shankar Singh (supra) appears to be per incuriam as the same has not considered the earlier Division Bench Judgment of this Court in the case of Raghuni Nayak (supra).
4. learned Counsel for the petitioner, in reply, however, submitted that perusal of the judgment in the case of Uday Shankar Singh (2003 AIHC 1348) (supra) would show that the Division Bench of this Court in the said case did notice the fact that writ petitioner Uday Shankar Singh had participated in the special meeting on the basis of illegal requisition and the notice yet the Division Bench had set aside the motion of no confidence passed in the said meeting.
5. The ratio decided in the case of Uday Shankar Singh (2003 AIHC 1348) (supra) as also in the case of Raghuni Nayak (supra) appear to be contrary to each other, but as the subsequent Division Bench had not taken note of the earlier Division Bench of this Court, in any opinion, the subsequent Division Bench judgment of this Court is per incuriam of the earlier judgment and is not a binding precedent. In this connection it is essential to note the observations of the Hon'ble Supreme Court in the case of Jaisri Sahu v. Rajdewan Dubey, :
"Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in ILR (1940) Mad 454: (AIR 1940 Mad 356) (FB) that the decision of a Court of Appeal is considered as a general rule to be binding on it. There are exceptions to it, and one of them is thus stated in Halsbury's Laws of England, third edition, Vol. 22, para. 1687, pp. 799-800 :--
"The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords".
6. Accordingly, following the earlier Division Bench judgment of this Court, I upheld the resolution passed in the meeting held on 26-2-2002 even when the said meeting was held on the basis of requisition dated 7-2-2002, Annexure-1, which was contrary to the provisions contained in Sub-section (4) of Section 68 of the Act on the ground that petitioner participated in the said meeting held on 26-2-2002 and having been voted out of office he is stopped from challenging the proceeding of the meeting on the ground of illegal requisition and notice. I do not find any merit in this application, which is, accordingly, dismissed. No cost.