Patna High Court
Satya Narain Singh And Ors. vs State Of Bihar And Ors. on 18 August, 1983
Equivalent citations: AIR 1984 PATNA 26, 1984 MCC 1 264, 1984 BLT (REP) 129, (1983) PAT LJR 656, (1983) BLJ 45
ORDER P.S. Sahay, J.
1. The petitioners in this writ application have prayed for quashing the entire proceedings of the meeting held on 16-10-1982 by which a motion of no confidence was passed against petitioner 1 who was the Pramukh of Chautham Block Panchayat Samity in the district of Khagaria. A copy of the resolution has been filed and marked Aonexure-3.
2. In order to appreciate the points which have been raised in this application it will be necessary to state some facts, petitioner 1 was elected as Mukhiya of Kaithu Gram Panchayat in the year 1971 and he was re-elected on the same post in the year 1978. On 7-3-1979 he was elected as a member of the Panchayat Samity and ultimately he was elected as the Pramukh of the Panchayat Samity petitioners 2 to 10 were also elected or co-opted as members of the Panchayat Samity having been elected as Mukhiyas from different Gram Panchayats. Petitioner 1, as it is stated in the petition, had been working satisfactorily but some of the respondents were not satisfied for some reason or the other and, therefore, they planned to oust petitioner 1 from the post of Pramukh. Some of them filed a requisition on 10-10-1982 for convening a special meeting of the Samity for considering a no-confidence motion against petitioner 1. A copy of that requisition has been filed and marked Annexure-1, Petitioner 1 on receipt of the same issued a notice for holding the meeting on 10-10-1982 at 11 A. M. in the Block office. A copy of the notice sent to all the members has been filed and marked Annexure-2. On 16-10-1982 the meeting was held in the Block office and the Up-Pramukh presided over the deliberations of the meet:ng. It is stated in the petition that petitioners 3 and 4 raised objection regarding holding of the meeting on a holiday, which was in clear violation of Rule 3, Bihar panchayat Samitis and Zilla Parishads (Conduct of Business) Rules, 1963 (hereinafter referred to as the Rules) but no action was taken and thereafter it is stated that there was a complete pandamoniurn and actually no meeting took place but a proceeding was recorded that no confidence motion by 2/3rd majority was passed against petitioner 1. A copy of the resolution of the meeting held on 16-10-1982 has been filed and marked Annexure-3. A copy of the proceeding was sent by respondent 3 the Up-Pramukh to the persons concerned. A copy of the same has been filed and marked Annexure-4. Being aggrieved by the aforesaid resolution the petitioners moved this Court on 6-1-1983 and on 7-1-1983 it was ordered that petitioner 1 will not be disturbed from his office and the case was ultimately admitted on 17-1-1983 and the interim order was to continue during the pendency of this application.
2-A. A counter-affidavit has been filed on behalf of respondent 2 the Secretary of the panchayat Samity in which the allegation that no meeting was held has been completely denied. It has also been asserted that on the requisition filed by some of the respondents, petitioner 1 himself convened the meeting on 16-10-1982 and also participated in the aforesaid meeting. The fact that petitioners 3 and 4 had raised objection regarding holding of the meeting on a holiday has been denied. It has also been averred that there was no pandemonium rather the meeting was held smoothly and no-confidence motion was passed by 2/3rd majority. Another counter-affidavit has been filed on behalf of respondents 3 to 23 in which the same thing has been reiterated and it has been further stated that 21 members voted in favour of no-confidence motion which was more than the required majority. The fact that there was an objection by petitioners 3 and 4 and that there was a pandemonium has also been denied by them.
3. Learned counsel appearing on behalf of the petitioners has contended that the meeting was held on a holiday which is in clear violation of Rule 3 of the Rules and in that view of the matter the entire proceedings must be held to be null and void. In this connection reliance has been placed on a Bench decision of this Court in Kamlesh Roy v. Rudra Narain (1981 Pat LJR 38) : (AIR 1981 Pat 264) in which it has been held by their Lordships that Rule 3 being a statutory rule puts a complete embargo on a meeting being held on a holiday and, therefore, the meeting which was held on 7th October. 1979 in that case was against the express provision of law and fit to be quashed. The procedure for convening a no-confidence motion has been laid down under Section 32, Bihar Panchayat Samitis and Zilla Parishads Act, 1961 (hereinafter referred to as the Act). Section 32 runs thus :--
"32. Motion of no-confidence in Pramukh or Up-Pramukh -- (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.
(2) If the motion is carried with the support of not less than two-third of the members of the Panchayat Samiti present and voting the Pramukh or the Up-Pramukh, as the case may be, shall cease to hold the office as such and shall be deemed to have vacated the same on and from the date on which the fact of the motion having been carried is affixed on the notice board of the office of the Panchayat Samity.
(3) If the motion is not carried as aforesaid or if the meeting called in the prescribed manner for dealing with the motion is not held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or the Up-Pramukh shall be made until after the expiration of six months from the date of such meeting.
(4) No notice of a motion under this section shall be made within six months of assumption of office by a Pramukh or Up-Pramukh as the case may be."
Under Rule 7 (1) of the Rules 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. Sub-clause (2) lays down that 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 of not less than two-third of the members present and voting. There is no dispute in this case that requisite number of members had filed a requisition for convening the meeting of no-confidence on 10-10-1982. On that petitioner 1 who was the then Pramukh himself convened the meeting fixing 16-10-1982 and informed all concerned. Rule 3 runs as follows :--
"Every Samiti/parishad shall meet at least once in every two months for transection 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." .
Relying on this provision it has been vehemently argued that there has been clear violation of this rule which puts a complete embargo upon holding a meeting on a holiday and reliance has been placed on the case of Kamlesh Roy (AIR 1981 Pat 264) (supra). Mr. Mani Lal learned standing counsel appearing on behalf of the State, on the other hand, contended that it was petitioner 1 who himself convened the meeting and also took part in the meeting and having lost the meeting is estopped from raising this point. In support of this contention reliance has been placed on the case of Maksudan Raut v. State of Bihar (1983 BBCJ 240) : (AIR 1983 Pat 186). It has been held in this case that if a person participates in the election he cannot challenge the same having lost the election. That requires close scrutiny of the two decisions relied upon by the learned counsel appearing on behalf of the parties. In the case of Kamlesh Roy the facts are somewhat different which will be clear from para 3 of the decision itself. The requisition for holding no-confidence motion was placed before the pramukh on 28-9-1979 but since there were executive holidays from 28th September, 1979 to 4th October, 1979 and 5th and 6th October. 1979 were declared special holidays and 7th October. 1979 being Sunday, the no-confidence motion was ordered to be placed on 8th October. 1979 but in spite of that the Block Development Officer issued a notice fixing 7-10-1979 as the date of the said meeting and the Pramukh who was the concerned person was not given any information about the said meeting and the meeting should not have been held on the 7th October, 1979 as it was a Sunday, still the meeting was held and a motion of no-confidence was passed. In that context it has been held by their Lordships that the meeting was held on a date which was a holiday in spite of the fact that the pramukh had ordered earlier the meeting to be held on 8-30-1979 and the meeting was actually held without notice to him. Now taking up the facts of the instant case it was petitioner 1 himself who convened the meeting for 16-10-1582 and actually the meeting was held and a number of persons including petitioner 1 himself participated in the same. No doubt it is stated in the application that objection was raised by petitioners 3 and 4 not to hold the meeting as it was a holiday but this fact has been repudiated in the counter-affidavit filed by respondent 2 and also by respondents 3 to 23. This being a question of fact it cannot be investigated by this Court. The facts of the case of Maksudan Rant (AIR 1983 Pat 186) (supra) are similar to the facts of the instant case where the meeting was held and a motion of no-confidence was passed by 2/3rd majority and thereafter another election was held in which the same Pramukh contested and last the election. But what was actually challenged was the former meeting which according to the petitioner was not done in accordance with law and this argument was negatived bv his Lordship holding that the Pra-mukh himself having participated in the aforesaid meeting and having lost the same was estopped from raising the point. Learned counsel for the petitioners has tried to distinguish this decision on the ground that subsequently another election was held in which the Pramukh took part and had lost the election. But reading the decision as a whole it will appear that it has been clearly held by his Lordship that if a person takes part in a meeting" and allows the meeting to continue and then having lost the same cannot challenge the proceedings of the meeting nO doubt in Rule 3 there is bar on holding a meeting on a holiday but it was petitioner 1 himself who is supposed to know the rules, and procedure, had convened that meeting. Not only that he was present in the meeting though it was disputed that he did not take Dart in the meeting. In that situation I am unable to accept the contention of the learned counsel appearing on behalf of the petitioners that the meeting having been held on a holiday the entire proceeding must be deemed to be null and void.
4. The next contention of the learned counsel appearing on behalf of the petitioners is that the proceedings are vague and are in clear contravention of Rules 20 to 43 of the Rules. He has submitted that no confidence motion which was passed against petitioner 1 was not in the form of a resolution. True, it is not in the form of a resolution :as required under the Rules. But in Annexure-3 which is the resolution it has been clear" ly mentioned that in favour of no confidence motion 21 persons had voted, therefore, 2/3rd of the members having voted it was passed. It has been rightly contended by learned Standing Counsel that what is to be seen is the substance and not the form and from the resolution, which has been referred to above, there is no doubt in my mind, that no confidence motion was put to vote and 21 persons voted in favour of the motion which was ultimately carried. Therefore, the second contention raised on behalf of the petitioners is devoid of any substance and it must be rejected.
5. Lastly it has been submitted that two persons, namely, Ram Saran Yadav and Dayanidhi prasad Verma who are at Serial Nos. 28 and 29 of the resolution (Annexure-3) were not competent to take part in the proceeding and by their presence the entire proceeding has been vitiated. This contention is also, devoid of any substance. The fact that they were not competent persons has been denied in the counter-affidavit filed on behalf of respondents 2 and 3 to 23. Further I find that 29 persons were present and if the presence of Ram Saran Yadav and Dayanidhi Prasad Verma is ignored even then 27 persons have participated in the meeting which is more than 2/3rd of the majority.
6. Thus on a careful consideration of the entire facts and circumstances of this case I find that there is no merit in this application and it is, accordingly, dismissed. But in the circumstances of the case the parties will bear their own costs.