Patna High Court
Uday Shankar Singh vs The State Of Bihar And Ors. on 10 January, 2003
Equivalent citations: 2003(51)BLJR496, AIR 2003 (NOC) 362 (PAT), 2003 A I H C 1348 2003 BLJR 1 496, 2003 BLJR 1 496
ORDER
1.This is a petition where an Adhyaksha of a Zila Parishad has been bundled out of his office on a motion of no confidence. The motion of no confidence was carried at a meeting held on 27-11-2001, The requisition to call this meeting is dated 8 November, 2001. As this requisition is the genesis of the issues which were debated on the writ petition and on the present Letters Patent Appeal, it would be best that this requisition dated 8 November, 2001, Annexure 2 to the Letters Patent Appeal be reproduced :
lsok esa] Jh mn; 'kadj flag v/;{k] ftyk ifj"kn] Hkkstiqj fo"k;% v/;{k ftyk ifj"kn] Hkkstiqj vkids izfr fo'okl dh deh ds izLrko ij fopkj djus gsrq ftyk ifj"kn dh fo'ks"k oSBd cqykus dk izLrkoA ge tyk ifj"kn lnL; Hkkstiqj ds fuEukafdr fuokZfpr lnL; lrn }kjk v/;{k ftyk ifj"kn] Hkkstiqj vkids izfr fo'okl dh deh iznf'kZr djrs gq, fcgkj iapk;r jkt vf/kfu;e] 1993 dh /kkjk 68¼4½ ds izo/kkuksa ds v/khu izLrko ykrs gSaa fd bl fopkj djus gsrq ftyk ifj"kn] Hkkstiqj dh fo'ks"k cSBd fu;ekuqlkj vkg`r dh tk,A
2. On the receipt of this requisition, the District Magistrate convened a meeting amongst the members of the Zila Parishad. The meeting was set for 27th November, 2001. The communication of the Executive Officer/District Magistrate, Arrah to the members of the Zila Parishad, which is otherwise Annexure-3 to the appeal, is also relevant and is reproduced :
dk;kZy; Hkkstiqj ftyk ifj"kn] vkjk i=kad&156 izs"kd%&& eq[; dk;Zyikyd inkf/kdkjh] Hkkstiqj ftyk ifj"kn vkjkA lsok esa] Jh &&&&&&&&&&&&&&&&&&&&&&&& ekuuh;; ik"kZn ftyk ifj"kn Hkkstiqj] vkjkA vkjk] fnukad 13 uoEcj 2001 fo"k;% v/;{k ,oa mik/;{k] Hkkstiqj ftyk ifj"kn ds fo:ð yk;s x;s fo'okl dh deh ds izLrko ij fopkj gsrq fo'ks"k cSBd vk;ksftr fd;s tkus ds laca/k esaA mi;qZDr fo"k;d v/;{k] ftyk ifj"kn] Hkkstiqj ds funs'k fnukad 13&11&2001 ds vkyksd esa v/;{k ,oa mik/;{k ds fo:ð yk;s x;s fo'okl dh deh ds izLrko ij fopkj gsrq ftyk n.Mkf/kdkjh] Hkkstiqj dh v/;{krk esa fnukad 27&11&2001 dks 11 cts iwokZgu esa ftyk ifj"kn Hkkstiqj] ds izkax.k fLFkr ^^f'k{kk Hkou** lekpkj esa ,d fo'ks"k cSBd dk vk;kstu fd;k x;k gSA vr% vuqjks/k gS fd mDr cSBd esa Hkkx ysus dk d"V djsaA
3. The result of the meeting which became, as termed, a motion of no confidence is recorded by the Chief Executive Officer on 27 November, 2001 (Annexure-4 to the appeal) and this is also reproduced :
Hkkstiqj ftyk ifj"kn ds v/;{k@fo'okl dh deh ds izLrko ij er foHkktu fnukad 27&11&2001 dk ifj.kkeA 1- izLrko ds leFkZu esa izkIrk erksa dh dqy la[;k 18 2- izLrko ds fojks/k esa izkIr erksa dh dqy la[;k 'kwU;3- fof/kekU; erksa dh dqy la[;k 18
4- vfof/kekU; erksa dh dqy la[;k 'kwU;
5- Mkys x;s erksa dh dqy la[;k
18
eSa ;g ?kksf"kr djrk gwa fd ftyk
ifj"kn ds v/;{kd esa fo'okl dh deh ds izLrko fnukad 27&11&2001 dks
18 'kwU; erksa ds vUrj ls ikfjr fd;k x;kA
4.The motion of no confidence was carried. The result was Uday Shankar Singh, the writ petitioner, had to leave his office as Adhyaksha, Zila Parishad. He filed a writ petition CWJC No. 16423 of 2001 : Uday Shankar Singh v. State of Bihar and Ors.. This Court is not going into another aspect that previously another motion of no confidence was brought and it was faulted on a technicality that the requisition for the meeting instead of being given to the Adhyakshya had been delivered to the Upadhyaksha. This aspect is not relevant to the matter being considered by the Court. But, it could be said that it was an exercise on a motion which failed.
5. Suffice it to say that a motion of no confidence which was carried by the requisition of 8 November, 2001, left a vacancy in the office with the result that during December, 200.1 an election was held to choose another Adhyaksha. In that election Hakim Prasad, respondent No. 5 was declared elected. It needs to be noticed that the election which took place as a consequence of this motion of no confidence, rested on the requisition of 8 November, 2001. If the requisition and the motion of no confidence can stand the scrutiny of law as it governs democracy under the Constitution and the law, then the consequential election will hold.
6. A motion of no confidence must on a cause. Its success or failure is the result of that cause.
7. A bare reading of the requisition makes it clear to the naked eye that the requisition demands a meeting for a motion of no confidence but mentions nothing as to what may be the situation on which a meeting for a motion of no confidence was being called. The person against whom the motion of no confidence was being called was not made aware of what exactly he had done to loose his office.
8. Noticing the scheme of the Bihar Panchayat Raj Act, 1993, four public offices are mentioned to preside over forums for local self Government. These are Mukhiya of the Panchayat, Pramukh of the Panchayat Samiti and Sarpanch of the Gram Katchahry, the Adhayaksh of the Zila Parishad. At present the Court is not going into the question which engaged the attention of the advocate General, Bihar whether there be any power in the State of Bihar to remove these elected representatives especially regard being had to the aspect that local self Government is now part of the fabric of the Constitution of India. It is another matter that the learned Advocate General Bihar has indicated that he will bring this matter to the notice of the Government.
9. On the other hand the Court is concerned that should the elected representatives be bundled out of the offices to which they have been elected for the asking without being told as to what exactly be their fault to loose their positions, then Bihar may have another wave of elected representative of Chairpersons of local bodies loosing their position on a simple motion of no confidence and yet not knowing what their misconduct was. Thus, the restoration of local self-Government in Bihar after a gap of two decades will be endangered.
10. In the cause before the Court there is a requisition seeking a meeting and passing of a motion of no confidence against the Adhyaksha. The motion was carried. The Adhyaksha lost his seat. Even the Court does not know that exactly was the misconduct or the misdemeanour of the Adhyaksha to loose his office nor could any one place before the Court the cause upon which a requisition was sought and a motion of no confidence was passed. This situation is disturbing.
11. Clearly, as this is an appeal of the person whose writ petition was dismissed, the main thrust of the arguments were on behalf of the person who found himself in office after the previous incumbent saw himself out of it. The appeal is opposed.
12. The contention on behalf of respondent No. 5 as made by learned Counsel Mr. Bibhuti Pandey, Senior Counsel, was that the Court ought not to read any more meaning than exists in Section 68 of the Act on the basis of which a requisition for a meeting was made and a motion of no confidence was passed. The submission was, to the effect, that the provision itself is what the legislature had intended. It is upon this that the learned Advocate General submitted that an opportunity to defend one's office on an apprehension of a motion of no confidence, is inherent and this cannot be denied. The contention of learned Advocate General was that notwithstanding that the statute ought to have mentioned this, it is implied that when a requisition was sought against the person who is to face a motion of no confidence he should have received adequate opportunity to be made aware of what exactly was the cause on which a meeting was called for the ultimate step to consider of a motion of no confidence.
13. The Court is also of the view that while democracy permits representation, a fourm which can pass an ultimate resolution that there is no confidence against a person who has been put in office by an electorate or an electoral college, then the forum should it contemplate his removal, before doing so will provide an opportunity, on a stated cause to hear the defence. The meeting which considers the requisition is a very important meeting. This meeting has also a single item agenda with a solitary purpose that the person in office will either be put out of it or will remain there for discharging his functions, in the present case as Adhyaksha. If this is an all important meeting then it is also implied that the members who will convene this meeting by a requisition will apply their minds on a very serious subject. The subject is whether a resolution ought to be passed against the person who holds the office of the Zila Parishad. This meeting is to consider whether he is not fit to act hereinafter. The ultimate result of the meeting possibly could be removal from office. The Court is aware that the statute has not spelt out such an opportunity inbuilt in the prescribed procedure. But, local self-Government is interaction within grass root democracy. It is a process of agreeing and disargeeing and administration by majority, not anarchy.
14. The Court is of the opinion that if a requisition is made to consider lack of confidence against a person who heads local self-Government then the requisition itself must detail the fault of the person in office so as to constitute an alleged misdemeanour. If formality of the initiative is otherwise is in order, then the alleged misdemeanour needs to be debated. Before the debate takes place the person who is charged with the misdemeanour must have a reasonable opportunity to address the meeting which will judge him on the matter. Either he will persuade the meeting that the motion of no confidence rests on some misunderstanding, in which case the motion will be dropped. If the meeting is not satisfied, the motion will succeed. The motion of no confidence has to rest on some premise.
15. In the present case the requisition as a prelude to a motion of no confidence was signed by less than -1/5th of the members to call a meeting. This is against the proscription of law. It is admitted even by learned Counsel for respondent No. 5, and the Court notices the fairness of Senior Counsel, Mr. Bibhuti Pandey, that the requisition has not been authored by the requisite number and 10 persons who had signed did not make the requisite numbers. The Zila Parishad is constituted of 58 members. 10 persons are not 1/5th. On admitted facts this is fatal and goes to the root of the matter. Less than one-fifth sought a motion of no confidence. And, the proceedings were initiated. Less than one third of the total strength of the local body met to pass a motion of no confidence without a stated case as a complaint. The Chairman or the Adhayaksh lost his position on an irregular requisition, no stated misconduct and a minority decision where the majority did not attend the meeting. Going to the root of the matter there is something radically wrong that an irregular requisition was carried by a minority of 18 in a house of 58.
16. In the circumstances, the Court cannot permit this motion of no confidence to stand. The person who was to face it had not been intimated what was against him the misdemeanour or allegations upon which the house was loosing confidence in him. To certify that confidence has been lost, both the cause and the result must be an open forum and face the consideration of the House, which constitutes local Government. This Court is reminded of a matter dissimilar to the present one decided by High Court in 1956 in re Sukhdeo Narain and Ors. v. Municipal Commissioners of Arrah Municipality and Ors., AIR 1956 Patna 367. The High Court was called upon to interpret a situation on what is the import or the meaning of a motion of no confidence and of the manner in which it was to be debated. Clearly, the Court was interpreting an enactment of 1922. In 1956, the year of the decision, the Constitution had not incorporated local self-Government as a fabric of the Constitution. This Court observed thus :
"There can hardly be any doubt that such a meeting is of exceptional importance where the Municipal Commissioners are required to apply their mind on a very serious subject to find out whether, in the circumstances, the head of the Executives, who had been running the institution, was not fit to act as such and, therefore should be removed forthwith. There is no impediment in the Act preventing the Commissioners submitting a requisition under Section 44 (1) or to call a special meeting under Section 44 (2) in which the subject for consideration is the removal of a Chairman or a Vice-Chairman."
Further, even if local self-Government was to be superseded, the enactment which provided for local self-Government under colonial rule ensured that a show-cause notice be given to a Municipality with an opportunity to reply to the show-cause notice and it is only then that under the Raj Rule the State Government considered whether a municipality ought to be superseded or not. Today, an opportunity to a person holding office in local Government whose continuity is.ensured cannot be disrupted so lightly. Thus, the Advocate General contended that if the law has not provided any procedure this has to be read into the law on the guarantee of the Constitution that it is inherent to democracy, and it ought to be prescribed.
17. On the writ petition, in effect, seeking a certiorari action, the learned Judge declined to grant any relief because subsequent events took care of another election on the presumption that the motion of no confidence as was" brought against the petitioner Udai Shanker Singh was valid, regular and legal. This Court, on this Letters Patent Appeal, has examined the matter as also the roots of the matter on the genesis of the motion of no confidence against Udai Shanker Singh. The very initiative was illegal and bad from its inception and arbitrary in its result. The requisite number of persons did not sign the requisition seeking a motion of confidence; this is admitted by the respondents. There is no issue no this. Thus, the very premises of the motion was illegal. Otherwise, the incumbent who was to lose his elected office was not told what was against him nor had an opportunity to defend himself. This is arbitrary. It is not democracy.
18. In the circumstances any subsequent election when the [notion of no confidence was irregular and illegally initiated and arbitrarily passed, the relief sought by the petitioner cannot be denied. The judgment on the writ petition is, thus, set aside.
19. In the circumstances, the motion of no confidence as also the resolution which carried it as was passed on 27 November, 2001 is quashed. This is so, because of lack of requisite number of persons seeking the requisition did not meet the requirement of the law. This went to the root of the matter. Any election which was called subsequently was without premise and without prejudice to the rights of the petitioner to challenged the illegality. Then, by all means a motion of no confidence may be brought against the petitioner appellant but it must be on stated cause on what exactly are the allegations on which the he use will consider a motion of no confidence. The allegations will have to be delivered to the person who will face them. A certain period will have to lapse to provide the Adhyaksha to ready himself for an opportunity and give his explanation, if he so desires.
20. Thus, the situation may not be misunderstood that there is any immunity after this Court quashes the motion of no confidence and the technicality of the bar of the period of one year will not stand in the way of the House of Zilla Parishad in the . facts and circumstances of this case as matters were sub-Judaic before the High Court. If the occasion so arises, a motion of no confidence can only be authored by requisite numbers amongst the members of the Parishad as prescribed. If it is tabled for consideration, the allegations against the incumbent are to be specifically stated and delivered to him. There has to be an opportunity to defend and offer defence before that very forum or House where the motion of no confidence lies. As the motion of no confidence and the resolution has been quashed, the petitioner-appellant returns to his office as Adhyaksha of Zila Parishad of Bhojpur at Arrah, forthwith.
21. Appeal allowed with costs.
22. A.copy of this order be sent to the Law Secretary, Government of Bihar to notice the void, in context, in the Bihar Panchayat Raj Act, 1993.