ASFAQUE, SON OF SK MOHAMMAD ALI, RESIDENT OF SHEKHPATTI BHUIDHARWA, PS Vs. THE STATE OF BIHAR THROUGH THE DIRECTOR PANCHAYATI RAJ BIHAR, PATNA

JUDGEMENT

(1.) The petitioner is the Pramukh of Panchayat Samiti - Bhitaha, District - West Champaran. He challenges the no confidence motion as passed against him by the Panchayat Samiti. It may be noted that no confidence motion was passed against him. This no confidence was passed on 25th of Oct., 2013. Mr Y V Giri, learned Senior Counsel appearing for the petitioner has been heard and also heard Shri S.P. Srivastava, who has appeared for private respondent No 8 with authority to represent the other private respondents as well. Learned counsel for the State and State Election Commission have also been heard. A counter affidavit has been filed on behalf of respondent No 8. This application is being disposed of at this stage itself.

(2.) Petitioner challenges the no confidence motion on a technical plea. He states that first a requisition was presented to the Pramukh leveling certain charges and signed by the requisite number of members. To him, it appeared that several members have in fact not signed the requisition. He ordered an enquiry. He, thus, fixed no date for the meeting. It then appears that the requisite number of members of Panchayat Samiti then, on failure of petitioner fixing the date, fixed the date and requested the Chief Executive Officer that is the Block Development Officer to issue notice to all the members of the Panchayat Samiti accordingly. Accordingly, on 17th Oct. 2013, notices were issued by the Block Development Officer to all the members. It appears on 18th of Oct. 2013, when notice was sought to be served by the petitioner, he was not found in the house. His brother, having read the notice, refused to accept the same. Accordingly, the office peon stuck the notice on the adjacent house which is the community hall. On the same day, that is 18.10.2013, a registered notice was also sent to the petitioner in this regard.

(3.) Petitioner asserts in his writ petition that there was no valid service of notice on him accordingly. In fact, he has stated that there was no notice that was at all served on the petitioner. He further asserts that as per Sec. 46 (4) of the Bihar Panchayat Raj Act 2006, the notice had to be in writing given to the p\ies and it must be of seven clear days. Mr Giri points out that notice, having not been served and even the registered notice has been issued on 18.10.2013 fixing 25th of Oct. 20013 as the date, the mandatory provisions of Sec. 46 (4) has been violated. In the counter affidavit, it is stated that the office peon clearly reported that the brother of petitioner has read the notice and refused to accept the same as petitioner was not there. In the counter affidavit, the office peon's report has been annexed which clearly states that upon refusal of the brother of the petitioner to accept the notice, the notice was pasted not on the petitioner's house but on the community hall of the Panchayat, next to petitioner's house. It is then alleged that a registered notice was sent on 18.10.2013.