HIRALAL MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, the State and Private respondents.

(2.) The petitioner who is the Pramukh of Chandan Panchayat Samiti has filed this writ application assailing the requisition, signed by 10 elected Members of the Panchayat Samiti served on him under Letter No. 741, dated 24.11.2003 of the Block Development Officer, Chandan, Annexure-2 as also the Resolution of the Chandan Panchayat Samiti dated 18.12.2003, Annexure-4, passed on the basis of the said requisition removing him from the office of the Pramukh, Chandan Panchayat Samiti by a majority of 10 votes. The ground of challenge raised against the requisition served on the petitioner under Letter dated 24.11.2003. Annexure-2 is that the same was signed by only 10 elected Members of the Panchayat Samiti which is violative of Sub-section (3) of Section 44 of the Bihar Panchayati Raj Act, 1993 (hereinafter referred to as 'the Act') which requires at least 1/3rd of the total number of the Members of the Panchayat Samiti to requisition a special meeting of the Panchayat Samiti to consider the removal of the Pramukh. He has further assailed the said requisition on the ground that the same is violative of Sub-section (7) of Section 42 of the Act as the requisition does not contain the specific charges which have been alleged, against him. He has questioned the Resolution dated 18.12.2003. Annexure-4 on the ground that the same is violative of Sub-section (3) of Section 42 of the Act whereunder Pramukh could be removed from the office on the basis of a motion of no confidence having been carried by a majority of total number of elected Members of the Panchayat Samiti and in the present case motion of no confidence having been carried by majority of 10 votes in a house of 20 elected members the motion is not carried by a majority as majority shall constitute of 11 Members, the Resolution dated 18.12.2003, Annexure-4 is violative of Sub-section (3) of Section 42 of the Act. In support of his submission, learned counsel for the petitioner has relied on a Division Bench judgment of this Court, passed in the case of Uday Shankar Singh v. The State of Bihar and Ors., reported in 2003 (2) PLJR 123, paragraphs/15, 18, 19 and 20 and another judgment of the Single Judge of this Court in the case of Sanjay Singh Som v. The State of Bihar and Ors., reported in 2002 (3) PLJR 589. In the Division Bench case, the Chairman of the Zila Parishad was ousted from his office in purported compliance of the provisions contained in Section 68 of the Act on the basis of requisition which was not signed by 1/5th of the total Membership of the Zila Parishad and a Single Judge of this Court did not interfere with the motion of no confidence passed on the requisition which was not signed by the 1/5th of the total Members of Zila Parishad but the Division Bench in the said case not only set aside the order of the Single Judge but restored the Chairman of the Zila Parishad to his office as he was removed from the said office on the basis of requisition which was signed by Members less than 1/5th of the total number of the Members of the said Zila Parishad. Drawing parity from the judgment rendered in the case of Uday Shankar Singh, (supra) learned counsel for the petitioner asserted that in the present case the petitioner has been removed from the office on the basis of the requisition, Annexure-2 signed by only 10 elected members which does not constitute 1/3rd of the total number of the Membership of the Panchayat Samiti which has total strength of 41 Members out of which 21 are ex-officio Members with no voting power the requisition, Annexure-2 and subsequent resolution of no Confidence dated 18.12.2003, Annexure-4 both should be quashed and petitioner be restored to his office of Pramukh.

(3.) Learned counsel further assailed the Resolution dated 18.12.2003, Annexure-4 on the ground that the same is violative of the provisions of Sub-section (3) of Section 42 of the Act as in terms thereof a Pramukh can be voted out of office only by a majority of the total number of the elected Members of the Panchayat Samiti. According to the learned counsel for the petitioner, as there are 20 elected Members of the Samiti, majority shall consist of 11 Members and as only 10 votes were cast against the petitioner, Resolution dated 18.12.2003, Annexure-4 removing him from the office has not been carried by a majority of the total number of the elected members, should be quashed as violative of Sub-section (3) of Section 42 of the Act. In support of the aforesaid submission, learned counsel for the petitioner placed reliance over the judgment of a Single Judge of this Court in the case of Brij Nandan Sharma v. The State of Bihar, reported in 2004 (2) PLJR 244, paragraph 9. Perusal of the aforesaid judgment in the case of Brij Nandan Sharma (supra) would indicate that this Court in a case of tie of seven votes in the meeting of Panchayat Samiti held that Pramukh was rightly restored in her office and ought not to have been removed on the basis of seven votes cast against her as the seven votes did not constitute the majority of the total number of elected members. Learned counsel for the petitioner further submitted with reference to paragraphs 15 and 16 of the writ application that Pandemonium prevailed in the Meeting Hall on 18.12.2003 as the Mukhia Members of the Panchayat Samiti who were not authorised to vote had forcibly entered the Meeting Hall forcing the petitioner to submit his resignation to the Executive Officer and walk out from the Meeting Hall and thereby petitioner was deprieved from voting in the Meeting on 18.12.2003. In this connection, he relied on the decision of the Hon'ble Supreme Court passed in the case of Ramesh Mehta v. Sanwal Chand Singhvi and Ors., reported in AIR 2004 SC 2258 paragraph-9.