YASHBANT KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioners, counsel for the State -Respondents to 6 and the counsel for the private Respondent no. 7, the Pramukh of the Panchayat Samiti.

(2.) THIS writ application has been filed by two elected members of the Panchayal Samiti for a direction to official Respondent no. 6 to convene the Special Meeting of the Panchayat Samiti in terms of the requisition dated 8.12.2004, 28.12.2004. Annexures -1 and 5 as according to the petitioners when the Pramukh, Respondent no. 7 ignored the requisition dated 8.12.2004 and did not convene the Special Meeting for considering the No Confidence Motion against her, another requisition dated 28.12.2004 was submitted before the Up -Pramukh, who forwarded the same to the Executive Officer -cum -Block Development Officer, Madhepura Respondent no. 6 directing him to convene the Special Meeting to consider the No Confidence Motion against the Pramukh. In response to the said instruction, the Executive Officer -cum -Block Development Officer, Madhepura issued notice, bearing No. 1241 -2 dated 28.12.2004, Annexure -6 fixing 6.1.2005 as the date for Special Meeting. Before Special Meeting in terms of the notice dated 28.12. 2004, Anexure -6 could be held on 6.1.2005, the Executive Officer -cum -Block Development Officer, Madhepura postponed the Special Meeting under Letter No. 03 -2 dated 3.1.2005, Annexure -7 in view of the operation of the Model Code of Conduct instruction/clearance from the Election Commissioner was necessary before any Special Meeting to consider No Confidence Motion against the Pramukh is held. Having postponed the Special Meeting, the Executive Officer -cum -Block Development Officer requested the District Magistrate under Letter No. 04 -2 dated 3.1.2005, Annexure -8 to seek the necessary clarification from the Election Commission in regard to holding of Special Meeting to consider the No Confidence Motion during the operation of the Model Code of Conduct. The Assistant Chief Election Officer, Bihar under Letter No. 336 dated 11.1.2005, Annexure -9 informed the District Election Officer, Madhepura that the (Election Department) has no objection if any Special Meeting to consider No Confidence Motion against the Pramukh of the Panchayat Samiti is held even during the operation pericd of Model Code of Conduct. It appears, after receipt of Letter dated 11.1.2005 from the Assistant Chief Election Officer, Bihar, the District Magistrate, Madhepura also wrote letter No. 48 dated 13.1.2005, directing the Executing Officer -cum -Block Development Officer, Madhepura to convene the Special Meeting and the Up -pramukh of the Panchayat Samiti also having learnt about the Letter No. 336 dated 11.1.2005, Annexure -9, called upon the Executive Officer -cum -Block Development Officer, Madhepura under Letter dated 13,1.2005, Annexure -14 to convene the Special Meeting on 21.1.2005. In response to both the instructions of the Collector, Madhepura, contained in Letter No. 48 dated 13,1,2005 and the instruction of the Up - Prmukh contained in Letter dated 13,1,2005, Annexure -14, the Executive Officer -cum -Block Development Officer, Madhepura issued notice, bearing Letter No.7 -2 dated 13.1.2005, Annexure -15 fixing 21.1.2005 as the date of the Special Meeting of the Panchayat Samiti to consider the No Confidence Motion against the Pramukh. The Up -Pramukh of the Panchayat Samiti having noticed the fact that 21.1.2005 is a public holiday on account of Bakrid, postponed the meeting from 21.1.2005 to 29.1.2005, vide his instruction contained in Letter No. 24 dated 17.1.2005, Annexure -16 and in compliance thereto the Executive Officer -cum -Block Development Officer, Madhepura also issued notice postponing the Special Meeting to 29.1.2005 under his letter No. 11. -2 dated 17.1.2005, Annexure -17 the Special Meeting fixed for 29.1.2005 was convened but without any discussion on the motion of no confidence against the Pramukh was adjourned to 5.2.2005 on account of lack of quorum as it appears from the proceedings of the meeting dated 29.1.2005, Annexure -18. The adjourned Special Meeting fixed for 5.2.2005 was also not held on that day as Respondent no. 6 postponed the said meeting by publishing a notice on the notice Board adjourning the Special Meeting to 18.2.2005 as is evident from the minutes of the proceedings recorded on 5.2.2005 also contained in Annexure -18. In view of the fact that the no notice whatsoever for holding the Special Meeting was ever issued in the light of requisition dated 8.12.2004 as also the fact that Special Meeting in the light of the subsequent requisition dated 28.12.2004 was being adjourned from one date to another on different grounds the two elected members of the Panchayat Samiti who are the petitioners before this Court had no option but to file this writ application for a direction to the Respondent no. 6 to ensure that the adjourned meeting in the light of requisition dated 28.12.2004, Annexure -5 is held at an early date so that No Confidence Motion against the Respondent no. 7 is considered and put to vote.

(3.) RESPONDENT no. 7 has opposed the prayer made in the writ application and learned Senior Counsel appearing for her has submitted with reference to the averments made in the counter affidavit that when the requisition dated 8.12.2004, Annexure -1 was not acted upon by the Respondent no. 7 then the Up -Pramukh or 1/3rd members of the Panchayat Samiti, who had filed the requisition dated 8.12.2004, Annexure -1 should have called the Special Meeting on their own and since the Up - Pramukh and 1/3rd requitionists did not call the Special Meeting, the subsequent requisition dated 28.12.2004, Annexure -5 is contrary to the provisions contained in Subsection (3) of Section 44 of the Bihar Panchayat Raj Act, 1993 (hereinafter referred to as the Act) and is fit to be ignored. According to the learned counsel if the Pramukh fails to call the Special Meeting then the Up -Pramukh or 1/3rd of the total number of members on their own are required to call the Special Meeting without any further requisition being given to the Up -Pramukh. Having made this submission, learned counsel submitted that the subsequent requisition was wholly non est and ought not to have been taken into account by the Up -Pramukh and the Executive Officer -cum -Block Development Officer, Madhepura. In the alternative, learned counsel for the Respondent no. 7 further submitted that in any case once the Special Meeting had begun on 29.1.2005, which was adjourned to 5.2.2005 the formality to consider the No Confidence Motion was already over in terms of the provisions contained contained is Sub -section (8) of Section 42 of the Act, which inter alia provides that the Special Meeting to consider the No Confidence Motion once started, should not be adjourned. In support of his alternative submission, learned counsel has further relied on the interpretation contained in Letter dated 25.1.2005 issued by the Deputy Director, Panchayat Raj, Bihar, as contained in Annexures A and 1/A to the counter affidavit filed by the official Respondent no. 6 and the private Respondent no. 7 and reply thereto contained in Letter dated 16.2.2005 at page 92 of the brief. With reference to those letters, it is submitted that once the Special Meeting to consider No Confidence Motion against the Pramukh, Respondent no. 7 had begun the same could not be adjourned. Once the Special Meeting after being convened was adjourned it should be taken that the No Confidence Motion has failed.