SHIBRAM MAHTO Vs. PANCHAYAT SAMITI

JUDGEMENT

(1.) The petitioner moved this application under Articles 226 and 227 of the Constitution for quashing Annexure 2. By Annexure 2, Panchayat Samiti of Chandil Block passed a resolution of no confidence motion against the petitioner. The validity of the said resolution (Annexure 2) is the subject-matter of the present writ application.

(2.) The short point for consideration in this case is: whether the petition under Articles 226 and 227 of the Constitution can be entertained without following the remedy prescribed under Section 78 (1) of the Bihar Panchayat Samitis and Zila Parishads Act, 1961 (Bihar Act VI of 1962) (hereinafter referred to as 'the Act'). It is relevant to quote here Section 78 which runs' as follows:

(3.) On a perusal of Section 78 (1) of the Act, it is clear that the State Government can examine the regularity, correctness, legality or propriety of any proceeding or decision or order passed by the Panchayat Samiti. The proviso to Section 78 (1) provides that the State Government shall not pass any order prejudicial to any party unless such party has had an opportunity of making a representation. It is also provided in Subsection (2) of Section 78 that the State Government may pass a stay order in respect of any decision or order passed by the Samiti. It is also provided that the application for review can be filed for review of any order or decision passed by the Panchayat Samiti within ninety days of the passing of the order. In my opinion, the provision of Section 78 (1) of the Act is identical to Section 397 of the Code of Criminal Procedure, 1973. On a perusal of Section 78 of the Act, it is clear that the Act has provided a complete machinery for giving effective remedy to the party concerned. If the proceeding of- the Panchayat Samiti is challenged on the around of regularity, correctness, legality or propriety, the party aggrieved can move the State Government under Section 78 (1) of the Act. If a party seeks to move a writ petition against the illegality of the proceeding or order or decision passed by the Panchayat Samiti, then in that case the aggrieved party is required first to move the State Government for reviewing the impugned order before filing the writ application in this Court. If the aggrieved party does not exhaust the remedy provided under Section 78 (1) of the Act, then in that case the petition under Articles 226 and 227 shall not be maintainable. In other words, if the^ party moves a writ petition under Articles 226 and 227 of the Constitution without following the remedy prescribed under Section 78 (1) of the Act, in my opinion such a petition cannot be entertained by this Court under Articles 226 and 227 of the Constitution. In these circumstances, I hold that the present petition is not maintainable as the petitioner did not move a petition to the State Government under Section 78 (1) of the Act before moving the writ petition before this Court,