No Acts & Articles mentioned in this case
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2531 of 2024
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Gayatri Devi Alias Gaytri Devi Wife of Sri Prem Ranjan Kumar Resident of
Village and P.O.- Parasuram Pur, P.S.- Parsauni, District- Sitamarhi, Presently
Pramukh of Prakhand Panchayat Samiti, Block- Parsauni, District- Sitamarhi.
... ... Petitioner/s
Versus
1.The State of Bihar through the Additional Chief Secretary, Panchayati Raj
Department, Government of Bihar, Patna.
2.The District Magistrate, Sitamarhi.
3.The District Panchayat Raj Officer, Sitamarhi.
4.The Sub-Divisional Officer, Sadar Sitamarhi, District- Sitamarhi.
5.The Block Development Officer- cum- Executive Officer, Prakhand
Panchayat Samiti, Block- Parsauni, District- Sitamarhi.
6.The Block Panchayati Raj Officer, Parsauni, District- Sitamarhi.
7.Smt. Meena Devi wife of not known to the petitioner Presently Up-Pramukh
of Prakhand Panchayat Samiti, Block- Parsauni, P.S.- Parsauni, District-
Sitamarhi.
8.Ansu Singh Wife of not known to the petitioner The Elected Member of
Prakhand Panchayat Samiti, Block- Parsauni through the Block
Development Officer-cum-Executive Officer, Prakhand Panchayat Samiti,
Block- Parsauni, P.O. and P.S.- Parsauni, District- Sitamarhi.
9.Anju Devi Wife of not known to the petitioner The Elected Member of
Prakhand Panchayat Samiti, Block- Parsauni through the Block
Development Officer-cum-Executive Officer, Prakhand Panchayat Samiti,
Block- Parsauni, P.O. and P.S.- Parsauni, District- Sitamarhi.
10.Sajda Khatoon wife of not known to the petitioner The Elected Member of
Prakhand Panchayat Samiti, Block- Parsauni through the Block
Development Officer-cum-Executive Officer, Prakhand Panchayat Samiti,
Block- Parsauni, P.O. and P.S.- Parsauni, District- Sitamarhi.
11.Kiran Devi wife of Avinash Thakur The Elected Member of Prakhand
Panchayat Samiti, Block- Parsauni through the Block Development Officer-
cum-Executive Officer, Prakhand Panchayat Samiti, Block- Parsauni, P.O.
and P.S.- Parsauni, District- Sitamarhi.
12.Ram Babu Rai Son of not known to the petitioner The Elected Member of
Prakhand Panchayat Samiti, Block- Parsauni through the Block
Development Officer-cum-Executive Officer, Prakhand Panchayat Samiti,
Block- Parsauni, P.O. and P.S.- Parsauni, District- Sitamarhi.
13.Ragini Devi wife of not known to the petitioner The Elected Member of
Prakhand Panchayat Samiti, Block- Parsauni through the Block
Development Officer-cum-Executive Officer, Prakhand Panchayat Samiti,
Block- Parsauni, P.O. and P.S.- Parsauni, District- Sitamarhi.
14.Babloo Kumar son of not known to the petitioner The Elected Member of
Prakhand Panchayat Samiti, Block- Parsauni through the Block
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Development Officer-cum-Executive Officer, Prakhand Panchayat Samiti,
Block- Parsauni, P.O. and P.S.- Parsauni, District- Sitamarhi.
15.Kiran Devi wife of Ratnesh Sah The Elected Member of Prakhand
Panchayat Samiti, Block- Parsauni through the Block Development Officer-
cum-Executive Officer, Prakhand Panchayat Samiti, Block- Parsauni, P.O.
and P.S.- Parsauni, District- Sitamarhi.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s: Mr.Rajesh Mohan, Advocate
For the Respondent/s: Mr. Gautam Kumar Yadav, AC to GP-26
For Respondent nos. 8, 9
and 11 to 15. : Mr. S.B.K. Mangalam, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
CAV
Date : 10-07-2024
Heard Mr. Rajesh Mohan, learned counsel for the
petitioner, Mr. Gautam Kumar Yadav, learned State counsel as
also Mr. S.B.K. Mangalam, learned counsel representing
respondent nos. 8 and 11 to 15.
2. The petitioner has prayed for the grant of
following reliefs:
(i) for issuance of an appropriate writ
of
Certiorari for quashing the letter
no. 129 dated 30.01.2024 issued by the
Respondent no.6, the Block
Development Officer, Parsauni -cum-
Executive Officer, Prakhand
Panchayat Samiti, Block- Parsauni,
District Sitamarhi, addressed to the
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petitioner, whereby and whereunder
the elected members of Prakhand
Panchayat Samiti on 18.01.2024
requisition to convened the special
meeting of Prakhand Panchayat
Samiti, Parsauni for consideration of
their No Confidence Motion against
the petitioner on 13.02.2024;
(ii) For a declaration that if under
section 44 (3) (ii) of the Bihar
Panchayat Raj Act, 2006 contained a
clear mandate for brining a No
Confidence Motion against the
Pramukh or the Up- Pramukh of the
Block Panchayat Samiti, any
requisition for brining No Confidence
Motion can be moved only once in the
whole tenure of Pramukh/Up-
Pramukh. The section 44 (3) clearly
mentioned the manner prescribed for
convene a special meeting to bring a
No Confidence Motion and if the
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manner prescribed has not been
followed for moving such requisition,
the requisition is not a valid
requisition in the eye of law and no
special meeting can be convened in
pursuance thereof;
(iii) for issuance of any other
order/orders, direction/directions,
relief/reliefs for which the petitioner in
the facts and circumstances of the case
entitled too.
3. The matter relates to Parsauni Block Panchayat
Samiti and pursuant to the election held on 31.12.2021, the
petitioner was elected as its "Pramukh". She subsequently,
assumed office and according to her, started discharging her
duty to the complete satisfaction of the people. However, those
opposed to her, immediately after passage of two years, gave
requisition on 3.1.2024 for her removal. The respondent no. 5
forwarded the same vide his office letter no. 11 dated 4.1.2024 .
The petitioner refused to act on the requisition and
communicated her decision to the respondent no.6 vide letter
dated 08.01.2024. The respondent no. 5, Block Development
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Officer cum Executive Officer, Parsauni placed the file before
the Up-pramukh who fixed the meeting date as 16.01.2024.
4. The petitioner challenged the requisition dated
03.01.2024 by filing C.W.J.C. No. 751 of 2024 (Gayatri Devi
alias Gaytri Devi vs. the State of Bihar & Ors). It came to be
disposed of on 12.1.2024 and taking note of amongst the other
Section 44 and 46 of the Bihar Panchayat Raj Act, 2006
(henceforth for short 'the Act') which according to the Court
were not followed, the notice dated 3.1.2024 as also the
subsequent intimation fixing the date as 16.01.2024 by the
respondent no. 5, the Block Development Officer cum
Executive Officer, Parsauni Block, Sitamarhi were quashed.
5. After the quashing of the earlier requisition, on
18.1.2024, fresh requisition addressed to the Pramukh was made
by the Panchayat Samiti members detailing out the allegations
against both the Pramukh as also the Up-Pramukh(Annexure-
P/5). This was forwarded by the respondent no.5, Executive
Officer cum B.D.O., Parsauni to the petitioner on 19.1.2024.
6. The petitioner incorporated her comments on
25.1.2024 observing that the second no confidence motion in
one year cannot be allowed and as such the notice dated
18.1.2024 was rejected.
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7. As the Pramukh (the petitioner herein) chose to
reject the requisition request, as per 'the Act', it was presented
before the Up-Pramukh, who in turn, fixed the date as
13.02.2024. Subsequently, the respondent no.5, the Executive
Officer, Panchayat Samiti cum Block Development Officer,
Parsauni vide office letter no. 129 dated 30.1.2024 notified
13.2.2024 to be the date for taking up the 'No Confidence
Motion' against the petitioner (the Pramukh) as also the Up-
Pramukh (Annexure-P/6).
8. As the story unfolds, the special meeting for
discussion on ‘No confidence motion’ against the 'Pramukh' and
the 'Up-Pramukh' were taken up on 13.2.2024 and six out of ten
members of the Panchayat Samiti voted in favour of it. The
same were accordingly declared passed against them
(Annexure-R/F to the petition).
9. The minutes of the proceedings were subsequently
sent to the District Magistrate, Sitamarhi as also the District
Panchayat Raj Officer, Sitamarhi by the respondent no.5, the
Executive Officer cum Block Development Officer, Parsauni
vide memo no. 191 dated 13.2.2024 (Annexure-R/G to the
counter affidavit).
10. The petitioner who in the meantime had moved
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this Court by filing the present writ petition challenging the
letter no. 129 dated 30.01.2024 did not challenged her removal
(on 13.02.2024) by filing any Interlocutory Application.
11. Learned counsel for the petitioner submits that as
the earlier request for taking up of the 'No confidence motion'
against her on 3.1.2024 was quashed by a bench of this Court,
as stated above, the second 'No confidence motion' could not
have been taken up for the discussion/voting.
12. Learned counsel for the petitioner took this
Court to sections 44 and 46 of 'the Act' in support of the case.
Section 44 of 'the Act' read as follows:
44. Resignation and Removal of
Pramukh and Up- Pramukh-(1) the
Pramukh may resign his office by
writing under his hand and addressed
to the Subdivisional Magistrate and the
Up- Pramukh may resign his office by
writing under his hand addressed to the
Pramukh and in the absence of
Pramukh to the Sub-divisional
Magistrate and the said office shall be
deemed to be vacant on the expiry of
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seven days from the date of such
resignation unless within the said
period of seven days he withdraws such
resignation by writing under his hand
addressed to the Subdivisional
Magistrate or the Pramukh, as the case
may be.
(2) a Pramukh or Up- Pramukh shall
vacate office if he ceases to be a
member of the Panchayat Samiti.
(3) (1) a Pramukh/Up-Pramukh of the
Panchayat Samiti shall be deemed to
have vacated his office forthwith if a
resolution expressing want of
confidence in him is passed by a
majority of the total number of elected
members of the Panchayat Samiti at a
meeting specially convened for the
purpose.
The requisition for such a special
meeting shall be presented to the
Pramukh in writing with a copy to the
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Executive Officer of the Panchayat
Samiti, by not less than one third of the
total number of members elected
directly from the territorial
constituencies of the Panchayat Samiti
The Executive Officer shall immediately
bring the requisition to the notice of the
Pramukh. The Pramukh shall convene
such meeting on a date falling within 15
days of such requisition. If the Pramukh
fails to call the special meeting the Up-
Pramukh or one third of the total
number of directly elected members
may fix a date for such meeting and
require the Executive Officer to give
notice to the members and to take such
action as may be necessary to convene
the meeting. The Executive Officer shall
necessarily issue such notice in time
and convene the meeting. No such
meeting shall be postponed once the
notice for the some has been issued. No
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quorum shall be required for the special
meeting convened to discuss no
confidence motion.
(ii) no confidence motion shall not be
moved against the Pramukh or the Up-
Pramukh within the first two year
period of their tenure ‘[such a no
confidence motion may brought only
once in the whole tenure of
Pramukh/Up-Pramukh] [xxx]’
(iii) no confidence motion against the
Pramukh or Up-Pramukh or both, as
the case may be, shall not be brought
during the last six months of the term of
the Panchayat Samin as mentioned in
section 39 (1) of this Act.
(iv) such reasons/charges on the basis
of which no confidence motion has to
be moved against the Pramukh or Up-
Pramukh, shall be clearly mentioned in
the notice of meeting called to consider
the no confidence motion.
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(v) as soon as the meeting called under
this section begins, the presiding
member of this meeting shall read out
the motion on which the meeting has
been called to consider before the
members present and declare it open
for discussion Any discussion on the
motion shall not be adjourned;
(vi). during discussion, opportunity
shall be given to the Pramukh/Up-
Pramukh against whom no confidence
motion has been moved for his defence
before the Panchayat Samiti. The
motion shall be put to vote on the same
day after discussion and shall take
place by secret ballot in the prescribed
manner;
(vii) in case of no confidence motion
against a Pramukh, the meeting shall
be presided by the Up- Pramukh, in
case of motion against Up-Pramukh by
the Pramukh and in case of motion
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against both Pramukh and Up-
Pramukh, by any member elected from
among the members of the Panchayat
Samiti present in the meeting;
In case of the post of Up-Pramukh
being vacant or his absence from the
meeting convened for discussion on no
confidence motion against the Pramukh
or the post of Pramukh being vacant or
his absence from the meeting convened
for discussion on no confidence motion
against the Up-Pramukh, as the case
may be, shall be presided over by any
member elected from amongst the
directly elected members from the
territorial constituency of the
Panchayat Samiti present in the
meeting;
(4) Without prejudice to the provisions
under this Act, if in opinion of the
[Government]
3
having territorial
jurisdiction over the Panchayat Samiti,
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a Pramukh or an Up-Pramukh of
Panchayat Samiti absents himself
without sufficient cause for more than
three consecutive meetings or sittings
or willfully omits or refuses to perform
his duties and functions under this Act,
or abuses the power vested in him or is
found to be guilty of misconduct in the
discharge of his duties or becomes
physically or mentally incapacitated for
performing his duties or is absconding
being an accused in a criminal case for
more than six months, the
Commissioner may, after giving the
Pramikh or Up-Pramukh, os the case
may be, a reasonable opportunity for
explanation, by order, remove such
Pramukh or Up-Pramukh, as the case
may be, from office.
‘[Provided when a system of Lok
Prahari, instituted under sub-section(5)
of Section 152 comes into force by valid
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notification of the State Government,
the Government may only pass arder of
removal of such Pramukh/Up-Pramukh,
as the case may be in the light of the
enquiry and recommendation of Lok
Prahari for the removal]
[The Pramukh or Up-Pramukh so
removed on the charge of being found
guilty of misuse of vested powers or of
misconduct in the discharge of his
duties
shall not be eligible for selection
to any Panchayat bodies in further five
years from the date of such removal.
The Pramukh or Up-Pramukh so
removed on rest of the
charges shall
not be eligible for re-election as
Pramukh or Up-Pramukh during the
remaining term of office of such
Panchayat Samiti.
(5) A Pramukh or Up- Pramukh
removed from his office under sub-
section (4) may also be removed by the
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Government from membership of the
Panchayat Samiti
13. Similarly, section 46 of 'the Act' read as
follows:
46. Meetings of Panchayat Samiti -
(1) A Panchayat Samiti shall hold a
meeting for the transaction of
business at least once in two months
(hereinafter in this section called the
ordinary meeting) and shall subject
to the provisions of the following
sub- sections, make regulations in
conformity with this Act or with any
rules made thereunder with respect
to the day, hour, notice, management
and adjournment of its meetings and
generally with respect to the
transaction of business thereto.
(2) every meeting of the Panchayat
Samiti shall ordinarily be held at the
headquarters of the Panchayat
Samiti;
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(3) the date of the first meeting of the
Panchayat Samiti after its
constitution shall be fixed by the Sub-
divisional Magistrate who shall
preside at such meeting and date of
each subsequent ordinary meeting
shall be fixed at the previous meeting
of the Panchayat Samiti:
Provided that the Pramukh may for
sufficient reason alter the day of the
meeting to a subsequent date. The
Pramukh may, whenever he thinks fit
and upon the written request of not
less than one third of the total
number of members and on a date
within fifteen days from the receipt of
such request shall call a special
meeting. Such request shall specify
the object for which the meeting is
proposed to be called. If the
Pramukh fails to call a special
meeting. the Up-Pramukh or one-
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third of the total number of members
may call the special meeting for a
day not more than fifteen days after
presentation of such request and
require the Executive Officer to give
notice to the members and to take
such action as may be necessary to
convene the meeting.
(4)
Ten clear days' notice of an
ordinary meeting and seven clear
days' notice of a special meeting
specifying the time at which such
meeting is to be held and the
business to be transacted thereat
shall be sent to the members and
affixed at the office of the Panchayat
Samiti. Such notice shall include in
case of a special meeting any motion
or proposition mentioned in the
written request made for such
meeting.
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(emphasis supplied)
(5) Half of the total number of
members of the Panchayat Samiti
shall form a quorum for transacting
business at a meeting of the
Panchayat Samiti, If at the time
appointed for the meeting a quorum
is not present, the person presiding
shall wait for one hour and if within
such period there is a quorum.
proceed with the meeting, but if
within such period there is no
quorum, the person presiding shall
adjourn the meeting to such hour on
some future day as he may deem fit.
He shall similarly adjourn the
meeting at any time after it has
begun if his attention is drawn to the
want of quorum. At such adjourned
meetings, a quorum of at least one
fifth of the total number of member
shall be required, and the business
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which would have been brought
before the original meeting shall be
transacted.
(6) Every meeting shall be presided
over by the Pramukh or if he is
absent by the Up-Pramukh and if
both are absent or if the Pramukh is
absent and there is no Up-Pramukh
the members present shall elect one
from among themselves to preside.
(7) All questions shall unless
otherwise especially provided, be
decided by a majority of votes of the
members present and voting. The
presiding member, Punless he
refrains from voting, shall give a vote
before declaring the number of votes
for and against a question and in
case of equality of votes, he may give
his casting vote.
(8) No member of a Panchayat
Samiti shall vote on, or take part in
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the discussion of, any question
coming up for consideration at a
meeting of the Panchayat Samiti, if
the question is one in which, apart
from its general application to the
public, he has any pecuniary or
personal interest and if the person
presiding has such an interest, he
shall not preside over the meeting
when such question comes up for
consideration.
(9) If the person presiding is believed
by any member present at the
meeting to have any such pecuniary
or personal interest in any matter
under discussion and if a motion to
that effect be carried, he shall not
preside at the meeting during such
discussion or vote on or take part in
it. Any member of the Panchayat
Samiti may be chosen to preside at
the meeting during the continuance
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of such discussion.
(10) No proposition shall be
discussed at any ordinary meeting
unless it has been entered in the
notice convening such meeting or in
the case of a special meeting in the
written request for such meeting. A
member may propose any resolution
connected with or incidental to the
subjects included in the list of
business. The Pramukh may propose
any urgent subject of a routine nature
not included in the list of business if
no member objects to it. No
permission shall be given in the case
of a motion or proposition to modify
or cancel any resolution within three
months after passing thereof except
in accordance with sub-section (12).
The order in which any business or
proposition shall be brought forward
at such meeting shall be determined
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by presiding authority who in case it
is proposed by any member to give
particular proposition shall put the
proposal to the meeting and be
guided by the majority of votes given
for or against the proposal.
(11) Any ordinary meeting may with
the consent of a majority of the
members present, be adjourned from
time to time, but no business shall be
transacted at any adjourned meeting
other than that left or undisposed at
that meeting.
(12) No resolution of Panchayat
Samiti shall be modified or cancelled
within six months after passing
thereof except by a resolution.
(13) The proceeding of every meeting
shall be recorded in the minutes book
immediately after the deliberations of
the meeting and shall, after being
read over by the presiding authority
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of the meeting, be signed by him. The
action taken on the decisions of the
Panchayat Samiti shall be reported
at the next meeting of the Panchayat
Samiti. The minutes book shall
always be kept in the office of the
Panchayat Samiti. The Executive
Officer shall be the custodian of the
minute book.
(14) The Panchayat Samiti may
require the presence of Government
officers at its meeting, If it appears to
a Panchayat Samiti that the
attendance of any officer of the
Government having jurisdiction over
an area of a district or part of a
district and not working under the
Panchayat Samiti is desirable at a
meeting of the Panchayat Samiti, the
Executive Officer shall by a letter
addressed to such officer not less
than fifteen days before the intended
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meeting request that officer to be
present at the meeting and the officer
shall, unless prevented by sickness or
other reasonable cause, attend the
meeting:
Provided that the officer on receipt of
such letter may if he for any of the
reasons aforesaid is unable to be
present thereat himself, instruct his
deputy or other competent
subordinate officer to represent him
at the meeting."
14. Learned counsel for the petitioner wanted this
Court to give a re-look to section 44(ii) of 'the Act' which read
as follows:
44(ii) No confidence motion against
the Pramukh or Up-Pramukh within
first two year period of their tenure.
Ins. vide Sec. 10 of Amdt. Act 15 of
2015 (w.e.f. 1.1.2016) [such a no
confidence motion may be brought
only once in the whole tenure of
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Pramukh/Up-Pramukh].
15. He as such reiterates that the first requisition
having been annulled by the Patna High Court, the second
requisition is/are was not maintainable in the teeth of ‘the Act’
and thus it was rightly rejected by her. In that background,
subsequent meeting which took place on 13.2.2024 is not in
consonance with 'the Act' and needs interference.
16. In support of her case, learned counsel for the
petitioner referred to an order of learned Single Judge in
C.W.J.C. No. 2744 of 2024 (Rekha Devi vs. the State of
Bihar) disposed of on 13.2.2024 to plead that the second no
confidence motion is impermissible.
17. Paras 8 to 11 of Rekha Devi (supra) order read as
follows:
8. This Court is surprised by the
understanding of the Block Development
Officer-cum-Executive Officer who do
not have jurisdiction to differ or object
the time fixed by the requisitionists, has
himself has found that the period of
seven days falls on 13.02.2024. This
Court finds no infirmity committed by
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the requisitionists in fixing the date of
meeting on 13.02.2024 i.e. today. The
petitioner shall have the liberty to either
participate in the meeting or he may
restrain himself from participating in the
meeting. The deliberation in the house
has to take place in accordance with the
clarification made in paragraphs 58 and
59 of the Division Bench judgment of
this Court in case of Dharamsheela
Kumari vs. Hemant Kumar & Ors.
reported in 2021(3) PLJR 346 and
without deliberation if any motion is
passed against the petitioner the same
will be in violation of the observation
made in paragraph 62 of the decision in
case of Dharamsheela Kumari (supra).
9. The provision of Section 44 of the Act,
2006 is a complete Code. The action of
Executive Officer is deprecated who
without jurisdiction has tried to interfere
with the date fixed by the requisitionist
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and in complete ignorance of the
provision of Section 44 has vide Memo
No. 112 dated 03.02.2024 and without
jurisdiction has fixed the date of special
meeting on 13.02.2024, which
admittedly has been fixed by the
requisitionist on 13.02.2024 in
accordance with the provisions of sub-
section (1) of Section 44 of the Act,
2006.
10. This Court do not find any violation
of provision of Section 44 of the Act,
2006 in fixing the date of meeting.
11.The writ petition is accordingly
allowed.
18. Learned counsel for the petitioner further took
this Court to a Division Bench order of the High Court in LPA
No. 125 of 2021 in Sangeeta Devi & Anr. vs. the State of
Bihar & Ors. in which on 19.2.2024 taking note of conflicting
order passed in the case of Sarita Kumari Vs. the State of
Bihar (in LPA No. 940 of 2008) vis-a-vis Dharmsheela
Kumari and others (Supra) the matter was referred to the full
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bench. He submits that taking into account the aforesaid facts,
the writ petition is fit to be allowed.
19. Counter affidavits have been filed both on behalf
of the respondent no.5 as also the respondent nos. 8 and 11 to
15.
20. The counter affidavit of the respondent no.5, the
Block Development Officer cum Executive Officer, Panchayat
Samiti, Parsauni read as follows:
(ix). that the file with original Copy of the
above mentioned requisition dated
18.01.2024 was sent to the petitioner by
the Executive Officer. Panchayat Samiti
Cum- Block Development Officer,
Parsauni vide letter No.-80, dated 19- 01-
2024 for fixation of date/ time and place
for convening Special Meeting for
discussion the Point of No Confidence
Motion". But such proposal was rejected
by petitioner vide her Comment dated 25-
01-2024 written down on the note Sheet
page no. 8 of said file;
(x). that thereafter the Concerned file was
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put up before the Hon'ble Up Pramukh on
27-01- 2024 and the Hon'ble Up-
Pramukh vide her Comment dated
29.01.2024 mentioned on the Page No. 11
of the Note Sheet of the file Concerned,
fixed the date as 13.02.2024 for the
purpose in question. Accordingly such
information was Communicated to all
members of Panchayat Samiti, Parsauni
by the Executive Officer, Panchayat
Samiti-Cum- Block Development Officer,
Parsauni vide letter no. 128 to 137, dated
30.01.2024;
(xi) that the Special meeting for
discussion upon no Confidence Motion
against the Honourable Pramukh (the writ
petitioner) and the Honourable Up-
Poramukh (Respondent no. 07) was
Convened on 13.02.2024;
(xii) that 6 (six) members out of 10 (ten)
members of Panchayat Samiti took Part in
Special meeting and casted their votes
Patna High Court CWJC No.2531 of 2024 dt.10-07-2024
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against both of the Hon'ble Pramukh and
Hon'ble Up- Pramukh and thus No
Confidence Motion " was passed agaisnt
the Hon'ble Pramukh and Hon'ble Up-
Pramukh;
(xiii) that the above mentioned proceeding
of the Special meeting dated 13.2.2024
was sent to the District Magistrate,
Sitamarhi by the Block Development
Officer, Parsauni and copy of such letter
was sent to the District Panchayat Raj
Officer, Sitamarhi vide memo no. 191
dated 13.2.2024.
21. Further, paragraph 5 of the counter affidavit, it
was averred that:
"5. That under the facts and
circumstances mentioned in Sub-
para (i) to (xiii) of and para 5 above
it is evident that the previous
meeting could not be conducted.
The previous meeting was never
held at all, as the 'notice itself' for
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that meeting was quashed in light of
order dated 12.01.2024 C.W.J.c. N.
751/2024. So, the meeting to pass
the 'No Confidence Motion' could
not be called for and hence the
Special Meeting convened on
13.2.2024 in question has been
convened in accordance with the
provision contained in Section 44(3)
of the Bihar Panchayat Raj -Act,
2006. And hence the Writ petition
filed by the petitioner is not
maintainable.
22. Mr. S.B.K. Mangalam, who in the first round of
litigation had batted for the petitioner herein and now represents
the respondent nos. 9 and 11 to 15 submits that after the writ
petitioner rejected the requisition made by the members, the file
was presented before the Up-Pramukh who fixed the date as
13.2.2024.
23. Accordingly, the special meeting took place on
13.2.2024 and the No Confidence Motion was passed against
her as also the Up-Pramukh and they were removed from their
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respective posts. He further submitted that the said proceeding
dated 13.2.2024 has not been challenged by the writ petitioner
by filing any Interlocutory Application and as such it has now
become final attained finality.
24. He further submits that so far as the case cited by
the petitioner is concerned, it has been clearly held in the case of
Dharmsheela Kumari (supra) that in the absence of motion
being put to vote, a fresh motion will not attract section 44(3)(4)
of 'the Act'. He thus submits that the writ petition deserves
dismissal.
25. Having gone through the facts of the case, the
materials available on record and after hearing the parties, this
Court takes note of the fact that the earlier requisition request
dated 3.1.2024 never moved further inasmuch as even before
the meeting could take place on 16.01.2024, it came to be
quashed by a bench of this Court on 12.1.2024 in C.W.J.C. No.
751 of 2024 preferred by the petitioner on the ground that it
was not requisitioned in accordance with law.
26. In that background, the fresh requisition was
made on 18.1.2024 and once the Pramukh (the petitioner
herein) refused to fix a date by rejecting it, subsequently, the
file went before the Up-Pramukh, who fixed the date as
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13.2.2024. In the meeting so held, those present voted in favour
of the 'No confidence motion' and both the Pramukh as also the
Up-Pramukh were ousted from their respective posts.
27. So far as the claim of the petitioner that this be
read as the second no confidence motion which is impermissible
under section 74(ii) of 'the Act' is fit to be rejected. It is not the
case of the petitioner that the first requisition led to the meeting
and discussion on 'No Confidence Motion' and the motion was
put to vote and as such the respondents could not have made
request for second motion.
28. He submits that on the contrary, the fact remains
that the first 'No Confidence Motion' came to an abrupt end after
the interference of a bench of this Court and in that background,
the fresh requisition cannot be construed to be in the teeth of
Section 44(ii) of 'the Act'.
29. So far as the cases cited by the petitioner in
Rekha Devi (supra) as also Dharamsheela Kumari (supra) are
concerned, it does not come to her rescue in the facts and
circumstances stated above.
30. In Rekha Devi (Supra), the writ petition was
allowed after holding that when the date was fixed, the
Executive Officer had no business to interfere in the matter.
Patna High Court CWJC No.2531 of 2024 dt.10-07-2024
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Here, as per ‘the Act’, once the Pramukh rejected and chose not
to fix the date, the file was placed before the Up-Pramukh who
fixed the date. Thus Rekha Devi (supra) case in no way
supports the petitioner’s case.
31. In fact, in Dharamsheela Kumari (supra), the
Division Bench concluded its opinion in paragraphs 117 and 118
and it read as follows:
117. having gone through the
submissions put to this Court in detail,
the Court finds that the allegation of
fraud was not established and the
Pramukh and the Requisitionists could
not have been said to have committed
a fraud on the system; the words of
Section 44(3)(i) have to be read in
conjunction with one another and the
majority required to put a motion to
vote is from amongst the members of
the Samiti present and voting; the
logical conclusion of a motion is
'voting upon' the same, and since no
vote took place in the meeting dated
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10.08.2018, the motion cannot be said
to have been 'brought' and
consequently, the bar of Section 44(3)
(ii) is not attracted;
118. thus the questions are answered
as under:-
Issue No.(i): the provision of Section
44 of the Bihar Panchayat Raj Act,
2006 is an independent and stand
alone Section, a complete code in
itself;
Issue No.(ii):-the procedure as,
grudge, oblique prescribed under the
provisions of Section 46 of the Act for
convening a special meeting is neither
applicable nor can it be read into for
of the meeting stipulated under Section
44 of the Act;
Issue No.(iii): under Section 44(3) of
the Act majority required to put the
motion to vote is amongst the members
of the Panchayat Samiti present and
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voting. No minimum quorum is
required for putting the motion of no
confidence to vote;
Issue No.(iv): section 44(3) of the Act
mandates a motion of no confidence to
be put to vote by way of a secret
ballot;
Issue No.(v):-the impugned action, i.e.
resolution dated 10.08.2018 is in
fraction of the provisions of the Act
and as such is quashed and set aside;
Issue No.(vi):-Section 44 of the Act
does not mandate the Requisitionists
necessarily to be present in the
meeting called to discuss and put to
vote the motion of no confidence;
Issue Nos. (vii) & (viil):-in the given
facts, absence of the Requisitionists
cannot be said to be an act of fraud
with an endeavour of defeating the
provisions of the Statue;
Issue No.(ix):-in the absence of the
Patna High Court CWJC No.2531 of 2024 dt.10-07-2024
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motion being put to vote, the legal bar
of moving a fresh motion of no
confidence stipulated under Section
44(3)(u) would not be attracted;
Issue No.(x):-in the attending facts and
circumstances, it cannot be said that
the acts of the Executive Officer are
deliberate leading to dereliction of
duty warranting initiation of an
enquiry with regard to his act and
conduct.
32. In this case, pursuant to the earlier request having
been struck down by Patna High Court, neither any meeting nor
voting took place and in this background Issue No. (ix) squarely
covers the present case.
33. It is to be noted here that after the reference made
to the Full Bench to decide the correct law between Sarita
Kumari (supra) and Dharamsheela Kumari (supra) in the
case of Sangeeta Devi and Others vs. State and Ors. The Full
Bench decided it on 16.5.2024 and reported in 2024 (4) BLJ-1
Paras 39 to 43 held as follows:
39. We do not find any insurmountable
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inexactitude in the language used in
Section 70(4) of the Act. It does not
present before us a situation where some
specific tool of interpretation is required
to be pitched in and that not doing so
would reduce the legislation to futility
and render the manifest purpose of the
legislation, nugatory.
40. With utmost deference, we say that
in Sarita Kumari (supra), perhaps, the
entire scheme of Section 70(4) of the Act
was not gone into. It has succinctly been
explained in Dharamsheela Kumari
(supra), which dealt with the "no
confidence" motion of Pramukh and Up-
Pramukh under Chapter-IV, which
provision, namely, Section 44(3) is
exactly similar to Section 70(4) of the
Act.
41. We, thus, conclude that for a motion
of "no confidence" to be carried out
successfully, the requirement is of the
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majority of the members present and
voting and not majority of the total of
the elected members of the Zila
Parishad.
42. We have not referred to the facts of
any one of the writ petitions or appeals
before us, which shall be decided on the
principle enunciated by us.
43. The reference stands answered
accordingly.
34. In the aforesaid facts and the orders/judgments,
the contention of the petitioner that pursuant to the quashing of
the earlier requisition/proposed meeting by the Patna High
Court, the subsequent requisition cannot be considered, is bereft
of merit and fit to be rejected.
35. A request was made to the petitioner (who was
then the Pramukh) to requisition meeting for considering the
‘No Confidence Motion’ both against the Pramukh as also the
Up-Pramukh. She rejected the request, following ‘the Act’, it
was placed subsequently before the ‘Up-Pramukh’ who fixed
the same for 13.2.2024. On the said date, the members in
majority after the discussion voted in favour of the motion both
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against the Pramukh as also the Up-Pramukh.
36. This Court thus holds that as the first notice is
concerned, its never culminated into any meeting and/or
resolution for or against the motion. In that background, the no
confidence motion that was taken up on 13.2.2024 will be
deemed to be the only motion which finally went against the
Pramukh (the petitioner herein) as also the Up Pramukh.
37. The Court further holds that the procedure
adopted by the authorities in bringing the No confidence motion
against the petitioner as also the Up-Pramukh on 13.2.2024
pursuant to the requisition made on 18.01.2024 is/was perfectly
justified and in accordance with ‘the Act’ which needs no
interference.
38. The writ petition stands dismissed. The interim
order passed on 15.02.2024 is vacated.
Ravi/-
(Rajiv Roy, J)
AFR/NAFR AFR
CAV DATE 01.07.2024
Uploading Date 10.07.2024
Transmission Date
Legal Notes
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