Geeta Devi vs The State of Bihar and Others

Jyoti Saran, J.—The petitioner has questioned the proceedings of the special meeting held under the provisions of Section 44(3) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ''the Act'') read with Section 46(4) thereof whereby the petitioner was removed from the post of Pramukh, Block Panchayat Samiti, Patahi in the District of East Champaran on a no confidence motion passed against her as placed at Annexure-6 to the writ petition. Mr. S.B.K. Mangalam has appeared on behalf of the petitioner while the requisitionists have appeared through counsel Mr. Siya Ram Shahi, Advocate and the State is represented by its counsel.

This matter was heard on 8.10.2013 when a Bench of this Court while issuing notice to the private respondents stayed the operation of the directions contained in the letter of the State Election Commission dated 1.10.2013 impugned at Annexure-9 of I.A. No. 7421 of 2013 whereby the election for a new Pramukh had been declared. The position as it exists today is that though the petitioner stands removed from the post of Pramukh, Panchayat Samiti, the post is lying vacant. For the issue raised in the present writ petition it would not require this Court to go into much factual details of the matter, suffice it to say that the petitioner was elected as a Pramukh of the Panchayat Samiti, Patahi in the election held in the year 2011 and has been removed under the no confidence motion passed in the proceedings dated 21.9.2013 impugned at Annexure-6.

Mr. Mangalam has raised two issues for questioning the motion, namely:--

(a) The requisition was not served upon the petitioner in the manner required, and

(b) The requisitionists have usurped the power vested in the Pramukh under Section 44(3) of the Act in calling for a special meeting while taking decision in a meeting held on 11.9.2013 when according to the provisions of Section 44(3) of the Act, they could not have taken such decision as the Pramukh was yet in seisin of the matter.

The argument of Mr. Mangalam has been contested by Mr. Shahi who submits that since the petitioner refused to accept the requisition it would be deemed service and apart therefrom there was a publication in the newspaper in this context and thus this would amount to sufficient compliance regarding service of notice. Insofar as the decision taken by the requisitionists to hold a special meeting in exercise of power vested under Section 44(3) is concerned, it is stated that the decision was within the jurisdiction vested in the requisitionists as the Pramukh had failed to discharge her obligation.

I have heard learned counsel for the parties and I have perused the records. As rightly pointed out by Mr. Shahi during his course of argument, there are three dates which are very relevant for consideration of the matter in issue which are as follows:--

(i) 5.9.2013 when the requisition as contained in Annexure-R/1 to the counter affidavit of the requisitionists was presented before the petitioner but was refused as noted therein.

(ii) 6.9.2013 when the requisition was sought to be served on the petitioner through the peon but was refused to be received by her as is manifest from the service report given by the peon placed at Annexure-A to the counter affidavit of the State.

(iii) 11.9.2013 when the decision was taken by the requisitionists to hold the special meeting as contained in Annexure-R/2 of the counter affidavit of the requisitionists and communication to that effect was made to the Executive Officer who on the same date issued notice to the concerned informing them regarding the date of the special meeting to be held on 21.9.2013 as contained in Annexure-R/3.

In the nature of the order which this Court proposes to pass it would not be necessary to deal with the issue whether the requisition was validly served on the petitioner. This would bring the Court to the second issue raised by Mr. Mangalam regarding usurpation of jurisdiction by the requisitionists in calling for the special meeting.

The provisions underlying Section 44(3) of the Act requires the Pramukh to fix a date for special meeting on a requisition received by him within 15 days of receipt thereof.

Section 46(4) of the Act provides that a notice calling for a special meeting should specify the time and date of such meeting after giving seven days clear notice in between the notice issued and the date fixed for special meeting.

A plain reading of the two provisions manifests that upon receipt of any requisition the Pramukh is required to fix date of special meeting within 15 days of receipt of such requisition in terms of Section 44(3)(i) of the Act after giving 7 days clear notice in between the date of issuance of notice calling for special meeting and the date so fixed, after excluding both the days as per Section 46(4) of the Act.

This means that if a requisition is placed before the Pramukh on the 1st day of a month, he has to hold the special meeting on or before the 16th of that month and also take care that there are 7 clear days in between the date on which he issues the notice fixing the date of special meeting and the actual date fixed.

Now to adhere to this Schedule, unless the Pramukh issues the notice fixing date of special meeting latest by the 7th day of the receipt of the requisition (excluding the date of receipt), he would not be able to give 7 days clear notice between the date of notice and the date of the special meeting which is to be held within 15 days of receipt of the requisition. It thus only on the 8th day of service of requisition on the Pramukh that the requisitionists would assume jurisdiction under Section 44(3)(i) of the Act, to fix up a date for special meeting and not before the 8th day.

Insofar as the present case is concerned even if it is assumed that the requisition was refused to be received by the petitioner on 5.6.2013 (sic--5.9.2013?) and which would amount to deemed service, he had to be given time at least until 12.6.2013 (sic--12.9.2013?) for issuing notice fixing date for the special meeting as per the mandate of Section 44(3)(i) and Section 46(4) of the Act and it is only if the Pramukh would have failed to issue notice fixing date for special meeting on or before the 12th of June, 2013 (sic--12.9.2013?) that such right would have passed on to the requisitionists to fix up the date for the special meeting and inform the concerned accordingly. It is manifest from the list of dates that the requisitionists in their hurry did not wait for statutory period to pass over before they usurped the jurisdiction which yet continued in the Pramukh to fix the date for the special meeting. The action of the requisitionists to fix the date of special meeting on 11.6.2013 (sic--11.9.2013?) even when the Pramukh was in seisin of the matter until 12.6.2013 (sic--12.9.2013?) is apparently illegal and usurpation of jurisdiction. The decision of the requisitionists taken in the meeting held on 11.6.2013 (sic--11.9.2013?) to fix the date of special meeting is in exercise of jurisdiction which did not vest in them on the said date.

There is no dispute on facts and is rather eloquent from the sequence of events illustrated hereinabove.

For the conclusion drawn by me, it is obvious that the meeting called by the requisitionists was wholly without jurisdiction and the no confidence motion passed pursuant thereto would be a perpetuation of illegality. For the reasons aforementioned, the no confidence motion passed on 21.9.2013 as contained in Annexure-6 cannot be upheld and is accordingly set aside and as a consequence the date of election notified vide letter dated 1.10.2013 also cannot be upheld and is set aside.

The consequences shall follow. The petitioner stands restored to the post of Pramukh. The writ petition is allowed. I.A. No. 7421 of 2013 stands disposed of.