Khurshid Alam vs State of Bihar and Others

Chandramauli Kr. Prasad, J.—This application has been filed for quashing the notice dated 2.8.2004 (Annexure-5) issued by the Block Development Officer-cum-Executive Officer of the Panchayat Samiti, Mainatand conveying to the members that the special meeting of the Panchayat Samiti shall be held on 10.8.2004 at 11 A.M. to consider the motion of no confidence brought against the Parmukh and Up Parmukh of the said Panchayat. Shorn of unnecessary details, facts giving rise to the present application are that in the election to the Mainatand Panchayat Samiti held in the year 2001, petitioner was elected as its member. Thereafter the petitioner contested the election to the office of the Parmukh of the said Panchayat Samiti and was ultimately elected as such on 13.6.2001. Twelve out of total 40 members of the Panchayat Samiti gave requisition dated 12.9.2002 asking the petitioner to convene the special meeting to consider the no confidence motion against him. Said requisition was rejected by the petitioner. Aggrieved by the same, the 12 members thereafter filed an application on 27.9.2002 before the Executive Officer to call the special meeting to consider the no confidence motion against the petitioner and the Up Parmukh. The Executive Officer under the order of the District Panchayat Raj Officer issued notice dated 1.10.2002 fixing 9th of October, 2002 as the date of meeting to consider the motion of no confidence brought against the petitioner. In the meeting so held, 12 members out of 22 voted in favour of the motion and accordingly the no confidence motion was carried out against the petitioner. Aggrieved by the same, petitioner filed CWJC No. 11946 of 2002 (Khurshid Alam vs. State of Bihar and Ors.) before this Court challenging the motion of no confidence passed against him, inter alia, on the ground that the requisitions having been made by only 12 out of 40 members of the Panchayat Samiti, and after the petitioner''s failure to convene the meeting, no requisition having been made to the Up Parmukh, convening of the special meeting was bad in law and consequently motion passed in such a meting shall not be legal. This Court by order dated 18.8.2003 quashed the motion of no confidence passed against the petitioner. It is relevant here to state that against the order dated 18.8.2003 passed in CWJC No. 11946 of 2002 (Khurshid Alam vs. State of Bihar & Ors.) respondent nos. 5 and 6 of the writ application had preferred LPA No. 825 of 2003 which is pending before this Court.

After quashing of the motion of no confidence passed against the petitioner by this Court, he started functioning as the Parmukh of the Panchayat Samiti and while he was holding the said office, a requisition dated 2.9.2003 was sent to the petitioner calling upon him to convene a special meeting to consider the motion of no confidence brought against him. On the basis of the said requisition, the Executive Officer issued notice dated 19.9.2003 fixing 27.9.2003 as the date for holding the special meeting to consider the motion of no confidence. Petitioner aggrieved by the same filed CWJC No. 10415 of 2003 (Khurshid Alam vs. State of Bihar and Ors.) challenging the notice inter alia on the ground that it did not contain the reasons/charges for which the motion of no confidence has been brought against the petitioner. This Court by an interim order dated 24.9,2003 restrained the respondents of the writ application for holding the meeting in pursuance of the notice dated 19.9.2003 and this writ application is pending adjudication before this Court.

During the pendency of the Letters Patent Appeal No. 825 of 2003 and CWJC No. 10415 of 2002, 22 members gave requisition dated 30.1.2004 to the petitioner for calling a special meeting to consider the no confidence motion. Petitioner did not act upon the aforesaid requisition on the ground of pendency of aforesaid writ application and Letters Patent Appeal before this Court and in his opinion holding of the special meeting to consider the no confidence motion shall be in disobedience of the order dated 24.9.2003 passed in CWJC No. 10415 of 2003. He conveyed his decision to the Executive Officer of the Panchayat Samiti and to the District Magistrate, West Champaran and District Panchayat Raj Officer vide memo dated 31.1.2004 (Annexure-4). Members of the Panchayat Samiti did not rest and again 22 members submitted an application dated 10.6.2004 before the Executive Officer to convene the special meeting to consider the no confidence motion followed by another requisition dated 31.7.2004 but no meeting was held on that basis. In all the requisitions i.e. 30.1.2004, 10.6.2004 and 31.7.2004, 22 members of the Panchayat Samiti are the signatories but they are not the same in all the requisitions.

As the petitioner had declined to convene the special meeting on the ground of pendency of the writ application and umbrella of the interim order, it seems that the matter was referred to the Advocate General of the State for his opinion as to whether special meeting can be held to consider the no confidence motion against the petitioner and it seems that the Advocate General found no impediment in holding the meeting. Thereafter 22 members of the Panchayat Samiti by letter dated 31.7.2004 wrote to the Executive Officer regarding their decision to hold the meeting on 10th of August, 2004 and accordingly directed the Executive Officer to issue the notice. The Executive Officer in pursuance of the aforesaid direction issued notice dated 2.8.2004 (Annexure-5) conveying to the members that the meeting of the Panchayat Samiti shall be held on 10.8.2004 at 11 A.M. to consider the no confidence motion brought against petitioner by requisition dated 30th of January, 2004. Alongwith the notice the Executive Officer had annexed the requisition dated 30th of January, 2004 containing the reasons and charges for which the motion of no confidence was brought against the petitioner.

One of the members of the Panchayat Samiti filed an application dated 10.8.2004 for postponing the special meeting of the Panchayat Samiti on the ground that the present writ application filed by the Parmukh has been directed to be heard on 10.8.2004 itself. However, it is common ground that the meeting was held and the motion of no confidence has been passed against the petitioner.

Mr. Y.V. Giri, Senior Advocate appearing on behalf of the petitioner submits that the impugned notice dated 2.8.2004 issued by the Executive Officer conveying that the meeting shall be held on 10.8.2004 is on the basis of the requisition dated 30th of January, 2004 which by passage of time does not survive and as such convening the meeting on the basis of a dead requisition is illegal in the eye of law. He points out that in view of Section 44(3) of the Bihar Panchayat Raj Act (for short the Act) the special meeting to consider the no confidence motion has to be held within 15 days from the date of receipt of request to convene the special meeting and undisputedly the meeting has not been held within a period of 15 days, the requisition has lapsed and no meeting can legally be held on that basis. In support of his contention he has placed reliance on a judgment of this Court in the case Smt. Rambha Sinha vs. State of Bihar & Ors. [2004(2) PLJR 692] and my attention has been drawn to the following passage from paragraph 7 of the judgment which reads as follows:-

...From a plain reading of section 44(3) of the Act it is evident that the Parmukh has necessarily to call a special meeting upon the written request of not less than one third of total members within fifteen days from the receipt of such request and in case the Parmukh fails to call the special meeting the Up Parmukh or one-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. Here I am not going to the question of the meaning of the expression ''the total number of members'', excepting to make a passing reference that in case the total number would mean to include members who have no right to vote, in many of the Panchayats the numbers of members required to give valid requisition for convening the special meeting to consider the no confidence motion would be more than the number required to pass the no confidence motion. By no process of interpretation the special meeting can be held within fifteen days from the date of receipt of requisition, in case the Parmukh fails to call a special meeting. In my opinion the Pramukh has to take the decision to call a special meeting upon the written request of not less than one-third of the total number of members sufficiently in advance so as the notice of the meeting conforms to the requirement of seven clear days notice. The members who had given the requisition to call a special meeting shall not have to wait for fifteen days from the date of receipt of such request by the Parmukh but on expiry of such time which shall not permit seven clear days notice, it shall be deemed that the Parmukh had failed to call a special meeting and the one-third of total number of members or the Up Parmukh may call the special meeting with a rider that the special meeting shall be held on a day not more than fifteen days after presentation of such request. The Up Parmukh or one-third of the total number of members have been given the authority to call the special meeting concurrently and one-third of the members are not to wait till the Up Parmukh calls the special meeting. Under the scheme of the Act the Up Parmukh or one-third of the total number of members have the authority to call the special meeting in case the Parmukh fails to call as special meeting. In my opinion, in case it is held that after the Parmukh fails to call a special meeting, one-third of the total number of members will have to wait for the decision of the Up Parmukh, the provision to call the special meeting for a day for more than fifteen days after presentation of such request will never be adhered to. The command of the legislature to the Parmukh to call a special meeting within fifteen days from the receipt of requisition shall not necessarily mean that the Up Parmukh or one-third of total number of members shall have to call the special meeting within fifteen days from receipt of the requisition by the Parmukh. The authority granted to the Up Parmukh or one-third of the total number of members to call the special meeting for a day not more than fifteen days shall commence on presentation of such request to him.

Mr. T.K. Jha, Senior Advocate appearing on behalf of respondents 5 and 6 and Mr. Rajiv Kumar Verma appearing on behalf of respondent no. 41 however contend that the concept of a requisition getting lapsed is unknown to law and under the scheme of the Act when the Parmukh declined to convene the meeting the Up Parmukh or 1/3rd of the total number of members of the Panchayat Samiti had the authority to fix the date of the special meeting and direct the Executive Officer to issue notice accordingly. They point out that in the present case 22 members of the Panchayat Samiti by letter dated 31.7.2004 wrote to the Executive Officer that they have fixed 10.8.2004 as the date for the special meeting and directed the Executive Officer to issue the notice accordingly and in pursuance of the said direction the Executive Officer had issued the impugned notice and no fault can be found out in the same. In support of the submission reliance has been placed on a decision of this Court in the case of Kanhaiya Singh Vs. The State of Bihar and Others,

Having given my most anxious consideration to the rival submission I do not find any substance in the submission of Mr. Giri and the decision relied on is clearly distinguishable. It is relevant here to state that the procedure and the manner in which the meeting of the Panchayat Samiti shall be held has been provided u/s 44 of the Act. How the special meeting is to be called is provided u/s 44(3) of the Act, same reads as follows:-

Meetings of 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 reasons, after the day of the meeting to a subsequent date. The Pramukh may, whenever he thinks fit, shall, 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 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-third of the total number of members may call the special meeting for a day not more then 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.

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From a plain reading of the aforesaid provision it is evident that on request made by not less than 1/3rd of the total number of the members of the Panchayat Samiti the Parmukh is required to call a special meeting within 15 days from the date of receipt of the request and in case of its failure the Up Parmukh or 1/3rd of the total number of members may call the special meeting for a day not more than 15 days after presentation of such request. Undisputedly the meeting to consider the no confidence motion has been directed to be held and has been held on a day beyond 15 days from the date the request was made to the Parmukh. The question, therefore, is as to whether the requisition made had lapsed or that survives justifying holding of the special meeting on that basis.

In the case of Smt. Rambha Sinha (supra) I had the occasion to consider the import of Section 44(3) of the Act and I had held that the Parmukh had to call a special meeting within 15 days from the date of receipt of request by 1/3rd members to call the special meeting and further the Up Parmukh or 1/3rd of the total number of members have also to call the special meeting for a day not more than 15 days after presentation of such request. In this case the Court had gone into the obligation of the Parmukh. Up Parmukh and 1/3rd of the total number of members for calling of the special meeting but had not gone into the question as to what would happen if the meeting is not held within the time prescribed u/s 44(3) of the Act. Under the scheme of the Act the Parmukh is a public authority and is required to convene the special meeting within 15 days from the date of the receipt of request and consequence for inaction on his part is expressly provided by conferring authority on the Up Parmukh or 1/3rd of the total number of the members to call the special meeting and hence the prescription of time has to be held to imperative and a person interested may enforce the same by a legal process. But the question is as to whether the act done in neglect of this duty shall be legal or not. In my opinion, in case it is held that the requisition lapses after expiry of 15 days and the decision taken in the special meeting held thereafter shall be illegal, it shall result into serious consequences. In such case the members who have brought the no confidence motion will have to suffer although they have no control over the same and in that process the Parmukh who had in fact lost the confidence of members may continue. It is well settled that when the provisions of a statute relate to the performance of a public duty, and the case in which the act has been done in neglect of said duty by person who has no control over the same will not render the ultimate decision taken to be illegal. The view which I have taken finds support from the following passage from the book Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, page 356-357 wherein it has been observed as follows:-

It may be relevant to see whether the requirement of time is addressed to a party or an officer, for in the former case it may mandatory. Further, if the statutory provision as to time is a condition for exercise of a statutory power as distinguished from a duty, the prescription as to time will be construed as mandatory. But whether it be a case of statutory duty or statutory power, the statute may expressly or impliedly make the authority functus officio on expiry of the prescribed period. Further though when a public authority is required to do a certain thing within a specified period, the same is ordinarily directory, it is equally well settled that when consequence for inaction on the part of the statutory authority within specified time is expressly provided, it must be held to be imperative.

The principle was stated by the Privy Council in the following words:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those who are entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only.

I am of the opinion that the obligation of the Parmukh and Up Parmukh to call the meeting within 15 days from the date of receipt of request is mandatory in nature and that can be enforced by legal process but for the purpose of deciding the validity of the decision taken in the meeting held in breach thereof, same has to be construed as directory, as to hold null and void acts in neglect of the mandatory duty, would work serious injustice to persons who have no control over those who are entrusted with the duty. This may sound strange to hold that a provision is held to be mandatory and at the same time the action taken in breach thereof is not found to be legal. But in my opinion Section 44(3) of the Act is an example of lumping of mandatory and directory requirements together by the legislature. In case it is held that holding of the meeting within 15 days is directory, the Parmukh shall not hold the meeting within that period and would defeat the very object of the Act. Further in case it is held that the decision taken in the meeting held beyond 15 days will render the decision null and void, same shall cause grave injustice to persons who have no control over the same.

The view which I have taken finds support from the judgment of this Court in the case of Kanhaiya Singh (supra) in which it has been held as follows:-

Even otherwise from the scheme of the Act it would clearly appear that to avoid unnecessary delay either on the part of the Pramukh or Up-Pramukh or the applicants making the request to convene the meeting the period has been fixed. It would be too much to say that a motion which was validly moved would lapse simply because somebody or the other does not requisition ing within 15 days. In a democratic setup of a society when a person is required to prove his majority to hold the office then he cannot say that if the meeting is not held within 15 days the motion of no confidence would lapse and he would be presumed to be in majority. In the present case the petitioner has lost 5/16 which would mean that he does not have even the one-fourth strength with him. The petition deserves to and is accordingly dismissed.

(Underlining mine)

Mr. Giri then submits that requisition dated 30th of January, 2001 having been rejected by the petitioner on 31.1.2004, said requisition lapsed and on that basis special meeting ought not to have been held. He points out in case members were interested in expressing want of confidence, they ought to have made fresh requisition. In my opinion, rejecting the requisition by Parmukh shall tantamount to failure to convene the special meeting and the requisition shall not lapse on the ground that it has been rejected by the Parmukh. Any other view would cause damage beyond comprehension. A disgruntled Parmukh shall go on rejecting the requisition one after another and in case it is held that it had lapsed on account of its rejection, no meeting shall be possible to be held.

Mr. Giri then submits that the impugned notice fixing 10th of August, 2004 as the date of the special meeting to consider the no confidence motion is illegal as the same had been done without giving any requisition to the petitioner. He points out that Executive officer had no authority to convene the meeting. I do not have the slightest hesitation in accepting the broad submission of Mr. Giri that for holding the special meeting to consider the no confidence motion, requisition has to be first given to the Parmukh and further the Executive Officer had no authority to convene the meeting. However, the very assumption of the petitioner that no requisition was given to him and it is the Executive Officer who had convened the meeting is unfounded on fact. Petitioner does not deny the receipt of the requisition dated 30th of January, 2004. I have held that the said requisition had not lapsed. Thus the requisition to convene the meeting was at the first instance given to the Parmukh. Further the Executive Officer had not convened the meeting, 22 members by their letter dated 31.7.2004 fixed 10th of August, 2004 as the date of the special meeting and required the Executive Officer to give notice to the member. Accordingly. the Executive Officer had given notice of the meeting to the members. Thus the Executive Officer had not convened the meeting suo motu but had given the date of the special meeting which he is under obligation to do u/s 44(3) of the Act.

Mr. Giri then submits that the notice does not contain the charge and the reason for bringing the no confidence motion as required u/s 42(7) of the Act. He submits that the same renders the notice illegal. Contesting respondents however contend that the impugned notice enclosed the requisition which contained the charges and the reasons for bringing the no confidence motion.

Having appreciated the rival submission I do not find any substance in the submission of Mr. Giri and for that one needs to examine the provision of Section 42(7) of the Act, which reads as follows:-

Resignation or Removal of Pramukh and Up Parmukh.

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(7). Such reasons/charges, on the basis of which no confidence has to be moved against the Pramukh and Up Parmukh, shall be clearly mentioned in the notice of meeting called to consider the no confidence motion.

From a plain reading of Section 42(7) of the Act notice of the meeting called to consider the no confidence motion has to contain reasons/charges on the basis of which no confidence has to be moved. In the present case alongwith notice the requisition given by the members has been annexed which in detail contained the reasons and the charges for bringing the no confidence motion. Hence the motion of no confidence passed against the petitioner cannot be said to be illegal on the ground urged by Mr. Giri.

Mr. Giri has also assailed the impugned notice on the ground that the same has been issued at the instance of the Advocate General. He points out that under the scheme of the Act, the Advocate General has no role to play and from the impugned notice itself it is evident that the notice had been issued on the dictates of the Advocate General. He highlights that the Executive Officer and for that matter the members of the Panchayat Samiti had abdicated their responsibility in favour of the Advocate General which renders the impugned notice illegal in the eye of law. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of The Purtabpore Co., Ltd. Vs. Cane Commissioner of Bihar and Others, and my attention has been drawn to the following passage from paragraph 13 and 14 of the judgment, which reads as follows:-

13....The power exercisable by the Cane Commissioner under cl. 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of any one-not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by cl. (6) read with cl. (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner.

The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.

Mr. Giri has also placed reliance on a decision of this Court in the case of Raj Kumar Rai Vs. State of Bihar and Others, and my attention has been drawn to paragraph 4 of the judgment, which reads as follows:-

When an act is to be done in accordance with law or within a particular procedure then it has to be done accordingly after following the procedure or not at all. The S.D.O. may be a supervisory authority or officer of the B.D.O. for general administration but under the Bihar Panchayat Raj Act, 1993 he does not have any jurisdiction to issue any directions to the B.D.O. to convene a meeting to consider the no confidence motion.

The whole argument of Mr. Giri has proceeded on a misconceived assumption. Nothing has been brought on record to show that the Advocate General had given any direction for holding the meeting on a particular day. It seems that the matter was referred to the Advocate General for his opinion and he had clarified the legal position. As the Advocate General of the State he is obliged, nay duty bound to advice the State Government on legal issues. The opinion of the Advocate General carries weight and deserves to be treated with respect but at the same time it cannot be said to be a direction given by him to the statutory authority. There lies a distinction between direction and opinion and in case an authority acts in conformity with the opinion of the Advocate General, it cannot be said that he had abdicated the authority. Hence the submission made has no merit and the authorities relied on are clearly distinguishable.

Mr. Giri all the time emphasised that the requisition by the members of the Panchayat Samiti to hold the special meeting to consider the no confidence motion against the petitioner is actuated with mala fide of respondent no. 41 Mr. Dilip Verma, a member of the Legislative Assembly as on a public interest litigation brought by this petitioner his brother has been suspended. Even if I assume in favour of the petitioner that Mr. Dilip Verma had ill will against the petitioner and he may be counselling the members of the Panchayat Samiti to bring the no confidence motion against the petitioner but the requisition to bring the motion of no confidence by the members cannot be said to be a motion moved by said Mr. Verma. It shall be the motion brought by the members and malafide of Mr. Verma, if at all, shall have no bearing at all. In the result, the writ application fails and is, accordingly, dismissed but without any order as to cost.