Munni Devi vs The State of Bihar and Others

I.A. Ansari, J.—This appeal arises out of an order, dated 11.3.2014, passed in C.W.J.C. No. 23678 of 2013, whereby a learned Single Judge of this Court has allowed the writ petition and restrained the present appellant and other members of Raghunathpur Panchayat Samiti from moving any requisition demanding convening of special meeting to discuss motion of no confidence against the writ petitioner, who is Pramukh of the said Panchayat Samiti. The moot question, which falls for determination, in the present appeal, is: Whether giving of 7 (seven) clear days'' notice, convening a special meeting to discuss a motion of no confidence, brought against a Pramukh of a Panchayat Samiti, is a requirement to be met at the instance of the person against whom the motion of no confidence is brought and not at the instance of those, who may have served requisition on the Pramukh to discuss and debate against him a no confidence motion?

The factual scenario, which has given rise to the question posed above, is set out, in a nutshell, as follows:--

(i) Smt. Mina Devi was elected as Pramukh of Raghunathpur Prakhand Panchayat Samiti on 26.6.2011. On 23.10.2013, a requisition, signed by 14 elected members, out of 20 elected members of the said Panchayat Samiti, was presented to Smt. Mina Devi (i.e., the Pramukh), seeking a special meeting to be convened in order to consider a motion of no confidence against her for the reasons stated therein. Similar requisition was also presented by the requisitionists to respondent No. 5, namely, Block Development Officer-cum-Executive Officer, Raghunathpur, District Siwan. By a communication, dated 24.10.2013, the Executive Officer brought the said requisition to the notice of the Pramukh. By letter, dated 2.11.2013, addressed to the Executive Officer, the Pramukh fixed the special meeting on 6.11.2013, at 11:00 A.M., and directed that the information of the special meeting be accordingly given to all the members of the said Panchayat Samiti. In the light of the direction contained in the letter, dated 2.11.2013, aforementioned, the Executive Officer issued a notice, on 2.11.2013, informing all the members of the said Panchayat Samiti that the special meeting, for the purpose of discussing the motion of no confidence brought against the Pramukh, would be held on 6.11.2013.

(ii) However, before the scheduled date of the special meeting, the Executive Officer published another notice, on 3.11.2013, cancelling the special meeting, which was scheduled to be held, as already indicated hereinbefore, on 6.11.2013. This apart, by another communication, dated 6.11.2013, addressed to the Up-Pramukh of the said Panchayat Samiti, the Executive Officer informed the former that the earlier notice, which had been issued on 2.11.2013, fixing the special meeting on 6.11.2013, was contrary to the provisions of the Bihar Gram Panchayat Raj Act, 2006, inasmuch as the special meeting had been convened by the notice, dated 2.11.2013, aforementioned, without giving 7 (seven) clear days'' notice for the special meeting and, therefore, requested that a fresh date, convening the special meeting, be fixed.

(iii) Notwithstanding the fact that the Executive Officer, vide notice, dated 3.11.2013, had cancelled the special meeting to be held on 6.11.2013, as indicated above, Mina Devi, as Pramukh, went ahead with her decision to hold the special meeting on 6.11.2013 and, accordingly, held the special meeting on 6.11.2013, which, according to the Pramukh, was attended by 13 members of the said Panchayat Samiti, including some of the requisitionists. In the meeting so held on 6.11.2013, the no confidence motion, according to Pramukh, was rejected on discussion.

(iv) In view, however, of the cancellation of the special meeting by the Executive Officer by his notice, dated 3.11.2013, a writ petition, made under Article 226 of the Constitution of India, was filed by the Pramukh, seeking issuance of appropriate writ(s) and/or order(s) commanding respondent No. 5, namely, Block Development Officer-cum-Executive Officer, Raghunathpur, District Siwan, not to convene the special meeting, because the attempt to convene the special meeting was, according to the Pramukh, mala fide and also because such a meeting, according to the Pramukh, would be in violation of the provisions of Section 44(3) of the Bihar Gram Panchayat Raj Act, 2006 (hereinafter referred to as "the 2006 Act"). By the writ petition, the Pramukh, as writ petitioner, also sought for, inter alia, quashing of the notice, dated 3.11.2013, whereby the special meeting, scheduled to be held on 6.11.2013, was cancelled by the Executive Officer as well as the letter, dated 6.11.2013, which was addressed to the Up-Pramukh by the Executive Officer, requesting the Up-Pramukh to convene the special meeting on the ground, as already indicated above, that the special meeting was being convened without giving 7 (seven) clear days'' notice and, further, seeking initiation of departmental proceeding against respondent No. 5, namely, the Executive Officer, for acting allegedly in contravention of the provisions of the 2006 Act.

(v) The present appellant and some other elected members of the said Panchayat Samiti resisted the writ petition by filing their respective affidavits, while some other members supported the writ petition.

(vi) By order, dated 11.3.2014, a learned Single Judge of this Court, as already indicated above, has allowed the writ petition and restrained the members of the Panchayat Samiti, including the present appellant, from moving any requisition demanding convening of special meeting to discuss the motion of no confidence against the Pramukh.

Aggrieved by the order so made, this appeal has been preferred by the appellant herein, who was one of the requisitionists.

We have heard Mr. S.B.K. Mangalam, learned counsel, appearing on behalf of the appellant, and Mr. Sanjay Singh, learned counsel, appearing for respondent No. 29. We have also heard Mr. Amit Shrivastava, learned counsel, appearing for the State Election Commission, Mr. Alok, learned counsel for respondent Nos. 6 to 12 and 17 to 26, and Mr. Ranjan Kumar, learned Assistant Counsel to Standing Counsel No. 14, for the State-respondents.

At the time of hearing of this appeal, the order, dated 11.3.2014, which stands impugned in this appeal, has been assailed on, broadly speaking, three grounds.

The first and foremost ground is that a special meeting to discuss a motion of no confidence must necessarily be held after giving 7 (seven) clear days'' notice of the special meeting specifying, in the notice, the place, date and time of such meeting, which, admittedly, had not been done in the present case.

Yet another ground of challenge to the impugned order, dated 11.3.2014, is that the learned Single Judge has completely ignored the fact that by the notice published on 3.11.2013, the Executive Officer had, admittedly, cancelled the special meeting, which was to take place on 6.11.2013, and it is the case of the appellant that because of the cancellation of the special meeting, which was to be held on 6.11.2013, he and some other elected members of the said Panchayat Samiti could not attend the special meeting and, thus, holding of the special meeting, on 6.11.2013, in the manner and circumstances as mentioned hereinbefore, was wholly illegal and is, therefore, not sustainable.

No less important is the assertion of the appellant that the proceedings of the special meeting, in question, were false, manipulated, fabricated and concocted and, therefore, the proceedings are not sustainable in law; but this aspect of the case, according to the appellant, has been ignored by the learned Single Judge on a misconceived proposition of law that the determination of the issue, so raised by the appellant, calls for determination of disputed questions of fact and, therefore, cannot be taken into account without the learned Single Judge having realized that if disputed questions of fact had arisen in the writ petition, it is the writ petition, which ought to have failed and been dismissed rather than rejecting the case of the appellant and others that the proceedings of the special meeting, in question, were false, manipulated, fabricated and concocted, especially, when the disputed questions of fact could not have been decided and have, in fact, not been decided, in the writ petition, by the learned Single Judge.

As far as Mr. Sanjay Singh, learned counsel, appearing on behalf of respondent No. 29, is concerned, his contention is that the cancellation of the special meeting by the Executive Officer was illegal on two counts, namely, (i) that the Executive Officer did not have the power to cancel the special meeting, which had been scheduled to be held on 6.11.2013, and (ii) that 7 (seven) clear days'' notice was a requirement to be complied with under the Bihar Panchayat Raj Act, 1993, but under the scheme of the 2006 Act, 7 (seven) clear days'' notice, in order to hold a special meeting to discuss a motion of no confidence brought against a Pramukh or Up-Pramukh, is not at all required.

Learned counsel, appearing for the remaining parties has not raised any issue other than ones, which have been noticed above.

While considering the present appeal, what attracts the attention, most prominently, is that the learned Single Judge has clearly recorded in the order, dated 11.3.2014, that one of the contentions of the contesting respondents, in the writ petition (who included the present appellant), is that the notice of the special meeting, which was to be held on 6.11.2013, had not been served on all the elected members of the said Panchayat Samiti. Having recorded this submission, the learned Single Judge has observed, "This, in my view, is essentially a question of fact which should not be gone into by this Court. There is nothing on record that any such grievance was earlier raised before the authority by the respondents. 13 of the respondents of the present case out of 20 members of the Panchayat Samiti (inclusive of the writ petitioner) have supported the writ petition".

What has escaped from the attention of the learned Single Judge is that if the notice of the special meeting had not been given to all the members of the said Panchayat Samiti, then, the special meeting was, undoubtedly, illegal and nothing transpired, at such a special meeting, could have made the outcome of the special meeting legally sustainable in law. The learned Single Judge has observed, in this regard, that the question, as to whether the notice has been served or not on all the members, is essentially a question of fact, which should not be gone into by the Court. This proposition of law is not entirely incorrect inasmuch as a Court shall not, while exercising extra ordinary powers under Article 226 of the Constitution of India, enter, ordinarily, into determination of disputed questions of fact.

When the learned Single Judge had come to a definite conclusion that the question raised was a question of fact and could not have been determined by the Court, while exercising powers under Article 226 of the Constitution of India, the logical consequence was that it was the writ petition, which ought to have been treated as having failed. This has, however, not been done; rather, the issue has been decided in favour of the writ petitioner without any proof of the fact as to whether the contention of the contesting respondents, that the notice of the special meeting had not been served on all the elected members of the said Panchayat Samiti, is true or not. The approach, which the learned Single Judge has so adopted, is wholly contrary to the established law and, on this ground alone, the writ petition ought to have been dismissed as not sustainable inasmuch as the writ petition involved, in the light of the counter affidavit on record, determination of disputed questions of fact, which ought not to be gone into, even according to the learned Single Judge, by the Court, while exercising extra-ordinary power under Article 226 of the Constitution of India.

What can also not be ignored is that the learned single Judge, having already observed that the disputed question of fact had been raised, which could have been gone into, sought to justify and, indeed, justified, the calling of the special meeting by observing that there is nothing on record that any such grievance, as regards non-service of notice aforementioned, had been expressed before any authority. When the question as to whether notice of the special meeting had or had not been served on all the members had already been held by the learned Single Judge to be a disputed question of fact and not capable of being answered in the writ petition, the question of, again, trying to justify that the notice had been served, because no grievance had been raised earlier was highly improper, unjustified and illegal, more particularly, when the writ petition was the first judicial proceeding, where the respective cases of the parties had been placed before the Court, and, hence, the question of raising the grievance earlier did not arise at all.

The learned Single Judge has also dealt with the grievance of the contesting respondents, in the writ petition, that the proceedings of the special meeting were false, manipulated, fabricated and concocted. The relevant observations, made by the learned Single Judge, in this regard, read as under:--

"Another contention of the contesting respondents that the proceeding was not drawn on the proceeding book of the Panchayat Samiti, in my view, pales into insignificance in view of the fact that no such grievance/issue has been raised by the other respondents who have supported the writ petition. That apart, this again is essentially a question of fact which this Court would not go into."

From the above observations, what clearly transpires is that the learned Single Judge has taken the view that the question, as to whether the proceeding had been faithfully and correctly drawn or not, is essentially a question of fact, which the Court would not go "into in a writ proceeding under Article 226 of the Constitution of India. When the Court found itself incapable of entering into the determination of the correct position of fact, it is the writ petition, which ought to have been held as failed and not that the grievance of the contesting respondents, including the present appellant, were to be ignored. Here, again, the learned Single Judge has taken the view that if a disputed question of fact is raised and cannot be decided by a writ Court, then, the writ petition remains maintainable, though the court would not go into determination of the disputed question of fact. This is a view, which is completely contrary to law inasmuch as a writ petition, when, raises a disputed question of fact and the Court decides not to enter into determination of the disputed question of fact, it is the writ petition, which would fail and not the disputed fact, which has been raised.

What follows from the above discussion is that having taken the view that the disputed question of fact, which the contesting respondents had raised, would not be gone into, the learned Single Judge ought not to have held to the effect that the proceedings of the special meeting, claimed to have been held on 6.11.2013, were genuine, correct and sustainable. This approach, which the learned Single Judge has adopted, is, again, wholly, we are constrained to observe, erroneous.

More explicitly speaking, when a question of fact is found to be disputed and the Court takes the view, while exercising extraordinary power under Article 226 of the Constitution of India, that such a disputed question of fact be not gone into, it is the writ petition, which must fail, and ought to have, in the present case, failed, and those, who had raised the dispute, could not have been made the casualty of the Court''s inability to determine the correctness of the disputed question of fact.

What is also of great relevance to note is that the learned Single Judge, while dealing with the correctness of the proceedings of the special meeting, observed, "Moreover, pleading on record suggest the respondent Executive Officer acted in connivance of the contesting respondents and with a view to nullify the proposed meeting he might not have produced the proceeding register of which he is supposed to be the custodian. Nonetheless, on this point alone this Court is unable to conclude that the proceeding held on 6.11.2013 was merely a concocted one. Any such proceeding can always be made part of the official records if it is found to have been made/drawn in the light of notice issued by the Executive Officer as is the case in the present case".

The observations, so made by the learned Single Judge, are mere surmises. In fact, the observations, so made, are conjectural in nature inasmuch as no definite conclusion has been reached by the learned Single Judge on the question, as to whether the proceedings of the special meeting, held on 6.11.2013, were false, manipulated and concocted or not and when the Court was not in a position to hold, clearly and boldly, that the proceedings, relied upon, by the writ petitioner as the proceedings of the special meeting, held on 6.11.2013, were or were not true or genuine, the question of placing reliance on the minutes of such proceedings and the question of allowing the writ petition could not have arisen at all.

Coming to the requirement of 7 (seven) clear days'' notice, the learned single Judge has sought to point out that the requirement of 7 (seven) clear days'' notice is the requirement, from the standpoint of the person against whom the motion of no confidence is brought so that he or she gets adequate time to convince requisitionists that their allegations, giving rise to the no confidence motion, are not sustainable.

On analyzing the scheme of the 2006 Act, we are clearly of the view that the interpretation of the relevant provisions of the statute, in question, by the learned Single Judge, is not correct. The requirement of 7 (seven) days of clear notice is not a requirement, embodied in the statute, for the benefit of Pramukh or Up-Pramukh only, but equally important it is for those, who may have given requisition for such meeting. Some requisitionists may remain out of station under the impression that if the special meeting is held, it would be held after giving 7 (seven) days of clear notice; whereas the Pramukh or Up-Pramukh, as the case may be, can intelligently call for a special meeting on the very next day of the receipt of the requisition demanding special meeting.

Moreover, if the Pramukh or Up-pramukh, as the case may be, requires 7 (seven) clear days'' notice to convince the requisitionists and other elected members of the Panchayat Samiti that they must not lose their confidence in the Pramukh or Up-pramukh, as the case may be, same right must be held to be available to the requisitionists, too, to prepare themselves and convince other elected members of the Panchayat Samiti that allowing the Pramukh or the Up-pramukh, as the case may be, to function, in the office, would be detrimental to the interest of the Panchayat Samiti concerned. The requirement of 7 (seven) clear days'' notice is, therefore, not a requirement in the interest of Pramukh or Up-Pramukh, as the case may be, only, but for the other elected members of the Panchayat as well so that every elected member knows that the special meeting would be convened after giving 7 (seven) clear days'' notice in order to enable them to confer amongst each other so that the requisitionists'' point of view becomes known to all concerned; whereas a Pramukh or Up-Pramukh may, if this proposition of law is not adhered to, call a special meeting on the very next date or at his or her whims and caprice and thereby ensure that the motion of no confidence is taken up with no or inadequate preparedness resulting into the motion being defeated without effective discussion or without even presence of all requisitionists.

Ordinarily, the words of a statute have to be read and understood in their natural, ordinary and popular sense. Where, however, the words, used in a statute, are capable of bearing two or more constructions, it is necessary to adopt purposive interpretation in order to identify the construction to be preferred. For the purpose of adopting purposive construction of statutory provisions, one has to answer following questions, namely, (i) What is the purpose for which the provision is made? (ii) What was the position before making the provision? (iii) Whether any of the constructions proposed would lead to an absurd result or would render any part of the provision redundant? (iv) Which of the interpretations will advance the object of the provision? The answers to these questions will enable the court to identify the purposive interpretation to be preferred, while excluding others. Such an exercise, involving ascertainment of the object of the provision, can, however, be undertaken only where, as already indicated above, the language of the provision is capable of more than one construction. (See The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , and Kanai Lal Sur Vs. Paramnidhi Sadhukhan, (See also Grid Corporation of Orissa Ltd. and Others Vs. Eastern Metals and Ferro Alloys and Others, .

The Bihar Gram Panchayat Raj Act, 2006, aims to provide and strengthen the democratic institution of Panchayat at the level of villages so that participation of the people, in the affairs of the Panchayat, increases and their involvement, in the preparation and implementation of the local development schemes, becomes possible as well as effective.

Necessarily, therefore, the 2006 Act needs to be interpreted in such a manner, which would strengthen the democratic institution at the grass root level and not defeat such purpose. When analyzed and considered in this light, it becomes abundantly clear that the purpose of 7 (seven) clear days'' notice, for the purpose of holding special meeting, is a requirement, which need to be satisfied not only in the interest of the Pramukh and Up-Pramukh, as the case may be, but also in the interest of the elected members of the Panchayat including those, who may have requisitioned the special meeting for the purpose of removal of Pramukh and Up-Pramukh, as the case may be, by way of a motion of no confidence.

While considering the rival submissions made before us, it needs to be noted that under Section 44(3) of Bihar Gram Panchayat Raj Act, 2006, a Pramukh or Up-Pramukh of the Panchayat Samiti, as the case may be, shall be deemed to have vacated his office forthwith if a resolution, expressing want of confidence in him or her, is passed by a majority of the total number of elected members of the Panchayat Samiti at a meeting specially convened for the purpose and the requisition for such a special meeting shall be presented to the Pramukh, in writing, with a copy to the 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, whereupon the Executive Officer shall, immediately, bring the requisition to the notice of the Pramukh and the Pramukh shall, then, convene such meeting on a date falling within 15 days of such requisition and 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 special meeting and, then, the Executive Officer shall necessarily issue such a notice in time and convene the meeting. Sub-section (3) of Section 44 of Bihar Gram Panchayat Raj Act, 2006, also lays down that no such special meeting shall be postponed once the notice for the same has been issued and no quorum shall be required for the special meeting convened to discuss no confidence motion.

From a bare reading of what Section 44(3) of Bihar Gram Panchayat Raj Act, 2006, conveys, it becomes clear that when requisition for a special meeting is presented to a Pramukh, it is the Pramukh, who has to decide the date of the special meeting, and, in terms of the decision so taken by the Pramukh, the Executive Officer of the Panchayat Samiti is required to issue notice and when the Pramukh fails to convene the meeting within 15 days of such requisition, one third of the total number of the directly elected members of the Panchayat Samiti is vested with a right to fix a date of such special meeting and require the Executive Officer to give a notice accordingly to the members and take such action as may be necessary to convene the special meeting, whereupon the Executive Officer shall issue necessary notice.

If further follows from what Section 44(3) of Bihar Gram Panchayat Raj Act, 2006, embodies is that a notice of special meeting may be issued in two different and distinct circumstances, namely, (i) when the Pramukh takes a decision, in terms of Section 44 of Bihar Gram Panchayat Raj Act, 2006, to convene the special meeting, or (ii) on the failure on the part of the Pramukh to convene the meeting within 15 days of such requisition, 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 take such action as may be necessary to convene the special meeting.

What is, however, of immense importance to note, at this stage, is that in the present case, 7 (seven) clear days of notice had, admittedly, not been given convening the special meeting to discuss the motion of no confidence brought against the Pramukh and no reason has been assigned therefor. This apart, the Executive Officer had, admittedly, cancelled the special meeting by his subsequent notice published on 3.11.2013. The question is not as to whether the Executive Officer has the power or not to cancel the special meeting; rather, the question is what would be the impact of such a cancellation. Obviously, since it was the Executive Officer, who had, in the present case, given the notice convening the special meeting, as per the direction of the Pramukh and when he was the one, who had cancelled the special meeting, it was reasonable to infer that the member or members might have innocently remained absent from the special meeting on the ground that the special meeting stood cancelled and when a requisitionist is not given effective opportunity to have his say on the motion of no confidence, he is denied his inalienable democratic right as a member of Panchayat Samiti and such a denial of his right cannot be ignored inasmuch as prejudice would be writ large in such a case.

To put it a little differently, the question is not whether the Executive Officer has acted without jurisdiction or not; rather, the question is what impact or affect cancellation of the special meeting by the Executive Officer had on the understanding of the members of the Panchayat Samiti. Since the writ petitioner, as Pramukh, did nothing to allay the impression of the members that the special meeting did not stand cancelled and when the writ petitioner, as Pramukh, did not issue any notice superseding the notice of the Executive Officer, the notice, issued by the Executive Officer, has to be held, and we do hold, had caused serious prejudice to those, who did not, admittedly, attend the special meeting inasmuch as it has never been in dispute in the writ petition that all the members of the Panchayat Samiti including the present appellant were not present at the special meeting held, at the instance of the Pramukh on 6.11.2013.

In terms of Section 46(4) of 2006 Act, 7 (seven) clear days of notice is required to be given in order to convene a special meeting and when 7 (seven) clear days of notice has not been given, in the present case, it was not illegal, on the part of the Executive Officer, to inform the Up-Pramukh or to draw the attention of the Pramukh to the illegally committed by the Pramukh and, therefore, the request made by Executive Officer that the special meeting be held after giving 7 (seven) clear days of notice, cannot but be regarded as an act not done by the Executive Officer in discharge of his solemn duty to ensure that the affairs of the Panchayat including the proceedings of the special meeting are conducted adhering to the law containing in that behalf and the Executive Officer, in the present case, cannot be condemned for having performed his duty by bringing the illegality to the notice of the Up-Pramukh.

Coupled with the above, and most importantly, it is the specific case of the contesting respondents, in the writ petition, that notice of special meeting had not been served on all the members. In the face of the nature of allegation, which had been so raised, when the learned Single Judge was unable to determine what the truth was, the writ petition ought to have been dismissed on the ground that in the facts and circumstances of the present case, when intricate questions of disputed facts have arisen for determination, writ jurisdiction is not an appropriate remedy.

Because of what has been discussed and pointed out above, we are clearly of the view that when the writ petition had raised so many disputed questions of fact, the learned Single Judge ought not to have entertained the writ petition, when the learned Single Judge had, in no uncertain words, observed that such disputed question of fact cannot be gone into.

The learned Single Judge ought to have, in our considered view, dismissed the writ petition when 7 (seven) days of clear notice had not been given, which convening the special meeting. Above all, the learned Single Judge ought not to have ignored and, therefore, dismissed the writ petition, when it was clearly admitted that a notice was published, on 3.11.2013, by the Executive Officer, cancelling the special meeting. In the face of such admitted facts, absence of contesting respondents, such as, the present appellant, ought not to have been ignored and since prejudice had been caused to them, the writ petitioner could not have been the beneficiary of such a situation. No less important is the fact that the allegation of the proceedings of the special meeting being concocted has not been, and could not have been, answered in the writ petition. On this ground alone, the writ petition ought to have failed.

Though the writ petitioner had alleged that the Executive Officer acted mala fide and in connivance with the contesting respondents, this aspect of the allegation remained wholly unproved.

What crystallizes from the above discussion is that the learned Single Judge has committed, with great respect, serious errors of law in allowing the writ petition. Because of what has been discussed and pointed out above, this appeal succeeds, the impugned order, dated 11.3.2014, is set aside and the writ petition is hereby dismissed.

Anjana Mishra, J.

I agree.