IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.679 of 2008 ***** Sunaina Devi, aged 40 years, wife of Shri Ashok Bhagat, resident of Village- Kasba, P.S. Shambhuganj, district-Banka, Pramukh, Sambhuganj Panchayat Samiti, Distt.- Banka. …. …. Respondent/Appellant Versus 1. The State of Bihar. 2. The Director, Directorate of Panchayat Raj, Government of Bihar, Patna. 3. The Executive Officer, Sambhuganj Panchayat Samiti, Distt.-Banka. …. …. Respondent/Respondents 4. Shweeta Devi, Wife of Shri Bipin Kumar, resident of Sondiha, P.S. Shambhuganj, district-Banka. …. …. Petitioner/Respondent 5. Member Board of Revenue, Bihar, Patna. …. …. Respondent/Respondents ----------- For the Appellant : Mr. B. P. Pandey, Senior Advocate Mr. Jagar Nath Singh, Advocate Mr. P.K.Sinha, Advocate For Respondents 1 to 3: Mr. Harendra Pd. Singh, G.A.-VI Mr. Rajiv Kumar Singh, A.C. to G.A.-VI For Respondent No.4 : Mr. S.B.K. Mangalam, Advocate Ms. Anamika Dubey, Advocate ------------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (22.03.2010) As per Dipak Misra, C.J.- In this appeal, preferred under Clause X of the Letters Patent, the subject matter of assail is the order dated 14th August, 2008 passed by the learned Single Judge in C.W.J.C. No. 15843 of 2007, whereby he has overturned the order dated - 2 - 8th November, 2007 passed by the Member, Board of Revenue in Panchayat Raj Appeal No.32 of 2007, wherein the appellate authority had reversed the order dated 13th June, 2007 passed by the Divisional Commissioner, Bhagalpur, who had passed an order under Section 44(4) of the Bihar Panchayat Raj Act, 2006 (for brevity, „the Act‟), whereby he had directed removal of the fourth respondent herein as Pramukh of the Panchayat Samiti for having incurred disqualification under Section 46(3) of the Act as she had not held the meeting as commanded under the said Act. 2. Shorn of unnecessary details the facts are that on the basis of a complaint made by one Shweeta Devi, the writ petitioner, along with other members of the Panchayat Samiti a proceeding under Section 44(4) was initiated by the Divisional Commissioner. The principal allegation against the elected Pramukh was that she had not convened the meeting as required under Section 46(1) and other provisions of the Act within a span of two months inasmuch as the first meeting after election of the Samiti was held on 31st July, 2006 and the second meeting was convened on 30th April, 2007. It was contended in the complaint petition that omission on the part of the Pramukh in not holding the meeting satisfied the requirement of willful omission as - 3 - engrafted under Section 44(4) of the Act and, therefore, the consequence has to be removal from the post. 3. Before the Commissioner the stand of the Pramukh was that she made an endeavour to convene the meeting but the Block Development Officer-cum-Executive Officer, who has a role, did not co-operate and on some occasions played hide and seek on some pretext or other, as a consequence of which the meeting could not be held and, therefore, the said omission cannot be treated as willful omission, attracting violation under Section 46(3) of the Act. The Commissioner, as is evident from order passed by him, after adverting to the rival submissions raised on behalf of the parties came to an unequivocal conclusion that the Pramukh had not carried out the statutory obligation and there was willful omission on her part and, therefore, order of removal was the eventual resultant and, accordingly, he so directed. 4. Being dissatisfied with the aforesaid order the Pramukh preferred an appeal under Section 44 of the Act before the Member, Board of Revenue, who expressed the view that adequate explanation had been preferred by the Pramukh and the absence of the Block Development Officer created impediment for the Pramukh to convene the meeting and, therefore, her - 4 - removal was improper and the order passed by the Commissioner removing her was indefensible. 5. Being aggrieved by the aforesaid order the complainant preferred the writ petition invoking the inherent jurisdiction of this Court. Before the writ Court it was contended that the omission was willful as there was a statutory violation per se and no leverage or laxity could be given to an elected candidate, who did not carry out the statutory mandate. It was also contended that the plea of absence of the Block Development Officer-cum-Executive Officer, even if, assumed to be correct, cannot be an excuse for not convening the meeting and such a subterfuge would have no sanction in law. It was also highlighted before the learned Single Judge that the Executive Officer under the statutory scheme has no role to convene the meeting and hence putting the blame on the Executive Officer is nothing but shifting of responsibility, which the law does not countenance and, therefore, the order passed by the Commissioner was absolutely justified and interference with the same by the Board of Revenue was totally unwarranted. 6. The learned Single Judge appreciating the factual scenario and taking note of the mandate of the Constitution and the role of democracy at the grass root level, and appreciating the - 5 - statutory scheme of the 2006 Act came to hold that there was deviation on the part of the Pramukh which warranted her removal and, therefore, the order passed by the Commissioner was flawless and the interference with the same by the Board of Revenue was fallible. 7. We have heard Mr. B.P. Pandey, learned senior counsel along with Mr. Jagar Nath Singh, learned counsel for the appellant, Mr. Harendra Prasad Singh, learned counsel for the respondents 1 to 3 and Mr. S.B.K. Mangalam, learned counsel for the respondent no.4. 8. Questioning the legal substantiality of the order Mr. Pandey, learned senior counsel appearing for the appellant has raised the following contentions: - (a) The learned Single Judge has failed to appreciate the schematic context inasmuch as Section 46(3) does not cast any obligation on the part of the Pramukh to convene the meeting and, therefore, there was no omission. (b) The first meeting was held on 31st July, 2006 and the second meeting was held on 30th April, 2007 because the proposals sent by the appellant, as would be evincible from Annexure-2 series to the writ petition, was really not taken note of by the Executive Officer and, therefore, respondent no.4 could - 6 - not hold the meeting and in that background an order of removal could not have been passed against her. (c) The learned Single Judge has failed to appreciate the role ascribed to the Executive Officer under Sections 60 and 61 of the Act, and had it been properly appreciated, the conclusion could have been to the contrary and there could not have been concurrence with the order passed by the Member, Board of Revenue. (d) Section 42(a) has to be read in conjunction with Section 46 and if the same are appreciated in proper perspective, it would be clear as crystal that certain meetings are to be called or convened by the Pramukh and there is a mandate that a meeting is to be called every bimonthly, failing which that would entail such serious consequences, but not cause omission as regards convening of meetings. (e) In case there is no convening of meeting, it is open to the members of the Samiti to take action, initiating a no confidence motion but the authority had no jurisdiction to remove the Pramukh from the elected post inasmuch as election has its own sacrosanctity. 9. Mr. Singh and Mr. Mangalam, learned counsel appearing for the respondents submitted, in oppugnation, as - 7 - follows: - (i) Section 46(3) and 42(a) are to be read harmoniously and on such a reading it would be clear as day that it is obligatory on the part of the Pramukh to hold a meeting in every two months and the same is a critical breach and when the meetings are not held for nine months, it would tantamount to willful omission per se and nothing else is required to establish any kind of motive for the same. In essence, the submission of learned counsel for the respondents is that the act of the appellant speaks for itself. (ii) The stand that the Executive Officer was not available has to be rejected inasmuch as there was a person incharge of the Executive Officer and in any case assuming there was non-cooperation of the Executive Officer that would not absolve the elected candidate to perform his statutory duty. (iii) The plea that the responsibility to convene an ordinary meeting, as envisaged under Section 42(a) cannot be read in isolation to the concept of meeting which has been prescribed under Section 46(3) of the Act. That apart the first meeting was held on 29th June, 2006 when respondent no.4 was elected and took oath on 30th June, 2006 and thereafter the first meeting was called on 31st July, 2006 and, therefore, the gap in - 8 - the meeting cannot be obliterated. On the contrary the explanation offered does amount to willful omission. (iv) The order of learned Single Judge is absolutely invulnerable inasmuch as at the grass root level of democracy there cannot be any kind of deviancy of this nature, as meetings of minds in a body polity is quintessentially the spine of democracy. When the same is buried or crucified Section 46(3) gets vitally animated and action is requisite to be taken and that having been taken no fault can be found with the order of the learned Single Judge. 10. To appreciate the submissions raised at the Bar, we have carefully perused the order of the learned Single Judge and the materials brought on record. Chapter IV deals with Panchayat Samiti. Section 34 deals with establishment of Panchayat Samiti. Section 37 deals with elected members. Section 40 deals with election of Pramukh and Up-Pramukh. Section 40(1)(a) stipulates that the elected members of the Panchayat Samiti referred to in Clause (a) of sub-Section (1) of Section 36 shall assemble to elect two members from among themselves to be the Pramukh and Up-Pramukh of the Panchayat Samiti. Thus, a Pramukh is indirectly elected. Section 42 provides for the powers, functions and the duties of the Pramukh. - 9 - The said provision being relevant for the present purpose is reproduced below: - 42. Powers, Functions and Duties of the Pramukh- The Pramukh shall- (a) convene, preside and conduct the meetings of the Panchayat Samiti; (b) exercise supervision and control over the Executive Officer for securing implementation of resolutions or decisions of the Panchayat Samiti or of the Standing Committees, which are not inconsistent with the provisions of this Act or any general or special directions issued under this Act; (c) exercise overall control over the financial and executive administration of the Panchayat Samiti and place before the Panchayat Samiti all questions connected therewith which shall appear to him to require its orders and for this purpose may call for records of Panchayat Samiti; and (d) have power to accord sanction upto a total sum of twenty five thousand rupees in a year for the purposes of providing immediate relief to those who are affected by any natural calamity in the Panchayat Samiti area : Provided that the Pramukh shall place at the next meeting of the Panchayat Samiti the details of such sanctions for its ratification. 11. On scanning of the anatomy of the aforesaid provision, it is clear, as noon day, that a Pramukh is under obligation to convene, preside and conduct the meeting of the Panchayat Samiti. The Pramukh has a statutory role to exercise supervision and control over the Executive Officer for securing implementation of resolutions and decisions of the Panchayat - 10 - Samiti or of the Standing Committees. Under the said provision, he has the power to exercise over-all control over the financial and executive administration of the Panchayat Samiti and place before the Panchayat Samiti all questions connected therewith which shall appear to him for order and for this purpose may call for records of the Panchayat Samiti. 12. Section 44 of the Act deals with resignation and removal of Pramukh and Up-Pramukh. Sub-section (4) of Section 44 is one of the modes for removal. The said provision being applicable to the present case is quoted below: “44. (4) Without prejudice to the provisions under this Act, if in opinion of the Commissioner having territorial jurisdiction over the Panchayat Samiti, 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 Pramukh or Up-Pramukh, as the case may be, a reasonable opportunity for explanation, by order, remove such Pramukh or Up-Pramukh, as the case may be, from office; The Pramukh or Up-Pramukh so removed shall not be eligible for reelection as Pramukh or Up-Pramukh of Panchayat Samiti during the remaining term of office of such Panchayat Samiti; Appeal shall lie before the Member, Board of Revenue against the order of the Commissioner. - 11 - 13. Section 46 deals with meetings of Panchayat Samiti. Sub-Section (1) to (3) being relevant for the present lis are reproduced herein:- 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. (3) The date of the first meeting of the Panchayat Samiti after its constitution shall be fixed by the Subdivisional 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-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.” - 12 - 14. On a reading of the aforesaid provisions, it is luminescent, that a first meeting has to be held by the Panchayat Samiti after its constitution and the said meeting has to be fixed by the Subdivisional Magistrate and he is also required to preside the said meeting at the date. Thereafter the ordinary meeting, which finds mention in Section 42(a), are to be convened by the Pramukh. The time period as provided under Section 46(1) clearly embodies that every meeting of Panchayat Samiti shall be held at least once in two months and needless to say at the headquarters. Section 47 deals with functions and power of the Panchayat Samiti. It is absolutely plain that the same can only be done through a meeting as convened by taking recourse to the statutory provision. A Panchayat Samiti cannot be allowed to function at its whim or fancy, and its pleasure and leisure. It has to work within the statutory framework. 15. As is evident from the factual exposition, the first meeting was called by the Pramukh on 31st July, 2006 and the next meeting was called on 30th April, 2007. Submission of Mr. Pandey, learned senior counsel appearing for the appellant is that she had made genuine and sanguine endeavours and left no stone unturned to call a meeting but there was no co-operation, whatsoever, from the Executive Officer. To bolster the said - 13 - stand, Mr. Pandey, has drawn inspiration from Section 60 and 61 of the Act. Section 60 of the Act provides for staff of the Panchayat Samiti. It reads as follows: - “60. Staff of Panchayat Samiti – (1) The Government shall appoint an officer not below the rank of a Deputy Collector to be the Executive Officer of the Panchayat Samiti. (2) The Government may post from time to time such number of officers and staff of the State Government to serve under the Panchayat Samiti as the Government may consider necessary. (3) Subject to such rules as may be made by the State Government in this behalf, a Panchayat Samiti may from time to time engage such number of paid or honorary functionaries or professionals as may be required by it for carrying out its functions.” 16. Section 61 deals with powers and functions of the Executive Officer and other officers. The said provision, on which immense emphasis is placed by Mr. Pandey, is worth quoting: - “61. Powers and Functions of the Executive Officer and other Officers- (1)Save as otherwise expressly provided by or under this Act the Executive Officer shall - (a) exercise all the powers specifically imposed or conferred upon him by or under this Act or under any other law or rules for the time being in force; (b) lay down the duties of, supervise and control the officers and staff holding office under the Panchayat Samiti in accordance with rules made by the Government; - 14 - (c) supervise and control the execution of all works of the Panchayat Samiti; (d) take necessary measures for the speedy execution of all works and developmental schemes of the Panchayat Samiti; (e) have custody of all papers and documents connected with the proceedings of the meeting of the Panchayat Samiti and its committees ; (f) draw and disburse money out of the Panchayat Samiti Fund ;and (g) exercise such other powers and discharge such other functions as may be prescribed. (2) The Executive Officer shall attend every meeting of the Panchayat Samiti and shall have the right to attend the meeting of Committees thereof and to take part in the discussion but shall not have the right to move any resolution or to vote. If in the opinion of the Executive Officer any proposal before the Panchayat Samiti is violative of or inconsistent with the provisions of this Act or any other law, rule or order made thereunder, it shall be his duty to bring the same to the notice of the Panchayat Samiti.” 17. It is urged by Mr. Pandey, when the Executive Officer has the power to have custody of all papers and documents connected with the proceedings of the meeting of the Panchayat Samiti, and unless he agrees or cooperates, a meeting cannot be held. 18. We have noted this aforesaid submission only for the purpose of rejecting it because on a scrutiny of the aforesaid provisions, we do not remotely perceive how the said - 15 - authority by his presence or absence can control the meetings. There was no need or necessity on the part of the Pramukh to seek any kind of consultation from the Executive Officer to convene the meeting. It was her exclusive authority and she has failed to exercise the same by not convening the meeting. In the constitutional framework the power of democracy was sought to be introduced at the grass root level to empower the people. Empowerment of people has been done by the command of the Constitution and by framing the Act in question by the State Legislature. Once the Act provides a particular thing to be done in a particular manner, the same has to be done in that manner or not at all. When the Executive Officer has no role in the statute the Pramukh cannot assume that a role has been conferred on him and take an excuse or a subterfuge and proffer an explanation that she was handicapped not to call a meeting. Such a handicap is non-adherence to the concept of good governance in a democratic body polity. When meetings are not held, minds do not meet, debates do not take place and decisions are not taken and eventually democracy fails and, therefore, conveyance is provided under Section 46(3) of the Act. In the case at hand, when the facts are tale-tell and the provisions are clear, we have no hesitation in holding that the appellant has failed to perform - 16 - her duty under the statute by not calling for meeting and thereby invited the wrath of Section 44(4) of the Act because of the breach of Section 46(3). She cannot be allowed to plead innocence or ignorance. The inevitable conclusion, according to us, as there has been violation of the mandatory provisions, the Commissioner was absolutely justified in directing removal of the Pramukh and the Board of Revenue was totally incorrect in dislodging the order of the Commissioner. The learned Single Judge by restoring the order of the Commissioner has passed an impeccable order with which we concur. 19. Ex-consequenti, we do not perceive any error in the order passed by the learned Single Judge and the appeal, being sans merit, stands dismissed without any order as to costs. Patna High Court The 22nd March, 2010 AFR/Pawan (Dipak Misra, CJ) (Mihir Kumar Jha, J)