IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18104 of 2009 1. SMT.SHAMSHAD KHATUN W/O SHRI TAUFIK AHMAD R/O VILL JETHAULI, P.O.KACHI DARGAH, P.S.FATUHA, DISTT-PATNA VERSUS 1. THE STATE OF BIHAR 2. BLOCK DEVELOPMENT OFFICER -CUM-EXECUTIVE OFFICER PANCHAYAT SAMITI, FATUHA BLOCK, PS.FATUHA, DISTT-PATNA 3. UP PRAMUKH, PANCHAYAT SAMITI FATUHA NOTICE, THROUGH EXECUTIVE OFFICER, PANCHAYAT SAMITI, FATUHA BLOCK, P.S. FATUHA, DISTT-PATNA ----------- For the Petitioner : Mr. Shyama Prasad Mukherji, Sr. Adv. Mr. Shambhu Prasad Singh. For the State : Mr. Manoj Kumar Singh, A.C. to G.P.I. For the Respondent No.3 : Mr. Mrigank Mauli Mr. Vinay Mistry. -------------- 02 07.01.2010 The petitioner was elected as Pramukh of Fatuha Block under the provisions of the Bihar Panchayat Raj Act, 2006. The writ petition was filed on 21.12.2009, challenging the validity of the resolution of the Panchayat Samiti, by which it expressed no confidence against her. Today a supplementary affidavit has been filed by which the subsequent action of the State Election Commission in notifying date for fresh election of Pramukh has been challenged. Various persons have sought to intervene to oppose the writ petition but it is not necessary to consider their intervention for the reasons that will be apparent hereinafter. The only ground taken for challenging the proceedings and the vote of no confidence as passed by the Panchayat Samiti against petitioner is that meeting was convened by notice dated 05.12.2009 by the Circle Officer- - 2 - cum-Block Development Officer-cum-Executive Officer of the Panchayat Samiti and the meeting was fixed on 12.12.2009. It is submitted that this is clearly in conflict with the mandatory provisions of Section-46(4) of the Bihar Panchayat Raj Act, 2006, which provides that there must be a clear 7 days notice for convening a special meeting for consideration of no confidence motion. It is further submitted that as the notice was issued on the 05.12.2009 that day has to be included and as the meeting was fixed for 12.12.2009 that day has to be excluded remaining is only 6 days and not 7 days, as mandatory. It is, thus, submitted that the notice convening meeting being invalid on that ground. The decision taken in the said meeting would be equally invalid and thus the no confidence motion that was virtually unanimously passed would be of no effect. It is also submitted that if that be the position then the State Election Commission is not competent to declare a vacancy and notify fresh election. For the proposition that such a meeting would be illegal reliance has been placed in the case of Jail Lal Yadav & Anr. Vs. The State of Bihar & Ors. since reported in 2004(2) PLJR 468. In my view, there cannot be a quarrel with the said proposition that where there is mandatory requirement of 7 clear days notice. The meeting so held with less than 7 clear days notice would be bad but I am still not inclined to - 3 - interfere in the matter. In paragraph-6 of the writ petition, petitioner has stated thus:- “That the petitioner has fixed the date for convening the meeting for consideration of no confidence against her in the Register of the Panchayat Samiti for issuing the notice by the Executive Officer for 12.12.2009.” From this, it would be seen that petitioner, who was the Pramukh herself fixed the date of meeting as 12.12.2009, having herself fixed the meeting, she is now precluded to challenge her own action as being invalid to take advantage thereof. She cannot be permitted to say that she fixed the meeting wrongly and decision taken against her is such meeting would not bind her, she is estopped. There is yet another reason for not interfering, as noticed above, the formal notice was issued on 05.12.2009, convening a meeting on 12.12.2009, which the date was fixed by the petitioner herself on her own showing. She was aware of both the notice and the date fixed, but she did not challenge the same, in stead she took a chance and participated in the meeting. In the meeting there were 16 elected members, 3 votes were found unmarked, one was found invalid, the remaining 12 members voted against the petitioner and in - 4 - favour of no confidence. Thus, the no confidence motion was unanimously carried out with petitioner participating. Now, once the no confidence motion was carried through and petitioner participated therein and unanimously it would be open to her to won around and challenge the same. It would first to be hit the principles of probate and reprobate, which would not permit and secondly in similar circumstances has been held by this Court in the case of Sanjay Singh Som Vs. The State of Bihar & Ors. since reported in 2002(3) PLJR 589 by Justice Aftam Alam (as his Lordships then was). One may remind oneself that Gram Panchayat is a form of local self Government. It is constituted in a democratic process of adult franchise and has to function in a democratic manner by decisions taken in a meeting of elected members. If on legal technicality the will of the house is throttled it would be throttling democracy. A persons, who has contested and lost the confidence of the house, cannot put back and thrust upon a house, who has no confidence on him, merely because of legal lacuna. For the reasons aforesaid, the writ petition merits no consideration and is dismissed as such. Trivedi/ (Navaniti Prasad Singh, J.)