IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11518 of 2008 1.Suryadeo Kumar, son of late Gyan Yadav, resident of Barar, P.S. Chanan, District. Lakhisarai. 2. Makeshwar Prasad, son of Kailash Prasad Yadav, residnent of Godih, P.S. and District Lakhisarai. 3.Bishundeo Yadav, son of Triloki Yadav, resident of Churaman Bigha, P.S. Chanan, District- Lakhisarai. 4. Rekha Devi, wife of Sanjay Kumar, resident of Sangrampur, P.S. Chanan, District Lakhisarai. 5. Dukhan Manjhi son of Mahavir Manjhi, resident of Beldaria, P.S. Chanan, District- Lakhisarai. 6. Girja Devi, wife of Satya Narayan Paswan, resident of Wasuachak, P.S. Chanan,District- Lakhisarai. 7 Amili Devi, wifeof Shiv Shankar Yadav, resident of Ramsir, P.S. Chanan, District Lakhisarai. 8.Arya Devi, wife of Indradev Yadav, resident of village Gohri, P.S. Chanan, District- Lakhisarai. Vs. 1. The State of Bihar through the Secretary, Department of Panchayati Raj, Vikash Bhawan, New Secretariat, Bailey Road, Patna. 2. The District Magistrate, Lakhisarai. 3. Divisional Commissioner, Munger Division, Munger. 4. The Sub-divisional Officer, Lakhisarai 5. The Executive Officer-cum- Block Development Officer, Chanan, District-Lakhisarai. With CWJC No.12005 of 2008 PINKI KUMARI, wife of Sri Prem Sadan Kumar, resident of Nagardar, P.S. Chanan, Block Chanan, District- Lakhisarai. Vs. 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The District Magistrate, Lakhisarai, District- Lakhisarai. 3. The Civil Sub-divisional Officer, Lakhisarai 4. The Block Development Officer-cum- Executive Officer, namely, Sri Prabhu Das, son of not known to petitioner, Chanan ( Bannu Bagicha) Block, District Lakhisarai. 5. Suryadeo Kumar, son of late not known to the petitioner, resident of Barari, P.S. Chanan, District, Lakhisarai. 6. Dinesh Pandit, son of not known to the petitioner, resident of Ghoshi Kundi, P.S. Chanan, District Lakhisarai. 7. Parmanand Mahto, son of not known to the petitioner, resident of Mahesh Lata, P.S. Chanan, District Lakhisarai. 8. Mukesh Prasad, son of not known to the petitioner, resident of Goddi, P.S. Chanan, District- Lakhisarai. 9. Anarwa Devi, wife of not known to the petitioner, resident of village Lakho Chak, P.S. Chanan, District- Lakhisarai. 10. Amli Devi, wife of not known to the petitioner, resident of village Ramseir, P.S. Chanan, District- Lakhisarai. 2 11. Aya Devi, wife of not known to the petitioner, resident of Gohri, P.S. Chanan, District- Lakhisarai. 12. Dukhan Manjhi, son of not known to the petitioner, resident of village Jankidih Beldaria, P.S. Chanan, District- Lakhisarai. 13. Usha Devi, wife of not known to the petitioner, resident of village Malia, P.S. Chanan, District- Lakhisarai. 14. Rekha Devi,wife of not known to the petitioner, resident of Sangrampur, P.S. Chanan, District- Lakhisarai. 15. Girija Devi, wife of not known to the petitioner, resident of village Sasua Chak, P.S. Chanan in the District of Lakhisarai. 16. Vishnudeo Yadav, son of not known to the dpetitioner, resident of Churawan Bigha, P.S. Chanan, District- Lakhisarai. 17. Urpramila Devi, wife of not known to the petitioner, resident of Kundar, P.S. Chanan, District- Lakhisarai. 18. The Divisional Commissioner, Munger. In C.W.J.C. No.11518 of 2008 For the petition: Mr. Gourang Chatterji,Advoate For the State: Ms. Archana Shalin,J.C. to G.P.14 For the private respondents: Mr. Dinu Kumar, Advocate Mr. Manoj Kumar,Advocate Mr. Rohit Mishra, Advocate Mr.Arvind Kumar Sharma, Advocate In C.W.J.C. No.12005 of 2008 For the petitioner: Mr. Dinu Kumar, Advocate Mr. Manoj Kumar, Advocate Mr. Rohit Mishra, Advocvate Mr. Arbind Kumar Sharma, Advocate For the State: Mr. R.C.P.Bharti, G.P.14 Mr. Ajay Kumar, J.C. to G.P.14 For Private respondents: Mr. Gourang Chatterji, Advocate. ---- 4. 27.11.2008 Heard learned counsels for the parties. Both the writ applications pertain to the same set of transactions in relation to No Confidence Motion against the Pramukh of Chanan Panchayat Samiti passed in special meeting dated 14.7.2008 and, accordingly, they have been heard together and are being disposed 3 of by this common order. The writ petitioners, who are elected members of the Panchayat Samiti, in C.W.J.C. No.11518/2008 seek quashing of the direction/communication of the District Magistrate, Lakhisarai to the Block Development Officer-cum- Executive Officer, Chanan Panchayat Samiti by letter No.1874 dated 20.7.2008 ( Annexure-7) staying the decision of the Chanan Panchayat Samiti dated 14.7.2008, by which No Confidence Motion against the Pramukh had been passed and further to hold that the decision of the said Panchayat Samiti dated 14.7.2008 is legal and for consequential reliefs. The petitioner in C.W.J.C. No. 12005/2008 is the Pramukh of the said Panchayat Samiti and seeks quashing of letter No. 802 dated 5.7.2008 ( Annexure-2) issued by the Block Development Officer-cum- Executive Officer, Chanan Panchayat Samiti, by which notices have been issued upon the petitioner and other directly elected members of the Panchayat Samiti for holding the special meeting to discuss No Confidence motion against the petitioner on 14.7.2008, and further for not giving effect to the decision taken on 14.7.2008 in the said special meeting pursuant to the said notice and also for quashing the part of the order dated 20.7.2008 ( Annexure-7) issued by the District Magistrate, Lakhisarai by which direction has been given to the Block Development Officer-cum- Executive Officer, Chanan Panchayat Samiti to see that the next date is fixed for special meeting on point of No Confidence Motion against the petitioner and for consequential reliefs. 4 The short facts relevant for the decision in the present matters are that a requisition is said to have been made on 20.6.2008 for convening a special meeting for considering No Confidence Motion against the Pramukh, Pinki Kumari. It is stated that the said requisition was circulated to all the members and sent to the Pramukh on the same day, which was refused to be received by the Pramukh as reported by the Peon which reports are annexed as Annexures 1 and 1/1 to the writ petition. Thereafter by letter dated 21.6.2008 (Annexure-2) of the Block Development Officer-cum- Executive Officer, the same was sent to the Pramukh by registered post in which it was mentioned that she had refused to accept the requisition sent to her along with the original file on 20.6.2008 as per the report of the peon and accordingly, the said requisition along with the photo copy of the original file was being sent for fixing a date for the special meeting for considering No Confidence Motion against her. The said letter sent through registered post is admitted to have been received by the Pramukh, Pinki Kumari on 27.6.2008. Thereafter on 4.7.2008, the Pramukh fixed the date for the meeting on 8.7.2008. Finding the said date as being contrary to the mandatory requirement of 7 days clear notice under the Act, the Executive Officer approached the Up- Pramukh on 5.7.2008 to fix the date of the meeting on 14.7.2008 and the information in this regard was sent by the Executive Officer to the District Panchayat Raj Officer, Lakhisarai and the S.D.O., Lakhisarai also. Pursuant to the said notice, the special meeting was held on 14.7.2008 in which 8 out of total 14 directly elected members of Panchayat Samiti participated and voted and 5 unanimously passed the No Confidence Motion against the Pramukh. In the meantime, the Pramukh had written to the District Magistrate on 11th July, 2008 that at the time of No Confidence Motion on 14.7.2008, the Executive Officer was acting politically and against the Pramukh. The Sub-divisional Officer gave his report to the District Magistrate by his letter dated 14.7.2008, in which apart from other matters he referred to the fact that on 14.7.2008 the special meeting was called for in the Block premises and he was told that the moment the meeting started, there was hue and cry and the Pramukh was saying that the signatures of her members should also be taken in the register and there should be a discussion on the No Confidence Motion, but according to the Pramukh, the Block Development Officer-cum- Executive Officer was not ready for the same and no discussion took place on the No confidence Motion. The page of the register was torn. He further states that the Pramukh, Pinki Kumari says that they were not allowed to put their signatures but later on the signature of the rival side was taken and without giving them any opportunity and holding discussion, the Proceedings Book was written as per the views of the other side. The Sub-divisional Officer states that he had, in the very beginning, told the Block Development Officer to adjourn the meeting and to act in accordance with the provisions of the Bihar Panchayat Raj Act, 2006, but he did not agree. The Sub-divisional Officer has also made comments against the conduct of the Block Development Officer- cum- Executive Officer and states that when the Pramukh was willing to call the meeting then contrary to rules, the notice has been given on the 6 basis of date fixed by the Up- Pramukh. He has also made other comments against the illegalities in the notice, which are not relevant. From the report of the Sub-divisional Officer one thing is certain that whatever he has stated is on the basis of what has been told by the Pramukh and the others and he has not given the said report as an eye witness to the occurrence for the reasons best known to him since he had been specially deputed by the Collector to be present in the meeting. On the basis of the aforesaid report, the District Magistrate, Lakhisarai, by his impugned letter dated 20.7.2008 addressed to the Block Development Officer-cum- Executive Officer, Chanan Panchayat Samiti, had issued the aforesaid directions purportedly in exercise of his powers under Section 157 of the Bihar Panchayat Raj Act, 2006 ( hereinafter referred to as the „Act‟) directing that no action should be taken pursuant to the resolution of No Confidence Motion dated 14.7.2008 and staying the execution of the proposals of the said date and further directing him to fix a fresh date for considering No Confidence Motion against the Pramukh after informing the higher authorities. The said letter of the Collector states that the Sub-divisional Officer, Lakhisarai was present in the meeting dated 14.7.2008 as per his directions which, however, appears to be an error of record in view of the tenor of the report dated 14.7.2008 of the Sub- divisional Officer himself. Learned counsel for the petitioners in C.W.J.C. No.11518 of 2008 submits that the District Magistrate had no jurisdiction to pass the order dated 20.7.2008 staying and over-riding the 7 decision taken in the meeting of the Panchayat Samiti on 14.7.2008, by which the motion of No Confidence has been passed against the Pramukh. It is submitted that Section 157 of the Act only empowers the District Magistrate to take action where he is of the opinion that any irregularity or mistake “is being committed” so far as the provisions related to conduct of any special meeting of the Panchayat Samiti to consider No Confidence Motion is concerned. In such a situation he may issue such directions as he considers necessary for complying with the provisions of the Act. However, it is argued that once the meeting has already been held and a decision taken by the Panchayat Samiti then it is beyond the jurisdiction of the District Magistrate to act under Section 157 of the Act and the only recourse available to the aggrieved party in such circumstances is to approach this Court in its writ jurisdiction. It is further submitted by learned counsel for the petitioner, in the first case, that as a matter of fact, it is the conduct of the Pramukh Pinki Kumari, which has been in gross violation of the provisions of the Bihar Panchayat Raj Act from the very beginning. It is submitted that under Section 44 (3) (i) of the Act, the Pramukh is obliged to accept any requisition that is sent to her for considering the No Confidence Motion against her and no power of rejection has been granted in this regard, rather the Act says that it is the duty of the Pramukh to see that the meeting is convened on a date which is within 15 days from the date of the requisition; this of course has to be done after taking into account the provisions of Section 46 (4) of the Act which provides clear 7 days notice for such a meeting to be held. It is, thus, contended that the 8 Pramukh must act within seven days of the receipt of the requisition so that a date for special meeting may be fixed by complying with both the statutory requirements. It is further submitted by learned counsel that immediately after the refusal of the Pramukh to receive the requisition which was sent through the Peon, the matter was reported by the Peon in writing in which he has stated that the Pramukh had read the file and thereafter refused to accept the same or to sign upon the Peon Book or register. Learned counsel points out that immediately on the next date mentioning the said facts in the enclosed letter dated 21.6.2008 (Annexure- 2), the Executive Officer had again sent the file as stated above to the Pramukh through registered post which the Pramukh admits to have received but at no stage prior to the filing of the present writ petition, she ever took the plea that the said requisition and the file had not been sent through the peon; only belatedly such a plea has been taken in the writ petition after due deliberation in the matter. In any case, it is submitted that the Pramukh admits to have received the letter on 27.6.2008 and even if for the sake of arguments, if the service is to be treated as on 27.6.2008, then she ought to have fixed the date for the special meeting latest by 4th July, 2008 after complying with the statutory requirements because thereafter her power to fix the date is taken away by the statutory provision itself and the same is vested in the Up- Pramukh and 1/3rd of the directly elected members. The Pramukh had failed to fix the special meeting for considering No Confidence Motion till 4.7.2008 since the date which she had fixed on that day as 9 8.7.2008 was contrary to the requirement of 7 clear days‟ notice and the same was, according to the petitioner, deliberately in order to create legal recourse for her at later stage. It is submitted that thereafter the Executive Officer had rightly on the next day, i.e., 5.7.2008 called upon the Up- Pramukh for fixing the date for the special meeting for considering No Confidence Motion, since the power of the Pramukh to fix the date had come to an end by the operation of the statutory provisions by that date. It is urged that the conduct of the Pramukh makes it clear that anyhow she wanted to prevent the No Confidence Motion to be taken up against her. It is, thus, submitted by learned counsel for the petitioner that in the facts and circumstances of the case there was no occasion for the Sub-divisional Officer to have given a report which shows his ignorance of the legal provisions and intention to somehow support the stand of the Pramukh. It is submitted that the District Magistrate has committed a grievous error in acting upon the report of the Sub-divisional Officer treating the same as if the Sub-divisional Officer was present at the special meeting, whereas the entire report is based upon whatever was told to the Sub-divisional Officer by other persons including the Pramukh, as is evident from the report dated 14.7.2008 itself. The plea of learned counsel for the Pramukh, respondent No.6, in the first case is that the District Magistrate has rightly acted in the present matter since the Executive Officer was behaving in a partisan manner. It is submitted that the Act provides 15 days time to the 10 Pramukh to fix the date of the meeting and therefore even if due to inadvertence or ignorance the Pramukh had fixed the date without giving clear seven days notice, the Executive Officer ought to have again approached the Pramukh for fixing the next date which is the requirement under the statutory provisions. It is submitted that only on account of partiality, the Executive Officer did not again approach the Pramukh, rather he approached the Up- Pramukh for fixing a date for considering no confidence motion. Learned counsel for the petitioner also seeks to rely upon the report of the Sub-divisional Officer to show the biased conduct of the Executive Officer. According to learned counsel for the respondent- Pramukh, the Collector has rightly acted under Section 157 of the Act, as it is the duty of the Collector to see that the special meeting for discussing No Confidence Motion is held in accordance with the provisions of the Act. When he had deputed the Sub-divisional Officer to the said meeting, it was his bounden duty to take effective action to see that illegalities are not permitted to continue. It is submitted that the said order of the District Magistrate cannot be faulted so far as his staying the decision taken on 14.7.2008 in the special meeting is concerned. Learned counsel for the Pramukh has also sought to assail the decision taken in the said meeting on the ground that the notice dated 5.7.2008 convening the special meeting on 14.7.2008 does not disclose any reasons/ charges on which the said No Confidence Motion has been moved, which according to him, is a violation of the 11 mandatory provisions of Section 44 (3)(v) of the Act. It is submitted that a mere annexing of the requisition cannot be said to be proper compliance of the requirement of the said Section. Learned counsel for the Pramukh further states that the very notice has been issued contrary to the requirement of the Act as the Up- Pramukh had no jurisdiction on the said date to fix a date for special meeting for considering no confidence motion against her. Learned counsel also states that the Pramukh in her writ petition in paragraph No. 16 denied that the notice has been sent through the Peon Book. It is further submitted that the notice is also contrary to law for the reason that it has been sent only to the elected members of the Panchayat Samiti, whereas the requirement of Section 44 (3) (i) of the Act is that it should be sent to all the members of the Panchayat Samiti. In support of the aforesaid proposition, learned counsel refers to the specific words used in the said Section, which requires the Executive Officer to give notice to the “members”. It is thus submitted that such notice could not have been confined only to the elected members. In this regard, learned counsel also refers Section 44 (3) (vii) of the Act which provides that during the discussion an opportunity shall be given to the Pramukh and Up-Pramukh against whom no confidence motion has been moved for his defence before the Panchayat Samiti. He further refers to Section 36 of the Act relating to composition of the Panchayat Samiti which states that the Panchayat Samiti shall consist of directly elected members from the Panchayat Samiti‟s territorial constituencies; 12 the Members of the Lok Sabha and the Members of the Legislative Assembly of the State representing constituencies which fall either wholly or partly in the Panchayat Samiti area; Members of Rajya Sabha and Members of the State Legislative Council who are registered as electors within the Panchayat Samiti area and all the Mukhiyas of the Gram Panchayats falling within the Panchayat Samiti area. It is stated that apart from the requirement to issue notice to the members the fact that opportunity is to be given for his defence before the Panchayat Samiti makes it clear that all the members of the Panchayat Samiti are entitled to be present and to participate in the special meeting considering the No Confidence Motion and the only prohibition is with regard to their right to vote. Learned counsel for the Up- Pramukh and other elected members, who had successfully moved No Confidence Motion on 14.7.2008, on the other hand, submits that it is evident from the scheme of the Act that, although the term “member” has been used where it is mentioned that the notice is to be given but the same has to be read in the context of immediately preceding use of the word “ directly elected members” in the same sentence of the said provision and repeatedly in other parts of said sub Section ( 3 ) of Section 44 and , therefore, the word „member‟ has to be read ejusdem generis and in the context in which it has been used. It is submitted that only the directly elected members of the Panchayat Samiti have the right to elect and remove Pramukh and Up- Pramukh and thus no purpose can be served by participation of ex officio members of the Panchyat Samiti, who had no 13 right either to elect or to remove the Pramukh and Up- Pramukh who themselves are required to be directly elected members. In support of the aforesaid proposition, learned counsel relies upon a decision in the case of Rajendra Mehta vs. The State of Bihar and others : 2005 (3) PLJR 439 in paragraph Nos. 4 and 6 of which it has been laid down as follows: “4. Section 38 of the Act authorizes only the elected members of the Panchayat Samiti to elect Pramukh and Up- Pramukh thereof. None of the non-elected members has any right of any nature in the matter of election of Pramukh and Up-Pramukh. In such view of the matter, their presence is not required at all. 6. In any event, neither Section 44 nor any other section authorizes any non-member to elect a Pramukh or Up-pramukh. It is only the elected members who can do so.” Learned counsel also relies upon a decision of the Supreme Court in the case of Ramesh Mehta .Vs. Sanwal Chand Singhvi and others: AIR 2004 S.C. 2258; paragraph Nos. 12 and 42 to 44 of the said decision are quoted below. “12. In the case of Knowles v. Zoological Society of London reported in [(1959) 1 WLR 823 ] it has been held by Court of Appeals that the expression “ majority of fellows entitled to vote” in the bye-laws of a society would mean the majority of those present at a meeting and entitled to vote and not the majority of the whole electorate whether present or not. Before us, as stated above, it was urged that the respondent is claiming casus omissus in support of his argument that the words “whole number of members” must be construed as “whole number of elected members”. We do not find any merit in this argument. In the case of State of Karnataka v. Union of India and another reported in { AIR 1978 SC 68 at page 107), it has been observed by this Court that although a Court cannot supply casus omissus, it is equally clear that it should not interpret a statute so as to create a casus omissus when there is really none. 42. The decisions of the Courts as regard right of participation of the member who was an elected or who had a right equal to that of an elected member had been taken notice of by Brother 14 Kapadia, J. The said decisions are pointers to the fact that only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality. 43. By reason of the amendment in the Constitution and consequent amendment by the Sate Legislature in the Rajsthan Municipalities Act, however, no indication has been given that by reason thereof a special right is sought to be created in the nominated members although they would not participate in such a proceedings and would not have any voting right either at the election of the Chairman or in the proceedings for his