IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12611 of 2008 MEENA YADAV , wife of Raju Yadav, resident of village- Bardaha, P.O. Majhauli, P.S. Sirdala, Dist. Nawada, presently Vice Chairman of District Board, Nawada, Dist. Nawada. 2. Nitu Kumari wife of Shri Shekhar Kumar, resident of village Narhat, P.O. Narhat, P.S. Narhat, Dist. Nawada, presently Chairman of District Board, Nawada, Dist. Nawada ….Petitioners. Versus 1.THE STATE OF BIHAR 2.The Principal Secretary, Panchayat Raj Depaprtment, Govt. of Bihar, Patna. 3. The Director, Panchayat Raj, Bihar, Patna. 4. The District Magistrate- Nawada 5.The Deputy Development Commissioner, Nawadah-cum- Chief Executive Officer, Nawada, district Board, Nawada 6. Ramesh Prasad Singh, son of not known to the petitioners, resident of village- Nardi Dih, P.S. Nardiganj, Distt. Nawada. 7. Krishnadeo Singh, son of now known to the petitioners, resident of village- Haria, P.S. Nardiganj, District- Nawada. 8. Naresh Yadav, son of not known to the petitioners, resident of village- Bala Bigha, P.S. Hisua, District- Nawada. 9. Shanti Devi, wife of not known to the petitioners, resident of village- Babhanaur, P.S. Narhat, District- Nawada. 10. Champa Devi, wife of not known to the petitioners, resident of village- Mahegain, P.S. Miskour, district- Nawada. 11. Basanti Devi, wife of not known to the petitioners Resident of v illage- Takiyapur, P.S. Sirdala, Distt. Nawada. 12. Sunita Devi, wife of now known to the petitioners, Resident of village- Bara Basaitha, P.S. Rajauli, Distt. Nawada. 13. Savitri Devi, wife of not known to the petitioners, Resident of village- Marhena, P.S. Rajauli, Distt.- Nawada. 14. Shanti Devi, wife of not known to the petitioners, Resident of village- Tetaria, P.S. Akabarpur, Distt. Nawada. 15. Arjun Ram, son of not known to the petitioners, Resident of village- Dariyapur, P.S. Akbarpur, District- Nawada. - 2 - 16. Abaha Singh, wife of not known to the petitioners, Resident of village- Narhat, P.O. Narhat, P.S. Narhat,Distt. Nawada. 17. Rekha Devi wife of not known to the petitioners, resident of village- Salur, P.S. Akbarpur, Distt. Nawada. 18. Israt Bano, wife of not known to the petitioners, Resident of village- Sheikhpura, P.S. Narhat, Distt.- Nawada. 19. Kanti Devi, wife of not known to the petitioners, Resident of village- Miskaur, District- Nawada. 20. Geeta Devi, wife of not known to the petitioners, Resident of village- Kochgaon, P.S. Warsaliganj, Distt. Nawada. 21. Satish Kumar @ Mantan Singh , son of not known to the petitioners, Resident of village- Maharath, P.S. Kashi Chak, Distt. Nawada. 22. Hema Yadav , wife of not known to the petitioners, Resident of village- Manania Tonda, P.S. Kauakole, Distt. Nawada. 23. Nivedita Singh, wife of not known to the petitioners, Resident of village- - Rukhi, P.S. Kauakole, Distt. Nawada. 24. ArjunRam, son of not known to the petitioners, Resident of village- Basa, P.S. Roh, District- Nawada. 25. Jyoti Paswan, wife of not known to the petitioners, Resident of village- Dharhara, P.S. Pakari Barwa, Distt. Nawada. 26. Shiva Kumar Chaudhary, son of not known to the petitioners, Resident of village- Nawada, P.S. Pakari Barwa, Distt. Nawada. 27. Ravi Chauhan, son of not known to the petitioners, resident of village- Nawada, P.S. Pakari Barwa, Distt. Nawada. 28. Arvind Kumar, son of not known to the petitioners, Resident of village- Nawada, P.S. Pakri Barwa, Distt. Nawada………………. Respondents. WITH CWJC No.12617 of 2008 KISHWAR NASIM @ KISHWAR wife of Shri Parvez Alam Resident of village- Kakoura, P.O. Bagh Nagar, P.S. Mahalgaon, Dist. Araria, Presently Pramukh of Block Panchayat Samiti Jokihat Dist. Araria…..Petitioner. Versus 1.THE STATE OF BIHAR 2.The Director panchayat Raj, Bihar Patna 3.The District Magistrate, Araria 4.The District Panchayat Raj Officer, Araria 5.The Subdivisional Officer Araria 6.B lock Development Officer, Jokihatt-cum-Executive - 3 - Officer, Jokihatt, Block Panchayat Samiti Dist. Araria …….Respondent Ist Set. 7. Smt. Gauri Devi wife of Sri Tarkeshwar Rai , resident of villageUkhwan, P.O. Mohalgaon, P.S. Mahalgaon, Dist.Araria, presently the Up-Pramukh of Block panchayatSamiti Jokihatt,Araria 8. Md. Hasim, son of not known to the petitioner, resident of village Aratiya (Simariya)P.O. Jokkihat P.S. Jokihatt, Dist. Araria 9. Md. Yunus son of not known to the petitioner, Resident of village Daulatpur, P.O. Duba, P.S. Jokihatt, Dist. Araria. 10. Md. Tajuddin, son of not known to the petitioner Resident of village Dhapi, P.O. Kakan, P.S. Jokihatt,Dist. Araria 11. Md . Nasim son of not known to the petitioner, resident of village Tartan, P.O. Dubai, P.S. Jokhatt, Dist. Araria 12. Lakhanlal Mandal son of not known to the petitioner, resident of village P. O Purandaha,P.O. Bara Istambarar, P.S. Jokihatt, Dist. Araria 13. Sahamstabrez Alam son of not known to the petitioner resident of village Darsana, P.O,. Darsan, P.S. Jokihatt, Dist. Araria 14.Murlidhar Jha, son of not known to the petitioner, resident of villageRahikpur, P.O. Matiyari, P.S. Jokihatt, Dist. Araria. 15.Firdaus Alam, son not known to the petitioner resident of village Matiyari, P.O. matiyari, P.S. Jokihatt, Dist. Araria 16.Md. Mahfooz Alam son not known to the petitioner resident Of village Kakan, Uran Toli, P.O. Kakan, P.s. Jokihatt, Dist. Araria. 17. Shakil son not known to the petitioner resident of village Turkaili, P.O. Gerki, P.s. Jokihatt, Dist. Araria 18. Tarique Anwar son not known to the petitioner resident of Village Majgawa, P.O. Bhuna, P.S. Mahalgaon, Dist. Araria 19. Rajkishore Malakar son of not known to the petitioner resident of village Dumaria P.O. Pt. Dumaria, P.S. Mahalgaon dist. Araria 20. Mayanand paswan, son of not known to the petitioner resident - 4 - Of village Dharmesh Wargachh (Thubri) P.O. Keshara, P.S. Jokhatt, Dist. Araria. 21. Ziyur Rahman son not kwn to the petitioner, resident of village Kakali, P.O. Chainpur, P.S. Mahalgaon, Dist. Araria 22. Nargis wife not known to the petitioner resident of Village Sisauna Joki, P.O. Jokihatt, P.s. Jokihatt, Dist. Araria 23.Tetri Devi wife of Dilip Biswas, Resident of village Rani Tol,Amgachhi, P.O. Chokta, P.S. Jokihatt, Dist. Araria 24. Sanjida wife of Kalimuddin, resident of village Farsadangi, P.O. Jerki, P.s. Jokihatt, Dist. Araria 25. Poonam Devi wife of Awadhesh Kumar, Resident of village- Mahalgaon, P.s. Mahalgaon, Distt. Araria. 26. Homa Parvin, wife of Jabbar, Resident of village- Rani Jokihat Tola, P.O. Jokohat,P.S. Jokihat, Distt. Araria. 27. Asha Devi, wife of Naresh Mandal, Resident of village Dabaha, P.O. Pahar Bari, P.S. Jokihatt, Distt. Araria 28.Firoza, wife of Salauddin, Resident of village Satbita, P.S. Gerki, P.S. Jokihat,Distt. Araria 29.Mursida Begum, wife of Rahimuddin resident of village-Chakai, P.O. Chakai, P.S. Jokihatt,Distt. Araria. 30. Sogra, wife of not known to the petitioner, resident of village- Chainpur, P.O. Chainpur, P.S. Mahalgaon, Distt. Araria. 31.Nilofar Naz wife of Rahbar Alam, resident of village Bhuna, P.O. Bhuna P.S. Mahalgaon, Dist. Araria. 32. Saquib Niyaz son of Niyazuddin, resident of village Chillhania, P.O. Bagh Nagar, P.S. Mahalgaon, Dist. Araria. 33.Farhana Khatoon wife of Awesh Alam, resident of village Kakoura, P.O. Bagh Nagar, P.S. Mahalgaon, Dist. Araria. 34. Ainulyakin, son of not known to the petitioner, resident of village Baghdahra, P.O. Bagdahra, P.s. Jokihatt, Dist. Araria. 35. Basiruddin son of not known to the petitioner, resident of village Dhobaniya P.O. Jokihatt, P.S. Jokihatt, Dist. Araria 36.Ajaynandan Thakur, son of not known to the petitioner, resident of village Jahanpur, P.O. Keshara, P.S. Jokihatt, Dist. Araria. 37.Talatzabi wife of Shamshad Alam, resident of village Bhansia, P.O. P.T. Domariya P.S. Mahalgaon, Dist. Araria. 38. Gulnaz Begum wife of Sajid resident of village Joginder P.O. P.T. Domariya, P.S. Mahalgaon Dist. Araria - 5 - 39. Ayub, son of not known, resident of village Uda P.O. Chirah, P.S. Mahalgaon Dist. Araria 40.Kirti Devi wife of Amar Sah, resident of village Gerki P.O. Gerkihatt, P.S. Jokihatt, Dist. Araria. 41. Razia Khatoon wife of Ayub, resident of village Naua Nankar, P.o. Bara Islampur, P.s. Jokihatt, Dist. Araria …………………………..Respondents 2nd set. ------------ For the Petitioners (in C.W.J.C.No.12617/08): Mr S.B.K. Manglam & Smt. Anamika Dube,Advocates For the Respondent–State: Mr. Binay Kr. Pandey, AC to SC –VII (C.W.J.C. No.12611/08) For the Petitioner : Mr S.B.K.Manglam & Smt. Anamika Dube, Advocates For the respondent State: Mr. Anil Kr. Jha G.A.-II For respondents Nos.12, 17,22,24,25, 26 and 28 : Mr. Ashutosh Ranjan Pandey For respondents no.8,9,11&21: Mr. Arun Kumar Arun P R E S E N T THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA ---------. Shiva Kirti Singh,J Both the writ petitions were referred to Division Bench for resolving contradictory views taken by learned single Judges of this Court in different judgments on the issue whether Section 44 of the Bihar Panchayat Raj Act,2006 ( hereinafter referred to as the Act) which is somewhat similar to the same section of the Bihar Panchayat Raj Act,1993. is mandatory or not so as to render the notice for a meeting to consider a motion of “No- Confidence” void if it does not mention the charges/ allegations for the proposed motion. 2. The essential facts are not in dispute and it is not necessary to refer to the facts in detail for deciding the issue canvassed before us in course of - 6 - hearing. It will suffice, to note that the writ petitioners have challenged the notice fixing the date of meeting for considering “ No Confidence” motion against them on the ground that the concerned notice did not contain any reasons/ charges which are required to be mentioned in the notice under Sub-section (3)(b) of Section 44 of the Act. In C.W.J.C, 12611 of 2008 the petitioners were elected Chairman and Vice- Chairman respectively of Nawadah Zila Parishad and in the other writ petition the sole petitioner is the elected Pramukh of Block Panchayat Samiti, Jokihat, District Araria. In both the cases the notices were issued on the requisition of required number of members, not by the elected office bearers but by the concerned Government Officials i.e. the Deputy Development Commissioner, Nawadah-cum- Chief Executive Officer, Nawadah and the Block Development Officer, Jokihat- cum - Executive Officer, Jokihat Block Panchayat Sámiti, respectively. It is also not in dispute that the requisition submitted by the required number of elected members contained the allegations/charges for which a meeting to consider no confidence motion was sought. But the notice issued by the concerned officials did not communicate those allegations/charges. 3. Since the petitioners were served with requisitions to convene the meeting to consider “ No Confidence” motion, they have not alleged any - 7 - prejudice to them on account of alleged defect in the notice. The petitioners of C.W.J.C. No. 12611 of 2008 did not participate in the meeting held for considering the “No Confidence” motion but the motions were admittedly carried out with the support of required majority of members. 4. For the sake of easy reference the relevant statutory provisions are extracted hereunder : “ Sub-section (3) of Section 44 of the Bihar Panchayat Raj Act, 1993 ;- (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 the 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, alter the day of the meeting of 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. 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.” Subsection (3) of section 44 of the Act:- 2006 (3)(i) A Pramukh/ Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the Panchayat Samiti at a meeting specially convened for the purpose. 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. The Executive officer shall - 8 - immediately bring the requisition to the notice of the Pramukh. The Pramukh shall convene such meeting on a date falling within 15 days of such requisition. 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 meeting. The Executive Officer shall necessarily issue such notice in time and convene the meeting. No such meeting shall be postponed once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion. (ii) No confidence motion shall not be moved against the Pramukh or the Up-Pramukh within the first two year period of their tenure. (iii) If the motion of no confidence brought against the Pramukh or the Up-Pramukh or both is once rejected, no fresh motion of no confidence against the Pramukh or the Up-Pramukh or both, as the case may be, shall be brought before the Panchayat Samiti within a period of one year from the date of such rejection of the motion. (iv) No confidence motion against the Pramukh or Up-Pramukh or both, as the case may be , shall not be brought during the last six months of the term of the Panchayat Samiti as mentioned in section 39 (1) of this Act. (v) Such reasons/charges , on the basis of which no confidence motion has to be moved against the pramukh or Up-Pramukh, shall be clearly mentioned in the notice of the meeting called to consider the no confidence motion. (vi) As soon as the meeting called under this section begins, the Presiding member of this meeting shall read out the motion on which the meeting has been called to consider before the members present and declare it open for discussion. Any discussion on the motion shall not be adjourned. (vii) During discussion, opportunity shall be given to the Pramukh/Up-Pramukh against whom no confidence motion has been moved for his defence before the Panchayat Samiti. The motion shall be put to vote on the same day after discussion and shall take place by secret ballot in the prescribed manner. (viii) In case of no confidence motion against a pramukh, the meeting shall be presided by the Up-Pramukh; in case of motion against Up- Pramukh by the Pramukh and in case of motion against both Pramukh and Up-Pramukh, by any member elected from among the members of the Panchat - 9 - Samiti present in the meeting. In case of the post of Up-Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Pramukh or the post of Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Up-Pramukh, as the case may be , shall be presided over by any member elected from amongst the directly elected members from the territorial constituency of the Panchayat Samiti present in the meeting.” “Sub-section (4) of Section 70 of the Act,2006; (i) Adhayaksha and Up- Adhayaksha shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of directly elected members from territorial constituencies of the Zila Parishad at a meeting specially convened for the purpose . The requisition for such a special meeting shall be signed by not less than one fifth of the total number of directly elected members of the Zila Prishad and shall be delivered to the Adhyaksha with a copy to the District Magistrate. The Adhyaksha shall within seven days from the date of receipt of such requisition convene a special meeting of the Zila Prishad. The meeting shall be held on a day not later than fifteen days from the date of issue of the notice of the meeting. The meeting shall be presided over by the Adhyaksha if the motion is against the Up-adhayaksha; if it is against the Adhyaksha the Up-adhyaksha shall preside over the meeting and if it is against Adhyaksha and Upadhyaksha both then the District Magistrate shall preside over the meeting. In case of the post of Up-adhyaksha being vacant or his absence from the meeting convened for discussion on no confidence motion against the Adhyaksha or the post of Adhyaksha being vacant or his absence from the meeting convened for discussion on no confidence motion against the Up- adhyaksha, as the case may be, the meeting shall be presided over by any member elected from amongst the directly elected members from the territorial constituencies of the Zila present in the meeting. In case of failure to convene the meeting by the Adhyaksha, the District Magistrate shall convene the meeting in the same manner and the meeting shall be presided by him. No such meeting shall be postponed once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion. (ii) During the first two year period of - 10 - the tenure, no confidence motion shall not be moved against the Adhyaksha or the Upadhyaksha. (iii) No- confidence motion against the Adhyaksha or Upadhyaksha or both, shall not be brought within six months of the expiry of the term of the Zila Parishad. (iv) Such reasons/charges, on the basis of which no confidence motion is to be moved against the Adhyaksha or Upadhyaksha, shall be clearly mentioned in the notice of the meeting called to consider the no confidence motion. (v) As soon as the meeting called under this section commences, the presiding member at the meeting shall read out the motion on which the meeting has been called to consider, before the present members and declare it open for discussion. Any discussion on the motion under this section shall not be adjourned. (vi) During discussion, opportunity shall be given to the Adhyaksha or Upadhyaksha or both against whom no confidence motion is moved, for his defence before the Zila Parishad. The motion shall be put to vote on the same day after discussion which shall take place by secret ballot in the prescribed manner by the District Magistrate. (vii) If the motion of no confidence against the Adhyaksha or the Upadhyaksha or both is once rejected, no fresh motion of no confidence against the Adhyaksha or the Upadhyaksha or both, as the case may be shall be brought before the Zila Parishad within a period of one year from the date of rejection of such motion.” 5. On behalf of petitioners in both the cases strong reliance has been placed upon the relevant provisions in Sub-section (3) of Section 44 of the Act relating to Panchayat Samittee and Sub-section (4) of Section 70 relating to Zila Parishads and upon a judgment by a single Judge of this Court in the case of Chandeshwar Prasad Vrs. The State of Bihar, reported in 2001(4) 616 and a Division Bench Judgment of this Court in the case of Sindhu Devi Vrs. State of Bihar, reported in 2002 (1) PLJR 281 in support of their stand - 11 - that lack of mention of charges/ allegations in the notice will render the notice invalid and void. 6. On behalf of petitioners it was further submitted that subsequent judgments by learned single Judges in the case of Bindu Devi Vrs. State of Bihar, reported in 2005(4) PLJR 112 and in the case of Nirmala Singh Vrs. State of Bihar, reported in 2006 (1) PLJR 129 held somewhat similar but milder provisions in the Bihar Panchayat Raj Act, 1993 to be directory and do not lay down the correct law as they are per- incuriam of the earlier judgments of this Court in the case of Chandeshwar Prasad (supra) and Sindhu Devi (supra). 7. In the case of Chandeshwar Prasad the learned single Judge, in the context of 1993 Act noticed that while sending a notice for special meeting, the motion or proposition mentioned in the written request of the members is also required to be mentioned in the notice. Thereafter it was indicated in paragraph-10 that if there is any substantial breach of the provisions in Section 44(3) of that Act, then the decision taken in the special meeting will be vitiated. It was thereafter noticed that in fact the concerned respondents of that case had not annexed copy of the request mentioning the proposition for calling the special meeting nor could they show that any such request was made to the Pramukh or Up-Pramukh. Even - 12 - the notice/request addressed to the Executive Officer was also not annexed. The relevant documents were not annexed in spite of averment on behalf of petitioners of that case that the required notice for holding a special meeting was never served on the Pramukh or Up- pramukh. Even the motion or proposition mentioned in the written request of the members which was required to be stated in the notice had not been so stated. As a cumulative effect of such facts the court held that there was no compliance of the requirements of calling of special meeting as provided under section- 44 (3) and (4) of the Act of 1993. Clearly, in that case no law was laid down that non-mentioning of the allegations/charges furnished by the requisitionists in the notice issued by the concerned officers will, ipso facto, invalidate the special meeting and also the motion of no confidence carried out by majority of members. 8. In the case of Sindhu Devi (supra) the Division Bench, again in the context of 1993 Act, noticed the facts, particularly in paragraph-7 that on record there was not a whisper of what was the wrong done by the Pramukh and hence he had no opportunity to reply before being voted out of his office. In paragraph-9 it was observed that the law enjoins that the notice to convene a meeting for considering a motion of no confidence needs to indicate the object for which the meeting is proposed. It was further held in paragraph- - 13 - 11 that the “ law enjoins a fair opportunity to the person who faces a charge on an allegation for misconduct or misdemeanor to avail of the opportunity and give his defence before the Panchayat Samiti”. Thereafter in paragraph- 12 it was held that a bare notice without specifying allegations and calling a motion of no confidence is void at the threshold, a brute majority of members in absence of indicated misconduct cannot decide the fate of a Pramukh or an Up-Pramukh . This is not Democracy. In this case, the Court, on facts found no material to show that the Pramukh before holding of the meeting to consider the “ No Confidence” motion against him had any knowledge of the allegations/charges for which motion of no confidence was to be considered. 9. Now coming to the later views taken by learned single Judges of this Court in the case of Bindu Devi (supra) and again in the case of Nirmala Singh,(supra), which also appear to be under the 1993 Act, it is necessary to mention at the out-set that the earlier judgments discussed above were not cited, noticed or discussed. The Court, in the case of Bindu Devi (supra) held that the notice did not contain the reasons for the no confidence motion but it further held that “the object of giving reasons is to enable the members to know why the motion is being proposed and petitioners