IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.39 of 2010 SMT. SHAMSHAD KHATUN, W/O SHRI TAUFIK AHMAD, R/O VILL.- JETHULI, P.O.- KACHI DARGAH, P.S.- FATUHA, DISTT.- PATNA …………………………..… PETITIONER - APPELLANT Versus 1. THE STATE OF BIHAR, 2. BLOCK DEVELOPMENT OFFICER - CUM - EXECUTIVE OFFICER, PANCHAYAT SAMITI, FATUHA BLOCK, P.S.- FATUHA, DISTT.- PATNA, 3. UP PRAMUKH, PANCHAYAT SAMITI, FATUHA NOTICE- THROUGH EXECUTIVE OFFICER, PANCHAYAT SAMITI, FATUHA BLOCK, P.S.- FATUHA, DISTT.- PATNA ……… ……………………………RESPONDENTS- RESPONDENTS. ----------- For the Appellant:- Mr. Shambhu Prasad Singh and Mr. Jai Shankar Prasad, Advocates. For the State;- Mr. K. Ravish, A.C. to G.P. I. For the Respondent No.3:Mr. Mrigank Mauli, Mr. Vinay Mistry and Mr. Kundan Mishra, Advocates. ----------- PRESENT:- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH O R D E R (21.01.2010) As per Dipak Misra, C.J.- Questioning the soundness of the order dated 07.01.2010 passed by the learned single Judge in CWJC No. 18104 of 2009 the appellant has invoked the appellate jurisdiction of this Court under Clause 10 of the Letters Patent. 2 2. The factual matrix, as have been unfolded in the writ petition as well as in this appeal, are the appellant was elected as Pramukh of Fatuha Block under the provisions of Bihar Panchyat Raj Act, 2006 (for brevity `the Act‟). While she was functioning as the Pramukh, the members of the Panchayat Samiti sent a requisition on 05.12.2009 for convening a special meeting for No Confidence Motion against her. On the basis of the said requisition, the Block Development Officer-cum- Executive Officer issued notice for convening a special meeting on 12.12.2009. On the date fixed, a No Confidence Motion after being mooted was passed against the appellant. The appellant, as is evident, participated in the No Confidence Motion, which was passed against her and she became unseated. After the post fell vacant, the State Election Commission communicated to the District Magistrate-cum-Election Officer, Patna fixing 11.01.2010 for the date of election of new Pramukh. 3. Being dissatisfied with the aforesaid action, the appellant invoked the jurisdiction of this Court under Article 226 of the Constitution of India contending, 3 inter alia, that the notice that was issued by the Block Development Officer-cum-Executive Officer of the Panchayat Samiti fixing the meeting on 12.12.2009 does not meet the requirement as postulated under Section 46(4) of the Act as the said provision provides that there must be a clear seven days notice for convening a special meeting for consideration of No Confidence Motion. Structuring the said stand it was urged that the date the notice was issued, that is, 05.12.2009, was to be included and the day of meeting, that is, 12.12.2009, has to be excluded and on such exclusion, the notice period would stand reduced to six days which vitiates the mandatory provision as engrafted under Section 46(4) of the Act, and therefore, the vote of No Confidence passed against her is null and void and, therefore, in the ultimate eventuate, the Notification issued by the State Election Commission to fill up the post treating the same to be vacant is unsustainable. 4. The learned single Judge took note of the statutory provisions, the pleadings in paragraph 6 of the writ petition by which the appellant had fixed the date for 4 convening the meeting in the Register of Panchayat Samiti and her participation in the special meeting wherein the vote of No Confidence was passed and the result of the meeting to the effect that out of 16 elected Members, three votes were found unmarked, one was found invalid and 12 Members voted against her and the conduct of the appellant which invited the wrath of the principle of approbate and reprobate expressed the view that the resolution passed against the appellant did not deserve to be interfered with. It is apt to note the learned single Judge has also referred to the concept of democratic process of adult franchise and the concept of loss of confidence of the House to bolster his view. 5. Mr. Shambhu Prasad Singh, learned counsel appearing for the appellant assailing the pregnability of the order of the learned single Judge has raised the following contentions:- (a) The order passed by the learned single Judge is totally indefensible inasmuch as after recording a finding there has been no seven clear days notice, he has declined to interfere with the resolution passed by the 5 Panchayat Samiti by which the appellant was unseated. (b) The learned single Judge has erroneously applied the principle of approbate and reprobate which is not applicable to the case at hand and the reliance placed by him on the decision Sanjay Singh Som v. The State of Bihar & Ors., (2002) 3 PLJR 589 is absolutely misplaced and thereby the order passed by him becomes vulnerable. (c) When the meeting itself is illegal because of violation of the mandatory provisions of the Act, the result of meeting would not rectify the defect and attracting the concept of democratic process and the loss of confidence of the House in an elected candidate is wholly unwarranted inasmuch as an act unless done in accord with the requirement of the statute is fundamentally null and void. (d) If the order of the learned single Judge is appositely scrutinized it would be clear as day that he has not adverted to the statutory spectrum in proper perspective and has entered into the realm of adult franchise to incorporate a new concept which only the legislature can do. In essentiality, the learned single Judge 6 has entered into the realm of legislation which is impermissible in law. (e) The learned single Judge should have been guided by the decision rendered in Jai Lal Yadav & Anr. v. The State of Bihar & Ors., (2004) 2 PLJR 468 which is a binding precedent in the field of notice and the resultant concomitant and should not have opined that the appellant is precluded to challenge her own action. Mr. Singh, learned counsel for the appellant, to buttress his submissions has placed reliance on Ahmed Hussain Khan v. State of Andhra Pradesh, 1984 (Supp) SCC 467; National Insurance Co. Ltd. v. Swaran Singh & Ors., (2004) 3 SCC 297 & Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31. 6. Mr. K. Ravish, learned counsel for the State supported the order passed by the learned single Judge. He has commended us to the decision rendered in Babulal Badriprasad Varma v. Surat Municipal Corpn., (2008) 12 SCC 401. 7. Mr. Mrigank Mauli, learned counsel appearing for the 3rd respondent resisting the aforesaid 7 submissions of the learned counsel for the appellant has canvassed the following proponements:- (i) The order passed by the learned single Judge is impeccable since the appellant on her own showing had fixed the date of the meeting to 12.12.2009 and taken a chance to participate in the meeting, she cannot take a summersault to challenge the same. (ii) The decision rendered in Jai Lal Yadav & Anr. (supra) is not applicable to the factual scenario and is distinguishable. (iii) Though there is mandatory requirement for giving seven clear days notice, yet the appellant by her own conduct has waived the same and, hence, the order passed by the learned single Judge withstands studied scrutiny. Mr. Mauli, learned counsel, to bolster his submissions, has placed reliance on the decision in Bibi Amna Khatun & Ors. v. Zahir Hussain & Anr., AIR 1981 Patna 1 (FB). 8. To appreciate the rival submissions raised at the Bar it is seemly to refer to Section 44 of the 8 Act. The said provision deals with resignation and removal of Pramukh and Up Pramukh. Sub-section (3) of Section 44 which is relevant for the present purpose is reproduced as under:- “44. (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 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. 9 (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 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 10 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 Panchayat 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.” 9. Section 46 of the Act deals with convening of meeting of Panchayat Samiti. Sub-section (4) of Section 46 of the Act being relevant for the present purpose is reproduced below: “46(4) Ten clear days‟ notice of an ordinary meeting and seven clear days‟ notice of a special meeting specifying the time at which such meeting is to be held and the business to be transacted thereat shall be sent to the members and affixed at the office of the Panchayat Samiti. Such notice shall include in case of a special 11 meeting any motion or proposition mentioned in the written request made for such meeting.” 10. On a reading of the aforesaid provision there can be no scintilla of doubt that the said provision is mandatory. There has to be notice of seven clear days. 11. The fulcrum of the matter is whether the appellant by her own conduct has waived the mandatory requirement commanded by the Statute. Before we dwell upon the factual arena we may refer to the citations upon which reliance has been placed by Mr. Singh. Learned counsel has drawn inspiration from paragraph 22 of the decision rendered in Ahmed Hussain Khan (supra). In the said case, their Lordships were dealing with the right to receive pension under the Pension Rules and, in that context, their Lordships expressed the view that the right to receive pension in the facts of the said case had not been waived as the same having not been established. Thus, the said decision does not render any assistance to the proposition put forth by Mr. Singh. 12. In Swaran Singh & Ors. (supra), their Lordships have held to construe a statute, the scheme 12 of the Act has be taken into consideration and, for the said purpose, it has to be read as a whole and then chapter by chapter, section by section and word by word. In the present case we are concerned with the proposition whether a mandatory provision can be waived. Therefore, we are disposed to think the said decision does not aid or assist the stand put forth by Mr. Singh. 13. In Jogindra Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31, a two-Judge Bench of the Apex Court was dealing with the stand taken as regards waiver on the part of the landlady by her own conduct. Their Lordships expressed the view that waiver is a question of fact which must be expressly pleaded, clearly proved and no such plea had been raised by the tenant or by the sub- tenant. Their Lordships further held a bald plea of waiver cannot defeat statutory provision made in larger interest. In that context their Lordships referred to the earlier decisions rendered in Shalimar Tar Products Ltd. v. H.C. Sharma, (1988) 1 SCC 70 and Pulin Behari Lal v. Mahadeb Dutta & Ors., (1993) 1 SCC 629. In Shalimar Tar Products Ltd. (supra) the Apex Court has 13 expressed the views as follows:- “13. Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity. We are, however, in this case unable to agree. Firstly, in this case there was no case of waiver. Waiver is a question of fact which has to be tested by facts and evidence. There was no conscious relinquishment of the advantage of any statute. No court has gone into this fact. It does not seem to have been urged before the High Court also. Apart from this, in this requirement of the statute which is in the public interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord. ….” In Pulin Behari Lal (supra) it has been held as follows:- “6. … … … Waiver is a question of fact which depends on the facts and circumstances of each case. In the case of waiver of any provisions of the statute it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute. … … …” 14. In this regard we may fruitfully refer to the decision in Bibi Amna Khatun & Ors. (supra) wherein the majority speaking through Hari Lal Agrawal, J. (as His Lordship then was), expressed the view as under:- 14 “8. In my opinion, simply because the second part of Section 11A is mandatory in nature, will not rule out the application of the principle of „waiver‟, if once the correct scope of this maxim is appreciated and understood. Although the desired assistance was not rendered at the Bar, I have taken some pains to examine the proposition in its true perspective with reference to the facts of the present case. 9. The essence of waiver is „estoppel‟ and where there is no „estoppel‟, there can be no „waiver‟, the connection between „estoppel‟ and „waiver‟ being very close. But in spite of that, there is an essential and fundamental difference between the two and that is that whereas estoppel is a rule of evidence, waiver is a rule of conduct. The accepted connotation of „waiver‟ is that to constitute waiver there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of an existing legal right and a conduct which warrants an inference of the relinquishment of a known right or a privilege (see AIR 1959 SC 149). There is, however, a tendency to mix up „waiver‟ and „estoppel‟, as a single idea, although the one has apparently reference to a man‟s conduct and the other to the legal consequence of that conduct. The principle underlying both these maxims is the same, namely, that a party will not be permitted to approbate and reprobate or, in other words, to blow hot and cold, in respect of the same matter. This is the underlying principle behind the maxim „waiver‟. I may now refer to a few authorities 15 where the application of waiver has been considered, in order to bring home my point of view. The principle that has been decided by those authorities, if I may briefly put it here, is that where a right or privilege guaranteed by law rests in the individual and is primarily intended for his benefit and does not infringe the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene any public policy. This principle was recognized by this Court also in the case of Sashibhusan Prasad Singh v. Dalip Narain Singh (AIR 1936 Pat 75) and then again in the case of Jogendra Missir v. Ramnandan Singh (AIR 1968 Pat 218). The Supreme Court also in the case of Basheshar Nath v. Commr. of Income-tax, Delhi and Rajasthan (AIR 1959 SC 149) made a similar observation. Maxwell in his interpretation of Statutes, 11th Edition (1962) at page 376, has also enunciated the same principle for applying this principle of estoppel.” 15. In this context we may profitably refer to Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229, wherein it has been held as follows:- “9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for 16 whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.” 16. In Babulal Badriprasad Varma v. Surat Municipal Corpn., (2008) 12 SCC 401, the Apex Court has held in paragraphs 28 and 29 as follows:- “28. We would, however, assume that it was obligatory on the part of the State to serve a special notice upon the appellant. The question, however, would be: what would be the consequence of non- compliance therewith vis-a-vis the conduct of the appellant himself?” “29. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation.” 17. In Jaswantsingh Mathurasingh & Anr. V. Ahmedabad Municipal Corporation, 1992 Suppl. (1) SCC 5, a three-Judge Bench of the Apex Court while dealing with the principle of the waiver has expressed thus: - 17 “14. The principle of waiver connotes issuance of notice and non-response thereto. Everyone has a right to waive an advantage or protection which law seeks to give him/her. Undoubtedly, if a notice is issued and no representation was made by either the owner, tenant or a sub-tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non-compliance of sub-rules (3) and (4) of Rule 21. It would amount to putting premium on dilatory and dishonest conduct.” 18. In Krishna Lal V. State of J & K, (1994) (4) SCC 422, the Apex Court after referring to the earlier decisions rendered in Vellayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197; Bhagchand Dagadusa v. Secretary of State for India in Council, 54 IA 338; Dhirendra Nath Gorai v. Shudhir Chandra Ghosh, AIR 1964 SC 1300; Lachoo Mal v. Radhey Shyam, AIR 1971 SC 2213 has expressed the view as follows: - “20. Having seen the pronouncements of judicial fora, we can now inform ourselves as to the view of the reputed authors on interpretation of statutes as well as administrative law. We may start with what has been stated in Maxwell‟s The interpretation of Statutes. This aspect has been dealt at pages 328-330 (12th Edn.) and it has been stated that if the benefit be 18 for the protection of an individual in his private capacity the same can be waived. To illustrate, reference has been made about waiver of the benefit of the Limitation Act. This is on the maxim of law “”Quilibet potest renunciare juri pro se introducto”, meaning “an individual may renounce a law made for his special benefit”. Maxwell then says that if the benefit be one which has been imposed in public interest there can be no waiver of the same.” “21. Craies in his Statute Law has opined the same, as would appear from what has been stated at page 269 of 7th Edn. By drawing attention to the aforesaid maxim, it has been observed that if the object of a statute is “not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable”. To illustrate this principle, it has been stated that if the statutory condition be imposed simply for the security or the benefit of the parties to the action themselves, such condition will not be considered as indispensable and either party may waive it.” “22. Crawford in his Interpretation of Laws takes the same view as would appear from pages 540-542 (1989 Reprint). The learned author while quoting the aforesaid maxim states at page 542 that requirement like giving of notice may be waived as the same is intended for the benefit of the person concerned.” “23. We may also refer to the views expressed by Francis Bennion in his Statutory Interpretation (1984), wherein 19 this aspect has been dealt with at pages 27 et seq and it has been stated that if the performance of statutory duty be one which would come within the aforesaid maxim, the person entitled to the performance can effectively waive performance of the duty by the person bound. As an illustration mention has been made (at page 29) of decisions in Toronto Corpn. V. Russell and Stylo Shoes Ltd. v. Prices Tailors Ltd. wherein it was held that a duty to give notice of certain matters can be waived by the