IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11464 of 2008 SITA DEVI, wife of Manikant Yadav, resident of village- Laxminia, P.O. Badia, P.S.- Paura Gogri, District- Khagaria ………………….. Petitioner Versus 1. THE STATE OF BIHAR 2. District Magistrate, Khagaria 3. S.D.O., Gogri, District Khagaria 4. The Executive Officer-cum-Development Officer, Gogri Block, District- Khagaria 5. Binay Kumar singh, son of Late Kamleshwari Singh, Village- Rajdham,Post –Maheshkhunt, P.S. Mahesh Khunt, Gogri, Distt.- Khagaria 6. Punam Verma, wife of Rajkishor Singh, Village Pasraha, P.O. Pasraha, P.S.Pasraha, Distt. Khagaria, Panchayat Samiti member No. 27 7. Anil Sharma, s/o Ramdhari Sharma, Vill.- Aunta, P.O.- Jamalpur, P.S.Gogri, Distt. Khagaria, Panchayat Samiti member No. 14 8. Dinesh Kumar Singh, son of not known, Vill.- Dharampur Temha, P.O Banni, P.S. Mahes Khunt, District- Khagaria, Panchayat Samiti member No. 03 9. Kiran Devi, w/o Ashok Paswan, Vill.- Navtolia, Banni, P.O. Banni, P.S. Mahesh Khunt, District- Khagaria, Panchayat Samiti membership No. 02 10. Naresh Singh, s/0 Vishundev Singh, Vill.- Sirjua, P.O.- Chaidha Banni, P.S. Mahesh Khunt, Distt.- Khagaria, Panchayat Samiti membership no. 01 11. Ranjeet Kumar, s/0 Brahamdev Singh, Vill.- Dinachakla, P.O.- Sher, Chakla, P.S. Gogri, Distt. Khagaria, P.S.M. No. 32 12. Indu Devi, W/o Ajeet Singh, vill.- Itihari, P.O. Itihari, P.S. Gogri, Distt. Khagaria, PSM No. 30 13. Ram Prakash Singh, S/o Om Prakash Singh, Vill.- Maheshkhunt, P.O. Maheshkhunt, P.S. Maheshkhunt, Distt.- Khagaria, PSM No. 09 14. Khurshida Khatun, W/o Samad Alam Vill.+ P.O. Muskipur, Jamalpur, P.S. Gogri, Distt. Khagaria, PSM No. 19 15. Shanti Devi W/o Birchandra Kumar, Vill. + P.O. Sondiha, P.S. Pasnaha, Distt. Khagaria, PSM No. 26 16. Binod Yadav, S/o Jageshwar Yadav, Vill.- Chandpur, P.O. Ratan, P.S. Gogri, Distt. Khagaria, PSM No. 12 17. Subodh Yadav, S/o Moti Yadav, Vill. Shergarh, P.O. Shergarh, P.S. Gogri, Distt. Khagaria, PSM No. 31 18. Rupam Mishra, W/o Bhagwan Mishra, Vill. + P.O. Mathura, P.S. Gogri, Distt. Khagaria, PSM No. 15 19. Tuna Devi, W/o Janardan Yadav, Vill.- Gauraiya Bathan, P.O. Jamalpur, P.S Gogri, Distt. Khagaria, PSM No. 16 20. Meera Devi W/o Madhav Singh, At + P.O. Piparpanti, P.S. Pasraha, Distt. Khagaria, PSM No. 24 2 21. Amrita Devi, w/0 Mukesh Sharma, At + P.O. Dewtha, P.S. Pasraha, Distt. – Khagaria, PSM No. 25 22. Surya Narayan Paswan, s/0 Batoran Paswan, Vill. + P.O. Gogri, P.S. Gogri, Distt. Khagaria, PSM No. 11. ……………… Respondents. ----------- For the petitioner:- Mr. Ashok Kumar Choudhary, Advocate For the State: Mr. Ramjee Sharma, Advocate For Resp. No.6 :- M/S S.B.K.Mangalam & Rajeev Kumar, Advocates. 9. 2.12.2008 Heard learned counsel for the petitioner, learned J.C. to Government Pleader No. 17 and learned counsel for respondent no.6. The petitioner seeks quashing of the notice dated 28.7.2008 by which the special meeting for considering no confidence motion against the petitioner-Pramukh was fixed on 2.8.2008 and further the decision taken at the said meeting wherein the resolution of no confidence motion was passed and also the communication dated 16.8.2008 issued by the Sub- Divisional Officer, Gogri by which the respondent no. 6 has been declared elected on the post of Pramukh of Gogri Panchayat Samiti. Learned counsel for the petitioner raises three points in support of the case of the petitioner. It is firstly submitted that the requisition for convening the special meeting was addressed not to the Pramukh as required under Section 44(3) (i) of the Bihar Panchayat Raj Act, 2006 but to the Executive Officer- cum-Block Development Officer. It is urged that the subsequent placing of the said requisition (Annexure-2) before the Pramukh 3 by the Executive Officer cannot cure the illegality as such a requisition has to be treated as not having been validly presented at all and thus no requisition in the eye of law. The second submission of the learned counsel is that the notice dated 28.7.2008 (Annexure-4) had fixed the date of the special meeting for considering no confidence motion on 2.8.2008 which again is in violation of the mandatory provisions of Section 46(4) of the Act which provides for seven clear days notice. Lastly, it is argued that the notice itself does not contain any reasons/charges which action is violative of the provisions of Section 44(3)(v) of the Act. So far as the issue of requisition is concerned, learned counsel for respondent no. 6 states on the basis of the counter affidavit filed on her behalf that subsequently after the first requisition was filed on 11.6.2008 before the Executive Officer of the Panchayat Samiti but no action was taken by the petitioner then a fresh requisition addressed to the petitioner was presented before her on 17.7.2008 which she refused to accept and thereafter a copy of the said requisition was filed before the Executive Officer who had placed the said requisition before the petitioner on 17.7.2008. It is thus, submitted that the defect in the form and presentation of the requisition was cured by the subsequent requisition since, according to learned counsel for respondent no. 6, the rejection order of the requisition was passed 4 by the petitioner on the subsequent requisition. With regard to the issue of seven clear days notice, learned counsel for respondent no. 6 submits that when the special meeting for considering fresh no confidence motion had been requisitioned, the Pramukh and Up-Pramukh cannot be permitted to take advantage of their own wrong in fixing the date contrary to the provisions of the statute. With regard to last submission learned counsel submits that although the same were not contained in the notice, but the reasons/charges were duly indicated in the requisition. On a consideration of the rival submissions, this Court is of the view that the petitioner is right in contending that the requisition placed before her was the requisition addressed to the Executive Officer as appears from the initials, etc. contained in the margin of the said requisition which is Annexure-2 to the writ petition. However, the issue which clinches the matter is that there has been violation of the mandatory provisions of seven clear days notice by the notice dated 28.7.2008 and for this reason alone the notice has to be declared illegal and the special meeting convened pursuant to the said notice and the decision taken in the said special meeting will also have to be considered as illegal and non est in the eye of law. That being the position, there being no vacancy on the post of Pramukh the election of respondent no. 6 subsequently on the said post is required to be quashed as being 5 contrary to law. On the issue of reasons/charges it is evident that as per the provisions of Section 44(3) (v) reasons/charges are to be mentioned in the notice which is sent out to the members and not merely in the requisition. So far as the contention regarding the person not being allowed to take advantage of his/her own wrong, the same has no application to the facts of the case since admittedly it is not the petitioner who had fixed the date of the special meeting. In the light of the aforesaid discussions, the writ petition is allowed, the notice dated 28.7.2008 and the resolution in favour of no confidence motion passed in the special meeting held on 2.8.2008 are both quashed and so also the subsequent election of respondent no. 6 on the post of Pramukh is set aside. In view of the fact that the entire proceedings from the very inception have been declared illegal by this Court and quashed, it would be open to the members of the Panchayat Samiti to proceed afresh in accordance with law. S.Pandey (Ramesh Kumar Datta, J.)