IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18557 of 2008 Shashi Bhushan Kumar, S/o Shri Jagdish Rai, resident of Village- Sobhitapur, P.S. Rajapur, Block- Tetaria, District- East Champaran, Pramukh of Panchayat Samiti- Tetaria, Block-Tetaria, Sub-Division- Pakari Dayal, District- East Champaran. ……………… Petitioner Versus 1. The State of Bihar 2. The Principal Secretary, Department of Panchayat Raj,Govt. of Bihar, Patna. 3. The District Magistrate, East Champaran, Motihari 4. The District Panchayat Raj Officer, East Champaran, Motihari 5. The Sub-Divisional Officer, Pakari Dayal, District- East Champaran 6. The Executive Officer-cum- Block Development Officer, Block- Tetaria, District-East Champaran 7. Mr. Anil Kumar, Up-Pramukh of Panchayat Samiti- Tetaria, Block- Tetaria, Sub-Division- Pakari Dayal, District- East Champaran 8. Smt. Kanti Devi, W/o Shri Raj Narain Kumar, resident of village- Hanuman Nagar, P.O. Narha Panapur, P.S.- Rajapur, District- East Champaran 9. Shri Ram Prawesh Ram, S/o not known to this petitioner 10. Smt. Babuni Devi, W/O not known to this petitioner 11. Shri Heera Lal Sah, S/o not known to this petitioner 12. Shri Ramesh Sah, S/o not known to this petitioner 13. Smt. Phool Kumari Devi, W/O not known to this petitioner 14. Smt. Saniya Devi, W/O not known to this petitioner 15. Smt. Sumitra Devi, W/O not known to this petitioner 16. Smt. Meena Devi, W/O not known to this petitioner 17. Sjro Jarosj Cjamdra S/O not known to this petitioner Respondent nos. 9 to 17 are elected Members of Panchayat Samiti- Tetaria, Block-Tetaria, Sub-Division- Pakari Dayal, Diostrict-East Champaran ……………………………… Respondents. ----------- For the petitioner:- M/S Shashi Anugrah Narain, Sr. Advocate, S.P.Srivastava, Rajeev Ranjan and Atul Kumar Srivastava, Advocates. For the State:- Mr. M.K.Mishra, GP XXI For Resp. No.7:- M/S Uma Kant Shukla and Shashi Suman Kumar, Advocates. ---------- 2. 22.12.2008 The petitioner has come to this Court for quashing of the notice dated 11.12.2008 (Annexure-3) issued by Respondent no.6, the Executive Officer of Tetaria Panchayat 2 Samiti by which he has fixed the date of the special meeting on 22.12.2008 for considering the no-confidence motion against the petitioner and for further consequential reliefs. In an earlier round of litigation the petitioner had moved before this Court by filing CWJC No. 14798 of 2008 in which after hearing the parties this Court had quashed the requisition dated 4.9.2008, notice dated 18.9.2008 and the resolution of no confidence motion successfully moved against the petitioner dated 25.9.2008 giving a liberty to the respondents to proceed afresh in the matter. Accordingly, a requisition was presented before the Pramukh of the Panchayat Samiti with a copy of the same to the Executive Officer of the Panchayat Samiti. The matter was admittedly put up before the petitioner-Pramukh on 1.12.2008 and on 8.12.2008 the petitioner fixed the date of the special meeting on 15.12.2008. Finding that the notice issued on 8.12.2008 with respect to special meeting on 15.12.2008 would amount to violation of Section 46(4) of the Bihar Panchayat Raj Act, 2006, the Executive Officer wrote to the petitioner stating that he had failed to fix the proper date after complying with the statutory time-frame which provides for the special meeting to be held on a date within fifteen days from the date of the receipt of the requisition as per Section 44(3)(i) of the Act and also complying with the further requirement of seven clear days notice as per the provisions of Section 46(4) of the Act. In the said circumstances, he informed the petitioner that he would be 3 requesting the Up-Pramukh or the one-third of the directly elected members to fix a date for the said special meeting. Accordingly, it appears that both the Up Pramukh by his letter dated 11.12.2008 and more than one-third of the directly elected members by their letter of the same date fixed the date of the special meeting for considering the no confidence motion on 22.12.2008. Aggrieved by the said action of the respondents the petitioner has come to this Court. Learned counsel for the petitioner submits that it was not open to the Executive Officer to have written to the petitioner in the manner he has done regarding the various provisions of the Act and if he had found that certain illegalities were present in the notice to be issued he ought to have either approached the Panchayat Samiti under the Chairmanship of the petitioner himself as per Section 61(2) of the Act or the District Magistrate under Section 157 of the Act so that a notice in accordance with law for conducting a special meeting would have been issued. It is further submitted that the Up-pramukh and the one-third of the directly elected members got power to fix the date only if the special meeting is not held within fifteen days mandated by the Act and not before the said date; hence the exercise by them of such power on 11.12.2008 is contrary to the provisions of the Act. Learned counsel for the respondents opposes the 4 said stand stating that the Executive Officer has rightly acted in the manner after finding that the petitioner has failed to fix the date of the special meeting in accordance with the Act within the statutory period during which he could have complied with the provisions of the Act as per the requirements both of Section 44(3)(i) and Section 46(4) of the Act. On a consideration of the rival submissions of the parties this Court is unable to accept the contention of learned counsel for the petitioner. In the case of Suryadeo Kumar Vs. The State of Bihar & ors: CWJC No. 11518/2008 and an analogous case this Court by its decision dated 27.11.2008 has held that it is the duty of the Pramukh upon receipt of the requisition to fix the date of the special meeting so that it is held within 15 days from the date of receipt of notification and also after complying with the further requirement of seven days clear notice as per the provisions of Section 46(4) of the Act. It was also held that the provisions of Section 44(3)(i) of the Act read with Section 46(4) of the Act lead to the clear conclusion that the Pramukh must act within seven days of the receipt of the notification at the latest so that the special meeting can be convened on a date within fifteen days of the receipt of requisition providing for seven clear days notice. Applying the aforesaid proposition to the facts of the case, it is evident that the petitioner was obliged to act under the provisions of the Act latest by 8th December, 2008, he having 5 admittedly received the requisition on 1.12.2008 and on the said date he could have fixed a proper date of the special meeting only on 16.12.2008 for complying with the requirements of both Sections 44(3)(i) and 46(4) of the Act. He having failed to do so within the time permitted by the Statute, consequently the power and the duty to fix a proper date fell upon the Up Pramukh or the one-third of the directly elected members and the Executive Officer had rightly approached them for fixing the date of the meeting. This Court however, feels that the Executive Officer ought to have approached the Up-Pramukh or the 1/3rd of the directly elected members not at the same time, as in such circumstances it is possible that the two statutorily empowered authorities may fix different dates of the special meeting which can only lead to further confusion in the matter. It is a different matter if the Up-Pramukh or one-third of the directly elected members had acted independently on learning about the matter rather than on having been approached by the Executive Officer. Be that as it may, in the present case there is no conflict so far as the fixing of the date is concerned and there is also no doubt in the mind of this Court that both the Up Pramukh and one-third of the directly elected members are duly authorized under the Act to have fixed the date of the meeting which they have done. So far as the reliance by learned counsel for the petitioner on Section 61(2) of the Act is concerned, the same relates to any proposal before the Panchayat Samiti during its 6 meeting which in the opinion of the Executive Officer is violative or inconsistent with the provisions of the Act or any other legal provisions in which case it is his duty to bring the same to the notice of the Panchayat Samiti. It is evident that the said duty is to be discharged by the Executive Officer in the course of a meeting of the Panchayat Samiti and not otherwise, and has no application to the issue of fixing a date for holding a special meeting to consider a no-confidence motion. So far as the question of reference of such matters to the District Magistrate under Section 157 of the Act is concerned, the same arises at a stage where the authorities empowered under the Act have failed to exercise their powers and functions in holding the special meeting for considering no confidence motion in accordance with the provisions of the Act. Here the concerned authorities, in this case the Executive Officer and the Up Pramukh or one-third of the directly elected members, have acted in the proper manner and rectified the mistake committed by the petitioner-Pramukh and thus no occasion arose to approach the Collector under Section 157 of the Act. It cannot be held that the Executive Officer must immediately in such circumstances move the District Magistrate, since that does not appear to be the purport of the Act. The District Magistrate only appears to be an authority of last resort where the statutory functionaries fail to carry out their duties and the responsibilities under the provisions of the Act in a proper manner. 7 Thus, on a consideration of the entire facts and circumstances of this case and in the light of the aforesaid discussions this Court does not find any merit in the present writ petition and it is accordingly dismissed. S.Pandey (Ramesh Kumar Datta, J.)