IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.252 of 2009 RAJENDRA CHAUDHARY,son of late Rasik Chaudhary, resident of village and P.O.Barkagaon, P.S. Karja, Block- Marwan, District-Muzaffarpur, presently Pramukh of Marwan Block Panchayat Samiti, Marwan, District- Muzaffarpur. 2. Arbind Kumar Singh, son of late Raghunath Singh, resident of village and P.O. Raksa, P.S.Karja, Block- Marwan, District-Muzaffarpur, presently UP-Pramukh of Marwan Block Panchayat Samiti, Marwan, District- Muzaffarpur. Versus 1. THE STATE OF BIHAR 2. The Director, Panchayati Raj, Bihar, Patna. 3. The District Magistrate, Muzaffarpur,District- Muzaffarpur. 4. The District Panchayat Raj Officer,Muzaffarpur, District-Muzaffarpur 5. The Block Development Officer-cum- Executive Officer, Marwan Block Panchayat Samiti, District- Muzaffarpur. 6. Kapildeo Sahani, son of late Munshi Sahani 7. Arbind kumar, son of not known 8. Md.Aslam, son of not known 9. Dwarika Sah, son of not known 10. Nirmala Devi, wife of Dinesh Rai 11. Prem Shankar Rai, son of not known 12. Gayatri Devi, wife of not known 13. Kailash Manjhi, son of not known 14. Anjali Devi, wife of not known 15. Usha Devi, wifge of not known 16. Veena Devi, wife of Digvijay Singh 17. Nand Kishore Pandit, son of not known 18. Daroga Lal Sah, sonof not known 19. Jai Kali Devi, wife of Anil Paswan 20. Lalwati Devi,wifeof Bachcha Lal Paswan 21. Kiran Devi, wife of Upendra Sah 22. Sabita Devi, wife of Rajesh Sahani 23. Hira Ram, son of not known --- For the Peititioners: Mr. S.B.K. Manglam,Advocate For Respondent Nos.6 to 16 & 23:Mr.Surendra Kumar Singh Senior Advocate Mr.Nawal Kishore Singh,Advocate Mr. Praveen Prakash, Advcoate For the State: Mr. Binay Kumar, A.C. to G.P.V ----------- 4. 18.3.2009 Heard learned counsel for the petitioners, learned counsel for the appearing respondents and learned counsel for the State. The petitioners have approached this Court for quashing the decision of the special meeting held on 7.1.2009 for 2 considering no confidence motion against the petitioners as also the notice dated 31.12.2008. The main ground raised by learned counsel for the petitioners is that there has been a violation of Section 46 (4) of the Bihar Panchayat Raj Act, 2006. In the present matter the notice dated 31.12.2008 had fixed the date for considering no confidence motion on 7.1.2009 without providing seven clear days notice as required under the Act. The second ground taken by learned counsel for the petitioners is that the so-called resolution of no confidence motion was passed by mere show of hands without secret ballot being taken and thus there was a further violation of the mandatory provisions of Section 44 (3) (vii) of the Act. In the course of submissions, learned counsel for the petitioners also sought to impress upon this Court that the requisition was never presented before petitioner No.1- Pramukh, rather it was brought to his notice subsequently when the matter was moved by the Executive Officer before him and the said petitioner had in that regard returned the file with notes to the Executive Officer that the requisition was never presented before him and, therefore, the same was not valid. Learned counsel for the appearing respondents does not challenge the first two contentions raised by learned counsel for the petitioners. It is admitted that the voting had not taken place by secret ballot since all the members were unanimously in support of the 3 resolution and thus there was no requirement of voting by secret ballot. However, learned counsel denies the assertion made by the petitioners that the requisition was not presented before them and only before the Executive Officer. In this regard, reference is made to a copy of the requisition brought on the record as Annexure both by the petitioners and by the contesting respondents from which it is stated that the same is addressed to the petitioners and a copy of the same was given, apart from others, to the Executive Officer of the Panchayat Samiti. It is, thus, submitted by learned counsel that the requisition was presented before the petitioner No.1 and only to delay the matter all such pleas were taken by him in his letter sent to the Executive Officer. On a consideration of the aforesaid contentions of the parties, this Court is of the view that from the requisition itself, it is evident that the same was presented before petitioner No.1-Pramukh apart from presenting the same to the Executive Officer as per the requirements of Section 44 (3) of the Act and thus, there was no illegality so far as presentation of requisition is concerned. However, there has been a violation of Section 46 (4) of the Act by not providing clear seven days notice as also a violation of Section 44 (3) (vii) of the Act since the voting did not take place by secret ballot as is provided by the said provisions of the Act. The writ application is, accordingly, allowed and the impugned notice dated 31.12.2008 as also the resolution of no confidence passed on 7.1.2009 are both quashed. 4 However, it would be open to the 1/3rd of the directly elected members to fix a fresh date for convening the special meeting for considering no confidence motion against the two petitioners after complying with the other requirement of Section 46 (4) of the Act and thereafter the Executive Officer shall issue notice and the matter shall proceed in accordance with the provisions of the Act. VPS ( Ramesh Kumar Datta,J.)