IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11964 of 2008 PAVITA RANI, wife of Sri Naresh Chandra Mandal, resident of village Balrampur, P.S. Amdabad, Dist. Katihar-------petitioner Versus 1.THE STATE OF BIHAR through the Secretary, Department of Panchayati Raj, Govt. of Bihar, Patna 2.The State Election Commission through its Secretary, Bihar, Patna 3.The District Magistrate, Katihar 4.The Panchayati Raj Officer, Katihar 5.The Sub Divisional Officer, Katihar 6.The Panchayat Samiti, Amdabad, Katihar through the Executive Officer-cum-Block Development Officer, Amdabad 7.Block Development Officer-cum-Executive Officer, Panchayat Samiti, Amdabad, Katihar 8.Anita Singh, wife of late Jalandhar Singh, P.O.Chhota Raghunathpur, P.S.Amdabad,Katihar 9.Abid Hussain, son of not known 10.Amir Hussain, son of not known 11.Sitara Begum, w/o not known 12.Krishna Kumar Pandey, son of not known 13.Abdul Mazid, son of not known 14.Sahara Khatoon w/o not known 15.Manoj Kumar Rai, son of not known 16.Ratna Devi, w/o not known 17.Afsana w/o not known 18.Rafique Alam, son of not known 19.Savita Devi, w/o not known 20.Panchami Devi, w/o not known 21.Adil Anjum, son of not known 22.Prithani Mondal, son of not known 23.Rambha Devi, w/o not known 24.Rekha Rani, w/o not known 25.Yogendra Yadav, son of not known 26.Nazrul Haque, son of not known All residents of Amdabad, P.S.Amdabad Dist. Katihar----------------------respondents ----------- For the petitioner:Mr.Rajeeva Roy For the Election Commission:Mr.Sanjeev Nikesh For the State :Mr.Braj Kishore Pd.Sinha,G.P.3 For the private respondents:M/S Sanjev Kumar Raghvendra Kr.Singh ----- 2 7. 2.4.2009 Heard learned counsel for the petitioner, learned counsels for the State and State Election Commission as also learned counsel for the appearing and contesting respondents. The petitioner seeks quashing of the Resolution dated 29.7.2008 by which the no confidence motion has been passed against the petitioner Pramukh of the Amdabad Panchayat Samiti, District Katihar and thereby she has been removed from the post of Pramukh of the said Panchayat Samiti. The further prayer is for quashing the requisition calling for the said special meeting for considering the no confidence motion on the ground that it contained no allegation against the petitioner and for other consequential reliefs. The facts of this case, in short, are that a requisition was submitted by 11 members of the aforesaid Panchayat Samiti stating that they were not satisfied with the functioning of the Pramukh and with her undemocratic actions and style of functioning as a result of which she has lost her majority and come into minority and in the said circumstances she has no legal and moral right to continue on the 3 said post. On the basis of the said requisition special meeting was called by notice dated 20.7.2008 (Annexure-9) fixing the date for special meeting for considering the no confidence motion on 29.7.2008. It is evident that neither the requisition nor the notice pursuant thereto contained the reasons/charges on the basis of which the no confidence motion had been moved. Thereafter on 29.7.2008 the motion of no confidence was passed against the petitioner with 12 out of 20 directly elected members voting in favour of the motion. Subsequently, an election was also held to the post of Pramukh on 12.8.2008 in which respondent no.8 Anita Singh has been elected as the Pramukh. The only ground taken by learned counsel for the petitioner is that since neither the requisition nor the notice contained any reason/charge for moving no confidence against the petitioner, hence the entire proceedings including the removal of the petitioner by the passage of the no confidence motion as also election of respondent no.8 on the so-called vacancy created thereby are invalid and illegal 4 being contrary to the mandatory provisions of Section 44(3)(v) of the Bihar Panchayat Raj Act, 2006. It is submitted that in terms of the said provision which provides that the reasons/charges should be clearly specified in the notice for no confidence motion, there cannot be removal of the Pramukh from her post merely by the action of brute majority without complying with the mandatory requirement of the Act. In support of the said proposition learned counsel for the petitioner relies upon three Division Bench decisions of this Court in the cases of Lalan Singh & ors. Vs. The State of Bihr & ors. : 2002(3) PLJR 201, Sindhu Devi & ors. Vs. The State of Bihar & ors.:2002(1)PLJR 281 and Uday Shankar Singh vs. The State of Bihar & ors.:2003(2)PLJR 123. In Lalan Singh’s case(supra)the Division Bench of this Court in paragraphs 3 and 4 has held as follows : “3.The Court is examining the root cause on which a motion of no confidence was carried. The root cause was the proposal brought on which the motion of no confidence was considered. Time and again, the Court has expressed that a motion of no confidence must have specific allegations against an incumbent, Pramukh or a Mukhiya, 5 so that a person who faces a motion of no confidence may know what he is up against. Making vague allegations without specifying the nature of misdemeanour renders the proposal itself a questionable exercise resting on arbitrariness. Such a motion is invalid and illegal. 4.The Court has examined the proposal which was considered at the meeting on a motion of no confidence. Counsel has been unable to specify on what exactly the Pramukh was supposed to answer when the misdemeanours or allegations against him have not been spelled out with specific instances. If this becomes a general practice, it will play up havoc with the Panchayats recently rendered functional in Bihar.” To the same effect is the decision in Sindhu Devi’s case(supra), paragraph 12 of which is quoted below : “12.Thus, the court can hardly agree with the four appellants or for that matter their counsel that a bare notice without specifying allegation is enough. Such a notice calling a motion of no confidence without recording or listing allegations, is void at the threshold. A brute majority by members in absence of indicated misconduct cannot decide the fate of a Pramukh or an Uppramukh. This is not democracy.” In Uday Shankar Singh’ case (supra) in the relevant part of paragraph 16 of the judgment this Court has held as follows : 6 “16. In the circumstances, the Court cannot permit this motion of no confidence to stand. The person who was to face it had not been intimated what was against him, the misdemeanour or allegations upon which the house was loosing confidence in him. To certify that confidence has been lost, both the cause and the result must be an open forum and face the consideration of the House, which constitutes local government…………..” Learned counsel for the contesting private respondents including the so-called newly elected Pramukh, respondent no.8, submits that whatever may have been the illegality or irregularity in the requisition of the notice but the very fact that the petitioner participated in the special meeting and in the course of discussions expressed her willingness for the voting to take place she cannot be permitted now to turn around and question the requisition, notice and the final decision taken in the special meeting. It is further submitted that not only that but the petitioner had also participated in the subsequent election held on the vacant post of Pramukh in which respondent no.8 had been elected and that further precludes her from challenging the matter after having taken a chance and lost at 7 both stages. In support of the said proposition learned counsel relies upon a decision of a learned Single Judge of this Court in the case of Nirmala Singh & Anr. Vs. The State of Bihar & ors.: 2006(1) PLJR 129. In paragraph 3 of which it has been held as follows: “3. Be that as it may, the meeting was convened pursuant to the notice as aforesaid. At the meeting the petitioners were removed from the posts of Pramukh as well as Up-pramukh. Neither in the requisition, nor in the notice, any reason in support of the motion had been mentioned, which appears to be a requirement of law. However, for that reason the petitioners did not suffer any prejudice inasmuch none of the petitioners attended the meeting. After the meeting was held and they were removed, again a meeting was held for the purpose of supplying the vacancy caused by such removal and both the petitioners participated in the said meeting proceeding on the basis that the same was a valid and legal meeting. While the Petitioner No.1 participated in the meeting, the Petitioner No.2 even offered himself for one of the posts for which election was to be held. In such a situation, if I interfere either with the requisition or with the notice or with the meeting being the subject matter of challenge in the instant writ petition, that would be travesty of justice and would permit the petitioner to have the status restored despite having had participated in the 8 meeting by which with the mandate of the majority the status has been altered.” Learned counsel also relies upon the following quotation in Durga Das Basu Shorter Constitution of India 13th Edition, at page 817 : “In general, a person who submits to the jurisdiction of an inferior tribunal and takes part in the proceedings without objection on the ground that the tribunal has no jurisdiction, cannot, after having failed in these proceedings, turn round and question the jurisdiction of that tribunal, in a petition under Article 226.” On a consideration of the submissions of learned counsel for the petitioner and respondents, this Court finds sufficient force in the submission of learned counsel for the petitioner. The matter, in fact, is no longer res integra and has also been settled by repeated Division Bench decisions of this Court as cited by learned counsel for the petitioner and quoted above. It is evident that the Division Benchs have held that a requisition and the notice containing no reasons/charges are void ab initio and in such circumstances no legal result can come out from any special 9 meeting in which resolution of no confidence is passed pursuant to such requisition/notice. In the said cases not only the motion of no confidence passed against the concerned petitioner was quashed by this Court but even the subsequent election held thereafter were held to be invalid and the petitioners concerned were restored to their office. So far as the reliance placed by learned counsel for the respondents on the case of Nirmala Singh is concerned, the said decision does not advert to the aforesaid three Division Bench decisions which have held the requirement to supply reasons/charges as mandatory in categorical terms and thus mere participation of the petitioner in the proceedings can have no effect on the illegality inherent in the notice and the resolution and therefore the said decision must be held to be per incurium and not binding being in the face of the law decided to the contrary by the Division Bench decisions of this Court. The reliance placed by the learned counsel on the principle of acquiescence as quoted above, Durga Das Basu’s book, is wholly 10 misconceived since the same has been stated in the context of participation in a proceeding before a Tribunal without challenging its jurisdiction at the outset, and only after an adverse result such a plea being taken. By no stretch of imagination a motion of no- confidence before a Panchayat Samiti can be considered to be a proceeding before a Tribunal and thus there is no substance in the contention of learned counsel for the respondents in this regard. In the light of the aforesaid discussions, the writ application is allowed. The requisition dated 9.7.2008 and the notice dated 20.7.2008 are declared void ab initio and without any force of law and consequently the resolution of no confidence passed pursuant thereto in the special meeting held on 29.7.2008 is also quashed. That being the position there being no vacancy in the eye of law on the post of Pramukh the election of respondent no.8 subsequently on 12.8.2008 is also held to be without any force of law and the same is accordingly held to be invalid. As 11 a result the petitioner will go back to her office of Pramukh of Panchayat Samiti, Amdabad. (Ramesh Kumar Datta,J.) spal/