IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6249 of 2010 1. MEENA DEVI, W/O LATE RAMASHRAY SINGH, R/O VILLAGE - PARHARIYA , P.O - ORGABAD, SARAIYA, P.S.- AMJHOR, DISTRICT - ROHTAS ( PRESENTLY PRAMUKH - PANCHAYAT SAMITTEE, BLOCK-TILLAUTHA) 2. SHIV SHANKAR SAH, S/O RAMASHISH SAH, R/O VILLAGE P.O.- HURKA, P.S.- TILLAUTHU, DISTRICT- ROHTAS POST PRESENTLY UP PRAMUKH PANCHAYAT SAMITTEE, BLOCK - TILLAUTHU. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF PANCHAYAT RAJ, GOVT. OF BIHAR, PATNA. 2. THE SECRETARY, DEPARTMENT OF PANCHAYAT RAJ, GOVT. OF BIHAR, PATNA. 3. THE DIRECTOR, PANCHAYAT RAJ, BIHAR, PATNA. 4. THE STATE ELECTION COMMISSION, BIHAR, PATNA THROUGH ITS SECRETARY. 5. THE DISTRICT MAGISTRATE, ROHTAS. null null 6. THE SUB -DIVISIONAL OFFICER,DEHRI ON SONE ROHTAS. 7. THE BLOCK DEVELOPMENT OFFICER, TILLAUTHU, DISTRICT- ROHTAS. 8. HALIMA BIBI, W/O JAINUL KHAN, R/O VILLAGE - KERPA, P.O - RAMADIHRA, P.S - AMJHAUR, DISTRICT- ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE TILLAUTHU). 9. RAM SURESH SINGH, S/O MATHURA SINGH, R/O VILLAGE - JARGODIH, P.O - RAMDIHRA, P.S.- AMJHAUR, DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE, BLOCK- TILLAUTHU). 10. RAM LAKHAN PASWAN, S/O GANESH PASWAN, R/O VILLAGE- LOHRADIH, P.O - CHANDANPURA, P.S - TILLAUTHU, DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE, BLOCK - TILLAUTHU). 11. DIWAKAR SINGH, S/O DINESHWAR SINGH, R/O VILLAGE- ALI NAGAR, P.O - MAHARAJ GANJ, P.S.- TILLAUTHU,DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE, BLOCK- TILLAUTHU). 12. LEELAWATI DEVI, W/O MAHANGOO RAM, R/O VILLAGE & POST- ORANGABAD SARAIYA, P.S - AMJHOR, DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITEE ALSO CHAIRMAN OF SHIKSHA SAMITEE BLOCK-TILLAUTHU). 13. SHEOPUJAN SINGH, S/O SAHDEO SINGH, R/O VILLAGE-MEERA SARAY, P.O - TILLAUTHU, P.S - TILLAUTHU, DISTRICT- ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITEE, BLOCK TILLAUTHU AND CHAIRMAN OF PUBLIC HEALTH FAMILY WELFARE COMMITTEE AND CHAIRMAN OF PACS). 2 14. KALAWATI DEVI W/O SAHDEO CHOUDHARY , R/O VILLAGE & POST-SEWAHI,P.S.- TILLAUTHU, DISTRICT- ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE BLOCK-TILLAUTHU). 15. ANITA DEVI, W/O UNKNOWN, R/O VILLAGE-KAITHI, P.O- MADOKHARA, P.S.- TILLAUTHU, DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE BLOCK - TILLAUTHU). 16. BHUNESHWAR TIWARI, S/O UNKNOWN, R/O VILLAGE-JAMUHARA, P.O - INDRAPURI,P.S- TILLAUTHU, DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITEE, BLOCK-TILLAUTHU). 17. ASHMA KHATOON, W/O UNKNOWN, R/O MOHALLA- POST-TILAUTHU, DISTRICT- ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE , BLOCK - TILLAUTHU). 18. ANJU DEVI, W/O ASHOK RAY, R/O VILLAGE+ POST- RAMDIHRA,P.S- AMJHUAR, DISTRICT-ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE, BLOCK-TILLAUTHU). 19. ASHAPATI KUNWAR, W/O LATE KAMESHWAR SINGH, R/O VILLAGE-CHORIKUP, P.O- CHANDANPURA, P.S- TILLAUTHU, DISTRICT- ROHTAS (PRESENTLY MEMBER OF PANCHAYAT SAMITTEE, BLOCK-TILLAUTHU). ----------- For the Petitioner : Mr. Sanjay Kumar @ Manu For respondent no. 13 : Mr. Dhruv Mukherjee For Election Commission : Mr. Sanjeev Nikesh 2 11.5.2010 Petitioners are the Pramukh and Up- Pramukh of Tillautha Panchayat Samiti. They had filed this writ petition initially challenging the requisition of a special meeting for considering no confidence motion against them. During the pendency of the writ petition, the special meeting was fixed and further the special meeting was held and by proceedings dated 24.4.2010, which is Annexure 6 to one of the interlocutory applications, the resolution was passed. These subsequent events have also been challenged by the interlocutory application. Interlocutory applications are allowed. 3 The pleadings , submissions and the relief sought for in the interlocutory application are treated as a part of the main writ petition . Respondent no. 13 has appeared through Vakalatnama. Learned counsel states that he has instruction to appear for some other members as well. Having heard the parties, in my view, the writ petition can be disposed of at this stage itself and as such it has been heard with the consent of the parties. On behalf of the petitioners , it is first submitted that the requisition for the special meeting was undated. The argument is noted only for the purpose of rejection. A notice is effective upon service. Service not being denied, the date is irrelevant. It is next submitted that the notice refers to Section 43(3) of the Panchayat Raj Act and not Section 44(3) of the said Act, which invalidates the notice . Again the argument is noted only to be rejected. Section 44(3) (i) of the Bihar Panchayat Raj Act deals with special meeting for no confidence motion. Mere mentioning of wrong Section does not invalid the notice if the power and authority are there otherwise. We have to see the substance of notice and not the form thereof. It is merely an inadvertent mistake in the number. It does not go to the main issue as contained in the notice. This contention is accordingly rejected. 4 It is then submitted that the requisition was signed by nine members out of fourteen elected members. Petitioners pointed out that out of nine, four have given in writing that they have mistakenly signed the requisition not knowing its contents. Learned counsel for the petitioners states that therefore four persons’ signatures must be struck off from the requisition . That renders the requisition invalid. This again I note only to reject. As per Section 43(3) (i) of the Act, the requisition for a special meeting to consider no confidence motion has to be signed by at least 1/3rd of the elected members. Here the strength of the elected members is fourteen and 1/3rd thereof would be five. If we exclude four persons from the requisition, we have still left with five. Moreover, whether they support the requisition or not would depend on the voting in the House. Subsequently people changing the side, after the requisition is made, their fate would be decided in the House and not otherwise. I may only note, though not relevant, that when voting was done these four persons not voted. Now, we come to the substantial challenge as to the meeting. With reference to the notice, fixing the date , time and place of special meeting, it is to be seen that the Block Development Officer , who is the Executive Officer has noticed the Mukhiya of Gram Panchayat as well. Mukhiyas of Gram Panchayats are not the elected members to the Panchayat Samities though they are ex officio members of the Panchayat 5 Samities. Section 44(3) of the Act contemplates a special meeting of the elected members of the Panchayat Samiti. Mukhiyas are obviously foreigners to the said meeting. Thus calling Mukhiya in the said meeting itself was wrong. This wrong is compounded by the facts that in the meeting Mukhiyas were present. They considered different resolutions. Though present in the House while discussions were made with regard to the special resolution, they did not cast their votes but their presence is not in dispute. On behalf of respondent no.13, who was the Chairman elected of the special meeting and elected members of the Gram Panchayat, it is submitted that mere presence of Mukhiya in the meeting would not vitiate the meeting . In this meeting out of fourteen elected members, nine voted against the petitioner and five including the petitioner abstained. The question thus is: A meeting in which unauthorized persons are participating though ultimately not voted , is such a meeting valid ? In my view mere presence of unauthorized persons in the place of consideration and voting would vitiate the voting. We cannot speculate whether the presence of Mukhiya exerted some pressure or not, for their presence is unauthorized. Thus, even though nine members have voted against the petitioners, the voting has to be declared invalid on this count itself. This is not a matter of technicality but is a matter of substance. Learned counsel for the respondents then submits 6 that in terms of Section 44(3)(i),upon resolution being passed, it would be deemed that Pramukh and up-Pramukh have vacated the office. In view of the provisions there being vacancy, elections should be held to fill up the vacancy. In my view, the argument is misconceived. The deeming provisions came into operation upon a resolution being passed, which predicts the resolution invalid in law, as noted above. The resolution being invalid in law , there is no such a resolution. There being no such resolution, the deeming provisions creating vacancy does not come into play. On behalf of respondents, it is next contended that in view of this Court holding that the resolution was not legal, this Court should deem that there was no resolution at all. The consequence would be the House was free to reconvene to reconsider the matter in accordance with law. Here, I must accept that the submission of the learned counsel for the petitioners is well founded. If the resolution was taken up not in accordance with law then it is no resolution at all. It cannot be said that it is either in favour or against the resolution. No resolution in law exists. If that being so, then the House has to convene once again to consider the resolution. I, therefore, direct petitioner no.1, who is the Pramukh to fix a date for special meeting to consider no confidence against him and the Up Pramukh, petitioner no.2 within a period of fifteen days from today on the charges and allegations as made in the original 7 requisition and face the House accordingly. With the aforesaid observations and directions, the writ petition stands disposed of. singh ( Navaniti Prasad Singh, J.)