IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13088 of 2008 DHANESHWAR BAITHA Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: Mr Bipin Kumar Singh,Advocate Mr. Krishna Kant Singh, Advoate Mr. Shyama Kant Singh,Advocate For the State: Mr.Baidya Nath Kumar, J.C. to S.C.18 For the Respondents:Mr. Sharda Nand Mishra, Advocate Mr. Dhananjay Kumar Gupta, Advocate. --- 7. 5.12.2008 Heard learned counsel for the parties. The petitioner seeks a declaration that the notice dated 5.8.2008 as contained in Memo No.1208 issued by the Executive Officer, Panchayat Samiti, Chakiya for convening the special meeting for considering no confidence motion against the petitioner is illegal and not in accordance with the Bihar Panchayat Raj Act, 2006 and further to hold and declare that the resolution of no confidence motion passed on 19.8.2008, pursuant to the said notice is illegal and void ab initio and for consequential reliefs. The admitted facts of the case are that the requisition addressed to the Block Development Officer-cum-Executive Officer of Chakiya Panchayat Samiti was presented by the directly elected members through the Executive Officer. The Executive Officer thereafter on 31.7.2008 wrote to the petitioner Pramukh to fix a date for convening a special meeting. However, even before the petitioner could act within the time permitted by the Act, the Executive Officer himself fixed the date of the special meeting by issuing notice dated 5.8.2008 on 19.8.2008 at 11 A.M. Thereafter, in the said special meeting no confidence motion was passed. 2 Learned counsel for the petitioner submits that in terms of Section 44 (3) (i) of the Bihar Panchayat Raj Act, the requisition is required to be addressed to the Pramukh and only a copy thereof is to be sent to the Executive Officer. Thereafter the Act enjoins the Pramukh to fix the date for the special meeting within 15 days from the date of the requisition. It is submitted that the requisition not being addressed to the Pramukh is in complete violation of the provisions of the Act and thus the matter could not have proceeded any further. A further gross illegality was committed by the Executive Officer when he himself fixed the date of the special meeting on 5.8.2008 after having brought the matter to the notice of the petitioner on 31.7.2008 without even giving the required statutory period to the petitioner to take appropriate action in the matter. Lastly, it is contended by learned counsel for the petitioner that under Section 44 (3) (v) of the Act, reasons/charges for no confidence motion have to be clearly stated in the notice but the notice does not contain any such reasons/charges. For all the three reasons, learned counsel submits that the entire proceedings starting from the requisition, the notice and the decision taken in the special meeting on 19.8.2008 are required to be quashed and set aside as void and illegal. Learned counsel for the respondents, on the other hand, argues that the petitioner having participated in the special meeting for considering no confidence motion against the Up- Pramukh, he would be deemed to have waived his rights and thus having lost during the no confidence motion, he cannot be permitted to challenge the decision 3 arrived at in the said meeting. It is further submitted that the requisition itself specifies the reasons/charges for which no confidence motion is required to be carried out and thus the same would be deemed to be incorporated in the notice. On a consideration of the rival submissions, this Court finds substantial force in the submissions of learned counsel for the petitioner and none in the submission of learned counsel for the respondents. It is a mandatory requirement of the Act that the requisition for convening a special meeting for considering no confidence motion must be presented to the Pramukh with only a copy thereof to the Executive Officer who is, thereafter, also required to send the same before the Pramukh for obtaining necessary orders.It is, thus, evident that the requisition itself ought to be addressed to the Pramukh himself and not to the Executive Officer. Further it is for the Pramukh to fix the date of the special meeting within the statutory period and it is only upon his failure to do so within the statutory period that the Executive Officer is required to act in the matter that too on the directions either of the Up- Pramukh or 1/3rd of the directly elected members who, thereafter, have got the power to fix the date of the special meeting and there is no provision that the Executive Officer himself will fix the date of the special meeting. It is evident that the Executive Officer has exceeded his jurisdiction in acting in the manner he has done in the present matter and thus notice at its very inception is also contrary to the Scheme of the Act. The provision regarding reasons/charges being clearly 4 stated in the notice has also been held by this Court to be mandatory and the absence of the same in the notice makes the notice illegal and void. The submission of the respondents regarding the waiver of the rights of the petitioner has no legs to stand in view of the fact that it is not the right of the petitioner that is involved, rather the statutory procedure for convening the special meeting for considering no confidence motion is involved. The presentation to the Pramukh is a statutory requirement and if the statutory procedure is not followed then the same is tainted and not fit to be acted upon. Secondly, the fixing of the date of the special meeting again is not stricto sensu the right of any person, rather it is the duty of the Pramukh to fix the date of the special meeting for considering no confidence motion within a period of 15 days from the date of the requisition, complying with the other requirement of Section 46 (4) of the Act regarding clear seven days notice. Hence, there is no question of any waiver of the said statutory duty by any one. Lastly, the fixing of the date of the special meeting on the failure of the Pramukh becomes the duty of the Up- Pramukh or 1/3rd of the directly elected members and the Executive Officer is merely required to carry out the direction issued by either the Up- Pramukh or 1/3rd of the directly elected members and he cannot assume jurisdiction to issue the notice himself. In case of such assumption of jurisdiction, the notice itself becomes tainted and bad being contrary to the statutory requirement and there can be no question of waiver of any such wrongly issued notice by the Executive Officer in the special meeting for discussing no confidence motion. 5 The above proposition also follows from the Scheme of the Act under which the Pramukh can be removed only through a no confidence motion passed by a majority of the total number of the directly elected members of the Panchayat Samiti. This means that the motion is to be supported by more than half of directly elected members. In such circumstances, the presence or even absence of any directly elected member from the meeting is wholly irrelevant. Such a meeting does not require any quorum. The motion itself must be carried by a majority of the total number of directly elected members of the Panchayat Samiti and not merely by a majority of those present and voting. Hence, on that count also, there can be no question of any waiver of right by any one by the mere fact of participation of anyone, since even an absence from the meeting has the same effect as actually voting against the motion. The submission regarding charges/ reasons being deemed to be incorporated in the notice or requisition is also totally contrary to the statutory scheme. It is evident from a perusal of the notice that the requisition was not annexed to the same. The notice is required to be sent to all the directly elected members of the Panchayat Samiti and the reasons/charges are to be considered during discussion on the no confidence motion and there is no presumption that they would have seen the requisition on their own. The statutory provision requires to give reasons/charges in the notice, which should form a part thereof and, therefore, the reasons/charges should either be contained in the notice or in the requisition if annexed to the notice. 6 There can be no question of any automatic or deemed incorporation as claimed by learned counsel for the respondents. In the light of the aforesaid discussions, the writ application is allowed, the requisition served upon the Executive Officer on 31.7.2008, the notice dated 5.8.2008 and the proceedings of the special meeting convened on 19.8.2008, including the resolution of no confidence motion passed therein, are all held to be void, illegal and non est in the eye of law. VPS ( Ramesh Kumar Datta,J.)