IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C.No.7149 of 2009 ------- 1. Rajendra Choudhary, 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 Block Panchayat Samiti, Marwan, District-Muzaffarpur. …..PETITIONERS. Versus 1. The State of Bihar. 2. The Director, Panchayat Raj, Bihar, Patna. 3. The District Magistrate, Muzaffarpur, District-Muzaffarpur. 4. The Sub-Divisional Magistrate, 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 to the petitioners, 8. Md. Aslam, son of not known to the petitioners, 9. Dwarika Sah, son of not known to the petitioners, 10. Nirmala Devi, wife of Dinesh Rai, 11. Prem Shankar Rai, son of not known to the petitioners, 12. Gayatri Devi, wife of not known to the petitioners, 13. Kailash Manjhi, son of not known to the petitioners, 14. Anjali Devi, wife of not known to the petitioners, 15. Usha Devi, wife of not known to the petitioners, 16. Veena Devi, wife of Digvijay Singh, 17. Nand Kishore Pandit, son of not known to the petitioners, 18. Daroga Lal Sah, son of not known to the petitioners, 19. Jai Kali Devi, wife of Anil Paswan, 20. Lalwati Devi, wife of Bachcha Lal Paswan, 21. Kiran Devi, wife of Upendra Sah, 22. Sabita Devi, wife of Rajesh Sahahi, 23. Hira Ram, son of not known to the petitioners, Respondent nos. 6 to 23 the elected members of Marwan Block Panchayat Samiti through the Block Development Officer-cum- Executive Officer, Marwan Block Panchayat Samiti, Marwan, P.O. Marwan, District-Muzaffarpur. ……Respondents. --------- For the petitioners : Mr. S.B.K.Manglam, Advocate. For respondent nos. : Mr. Surendra Kumar Singh, Senior Advocate. 6 to 16, 19 and 20 Mr. Nand Kishore Singh, Advocate. Mr. Om Nath Singh, Advocate. For respondent-State : Mr.D.P.Choudhary, Standing Counsel-II. ------ - 2 - P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN ------- O R D E R S.N.Hussain, J. This writ petition has been filed by the petitioners for a direction to the respondents-authorities to produce on record the minutes of special meeting of Marwan Block Panchayat Samiti dated 29.05.2009 and to quash the resolution of no confidence motion in the said meeting and also for quashing notice dated 17.06.2009 issued by the Sub-Divisional Officer, Muzaffarpur (respondent no.4) asking the elected members of the said Samiti to attend the meeting fixed on 30.06.2009 for electing new Pramukh and Up-Pramukh of the said Samiti. 2. It is not in dispute that Marwan Block Panchayat Samiti was elected in the year 2006 in which petitioner nos. 1 and 2 were elected as Pramukh and Up-Pramukh respectively. Subsequently on 31.12.2008 a notice was issued for holding the no confidence motion against the petitioners on the request of some of the members of the Panchayat Samiti and the said meeting was held on 07.1.2009, against which the petitioners filed CWJC no.252 of 2009 which was allowed by a bench of this Court vide order dated 18.03.2009 (Annexure-6) and notice dated 31.12.2008 and resolution of the no confidence motion in meeting dated 07.1.2009 were both quashed. However, in the said order it was kept open for one-third of the elected members of the Samiti to fix a fresh date for convening the special meeting for considering no confidence motion against the petitioners after complying with the requirements of Section 46(4) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as „the Act‟ for the sake of brevity), whereafter the Executive Officer was to issue notice and - 3 - the matter was to proceed in accordance with the provisions of the Act. Against the said order of the learned single Judge of this court, the petitioners filed L.P.A. No. 473 of 2009 which was rejected by a division Bench of this Court. 3. It transpires that in view of the said order of this court, 9 out of 20 members of the Samiti held a meeting on 19.05.2009 in which it was decided to convene meeting on 29.05.2009 for the special resolution of no confidence motion against the petitioners and, accordingly, letter dated 19.05.2009 (Annexure-7) was sent by them to the Block Development Officer-cum- Executive Officer directing him to send notices to all the members regarding the said meeting on 29.05.2009. In compliance of the said letter, the Executive Officer (respondent no.5) issued notice vide memo no.394 dated 19.05.2009 (Annexure-8) requesting all the members to attend the meeting on 29.05.2009 specifically for considering no confidence motion against the petitioners. Thereafter the aforesaid meeting was held on 29.05.2009 in which 13 out of 20 members participated and all of them passed no confidence motion against the petitioners. The resolution of the said meeting is annexed as Annexure-B to the second counter affidavit filed on behalf of respondent nos. 6 to 16 and 19 to 20. 4. The aforesaid impugned notice and resolution of no confidence motion have been challenged by the petitioners in this writ petition on the grounds that the reasons and charges on the basis of which no confidence motion was to be moved against the petitioners should have been clearly mentioned in the notice of the meeting called to consider the no confidence motion as per the provision of Section 44(3) (v) of the Act, but in the instant case the notice for no confidence motion dated 19.05.2009 (Annexure-8) clearly shows that neither the charges alleged by the members nor the reasons for no confidence motion against the petitioners were mentioned in the said notice. - 4 - Hence, learned counsel for the petitioners has claimed that the said impugned notice dated 19.05.2009 as well as the no confidence motion dated 29.05.2009 passed in the meeting held on the basis of the aforesaid notice were not legal and proper and were fit to be quashed. In this connection, he relied upon a decision of a division bench of this Court in case of Mina Yadav and another Vs. The State of Bihar, reported in 2010 (2) P.L.J.R.389 in which it was held that such notices must held to be bad because admittedly they did not contain the reasons and charges which were required in the notice as per the law and hence the notice and the consequent meeting were against the law and were fit to be quashed. 5. On the other hand, learned counsel for private respondent nos. 6 to 16 and 19 to 20 contested the claim of the petitioners and submitted that the majority of the members of the Samiti had lost confidence in the petitioners due to their illegal activities deterrent to the proper functioning of the Samiti. It was also claimed that the petitioners were fully aware of the charges levelled against them in the requisition of the members which was apparent from the earlier order of a bench of this court dated 18.03.2009 disposing of CWJC no.252 of 2009 and hence there was no occasion for mentioning all those reasons or charges again in the notice. It was also stated that in the said order this court had held that one-third of elected members would be free to fix a date of convening meeting for consideration of no confidence motion against the two petitioners after complying with the requirements of Section 46(4) of the Act. It was also stated that no where it was mentioned that the procedure prescribed under Section 44 was to be started. Hence, the procedure was to be started from the stage of Section 46(4) of the Act and, thus, there was no occasion for strictly following the procedure of Section 44 of the Act afresh. - 5 - 6. Learned counsel for the aforesaid respondents further submitted after the no confidence motion dated 29.05.2009 having passed against the petitioners a meeting was held on 30.06.2009 for electing new Pramukh and Up- Pramukh of the Samiti in which 20 members of the Samiti participated, including both the petitioners. The petitioners contested for the post of Pramukh and Up-Pramukh, but they were defeated and respondent nos. 14 and 7 were elected as Pramukh and Up-Pramukh respectively by majority of the members of the Samiti (Annexure-A to the counter affidavit of respondent nos. 6 to 16 and 19 to 20). It is thus claimed on behalf of the respondents that the petitioners having contested and lost in the subsequent election have got no locus to maintain this writ petition and they have also waived their right to raise any such claim before this court. Hence, he submitted that the writ petition is fit to be dismissed. 7. The contentions of learned counsel for the private respondents are fully supported by learned counsel for the State of Bihar and its authorities. 8. So far as the question of validity or otherwise of the impugned notice dated 19.05.2009 (Annexure-8) is concerned, it is quite apparent that no reasons/charges on the basis of which no confidence motion was to be moved against the petitioners were mentioned therein, although the provisions of law, namely Section 44(3) (v) of the Act specifically provided that “such reasons/charges, on the basis of which no confidence motion has to be moved against the Pramukh and Up-Pramukh shall be clearly mentioned in the notice of the meeting called to consider the no confidence motion”. The said provision of law having clearly not been complied, the said notice cannot be held to be legal and proper, especially in view of the decision of a division bench of this Court in case of Mina Yadav (supra). Furthermore, mere mentioning in the last portion of - 6 - order dated 18.03.2009 passed by a bench of this court in CWJC no.252 of 2009 (Annexure-6) that the requirement of Section 46(4) of the Act should be complied does not mean that the other statutory provisions would be ignored. Hence, it was the duty of the person concerned to comply with the statutory requirement of Section 44(3) (v) of the Act. 9. The aforesaid legal proposition cannot be doubted, but thereafter a significant factual matrix has arisen due to the act of the petitioners themselves which has to be considered and appreciated in accordance with the specific provisions of law before arriving at any final conclusion. The said fact is that although the petitioners did not participate in the no confidence motion held against them by majority of the elected members of the Samiti in their meeting dated 29.05.2009 (Annexure-B to the counter affidavit filed on behalf of respondent nos. 6 to 16 and 19 to 20), but when a subsequent meeting dated 30.06.2009 (Annexure-A to the counter affidavit filed on behalf of respondent nos. 6 to 16 and 19 to 20) was held by all the members of the Samiti for electing new Pramukh and Up-Pramukh of the said Samiti, the petitioners not only participated in the meeting, but also contested for the post of Pramukh and Up- Pramukh and in the meeting they lost and respondent nos. 14 and 7 were respectively elected as Pramukh and Up-Pramukh. Only when the notice of the said meeting for election of Pramukh and Up-Pramukh was served upon all the members of the Samiti, the instant writ petition was filed by the petitioners. 10. The aforesaid fact has a very serious bearing on the fate of this case as even if the authority concerned had not followed the statutory direction while issuing notice of no confidence motion upon the petitioners and others, the question would be as to what would be the consequence of such violation of the provisions of law vis-à-vis the subsequent conduct of the petitioners themselves. - 7 - 11. The petitioners have laid much stress on Sections 44 and 46 of the Act, but by a bare reading of the said provisions, it is amply clear that the said provisions provide a protective umbrella for the elected candidates not involving any public interest, hence any contravention of the said provision would not contravene any public policy. Thus, in the aforesaid facts and circumstances, there being no involvement of any public interest or contravention of any public policy, non-compliance of the provision of Section 44(3)(v) of the Act merely affects the petitioners giving them a right to challenge the said notice due to the above mentioned illegality. But from the facts and circumstances of this case it is quite apparent that the petitioners themselves waived their right to challenge the said notice by not only taking part in the subsequent election but also contesting it as candidates for the post of Pramukh and Up-Pramukh in the election held on 30.06.2009. 12. Waiver is a rule of conduct and would rise due to intentional and voluntary relinquishment of an existing legal right or a conduct from which it can be inferred that the said right or privilege has been relinquished. In this connection, reference may be made to a decision of the Apex court in case of Basheshar Nath Vs. Commr of Income-tax, Delhi , reported in A.I.R. 1959 SC 149. In the instant case, the petitioners were removed from the post of Pramukh and Up-Pramukh in the no confidence motion in the meeting dated 29.05.2009, but subsequently they contested for fresh election for the post of Pramukh and Up-Pramukh on 30.06.2009, hence, there was conscious relinquishment of the advantage of the provisions of the Act which clearly caused waiver of any right which they could claim under the said Act. In this regard, a reference may be made to a decision of the Supreme Court in case of Pulin Behari Lal Vs. Mahadeb Dutta & Ors, reported in 1993(1) SCC 629. - 8 - 13. The aforesaid settled principle of law, if applied to the instant case, clearly shows without any doubt that the right of the elected candidates arising out of any statute can be waived by their express conduct. As such this court cannot be oblivious of the fact that the petitioners had participated in the meeting dated 30.06.2009 by taking a chance and majority of the Samiti voted against them. Hence, there cannot be any justification for interference in the said matter in exercise of the extra-ordinary and equitable jurisdiction of this court under Articles 226 and 227 of the Constitution of India. In this regard, reference may be made to a decision of a division bench of this court in case of Smt. Shamshad Khatun Vs The State of Bihar & Ors., reported in 2010 (1) P.L.J.R.929. 14. Had the petitioners not participated in the election of 30.06.2009 and even if they had participated in the election after raising a clear protest making it clear that it was without prejudice to their claims and was subject to the result of the writ petition, the matter would have been different, but the petitioners did not do any such act, rather they participated in the elections unconditionally and took a chance, hence now having been defeated in that election they cannot be legally allowed to question the earlier resolution of no confidence motion against them by majority of the members of the Samiti. In this regard, reference may be made to a decision of this court in case of Sanjay Singh Som Vs. The State of Bihar & Ors, reported in 2002 (3) P.L.J.R.589. 15. In the said circumstances, the petitioners having waived their right by their clear and unambiguous conduct, they have been now left with no locus to challenge the impugned notice and no confidence motion and no writ of certiorari can be granted in a case where there is such negligence or omission on the part of the petitioners to assert their right as taken in conjunction with the - 9 - specific circumstances of this case. In this regard, reference may be made to a decision of the Supreme Court in case of Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service Amravati and Ors., reported in A.I.R.1969 SC 329. 16. The facts of this case are completely different to the facts involved in the case of Mina Yadav (supra) relied upon by learned counsel for the petitioners, due to the specific points of waiver and locus involved in the instant case. Hence the aforesaid case law is not applicable to the instant case. 17. In view of the aforesaid facts and circumstances as well as the settled principles of law, this writ petition filed by the petitioners cannot be legally entertained and is, accordingly, dismissed. ( S.N.Hussain,J.) Patna High Court. Dated, 17th August, 2010. N.A.F.R. Sunil.