IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15843 of 2007 SWEETA DEVI Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: Mr. S.B.K.Manglam, Advocate For Respondent no.4:Mr. B.P.Pandey, Sr.Advocate Mr. P.K.Sinha, Advocate For the State: Mr. R.K.Singh J.C. to G.A.VI ---------- 4 14 .8.2008 Petitioner wants quashing of the order dated 8.11.2007 passed by Sri K.D.Sinha, learned Member Board of Revenue passed in Panchayat Raj Appeal No. 32 of 2007. By virtue of this order the learned Member has been pleased to set aside the order dated 13.6.2007 passed by the Divisional Commissioner, Bhagalpur which was an order under purported exercise of power conferred under section 44(4) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act). The order of the Divisional Commissioner was for removal of respondent no.4 as a Parmukh of the Panchayat Samiti for having incurred disqualification due to not holding meeting within the time frame fixed under section 46(3) of the Act. Based on the complaint made by the petitioner and supported by other members of the Panchayat Samiti a proceeding under section 44( 4) of the Act was initiated before the Divisional Commissioner. The primary allegation made in the complaint was that in terms of section 46 (1) the mandate of law is that a meeting of the Panchayat Samiti must be convened in such a manner that no more than two months shall elapse between one meeting to - 2 - other. According to the allegation the first meeting after election of the Panchayat Samiti was held on 31.7.2006. Thereafter the second meeting had been convened only on 30.4.2007. The omission on the part of the respondent Sunaina Devi, Pramukh in not holding meeting in terms of the Act satisfied the requirement of section 44 (4) of the Act of “willful omission”. Before the Divisional Commissioner rival submissions were made that more than two months had elapsed between the first meeting held on 31.7.2006 and the second meeting on 30.4.2007 and there was gross violation of section 46 (3) of the Act. Submission on behalf of respondent no.4 was that there was not willful omission on her part to hold meeting. Things were beyond her control and she was left helpless to run the affairs of the Panchayat because under section 60 of the Act there is an Executive Officer of the Panchayat and it is the duty and responsibility of the Executive Officer, in this case the Block Development Officer, to convene a meeting, hold one and record the decision of the proceeding. After holding of the first meeting many things had intervened like long vacation of Durga Puja and Chhath followed by a model code of conduct being in its place as well as the B.D.O. not being available due to transfer for a long period of time. When new incumbent joined the office on 20.4.2007 on a regular basis, meeting was called on 30.4.2007 and the same was held. According to the respondent therefore the above fact and the actual state of affairs by no stretch of - 3 - imagination can lead a person to conclude that there was willful omission on her part to perform her duty. Petitioner made his own submission. The contention before the Divisional Commissioner was that there cannot be a better example of willful omission as contemplated under section 44 (4) of the Act than the present case. The reasons and the explanations offered by respondent no.4 are only specious and also shows how ignorant she is about the law and her powers. The duty and power of the Parmukh has been indicated in section 42 of the Act. Reading of the same would show that it is the Parmukh who has to convene and conduct the meeting. It is the Parmukh who has the power of supervision. The elected body created under the statute in terms of 73rd Constitutional Amendment cannot be held to ransom and make it non-functional because the B.D.O. is not available or is non-cooperative. After a detailed analysis of the facts and submissions, the Divisional Commissioner in his order dated 13.6.2007 reached a conclusion that respondent has suffered disqualification under section 44 (4) of the Act and she was directed to be removed from the office. This order therefore came to be assailed in appeal filed on behalf of respondent no.4 before Board of Revenue. Learned Member Board of Revenue set aside the order of Divisional Commissioner on the ground that there was no willful omission on the part of the petitioner (respondent no.4) because the B.D.O. of Shambhuganj Block while holding first - 4 - meeting on 31.7.2006 did not prescribe any date for the next meeting and the next meeting has been held when an officer took over the office of B.D.O. on regular basis. Absence of B.D.O. on regular basis from the Block, according to the Member Board of Revenue, was the primary reason for not holding meeting. If a breach of section 46(1) of the Act was committed, in his opinion, it did not amount to willful omission on the part of respondent no.4, Sunaina Devi. The present petitioner therefore has challenged the said order passed by the Member Board of Revenue. The rival submissions on behalf of two contested parties are on similar lines and stand which was taken before the Divisional Commissioner and or before the Member Board of Revenue. But some more documents have been brought on record by both the parties for reassertion of their stand. Learned counsel appearing on behalf of the petitioner submits that it is misnomer to contend that an elected body of the three- tier government can be made nun-functional and helpless because the so called Executive Officer, in this case the B.D.O., is not available on regular basis. If what has been urged by the respondents before the Member Board of Revenue is accepted then the whole object of 73rd Amendment of the Constitution and the corresponding legislation made by the State Government shall be totally frustrated. Even if there is an elected body in place representing the aspiration of the people, they are of - 5 - no consequence because for months together they have to sit idle because the B.D.O. is not willing to call meeting for whatever reason. His contention is that such an interpretation to the Scheme and the Act will do a great disservice not only to the people but also the Constitution of India. According to him in face of the provision contained under section 42 read with section 61(2) of the Act which is the power conferred upon Executive Officer it can by no stretch of imagination be urged that it is the Executive Officer who shall control the affairs of the Panchayat in such a way that it can be made nun-functional by not convening a meeting. The mandate of law under section 42 is otherwise. It is the Parmukh who has to convene, decide and conduct meeting. B.D.O. is only Secretary to the Panchayat Samiti. It has however been categorically stated that at no point of time the office of the B.D.O. was totally vacant. There were Incharge B.D.O. even after transfer of regular incumbent. Evidence on record does establish this fact. Petitioner has also pointed out that the so called model code of conduct dated 3.10.2006 has no application to the Panchayat in question because the same does not fall within the territorial jurisdiction of Bhagalpur Parliamentary Constituency for which bye-election was held. The model code of conduct plea is only a cover up for inaction by the private respondent. If the various provisions of the Panchayat Raj Act are read together there is only one conclusion that the mandatory - 6 - meeting under section 46(1) of the Act must be convened, the body must take decision in the interest of Panchayat and deliver goods and fulfill the wish of the people they claim to represent. No amount of explanation offered by the private respondent will take her out of the mischief of section 44 (4) of the Act. According to petitioner therefore, the Divisional Commissioner’s order is correct in all respect and the Member Board of Revenue has committed error of law by interfering with the same. Learned Senior counsel appearing on behalf of respondent no.4 contends that section 46 (1) of the Act is not mandatory but only directory. This Court therefore should read down the said section to mean and hold it to be directory. His other submissions are based on a reading of sections 60 and 61 (2) of the Act which deal with powers of the Executive Officer and reiterates the position that in absence of the Executive Officer for the reasons indicated the blame cannot lie on her door step. The inaction on the part of the Executive Officer or the B.D.O. will fasten no liability upon his client. He also relies on a decision to reinforce his argument. The Court has gone through the decision relied on by the respondents rendered in the case of Yashbant Kumar & Anr. Vrs. The State of Bihar & Ors. reported in 2005(2) PLJR 464 and finds that the facts or law laid therein more so with respect to paragraph -6 of the decision has no bearing to the present dispute. - 7 - It does not assist respondent no. 4 in her submission. The Court does not find any merit in the contention of the private respondent that section 46 (1) of the Act is directory when the legislatures have used the expression “shall” in the said section. There seems to be a forceful reason behind such a provision. There cannot be long period of inactivity by elected bodies like a Panchayat Samiti. From the rival contentions on facts and law the Court can only reach one conclusion that there has been total abdication of power which was to be exercised by the private respondent. Either she is ignorant of law or she is not well versed with the requirement of the office. Shifting the blame or burden for her non-performance cannot extract her from the situation she has created for herself. Merely holding the public office and getting elected to the post is not the object of election. Every office invites an incumbent to shoulder responsibility for which such office has been created. Absence of minions of a State, which was not the fact in the present case, cannot make an elected body handicapped to the extent that holding of regular meetings and decision making goes into a limbo. Every elected body has a life span and time frame within which they must deliver to the people who have imposed faith in them. If they are incapable to do so then the Court or law will not help them in holding on to the chair and position. The Court has no hesitation in recording after perusal of the facts and provisions of law that there has been - 8 - willful omission on the part of the private respondent in not holding meeting for more than nine months which has earned her removal from the post under section 44(4) of the Act. The order of Divisional Commissioner seems to be in conformity with law and the Member Board of Revenue has committed gross error by interfering with the same. The impugned order dated 8.11.2007 passed by the Member Board of Revenue cannot stand and the same is quashed. The order dated 13.6.2007 passed by the Divisional Commissioner is restored. This writ application is accordingly allowed. RPS (Ajay Kumar Tripathi,J.)