IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1480 of 2009 1. BALCHAND RAJBANSI S/O SHYAM RAJBANSI VILL- KHARONJH, P.S. SIRDELA, DISTT. NAWADAH 2. BRAMHADEO PRASAD S/O SOMER PRASAD VILL- KOSAMBHA, P.S. SIRDELA, DISTT. NAWADAH 3. DILIP KUMAR S/O CHANDRIKA PD. SINGH VILL- AMHADI, P.S. SIRDELA, DISTT. NAWADAH … Petitioners (Nos. 1, 3 & 8)-Appellants Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPTT. OF PANCHAYAT RAJ, BIHAR, PATNA 3. THE DISTRICT MAGISTRATE CUM DISTRICT ELECTION OFFICER (PANCHAYAT), NAWADAH 4. THE DISTRICT PANCHAYAT RAJ OFFICER, NAWADAH 5. THE EXECUTIVE OFFICER CUM BLOCK DEVELOPMENT OFFICER, SIRDALLA, DISTT. NAWADAH 6. THE STATE ELECTION COMMISSION, BIHAR, PATNA THROUGH THE SECRETARY, STATE ELECTION COMMISSION, BIHAR, PATNA 7. URMILA DEVI W/O PREMAN CHOUDHARY @ PREM CHAND CHOUDHARY VILL, P.O. & P.S. SIRDALA, DISTT. NAWADAH 8. URMILA DEVI W/O JITENDRA CHOUDHARY VILL- BARDAHA, P.S. SIRDALA, DISTT. NAWADAH 9. RAJENDRA RAM S/O RAMESHWAR RAM VILL- KHARONDH, P.S. SIRDALA, DISTT. NAWADAH 10. NILU DEVI W/O MANOJ SINGH VILL- BARGAON, P.S. SIRDALA, DISTT. NAWADAH 11. RAM BALAK SINGH S/O LACHCHO SINGH VILL- KALAUNDA, P.S. SIRDALA, DISTT. NAWADAH 12. MD. MOMIN S/O MD. MOKIM VILL- PARHADAWAR, P.S. SIRDALA, DISTT. NAWADAH 13. AJMERI KHATOON W/O MERAJ AHMAD VILL- PRATAPPUR, P.S. SIRDALA, DISTT. NAWADAH 14. LALO PRASAD TANTI S/O LATE BADRI TANTI VILL- PIRATTA, P.S. SIRDALA, DISTT. NAWADAH 15. SUSHMA DEVI W/O RANJAN KUMAR VILL- KUSHAHAN, P.S. SIRDALA, DISTT. NAWADAH 16. ARUNA DEVI W/O MAHENDRA PD. SINGH VILL- AMOKHARI, P.S. SIRDALA, DISTT. NAWADAH 2 17. KAMLA DEVI W/O BRAHMADEO RAJBANSI VILL- BHELWATAUR, P.S. SIRDALA, DISTT. NAWADAH 18. KANTI DEVI W/O SURESH PRASAD VILL- SURJUDIH, P.S. SIRDALA, DISTT. NAWADAH 19. PARIA DEVI W/O RAM CHANDRA RAJBANSI VILL- PACHAMBA, P.S. SIRDALA, DISTT. NAWADAH 20. RAM CHANDRA RAJBANSI S/O MUNNA RAJBANSI VILL- CHOWGAON, P.S. SIRDALA, DISTT. NAWADAH 21. SARITA DEVI W/O SANTOSH KUMAR VILL- KASIYADIH, P.S. SIRDALA, DISTT. NAWADAH 22. GAYATRI DEVI W/O RAM BRIKSHA MANJHI VILL- KRIPAKURHA, P.S. SIRDALA, DISTT. NAWADAH 23. SARASWATI DEVI W/O BAGESH RAJBANSI VILL- AGONA, P.S. SIRDALA, DISTT. NAWADAH 24. ARJUN SAO S/O BALDEO SAO VILL- CHAMOTHA, P.S. SIRDALA, DISTT. NAWADAH … Petitioners- Respondents 2nd set ----------- For the appellants: Mr. Sidhendra Nr. Singh, Adv. For the S.E.C. : Mr. R.S.Pradhan, Sr.Adv. For the State : Mr. H.S.Sundaram, A.C. to G.A.4 ------------ 2. 23.4.2010 Questioning the defensibility to the order dated 8.10.2009 passed by the learned Single Judge in C.W.J.C. No. 13050/2009 the present appeal has been preferred under Clause 10 of the Letters Patent. 2. Sans unnecessary details the facts which are essential to be exposited are that the appellants- petitioners (hereinafter referred to as „the appellants‟) invoked inherent jurisdiction of this Court for issue of a writ of mandamus commanding the respondent authorities especially the Executive Officer cum Block Development Officer, Sirdala, District Nawadah to 3 convene the special meeting as provided under section 44(3)(i) of the Bihar Panchayat Raj Act. 2006 (for brevity „the Act‟), inasmuch as a requisition, contained in Annexure 1 to the writ petition, being signed by number of members of the Panchayat Samiti had put forth the requisition for convening such a meeting. The Executive Officer as is perceptible declined to convene a meeting. 3. It was contended before the learned Single Judge that the general election was held for Sirdala Panchayat in April, 2006. After the members were elected as per provisions contained in the Act they elected one Saraswati Devi, wife of Bagesh Rajbansi, Pramukh. A vote of No Confidence Motion was mooted against her on 27.7.2008 and the same was successful. As a vote of No Confidence was passed the first elected Pramukh got unseated and the post of Pramukh fell vacant under the scheme of the Act. A new Pramukh was to be elected and accordingly, an election was held on 11.8.2008 wherein Urmila Devi, wife of Jitendra Choudhary was elected as Pramukh. 4. After she assumes office a requisition was 4 filed on 14.8.2009 for convening a special meeting to have a debate on No Confidence Motion on the foundation that the Pramukh had lost faith of the house. The Executive Officer declined to do so and, therefore, the writ petition was filed. 5. The learned Single Judge has referred to the provision contained in section 44 of the Act and came to hold that the action taken by the District Panchayat Raj Officer, Nawadah in not entertaining No Confidence Motion cannot be found fault with as the requisition was filed on 14.8.2009 before expiry of period of two years on assumption of office by Urmila Devi, the second Pramukh. 6. Being of this view the learned Single Judge dismissed the writ petition. 7. We have heard Mr. Sidhendra Nr.Singh, learned counsel for the appellants and Mr. Ramashankar Pradhan, learned Senior counsel for the State Election Commission. 8. It is submitted by the learned counsel for the appellants that the learned Single Judge has not construed and interpreted section 44 of the Act, 5 inasmuch as the emphasis led on the term „their‟ as implied in section 44(3)(ii) is in apposite as the same has nothing to do with the individual in question but relates to the office. Elaborating the said submission it is contended by him that a vote of No Confidence can be moved any time after expiry of two years of the tenure of the Panchayat Samiti and it has nothing to do with the person who occupies the post in question. It is highlighted by him if the direction that has been passed by the learned Single Judge is allowed to remain and not dislodged, then a person, who is elected after the first Pramukh is removed by the vote of No Confidence or by any kind of natural catastrophe, then he would get leverage and do certain things which would adhere in jeopards to democratic purpose. 9. Mr. Pradhan, learned Senior counsel appearing for the State Election Commission, contended, inter alia, that the provision is clear and ambiguous, nothing should be read into it and the learned Single Judge has appositely interpreted the same, inasmuch as No Confidence Motion is always mooed against the individual and not against the office. It is urged by him 6 that the said provision has its sanctity as the legislature has thought of not creating any kind of instability in the management of affairs of the Panchayat Samiti which operates at the grass root level of democracy. 10. At the very out set we may state that factual assertions are not in dispute. The question that emerges for consideration whether a vote of „No Confidence Motion‟ would have mooted on the basis of requisition sent by the present appellants to the District Panchayat Raj Officer. In this context we may refer to profit to section 44 of the Act which reads as follows: “44.Resignation and Removal of Pramukh and Up-Pramukh- (1) The Pramukh may resign his office by writing under his hand and addressed to the Subdivisional Magistrate and the Up-Pramukh may resign the office by writing under his hand addressed to the Pramukh and in the absence of Pramukh to the Subdivisional Magistrate and the said office shall be deemed to be vacant on the expiry of seven days from the date of such resignation unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Subdiviaional Magistrate or the Pramukh, as the case may be. (2) A Pramukh or Up-Pramukh of the Panchayat shall vacate office if he ceases to be a member of the Panchayat Samiti. (3) (i) A Pramukh/ Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the Panchayat Samiti at a meeting specially convened for the purpose. The requisition for such a special meeting shall be presented to the Pramukh in writing with 7 a copy to the Executive Officer of the Panchayat Samiti, by not less than one third of the total number of members elected directly from the territorial constituencies of the Panchayat Samiti. The Executive Officer shall immediately bring the requisition to the notice of the Pramukh. The Pramukh shall convene such meeting on a date falling within 15 days of such requisition. If the Pramukh fails to call the special meeting, the Up- Pramukh or one third of the total number of directly elected members may fix a date for such meeting and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting. The Executive Officer shall necessarily issue such notice in time and convene the meeting. No such meeting shall be postponed once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion. (ii) No confidence motion shall not be moved against the Pramukh or the Up-Pramukh within the first two year period of their tenure. (iii) If the motion of no confidence brought against the Pramukh or the Up-Pramukh or both is once rejected, no fresh motion of no confidence against the Pramukh or the Up- Pramukh or both, as the case may be, shall be brought before the Panchayat Samiti within a period of one year from the date of such rejection of the motion. (iv) No confidence motion against the Pramukh or Up-Pramukh or both, as the case may be, shall not be brought during the last six months of the term of the Panchayat Samiti as mentioned in section 39(1) of this Act. (v) Such reasons/charges, on the basis of which no confidence motion has to be moved against the Pramukh or Up-Pramukh, shall be clearly mentioned in the notice of meeting called to consider the no confidence motion. (vi) As soon as the meeting called under this section begins, the presiding member of this meeting shall read out the motion on which the meeting has been called to consider before the members present and declare it open for discussion. Any discussion on the motion shall not be adjourned. (vii) During discussion, opportunity shall be given to the Pramukh/ Up-Pramukh against whom no confidence motion has been moved for his defence before the Panchayat Samiti. The 8 motion shall be put to vote on the same day after discussion and shall take place by secret ballot in the prescribed manner. (viii) In case of no confidence motion against a Pramukh, the meeting shall be presided by the Up-Pramukh; in case of motion against Up-Pramukh by the Pramukh and in case of motion against both Pramukh and Up-Pramukh, by any member elected from among the members of the Panchayat Samiti present in the meeting. In case of the post of Up-Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Pramukh or the post of Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Up-Pramukh, as the case may be, shall be presided over by any member elected from amongst the directly elected members from the territorial constituency of the Panchayat Samiti present in the meeting. (4) Without prejudice to the provisions under this Act, if in opinion of the Commissioner having territorial jurisdiction over the Panchayat Samiti, a Pramukh or an Up-Pramukh of Panchayat Samiti absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Commissioner may, after giving the Pramukh or Up-Pramukh, as the case may be, a reasonable opportunity for explanation, by order, remove such Pramukh or Up-Pramukh, as the case may be, from office; The Pramukh or Up-Pramukh so removed shall not be eligible for re-election as Pramukh or Up-Pramukh of Panchayat Samiti during the remaining term of office of such Panchayat Samiti; Appeal shall lie before the member, Board of Revenue against the order of the Commissioner. (5) A Pramukh or Up-pramukh removed from his office under sub-section (4) may also be removed by the Government from membership of the Panchayat Samiti.” 9 11. We have reproduced the entire provision to appreciate text and context of the Act. On a reading of sub-section 3(ii) which postitulates that No Confidence Motion shall not be moved against the Pramukh and Up- pramukh within the first two years period of their tenure. It is beyond any shadow of doubt that the initiation of No Confidence Motion has nexus with the tenure of Pramukh and Up-pramukh. The tenure of Panchayat Samiti has been stipulated in section 39 of the Act which reads as follows: “39. Duration of Panchayat Samiti - (1) Every Panchayat Samiti, save as otherwise provided in this Act, shall continue for a term of five years from the date appointed for its first meeting and no longer. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of Panchayat Samiti which is functioning immediately before such amendment, till the expiration of its duration specified in sub-section (1). (3) The election to constitute a Panchayat Samiti shall be completed in the following manner- (a) before the expiry of its duration as specified in sub-section (1). (b) In case of dissolution, before the expiration of a period of six months from the date of such dissolution; Provided that where the remainder of the period for which the dissolved Panchayat Samiti would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat Samiti for such period. (4) A Panchayat Samiti constituted consequent upon the dissolution of an earlier Panchayat Samiti before the expiration of its duration, shall continue only for the remainder of the period for which the 10 dissolved Panchayat Samiti would have continued under sub-section (1), had it not been so dissolved.” 12. The term „tenure‟ has its own significance and sacrosanctity. To put it another way, if a the Pramukh or a Up-pramukh is elected in the midst of the term he can only enjoy the residuary period of term and cannot claim that he would continue for the entire period from the date of his election. That is the tenure of the office. As far as No Confidence Motion is concerned, it has to be individualistic in nature. No Confidence Motion is always mooted against the person. If the entire scheme of the Act is scanned the Pramukh or Up- pramukh against whom a vote of No Confidence Motion is mooted he has the right to address the house and hence, the period of seven days notice is given. He can explain to the house that the vote of No Confidence Motion need not be passed against him. The legislature in its wisdom has fixed a period of two years so that the Panchayat Samiti can function with stability and in a democratic set up .The submission of the learned counsel for the appellants that their tenure has to be construed as the tenure of the Panchayat Samiti leaves to us un- 11 Surendra/ impressed. 13. In our considered opinion, when the second Pramukh is elected vote of No Confidence cannot be moved or mooted against him within a period of two years. That will be in consonance with the principles of statutory interpretation and, more so, when the language is absolutely clear and ambiguous. The legislative intendment as is evident pertains to stability. To give an example there cannot be a vote of No Confidence at the whim and fancy of the members as that would corrode basic essence of grass root democracy. It is interesting to note that Sarswati Devi, who was removed from the post of Pramukh after being mooted out by a vote of No Confidence, has singed the requisition and preferred the writ petition. Thus, we are of the indubitable conclusion that the interpretation placed by the learned Single Judge is absolutely impeccable and there is no justification to interfere with the same. 14. In the result, the appeal stands dismissed without any order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) 12 13 14 15 16 17 18 19 20