IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14319 of 2010 1. SANTOSH KUMAR SINGH S/O SHRI RAMANAND SINGH R/O VILL.- KHOKSHA KALYAN, P.O.- KHOKSHA BUJURG, P.S.- DESHRI, DISTT.- VAISHALI Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, VAISHALI AT HAJIPUR 3. THE DISTRICT PANCHAYAT RAJ OFFICER, VAISHALI AT HAJIPUR 4. THE BLOCK DEVELOPMENT OFFICER-CUM-EXECUTIVE OFFICER BLOCK- DESHRI, DISTT.- VAISHALI AT HAJIPUR 5. THE STATE ELECTION COMMISSIONER, REPRESENTED THROUGH ITS SECRETARY STATE ELECTION COMMISSION, BIHAR, SONE BHAWAN, 3RD VEER CHAND PATEL PATH, PATNA-800001 6. SMT. JAIMALA DEVI, UP-PRAMUKH W/O SHRI JAGBANDHU RAI R/O VILL.- DHARMPUR RAM RAI, P.O.- DESRI, P.S.- DESRI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 7. SMT. SITA DEVI W/O SHRI DINESH PRASAD SINGH R/O VILL.- BHIGWANPURA, P.O.- BHATAULIYA, P.S.- DESRI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 8. SMT. MEENA DEVI W/O SHRI NATHUNI PASWAN R/O VILLAGE+P.O.- AJAMPUR, DESARI, P.S.- DESARI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 9. SMT. KAVITA DEVI W/O SHRI MUNNA RAJAK R/O VILL.- JAHANGIRPUR SHAM, P.O.- CHAUDPUR NANHKAR, DESRI, P.S.- DESRI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 10. SMT. PRAMILA DEVI W/O SHRI UPENDRA PANDIT R/O VILL.- RASULPUR HABIB, P.O.- CHAUDPUR NANHKAR, DESRI, P.S.- DESRI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 11. SHRI OM PRAKASH PASWAN S/O SHRI DINESHWAR PASWAN R/O VILL.- LAKHANPUR TAL, PANCHAYAT- DHARAMPUR RAM RAI, P.O. + P.S.- DESRI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 12. SHRI SUNIL KUMAR SHARMA S/O SHRI CHANDRA BHUSHAN SHARMA R/O VILL.- LAKHANPUR LAL, P.O.- KHOKSA BUJURG, DESRI, P.S.- DESRI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 13. SHRI DEVENDRA PRASAD YADAV S/O SHRI JAI KISHUN RAI R/O VILLAGE + P.O.- DESRI, P.S.- DESARI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI 14. SHRI SUNIL THAKUR S/O LATE ANIRUDHA THAKUR R/O VILLAGE + P.O.- TAIDHAPUR, DESRI, P.S.- DESARI, DISTT.- VAISHALI, HAZIPUR, MEMBER OF PANCHAYAT SAMITI-DESRI, DISTT.- VAISHALI, REPRESENTED THROUGH THE EXECUTIVE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DESRI, VAISHALI ----------- For the Petitioner : M/s S.P.Srivastava, Anil Kumar & Rajeev Ranjan, Advocates For the State : Mr. Rakesh Kumar Samrenmdra, S.C.21 Mr. Obaidullah, AC to S.C. 21 For the Respondents: M/s Raju Giri & Prabhakar Singh, Advocates. For State Election Commission : Mr. Sanjeev Nikesh, Advocate 2 For Respondent No. 12: Mr. Sanjay Kumar, Advocate For Respondents 6, 7, 10,11,13 & 14 : Mr. Shashi Bhushan Kumar, Advocae -------- 5. 18.01.2011 Heard learned Counsel for the petitioner, learned Counsel for the State and the learned Counsel for respondents 6 to 14. The petitioner questions the notice dated 17.8.2010 convening a special meeting for discussing no confidence motion against him as a Pramukh on 23.8.2010. The short submission on his behalf is that under Section 46(4) of the Bihar Panchayat Raj Act (hereinafter referred to as ‘the Act’) seven clear days’ notice is mandatory for fixing a special meeting. The statute further requires the notice to mention the business to be transacted thereat. It has to be read in conjunction with Section 44 (3) (v) which mandates that the reason/charges on which no confidence motion has to be moved shall be clearly mentioned in the notice of the meeting called to consider no confidence motion. The notice being dated 17.8.2010, which date has to be excluded, to count seven clear days notice and the date fixed i.e. 23.8.2010 is the sixth day. Counsel for the State submits that Section 44 (3) (V) relates only to the requisition sent for convening special meeting and does not control the notice for a special meeting. Learned Counsel for the State is unable to demonstrate that the provisions of Section 46(4) stands complied by notice dated 17.8.2010. Counsel for the private respondents urged that the meeting was not being convened by the petitioner as the Pramukh despite the requisition submitted. Therefore a requisition was sent to the BDO directing him to positively issue 3 notice by 14.8.2010. The requirement of Section 46(4) is complied as it is more than seven days notice. It is next submitted that the special meeting came to be held on 23.8.2010 and the petitioner has lost. On 14.12.2010 the petitioner as a Member of the Panchayat Samiti has affirmed the proceedings of the meeting dated 23.8.2010. On 15.9.2010 the order dated 4.9.2010 for holding elections on the post of Pramukh consequent to the special meeting dated 30.8.2010 was stayed by the Court. The language of Section 46(4) is clear and unambiguous. Learned Counsel for the respondents have been unable to demonstrate compliance with the same. The requisition sent to the BDO for issuance of notice by 14.10.2008 shall not control the operation of Section 46(4) of the Act. The effective date of the notice would be that mentioned in the notice itself i.e. 17.8.2010. If the petitioner is aggrieved by the action of the BDO, as was suggested during submissions, as an oblique attempt to help the petitioner, the remedy lies in approaching the state government against the BDO for alleged dereliction of duties when matters may have to be examined by the state government in accordance with law. But that allegation shall not override the statutory provisions discussed above. The Court finds it difficult to hold that notice contemplated in Section 43(3)(V) deals with the requisition for the meeting alone and that the requisition only must mention the grounds on which the no confidence is proposed to be moved, and that there was no such requirement in the notice issued for fixing meeting to consider the no confidence motion. 4 The language used in sub-Section (V) is that the charges shall be mentioned in the notice of meeting called to consider no confidence motion. The obvious connotation is with regard to a notice for summoning or calling of a meeting and not the requisition for the meeting. This is further clarified by sub- section (6) which then deals with the manner in which this meeting is to be held. If an act has been done in violation of the statutory procedure, that the petitioner may have affirmed the minutes of the meeting dated 23.8.2010, cannot operate as a waiver since there can be no estoppel or waiver against the statute. The notice for the meeting dated 17.8.2010 fixing date of the special meeting as 23.8.2010 falling foul of requirement of Section 46(4) of the Act, any resolution passed at such meeting convened contrary to law is therefore not sustainable. The notice dated 17.8.2010 is accordingly set aside. Consequently all actions in pursuance of that notice stands nullified. Since this Court has held that there was no meeting in accordance with law for discussing a no confidence motion, there shall be no impediment in convening of fresh no confidence motion in accordance with law when provisions of Section 44(iii) shall have no application. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)