Sarita Kumari v. The State of Bihar

For the Appellant : M/s S.P.Srivastava, Rajeeev Ranjan and S.K.Das, Advocates For Respondent no.3 : Mr Nikesh Kumar, Advocate --------- 5

20.8.2009 Heard Mr S.P.Srivastava, learned counsel for the appellant and Mr Nikesh Kumar, learned counsel for respondent no.3. The present appeal is directed against the judgment and order dated 9.9.2008 of the learned single Judge passed in CWJC No.13171 of 2008 whereunder the writ petition filed by the present appellant has been rejected. Facts in brief may be noticed. The question relates to motion of no confidence against the Chairman of Zila Parishad, Patna. There is no 3 dispute that it had got 46 directly elected members on

11.8.2008. Special meeting was held for the purpose of considering no confidence motion against the Chairman of the Zila Parishad. At the time when the meeting took place 27 members had participated. However, out of them three members did not participate in the actual voting. Out of the 24 remaining members, 23 voted in favour of no confidence motion and only one member voted against it. Since 23 members did not constitute the majority of the directly elected members, it was held that the no confidence motion has stood defeated and accordingly, the respondent no.6 the Chairman was allowed to continue. This became the subject matter of the writ petition because the contention of the present appellant is that since majority of the members, who had voted, had supported the no confidence motion, the Chairman should have been removed from the office. This contention has been rejected by the learned single Judge by analyzing the provisions contained in Section 70 (4) (i) of the Bihar Panchayat Raj Act, 2006. Learned counsel for the appellant submitted that the provisions must be construed in the proper perspective to mean when the majority of the persons voted in support of the no confidence motion, the motion would be deemed to have been 4 carried out. We do not think such submission made by the learned counsel for the appellant can be accepted in view of the clear and unambiguous language in Section 70 (4) (i) which is to be following effect : “4 (i) Adhayakasha and Up-Adhyaksha 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 directly territorial constituencies of the Zila Parishad at a meeting specially convened for the purpose ...” elected members A bare perusal of the aforesaid provision makes it clear so far as no confidence motion is concerned it should be accepted if it has been passed by the majority of the “total number of directly elected members”. This provision makes it very clear that only when the majority of total number of directly elected members support the motion of no confidence then only such motion is said to have been carried out. As a matter of fact, while considering a similar matter in the context of identical provisions,, learned single Judge of this Court in decision reported in 2004 (2) PLJR 244 observed as follows : “9. From a plain reading of Section 44(7) of the Act, it is evident that all questions shall be decided by a majority of votes of the members present and voting unless otherwise especially provided. Section 42 (3) of the Act, in specific term provides that the resolution expressing want of confidence in a Pramukh or Up-Pramukh shall be passed by the majority of total number of elected members of the Panchayat. Thus, when Section 42 (3) of the Act has specifically provided that motion of no confidence can be 5 carried out by majority of the total number of elected members of the Panchayat, the general provision will give way to the special provision. In my opinion special provision i.e. Section 42 (3) having provided for passing of resolution by a majority of the total number of elected members same shall govern the field. Hence the submission of Mr Pradhan that it shall be decided by majority of votes of the members present and voting, is not fit to be accepted.” Learned counsel for the appellant, however, brought to our notice a contrary decision of another learned single Judge of this Court reported in 2005 (4) PLJR 112 where the learned single Judge while considering very similar provision of Section 44(4) of the Bihar Panchayat Raj Act had concluded that if no confidence motion is passed by majority of the members voting it can be said that such no confidence motion has been carried out. As a matter of fact, this later decision of the learned single Judge has been rendered without noticing the earlier decision and this is the reason why the subsequent decision has not been followed by the learned single Judge in the present impugned order. Having gone through the specific provision contained in the Act, we are of the view that the judgment of the learned single Judge reported in 2005 (4) PLJR 112 cannot be said to have laid down the law correctly inasmuch as the earlier decision was not noticed and moreover, the decision is contrary to plain and simple language contained in the statute. 6 Hence, we do not find any merit in this appeal. It is accordingly dismissed. (P.K.Misra, CJ) (Shiva Kirti Singh, J.)