PAVITA RANI v. THE STATE OF BIHAR & Ors.

judgment this Court has held as follows : 6 misdemeanour “16. In the circumstances, the Court cannot permit this motion of no confidence to stand. The person who was to face it had not been intimated what was against him, allegations upon which the house was loosing confidence in him. To certify that confidence has been lost, both the cause and the result must be an open forum and face the consideration of the House, which constitutes local government…………..” Learned counsel for the contesting private respondents including the so-called newly elected Pramukh, respondent no.8, submits that whatever may have been the illegality or irregularity in the requisition of the notice but the very fact that the petitioner participated in the special meeting and in the course of discussions expressed her willingness for the voting to take place she cannot be permitted now to turn around and question the requisition, notice and the final decision taken in the special meeting. It is further submitted that not only that but the petitioner had also participated in the subsequent election held on the vacant post of Pramukh in which respondent no.8 had been elected and that further precludes her from challenging the matter after having taken a chance and lost at 7 both stages. In support of the said proposition learned counsel relies upon a decision of a learned Single Judge of this Court in the case of Nirmala Singh & Anr. Vs. The State of Bihar & ors.: 2006(1) PLJR 129. In paragraph 3 of which it has been held as follows: suffer “3. Be that as it may, the meeting was convened pursuant to the notice as aforesaid. At the meeting the petitioners were removed from the posts of Pramukh as well as Up-pramukh. Neither in the requisition, nor in the notice, any reason in support of the motion had been mentioned, which appears to be a requirement of law. However, for that reason the petitioners did prejudice inasmuch none of the petitioners attended the meeting. After the meeting was held and they were removed, again a meeting was supplying the vacancy caused by such removal and both the petitioners participated in the said meeting proceeding on the basis that the same was a valid and legal meeting. While the Petitioner No.1 participated in the meeting, the Petitioner No.2 even offered himself for one of the posts for which election was to be held. In such a situation, if I interfere either with the requisition or with the notice or with the meeting being the subject matter of challenge in the instant writ petition, that would be travesty of justice and would permit the petitioner to have the status restored despite having had participated in the purpose 8 meeting by which with the mandate of the majority the status has been altered.” Learned counsel also relies upon the following quotation in Durga Das Basu Shorter Constitution of India 13th Edition, at page 817 : “In general, a person who submits to the jurisdiction of an inferior tribunal and takes part in the proceedings without objection on the ground that the tribunal has no jurisdiction, cannot, after having proceedings, question the jurisdiction of that tribunal, in a petition under Article 226.” failed On a consideration of the submissions of learned counsel for the petitioner and respondents, this Court finds sufficient force in the submission of learned counsel for the petitioner. The matter, in fact, is no longer res integra and has also been settled by repeated Division Bench decisions of this Court as cited by learned counsel for the petitioner and quoted above. It is evident that the Division Benchs have held that a requisition and the notice containing no reasons/charges are void ab initio and in such circumstances no legal result can come out from any special 9 meeting in which resolution of no confidence is passed pursuant to such requisition/notice. In the said cases not only the motion of no confidence passed against concerned petitioner was quashed by this Court but even the subsequent election held thereafter were held to be invalid and the petitioners concerned were restored to their office. So far as the reliance placed by learned counsel for the respondents on the case of Nirmala Singh is concerned, the said decision does not advert to the aforesaid three Division Bench decisions which have held the requirement to supply reasons/charges as mandatory in categorical terms and thus mere participation of the petitioner in the proceedings can have no effect on the illegality inherent in the notice and the resolution and therefore the said decision must be held to be per incurium and not binding being in the face of the law decided to the contrary by the Division Bench decisions of this Court. The reliance placed by the learned counsel on the principle of acquiescence as quoted above, Durga Das Basu’s book, is wholly 10 misconceived since the same has been stated in the context of participation in a proceeding before a Tribunal without challenging its jurisdiction at the outset, and only after an adverse result such a plea being taken. By no stretch of imagination a motion of no- confidence before a Panchayat Samiti can be considered to be a proceeding before a Tribunal and thus there is no substance in the contention learned counsel respondents in this regard. In aforesaid discussions, the writ application is allowed. The requisition dated 9.7.2008 and the notice dated 20.7.2008 are declared void ab initio and without any force of law and consequently the resolution of no confidence passed pursuant thereto in the special meeting held on

29.7.2008 is also quashed. That being the position there being no vacancy in the eye of law on the post of Pramukh the election of respondent no.8 subsequently on 12.8.2008 is also held to be without any force of law and the same is accordingly held to be invalid. As 11 a result the petitioner will go back to her office of Pramukh of Panchayat Samiti, Amdabad. spal/ (Ramesh Kumar Datta,J.)