ANUPMA RAI v. THE STATE OF BIHAR

election was held in which respondent No.10, Smt. Kalawati has been elected as Pramukh. Learned counsel for the petitioner submits that the requisition is itself invalid since the prayer was not for considering a no confidence motion and there is no provision under the Bihar Panchayat Raj Act for obtaining a vote of trust and the petitioner has rightly rejected the same. It is further submitted that the other ground of rejection is also valid. Unless the requisition is served upon the petitioner, Pramukh of the Panchayat Samiti, the same is not a valid requisition and since according to her it was never served upon her, it is invalid and illegal. 4 In support of the same, learned counsel for the petitioner relies upon a decision of this Court in the case of Nirmala Singh and Anr. V. The State of Bihar & Ors.: 2006 (1) PLJR 129, in paragraph No.2 of which it has been held as follows: ”2. Having produced Annexure-1 and having failed to explain how he got it, it would not lie in the mouth of the petitioner that he did not receive the original of the Annexure-1 at the time when a copy of Annexure-1 was served upon the Executive Officer. The petitioner did not convene a meeting as he was requested by Annexure-1. The requisitionists thereupon requested the Executive Officer to issue a notice and the Executive Officer, without keeping on record evidence of service of Annexure-1 to the petitioner, issued the notice convening the meeting and thereby acted improperly. The Act obliges the requisitionists to make the requisition a valid requisition to submit the same to the Pramukh. Unless the requisition is submitted to the Pramukh, the requisition itself is invalid. Without requisitionists cannot ask the Executive Officer to convene the meeting.” the requisition the Pramukh, serving It is also contended by learned counsel that the requisition having been presented to the petitioner only on 23.12.2008, it was not open to the Up- Pramukh to have fixed the date on 24.12.2008 as under the Statute the Pramukh has the right for fixing the date for special meeting within 15 days of the date of receipt of the requisition. The further submission of learned counsel is that the Up-Pramukh has no authority to fix the date of his own through his letter, unless the Executive Officer moves the file before him for fixing a date or one third of the directly elected members request him. It is also the contention of learned counsel for the petitioner that the charges mentioned in the requisition are vague. Learned counsel also vehemently points out that there is nothing in the earlier counter affidavit which denies the statement made by the petitioner that the requisition dated 13.12.2008 was not presented 5 to her until the same was delivered to her on 23.12.2008 by post and it is only in the subsequent supplementary counter affidavit that the said denial has been made. It is argued that even the said stand is not supported by any piece of document and thus mere statement on affidavit cannot be relied upon. In support of the same, learned counsel relies upon a decision of the Supreme Court in the case of Bharat Singh and others V. State of Haryana and others : A.I.R. 1988 S.C.2181, in paragraph No.13 of which it has been held as follows: “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit”. Learned counsel for the respondents, on the other hand, submits that it is evident from the conspectus of facts starting from

26.11.2008 that the petitioner was bent upon ensuring that no special meeting could be held for considering no confidence motion against her. 6 It is stated that the petitioner had no authority to refuse the requisition on the ground that it sought a vote of trust whereas from the subject matter it was clear that the requisitionists had called for a vote of no confidence against the petitioner- Pramukh. It is further submitted that on the failure of the petitioner to call for the meeting on the basis of the requisition dated 26.11.2008, the Up-Pramukh had fixed the date as 20.12.2008 and communicated the same to the Executive Officer in terms of Section 44 (3) (i) of the Bihar Panchayat Raj Act, but the Executive Officer instead of issuing notice for convening the special meeting on 20.12.2008 had written to the District Magistrate seeking guidelines in the matter. It is urged that in view of the decision of this Court in the case of Khurshid Alam v.State of Bihar & Ors. : 2004 (4) PLJR 182, the concept of a requisition lapsing is unknown to law and thus even the earlier requisition had effectively not lapsed and if the identical requisition against her was presented on 13.12.2008 and the petitioner did not act within the statutory time, it was open to the Up- Pramukh to have fixed the date and there was nothing wrong in calling the special meeting on 6.1.2009.. It is further submitted by learned counsel for the respondents that the petitioner cannot be permitted to act in a manner so as to defeat the provisions of law relating to convening a meeting for considering the no confidence motion and thereafter approach this Court making any grievance in the matter. Learned counsel also refers to the fact that the earlier counter affidavit had been filed without giving parawise reply but it was specifically stated even in the first counter affidavit that the requisition made on 13.12.2008 was addressed to the 7 Pramukh and a copy of the said requisition was also made available to the Executive Officer. It is submitted that the same was clearly meant to show that apart from presenting the same before the petitioner, who refused to sign and give receipt thereof, the said requisition was also served upon the Executive Officer. It is further contended by learned counsel that in the first counter affidavit itself the fact regarding the behaviour of the petitioner and complaint against her made to the District Magistrate, Gopalganj and Commissioner, Saran had also been mentioned and the petitions sent before them had also been annexed, which go to show that it is the petitioner, who was all through avoiding to act in accordance with law. It is further pointed out by learned counsel for the respondents that the charges are not vague because the facts and figures are clearly mentioned regarding the manner in which the petitioner was discriminating between the Panchayat to which she belongs and the other Panchayats. On a consideration of the facts and circumstances of the case, this Court does not find any force in the submissions of learned counsel for the petitioner. It is evident from the narrative of events which took place from 26.11.2008 that the petitioner was bent upon somehow or the other to defeat the provisions of the Bihar Panchayat Raj Act by refusing to convene the special meeting for considering no confidence motion against her. The plea that no vote of trust is permissible under the Bihar Panchayat Raj Act is wholly misconceived in the face of the very subject matter of the requisition which states that it is meant for moving 8 no confidence motion against the petitioner. Even under the said requisition on the failure of the petitioner a date had been fixed by the Up- Pramukh upon which the Executive Officer had instead of issuing notice in terms of the said request of the Up-Pramukh wrongly referred the matter to the District Magistrate compelling the respondents to go for a second requisition. This Court is clearly of the view that any person in authority who violates the provisions of the Act and fails to carry out a statutory duty cannot be permitted to come to this Court taking all types of technical pleas so as to defeat the very provisions of the Act. So far as reliance placed by learned counsel for the petitioner on the case of Bharat Singh (supra) is concerned, the same has no application to the facts of the present case, as the petitioner has not been able to show on the basis of contemporary materials that the requisition was not served upon her, rather she refused to accept the same and her action clearly shows that she wanted to continue as Pramukh of the Panchayat Samiti by hook or by crook. For the same reasons reliance placed by learned counsel for the petitioner on the case of Nirmala Singh (supra) also must fail. This Court is of the view that the requisitionists had made all attempts to serve the requisition upon the petitioner and it is the petitioner who was avoiding serving of requisition upon her. So far as the charges being vague are concerned, the same are only being noticed to be rejected. The facts and figures mentioned in the requisition go to show that the petitioner had got sanctioned 9 Schmes of Rupees Thirty Lacs for her own Panchayat whereas for six other Panchayat, Schemes of total amount of only Rupees Six Lacs were sanctioned. The statement of the petitioner that it is not the petitioner who sanctioned the Scheme has no relevance as these are matters for the Panchayat Samiti to consider in the special meeting while considering the no confidence motion against the petitioner. The other contention of the petitioner that the Up- Pramukh has no authority to fix a date unless the file goes to him through the Executive Officer or he is requested by one third of the directly elected members has no basis in law as it is clear from the provisions of Section 44 (3) (i) of the Panchayat Raj Act that on the failure of the Pramukh to fix a date for convening the special meeting within fifteen days of the requisition, it is open to the Up-Pramukh or one third of the directly elected members to fix a date and direct the Executive Officer to issue notice for convening the meeting on the said date. The authority of the Up-Pramukh or one third of the directly elected members is independent and separate and does not depend on any file being placed before the Up-Pramukh or any request being made to him by one third of the directly elected members. In the light of the aforesaid discussions, this Court does not find any merit in the writ petition and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta,J.)