The State Election Commission, Bihar through its Secretary, Bihar v. Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 22557 of 2013 ====================================================== Asfaque, son of Sk Mohammad Ali, resident of Shekhpatti Bhuidharwa, PS – Thakaraha, District – West Champaran .... .... Petitioner/s 1 The State Of Bihar through the Director Panchayati Raj Bihar, Patna 2 The State Election Commission, Bihar through its Secretary, Bihar, Versus Patna 3 The District Magistrate, Bettiah, West Champaran 4 The District Panchayat Raj Officer, Bettiah, West Champaran 5 The Subdivisional Officer, Bagaha in the district of West Champarn. 6 The Executive Officer –cum- Block Development Officer, Bhitaha Block in the district of West Champaran 7 Ali Hassan Ansari (Up Pramukh Bhitaha Panchayat Samiti), son of late Rajdin Mian, resident of Redaha, PS – Thakaraha (Bhitaha), District – West Champaran 8 Harakh Raut, son of late Lakharaj Gaddi, Resident of Semarbari, PS – Thakaraha (Bhitaha), District – West Champaran 9 Khajanti Yadav, son of Maharaj Yadav, resident of Tola PS – Thakaraha (Bhitaha), District – West Champaran 10 Nirmala Devi, wife of Hira Yadav, resident of village – Jiganahi, PS – Thakaraha (Bhitaha), District – West Champaran 11 Gamha Devi, wife of Jhkkad Ram resident of village – Khairwar, PS – Thakaraha (Bhitaha), District – West Champaran 12 Subhash Bin, son of Paras Bin, resident of Hathuawa, PS – Thakaraha (Bhitaha), District – West Champaran 13 Urpramila Devi, wife of Bhushan Gond, resident of Bairatawa, PS – Thakaraha, District – West Champaran 14 Mandodari Devi, wife of Kedar Sah, resident of Dihipakadi, PS – Thakaraha (Bhitaha) District – West Champaran 15 Mr Baidhyanath Prasad Mahto, Member of Parliament, Valmikinagar Constituency in the District of West Champaran 16 Mr Rajesh Singh, son of Bhup Narayan Singh, Member of Legislative Assembly, Valmiki Nagar, District – West Champaran 17 Ramadhar Yadav, son of Basudeo Tiwari, Mukhiya of Panchayat Raj Semarwari, PS – Thakaraha (Bhitaha), District – West Champaran 18 Smt Poonam Devi, wife of Bunilal Yadav, Mukhiya of Panchayat Ramanpur, PS – Thakaraha (Bhitaha) District – West Champaran 19 Munna Singh, son of Lalsa Singh, Mukhiya of Panchayat Raj Parsauna, PS- Thakaraha (Bhitaha) District – West Champaran 20 Smt Geeta Devi, wife of Chandrabhushan Ram, Mukhiya of Panchayat Raj – Khirwa, PS – Thakaraha (Bhitaha) District – West Champaran 21 Mr Jakir Hussain, son of Pathalu Mian, Mukhiya of Panchayat Raj Hathuawa, PS – Thakaraha (Bhitaha), District – West Champaran 22 Mr Rajendra Yadav, son of Parma Yadav, Mukhiya of Panchayat Raj – Chinwaliya, PS – Thakaraha (Bhitaha) District – West Champaran 23 Kamrul Nesha, wife of Sk Shahabuddin, Mukhiya of Panchayat Ra- Machchhahan, PS – Thakaraha (Bhitaha), District – West Champaran 24 Lalmati Devi, wife of Lalan Kushwaha, Mukhiya of Panchayat Raj Dihi Pakadi, PS – Thakaraha (Bhitaha), District – West Champaran
Legal Reasoning
Patna High Court CWJC No.22557 of 2013 (2) dt.09-12-2013 2 25 Chandeshwar Singh, son of late Lalji Singh, Mukhiya of Panchayat Raj Bhidharwa, PS – Thakaraha (Bhitaha), District – West Champaran .... .... Respondent/s ====================================================== Appearance :
Legal Reasoning
For the Petitioner/s : Mr Y V Giri, Sr Advocate with Mr. Bimlesh Kumar Pandey, Advocate For the S t a t e : Mr Dhurendra Kumar, AC to SC 16 For Respondent No 7 : M/s Amit Shrivastava & Girish Pandey, Advocates For Respondent No 8 : M/s S P Srivastava & Vijay Kr Singh, Advs ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 2 09-12-2013 The petitioner is the Pramukh of Panchayat Samiti – Bhitaha, District – West Champaran. He challenges the no confidence motion as passed against him by the Panchayat Samiti. It may be noted that no confidence motion was passed against him. This no confidence was passed on 25th of October, 2013. Mr Y V Giri, learned Senior Counsel appearing for the petitioner has been heard and also heard Shri S P Srivastava, who has appeared for private respondent No 8 with authority to represent the other private respondents as well. Learned counsel for the State and State Election Commission have also been heard. A counter affidavit has been filed on behalf of respondent No 8.
Decision
This application is being disposed of at this stage itself. Petitioner challenges the no confidence motion on a Patna High Court CWJC No.22557 of 2013 (2) dt.09-12-2013 technical plea. He states that first a requisition was presented to 3 the Pramukh leveling certain charges and signed by the requisite number of members. To him, it appeared that several members have in fact not signed the requisition. He ordered an enquiry. He, thus, fixed no date for the meeting. It then appears that the requisite number of members of Panchayat Samiti then, on failure of petitioner fixing the date, fixed the date and requested the Chief Executive Officer that is the Block Development Officer to issue notice to all the members of the Panchayat Samiti accordingly. Accordingly, on 17th October 2013, notices were issued by the Block Development Officer to all the members. It appears on 18th of October 2013, when notice was sought to be served by the petitioner, he was not found in the house. His brother, having read the notice, refused to accept the same. Accordingly, the office peon stuck the notice on the adjacent house which is the community hall. On the same day, that is 18.10.2013, a registered notice was also sent to the petitioner in this regard. Petitioner asserts in his writ petition that there was no valid service of notice on him accordingly. In fact, he has stated that there was no notice that was at all served on the petitioner. He further asserts that as per Section 46 (4) of the Bihar Panchayat Raj Act 2006, the notice had to be in writing given to the parties Patna High Court CWJC No.22557 of 2013 (2) dt.09-12-2013 and it must be of seven clear days. Mr Giri points out that notice, 4 having not been served and even the registered notice has been issued on 18.10.2013 fixing 25th of October 20013 as the date, the mandatory provisions of Section 46 (4) has been violated. In the counter affidavit, it is stated that the office peon clearly reported that the brother of petitioner has read the notice and refused to accept the same as petitioner was not there. In the counter affidavit, the office peon’s report has been annexed which clearly states that upon refusal of the brother of the petitioner to accept the notice, the notice was pasted not on the petitioner’s house but on the community hall of the Panchayat, next to petitioner’s house. It is then alleged that a registered notice was sent on 18.10.2013. Having appreciated the facts, in my view, so far as the first set of notices are concerned, it cannot be said that it was duly served on the petitioner for a simple reason that the process server report itself shows that petitioner was not there. His brother refused to accept the same and it was stuck on another’s house other than the petitioner. So far as registered notice is concerned, the same is said to have been posted on 18.10.2013 itself in respect of a meeting fixed on 25.10.2013. When was this notice served on the petitioner has not been stated by anyone? Assuming Patna High Court CWJC No.22557 of 2013 (2) dt.09-12-2013 it was served on 18th of October, 2013 itself even then, in terms of 5 Section 46 (4) of the Act, it cannot be said to be seven clear days notice inasmuch as seven clear days notice means that the day on which notice is sent and the day on the which the notice is served is to be excluded and then seven days have to intervene. In the present case, no notice, thus, having been issued on 18.10.2013 if this day is excluded then 19th of October 2013 onwards, there are only six days to the meeting. Thus, this whole exercise is not in conformity with Section 46 (4) of the Act. I have no option but to set aside the no confidence motion as passed against the petitioner alone on 25.10.2013, as contained in Annexure 4. However, as decision has already been taken to convene the meeting in order not to delay the matter further, the Panchayat Samiti should fix a fresh date for the same. In such a situation, there cannot be a reelection as there is no vacancy. As members have already expressed their no confidence against the petitioner, it would only be appropriate that upon the requisition, as already made and undoubtedly served on members including the petitioner, petitioner would now be duty bound to convene a special meeting for consideration of no confidence as against him which statutorily has to be done within Patna High Court CWJC No.22557 of 2013 (2) dt.09-12-2013 fifteen days of the receipt of the notice and not earlier than seven 6 days. Thus, I direct the petitioner, as a Pramukh, to fix a meeting and notice, well within time, all the members to assemble for the special meeting to consider no confidence motion against him in between 19th – 24th of December, 2013. In case, petitioner does not call for a meeting then it would be deemed that this writ petition has been dismissed and the resolution of no confidence, which has been set aside by this Court, would be operated. With these observations and directions, this application stands disposed of. M.E.H./- (Navaniti Prasad Singh, J)