Shailendra Kumar @ Shailendra ... vs The State Of Bihar
2021 Latest Caselaw 4220 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10778 of 2021
     ======================================================

Shailendra Kumar @ Shailendra Kumar Garhwal, Son of Sri Prem Narayan Garhwal, resident of Jamunia, Ward no.-8, Sahodra, P.S.-Sahodra, Jamunia, District-West Champaran, Bihar-845455.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Panchayat Raj Department, Government of Bihar, Patna.

2. The Additional Chief Secretary, Panchayat Raj Department, Government of Bihar, Patna.

3. The District Development Commissioner, West Champaran, Bettiah.

4. The Chief Executive Officer, Zila Parishad, West Champaran, Bettiah.

5. The District Magistrate, West Champaran.

6. Renu Devi @ Renu Yadav (Female), wife of Sri Amar Yadav, resident of Mohalla Sant Ghat, Ward No. 15, P.O. Bettiah Town, District West Champaran at Bettiah, presently Vice Chairman, Zila Parishad, West Champaran, P.O. and P.S. Bettiah, District West Champaran

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s     :        Mr. Y.V. Giri, Sr. Advocate
                                       Mr. Ashish Giri, Advocate
                                       Mr. Pranav Kumar, Advocate
     For the State            :        Mr. Ajay, GA-5
                                       Mr. Pratik Kumar Sinha, AC to GA-5
     for the Intervener       :        Mr. S.B.K. Manglam, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 23-08-2021

Invoking sub-section (5) of Section 70 of Bihar

Panchayat Raj Act, 2006 (hereinafter referred to as 'the Act') the

Additional Chief Secretary, Panchayati Raj Department,

Government of Bihar, by an order No. 2490 dated 18.05.2021,

has removed the petitioner from the post of Adhyaksha, Zila

Parishad, West Champaran. The petitioner has challenged the Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

said order in the present writ application under Article 226 of the

Constitution of India.

2. Sub-section (5) of Section 70 of the Act reads as

under :-

"(5) Without prejudice to the provisions under this Act, if in opinion of the [Government] having territorial jurisdiction over the Zila Parishad, a Adhyakshaa or the UpAdhyakshaa of Zila Parishadabsents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the [Government] may, after giving the Adhyakshaa or the UpAdhyakshaa, as the case may be, a reasonable opportunity for explanation, by order, remove such Adhyakshaa or the UpAdhyakshaa, as the case may be, from office.

[provided when a system of Lok Prahari, instituted under sub-section (5) of Section 152 comes into force by a valid notification of the State Government, the Government may only pass order of removal of such Adhyakshaa or Upadhaksha, as the case may be in the light of inquiry and recommendation of Lok Prahari for the removal.] Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

[The Adhyakshaa or Up-Adhyakshaa so removed on the charge of being found guilty of misuse of vested powers or of misconduct in the discharge of his duties shall not be eligible for election to any panchayat bodies till further five years from the date of such removal. The Adhyakshaa or Up-Adhyakshaa so removed on rest of the charges shall not be eligible for re-election as Adhyakshaa or Up-Adhyakshaa during the remaining term of office of such Zila Parishad.] (2) An Adhyakshaa or Up-Adhyakshaa removed from the office under sub-section (1) may also be removed by the Government from the membership of the Zila Parishad."

3. From the impugned order, it is evident that two

members of the Nagar Parishad had complained to the

Additional Chief Secretary in writing on 20.08.2019 alleging that

the petitioner had convened only three general meetings from

30.06.2016. Allegation was also made in respect of the

petitioner's functioning as Adhyaksha of the Parishad in

whimsical, capricious and despotic manner, in the matter of

distribution of funds in different regional electoral areas

(Pradeshic Nirwachan Kshetra). On receipt of the complain,

response of the District Magistrate, West Champaran was called

for. As no report was received from the District Magistrate,

reminders were sent on 20.09.2019 and 15.10.2019. Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

Subsequently, by letter dated 22.10.2019, the opinion of

Divisional Commissioner, Tirhut Division was solicited, keeping

in view the provisions under Bihar Panchayat (Karyalaya Ka

Nirikshan Ewam Karyakalapo ki Janch, Paryawekshan Ewam

Margdarshan) Rules, 2014. As no report could be received, a

reminder was sent to the Divisional Commissioner, Tirhut

Division. Subsequently, a writ petition was filed before this Court

by one Renu Devi giving rise to CWJC No. 843 of 2020 and in

the light of order dated 04.03.2020, passed in the said case by this

Court, an action taken report was sought from the Divisional

Commissioner. Again, when no report was coming forth from the

Divisional Commission, a reminder was sent on 09.03.2020,

whereafter the Divisional Commissioner submitted his report

dated 21.03.2020, based on the report of the District Magistrate,

West Champaran dated 05.03.2020.

4. Based on the report sent by the Divisional

Commissioner, Tirhut Division and the District Magistrate, West

Champaran, the Additional Chief Secretary reached a conclusion

that general meetings were convened on 10.09.2016, 08.10.2018

and 24.12.2019. Special meetings were convened on 20.12.2017

and 18.02.2019. Further, on 12.10.2019, a special meeting was

convened. Thus, during his tenure as the Adhyaksha of Zila Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

Parishad from 10.09.2016 to 24.12.2019 only seven meetings

were held out of which four were general meetings and three

special meetings. Section 72(1) of the Act mandates that Zila

Parishad shall hold its meetings at-least once in every three

months at such time and place within the local limits of the

district concerned 'as the Zila Parishad may fix at the

immediately preceding meeting'. The Additional Chief Secretary,

noticing the said provision under Section 72(1) of the Act as also

the provision under Section 69(1) of the Act, opined that the duty

to convene and preside over and conduct the meetings of Zila

Parishad was solely on the Adhyaksha of Zila Parishad. He

accordingly opined that during the period in question at-least 12-

13 meetings ought to have been convened. The petitioner thus

violated the statutory duty under Section 72(1) of the Act, in the

opinion of the Additional Chief Secretary.

5. On the question of distribution of fund whimsically

and in capricious manner, the Divisional Commissioner had

opined that there is no requirement of distribution of such funds

on the basis of regional electoral area. The Zila Parishad, being a

democratic organisation, decisions taken by the majority shall

have to be implemented by the concerned Panchayati Raj

Institutions, the Divisional Commissioner opined. He had Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

accordingly opined that no action could be initiated against the

petitioner on the said allegation. The Additional Chief Secretary

had sought for a report from the Deputy Development

Commissioner- cum- Chief Executive Officer of the Zila

Parishad asking him to explain as to whether any written advice

was given for convening meetings at regular intervals. The

Deputy Development Commissioner informed that his

responsibility in the matter of convening meetings of Zila

Parishad was confined to issue notice for convening meetings on

the direction of the Adhyaksha of the Zila Parishad. He

mentioned in his report that since his posting as Chief Executive

Officer of the Parishad i.e. 29.06.2018 he has been discharging

his duties in accordance with the provisions of the Act.

6. The Additional Chief Secretary in his order has

recorded his opinion that it is true that the power to convene

meeting of Zila Parishad is vested in the Adhyaksha of the

Parishad but in view of statutory provisions under the Act it is

imperative for the Chief Executive Officer also to submit

proposals before the Adhyaksha for convening such meetings. In

case the Adhyaksha of the Parishad ignores such proposals

presented by the Chief Executive officer, the allegation of not

convening meetings in accordance with the Act shall be Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

established against the Adhyaksha of Zila Parishad. He has

mentioned in his order that there was no initiative taken by the

Chief Executive Officer for convening meetings.

The aforementioned facts have been taken from the

order impugned.

7. Thereafter, the Additional Chief Secretary sought an

explanation from the petitioner through his letter dated

02.06.2020 to be submitted within one week. After subsequent

reminders the petitioner submitted his report stating that the

Deputy Development Commissioner- cum- Chief Executive

Officer and other superior officers were requested on various

occasions, on 23.08.2016, 18.03.2017, 24.03.2017, 11.11.2017

and 16.04.2018 for convening meetings of Zila Parishad. On

analysing the explanation submitted by the petitioner the

Additional Chief Secretary found that through letter dated

23.08.2016 the petitioner had requested for convening a meeting

between 07.09.2018 to 10.09.2018. After six months thereafter

through letter dated 18.03.2017 he had made a request for

immediately convening general meeting. Eight months thereafter,

on 11.11.2017, the petitioner had requested for convening a

meeting between 30.11.2017 to 02.12.2017. He accordingly

concluded on the basis of the petitioner's explanation that no Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

action was taken by the petitioner for convening the meetings of

Zila Parishad in accordance with the statutory provisions could

not be accepted. The Additional Chief Secretary noticed the

report of the Divisional Commissioner, Tirhut Division on the

point of allegation of uneven distribution of funds in different

areas and did not differ with the said allegation.

8. Evidently thus, on the sole allegation against the

petitioner that he failed to convene meetings of the Zila Parishad

in accordance with the provisions under Section 72(1) of the Act,

the Additional Chief Secretary decided to proceed against the

petitioner for his removal by invoking sub-section (5) of Section

70 of the Act. Accordingly a show cause notice was issued to the

petitioner through letter dated 05.03.2021, asking him to explain

as to why action should not be taken for his removal from the

post of Adhyaksha, Zila Parishad as the charge against him for

not convening meetings in accordance with the provisions under

the Act stood, prima facie, established.

9. The petitioner submitted his reply to the show cause

notice on the date as fixed in the show cause notice. He stated in

his show cause notice that he was not getting desired cooperation

from the Chief Executive Officer and despite repeated requests,

the Chief Executive Officer failed to convene meetings which Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

was explained in his earlier explanation dated 16.07.2020. After

having noticed the petitioner's reply to the show cause notice the

Additional Chief Secretary recorded his finding that it was the

petitioner's own admission that meetings were not held in

accordance with the provisions of the Act. He recorded his

opinion that if the Chief Executive Officer was not extending

necessary cooperation, he should have informed the superior

authorities in this regard. He considered the petitioner's allegation

of non-cooperation by the Chief Executive Officer as a subterfuge

for not holding meetings in accordance with the provisions of the

Act which was not acceptable. Rejecting the petitioner's case that

it was the duty of the Chief Executive Officer to have initiated the

file for holding meetings in accordance with the statutory

provisions, relying on departmental guidelines issued on

14.05.2008, the Additional Chief Secretary recorded in his order

that it has not been mentioned in the guideline dated 14.05.2008

that the Chief Executive officer should take initiative for holding

meetings of Zila Parishad. Referring thereafter to the provisions

under Section 69(1)(a) and Section 72(1) of the Act the

Additional Chief Secretary reached a conclusion that the said

provisions were mandatory, for violation of which Adhyaksha of

Zila Parishad can be removed invoking Section 70 (5) of the Act. Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

He has quoted a passage from a Division Bench decision of this

Court dated 14.08.2008 (sic 22.03.2008), passed in LPA No. 689

(sic 679) of 2008, wherein this Court justified the action of

removal of a Pramukh and the plea of the role of Chief Executive

Officer in calling such meetings was turned down.

The passage quoted in the impugned order find place

in Division Bench decision of this Court in case of Sunaina Devi

v. The State of Bihar (AIR 2010 Patna 98).

10. After having concluded thus, the Additional Chief

Secretary, by the impugned order dated 18.05.2021, has ordered

for removal of the petitioner from the post of Adhyaksha in

exercise of power under Section 70(5) of the Act. In paragraph 12

of the impugned order, the Additional Chief Secretary has,

however, recorded that it is the duty of the Deputy Development

Commissioner also, being the Chief Executive Officer of Zila

Parishad, to have advised the Adhyaksha of the Zila Parishad to

convene meetings in accordance with the statutory provisions. He

found, on the basis of the materials available in the file, that no

such attempt was ever made at the level of the Deputy

Development Commissioner. He accordingly, directed the

Divisional Commissioner, Tirhut Division to enquire into the role

of the Deputy Development Commissioner cum Chief Executive Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

Officer as regards his role because of which the meetings could

not be convened, and take action in accordance with law.

11. This is to be noted that the tenure of the body of

Gram Panchayats in the State of Bihar has come to an end and

interim arrangements have been made for the interregnum period,

till the elections are held which could not be held because of

COVID-19 pandemic situation, with the promulgation of Bihar

Panchayat Raj (Amendment) Ordinance, 2021.

12. It has been argued by Mr. Y.V. Giri, learned Senior

counsel appearing on behalf of the petitioner, however, that in

view of provisions under Section 70(5) of the Act the petitioner

may be held not eligible for election for any panchayat bodies till

further five years. As the order impugned casts stigma, the

petitioner still has a locus to question the legality of the impugned

order and this application cannot be said to have become

infructuous with the termination of the term of panchayats in the

State of Bihar, he contends.

13. Assailing the impugned order, Mr. Y.V. Giri,

learned Senior Counsel has, at the very outset, questioned the

competence of the Additional Chief Secretary to pass the

impugned order. He has submitted with reference to sub-section

(5) of Section 70 of the Act that the said power can be exercised Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

by the Government which is State Government within the

meaning of Section 2 (o) of the Act, which defines Government

as the State Government of Bihar. It is his contention that the

impugned order is unsustainable for the reason that it does not

disclose any compliance with Article 166 of the Constitution of

India as the same has neither been expressed to have been passed

in the name of the Governor of the State nor, to the petitioner's

knowledge, any such permission or delegation has been granted

in favour of the Additional Chief Secretary, Panchayati Raj

Department.

14. In support of his contention he has relied on a

coordinate Bench decision of this Court dated 01.03.2016, passed

in CWJC No. 4218 of 2015 (Radha Devi vs. The State of Bihar

and others). He has also relied on another coordinate Bench

decision of this Court dated 22.03.2021, passed in CWJC No.

3647 of 2021 (Anil Thakur vs. The State of Bihar and others) in

support of the said proposition.

15. He has next submitted that removal of a person

democratically elected to a public office, from such office, is a

serious matter and the very removal casts stigma on the holder of

the office, on allegations having been held proved, rendering him

unworthy of office, which he held. He has submitted that Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

considering the seriousness of the action of removing a

democratically elected person to an office, utmost care and

caution ought to have been taken by the Additional Chief

Secretary while taking such action. He has contended that the

Chief Executive Officers of Zila Parishads are generally senior

officers, normally belonging to India Administrative Cadre who

have the tendency to impose their supremacy in respect of the

functioning of democratic body at panchayat level. Such officers

are next hierarchy to the District Collectors of a district. In such

background, the explanation of the petitioner that despite his

requests the Chief Executive Officer was not issuing notices for

convening the meetings ought to have been duly appreciated by

the Additional Chief Secretary, exercising his onerous duty and

power conferred on the State Government under the provisions

available under sub-section (5) of Section 70 of the Act. He has

relied on Supreme Court's decision in case of Tarlochan Dev

Sharma vs. State of Punjab and others reported in (2001) 6 SCC

260 and in case of Sharda Kailash Mittal vs. State of Madhya

Pradesh and others reported in (2010) 2 SCC 319.

16. He has contended that in terms of Section 72 of the

Act read with Rules 28, 29 and 34 of Bihar Panchayat Raj

Institution (Conduct of Vigilance) Rules, 2015, a meeting cannot Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

be called without the Chief Executive Officer, who has to issue

notice and also to note the proceedings of the meeting. According

to him, the Chief Executive Officer is an integral part of Zila

Parishad specially for conducting meetings. He has referred to an

order dated 28.11.2019, passed by the Additional Chief Secretary

of the same department, whereby taking note of the significant

role of the Chief Executive Officer, he refused to take action

under Section 70(5) of the Act against one Anju Devi, Adhyaksha,

Zila Parishad, Patna. He has referred to paragraphs 4 and 5 of the

said order which reads thus :-

"4- ftyk ifj'kn dh cSBdksa ds vk;kstu dk vf/kdkj v/;{k esa vo"; fufgr gS] fdUrq ftyk ifj'kn~ dh cSBdsa vf/kfu;e ds izko/kkuksa ds vuqlkj fu;fer :i ls vk;ksftr gksrh jgsa] bl gsrq ;g Hkh vko";d gS fd eq[; dk;Zikyd inkf/kdkjh ds Lrj ls Hkh le; ij cSBd vk;ksftr djkus dk izLrko v/;{k ds le{k miLFkkfir fd;k tk;sA vxj muds izLrko dh v/;{k }kjk vuns[kh ;k mis{kk dh tkrh gS] rks cSBd ugha cqykus dk vkjksi v/;{k ij LFkkfir fd;k tk ldrk gSA iVuk ftyk ifj'kn~ ds ekeys esa cSBd cqykus laca/kh dksbZ igy eq[; dk;Zikyd inkf/kdkjh ds Lrj ls ugha dh xbZ gSA 5- vf/kfu;e dh /kkjk 69 ds v/khu v/;{k dks eq[; dk;Zikyd inkf/kdkjh ,oa mlds ek/;e ls ftyk ifj'kn~ ds vU; dfeZ;ksa ij Ik;Zos{k.k ,oa fu;a=.k j[kus dh vf/kdkfjrk izkIr gSA mDr ifjizs{; esa ftyk ifj'kn dfeZ;ksa ls [kjkc laca/k ds vk/kkj ij v/;{k ds fo:) eq[; dk;Zikyd inkf/kdkjh }kjk /kkjk 70¼5½ ds v/khu dkjZokbZ djus dh jk; izdV djuk ljklj vuqfpr gSA"

17. He has contended that the Additional Chief Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

Secretary had adopted altogether a different standard while

considering the petitioner's case for his removal, in exercise of

power under sub-section (5) of Section 70 of the Act.

18. He has further argued that despite statutory

prescription under Section 152 (5) of the Act, no system of Lok

Prahri has been established which could have made proper

inquiry into the affairs of the local bodies at various levels under

the Act.

19. An Interlocutory Application being I.A. No. 01 of

2021 has been filed by one Renu Devi who, it has been stated, is

discharging the duties of the Adhyaksha of the Parishad on

petitioner's removal, in accordance with the provisions of the Act.

It is her case that she is a necessary party who needs to be

impleaded.

20. Mr. S.B.K. Manglam, learned counsel has

represented the intervener applicant. Considering the averments

made in I.A. No. 01 of 2021, the same is allowed. Let the

intervener applicant Renu Devi @ Renu Yadav be impleaded as

Respondent No. 6.

21. Mr. Manglam, learned counsel appearing on behalf

of newly added intervener respondent No. 6 has, countering the

submission of Mr. Giri, learned Senior Counsel, submitted that Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

the Additional Chief Secretary is competent to pass the order of

removal under Section 70(5) of the Act, which power is vested

with the State Government. He has relied on a Division Bench

decision of this Court in case of Amrawati Devi vs. The State of

Bihar and others reported in 2016(3) PLJR 302. He has

contended that there is similar provision under Section 25(5) of

Bihar Municipal Act, 2007 which is pari materia with Section

70(5) of the Act. He has argued that admittedly the impugned

order was issued after approval by the concerned Minister of the

Department. This Court, upon analyzing various Supreme Court's

decisions including the decision in case of Gullapalli Nageswara

Rao and others vs. Andhra Pradesh State Road Transport

Corporation and another (AIR 1959 SC 308), A. Sanjeevi

Naidu, etc., vs. State of Madras and another (AIR 1970 SC

1102) and Samsher Singh Vs. State of Punjab and another

(AIR 1974 SC 2192) and the statutory provisions under Bihar

Municipal Act, 2007 has concluded that Bihar Rules of Executive

Business framed by the Governor in terms of Article 166 of the

Constitution of India and the standing order issued under Clause

22 of the Rules of Executive Business had framed the following

issues in paragraph 21 as under :-

"21. After hearing learned counsel for the parties, we find that the issues raised Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

are required to be examined in two parts; first part being whether the powers of the State Government in terms of Section 25(5) read with Section 2(106) of the Act means the Minister-in-

Charge or the Principal Secretary to the Government. This question needs to be examined in order to determine whether the quasi-judicial order of removal falls within the realm of Executive Business required to be performed in the manner prescribed therein or it can be exercised by the Principal Secretary to the Government. The second part being that if the powers of the State Government have to be exercised by the Minister-in-

Charge, whether such power can be exercised only by virtue of a standing order issued under Clause (22) of the Rules or whether approval by the Minister-in-Charge of the order passed by the Principal Secretary to the Government is sufficient delegation in terms of Clause (22) of the Rules."

22. The Division Bench, on in dept analysis of all

legal aspects has finally concluded in paragraph 31 as under :-

"31. Rule 22 of the Rules empowers the Minister to arrange, by way of standing order, with the Principal Secretary concerned as to what matters or classes of matters are to be brought to his notice. Therefore, even if the decision was required to be taken by the Minister in terms of Rules 21 and 22 of the Rules, the fact remains that once the Minister had approved the decision of the Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

Principal Secretary, it was an approval in terms of Rule 22 of the Rules. The standing orders are required to be issued in a class of cases to bring certainty to the affairs of the Department; but in an individual case, the approval of the Minister would mean delegation to the Principal Secretary and, thus, there is compliance of the Rules as well. Though the Rules have been held to be mandatory, the fact remains that the decision approving an order passed by the Principal Secretary by the Minister does not contradict any of the provisions of the Rules; rather, it supplements such Rules. It is well settled that there cannot be any action contradictory to the Rules, but the action can always be supplemented. Therefore, approval by the Minister of an order passed by the Principal Secretary complies with the rigours of the Rules as well and. therefore, in either situation, we find that the order of the learned Single Bench is not sustainable."

23. It is his contention that the law laid down by the

Division Bench in case of Amrawati Devi (supra) has not been

noticed in the decision rendered by the learned Single Judge in

case of Anil Thakur (supra) and Kaushal Rai (supra).

24. Mr. Manglam has placed reliance on a Division

Bench decision of this Court in case of Sunaina Devi (supra) to

contend that in that case failure of a Pramukh to perform his/ her Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

duty under the statute by not calling for meetings invited the

wrath of similar provision under Section 44(4) of the Act because

of breach of Section 46(3) thereof. After having held so, the

Division Bench upheld the order directing removal of Pramukh

from the post. A similar plea taken by Pramukh in that case of the

duty of the Executive Officer to issue notice convening meeting

was rejected by the Division Bench, he contends.

25. Mr. Pratik Kumar Sinha, learned AC to GA-5 has

also relied on the said decisions rendered by the Division Bench

in case of Sunaina Devi (supra) and Amrawati Devi (supra) to

defend the impugned order. He has submitted that Additional

Chief Secretary is duly authorised under the law to take a

decision for removal of Adhyaksha of Zila Parishad and since the

order has been issued after approval of the concerned Minister of

the Department, the challenge to the order on the ground of

incompetence is unsustainable. He has argued that the impugned

order is wholly justified in the facts and circumstances of the

case.

26. On close perusal and scrutiny of the impugned

order, it is evident that the Additional Chief Secretary has noticed

the significant role which the Chief Executive Officer of a Zila

Parishad, who is an officer of the rank of Deputy Development Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

Commissioner of the district, has to play in convening the

meetings. There is no finding recorded in the impugned order that

the petitioner, in his capacity as Adhyaksha of Zila Parishad had

requested the Chief Executive Officer to convene meetings on

various dates as mentioned in his reply to the second show cause

notice. It is evident from paragraph 12 of the impugned order that

he has directed the Divisional Commissioner, Tirhut Division to

enquire into the conduct of the Deputy Development

Commissioner(s) cum Chief Executive Officer(s) for not ensuring

that the meetings are held in accordance with the provisions of

the Act. There is no ambiguity in the language of Section 69 (1)

(a) of the Act which lays down convening, presiding over and

conducting meeting of Zila Parishad as one of the main functions

of Adhyaksha.

27. Further, sub-section (1) of Section 72 of the Act is a

mandatory provision which requires that meetings of Zila

Parishad must be held at-least once in every three months.

Considering the nature of the order, which I intend to pass in the

present writ application for strict compliance of Section 72 (1) of

the Act, it is deemed useful to reproduce the said provision which

reads as under:-

"72. (1) The Zila Parishad shall hold its meetings at least once in every three Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

months, at such time and at such place within the local limit of the district concerned as the Zila Parishad may fix at the immediately preceding meeting:

Provided, that the first meeting of a newly constituted Zila Parishad shall be held at such time and at such place within the local limits of the district concerned, as the District Magistrate may fix and shall be presided over by him:

Provided further that the Adhyakshaa when required in writing by one-fifth of the members of the Zila Parishad to call a meeting shall do so within ten days failing which the aforesaid members may call a meeting after giving intimation to the District Magistrate and seven clear days notice to the Adhyakshaa and the other members of the Zila Parishad."

28. In exercise of powers conferred by Section 146 of

the Act, the State Government has made Bihar Panchayat Raj

Institution (Conduct of Business) Rules, 2015 (hereinafter

referred to as 'the Rules'). Rule 25 of the Rules is simply

reiteration of the requirement under Section 72(1) of the Act to

the effect that every Zila Parishad shall meet once in every three

months in the office of Zila Parishad for transaction of its

business on the date and time appointed by the Adhyaksha. Rule

28 of the Rules prescribes that at-least 10 days previous notice for

an ordinary meeting and seven days previous notice for a special Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

meeting of Zila Parishad shall be given by the Chief Executive

Officer to the members and to such officers as may be specified

by the Government and it shall be affixed at the Board of the Zila

Parishad at a conspicuous place. Sub-rule (2) of Rule 21 requires

the notice to each member of Zila Parishad, to be generally sent

by post or in such other matter which the Chief Executive Officer

thinks fit. Rule 29 casts an obligation on the Chief Executive

Officer in consultation with the Adhyaksha to prepare minutes for

meeting of Zila Parishad. It is to be kept in mind that the

aforesaid Rules have been framed much after the decision

rendered by the Division Bench in case of Sunaina Devi (supra),

which clearly delineate the duties, functions of the Chief

Executive Officer in the matter of issuance of notice for

convening meetings. Clause (b) of sub-section (1) of Section 88

of the Act casts an obligation on the Chief Executive Officer to

discharge the duties imposed upon him by or under the Act or the

Rules and Regulations made thereunder. Sub-section (2) of

Section 88 of the Act requires the Chief Executive Officer to

attend every meeting of Zila Parishad and permits him to take

part in the discussion, without any right to vote. It further states

that if in the opinion of the Chief Executive Officer any proposal

before the Zila Parishad is violative of or inconsistent with the Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

provisions of the Act or any other law or the Rules or order made

thereunder 'it shall be his duty to bring the same to the notice of

Zila Parishad'.

29. Coming back to sub-section (1) of Section 72 of

the Act, in the Court's opinion, the said provision is couched in

such definite unambiguous language and manner that in ordinary

circumstance there cannot be any deviation from the strict

statutory requirement of holding of meetings.

30. The first proviso to sub-section (1) of Section 72

of the Act requires that first meeting made of a newly constituted

Zila Parishad shall he held at such time and at such place as the

District Magistrate may fix and shall be presided over by him.

Sub-section (1) of Section 72 states that Zila Parishad shall hold

its matting at such time and such place .... 'as Zila Parishad may

fix at the immediately preceding meeting'. The apparent meaning

of sub-section (1) of Section 72 is that Zila Parishad should

ordinarily fix a date, time and place in its meetings, for the next

meeting. For example, in the first meeting held in accordance

with proviso to Section 72(1) of the Act presided over by the

District Magistrate, a date and time of the next meeting could be

fixed as sub-section (1) of Section 72 permits the date, time and

place of the meeting of Zila Parishad to be fixed at immediately Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

'preceding meeting'. The statutory requirement under Section

72(1) of the Act that the Zila Parishad should hold its meeting at

such time and at such place as Zila Parishad may fix at the

immediately preceding meeting, in my opinion, casts a

corresponding statutory duty on Zila Parishad to fix the time and

place for next meeting, in each of its meetings.

31. As has been noticed above, the statutory Rules

framed under the Act requires participation of the Chief

Executive Officer in each and every meeting. There is no reason

why the Zila Parishad in one of its meetings should not decide

the next date of meeting, in the presence of the Chief Executive

Officer, who shall ensure the decision of the Zila Parishad for its

next meeting to be incorporated in the minutes of the proceedings

of the meeting of Zila Parishad. Once date and time is decided by

the Zila Parishad, it will become an obligation for the Chief

Executive Officer to issue notice accordingly as prescribed under

the provisions of the Act and the Rules framed thereunder.

32. The Court is surprised to notice the controversy

which has arisen in the present case and has not been properly

addressed by the Additional Chief Secretary before passing the

order that despite requests being made by the Adhyaksha of Zila

Parishad, the Chief Executive Officer refused to issue notice for Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

convening the meetings on several occasions. Functions of the

Chief Executive Officers have been clearly laid down in Section

88 of the Act which provides, inter alia, that they have to carry

out the policies and directions of Zila Parishad and take

necessary measures for speedy execution of all works and

development schemes of Zila Parishad. They cannot deviate the

directions of Zila Parishad and refuse to carry out the policies of

Zila Parishad unless, in his opinion, such policies/ directions of

Zila Parishad are violative of or inconsistent with the provisions

of the Act or any other law or Rules or order made thereunder.

33. In my opinion, the impugned order requires

interference on the sole ground that it has been passed without

recording any finding on the conduct of the Chief Executive

Officer(s) as alleged in the reply of the petitioner to the show

cause notice that despite his requests Chief Executive Officer

refused to issue notice for convening meetings.

34. Further, Mr. Giri, learned Senior Counsel has

rightly pointed out to an order passed by the Additional Chief

Secretary in case of Adhyaksha, Patna Zila Parishad dated

28.11.2019, Annexure-9, relevant portion of which has been

quoted hereinabove, wherein the Additional Chief Secretary had

emphasized on the role of the Chief Executive Officer in the Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

matter of convening meetings. Failure in convening meetings, as

required under the Act, could not have been attributed solely to

the petitioner, in the present facts and circumstances of the case,

as discussed above.

35. Mr. Giri has rightly referred to the Supreme

Court's decision in case of Tarlochan Dev Sharma (supra),

wherein the Supreme Court dealing with similar provision under

Section 22 of Punjab Municipal Act, 1911 has held in paragraph 7

as under :-

"7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law.

That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case."

36. In case of Sharda Kailash Mittal (supra), the

Supreme Court dealing with M.P. Municipalities Act, 1961 had

held that keeping in view the nature of the power and

consequences that follows in its exercise, removal of a person

from an elected office, such power can be invoked by the State

Government only for a very strong and weighty reason. The

Court observed that such provision should be construed in strict

manner because 'holder of office occupies it by election and he/

she is deprived of the office by an executive order in which the

electorate has no chance of participation'.

37. The challenge on the ground that the order was not

passed by the State Government and was rather passed by the

Additional Chief Secretary, who is not the Government within the

meaning of Section 2(o) of the Act, is not sustainable in the

Court's opinion in view of the Division Bench decision rendered

in case of Amrawati Devi (supra).

Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

38. Before I part with this order, I am of the view that

the respondents, particularly the State of Bihar, should ensure

strict compliance of Section 72 (1) of the Act by issuing

necessary guidelines to the effect that the Zila Parishad by

requiring that date, time and place for the next meeting of Zila

Parishad is fixed in the very first meeting as stipulated in the first

proviso to sub-section (1) of Section 72(1) of the Act. This will

facilitate holding of meeting in compliance of sub-section (1) of

Section 72 which stipulates holding of a meeting 'fixed at the

immediate preceding meeting'. It is noteworthy that whereas

Section 69 authorises the Adhyaksha of Zila Parishad to convene

a meeting, meetings as contemplated under Section 72(1) of the

Act should be fixed by Zila Parishad in one of its meetings.

39. Till such necessary guidelines are issued by the

State Government, it is directed that the Zila Parishads, in order

to give effect to the provision of Section 72 of the Act, decide the

date, time and place of the next meeting in its first meeting held

in accordance with the proviso to Section 72(1) of the Act and in

the second meeting, date, time and place of the next meeting so

on and so forth, shall be determined. The Chief Executive Officer

shall be under obligation to duly notify such meetings and in

case, for any reason, meetings are not being convened in Patna High Court CWJC No.10778 of 2021 dt.23-08-2021

accordance with the provisions under the Act, he shall be required

to inform in writing his opinion to the Adhyaksha in this regard

forthwith.

40. This application is accordingly allowed, with the

aforesaid directions and observations.

41. Let this order be communicated to the Additional

Chief Secretary for strict compliance, forthwith.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          25 .08.2021
Transmission Date       NA