Krishna Kumar Choudhary vs The State Of Bihar Through The ...
2021 Latest Caselaw 410 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7758 of 2020
     ======================================================

Krishna Kumar Choudhary, Male, aged about 57 years, son of Late Shivjee Chaudhary, resident of village and P.O. Kalyanpur Basti Purb, P.S. Mohiuddin Nagar, District Samstipur, presently Pramukh of Block Panchayat Samiti, Mohiuddin Nagar, District- Samastipur.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

3. The District Magistrate, Samastipur, District- Samastipur.

4. The Sub-Divisional Officer, Patori, District- Samastipur.

5. The Block Development Officer-cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar, P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

6. Babita Devi, wife of not known to the petitioner, presently Up- Pramukh of Block Panchayat Samiti, Mohibuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

7. Jawahar Lal Rai, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

8. Alka Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

9. Nirmala Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

10. Manoj Kumar Das, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

11. Jyoti Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

12. Ram Briksha Paswan, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

13. Usha Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

14. Lalita Singh, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

15. Parwati Devi, wife of not known not he petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

16. Dharmendra Kumar Rai, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

17. Manju Kumari, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

18. Babita Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

19. Baby Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

20. Jaishar Rana Amrish, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

21. Gautam Pandit, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

22. Nasima Khatoon, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

23. Md. Seraj, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

24. Indu Devi, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur. Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

25. Babita Kumari, wife of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

26. Pawan Singh, son of not known to the petitioner, Panchayat Samiti Member of Block Panchayat Samiti, Mohiuddin Nagar through the Block Development Officer - cum- Executive Officer, Block Panchayat Samiti, Mohiuddin Nagar P.O. and P.S. Mohiuddin Nagar, District- Samastipur.

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

For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam, Advocate For the Res. No.1 to 5 : Mr. Pratik Kumar Sinha, A.C. to G.A.5 ====================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL JUDGMENT Date : 28-01-2021

Heard Mr. Shashi Bhushan Kumar Manglam, the learned

counsel for the petitioner and Mr. Pratik Kumar Sinha, the learned

A.C. to G.A.5. Nobody appears on behalf of the private

respondents.

2. The petitioner seeks following reliefs:

"(I) For issuance of an appropriate writ in the nature of CERTIORARI for quashing the requisition dated 25.08.2020 received by the petitioner through the Respondent no.5 on 27.08.2020 bearing signature of 17 members of Block Panchayat Samiti, Mohiuddin Nagar and addressed to the petitioner under which a requisition has been made from the petitioner to fix the date of special meeting of the Block Panchayat Samiti for consideration of No Confidence Motion against the petitioner on the ground that if the said requisition has not been Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

brought before the petitioner in the manner as contemplated under Sub-Section -3 (i) of Section 44 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Gram Panchayat Act).

(II) For a declaration that if he has not received the impugned requisition in the manner as contemplated under Sub-Section -3 (i) of Section -44 of the Gram Panchayat Act, the petitioner is not obliged to fix the date of special meeting in discharge of his statutory function as contemplated under Gram Panchayat Act.

(III) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under the facts and circumstances of the case.

3. During the pendency of this writ petition, the

petitioner filed I.A. No.1 of 2020 and further prays additional

reliefs, but from perusal of the reliefs enumerated in the I.A.

petition, it appears to me that the relief sought for is same and

similar to what is sought for in the main petition.

4. Facts in brief are that the petitioner was initially

elected as Up-Pramukh of Mohiuddin Nagar Panchayat Samiti and

later on the petitioner was elected as the Pramukh after removal of

the then Pramukh, Jawahar Lal Rai by a No Confidence

Resolution and since 19.08.2018 after being elected as Pramukh,

the petitioner is working as Pramukh.

Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

5. Mr. S.B.K. Manglam, the learned counsel for the

petitioner has raised primarily following issues:

(i) Whether the impugned requisition singed by 17

elected members of Block Panchayat Samiti is duly served on the

petitioner in the manner and the mode prescribed under Sub-

Section 3(i) of Section 44 of the Gram Panchayat Act?

(ii) Whether the requisitionists of notice asking for

moving the No Confidence Motion against the Pramukh is

justified in presenting the requisition along with its copies directly

to the Block Development Officer and if not the service of notice

by the Block Development Officer is legal?

(iii) Whether the requisitionists or the Up-Pramukh

would be competent to fix the date of special meeting on the basis

of the impugned requisition even when the same has not been

served by the requisitionists to the Pramukh, the petitioner as

mandated under Sub-Section 3(i) of Section 44 of the Gram

Panchayat Act.

(iv) Whether the requisition shall be deemed to have

been served according to the records on the petitioner on

04.09.2020 and before expiry of the prescribed period as

contemplated under Section 46(4) of the Act and, as such, fixing of

the date of special meeting by the requisitionists or the Pramukh Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

before expiry of the stipulated time is not illegal and, as such, the

resolution of No Confidence Motion against the petitioner in the

aforesaid special meeting is illegal?

6. Mr. S.B.K. Manglam, the learned counsel for the

petitioner submits that apart from the facts that the respondent no.5

is on inimical term with the petitioner as the petitioner being

Pramukh of the Block Panchayat Samiti was objecting his illegal

acts, a requisition bearing the signatures of required numbers of

elected members of Panchayat was prepared and it is said that the

elected members gave requisition for the purpose of No

Confidence Motion and its presentation before the petitioner in his

office as alleged but when the petitioner was not found available in

his office on 25.08.2020 itself the requisitionists gave the

resolution to respondent no.5, the Block Development Officer,

Mohiuddin Nagar at 12.35 P.M. The respondent no.5 after having

received the requisition processed the same with lighting speed

and prepared the file for forwarding of requisition to the petitioner.

On 25.08.2020 itself, the file was handed over to a peon of the

office on respondent no.5 for its service upon the petitioner. The

peon came to the residence of the petitioner on 25.08.2020 for

serving the requisition on the petitioner along with the forwarding

letter of respondent no.5 but since the petitioner was out of his Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

residence, it was not served. It is further submitted that when the

petitioner came back to his house in the late hour of 26.08.2020,

the peon came to the petitioner for service of requisition and

petitioner received the requisition on 27.08.2020. The respondent

no.5 also sent photo copy of the requisition to the petitioner

through the registered post, which was also delivered to the

petitioner on 27.08.2020, but the petitioner never received any

requisition in the manner as contemplated under Sub-Section 3 of

Section 44 of the Gram Panchayat Act (hereinafter referred to as

'the Act).

7. It is further submitted that the requisitionists has

neither presented the original requisition before the petitioner nor

the petitioner has received the original requisition through the

respondent no.5 as required under Sub-Section 3(i) of Section 44

of the Act. The records would show that since the petitioner had

returned the file to respondent no.5 with certain queries on

29.08.2020 and on 02.09.2020, the petitioner has rejected the

request of the requisitionists to convene the special meeting vide

his Letter No.120, dated 02.09.2020. Mr. Manglam further submits

that the records with comments of the petitioner in file and Letter

No.120, dated 02.09.2020 were received in the office of

respondent no.5 on 02.09.2020 itself. The concerned file and the Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

requisition further show that the respondent no.5 had received the

original requisition and the file was with the photo stat copy of

requisition. The Head Clerk again wrote notes on the file for

forwarding the file to the Pramukh for his necessary action with

original requisition. Thereafter the petitioner received the file once

again on 04.09.2020 along with the original requisition. The

petitioner was considering the request of the requisitionists

according to the statutory provision as the petitioner being

Pramukh after having received the requisition in its original is to

fix the date of special meeting within seven days excluding

04.09.2020 with clear seven days notice to the members of the

Panchayat Samiti for convening a meeting but the respondent no.5,

the Block Development Officer usurped the power of the petitioner

and fixed the date of special meeting on 18.09.2020. Notice in this

regard was issued to all the elected members of the Panchayat

Samiti vide Letter No.1190, dated 09.09.2020. The respondent

no.5 issued another letter being Letter No.1191, dated 09.09.2020

addressed to Sri Krishna Kumar Choudhary, Panchayat Samiti

Sadasya requesting the petitioner to attend the meeting but this fact

itself shows the mala fide intention and manipulation of the

respondent no.5 that he did not even address the petitioner who

was Pramukh on that day as Pramukh and the respondent no.5 Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

assumed him a simple member of Panchayat Samiti. It is

submitted that the entire process for serving the requisition

requesting for calling for special meeting to the Pramukh and

holding special meeting before expiry of statutory period and for

fixing the date of special meeting before expiry of the statutory

period within which the Pramukh after having received such

requisition may call the special meeting amounts to usurping the

power vested in Pramukh under law and, as such, convening a

special meeting by the respondent no.5 is illegal. Mr. Manglam

placed his reliance on the judgment of this Court reported in 2015

(1) PLJR 790, Geeta Devi vs. State of Bihar and submits that,

therefore, the resolution removing the petitioner from the post of

Pramukh is illegal and not sustainable. Mr. Manglam, the learned

counsel for the petitioner further submits that the provision of Sub-

Section 3 of Section 44 of the Act provides that the

notice/requisition must be served on the Pramukh in the manner

prescribed therein. The requisition must mark a copy to the

Executive Officer. On receipt of such notice, the Pramukh is

obliged under the Act to convene a meeting within a period of 15

days. If the Pramukh fails to do, the requisitionists or the Up-

Pramukh can require the Executive Officer to convene a meeting

within the stipulated time. From the records of the case, it would Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

show that notice was not ever served according to the manner as

prescribed under the Act to the petitioner. If the petitioner was not

found present in his office on 25.08.2020, the original requisition

is to be duly served on the petitioner in the prescribed manner and

no in any other way. The original requisition was only served on

the petitioner on 04.09.2020 and, therefore, the petitioner may call

the special meeting till 11.09.2020. Non-service of notice in the

prescribed manner came for consideration before this Court in the

case of Sheikh Hassmuddin & Anr. Vs. State of Bihar (LPA No.484

of 2015 in CWJC No.14526 of 2014), reported in 2015 (3) PLJR

203 and a Division Bench of this Court has clearly held that if

notice is not served in the prescribed manner, the resolution

removing the elected members is illegal.

8. Mr. Pratik Kumar Sinha, the learned A.C. to G.A.5

contending the submissions of Mr. Manglam submits that it is

admitted fact that the requisitionists having signature of required

number of elected members of Panchayat Samiti went to serve the

notice/requisition on the petitioner in the office of the petitioner

but the petitioner was not present. The requisitionists handed over

the copy of the notice/requisition along with a copy to the Block

Development Officer, respondent no.5 on the same day. The

respondent no.5 took steps for service of notice on the petitioner Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

through different modes. The notice/requisition was duly sent to

the petitioner through Whatsapp message on the mobile number of

the petitioner and the petitioner saw the Whatsapp message on the

same day. The petitioner has not denied the receipt of notice

through Whatsapp on 25.08.2020 itself.

9. Mr. Sinha further submits that the respondent no.5,

the Block Development Officer processed the file and handed

over the requisition to the peon for serving the same to the

petitioner. The peon went to serve the requisition and he came

across with the petitioner near a Chowk but the petitioner after

having gone through the requisition refused to accept the same.

The peon put down his notes about the refusal of service of notice

by the petitioner. The file was again placed before the petitioner on

27.08.2020, but the file was kept by the petitioner after putting

some notes and petitioner however admits the fact that he got the

notice on 04.09.2020 although he received the notice in file on

02.09.2020. Notice was also sent to the petitioner by registered

post on 26.08.2020.

10. It is further submitted that as per the mandate of

Section 44(3) of the Act, 2016, the Pramukh is obliged to convene

a special meeting within 15 days of the receipt of the requisition

but the petitioner fails to convene the meeting and only thereafter Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

the record was sent to Up-Pramukh on 09.09.2020 for fixing the

date to convene special meeting. For all practical purposes the

notice was served on the petitioner on 25.08.2020 itself through

Whatsapp. The Bihar State Election Commission laid down certain

directions as contained in Letter No.2535 dated 16.09.2008 and it

has been held in Sub-Clause (iv) that when the Pramukh refused to

receive the requisition to convene special meeting for No

Confidence Motion, the copy served on the Executive Officer of

the Panchayat Samiti shall be deemed to have been served on the

Pramukh. Thereupon the Executive Officer shall serve the notice

through its letter as well as through the file to the Pramukh

requesting him to convene special meeting within stipulated time.

Sub-Clause (v) of the aforesaid letter clearly stipulates about

convening of meeting by the Pramukh after having received notice

through this mode. Mr. Pratik Kumar Sinha further submits that on

the similar facts, this Court in the case of Neetu Kumari Vs. The

State of Bihar & Ors., reported in 2019 (3) PLJR 513 has clearly

held that the notice was duly served on the Pramukh and,

therefore, any irregularity, as alleged by the Pramukh, in the

manner of service of notice cannot frustrate the ends of justice.

11. Mr. Pratik Kumar Sinha further submits that from

perusal of the resolution dated 18.09.2020 when the special Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

meeting was convened and resolution of No Confidence Motion

was passed resulting in removal of the petitioner from the post of

Pramukh, the petitioner participated in the meeting and raised

objection. The petitioner cannot impeach the same order as he has

waived the condition precedent for impeaching the impugned

resolution and the notice. The learned counsel in support of his

contention placed reliance on the judgment of the Hon'ble

Supreme Court in Padmini Singha Vs. The State of Assam & Ors.,

reported in AIR 2018 SC 4590. Relying on the same judgment, this

Court also held in the case of Neelam Devi & Ors. Vs. The State of

Bihar & Ors., reported in 2020 (1) PLJR 619 that once the

petitioner, who impeached the resolution moved against him,

participated in the meeting, he shall be deemed to have waived his

right to impeach such resolution and even if very mandatory

provisions with regard to service of notice is not strictly adhered

to, the same would be immaterial.

12. On the basis of the submissions of both sides, the

dispute turns around the manner and mode of service of the

notice/requisition for bringing No Confidence Motion against an

elected member, such as, Pramukh/Up-Pramukh of Panchayat

Samiti. Answers of all the questions raised on behalf of the

petitioner depends upon the interpretation of Sections 44(3)(i) and Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

46(4) of the Act and for that it would be appropriate for sake of

convenience to firstly reproduce Section 44 and Section 46 of the

Act. It is also appropriate to reproduce the directions as contained

in Sub-Clause (iv) and (v) of Letter No.2535, dated 16.09.2008

issued by the Bihar State Election Commission with regard to

manner and mode of service of notice. When the Bihar State

Election Commission felt that certain substitute mode of service of

notice are required to be adopted when the elected member, such

as, Pramukh, Up-Pramukh and other elected members of

Panchayat refuses or avoids to take notice or requisition duly

prepared by the 2/3 elected members of the Panchayat in order to

bring No Confidence Motion.

"44.Resignation and Removal of Pramukh and Up-Pramukh.-(1) .........................

(2)..........................

(3) (i) A Pramukh/Up-Pramukh of the Panchayat Samiti 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 elected members of the Panchayat Samiti at a meeting specially convened for the purpose.

The requisition for such a special meeting shall be presented to the Pramukh in writing with a copy to the Executive Officer of the Panchayat Samiti, by not less than one third of the total Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

number of members elected directly from the territorial constituencies of the Panchayat Samiti. The Executive Officer shall immediately bring the requisition to the notice of the Pramukh. The Pramukh shall convene such meeting on a date falling within 15 days of such requisition. If the Pramukh fails to call the special meeting, the Up- Pramukh or one third of the total number of directly elected members may fix a date for such meeting and require the Executive officer to give notice to the members and to take such action as may be necessary to convene the meeting. The Executive Officer shall necessarily issue such notice in time and convene the meeting. No such meeting shall be postponed once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion."

"46. Meetings of Panchayat Samiti.- (1)..................... (2)..................... (3).....................

(4) Ten clear days' notice of an ordinary meeting and seven clear days' notice of a special meeting specifying the place, date and time of such meeting is to be held and the business to be transacted threat, shall be sent to the members and affixed at the office of the Panchayat Samiti. Such notice shall include in case of a special meeting Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

any motion or proposition mentioned in the written request made for such meeting."

13. Sub Section-3 of Section 44 of the Act makes it

amply clear that the requisition for such a special meeting shall be

presented to the Pramukh in writing with a copy to the Executive

Officer of the Panchayat Samiti. The requisition is required to be

signed by at least one third of the total number of members elected

directly and on such the Executive Officer shall immediately bring

the requisition to the notice of the Pramukh. This provision further

makes it clear that firstly the requisition for such special meeting is

required to be presented to the Pramukh with a copy of it to the

Executive Officer of the Panchayat Samiti but this provision does

not visualize the situation that how the notice can be served on the

Pramukh when the Pramukh or other elected member against

whom such requisition/notice is proposed to be brought and he

refuses to accept such notice and he was not present in his office.

From clause (iv) and (v) of the directions as contained in Letter

No.2535, dated 16.09.2008, it is crystal clear that the Bihar State

Election Commission, who is a statutory body for holding

Panchayat and other local bodies election, was confronted with

such situation for the manner and mode of service of notice on the

Pramukh and Up-Pramukh against whom such motion is proposed

and if the Pramukh or Up-Pramukh who even after having Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

received such notice convened the meeting violating the specific

provisions and the time for convening such meeting as provided

under Sub-Clause (4) of Section 46 of the Act and only thereafter

issued certain directions as contained in the aforesaid letter with

regard to the manner and mode of service of notice and the manner

of convening such special meeting to consider No Confidence

Motion. The directions appear to be supplemental to the provisions

of the Act.

14. It further transpires that Sub Section (3) (i) of

Section 44 of the Act only says that requisition for for such special

meeting shall be presented to the Pramukh but it does not speak

that how such representation shall be presented to the Pramukh or

in what manner or mode such requisition should be brought to the

notice to the Pramukh particularly when the Pramukh is not

present in his office or he refuses or avoids to receive such notice.

In such situation, this Court finds that the object and purpose of

presenting such requisition to the Pramukh is primarily to bring the

notice of such requisition for requesting him to convene such

special meeting to the Pramukh. The mode and manner of bringing

such notice to the Pramukh of such notice/requisition can be

different. The requisition can be sent to the Pramukh thruogh

Whatsapp or any electronic modes, which are permitted under the Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

procedure for sending notice to the concerned. It has come in the

present case that on 25.08.2020 itself, the requisition was

communicated to the Pramukh through Whatsapp message and the

Pramukh saw Whatsapp message on the same day. The petitioner

did not refute or deny the manner of receiving notice through

Whatsapp either in the reply to the counter affidavit or rejoinder to

the reply of the counter affidavit filed by the State. The petitioner

also received the notice through the registered post. The petitioner

himself stated that he perused the file on 27.08.2020 itself but the

original copy of the resolution was not with the file. On this fact,

this Court finds that the petitioner wants to avoid or scuttled the

resolution proposed to be brought against the petitioner on one

pretext or the other. Thus, I find that the notice is properly served

on the petitioner through different modes on 25.08.2020 itself as

well as on 27.08.2020 when the petitioner himself perused the file

and, therefore, the contention of the petitioner that the notice or

requisition for convening a special meeting is not duly served on

the petitioner in the manner as prescribed under Sub-Section (3) (i)

of Section 44 of the Act, is not acceptable.

15. From the facts of the case in hand, it is crystal clear

that the requisition was duly served on the petitioner on

25.08.2020 itself through Whatsapp message. According to the Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

admission of the petitioner himself that he perused the record on

27.08.2020 and put some notes thereon directing the Executive

Officer to serve the original copy of the requisition as the

petitioner claimed that he could not testify the genuineness of the

signature of the requisitionists. At the time of serving of the

requisition, the petitioner is not legally entitled to refuse to

convene the meeting on the ground that the signatures of some of

the requisitionists are not genuine. The petitioner had no material

before him to refuse to convene such special meeting on such

ground. Sub-Section (4) of Section 46 stipulates and mandates that

the special meeting for consideration of No Confidence Motion

shall be convened within 15 days from the date of receipt of such

requisition excluding the date on which the Pramukh or Up-

Pramukh received such requisition. It is also mandated that the

meeting must be convened giving 7 days clear time for

participation of elected members and, therefore, the notice for

convening such meeting is to be issued on 8 th day and not

thereafter for convening such special meeting from the date of

receiving such requisition. The petitioner received Whatsapp

message on 25.08.2020 itself and he also perused the relevant file

on 27.08.2020, according to his own assertion, therefore, the

petitioner should have convened the special meeting within 8 days Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

from the date on which he perused the relevant record/requisition

for convening a special meeting brought by the requisitionists and

when the petitioner fails to convene such special meeting only

thereafter the Block Development Officer-cum-Executive Officer

placed the file before the Up-Pramukh who fixed the date of

convening special meeting on 18.09.2020, therefore, I find that

neither the Block Development Officer-cum-Executive Officer nor

the Up-Pramukh has usurped the power of the Pramukh to convene

the special meeting rather when the Pramukh against whom the

requisition for bringing No Confidence Motion is brought failed to

convene such special meeting within the stipulated time, the Up-

Pramukh ordered the Executive Officer to convene such special

meeting on 18.09.2020.

16. In the case of Geeta Devi (supra), a Single Bench of

this Court clearly found that on 05.09.2013 when the requisition

was presented before the petitioner but was refused. On

06.09.2013 when the requisition was sought to be served on the

petitioner through the peon was refused as appeared from the

service report but on 11.09.2013 was the date when the

requisitionists ordered to hold special meeting, therefore, it was

found that clear 7 days was not given to the Pramukh or Up-

Pramukh against whom such requisition was brought to convene a Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

special meeting for consideration of No Confidence Motion. It was

found that within the stipulated time as mandated under Sub-

Section (4) of Section 46, the Up-Pramukh usurped the power of

the Pramukh and convened to hold special meeting but the facts of

the present case are quite different and not at all helpful to the

petitioner.

17. In the case of Sheikh Hassmuddin (supra), the

Division Bench found that the notice to move a motion of No

Confidence Motion against the appellant was not directly or in any

other manner were served, therefore, the facts of the aforesaid case

are quite different and slight difference of facts makes a sea

change in the judgment, thus, I find that the cases on which the

petitioner has placed reliance are not at all helpful.

18. From the facts of the case in hand, it further

transpires from the counter affidavit filed by the respondent-State

that the petitioner participated in the discussions and ballot was

also allotted to the petitioner, but he did not cast his vote. Elected

members of the Panchayat Samiti who are more than ½ of the

elected members of the Panchayat Samiti cast their votes in favour

of No Confidence Motion and the resolution was passed through

and petitioner was removed from the post of Pramukh. Mr.

Manglam submits that the petitioner did not participate in the Patna High Court CWJC No.7758 of 2020 dt.28-01-2021

discussion but only he raised objection but the resolution of the

meeting clearly shows that the petitioner participated in the

discussions and he abstained from voting and resolution was

passed, therefore, in view of the law laid down by the Hon'ble

Supreme Court in the case of Padmini Singha (supra), the

petitioner once participated in the resolution cannot impeach that

certain mandatory provisions of law has not been complied with

although I find that no such mandatory provision of the Act

convening the special meeting in bringing the requisition for

discussions of No Confidence Motion is violated.

19. Having considered the facts and discussions made

above, I find no merit in this writ petition. Accordingly, the same

is dismissed. However, no order as to costs.

(Prabhat Kumar Jha, J) S.KUMAR/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          04.02.2021
Transmission Date       NA