Dismissed

Archana Singh and Ors. v. The State Of Bihar and Ors.

Patna HC26 Mar 2014CWJC/13586/2013

Case brief

AI extract

What is this about?

Chairman and Vice-Chairman of Bhojpur Zila Parishad challenged the District Magistrate's notice convening a special meeting to consider a no-confidence motion against them, which was passed. The Court held the seven-day notice requirement was a waivable protection, that participation in the meeting amounted to waiver and caused no prejudice, and dismissed the petition.

What the court decided

AI extract

Archana Singh and Ors. Vs The State Of Bihar and… — Municipal and Town Planning | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13586 of 2013

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======================================================

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Archana Singh Wife Of Sri Om Prakash Singh Resident Of Village And P.O. Karbasin, P.S. Ajimabad, District - Bhojpur At Ara, Presently The Chairman Of Zila Parishad, Bhojpur At Ara, District - Bhojpur At Ara 2. Amod Kumar Rai Son Of Late Shatrughan Rai Resident Of Village And P.O.Jamuaon, P.S. Piro, District - Bhojpur At Ara, Presently The Deputy Chairman Of Zila Parishad, Bhojpur At Ara, District - Bhojpur At Ara

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.... .... 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

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The Director, Panchayati Raj Department, Government of Bihar, Patna

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The District Magistrate, Bhojpur at Ara, District - Bhojpur at Ara 5. The Deputy Development Commissioner - Cum - Chief Executive Officer, Zila Parishad, Bhojpur At Ara, District - Bhojpur At Ara

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Sri Santosh Kumar Mishra Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Narendra Tiwary Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara 8. Sri Gangadhar Pandey Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara 9. Sri Nand Kumar Ojha Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Yunus Khan Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Nilu Singh Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Binda Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Ganga Sagar Pandit Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Sushila Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Malti Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Ganesh Prasad Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Prem Lata Kumari Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Jyoti Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Niraj Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara 20. Smt. Ramawati Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Mina Kumari Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Fulwanti Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Asha Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Mobarak Hussain Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Suresh Singh Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Gorakh Nath Singh Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Arjun Kushwaha Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Ram Ganesh Ram Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Rita Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt.Bandana Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Shailendra Kumar Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Sri Lal Bihari Yadav Son Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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Smt. Ruby Devi wife of not know to the petitioners

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Smt. Rina Devi Wife Of Not Known To The Petitioners The Member Of Bhojpur Zila Parishad, Ara Through The Deputy Development Commissioner - Cum - Executive Officer, Zila Parishad, Bhojpur At Ara, P.O. And P.S. Ara, District - Bhojpur At Ara

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.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam For Respondents 9, 18, 22, 28, 29, 33 and 34 : Mr. Baxi S.R.P. Sinha, Senior Advocate, Mr. Sanjay Kumar and Mr. Rahul Nath, For respondents 7 and 16: Mr. Radha Mohan Pandey Mr. Chandra Shekhar Kumar For respondents 13, 25, 26, 27 32 : Mr. Sanjay Kumar, Mr. Surendra Kumar Chaubey Mr. Surya Prakash, Advocates. For respondents 6, 14, 15, 17, 19 31 Mr. Ram Suresh Roy, Senior Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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10 26-03-2014

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In the election of Zila Parishad, Bhojpur (at Ara) the petitioners were elected as the Chairman and Vice Chairman respectively. They have assailed the notice dated 10.7.2013 (Annexure 4) issued by respondent District Magistrate, Bhojpur at Ara whereby and where-under special meeting of Bhojpur Zila Parishad was directed to be held on 23.7.2013 to consider the no confidence motion against the petitioners. The elected members of the Zila Parishad were requested to participate. Be it noted that during the pendency of this application, the special meeting of the Zila Parishad was held on 23.7.2013 in which the no confidence motion was moved, debated and passed by majority of the elected members of the Zila Parishad expressing their want of confidence in both the petitioners herein.

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In order to appreciate the contention(s) of the parties the court would first notice the factual background of the case.

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In the election of the Zila Parishad held in the year 2011 the petitioners herein were elected as Chairman (Adhyaksha) and Vice Chairman (Upadhyaksha). A requisition dated 1.7.2013 (Annexure 1) signed by seven members of the Zila Parishad and addressed to petitioner no.1 was filed requesting him to convene the special meeting of the Zila Parishad to consider the motion of

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no confidence against both the petitioners. The matter was brought to the notice of petitioner no.1 by the Chief Executive Officer of the Zila Parishad (respondent no.5) on 1.7.2013 itself. The petitioner no.1 in the light of the notice placed on the file and taking into consideration the contents thereof rejected the request of the members for summoning of special meeting by order dated 2.7.2013 primarily on the ground that no reason or charges on the basis whereof the motion was sought to be moved were disclosed therein. The decision of petitioner no.1 rejecting the request of the requisitionists members was communicated to all concerned by the Chief Executive Officer vide letter dated 3.7.2013 (Annexure 2). The requisitionists thereafter approached the respondent District Magistrate on 4.7.2013 requesting him to convene the special meeting of the Zila Parishad for the said purpose. An application dated 4.7.2013 (Annexure 3) was filed in this regard. The District Magistrate having regard to the said application and the relevant provisions of the Bihar Panchayat Raj Act, 2006 (For short „the Act‟) by an order dated 10.7.2013 (Annexure 4) directed for summoning of special meeting of the Zila Parishad to be held on 23.7.2013 at 11 A.M. under his chairmanship. The Chief Executive Officer of the Zila Parishad was directed to issue notice in this regard. By a communication dated 10.7.2013 (Annexure 5),

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the Chief Executive Officer circulated the aforesaid order of the respondent District Magistrate (Annexure 4) fixing the special meeting of the Zila Parishad at the place and time so directed by the District Magistrate. Neither the order dated 10.07.2013 passed by the District Magistrate nor the notice which only enclosed the said order of the respondent District Magistrate stated the reasons/charges on which such no confidence motion was to be moved against the petitioners.

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In the meanwhile, second requisition dated 6.7.2013 signed by another set of sixteen elected members of the Zila Parishad (contesting respondents herein) was filed incorporating therein specific reasons/charges on which they sought the no confidence motion to be moved against both the petitioners. The said requisition was filed as the petitioner no.1 had earlier rejected the first requisition signed by seven members (Annexure 1) on the ground that the same did not contain any reason/charges. The said requisition was delivered in the office of petitioner no.1 as she was not found present in the office. Petitioner no.1, however, did not act on the said requisition. After expiry of seven days of such filing of the requisition the petitioner no.1 by an order dated 12.7.2013 (Annexure B/I) rejected the said requisition on the ground that respondent District Magistrate had

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already convened the special meeting of the Zila Parishad on 23.07.2013 by his order dated 10.07.2013 (Annexure 4). The requisitionists of the said requisition approached the District Magistrate where-after the District Magistrate by another communication dated 17.7.2013 (Annexure 6) directed for consideration of the said requisition also in the meeting which he had already convened on 23.7.2013. In substance, both the requisitions were directed to be considered in the special meeting of the Zila Parishad already convened by him on 23.7.2013. The Chief Executive Officer by a notice contained in letter bearing memo no. 834 dated 18.7.2013 circulated amongst all the members the aforesaid direction of the District Magistrate contained in his letter dated 17.7.2013. As noticed, the special meeting of the Zila Parishad was held on 23.7.2013 wherein the no confidence motion moved against the petitioners was discussed/ debated and put to vote by secret ballot. The petitioners herein participated in the said special meeting held on 23.7.2013. Out of thirty elected members, twenty one voted in favour of the no confidence motion. The petitioners and the requisitionists members of the first requisition, however, did not cast their vote. The no confidence motion was passed against petitioner no.1 since seventeen of the members had voted in favour of the motion

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whereas only two opposed the motion. Similarly in the case of petitioner no.2, the no confidence motion was passed after putting the same to vote wherein eighteen elected members voted in favour of the motion while 04 members voted against it. As noticed, the Zila Parishad consisted of thirty elected members out of which one post was vacant on account of death of one of the elected members. The petitioners by filing I.A No. 5143 of 2013 have sought to challenge the proceeding of meeting of the Zila Parishad held on 23.7.2013 wherein the no confidence motion was passed against them.

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Heard Mr. S.B.K. Mangalam, learned counsel appearing in support of the writ petition, Mr. Baxi S.R.P. Sinha, learned Senior Counsel appearing on behalf of respondents 9, 18, 22, 28, 29, 33 and 34, Mr. Sanjay Kumar who appeared on behalf of respondents 13, 25, 26, 27 and 32 and Mr. Ram Suresh Roy, learned Senior Counsel who appeared on behalf of respondents 6, 14, 15, 17, 19 and 31. They all have opposed the writ petition. Mr. Radha Mohan Pathak has appeared on behalf of respondents 7 and 17 (two of the seven signatories of the first requisition) to support the writ petitioners.

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Both parties have exchanged pleadings.

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The counsel for the petitioners has contended that

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although the second requisition signed by the 16 elected members(the contesting respondents herein) did contain the reasons/charges but the order thereon passed by the respondent District Magistrate and the consequential notice dated 18.07.2013 issued by the respondent Chief Executive Officer is/are in the teeth of the provisions contained in section 72 of the Act as no clear 07 days time was allowed before consideration of the said requisition in the special meeting of the Zila Parishad held on 23.07.2013. Second requisition was not delivered to the petitioners and as such the respondent District Magistrate should not have acted upon the said requisition directing inclusion thereof for discussion/debate in the special meeting already convened by him on 23.07.2013. He further urged that there is visible conflict between the provisions contained in section 70 and 72 of the Act in so far as the jurisdiction of the District Magistrate to convene the special meeting on the requisition signed by not less than 1/5^th of the elected members of the Zila Parishad is concerned.

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Mr. Buxi S.R.P. Sinha, learned Sr. Counsel appearing for one set of the contesting respondents, on the other hand, opposed the writ petition and contended that the first requisition was got filed by the supporters of the petitioners themselves without specifically mentioning the reasons/charges

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therein. Acting promptly thereon the petitioner no.1 rejected the said requisition/request on the following day which was notified to all concerned. In such circumstance, the second requisition spelling out the reasons/charges on which the no confidence motion was proposed to be moved was filed on 06.07.2013. The petitioner no.1 on this occasion declined consideration thereof until the District Magistrate on the request so made by the first requisitionists acted and fixed the special meeting of the Zila Parishad on 23.07.2013. Soon thereafter on 12.07.2013 the petitioner no.1 rejected the second requisition on the ground that acting on the first requisition the District Magistrate had already fixed the special meeting of the Zila Parishad on 23.07.2013. It is next urged that contention of the petitioner that no clear seven days time was granted to them or the members of the Zila Parishad while including the second requisition for consideration in the special meeting of the Zila Parishad already convened on 23.07.2013 is only ornamental. It is also submitted that there is no apparent conflict in sections 70 and 72 of the Act in so far as the jurisdiction of the respondent District Magistrate to convene the special meeting is concerned. Furthermore, no such issue/objection can be raised by the petitioner(s) who themselves participated in the special meeting held on 23.07.2013 and

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defended their case and finding themselves in minority declined to cast their votes on the motion of no confidence.

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Mr. Ram Suresh Roy, learned counsel for another set of contesting respondents adopted the submissions of Mr. Sinha and submitted that there is no procedural defect in holding special meeting on 23.07.2013. Even if there is any such defect they need to overlooked considering the fact that the petitioners participated in the special meeting held on 23.07.2013. He relied in this regard on some orders passed by this Court which shall be considered in the later part of the order.

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A brief survey of the relevant provisions of the Act on which reliance has been placed by both the parties is considered indispensable.

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Section 70 of the Act provides for resignations or removal of Adhyaksha and Up-Adhyaksha. Sub section 4 thereof, in its relevant part, is extracted hereinbelow:-

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(4) (i) Adhayaksha and Up-Adhayaksha 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 directly elected members from territorial constituencies of the Zila Parishad at a meeting specially convened for the purpose. The requisition for such a special meeting shall be signed by not less than one fifth of the total

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number of directly elected members of the Zila Parishad and shall be delivered to the Adhyaksha with a copy to the District Magistrate. The Adhyaksha shall within seven days from the date of receipt of such requisition convene a special meeting of the Zila Parishad. The meeting shall be held on a day not later than fifteen days from the date of issue of the notice of the meeting. The meeting shall be presided over by the Adhyaksha if the motion is against the Up-adhayaksha; if it is against the Adhyaksha the Upadhyaksha shall preside over the meeting and if it is against Adhyaksha and Upadhyaksha both then the District Magistrate shall preside over the meeting.

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In case of the post of Up-adhyaksha being vacant or his absence from the meeting convened for discussion on no confidence motion against the Adhyaksha or the post of Adhyaksha being vacant or his absence from the meeting convened for discussion on no confidence motion against the Up-adhyaksha, as the case may be, the meeting shall be presided over by any member elected from amongst the directly elected members from the territorial constituencies of the Zila Parishad present in the meeting.

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In case of failure to convene the meeting by the Adhyaksha, the District Magistrate shall convene the meeting in the same manner and the meeting shall be presided by him.

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No such meeting shall be postponed once

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the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion.

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(ii) xxx xxx

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(iii) xxx xxx

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(iv) Such reasons/charges, on the basis of which no confidence motion is to be moved against the Adhyaksha or Upadhyaksha, shall be clearly mentioned in the notice of the meeting called to consider the no confidence motion.

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(v) xxx xxx

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(vi) During discussion, opportunity shall be given to the Adhyaksha or Upadhyaksha or both against whom no confidence motion is moved, for his defence before the Zila Parishad. The motion shall be put to vote on the same day after discussion which shall take place by secret ballot in the prescribed manner by the District Magistrate.

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(vii) xxx xxx ….”

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Section 72 deals with the meeting of Zila

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Parishad which is reproduced hereinbelow:-

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72. Meeting of the Zila Parishad-

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(1) The Zila Parishad shall hold its meetings at least once in every three 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 :

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Provided, that the first meeting of a newly

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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;

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Provided further that the Adhyaksha when required in writing by one-fifth of the members of the Zila Parishad to call a meeting after giving intimation to the District Magistrate and seven clear days notice to the Adhyaksha and the other members of the Zila Parishad.

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(2) One-third of the total number of members of the Zila Parishad shall form a quorum for transacting the business at the meeting of the Zila Parishad.

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(3) All questions coming before the Zila Parishad shall be decided by a majority of votes; in case of equality of votes the Adhyaksha or the member presiding shall have casting vote.

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(4) Every meeting shall be presided over by the Adhyaksha or if he is absent, by the Upadhyaksha and if both the Adhyaksha and Upadhyaksha are absent or if the Adhyaksha is absent and there is no Up-adhyaksha, the members present shall elect one from among themselves to preside.

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(5) No member of Zila Parishad shall vote on or take part in the discussion of any question coming up for consideration at a meeting of the Zila Parishad or any Committee if the question is one in which apart from its general application to the public he has any direct pecuniary or personal interest and if the person presiding has such an

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interest, he shall not preside over the meeting when such question comes up for consideration.

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(6) If the person presiding is believed by any member present at the meeting to have any such pecuniary or personal interest in any matter under discussion and if a motion to that effect be carried, he shall not preside over at the meeting during such discussion or vote on or take part in it. Any member of the Zila Parishad may be chosen to preside at the meeting during the continuance of such discussion.

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(7) No proposition shall be discussed at any ordinary meeting unless it has been entered in the notice convening such meeting or in the case of a special meeting in the written request for such meeting. A member may propose any resolution connected with or incidental to the subjects included in the list of business. The Adhyaksha may propose any urgent subject of a routine nature not included in the list of business if no member objects to it. No permission shall be given in the case of a motion or proposition to modify or cancel any resolution within three months after the passing thereof except in accordance with subsection (9). The order in which any business or proposition shall be brought forward at such meeting shall be determined by presiding authority which in case it is proposed by any member to give particular proposition shall put the proposal to the meeting and be guided by the majority of votes given for or against the proposal. (8) Any ordinary meeting may, with the consent of a majority of the

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members present, be adjourned from time to time, but no business shall be transacted at any adjourned meeting other than left undisposed at the meeting from which the adjournment took place.

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(9) No resolution of Zila Parishad shall be modified or cancelled within six months after the passing thereof except by a resolution passed by not less than one-half of the total number of members at an ordinary or special meeting any notice whereof shall have been given fulfilling the requirement of sub-section (4) and setting forth fully resolution which it is proposed to modify fully or cancel at such meeting and motion or proposition for the modification or cancellation of such resolution.

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(10) The proceedings of every meeting shall be recorded in the minutes book immediately after the deliberations of the meeting and shall after being read over by the presiding authority of the meeting be signed by him. The action taken on the decisions of Zila Parishad shall be reported at the next meeting of the Zila Parishad. The minutes book shall always be kept in the office of the Zila Parishad. The Chief Executive Officer shall be the custodian of the minute book.

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(11) The Zila Parishad may require the presence of Government officers at its meetings. If it appears to a Zila Parishad that the attendance of any field officer having jurisdiction over an area of a district or part of a district and not working under the Zila Parishad is desirable at a meeting of the

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Zila Parishad, the Chief Executive Officer shall by a letter addressed to such officer not less than fifteen days before the intended meeting, request that officer to be present at the meeting and the officer shall, unless prevented by sickness or other reasonable cause, attend the meeting :

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Provided that the officer on receipt of such letter may if he for any of the causes aforesaid is unable to be present at the meeting himself, instruct his deputy or other competent subordinate officer to represent him at the meeting.

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On perusal of the provisions contained in section 70 of the Act it is more than evident that in case of failure to convene the special meeting by the Adhyaksha the District Magistrate is empowered to convene the special meeting and in that case the same shall be presided over by him. The petitioner has, therefore, not raised any issue with regard to the competency of the District Magistrate to convene the special meeting on 23.07.2013. It appears that the 2^nd requisition dated 06.07.2013 was sought to be delivered to the petitioners but the same was refused. A copy thereof was also served on the Chief Executive Officer who admittedly brought the same to the notice of the petitioner no.1. The petitioner no.1 having perused the requisition which contained reasons/charges for such no confidence motion, rejected the same on the ground that the special meeting was

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already convened by the District Magistrate under his order dated 10.07.2013. The petitioners were, therefore, well aware of the reasons/charges on which the second requisition was filed. The requisitionists after refusal by the petitioner moved the District Magistrate with a request to place the said requisition for consideration in the meeting already convened by the District Magistrate and accordingly the same was directed to be considered in the special meeting of the Zila Parishad convened by him on 23.07.2013. There is no denial that the petitioners participated in the said meeting wherein deliberations were made and thereafter motion was put to vote. There is also no dispute that the notice on the second requisition was issued by the Chief Executive Officer which contained the reasons/charges on which such no confidence motion was sought to be moved against the petitioners. What shall be the effect of the participation of the petitioners in the special meeting, in the attending facts of the case, is relevant consideration for this Court. As seen, this period of seven clear days to be granted before convening of the special meeting is for the purpose of granting opportunity to the office bearer(s) to prepare for his/their defence before the matter is considered/debated in the special meeting. Can such protection granted under the Act be waived by the party concerned became

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the subject matter of consideration before a Division Bench of this Court in the case of Smt. Shamshad Khatoon vs. State of Bihar (2010(1) PLJR 929). Considering the factual matrix of the case which is akin to the case in hand this Court in the said case held as under in paragraph 20 and 21:-

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20. The present factual expose has to be appreciated on the touchstone and anvil of aforesaid pronouncements. As is demonstrable, the petitioner in paragraph 6 of the writ petition has stated as follows;-

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“6. That the petitioner has fixed the date for convening the meeting for consideration of no confidence against her in the Register of the Panchayat Samiti for issuing the notice by the Executive Officer for 12.12.09.”

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From the aforesaid it is perceived that she herself had fixed the date of meeting. The meeting as fixed was held on 12.12.2009. She participated in the meeting and took a chance. Thus, fixing of the meeting by the appellant and participation in the meeting would tantamount to waiver by express conduct. If the provisions contained in Section 44 and 46(4) of the Act are read appositely there can be no shadow of doubt that they provide a protective umbrella to the elected Pramukh. Thus, the same does not contravene any public policy. It does not involve any public interest. As we perceive the scheme and anatomy of the provisions of the Act, it is, in fact, basically a protection to the elected candidate. In this regard a Full Bench decision of the High Court of Madhya Pradesh in Smt. Bhulin Dewangan Vs. State of M.P. & Ors., 2000 (4) M.P.H.T. 69 (FB), is apposite to refer. The Full Bench while dealing with the validity of notice calling a meeting of no confidence under M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 speaking through D.M.

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Dharmadhikari, J. (as His Lordship then was) held as follows:-

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“15. The general rule is that noncompliance of mandatory requirement results in nullification of the Act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statute in the interest of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case the act done will be valid even if the requirements or conditions have not been performed. This appears to be the reason for learned C.K. Prasad, J. in Dhumadhandin Vs. State of M.P. (1997 (1) Vidhi Bhasvar 49) which was followed by R.S. Garg, j., in Mahavir Saket Vs. Collector, Rewa (1998 (1) JLJ 113) for holding that mere non-compliance of first part of the rule in fixing a meeting beyond the prescribed days of the motion of noconfidence would not invalidate the whole proceedings. In case of Dhumadhandin (supra), the Sarpanch did not question the validity of the notice calling the meeting of no-confidence and in fact had taken chance by facing the motion. R.S. Garg, J. in Mahavir Saket (supra) placed reliance on the decision of C.K. Prasad, J., in Dhumadhandin (supra) to up-hold the passing of the noconfidence motion in the adjourned meeting as in the meeting called within the prescribed fifteen days the Presiding Officer was not available. Sub-section (4) of Section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no confidence motion had been passed. The proceedings of the no-confidence motion or other proceedings under the Act are also assailable in this Court as Constitutional Court under Article 227 of the Constitution of India. As has been construed by us, even though

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second part of the rule requiring dispatch of notice of the meeting to the member is mandatory, yet in every case of challenge to the proceeding of no-confidence motion either before the Collector or this Court, it would still be open to the Collector or his Court to find out whether in a given case non-compliance of any part of the rule has in fact resulted in any failure of justice or has caused any serious prejudice to any of the parties. The general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provisions is mandatory, every non-compliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfillment of mandatory requirement, the authority empowered to take a decision may refuse to nullify the action on the ground that no substantial prejudice had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of the Constitution has also a discretion not to interfere even though a mandatory requirement of law has not been strictly complied with as thereby no serious prejudice or failure of justice has been caused. This is how various Single Bench decisions in which even after finding some infraction of the second part of Rule 3(3) of the Rules of 1994, the resolution of noconfidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the legislature has to be gathered from the provisions contained in Section 21 and the Rule 3(3) framed thereunder. The provisions do evince an intention that a meeting of the no-confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in

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advance. A notice of no-confidence motion is required to be moved by not less than 1/3 rd of the total number of elected members as required by first Proviso to sub-rule (1) of Rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4 th of the Panchas present and voting and such majority has to be more than 2/3 rd of the total number of Panchas constituting the Panchayat in accordance with sub-section (1) of Section 21 of the Act. This being the substance of the provisions under the Act and the rules, a mere non-compliance of second part of sub-rule (3) would not in every case invalidate the action unless the Collector while deciding the dispute under sub-section (4) of Section 21 or this Court in exercise of its supervisory jurisdiction under Art.227 of the constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice.”

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16. We get some support in our conclusion on the construction of the provisions contained in the Rule from Statutory construction by Francis J. Mc. Caffrrey, 1953 Edition, Article 52, Page 110 where it stated:--

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“Where a statute regulates the time at or within which an act is to be done by a public officer or body, it is generally construed to be permissive only as to the time, for the reason “that the public interests are not to suffer by the laches of any public officer” (Looney Vs. Hughes, 26 N.Y., 514). While the Courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to exact a literal compliance with the requirement of time. The Courts seek to achieve a just result in not ascribing an invalidating effect to the failure of public

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officers to observe the time provisions of statutes; a contrary rule would operate unfairly in prejudicing the rights of persons who have no control over the conduct of the public officer.” (Emphasis supplied)

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and from the following passage in Statutory Interpretation by Francis Bennion, Second Edition, Part I Section 10 Page 34:--

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“Even where the duty is mandatory, the Court will not now-a-days hold it to be contravened because of a purely formal or technical defect. This may be described as a defect that does not materially impair the remedy intended to be provided by the enactment for the mischief to which it is directed.”

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21. Applying the aforesaid principle to the facts of the present case there can be no room for doubt that the right could be waived by the elected candidate and she has done so by her express conduct. Quite apart from the above this Court cannot be oblivious of the fact that the appellant had participated in the meeting by taking a chance and 12 members voted against her. It is also apt to note all the members had been served and they had participated. The requisite majority had voted against her. Ergo, there is no justification or warrant to interfere in the proceeding of No Confidence Motion in exercise of the extraordinary and equitable jurisdiction of this Court under Articles 226 and 227 of the Constitution of India”

¶145

In 2005 (3) PLJR 582(Balram Singh Yadav v. State of Bihar) a learned single Judge of this Court having noticed certain flaw in the manner in which the special meeting of the Zila Parishad was convened declined relief noticing the fact that the

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petitioner (elected Adhyaksha) had participated in the said special meeting and having been voted out of the office he was stopped from raising any such issue.

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It is thus seen that by express conduct the protection granted under the Act can be waived by those who have been given such protection. On perusal of the proceeding of the special meeting held on 23.07.2013 (Annexure-B/29) it appears that the petitioners herein had participated therein. Both the requisitions were considered in the said meeting. After giving an opportunity to debate on those requisitions, the same was put to vote and was passed by the majority of the members present at the special meeting. This Court has, therefore, no manner of doubt to conclude that in not granting seven clear days time for consideration of the second requisition the special meeting held on 23.07.2013 is vitiated. The factual expose of the present case in the light of the ratio laid down by this Court, as noticed above, persuades me to hold that any such right/protection granted under the Act to the petitioners was/were waived. No serious prejudice has been caused to the petitioners. If that be so then the equitable jurisdiction of this Court cannot be invoked to grant the relief(s).

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Another contention of the petitioner is that there is conflict between section 70 and 72 of the Act in so far as the

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power and jurisdiction to convene the special meeting by the District Magistrate is concerned. The said submission of the petitioners, on deeper scrutiny, does not appear to be well founded. The provision(s) contained in section 70 talk of only special meeting to be convened to discuss no confidence motion whereas section 72 of the Act deals with the manner in which ordinary meetings of the Zila Parishad are to be held. I am, therefore, unable to hold that there is any conflict between the provision(s) contained in section 70 and 72 of the Act in so far as the jurisdiction of the District Magistrate to convene the special meeting of the Zila Parishad to consider the no confidence motion is concerned.

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In the light of the discussions made above, the application is found sans substratum and is consequently dismissed.

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There shall be no order as to cost(s).

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(Kishore Kumar Mandal, J)

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haque/- HR

Archana Singh and Ors. v. The State Of Bihar and Ors.

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Archana Singh and Ors. v. The State Of Bihar and Ors.

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