This judgment dismissed a writ petition challenging a no-confidence motion. The court held that the petitioner waived her statutory rights to notice and time by fixing the meeting date and participating in the defense, rendering technical procedural defects inoperative.
The writ application challenging the special meeting proceedings is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16420 of 2013
====================================================== 1. Bimal Devi Wife Of Sri Amarjeet Kumar Resident Of Village - Bakhari, P.S. Gayghat, District - Muzaffarpur
.... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Magistrate, Muzaffarpur 3. The District Panchayat Raj Officer, Muzaffarpur 4. The Sub - Divisional Officer, District - Muzaffarpur 5. The Executive Officer - Cum - Block Development Officer Block - Bakhari, Disstrict - Muzaffarpur 6. The State Election Commission, Represented Through Its Secretary, State Election Commission, Bihar, Sone Bhawan, 3rd Floor, Veer Chand Patel Path, Patna - 800001 7. Shri Harendra Ram Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 8. Shri Devendra Prasad Singh Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 9. Shri Binod Sahani Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 10. Shri Raj Kishore Sah Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 11. Shri Ram Jatan Chaupal Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 12. Shri Manoj Rai Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 13. Shri Bhola Paswan Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 14. Shri Amrendra Kumar Amar Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur 15. Shri Ganesh Rai Son Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari,
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Muzaffarpur
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Muzaffarpur 29. Smt. Rina Devi Wife Of Not Known To The Petitioner Member Of Panchayat Samiti Bakhari, District - Muzaffarpur, Represented Through The Executive Officer - Cum - Block Development Officer Bakhari, Muzaffarpur
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This writ petition filed under Article 226 of the Constitution of India assails the notice dated 23.07.2013 (Annexure-2) issued by the Executive Officer of the Panchayat Samiti, Gaighat (respondent no. 5) convening the special meeting of the Samiti on 30.07.2013. Be it noted that this Court by an order dated 22.08.2013 issued notice on the private respondents and the proceeding and decision of the special meeting of the Samiti on the No-Confidence Motion was made subject to the final result of the case. The special meeting of the Panchayat Samiti was held on 30.7.2013 wherein the No-Confidence Motion moved against the petitioner was carried out as 17 out of 32 elected members of the Panchayat Samiti voted in favour of the motion. The petitioner having been unseated, respondent took steps for fresh election and a notice to this effect was issued on 08.08.2013. The petitioner assailed the said communication/notification of the respondent State Election Commission (for short “ the Commission”) by filing interlocutory application being I.A. No. 6513 of 2013. The operation of the said notice was stayed.
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Heard Mr. Shree Prakash Srivastava for the petitioner, Mr. K.K. Upadhyay for the private respondent, Mr. S.K. Mandal S.C. 24 for the State and Mr. Amit Srivastava for the
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State Election Commission. A counter affidavit on behalf of the private respondents ( 17 in number) has been filed to oppose the writ petition. No rejoinder thereto has, however, been filed by the petitioner.
Factual matrix of the case are that the petitioner was elected as Pramukh of Panchayat Samiti, Gaighat within the district of Muzaffarpur. The Panchayat Samiti consisted of 32 elected members. A requisition of No-Confidence Motion dated 17.07.2013 (Annexure-1) was presented before the petitioner signed by as many as 19 elected members of the said Panchayat Samiti. The reasons for moving the No-Confidence Motion against her was spelt out therein. The said requisition was placed before the petitioner on 9.7.2013. The petitioner fixed the date for convening of special meeting for the said purpose on 30.7.2013. The Executive Officer was accordingly directed by the petitioner to convene the said meeting on the said date. In the light of the said direction, the Executive Officer-cum-Block Development Officer Bakhri (respondent no. 5) issued a notice dated 23.07.2013 (Annexure-2) whereby the special meeting of the Panchayat Samiti was convened on 30.7.2013. As per the date fixed by the said notice, the special meeting was held on 30.7.2013 wherein the No-Confidence Motion was debated and put to vote. 17 elected
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members voted in favour of the No-Confidence Motion whereas no one voted to oppose the No-Confidence Motion. 05 (five) members including the petitioner did not caste their vote. The meeting was presided over by Smt. Reena Devi and duly certified by the Block Development Officer. The no confidence motion was passed. Copy of the said resolution has been enclosed by the contesting respondents (Annexure-R/1) on perusal whereof it further appears that the petitioner participated in the said meeting and in course of debate thereon defended all the reasons/allegations/charges on which the requisition was moved. The no confidence motion was put to vote wherein majority of the members of the Panchayat Samiti present in the said special meeting voted in favour of the motion and accordingly, the same was resolved to have been passed.
While assailing the proceeding of the special meeting held on 30.7.2013, it has been stated that although the petitioner had directed by order dated 22.7.2013 to convene the special meeting of the Panchayat Samiti in accordance with Section 46(4) of the Bihar Panchayat Raj Act, 2006 (for short “ the Act”) allowing 07 clear days’ time but the Executive Officer in complete contravention of the aforesaid provision issued notice on 23.7.2013 whereby the date of special meeting was scheduled on
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30.7.2013. Furthermore, the notice (Annexure-2) did not contain reason/allegations on which such No-Confidence Motion was sought to be moved against the petitioner. The aforesaid notice, therefore, violates the provisions contained in Section 44(3) (v) and 46(4) of the Act. The proceeding of the Panchayat Samiti conducted on 30.7.2013, therefore, stands vitiated.
Per contra, the contesting respondents have urged that the petitioner herself on 22.7.2013 directed for convening of the meeting on 30.7.2013 keeping in view the provisions contained in Section 46(4) of the Act inasmuch 07 clear days’ time was allowed for holding the said meeting of the Panchayat Samiti. The Executive Officer-cum-Block Development Officer, however, issued notice on 23.7.2013 (Annexure-2) in the light of the said direction of the petitioner for holding of the special meeting of the Panchayat Samiti on 30.7.2013 wherein the petitioner herself participated inasmuch as defended herself on all the reasons/charges/allegations spelt out in the requisition. Having lost the confidence of the Samiti in the voting, she has filed the present writ petition which is fit to be dismissed. The requisition (Annexure-1) fully spells out reasons/allegations/charges on which such No-Confidence Motion was sought to be moved against the petitioner. She was, therefore, fully aware of the grounds/reasons
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on which such No-Confidence Motion was proposed against her inasmuch as the petitioner participated therein and defended those reasons/charges/allegations. The non-disclosure of the reasons in the notice (Annexure-2) would therefore not vitiate the proceeding of the special meeting held on 30.7.2013. The petitioner, therefore, can be said to have waived her right by participating in the discussion/debate held in the meeting.
Upon consideration of the rival submissions made at the Bar, it appears the moot question to be considered in this case is whether, in the facts and circumstances of the case, the petitioner can be said to have waived her right granted under the Act as protective umbrella to the elected person? Related question would be whether waiver of such statutory right in the scheme of the Act would at all be permissible? In order to appropriately consider the submissions of the parties, it would be apposite to survey few relevant provisions of the Act on which reliance has been placed by both the parties. Section 44 of the Act provides for resignation and removal of Pramukh and Up Pramukh relevant provisions thereof having bearing on the case and contained in Section 44(3)(iv), (vi) and (vii) are extracted hereinbelow:-
“44(3)(iv) No confidence motion against the Pramukh or Up-Pramukh or both, as the case may be, shall not be brought during the last six months of the term of the Panchayat Samiti as
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mentioned in Section 39(1) of the Act.
44(3)(vi) As soon as the meeting called under this Section begins, the presiding member of this meeting shall read out the motion on which the meeting has been called to consider before the members present and declare it open for discussion. Any discussion on the motion shall not be adjourned.
44(3)(vii) During discussion, opportunity shall be given to the Pramukh/Up-Pramukh against whom no confidence motion has been moved for his defence before the Panchayat Samiti. The motion shall be put to vote on the same day after discussion and shall take place by secret ballot in the prescribed manner.”
Section 46 of the Act provides the manner or procedure in which meeting of Panchayat Samit is to be carried out. Since both the parties have referred to Sub-section (4) thereof, it is apt to extract the same hereinbelow which reads thus:
“46(4) Ten clear days’ notice of an ordinary meeting and seven clear days’ notice of a special meeting specifying the time at which such meeting is to be held and the business to be transacted thereat 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 any motion or proposition mentioned in the written request made for such meeting.”
All these provisions noted hereinabove are designed
to give protection in the matter of convening of special meeting to discuss No-Confidence Motion to the elected persons. If the elected person(s) himself/herself waives his or her rights or protection granted by those provisions and takes a chance and
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having failed thereat, whether he or she can be allowed to turn around and submit that the special meeting of the Panchayat Samiti was not carried out strictly in accordance with the provisions of the Act. There is no quarrel with the proposition of law that the provisions contained therein are seemingly mandatory in nature. Notwithstanding the same, whether those provisions which are designed to protect the elected persons can be waived by the person who is given such protection.
Before proceeding further to examine the said aspect of the matter, this Court would consider whether the said provisions have at all been breached in convening the special meeting of the Panchayat Samiti on 30.7.2013. Admittedly, the requisition (Annexure-1) spells out the reasons on which the NoConfidence Motion was sought to be moved against the petitioner. Having perused the requisition and the reasons assigned therein, the petitioner by an order dated 22.7.2013 directed the Executive Officer to fix the special meeting of the Panchayat Samiti on 30.7.2013. In doing so, 7 clear days’ time was allowed to herself. The notice (Annexure-2) was thereafter issued on 23.7.2013 in the light of direction of the petitioner fixing 30.7.2013 as the date for holding of special meeting of the Panchayat Samiti. In the said notice, however, the reasons/charges/allegations on which such
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No-Confidence Motion was sought to be moved were not disclosed. In so far as petitioner is concerned, no such grievance regarding violation of section 46(4) of the Act can be raised as she had taken for herself 07 clear days’ time. The petitioner was also aware of the charges/reasons on which such No-Confidence Motion was sought to be brought against her.
As noticed, the petitioner presented herself in the special meeting held on 30.7.2013 and participated in the debate inasmuch as defended herself on all the charges. In the case of Smt. Shamshad Khatoon versus State of Bihar since reported in 2010 (1) P.L.J.R. 929 , the issue with regard to waiver of the statutory rights in the context of the provisions of the Act was pin pointedly considered by a Division Bench of this Court. The writ petitioner-appellant was the elected Pramukh of the Panchayat Samiti. On the requisition sent to her on 5.12.2009 for convening a special meeting for No-Confidence Motion against her, she herself fixed the date of the meeting whereafter notice to that effect was issued by the Block Development Officer-cum-Executive Officer for convening of the special meeting on 12.12.2009. The appellant participated therein. The No-Confidence Motion was put to vote and passed against her. The appellant invoked the writ jurisdiction of this Court contending, inter alia, that the notice which was
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issued by the Block Development Officer did not meet the requirement as postulated under Section 46(4) of the Act inasmuch as no clear 07 days’ time was allowed for convening the said meeting for consideration of No-Confidence Motion. The special facts appearing from the record about participation of the petitioner in the said meeting was considered as a relevant circumstance to non-suit the petitioner by the Writ Court. The Division Bench while hearing the appeal filed thereagainst considered the scope of application of waiver to the facts of the case and held that where a right or privilege guaranteed by law rests in the individual and is primarily intended for his benefit and does not infringe the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene any public policy. Having held so, the Court in paragraphs 20 and 21 observed as under:
“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;-
“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.”
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
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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 UpSarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 speaking through D.M. Dharmadhikari, J. (as His Lordship then was) held as follows:-
“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
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no-confidence 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 uphold the passing of the no-confidence 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 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 noconfidence 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
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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 no-confidence 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 advance. A notice of no-confidence motion is required to be moved by not less than 1/3rd 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 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd 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 subrule (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
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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.”
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:
“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 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)
and from the following passage in Statutory Interpretation by Francis Bennion, Second Edition, Part I Section 10 Page 34:
“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
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directed.”
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 extra-ordinary and equitable jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.”
This leaves me to accept as a principle of law that the rights incorporated in the Act providing protective umbrella to the elected person can be waived by his/her express conduct.
Another bench of this Court in Rajendra Choudhary versus State of Bihar 2010 (4) P.L.J.R. 525 relying on Smt. Shamshad Khatoon (supra) came to the similar conclusion in paragraph 13 thereof which reads thus:
“13. The aforesaid settled principle of law, if applied to the instant case, clearly shows without any doubt that the right of the elected candidates arising out of any statute can be waived by their express conduct. As such this court cannot be oblivious of the fact that the petitioners had participated in the meeting dated 30.06.2009 by taking a chance and majority of the Samiti voted against them. Hence, there cannot be any justification for interference in the said matter in exercise of the extra-ordinary and equitable jurisdiction of this court under Articles 226 and 227 of the Constitution of India. In this regard, reference
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may be made to a decision of a division bench of this court in case of Smt. Shamshad Khatun Vs The State of Bihar & Ors., reported in 2010 (1) P.L.J.R.929.
Having considered the submissions of the parties on all fours, I am of the considered view that not only in the light of the principles of waiver but also on the attending/particular facts of the case, the contention of the petitioner is fit to be rejected. While exercising power of judicial review, the Court has to consider all relevant facts having bearing on the case including the conduct of the parties. In fixing the date, on perusal of the contents of the requisition, the petitioner had allowed 07 clear days’ time to herself to prepare for defending herself to meet those reasons/charges. Non-disclosure of the reasons in the notice, insofar as petitioner is concerned, shall have no adverse impact on the proceeding since the petitioner knew the reasons/charges on which no confidence motion was sought to be moved. By her conduct also, she voluntarily relinquished or abandoned her existing legal right. Having taken a chance and failed thereat, how can she be allowed to question the legality of convening of special meeting on the ground that the notice did not incorporate the reasons or in convening the special meeting on 30.7.2013 under her instruction issued on 22.7.2013, no 07 clear days time
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was allowed.
For the reasons aforesaid, this Court does not find any merit in the challenge to the proceeding of special meeting held on 30.7.2013. The writ application fails. It is, accordingly, dismissed.
(Kishore Kumar Mandal, J)
Pankaj/-
3 issues framed by the court
Whether statutory protective rights of an elected Pramukh under the Bihar Panchayat Raj Act can be waived by her express conduct.
Whether the petitioner waived her rights by fixing the special meeting date and participating in the debate despite non-disclosure of reasons in the notice.
Whether consequential violation of Section 46(4) regarding notice period vitiated the proceedings given the petitioner's participation.
Colour shows how this judgement treated each authority
Smt. Shamshad Khatoon versus State of BiharRelied on¶63
Smt. Shamshad Khatoon versus State of Bihar since reported in 2010 (1) P.L.J.R. 929
Smt. Bhulin Dewangan vs State of M.P.Referred¶67
Smt. Bhulin Dewangan Vs. State of M.P. & Ors., 2000 (4) M.P.H.T. 69 (FB)
Dhumadhandin vs State of M.P.Referred¶73
Dhumadhandin Vs. State of M.P. (1997 (1) Vidhi Bhasvar 49)
Mahavir Saket vs Collector, RewaReferred¶73
Mahavir Saket Vs. Collector, Rewa (1998 (1) JLJ 113)
Rajendra Choudhary versus State of BiharRelied on¶92
Rajendra Choudhary versus State of Bihar 2010 (4) P.L.J.R. 525
3 provisions across 2 enactments
Bimal Devi
The State of Bihar
The District Magistrate, Muzaffarpur
The District Panchayat Raj Officer, Muzaffarpur
The Sub-Divisional Officer, District-Muzaffarpur
The Executive Officer-Cum-Block Development Officer Block-Bakhari
KISHORE KUMAR MANDAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
