Elected members of a Block Panchayat Samiti sought quashing of a notice convening a special meeting for a no-confidence motion against the Pramukh. The meeting was held but the motion was never put to vote. Relying on Dharamsheela Kumari, the Court observed that the statutory bar on fresh motions does not apply where no voting occurred.
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.1521 of 2024
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and P.S. Baniyapur, District - Saran at Chapra.
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. SBK Mangalam, Advocate Mr. Awnish Kumar, Advocate For the Respondent/s : Mr. Prabhakar Jha, GP-27 For the Resp. No. 10 : Mr. Piyush Kumar Pandey, Advocate ======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY ORAL ORDER
8 05-08-2024 Heard the parties.
grant of following relief/s:-
“(I) For issuance of an appropriate writ in the nature of CERTIORARI 02.01.2024 for quashing the notice dated issued under the signature of the Respondent no.7 and contained in his letter no.4 dated 02.01.2024, whereby and where under the
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Respondent no.7 has been pleased to inform the elected members of Block Panchayat Samiti, Baniyapur to attend the special meeting of Block Panchayat Samiti, Baniyapur scheduled to be held on 11.01.2024 for consideration of No Confidence Motion against the Pramukh of the Block Panchayat Samiti, Baniyapur on the ground that since under the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Gram Panchayat Act ) power to fix the date of special meeting is vested in Pramukh and on failure of the Pramukh in the Up-Pramukh or one-third elected members of Block Panchayat Samiti, the Respondent Executive Officer does not have any jurisdiction to fix the date of special meeting and since the date of special meeting has been fixed by the Executive Officer himself impugned notice issued on 02.01.2024 by the Executive Officer cannot be sustained in law.
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(II) For issuance of an appropriate writ in the nature of MANDAMUS commanding and directing the Respondent no.7 to postponed the special meeting of the Block Panchayat Samiti, Baniyapur dated 11.01.2024 convened for No Confidence Motion against the Pramukh (Respondent no.10) on the ground that it has been convened by the Pramukh in connivance with the requisitionists and to frustrate the right of the aggrieved members in future, if they desire to bring No Confidence Motion against the Pramukh as also on the ground that the husband and father-in-law of the Pramukh have been made accused in Baniyapur P.S. Case No.06 of 2024 dated 05.01.2024 for kidnapping of one of the elected members of Block Panchayat Samiti to complete her majority amongst the total elected members of Block Panchayat Samiti. (Ⅲ) For issuance of any other appropriate writ/writs, order/ orders,
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direction/directions for which the writ petitioners would be found entitled under the
facts and circumstances of the case.”
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light of the decision of Dharamsheela Kumari vs Hemant Kumar and Ors. (LPA No. 113 of 2020) reported in 2021 (4) BLJ of 194 particularly issue no. ix according to which there is no bar of fresh motion under the Act, if motion was not put to vote.
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Dharamsheela Kumari (supra) judgment read as follows:
“117. Having gone through the
submissions put to this Court in detail, the Court finds that the allegation of fraud was not established and the Pramukh and the Requisitionists could not have been said to have committed a fraud on the system; the words of Section 44(3)(i) have to be read in conjunction with one another and the majority required to put a motion to vote is from amongst the members of the Samiti present and voting; the logical conclusion of a motion is 'voting upon' the same, and since no vote took place in the meeting dated 10.08.2018, the motion cannot be said to have been 'brought' and consequently, the bar of Section 44(3)(ii) is not attracted.
118. Thus the questions are answered as under:
Issue No.(i):- The provision of Section 44 of the Bihar Panchayat Raj Act, 2006 is an independent and stand alone Section, a
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complete code in itself.
Issue No.(ii):- The procedure prescribed under the provisions of Section 46 of the Act for convening a special meeting is neither applicable nor can it be read into for the meeting stipulated under Section 44 of the Act.
Issue No.(iii):- Under Section 44(3) of the Act majority required to put the motion to vote is amongst the members of the Panchayat Samiti present and voting. No minimum quorum is required for putting the motion of no confidence to vote.
Issue No.(iv):- Section 44(3) of the Act mandates a motion of no confidence to be put to vote by way of a secret ballot.
Issue No.(v):- The impugned action, i.e. resolution dated 10.08.2018 is in fraction of the provisions of the Act and as such is quashed and set aside.
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Issue No.(vi):- Section 44 of the Act does not mandate the Requisitionists necessarily to be present in the meeting called to discuss and put to vote the motion of no confidence.
Issue Nos. (vii) & (viii):- In the given facts, absence of the Requisitionists cannot be said to be an act of fraud with an endeavour of defeating the provisions of the Statue.
Issue No.(ix):- In the absence of the motion being put to vote, the legal bar of moving a fresh motion of no confidence stipulated under Section 44(3)(ii) would not be attracted.
Issue No.(x):- In the attending facts and circumstances, it cannot be said that the acts of the Executive Officer are deliberate leading to dereliction of duty warranting initiation of an enquiry with regard to his act and conduct.”
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(Rajiv Roy, J)
Adnan/-
U
2 issues framed by the court
Does the bar under Section 44(3)(ii) against a fresh no-confidence motion apply when the earlier motion was not put to vote?
Can the petitioners move a fresh requisition for a no-confidence motion after the meeting of 11.01.2024 ended without voting?
Colour shows how this judgement treated each authority
Dharamsheela Kumari vs Hemant Kumar and Ors.Relied on¶13
(LPA No. 113 of 2020) reported in 2021 (4) BLJ of 194
3 provisions across 1 enactments
Sheela Devi @ Sheela Kumari
Bhagwan Rai
Mokhtar Rai
Gulab Thakur
Pintu Kumar Pandit
The State of Bihar through the Chief Secretary, Government of Bihar
Rajiv Roy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
