Raj Kumar Rai vs State of Bihar and Others

R.S. Garg, J.—Heard learned Counsel for the parties.

At the very outset learned Counsel for the State submits that the no confidence motion wss defeated and the Petitioner continues to be Pramukh therefore, this petition has become infructuous.

learned Counsel for the Petitioner, however, submits that he has challenged the authority of the S.D.O. in issuing a direction to the B.D.O. to convene the meeting to consider the question of no confidence. According to him when the Act provides the procedure then that procedural law is to be followed and the S.D.O. or any other authority would not have any jurisdiction to issue such directions. The Respondent State through Secretary, Rural Development Department in paragraph 9 of the counter has stated that from a reading of Section 44 of the Bihar Panchayat Raj Act, 1993 it would be clear that the S.D.O. does not have any powers in the said Act to convene meetings of Panchayat Samiti. It is further submitted that the S.D.O. being the supervisory Officer of the B.D.O.-cum-Executive Officer of Panchayat Samiti appears to have issued the impugned letter in exercise of his general powers of superintendence over the work of the B.D.O.I fail to understand the propriety of the later part of the observation. If Section 44 does not confer any jurisdiction upon the S.D.O. to direct the B.D.O. to convene the meeting to consider the motion of no confidence then even under the supervisory powers he cannot exercise his jurisdiction not vested in him under the law.

When an act is to be done in accordance with law or within a particular procedure then it has to be done accordingly after following the procedure or not at all. The S.D.O. may be a supervisory authority or officer of the B.D.O. for general administration but under the Bihar Panchayat Raj Act, 1993 he does not have any jurisdiction to issue any directions to the B.D.O. to convene a meeting to consider the no confidence motion.

Section 44 Sub-section (3) of the Act provides that the Pramukh may whenever thinks fit upon the written request of not less than 1/3rd of total number of members on a date within 15 days from the receipt of such request may call a meeting. If the Pramukh fails to call a special meeting the Up-pramukh or 1/3rd of total number of members may call a special meeting for a date not more than 15 days after presentation of such request 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 scheme of the Bihar Panchayat Raj Act, 1993 simply is that the authority must vest in the panchayat and the members constituting Panchayat. If 1/3rd members make a request to the Pramukh then he is obliged to convene the meeting and if he fails then the Up-pramukh may request the Executive Officer to convene the meeting and even otherwise 1/3rd of total number of members may requ(Sic) Executive Officer to give notice (Sic) members and to take such action (Sic) be necessary to convene the me(Sic) After giving my anxious onsidera(Sic) the provisions of law, I am unable to anything which authorises or empo(Sic) the S.D.O. to issue any direction to B.D.O. or the Executive Officer.if the(Sic) says that the authority must ve (Sic) Pramukh, Up-pramukh or the me(Sic) then by no executive fiat the S.D.O direct the B.D.O. to convene the me(Sic) The S.D.O. simply is a public servant not a public boss to direct a democ(Sic) body to convene a meeting as and (Sic) the said S.D.O. desires. In the p(Sic) matter the meeting could not be conv(Sic) under the directions of the S.D.O. B(Sic) as it may, the propriety of this meeting lost its efficacy because the motion already been defeated, but the legal (Sic) sions are required to be explained to(Sic) S.D. Os. and B.D. Os. that in future S.D. Os. do not transgress their lim(Sic) the B.D. Os. are not oppressed unde(Sic) assumed supervisory authority o(Sic) S.D.O. When the B.D.O. acts as an (Sic) tive officer of the Panchayat Samiti th(Sic) is not a subordinate of the S.D.O. be(Sic) he holds an independent post. Thou(Sic) all other practical purposes he con(Sic) to be a B.D.O. but for convening the (Sic) ing he assumes a different charact(Sic)

It is hereby declared that not a single S.D.O. of this State has an(Sic) thority to direct any B.D.O. to conv(Sic) meeting to consider a no confidence(Sic) tion moved against the Pramukh.

I required the learned coun(Sic) the State to advise the Secretary (Sic) Department to issue direction to all $(Sic) that in view of Section 44 of the Act (Sic) Secretary must inform all the S.D.O. to exercise such powers but the learned Counsel for the State submits that this Court must issue such a direction to the secretary.

Let the Secretary of the Department issue a circular notice to all the collectors and all the Sub Divisional Officer$ clearly directing them that the S.D. Os.any other administrative Officer would have no jurisdiction in matters of Section (Sic) the Act to direct the B.D.O. to con(Sic)ence a meeting to consider a no confi-(Sic)ence motion. He may also inform them (Sic)at non-observance of this order may (Sic)pose them to a serious risk. The petition is allowed.

A copy of this order be given to learned Counsel for the State.