BALRAM SINGH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, the State and the Private Respondent No.9.

(2.) Petitioner, who was elected as a Chairman of the Zila Parishad, Supaul, has filed this writ application assailing the requisition dated 7-2-2002, Annexure-1, notice dated 14-2-2002, Annexure-2 and the proceedings of the special meeting of the Zila Parishad dated 26-2-2002, Annexure-3 to this application, whereunder no confidence motion for his removal from the said office has been passed on the ground that the said Requisition, notice and the proceedings of the special meeting is violative of the provisions contained in sub-section(4) of Section 68 of the Bihar Gram Panchayat Act, 1993 (hereinafter referred to as the Act), which inter alia, provides that requisition for calling a special meeting of the Gram Panchayat to consider the motion of removal against the Adhyaksha and the Upadhyaksha should be submitted to the Adhyaksha and the Upadhyaksha and not directly to the District Magistrate and in the present case the requisition dated 7-2-2002, Annexure-1 was submitted directly to the District Magistrate who issued notice dated 14-2-2002. Annexure-2 on the basis of which special meeting to consider the no confidence motion was held on 26-2-2002, Annexure-3, as such, requisition, notice and the proceedings of the special meeting are illegal and contrary to the provisions laid down in subsection (4) of Section 68 of the Act. In support of the aforesaid contention, learned counsel for the petitioner has relied upon the judgment of Division Bench of this Court in the case of Uday Shankar Singh v. State of Bihar, reported in 2003 (2) Pat L J R 123 : (2003 AIHC 1348). Perusal of the said judgment would indicate that in the said case no confidence was passed against the chairman of the Zila Parishad concerned on the basis of a requisition, which was contrary to the provisions contained in Sub-Section (4) of Section 68 of the Act and this Court having noticed the illegality in the requisition, set aside the subsequent proceedings of special meeting carried by minority of 18 in the house of 58 taken in the light of the illegal requisition.

(3.) On the other hand, counsel for the State as also the counsel for the Private Respondent No.9 submitted that requisition dated 7-2-2002, Annexure was directly submitted to the District Magistrate, Supaul may be contrary to the provisions contained in sub-Section (4) of Section 68 of the Act, but as petitioner participated in the special meeting held on the basis of requisition and notice dated 7/14-2-2002 on 26-2-2002, which fact is evident from the proceedings recorded on 26-2-2002, as such, he is stopped from challenging the requisition, subsequent notice and the proceedings of the special meeting dated 26-2-2002, Annexure-3 on the ground of estoppel as he being aware of the illegality acquiesced to the illegality. In support of the aforesaid contention, learned State Counsel as also Counsel for the Private Respondent No. 9 has relied upon a decision of this Court in the case of Raghuni Nayak, Hansi Lal Sahani v. District Magistrate, Darbhanga, reported in 1958 B. L. J. R. 177 : (AIR 1959 Patna 7). A Division Bench of this Court in the aforesaid case dismissed the writ petition and upheld the election on the ground that petitioners having participated in the election and having lost the same were stopped from challenging the same on the ground of acquiescence and estoppel. Learned State Counsel and the Counsel for the Private Respondent No. 9 distinguished the case relied by the counsel for the petitioner, namely, the case of Uday Shankar Singh (supra) on the ground that Principle of Estoppel /acquiescence was not discussed while setting aside the proceeding of no confidence carried by a minority of 18 in the house of 58. They further submitted that case of Uday Shankar Singh (supra) appears to be per incuriam as the same has not considered the earlier Division Bench Judgment of this Court in the case of Raghuni Nayak (supra).