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2017 Supreme(Pat) 380
IN THE HIGH COURT OF PATNA
RAJENDRA MENON, CJ and ANIL KUMAR UPADHYAY, J.
(30.8.2017)
LPA No.975 of 2017 in CWJC No. 15373 of 2016
Mukesh Kumar Pandey & Ors. : Appellants
Vs.
State of Bihar & Ors. : Respondents
For the Appellants : M/s P.K.Shahi, S.B.K. Mangalam, Ravi Ranjan.
For State Election Comm : M/s Amit Shrivastava, Girish Pandey.
For the State : Mr. Patanjali Rishi.
For Pvt. Resp 7 to 12 : M/s Y.V. Giri, S.P. Srivastava, Amit Bhushan.
Headnote:Bihar Panchayat Raj Act, 2006–Sections 26, 40, 44 and 46–Election of Pramukh and up-Pramukh–6 elected members have elected the Pramaukh and up-Pramaukh by default of 24 members and despite 24 members opposing the election of Pramukh and Up-Pramukh–the Pramukh and Up-Pramukh to be immuned from any process of removal for two years–in the holding of election transparency was not maintained–there was no proper videography of the election–videographer, who videographed the election of Pramukh and Up-Pramukh in order to maintain transparency in the election was blacklisted as there was no continuous videography but it was in clips–power exercised by the District Magistrate u/s 40(4) of the Act was only an eye-wash–from the proceeding book, no reflection of actual state of affairs of nomination is found as to whether nomination was legal or valid or not, who was the proposer and who was the seconder of the Pramukh and Up-Pramukh–proceeding book does not contain the details and is also silent about the issuance of certificate of election in Form-22–Proceeding book is conspicuously silent regarding requirement of clause 3(v) with regard to the nomination of Pramukh and Up-Pramukh–election of Pramukh and Up-Pramukh of Kanti Panchayat Samaiti held on 29.6.2016 held as illegal and accordingly set aside–District Magistrate-cum-District Returning officer (Panchayat), Muzaffarpur directed to hold fresh election–appeal allowed. (Paras 22, 33, 34 & 40)
2016(1) PLJR 182, 2017(2) PLJR 29, AIR 1958 SC 687, AIR 1991 SC 1557, AIR 2010 SC 3796–Referred to.
2. The 24 writ petitioners are the appellants in this Letters Patent Appeal. They are aggrieved by the judgment of the Writ Court dated 19.6.2017 passed in CWJC No. 15373 of 2016 whereby the Writ Court declined to interfere with the election of Pramukh and Up-Pramukh of Panchayat Samiti, Kanti, Muzaffarpur and upheld the order of the District Magistrate dated 18.8.2016 passed in Miscellaneous Case No. 1(Misc.) of 2016-17 whereby the learned District Magistrate rejected the petition filed by the appellants for quashing of the proceedings of the meeting dated 29.6.2016 in which only 6 members were present and elected the Respondent No. 7.
3. Sri Mukhtar Ahmed Lone as Pramukh and Respondent No. 8 Sri Bipin Jha as Up-Pramukh.
4. The foundational fact for adjudication of the present Letters Patent Appeal lies in a narrow compass. There are 30 members in the Panchayat Samiti, Kanti in the District of Muzaffarpur who were elected in the election of Panchyat 2016. The Sub-Divisional Officer-cum- Election Officer, West Muzaffarpur fixed 29.6.2016 as the date of election for the post of Pramukh and Up-Pramukh of Kanti Block and notice in Form -24 was issued by the Sub-Divisional Officer to the newly elected members. The notice indicate that the meeting was to be held in the precinct of Kanti Block at 10.00 A.M. on 29.6.2016. In the meeting 6 newly elected members of the Panchayat Samiti took oath and thereafter elected the respondent No. 7 as Pramukh and Respondent No. 8 as Up-Pramukh.
5. There is dispute on the point of service of notice on 3 elected members. The appellants have claimed that notice was not duly served in accordance with law to three of the members, whereas the affidavit of the Respondent Nos. 4 and 5 controverts this allegation and placing reliance on Annexure-B series, the respondents submit that notice was duly served. However, the document contained in Annexure-B series do not indicate the time and date of issuance of notice. From Annexure-B series it transpires that some of the elected members have received the notice on 23rd of June, 2016. There was no reference either in the Annexure-B series or the original record which was called for by this Court vide order dated 12.7.2017 the actual date of issuance of notice in Form-24 and actual date and time of service of notice.
6. Under the notification contained in Annexure-4/1 Gazette Notification dated 31st August, 2010 there is requirement of notice at least 5 days ahead in Form-24. Under clause 17 of the said notification dated 31st August, 2010, there is no requirement of any quorum for holding the election of Pramukh and Up-Pramukh. From the proceeding of the election it appears that election was held on 29.6.2016 and the Respondent Nos. 7 and 8 were elected as Pramukh and Up-Pramukh uncontested.
7. After election of Pramukh and Up-Pramukh on 29.6.2016, a complaint was filed before the respondent-District Magistrate-cum- Retuning Officer (Panchayat) alleging that in arbitrary manner the election was held on 29.6.2016 and only 6 out of 30 members participated in the election and contrary to the concept of Participatory Democracy at Grass-root level in a clandestine manner, Mukhtar Ahmed Lone and Bipin Jha were declared elected uncontested as Pramukh and Up-Pramukh of Kanti Panchayat Samiti.
8. In the complaint before the District Magistrate, Muzaffarpur the appellant Nos. 3, 10 and 12, namely, Sheela Devi, Ajit Kumar and Chanda Devi have pleaded that they were not informed about the holding of election and as such they were not available to participate in the election, whereas the other members who could not reach in time, were not allowed to tak
