R.S. Garg, J.
1. Heard learned counsel for the parties.
2. This order shall finally dispose of CWJC No. 4986 and CWJC No. 10727 of 2003.
3. It appears from the records of CWJC No. 4986 of 2003 that Anita Kumari was elected as a Pramukh of Panchayat Samiti, Patory, Samastipur. It also appears from the records that after her election a requisition was made by some dissatisfied persons to convene a meeting to consider the no-confidence motion against Anita Kumari. It also appears that Up-pramukh took cognizance in the matter and directed the Block Development Officer-cum-Chief Executive Officer, Patori to convene a meeting. A notice for convening the meeting to consider the no-confidence motion was issued on 10.1.2003 (annexure-4). It was clearly mentioned that the meeting would be convened on 17.1.2003. The meeting was accordingly convened on 17.1.2003 and the petitioner was voted out.
4. Being aggrieved by the said resolution Smt. Anita Kumari has filed CWJC No. 4986 of 2003. After her removal the elections were conducted and Ram Yatan Roy was elected as Pramukh of the said Panchayat Samiti.
5. From the records of CWJC No. 10727 of 2003 it would appear that a no-confidence motion was made against said Ram Yatan Roy and in the meeting convened on 22.8.2003 he was also voted out.
6. Being aggrieved by the resolution expressing no-confidence said Ram Yatan Roy has filed CWJC No. 10727 of 2003.
7. I am told that after removal of Ram Yatan Roy, fresh elections have taken place and Smt. Anita Kumari has again been elected as the Pramukh.
8. Learned counsel for Anita Kumari in support of CWJC No. 4986 of 2003 submits that in accordance with law, i.e., Section 44 of the Panchayat Raj Act, a notice to convene the special meeting should be given with clear seven days margin meaning thereby that there must be seven clear days margin between the date of the notice and the date of the meeting. According to him, as the notice was issued on 10.1.2003 and the meeting was ordered to be conducted on 17.1.2003, i.e., on the 7th day without leaving a margin of seven 'clear days, the notice directing convening of the meeting was bad and any resolution passed in the said illegal meeting would fall to ground.
9. Taking an exception to the said argument, it was submitted that Smt. Anita Kumafi had taken part in the subsequent election therefore, in the light of the judgment of this Court CWJC No. 4986 of 2003 has become infructuous and the petition of Ram Yatan Roy bearing CWJC No. 1.0727 of 2003 deserves to be allowed.
10. When this Court asked the learned counsel for Ram Yatan Roy to show that in the elections which were held after removal of Anita Kumari whether Smt. Anita Kumari had taken part, learned counsel for Ram Yatan Roy was unable to read anything from the records. Though the counsel prayed for time, but in the opinion of this Court, it such material argument is raised and there is no foundation available on the record to hold the said argument then there is no need to adjourn the matter unnecessarily.
11. This Court in catena of the cases has decided that in accordance with Section 44 of the Bihar Panchayat Raj Act when a special meeting is convened then seven clear days margin between the date of the notice and the date of the meeting has to be maintained and if that is not done the requisition of the meeting and convening of the meeting would be bad and any resolution passed in such a meeting would also fall to ground.
12. In the present matter, Annexure-4 under which the meeting was observed to be convened on 17.1.2003 does not meet the mandatory requirement of law. Consequently, Annexure-4, the letter No. 22 dated 10.1.2003 directing convening of the meeting on 17.1.2003 is quashed. As a consequence of it, the resolution passed at the meeting dated 17.1.2003 is also quashed.
13. It is to be noted at this stage that election to an office or post can be held only if there is a vacancy. Ram Yatan Roy, the petitioner of CWJC No. 10727 of 2003 was elected presuming that there was a vacancy on the date when he was elected. There in fact was a vacancy but if subsequently it is held that legally there could be no vacancy then election of Ram Yatan Roy would also fall to ground. CWJC No. 4986 of 2003 is allowed. CWJC No. 10727 of 2003 is dismissed.