Case: Afzal Imam Vs. State Of Bihar


Decision:
1[ds]27. Thus, it will be seen that the Bihar Municipal Act is quite a comprehensive Act, and as noted earlier the executive powers of the Municipality are vested in the Empowered Standing Committee under section 22 of the Act. The members of this Empowered Standing Committee are nominated by the Mayor. After a Mayor is removed, and another Mayor is elected in his place, if the new Mayor is not allowed to nominate his nominees on the Empowered Standing Committee, it is likely to result into a situation of conflict. This is apart from the fact that the new Mayor will be treated dissimilarly with the earlier Mayor, although both of them are elected by the same full House and there is no justifiable reason for making any distinction. The fact that a councillor is elected as the Mayor immediately after the general election to the Municipality, and he nominates seven councillors on the Empowered Standing Committee, cannot make this act of nomination as a one time act, nor does the enactment say so.Apart from the aforesaid resultant administrative difficulty, if a literal interpretation of section 27 is followed alongwith adding words in section 21 (3) as pointed out above, the newly elected Mayor will be treated dissimilarly for no justifiable distinction. In that case, as against the earlier elected Mayor he will not permitted to have his nominees on the Empowered Standing Committee. A literal interpretation of section 27 of the Act will clearly bring it in conflict with section 21 (3) of the Act, and will also be violative of Article 14 of the Constitution of India as held by the Constitution Bench of this Court way back in State of West Bengal Vs. Anwar Ali Sarkar, reported in [AIR 1952 SCabove overview clearly shows that after the 74th Amendment to the Constitution, the Municipalities are strengthened and they are given wide ranging powers. The Municipal Laws in other states which we have seen clearly demonstrate that wherever Mayor-in-Council system is adopted, the tenure of the members in the Council is made co-terminus with that of the Mayor. The idea is that the Mayor should have the confidence of the Executive Council or the Empowered Standing Committee, as the case may be, apart from that of the House. The members of the Empowered Standing Committee are authorized to answer the questions on behalf of the Empowered Standing Committee under the Bihar Municipal Act. Thus, there is an element of collective responsibility. The Empowered Standing Committee is supposed to function on the basis of the principle of Democratic Governance in the sense that the decisions are to be taken by the majority. If the new Mayor is not permitted to have his nominees on the Empowered Standing Committee, the collective functioning will be under jeopardy. Thus, there is a clear omission in the Bihar Municipal Act, 2007 in this behalf.38. As noted above, the interpretation sought to be placed on section 27 by the respondents requires addition of words in section 21 (3) of the Act. Even after adding the necessary words, the result will be incongruous to a democratic functioning in as much as the nomination on the Empowered Standing Committee will be a one time act and the newly elected Mayor will be at the mercy of the other members of the Empowered Standing Committee. Such a reading will be also be contrary to section 21 of the Act and the newly elected Mayor will be treated dissimilarly as against the earlier elected Mayor for no justifiable reason. Thereby section 27 will be ultra vires to Article 14 of the Constitution. The legislature cannot be attributed such an intent. On the other hand, reading section 27 by making a cross-reference and making the same subject to sections 25 (4), 23 (3), 21 (3) and 21 (4) will lead to a harmonious functioning of the Municipal Corporation and will also save the section from being ultra vires Article 14. The judgment of the Division Bench of the Patna High Court in Jagdish Singh Vs. State of Bihar (supra) and that of the full bench of that Court in Jitendra Kumar Vs. State of Bihar (supra) do not lay down the correct legal position and are overruled.