IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 2367 of 2010 1. MD. ABULLAIS S/O MAHBOOB ALAM R/O SUGULI BAZAR, WARD NO.7, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN, MOTIHARI, PRESENT ELECTED CHAIRMAN/ADHYAKSH OF NAGAR PANCHAYAT, SUGAULI Versus 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE MOTIHARI, DISTT.- EAST CHAMPARAN 4. SUGAULI NAGAR PANCHAYAT THROUGH ITS EXECUTIVE OFFICER P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 5. EXECUTIVE OFFICER, SUGAULI NAGAR PANCHAYAT P.O. & P.S. SUGAULI, DISTT.- EAST CHAMPARAN 6. SMT. SUMITRA DEVI W/O LAXMI PRASAD R/O SUGAULI, WARD NO.10, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN (VICE CHAIRMAN NAGAR PANCHAYAT, SUGAULI) 7. SRI CHANDRIKA SARAN SHARMA S/O LATE BAL KUNWAR SHARMA R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.1, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 8. SRI DHARMENDRA PASWAN S/O PRABHU PASWAN R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.2, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 9. SRI GOPICHAND CHAUDHARY S/O SRI SUKAT CHAUDHARY R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.3, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 10. SRI MANJUR ALAM S/O WAKIL AHMAD R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-4, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 11. SRI YOGENDRAPURI S/O LATE CHANDANPURI R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-5, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 12. SMT. SABNAM KHATOON W/O SRI MERAJUL HAQUE @ BHADHU R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-6, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 13. SMT. SUNAINA DEVI W/O SRI DINANATH RAM R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-7, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 14. SMT. SANTOSH DEVI W/O SRI SURESH MODI R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-8, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 15. SRI DHARMENDRA KUMAR NAYAK S/O DHRUV NARAYAN NAYAK R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-9, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 16. SMT. NOORBANO KHATOON W/O LATE MOJAHIR MIAN R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-12, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 17. SMT. SHAKUNTALA DEVI W/O SRI RAM NARAYAN SAHANI R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-13, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 18. SRI HARI NARAYAN SINGH S/O LATE NAGINA SINGH R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-14, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 19. SRI UMESH PRASAD S/O AMICHAND PRASAD R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-15, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 20. SMT. SABITA DEVI W/O KRISHNA PRASAD R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-16, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 2 21. SMT. GEETA DEVI W/O VIKRAMA MAHTO R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-17, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 22. SMT. NASIMA KHATOON W/O MD. IMAM R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-18, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 23. SRI NATHUNI SAH S/O LATE GIRGIT SAH R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-19, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN 24. SMT. KAVITA DEVI W/O SRI JITENDRA SINGH R/O VILL.- SUGAULI, WARD COUNCILLOR, WARD NO.-20, P.O. & P.S.- SUGAULI, DISTT.- EAST CHAMPARAN *** For the p e t i t i o n e r : M/s Ashutosh Ranjan Pandey, Dhurendra Kumar, Advocates For the private respondents : M/s Basant Kumar Chaudhary, Sr Advocate & Sanjay Kumar Manu, Advocate For the S t a t e : M/s Sheojee Prasad, G P – 2 & Bijay Bhushan Prasad, AC to GP 2 *** 2 16.03.2010 The petitioner was the elected Chairman of Sugauli Nagar Panchayat constituted under the Bihar Municipal Act, 2007. He has been removed by a vote of no confidence which action is under challenge in the present writ petition. The Councillors, who sought petitioner’s removal, have appeared. Heard the learned counsel for the petitioner, Shri Basant Choudhary, learned Senior Advocate appearing on behalf of the Councillors who opposes the writ petition and the learned counsel for the State and with their consent, the writ petition is being disposed of at the stage of admission itself. Learned counsel for the petitioner submits that in terms of Section 25 (4) read with Section 48 (2) of the Act, a requisition for a special meeting to consider no confidence motion against the 3 Chairman of the Nagar Panchayat has to be made to the Chairman by the requisite number of members which has not been done in the present case. It is further stated and submitted that in case such a requisition is made and the Chairman refuses to act then, by virtue of Section 48 (3) of the Act, the members, requisitioning the special meeting themselves, were competent to call a meeting which was again not done. What was done was a requisition made to the Block Development Officer –cum- Executive Officer to call for a meeting for considering no confidence motion against the Chairman. The meeting not being called for, the Collector –cum- District Magistrate, East Champaran was moved and he called for a meeting to consider no confidence motion and he nominated the Additional District Magistrate to preside over such a meeting. It is in that meeting that petitioner did not participate under protest and by requisite number of votes, the resolution was passed. He is thus being held to be removed in terms of Section 25 (4) of the Act on no confidence motion being passed. On behalf of the members of the Nagar Panchayat, a counter affidavit has been filed in which a copy of a requisition, sent to the Chairman on the same day when requisition was sent to the Block Development Officer –cum- Executive Officer and the Collector, is also annexed. It is pointed out that the Block Development Officer having received the requisition forwarded the same to the Chairman for orders but the Chairman refused to call the meeting. Mr Choudhary, learned Senior Counsel submits 4 that once the Chairman refuses to act then necessarily the District Magistrate –cum- Collector had to act and the meeting so convened and its proceedings are not vitiated. For proper appreciation of submissions, relevant provisions of Section 25 (4), Section 48, Section 51 of the Act are quoted hereunder : “25. Removal of Chief Councillor/Deputy Chief Councillor. (1) … … … (2) … … … (3) … … … (4) The Chief Councillor/Deputy Chief Councillor may be removed from office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a requisition made in writing by not less than one-third of the total number of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed: Provided that a no confidence motion shall not be brought against the Chief Councillor/Deputy Chief Councillor within a period of two years of taking over the charge of the post: Provided further that a no confidence motion shall not be brought again within one year of the first no confidence motion: Provided further also that no confidence motion shall not be brought within the residual period of six months of the municipality. 48. Meetings.-(1) The Municipality shall meet not less than once in every month for the transaction of its business. (2) The Chief Councillor may, whenever he 5 thinks fit, and shall, upon a requisition in writing by not less than one-fifth of the Councillors, convene a meeting of the Municipality. (3) If the Chief Councillor fails to call the requisition meeting provided in sub-section (2), the meeting may be called by the persons who signed the requisition. 51. Presiding officer of a meeting of Municipality.-(1) The Chief Councillor shall preside at every meeting of the Municipality and in his absence the Deputy Chief Councillor shall preside the meeting: Provided that when a meeting is held to consider a motion for the removal of the Chief Councillor, the Chief Councillor shall not preside at such meeting. (2) The Chief Councillor, or the person presiding over a meeting of the Municipality, shall also have, and may exercise, a casting vote in all cases of equality of votes.” From the provisions of the Act aforesaid, it would be seen that a special meeting to consider no confidence motion is nothing but a meeting with a special agenda. Thus seen, by virtue of Section 48 of the Act, a requisition had to be made by one-third of the members as provided under Section 25 (4) of the Act to the Chief Councillor who, in this case, would be the Chairman by virtue of Section 48 (2) of the Act. In the present case, there is controversy as to there being a requisition to the Chairman directly or not. In my view, it is not in dispute that the requisition was brought to the notice of the Chairman by the Executive Officer. That may be an irregularity but it is not an illegality which would 6 vitiate the requisition itself because in any event, the requisition was brought to the notice of the Chairman. Thus far, the Court disagrees with the writ petitioner but what happened thereafter is not condonable. The Nagar Panchayat is a forum of democratic elected local self Government. It would be the duty of Court to see that this democratic body functions on its own esteem and the executive interference is minimised and to be tolerated only to the extent legislatively provided otherwise it could be destructive of the whole democratic principle on which this local self Government is established. Here, in facts, it is not in dispute that ignoring Section 48 (3) of the Act, the members, on meeting not being called for, approached the District Magistrate –cum- Collector who had no business to interfere in such matter. He is not the supervising authority nor the guardian engine over a local self Government. What surprises this Court is that notwithstanding judgment of this Court earlier in the case of Pawan Kumar Purvey & Another –Versus- State of Bihar & Others, 2010 (1) PLJR 272, the District Magistrate –cum- Collector obliges to intervene and fixes a date again oblivious of Section 48 (3) of the Act. Not just that, in defiance of the provisions of Section 51 of the Act, then nominates Additional District Magistrate to preside over such a meeting though in law, such a meeting should have been presided over by the Deputy Chairman as under proviso to sub-section (1) of Section 51 of the Act, the no confidence motion being against the Chairman, he was 7 precluded from presiding such a meeting. What ultimately happened is of no consequence as the whole democratic process got throttled by the unnecessary executive interference. Thus, in my view, the meeting itself was wrongly and illegally convened and presided over with foreign intervention not permissible in law. Such a meeting is void ab initio. Caveat In Purvey’s case (supra), this Court had held that there has to be a quorum prescribed for a special meeting which had been done away by the executive circular which had been struck down by this Court. To clear this misgiving, I may only point out that in terms of Section 25 (4) of the Act, a resolution of no confidence can be carried out by a majority of the whole number of Councillors holding office. This itself provides a quorum because it is not restrictive to members present and voting but the total strength of the House. The observation made in Purvey’s case (supra) in this regard was without noticing the provisions of Section 25 (4) of the Act. Thus seen, the requisition of the meeting being invalidly made, the meeting convened on invalidly and the proceedings being carried out invalidly vitiates the entire process. Thus, vote of no confidence motion, as passed against the petitioner, cannot be sustained and is, accordingly, quashed. 8 However, the respondent-members would be at liberty to bring a fresh requisition in accordance with law, if they are so advised. The writ petition, accordingly, stands allowed. M.E.H./ (Navaniti Prasad Singh)