IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.754 of 2010 Mohammad Akhtar Khan s/o Amanat Khan, r/o Mohalla – Mahua, Ward no.17 Piro, Police Station –Piro, District - Bhojpur Versus 1. The State Of Bihar through its Chief Secretary, Bihar, Patna 2. The Principal Secretary, Urban Development and Housing Department, Bihar, Patna 3. The District Magistrate, Bhojpur, Ara 4. The State Election Commission, through its Commissioner, Bihar, Patna 5. The State Election Commissioner, Bihar 6. The Secretary, State Election Commission, Bihar 7. The Executive Officer, Nagar Panchayat, Piro, Bhojpur 8. Umesh Ram s/o Kalpnath Ram, Ward no.1 9. Urmila Devi w/o Mr. Gopal Prasad, Ward no.2 10. Madan Kr. Snehi s/o Bharat Keshri, Ward no.3 11. Firoza Khatoon w/o Faisal Khan, Ward no.4 12. Tabbasum Khatoon w/o Sarfraz Khan, Ward no.5 13. Akbar Mansoor s/o Alauddin, Ward no.6 14. Jahiral Haque khan s/o md. Mirtuza, Ward no.7 15. Manjoo Devi w/o Ajay Vidyarthi, Ward no.8 16. Rajesh Keshri so Lallu keshri, Ward no.9 17. Shakuntla Devi w/o Nandlal Prasad , Ward no.10 18. Sachidanand Prasad s/o Mahavir Pd. Vaidya, Ward no.11 19. Lalita Devi w/I Bhim Ray, Ward no.12 20. Surendra Pandit s/o Mangal Pandit, Ward no.13 21. Nasima Khatoon w/o Aurangazeb Miyan, Ward no.14 22. Asha Devi w/o Vinod Sah, Ward no.15 23. Sarwani Khatoon w/o late Farid Khan, all are P.S. Piro, District - Bhojpur ----------- For the appellant: Mr.Syed Alamdar Hussain, Mr.Syed Asgher Najmi, Mr. M.K.Singh, Mr. M. kumar, Advocates For the respondents 1 to 7: Mr. N.K.Sinha, AAg X Md. Anis Akhtar, AC to AAG X For the private respondent: Mr. S.B.K. Mangalam, Advocate For the Election Commission: Mr. R.S. Pradhan, Sr. Advocate ---- 2 2 26/4/2010 In this intra-court appeal the challenge is to the order dated 1.4.2010 passed by the learned Single Judge in CWJC. No.11505 of 2009. The facts which are essential to be exposited for adjudication of this appeal are that the appellant was elected as Chief Councillor of Piro Nagar Panchayat in the district of Bhojpur. A requisition was sent vide Annexure – 1 to the Executive Officer, Municipality to requisition a meeting for mooting a no confidence motion against the Chief Councillor and the Deputy Chief Councillor as contemplated under Section 25(4) of the Bihar Municipal Corporation Act, 2007. The meeting was convened by the Chief Executive Officer and the same was fixed to 29.6.2009. As is patent, the appellant did not participate in the meeting and a vote of no confidence was passed against him inasmuch as fifteen persons present in the meeting voted against him. Be it noted, the strength of elected Councillors of Piro Nagar Panchayat is seventeen. At this juncture, the District Magistrate-cum-Collector intervened and made an inquiry with regard to what transpired in the meeting and passed an order commending that a 3 Councillor could have presided over meeting. Be it noted, the intervention by the Collector was on the basis of a circular no.2360 dated 22.6.2009. It is apt to note that the said circular has been held to be illegal by the learned Single Judge in Pawan Kumar Purvey & another v. the State of Bihar & others, 2010 (1) PLJR 272. The said decision has also been affirmed by the Division Bench in LPA. No.1564 of 2009 (Ruby Singh v. State of Bihar & others) decided on 15.4.2010. In the case of Ruby Singh (supra) this court has held thus: “ 27. On a scrutiny of the scheme of the Act, we are of the considered opinion that it cannot be said that without laying down of the procedure for conduct of business in a special meeting under the rules, the provision as engrafted under Sections 25 and 51 of the Act cannot really be effectively carried out. The procedure to be adopted has to be fair. Appreciating the scheme of the Act in entirety, we notice that the Chief Councillor has been empowered to convene a meeting of the Municipality. In fact, Section 48 of the Act contains adequate guidance and safeguard. It is a well settled proposition of law that a statute has to be read as a whole to understand its object and purpose. On a reading of the provisions in entirety, we are of the considered view that a vote of no confidence can be mooted and carried out without framing of the rules and, hence, the provisions of the statute are workable. 28. The next contention that is canvassed is that the learned single Judge has fallen into grave error by directing to convene another meeting though a meeting had already been held on 16.07.2009. It is worth noting that initially the meeting was fixed on 16.07.2009 by the Chief Councillor himself. There 4 was an interdiction by the Additional Collector to postpone the meeting to 17.07.2009. The said communication was dated 9th July, 2009. This Court on 16.07.2009, while directing stay of the notice dated 19.07.2009, had further directed status quo with regard to the holding of the meeting of no confidence on 16.07.2009. On that day, as is evident from the material on record, 12 Councillors attended the meeting and it is not in dispute that the Madhubani Nagar Parishad consists of 30 elected members. The learned single Judge opined and rightly so that when all the Councillors were not represented and the Court had interdicted and the meeting was held on 16.07.2009, there was really no notice to all concerned. If we permit ourselves to say so, the writ court has applied the doctrine that `nobody should suffer for the fault of the Court.. Eighteen Councillors had filed a requisition for convening a special meeting of the Nagar Parishad for considering the vote of no confidence. Sub- section 25(4) postulates that a Chief Councillor or a Deputy Chief Councillor can be removed from the office by resolution carried by a majority of the whole number of Councillors holding the office. When the requisition was sent by 18 elected Councillors and a meeting is scheduled there has to be notice to all so that they can participate in the no confidence motion. The meeting was conducted on 16.07.2009 because of an interim order of this Court. The learned single Judge has held that the said meeting was really no meeting in the eye of law. We think the opinion expressed is correct inasmuch as in a democratic set up there has to be a proper notice but in the instant case, there was a state of confusion because of the interdiction by the Court at the eleventh hour. The writ court thought it appropriate to rectify the error and issue the direction. The same is in the fitness of things because it would be travesty of justice if the Councillors who had requested for convening the meeting were not noticed when to appear in the meeting because nothing has been brought on record that the Councillors were noticed again to attend the meeting on 16.7.2009. Thus, we do not find any error in the said direction of the 5 learned single Judge.” In view of the aforesaid enunciation of law a Councillor could have presided over the meeting. Basically, the vote of no confidence is sought to be mooted against the Chief Councillor as well as the Deputy Chief Councillor. That apart, it can be said with certitude that the Chief Councillor or the Deputy Chief Councillor cannot gain any kind of advantage by remaining absent. Faced with the said situation, learned counsel for the appellant has submitted that the requisition did not contain any charge and in the absence of the same the requisition is invalid. At this juncture, we may refer with profit to the provision contained in Section 25(4) of the Act, which reads as under: “25.Removal of Chief Councillor/ Deputy Chief Councillor.- (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 6 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.” By reading of the said provision, we are of the considered opinion that two-condition precedents are required to be satisfied before requisition is accepted. They are; it has to be signed by 1/3rd of the elected members and it should be in writing. Both the conditions have been satisfied. We may note with profit that under the provisions of the Bihar Panchayat Raj Act, 2006, there is stipulation to the extent that charges are to be mentioned in the requisition. The same being not the statutory mandate as far as the present Act is concerned, we cannot find fault in the requisition. In view of aforesaid analysis, we are of the considered opinion that the vote of no confidence that had taken place against the appellant is absolutely defensible and no error is found with the same and as the learned Single Judge has concurred with the same, the order passed by him cannot be faulted. 7 In the result, the letters patent appeal, being devoid of merit, stands dismissed without any order as to costs. Neyaz/ ( Dipak Misra, CJ.) (Mihir Kumar Jha, J.)