IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9380 of 2008 JAGDISH SINGH ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, GOVERNMENT OF BIHAR 3. THE DISTRICT MAGISTRATE, ARRAH 4. THE DEPUTY DEVELOPMENT COMMISSIONER, ARRAH 5. THE ARRAH MUNICIPAL CORPORATION THROUGH CHIEF EXECUTIVE OFFICER 6. THE CHIEF EXECUTIVE OFFICER, ARRAH MUNICIPAL CORPORATION, ARRAH. ---- RESPONDENTS ----------- For the petitioner: Mr. M.P.Gupta, Advocate Mr. Brajesh Kumar, Advocate For the State : Mr. Jannath Singh, JC to GP IX For the Municipal Corporation : Mr. Santosh Kumark, Advocate --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 14th November 2008 The petitioner is an elected Councillor from Ward no.43, of Ara Municipal Corporation. By means of this writ petition he seeks to challenge the constitutional validity of section 27 of the Bihar Municipal Act, 2007 (in short, „the Act, 2007‟). 2. The challenge is on the ground that although there is a provision for removal of Chief Councillor in section 25 of the Act, there is no provision for removal of members of the empowered standing committee. It is stated that once the Councillor is 2 nominated to the empowered standing committee, he continues to be member of that committee so long as he is Councillor. There is lack of any provision for removal of member of the empowered standing committee and the member of such committee has been given unguided and unbridled power. 3. There are diverse municipal authorities for the purposes of giving effect to the provisions of Act, 2007 for different classes of municipalities. One of such municipal authorities is the empowered standing committee. The constitution of empowered standing committee is provided in section 21. 4. Section 21 reads thus: “21. Constitution of Empowered Standing Committee Municipality.- (1) In every Municipality there shall be an Empowered Standing Committee. (2) The Empowered Standing Committee shall consist of- (a) in the case of a Municipal Corporation, the Mayor, the Deputy Mayor, and seven other Councillors; (b) in the case of a Class `A‟ or Class `B‟ Municipal Council, the Municipal chairperson, the Municipal Vice Chairperson, and five other Councillors; (c ) in the case of a Class `C‟ Municipal Council, the Municipal Chairperson, the Municipal Vice- Chairperson, and three other Councillors; and (d) in the case of Nagar Panchayat, the Municipal President, the Municipal Vice-President, and three other Councillors (3) the other members of the Empowered Standing Committee shall be nominated by the Chief Councillor 3 from among the Councillors elected under sub section (1) of section 12 within a period of seven days of his entering office. (4) The other members of the Empowered Standing Committee shall assume charge after taking the oath of secrecy under section 24. (5) The Chief Councillor shall be the presiding officer of the Empowered Standing Committee. (6) The manner of transaction of business of the Empowered Standing Committee shall be such as may be prescribed. (7) The empowered Standing Committee shall be collectively responsible to the Municipal Corporation or the Municipal Council or the Nagar Panchayat, as the case may be.” 5. In so far as Chief Councillor and Deputy Councillor are concerned, the mode and manner of election is provided in section 23. Section 25 makes a provision for removal of Chief Councillor/Deputy Councillor. Section 27, which provides for the term of office of the Chief Councillor and the members of the empowered standing committee, reads thus: “27. The term of office of the Chief Councilor and the members of Empowered Standing Committee.- The term of office of the Chief Councillor and the members of Empowered Standing Committee shall be conterminous with the duration of member of the Municipality.” 6. Section 27 provides for the duration of term of the office of Chief Councillor and the members of the empowered 4 standing committee. The expression „duration of member of Municipality‟ is an indicative of the position that a member of the empowered standing committee can continue to be member of such committee so long as he is Councillor. 7. Section 17 of the Act, 2007 makes a provision for recalling the Councillor. Section 18 provides for certain things which disqualifies a person from being elected or whose such disqualification is incurred after election, then from holding the post of member of the Municipality. 8. Section 17 of the Act, 2007 reads thus: 17. Recall of Councillor.- (1) Every Councillor shall be deemed to have vacated his office forthwith if he is recalled by means of secret ballot by a majority of the total number of voters of the concerned ward of the municipal area casting the vote in accordance with such procedure as may be prescribed: Provided that no process of recall shall be initiated unless a proposal in this behalf is signed by not less than two third of the whole number of Councillors and presented to the District Magistrate; Provided further that no such process of recall shall be initiated- (i) within a period of two years from the date on which a Councillor is elected and enters upon his office, or (ii) If half of the term of office of a Councillor elected in a bye-election has not expired: Provided also that the process of recall of a Councillor shall be initiated only once during the term of his office. (2) When a proposal for recall of a Councillor is 5 presented to the collector under the first proviso to sub- section (1), the Collector shall, after satisfying himself and verifying that not less than two third of the Councillors have signed the proposal, send the proposal to the State Government, and, thereupon, the State Government with its decision and comments, shall make a reference to the State Election Commission. (3) On receipt of the reference under sub-section (2) the State Election Commission shall arrange for voting on the proposal of recall. 9. Section 18 of the Act, 2007 reads thus: 18. Disqualification.- (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as member of the Municipality if such person- (a) is not a citizen of India; (b) is so disqualified by or under any law, for the time being in force, for the purpose of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty one years of age, if he has attained the age of twenty one years; (c) is in the service of the Central or State Government or any local Authority; (d) is in the service of any such institution receiving aids from the Central or State Government or any local authority. (e) has been adjudged by a competent court to be of unsound mind; (f) has been dismissed from the service of the Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) has been sentenced by a criminal Court, whether within or without India, to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish 6 security for keeping good behavior under section- 109 or section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; or absconding being an accused in a criminal case for more than six months (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profit under the Municipality; (j) has been found guilty of corrupt practices; Provided that on being found guilty of corrupt practices, the disqualification shall cease after 6 (six) years of general election; (k) if he has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election is held. (l) has been willfully omits or refuses to perform his duties and functions or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or become physically or mentally incapacitated for performing his duties. (m) if he has more than two living children:- Provided that a person having more than two children on or upto the expiry of one year of the commencement of the Act, shall not be deemed to be disqualified.” (n) Has been absent from three consecutive meetings or sitting of the Municipality without having previously obtained permission from the councilors at a meeting. (2) if any question arises as to whether a Member of a Municipality at any level was before election or has become after election subject to any of the disqualifications mentioned in sub-section (1), the 7 question shall be referred for the decision of State Election Commission. The matter of disqualification may be brought to the notice of the State election Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo-motu cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard. (3) if a person, who is chosen as a member of a Municipality, is or becomes a member of the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council; or is or becomes a member of a Panchayat or Mukhia or Sarpanch then within fifteen days from the date of commencement of the term of office of a member of the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council, or a member of a Panchayat or Mukhia or Sarpanch, his seat in the Municipality shall become vacant unless he has previously resigned his seat in the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council or Panchayat, as the case may be. 10. If a member of the Municipality is nominated as member of the empowered standing committee and he is either recalled under section 17 or incurs disqualification after election for holding the post as member of the Municipality and an order of removal for such disqualification is passed in terms of section 18(2), his membership to the empowered standing committee ipso facto comes to an end. In this view of the matter, even if there is no specific provision for removal of the members of the empowered standing committee, there is enough mechanism provided in the Act, 2007, that cessation of membership to the municipality automatically brings an end to the membership of the empowered 8 standing committee. 11. We, thus, find that there is no merit in challenge to the constitutionality of section 27 of the Act, 2007. No other point was pressed by the counsel. 12. Writ petition has no merit and is dismissed in limine. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/-