IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10478 of 2011 Kumkum Devi, W/O Sri Ravi Prasad, R/O Mohalla- Laloo Pokhar, Argara Road, Munger, P.O., P..S. and Distt.- Munger, presently the Chief Councilor of Munger Nagar Parishad, P.O & P.S.- Munger, District- Munger. . . . . . . Petitioner. Versus 1. The State of Bihar. 2. The Principal Secretary, Urban Development and Housing Department, Govt. of Bihar, Patna. 3. The Deputy Secretary-cum-Director, Urban Development and Housing Department, Govt. of Bihar, Patna. 4. The District Magistrate, Munger, Distt. - Munger. 5. Sri Bhanu Prakash, Son of not known to the petitioner, presently posted as the Executive Officer, Nagar Parishad, Munger, Distt.- Munger (since relieved). . . . . . Respondents. ----------- 4/ 14.10.2011 The petitioner, who is Chief Councilor of Munger Nagar Parishad, prays for issuance of writ in the nature of quo-warranto restraining respondent no.5 to function as Municipal Executive Officer, Munger Nagar Parishad on the ground that Nagar Prishad, Munger in its meeting dated 25.05.2011 took unanimous decision to relieve him from the post of Municipal Executive Officer as per proviso to Section 41 of the Bihar Municipal Act, 2007. 2. The relief of the petitioner is founded on the ground that as per proviso to Section 41, a Municipal Executive Officer, Municipal Finance Officer, Municipal Engineer or Municipal Health Officer may be withdrawn by the State Government suo motu or if a resolution to that effect is passed by the councilors at a meeting called for the aforesaid purpose by a two third majority of the total number of councilors holding office for the time being. 3. The petitioner submits that as more than two third 2 majority of the total number of councilors passed resolution for removal of respondent no.5, the State Government is bound to withdraw the Executive Officer. The petitioner submits that Nagar Parishad forms one of the three tiers of Urban local self- government recognized under Article 243(Q) of the Constitution of India. The petitioner submits that as per Article 243 (P)(e) of the Constitution, Municipality means an institution of self- government constituted under Article 243(Q). 4. Both State Government and respondent no. 5, have filed separate counter affidavits and have common stand. Mr. D.K. Sinha, learned Sr. counsel and AAG-2 appearing for respondent no.5 states that in view of amendment to Section 41 of the Bihar Municipal Act, 2007 no resolution regarding withdrawal of an officer mentioned in Section 41 can be undertaken within one year of his posting. He submits that the Hon’ble Governor of Bihar gave assent to the amendment on 25.05.2011. The amending Bill states that amendment will come into force with immediate effect. He does not dispute that the Act was published in Bihar Gazette, Extraordinary on 27.05.2011. They submit that respondent no.5 took over Additional charge of Executive Officer, Munger on 19.08.2010 and as such the impugned resolution favouring his withdrawal on 25.05.2011 being passed within one year of his taking over as Incharge Executive Officer is premature and hit by amendment made to Section 41 of the Bihar Municipal Act. 5. I have heard the learned counsel for the parties. For 3 examining the issues involved in the case, it would be necessary to notice the relevant provisions of the Municipal Act and Rules framed thereunder. 6. Chapter (V) of Bihar Municipal Act, 2007 deals with Organizational Structure of Municipality, namely the Officers for its three tier system of Government. Section 36(a) contains a list of officers for Municipal Corporation. Section 36(b) with which we are concerned, details a list of officers to be appointed in the Municipal Council or Nagar Panchayat. The Municipal Executive Officer is one of the sanctioned posts under section 36 (b). Section 41 deals with procedure in respect of appointment of the officers of the State Government for the Municipalities. 7. Section 41 states that State Government may appoint any of its officer possessing due qualifications for a Municipal Corporation or a Municipal Council or a Nagar Panchayat, as Municipal Executive Officer, Municipal Finance Officer, Municipal Engineer and Municipal Health Officer. The proviso to Section 41 states that the officers so appointed shall be under the Administrative control of the Empowered Standing Committee and may be withdrawn by the State Government suo motu or if a resolution to that effect is passed by the councilors at a meeting called for the purpose by a two third majority of total number of councilors holding office there. As the issue centres round Section 41 and its proviso, the same is quoted herein below:- “41. Appointment of officers of the State 4 Government for Municipalities.- Notwithstanding anything contained elsewhere in this Act, the State Government may appoint an officer of that Government possessing such qualifications as may be determined by it for a Municipal Corporation or class of Municipal Councils or Nagar Panchayat as Municipal Executive Officer, Municipal Finance Officer, Municipal Engineer or Municipal Health Officer referred to in sub-section(1) of section 36 or with such designation as the State Government may consider necessary, and in such manner, and on such terms and conditions of service, as may be determined by the State Government in this behalf. The expenditure on account of salaries and allowances of any such officer shall be borne by the State Government: Provided that the officer so appointed shall be under the administrative control of the Empowered Standing Committee and may be withdrawn by the State Government suo motu or if a resolution to that effect is passed by the Councillors at a meeting called for this purpose by a two third majority of the total number of Councillors holding office for the time being”. 8. On bare perusal of the proviso, it would appear that the Municipal Executive Officer, Municipal Finance Officer, Municipal Engineer or Municipal Health Officer can be withdrawn by the Government in two situations. Firstly; they can be withdrawn if the Government suo motu decides to withdraw them from the services of the Municipal Corporation 5 or Municipal Council or Nagar Panchayat. Thus part of the provisions gives discretion to the government to decide whether it considers expedient to withdraw any of these officers or not. According to the 2nd part, such officials can also be withdrawn, if a resolution to aforesaid effect is passed by the councilors at a meeting called for that purpose by a two third majority of total number of councilors holding office for the time being. The second part of the provision is couched in mandatory term and the Government is left with no option but to withdraw the officer forthwith and substitute him by another officer. 9. The respondents next argued that in view of amendment to Section 41, no resolution regarding withdrawal of an Executive Officer of a Municipality shall be undertaken within one year of the posting of the officer. They submit that by the amending Act 7 of 2011, another proviso was added to Section 41, which is quoted herein below:- 17. Amendment of Section 41 of Bihar Act 11, 2007- In section-41 in said Act one more proviso shall be added, namely- “Provided further that resolution regarding withdrawal of the officer shall not be taken within one year of the posting of the officer.” 10. The case of the respondents is that respondent no.5 was posted as Municipal Executive Officer vide Government notification no.4818 dated 19.08.2010. Thus, they submit that no resolution regarding his withdrawal could have been taken by 6 Ward Councillors within a year of his/her postings, e.g. 19.08.2011. They submit that the instant resolution of removal of respondent no.5 was taken within one year in the meeting dated 25.05.2011, which is not permissible in view of prohibition of one year period imposed on bringing such resolution in view of amendment to the Proviso to Section 41. They state that the amendment came into effect on 25.05.2011, the day, the Governor of Bihar gave his assent to the amended Bill. Furthermore, the amending Act 7 of 2011 provided that amendment would come into force with immediate effect. Thus, they argued that in view of the amendment, no resolution for removal of Municipal Executive Officer could have been adopted on 25.05.2011 as he had joined only in August 2010. 11. Controverting the stand of the respondents the petitioner submits that the amendment came into effect only from 27.05.2011, when it was published in the Bihar Gazette Extraordinary. Thus, the resolution passed on 25.05.2011 would not be hit by amendment added to the Proviso to Section 41. 12. The issue which comes for consideration before this Court is whether amendment added to Provision to Section 41 brought by the amending Act 7 of 2011 would come into the force on the date, the Governor gave his assent or on the date when it was published in the Bihar Gazette. 13. Bihar and Orissa General Clauses Act, 1917 provide for interpretation of the Acts and Rules, when we have identity of subject matters including the dates from which the relevant 7 Acts and Rules will come into force. Section 6 (1-A) of 1917, Act which would be relevant for deciding the issue: “6(1-A)(i) In the case of a Bihar Act made before the commencement of the Constitution, it shall come into operation, if it is an Act of the Legislature, on the day on which the assent thereto of the Governor, the Governor General or His Majesty, as the case may requires, is first published in the official Gazette, and if it is an Act of the Governor of Bihar, on the day on which it is first published as an Act in the official Gazette; (ii) In the case of a Bihar Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the official Gazette”. 14. It would appear from bare perusal of Sub-section (ii) of Section 6(1-A) that in case of Bihar Act made after commencement of the Constitution, the same would come into operation on the day on which assent thereto of the Governor or the President, as the case may require, is first published in official gazette. 15. In the instant case, the amending act did not state as to from which date the amendment will come into operation. It merely stated that amendment would come into operation with immediate effect. The term immediate effect, in absence of any specific date would be the day on which the Act or the amending Act was published in the official gazette after the assent of the 8 Governor of Bihar. The Governor gave his assent on 25th May, 2011. As the amending Act did not give any specific date on which it would come in operation, the same would come into force on the date on which assent of Governor or the President, as the case may be, is first published in the official gazette. The amending Act 7 of 2011 was admittedly published in official Gazette on 27.05.2011, whereas impugned resolution of removal of respondent no.5 on 25.05.2011. The submission of respondent that the resolution dated 25.05.2011 is hit by amendment which came into effect on 27.05.2011 is fully misconceived. 16. Similar issues as from which date, an Amendment or an Act in absence of any clear date will come into effect has been well discussed by Hon’ble Mr. Justice Birendra Prasad Sinha, as His Lordship then was, in case of Raghubir Prasad Vs. Shrimi Naraian Tiwari and others, reported in AIR 1984 Pat. 25 Paragraph4, which is quoted herein below:- “Commencement of an Act shall mean the date on which the Act comes into force. Although it is mentioned in the Act that it shall come into force at once, but that word „at once‟ must be read in the light of S. 6(1-A) (ii) of the Bihar and Orissa General Causes Act, mentioned above. The General Causes Act specifically requires that the assent of the Governor or the President, as the case may be has to be published in the official Gazette. The purpose of publication in the official gazette is to make it known to all concerned that an Act has been passed and assented to by the Governor or the President. That being so, it has to be held that the 9 Act came into force only on the date on which the assent of the President was published in the official Gazette, i.e. on 25th July, 1975 and not before. I am supported in my view by a decision of the Madras High Court in re Kalyanam Veerabhadrayya- petitioner (AIR 1950 Mad. 243) in which it was held that the date of publication of the assent in the official gazette should be taken as the date of the commencement of the Act in which no specific date of its commencement was fixed and it was to come into force at once. The Kerala High Court seems to have taken the same view in a case reported in 1960 Ker. LT 1070”. 17. Thus, I hold that the impugned resolution dated 25.07.2011 relieving respondent no.5 from functioning as Municipal Executive Officer, Nagar Parishad, Munger, is not hit by amendment to Proviso to Section 41, which came into operation subsequently on 27.05.2011. 18. The respondents also raised a point that the impugned resolution passed by the councilors against the respondent no.5 does not bear signature of the members of Councilors. They state that the proceeding was drawn by the Chief Councilor, who was antagonized with respondent no.5. The proceeding merely mentioned the names of the councilors who were supposedly present but the same does not contain their signatures. The submission of the respondents could have been its worth, had they specifically denied in the counter affidavit that the resolution was not passed by two third majority of the 10 total number of councilors holding office then. The petitioner in paragraph 20 has specifically stated that on 25.05.2011, the Board of Nagar Parishad unanimously decided for removal of respondent no.5 from the post of Municipal Executive Officer. It appears that the respondent no.5 has made vague denial of statements in paragraph 18, 19 and 20 of writ application in one go in the counter affidavit in a mechanical manner. Thus, the point raised by the counsel of respondent no.5 though fails in the facts of the case, has raised an important issue regarding obtaining of signature of attending members in the copy of the proceedings. 19. I would observe that proceedings of such vital nature should contain the signature of the councilors / members, particularly when it relates to removal of Government official appointed for Municipality. The respondent no.2 would draw the attention of the Municipalities to this aspect. 20. The Government is directed to act in terms of 1st Proviso to Section 41 of the Bihar Municipal Act, 2007 forthwith, as resolution for withdrawal of respondent no.5 has been passed by the councilors in a meeting called for the purpose by two third majority of the total numbers of Councilors holding post for the time being. The writ is issued accordingly. 21. This application is, accordingly, allowed. Uday/ (Samarendra Pratap Singh, J.)