IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.525 of 2010 1. SANJAY KUMAR MAHAJAN S/O SRI NAND LAL SAH R/O WARD NO.- 17, P.S. AND DISTT.- SITAMARHI ( COUNCILIORS OF NAGAR PARISHAD, SITAMARHI Versus 1. THE STATE OF BIHAR 2. THE EXECUTIVE OFFICER null COUNCELLOR OF NAGAR PARISHAD, NAGAR PARISHAD, SITAMARHI 3. DISTRICT MAGISTRATE null COUNCELLOR OF NAGAR PARISHAD, SITAMARHI 4. SUB DIVISIONAL OFFICER null COUNCELLOR OF NAGAR PARISHAD, SITAMARHI SADAR 5. PANCHAYAT RAJ OFFICER null COUNCELLOR OF NAGAR PARISHAD, SITAMARHI 6. SECRETARY null COUNCELLOR OF NAGAR PARISHAD, NAGAR VIKAS & AWAS DEPTT. GOVT. OF BIHAR, PATNA 7. JAI MUNI DEVI W/O SHANKAR PRASAD COUNCELLOR OF NAGAR PARISHAD, R/O KAPRAUL ROAD, P.O. & P.S. & DISTT.- SITAMARHI AT PRESENT CHIEF COUNCELLOR OF NAGAR PARISHAD, SITAMARHI 8. SMT. INDRA GUPTA W/O YUGAL KISHORE PRASAD COUNCELLOR OF NAGAR PARISHAD, R/O WARD NO.- 7, P.S. & DISTT.- SITAMARHI 9. ARUN KUMAR RAI S/O JITENDRA RAI COUNCELLOR OF NAGAR PARISHAD, R/O WARD NO.- 25, P.S. & DISTT.- SITAMARHI 10. SMT. SAKEENA KHATOON W/O MD. MUSTAQUE COUNCELLOR OF NAGAR PARISHAD,R/O WARD NO.- 3, P.S. & DISTT.- SITAMARHI 11. AMARNATH GUPTA S/O RAM CHANDRA PRASAD COUNCELLOR OF NAGAR PARISHAD, R/O WARD NO.- 15, P.S. & DISTT.- SITAMARHI 12. DHANANJAY KUMAR S/O SRI BAIJU SAH COUNCELLOR OF NAGAR PARISHAD, R/O WARD NO.- 11, P.S. & DISTT.- SITAMARHI with LPA No.670 of 2010 - 2 - 1. MD.JALALUDDIN KHAN, S/O MD. SHAFIQUE KHAN, R/O STATION ROAD, PATHAN TOLI, WARD NO. 24, P.O & P.S - SITAMARHI TOWN, DISTRICT - SITAMARHI. Versus 1. JAI MUNI DEVI, W/O SHRI SHANKAR PRASAD, R/O KAPRAUL ROAD, P.S & DISTRICT - SITAMARHI, AT PRESENT CHIEF COUNCELLOR OF NAGAR PARISHAD, SITAMARHI,COUNCILLOR OF NAGAR PARISHAD, SITAMARHI. 2. THE STATE OF BIHAR. null COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 3. THE EXECUTIVE OFFICER, NAGAR PARISHAD, SITAMARHI. null COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 4. DISTRICT MAGISTRATE,SITAMARHI. null COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 5. SUB DIVISIONAL OFFICER, SITAMARHI. SADAR. null COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 6. PANCHAYATI RAJ OFFICER, SITAMARHI. null COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 7. SECRETARY, NAGAR VIKAS & AWAS , null GOVT. OF BIHAR, PATNA,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 8. SMT. INDIRA GUPTA , W/O SHRI YUGAL KISHORE PRASAD, R/O WARD NO. 7,SITAMARHI,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 9. ARUN KUMAR RAI, S/O SHRI JITENDRA RAI, R/O WARD NO.25,SITAMARHI,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 10. SMT. SAKEENA KHATOON, W/O MD. MUSTAQ, R/O WARD NO. 3,SITAMARHI,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 11. DHANANJAY KUMAR, S/O SHRI BAIJU SAH, R/O WARD NO.11,SITAMARHI,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 12. AMARNATH GUPTA, S/O SHRI RAM CHANDRA PRASAD, R/O WARD NO. 15,SITAMARHI,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. 13. SANJAY KUMAR MAHAJAN, S/O SHRI NANDLAL SAH, R/O WARD NO. 17, SITAMARHI,COUNCILLOR OF NAGAR PARISHAD,SITAMARHI. - 3 - ------------- For appellants : M/S Y.V.Giri, Senior Advocate with Raju Giri, For State : Mr. Bijay Kumar Pandey, AC to G.P. 18 For private respondent: Mr. S.B.K. Mangalam, Advocate. ------------ PRESENT: THE HON’BLE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (20.04.2010) AS per Dipak Misra,C.J. Regard being had to the commonality of the controversy in both the appeals, they have been heard analogously and are being disposed of by a singular order. 2. Be it noted, L.P.A. 525 of 2010 has been preferred by Sanjay Kumar Mahajan, the 12th respondent in C.W.J.C. No. 7540 of 2009 which was preferred by Jai Muni Devi who was the Chief Councillor of Sitamarhi Nagar Parishad. L.P.A. No. 670 of 2010 has been preferred by Md. Jalaluddin Khan who has preferred the appeal after obtaining grant of leave, on the foundation that he is the elected Chief Councillors of Sitamarhi Municipality after the election was held when the post of Chief Councillor, which was occupied by Jai Muni Devi, fell vacant because of vote of no confidence motion mooted against her became successful. 3. The factual matrix lies in a narrow compass. Jai Muni - 4 - Devi was elected as a councillor of Sitamarhi Municipality after contesting the election under Bihar Municipal Act, 2007 ( for brevity „the Act‟ ). The elected Councillors elected Jai Muni Devi as Chief Councillor. The vote of no confidence motion was mooted under section 25 of the Act and the same was put to vote on 18.07.2009. On that date on the basis of vote cast the Chief Councillor was removed from post. Because of removal, the post was treated to be vacant and accordingly the State Election Commissioner took steps to hold the election on 04.08.2009 to fill up the post. 4. It is apposite to note that Jai Muni Devi has challenged the manner in which the vote of no confidence motion was mooted and finalized, in C.W.J.C. No. 7540 of 2009. While the matter was sub judice, she participated in the election but lost the same and Md. Jalaluddin Khan was elected as the Chief Councilllor. 5. Learned Single Judge took note of the fact that the meeting was called and in the said meeting the writ petitioner, Jai Muni Devi was removed on the basis of Circular No. 62 dated 22.06.2009. Reliance has been placed upon the case of Pawan Kumar Purvey and others Vrs. The State of Bihar and others, 2010(1) P.L.J.R. 272 wherein it has been held that circulars have no authority of law and, therefore, the action taken therein is invalid. Because of the said view he - 5 - annulled the no confidence motion and allowed the writ petition and observed that replacement of no confidence motion could not be an impediment for bringing up a fresh no confidence motion under the provisions of the Act and Rules framed in 2010 which has been promulgated by the State Government. 6. At this juncture it is seemly to state that Jalaluddin Khan was elected in the resultant election because of the vacancy caused. He had thought to challenge the order of the learned Single Judge as he was apprehensive that his right would be affected and on the basis of a decision rendered in Nirmala Singh Vrs. State of Bihar & Ors. 2006(1) P.L.J.R. 129 leave was granted to prefer an appeal. Thus, the appeal at his instance. 7. We have heard Mr. Y.V.Giri along with Mr. Raju Giri, learned counsel for the appellants in both the appeals, Mr.S.B.K. Mangalam, learned counsel for contesting respondents and Mr. Vijay Kumar Pandey, learned counsel for the State in both the appeals. 8. At the very outset we may state that initially we were required to consider the justifiability and the legal substantiality of the order passed by the learned Single Judge whether the vote of no confidence motion, that has been nullified by the learned Single Judge on the basis of the decision rendered in Pawan Kumar Purvey (supra), is - 6 - correct or not but, pregnant one, we are not disposed to and it is not required to dwell upon the same as the learned Senior counsel, Mr. Giri, appearing for the appellants, submitted that when the erstwhile Chief Councilor contested the election that took place on the basis of vacancy of the post which had come into existence due to the order of removal, invited and attracted in fullest vigour the doctrine of waiver to the realm of the case and, therefore, the whole scenario is to be tested on the said touchstone. It is urged by him that putting the clock back by dwelling upon the legality of the order only would tantamount to the annihilation of the basic interest of democracy inasmuch as a person who had lost the second election would come into power which would be an anathema to the fundamental facet of democratic institutions. Learned Senior counsel commended us to the decision in Sanjay Singh Som Vs. The State of Bihar & Ors., 2002 (3) P.L.J.R. 589, Nirmala Singh ( Supra) and a Division Bench decision of this Court in Smt. Shamshad Khatun Vrs. The State of Bihar, 2010 (1) P.L.J.R. 929. 9. Mr. Mangalam, learned counsel appearing for the respondents supporting the order passed by the learned Single Judge, contended that when the vote of no confidence motion was not held in accordance with the procedure laid down under the Act, the same has been justifiably axed by the learned Single Judge and, therefore, as a - 7 - sequiter, she holds the post and her participation in the election would not be an impediment for her continuance. It is urged by him that at grass root level of democracy when the people are illiterate and the democracy is in a nascent stage, a lenient view has to be taken. Learned counsel has drawn inspiration from the decision in Brij Nandan Sharma Vrs. The State of Bihar, 2004(2) PLJR 244. 10. We note with profit that there is no dispute with regard to the factual matrix. The gravamen of the matter is whether the doctrine of waiver gets attracted and if the same principle is invoked whether the erstwhile Chief Councillor can be allowed to continue after losing in the election. In Sanjay Singh Som ( Supra), Aftab Alam, J, (as his Lordship then was) , while dealing with a similar situation has held as follows: “ 8” Even if the election was held disregarding the petitioner‟s request there was no compulsion for him to take part in the election. Had the petitioner not participated in the election of 6.5.2002 or even if he had participated in the election putting it clearly on the record that his participation was under protest and without prejudice to his claim and subject to the result of his writ petition in the High Court, the matter might have been different. But the petitioner did not do any such thing. He participated in the election unconditionally, with his eyes open and took a chance of winning the election. Now having been defeated in that election he may not be allowed to question the earlier resolution removing him - 8 - from the office of Pramukh. 9. Mr. Sharma further submitted that the subsequent development will not disentitle the petitioner to the relief claimed in this writ petition and in support of his submission he relied upon a constitution bench decision of the Supreme Court in The United Commercial Bank Limited Vs. Their Workmen, A.I.R. 1951 SC 230. That case was under the Industrial Disputes Act and on an entirely different set of facts and I see no application of that decision to this case. 10. In the facts and circumstances stated above, any interference by this Court in the petitioner‟s favour will give a very wrong message to the public. To a layman it would appear that taking advantage of some loop-hole in the law the petitioner was able to persuade the court to reinstate him in the office of Pramukh even though he lost the election in full public gaze in the meeting of 6.5.2002.” 11. In Nirmala Singh and another ( supra ) the learned Single Judge while dealing with the similar fact situation, has expressed the view as follows:- “Be that as it may, the meeting was convened pursuant to the notice as aforesaid. At the meeting the petitioners were removed from the posts of Pramukh as well as Up- pramukh. Neither in the requisition, nor in the notice, any reason in support of the motion had been mentioned, which appears to be a requirement of law. However, for that - 9 - reason the petitioners did not suffer any prejudice inasmuch , none of the petitioners attended the meeting. After the meeting was held and they were removed, again a meeting was held for the purpose of supplying the vacancy caused by such removal and both the petitioners participated in the said meeting proceeding on the basis that the same was a valid and legal meeting. While the petitioner no.1 participated in the meeting, the petitioner no.2 even offered himself for one of the posts for which election was to be held. In such a situation, if I interfere either with the requisition or with the notice or with the meeting being the subject matter of challenge in the instant writ petition, that would be travesty of justice and would permit the petitioner to have the status restored despite having had participated in the meeting by which with the mandate of the majority the status has been altered.” 12. In Smt. Shamshad Khatun ( Supra ) a Division Bench while dealing with the concept of acquiescence and waiver after referring the decisions in Shalimar Tar Products Ltd. vs. H.C. Sharma, ( 1988 ) 1 SCC 70 and Pulin Behari Lal Vs. Mahadeo Dutta & Ors., ( 1993) 1 SCC 629, Bibi Amna Khatun & Ors. Vs. Zahir Hussain & Anr., AIR 1981 Patna 1(FB), Krishna Bahadur Vs. Purna Theatre ( 2004) 8 SCC 229, Babulal Badriprasad Varma Vrs. Surat Municipal Corpn., (2008) 12 SCC 401, Jaswantsingh Mathurasingh - 10 - & Anr. Vs. Ahmedabad Municipal Corporation, 1992 Suppl. (1) SCC 5 and Krishna Lal Vs. State of J & K ( 1994) 4 SCC 422 Vellayan Chettiar vs. Government of the Province of Madras, AIR 1947 PC 197; Bhagchand Dagadusa Vs. Secretary of State for India in Council, 54 IA 338; Dhirendra Nath Gorai Vs. Shudhir Chandra Ghosh, AIR 1964 SC 1300; Lachoo Mal Vs. Radhey Shyam, AIR 1971 SC 2213 and Smt. Bhulin Dewangan Vs. State of M.P. & Ors., 2000(4) M.P.H.T. 69 ( FB) has expressed that: “21- Applying the aforesaid principle to the facts of the present case there can be no room for doubt that the right could be waived by the elected candidate and she has done so by her express conduct. Quite a part from the above this Court cannot be oblivious of the fact that the appellant had participated in the meeting by taking a chance and 12 members voted against her. It is also apt to note all the members had been served and they had participated. The requisite majority had voted against her. Ergo , there is no justification or warrant to interfere in the proceeding of No Confidence Motion in exercise of the extraordinary and equitable jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.” 13. In Brij Nandan Sharma ( Supra) the learned Single Judge in paragraphs 9 and 10 has expressed the view as follows: “9- From a plain reading of section 44 (7) of the Act, it is evident that all questions shall be decided by a majority of votes - 11 - of the members present and voting unless otherwise especially provided. Section 42 (3) of the Act, in specific term provides that the resolution expressing want of confidence in a Pramukh or Up-pramukh shall be passed by the majority of total number of elected members of the Panchayat. Thus, when section 42 (3) of the Act has specifically provided that motion of no- confidence can be carried out by majority of the total number of elected members of the Panchayat, the general provision will give way to the special provision. In my opinion special provision, i.e., section 42(3) having provided for passing of resolution by a majority of the total number of elected members same shall govern the field. Hence, the submission of Mr. Pradhan that it shall be decided by majority of votes of the members present and voting , is not fit to be accepted. 10- Although I have held that the Secretary of the Department has no power to nullify a no- confidence motion but the question is as to whether same requires to be interfered with by this Court in exercise of its writ jurisdiction. In my opinion, power to issue prerogative writs and orders have been conferred on superior Courts to do justice. It is well settled that this Court does not interfere with an order, the quashing whereof will revive an illegal order. In the present case, quashing of impugned order will revive no-confidence motion passed against the petitioner, which is absolutely illegal. In that view of the matter, in exercise of my power under Article 226 of the Constitution of India, I quash the resolution dated 28.09.2002 ( Annexure-5) and decline to interfere with the impugned order.” - 12 - 14. If the obtaining factual matrix is typically scrutinized, it would become luculent that there is a sea of difference between the two. In the cited authority an incompetent authority had set aside the vote of no confidence and the elected candidate had no role but in the case at hand after the no confidence motion she had contested the election and lost. Thus, the decision rendered in Brij Nandan Sharma (Supra) is distinguishable. 15. Be it noted, the respondent Chief councillor had challenged vote of no confidence motion. It would have been totally a different matter had she restrained herself from contesting in the second election and waited for the fate of her case but, she did not choose to do so, on the contrary she thought it appropriate to contest the election and to take a chance. 16. Thus, in our considered view, the decision in the case of Sanjay Singh Som ( Supra ) squarely coveres the case and principles of waiver as laid down in the case of Mrs. Shamshad Khatun ( Supra) comes into full play. 17. Ergo, despite immense endeavour by Mr. Mangalam to build the edifice on the foundation of concept of grass root level of democracy has to founder and we remain unpersuaded to accept the same, it is inconceivable that a Chief Councillor would take a chance in an election - 13 - and her failure take a somersault and attack the illegality in carrying out the vote of no confidence motion with vengeance. It would be sending improper message to the public at large and tantamount to travesty of justice. 18. Consequently, the appeals are allowed and the orders passed by the learned Single Judge are set aside. There shall be no order as to costs. 19. Needless to emphasize, as both the appeals deal with the Chief Councilors, we are not expressing any opinion whatsoever with regard to vote of no confidence motion carried out against the Deputy Chief Councilor. ( Dipak Misra, C. J. ) ( Mihir Kumar Jha, J ) Patna High Court. The 20th April, 2010 B.Tiwary/