IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12998 of 2011 1. Awadhesh Yadav S/O Sri Shankar Yadav R/O M/H-Moti Tola, P.S. Town, Distt.-Bhojpur (Ara). ……. Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Urban Development-Cum-Housing Deptt., Patna, Bihar. 2. The District Magistrate-Cum-District Election Officer (Nagarpalika), Bhojpur, Ara. 3. The Municipal Commissioner, Ara Municipal Corporation, Ara. 4. Smt. Shabnam Parween W/O Md. Salahuddin R/O Ward No.3, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 5. Smt. Bharat Paswan S/O Not Known R/O Ward No.1, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 6. Sri Rajendra Prasad S/O Not Known R/O Ward No.2, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 7. Smt. Veena Devi W/O Not Known R/O Ward No.4, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 8. Smt. Malti Devi W/O Not Known R/O Ward No.6, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 9. Smt. Anita Singh W/O Not Known R/O Ward No.7, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 10. Smt. Abha Tripathi W/O Not Known R/O Ward No.8, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 11. Sri Shatish Kumar S/O Not Known R/O Ward No.9, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 12. Si Lallu Kumar S/O Not Known R/O Ward No.10, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 13. Sri Anil Singh S/O Not Known R/O Ward No.11, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 14. Sri Dinesh Prasad S/O Not Known R/O Ward No.12, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 15. Smt. Suman Devi W/O Not Known R/O Ward No.13, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 16. Smt. Radhika Devi W/O Not Known R/O Ward No.14, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 17. Smt. Nishi Devi W/O Not Known R/O Ward No.15, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 18. Sri Jitendra Shukla S/O Not Known R/O Ward No.16, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 19. Smt. Nilam Devi W/O Not Known R/O Ward No.17, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 20. Smt. Bhagmni Devi W/O Not Known R/O Ward No.18, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 21. Smt. Bimla Singh W/O Not Known R/O Ward No.19, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 22. Sri Krishna Bihari Singh S/O Not Known R/O Ward No.20, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 23. Smt. Shail Kumari Devi W/O Not Known R/O Ward No.21, P.O. & 2 P.S. Ara Town, Distt.-Bhojpur (Ara). 24. Sri Subodh Kumar Verma S/O Not Known R/O Ward No.23, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 25. Sri Nagendra Kumar S/O Not Known R/O Ward No.24, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 26. Smt. Famida Khatoon W/O Not Known R/O Ward No.26, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 27. Smt. Urmila Devi W/O Not Known R/O Ward No.28, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 28. Smt. Anita Devi W/O Not Known R/O Ward No.30, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 29. Smt. Pratibha Sahay W/O Not Known R/O Ward No.31, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 30. Sri Shankar Prasad S/O Not Known R/O Ward No.32, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 31. Sri Prem Shankar Singh S/O Not Known R/O Ward No.33, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 32. Sri Shankar Rai S/O Not Known R/O Ward No.34, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 33. Sri Surendra Prasad S/O Not Known R/O Ward No.35, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 34. Sri Gopal Prasad S/O Not Known R/O Ward No.36, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 35. Smt. Vidhyawati Devi W/O Not Known R/O Ward No.37, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 36. Sri Vijay Kumar Choudhary S/O Not Known R/O Ward No.38, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 37. Smt. Pushpa Singh W/O Not Known R/O Ward No.39, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 38. Smt. Sudha Devi W/O Not Known R/O Ward No.40, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 39. Sri Laxman Chaurasiya S/O Not Known R/O Ward No.41, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 40. Sri Jagdish Singh S/O Not Known R/O Ward No.43, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 41. Sri Sunil Kumar S/O Not Known R/O Ward No.44, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 42. Sri Rajnath Ram S/O Not Known R/O Ward No.45, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 43. Smt. Chanda Devi W/O Not Known R/O Ward No.5, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 44. Smt. Nasim Bano W/O Not Known R/O Ward No.22, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 45. Smt. Salma Begum W/O Not Known R/O Ward No.25, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 46. Sri Anil Kumar S/O Not Known R/O Ward No.29, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara). 47. Smt. Shiv Kumari Devi W/O Not Known R/O Ward No.42, P.O. & P.S. Ara Town, Distt.-Bhojpur (Ara) ………. Respondents ___ 3 For the Petitioner : Mr. Y.V. Giri, Sr. Advocate Mr. Raju Giri, Advocate For the State : Mr. Harendra Prasad Singh, G.A.8 For the Corporation :Mr. Santosh Kumar, Advocate For the Pvt. Respondents: Mr. Basant Kumar Choudhary, Sr. Advocate M/s Arvind Kumar, Brajesh Prasad ____ O r d e r 2 9.8.2011 The petitioner, who is the Chief Councillor of Ara Municipal Corporation, prays for quashing the notice dated 6.8.2011 contained in letter no.4715 of Respondent no.3 whereby he convened special meeting on 10.8.2011 for tabling no confidence motion against him. The facts of the case in short is as follows; The petitioner took over as Chief Councillor of Ara Municipal Corporation in the first week of August, 2008, as the predecessor in office vacated the same in midst of his tenure. On 30.7.2010 some of the Councilors filed requisitions for convening a special meeting for passing of no confidence. The petitioner challenged the requisition as prematured, being violative of proviso to Section 25(4) of the Bihar Municipal Act, 2007 in C.W.J.C.No.12523 of 2010. The learned Single Judge vide order dated 10.5.2011 allowed the writ application and held that a requisition cannot be brought against a new incumbent of post of Chief Councillor of Municipality within two years of assumption of offence in view of proviso to section 25(4) of the Bihar Municipal Act, 2007 (hereinafter referred to as „the Act‟). The learned Single Judge observed that the new 4 incumbent who occupies the office of the Chief Councillor on the post falling vacant would also enjoy the protection of two years from the date of his/her assuming the office against tabling of a no confidence motion in view of first proviso to section 25(4) of the Act. In other words, the successor Chief Councillor/Deputy Chief Councillor would also be entitled to same benefit security of tenure of two years as the first incumbent. The learned Judge rejected the stand of the respondents that second proviso would apply and a no confidence motion can be brought against a successor or new incumbent of Chief Councillor/Deputy Chief Councillor after one year of first no confidence motion. A Letters Patent Appeal has been preferred before Division Bench against order of learned Single Judge by one Krishna Bihari Singh, one of the Councillors, which is subjudice pending consideration. On 23.7.2011, some of the Councillors again gave requisition in the office of the Municipality for convening a special meeting of no confidence motion against the petitioner. The Municipal Commissioner or Chief Municipal Officer vide letter no.4599 dated 27.7.2011 sought a direction from the Principal Secretary, Urban Development Department, Bihar, Patna on the maintainability of requisition in view of pendency of L.P.A. preferred against order dated 10.5.2011 passed in C.W.J.C.No.12523 of 2010. The Municipal Commissioner vide 5 his letter no.4712 dated 6.8.2011 repeated his request for appropriate guide lines in the matter. As Chief Councillor did not convene any meeting, the Councillors on 6.8.2011 made a requisition to the Respondent no.3,(Municipal Commissiioner) for convening special meeting for no confidence motion on 10.8.2011. A copy of the requisition dated 6.8.2011 is annexed at Annexure-7. The Municipal Commissioner (Respondent no.3) vide impugned letter no.4715 dated 6.8.2011 issued notice to all elected Councillors informing the date of special meeting of no confidence motion on 10.8.2011. The aforesaid letter is impugned in this writ petition. Mr. Y.V. Giri, learned Senior counsel appearing for the petitioner has challenged the impugned letter dated 6.8.2011 of Chief Municipal Officer mainly on the following grounds: (i) As the issue of earlier motion dated 30.7.2010 was still subjudice before this court, the instant motion dated 6.8.2011 is bad in law. (ii) The meeting convened by the Municipal Commissioner is in violation of Rule 2(iv) of the of Bihar Municipal No-Confidence Motion Process Rules, 2010 (hereinafter referred to as No Confidence Rules,2010). (iii) The requisition made by the Councillors to the Municipal Commissioner/Chief Municipal Officer is in violation of Rule 2(iii) of Rules, 2010 and section 48(3) of the Bihar Municipal Act, 2007. 6 (iv) The impugned notice is defective as even five suspended members were noticed to attend the special meeting on 10.8.2011. (v) The Municipal Commissioner without waiting for the guidelines from respondent no.1, conveyed the special meeting in haste. On the other hand, the respondents submit that the impugned notice is in order and in accordance with provisions of Municipal Act, 2007 and No Confidence Rules, 2010. They state that the issues involved in the instant writ petition is different than those in L.P.A. preferred against order dated 10.5.2011 passed in C.W.J.C.No.12523 of 2010. In C.W.J.C.No.12523 of 2010, the issue was whether a no confidence motion can be brought against a new incumbent after one year of assuming office of Chief Councillor/Deputy Chief Councillor. In the instant case, no confidence motion has been brought after two years. There is no dispute that in any view of the matter, a no confidence motion can be brought against even successor Chief Councillor or the Deputy Chief Councillor after two years of their assuming the post in view of first proviso to section 25(4) of the Act. The Respondents state that the charge on which no confidence motion was based and brought is annexed to the notice as an enclosure. I have heard learned counsel for the petitioner and learned counsel appearing on behalf of the concerned respondents. The 7 petitioner succeeded to the office of the Chief Councillor of Ara Municipal Corporation in the 1st week of August, 2008 after the vacation of the office by the earlier incumbent. The first no confidence motion was brought against the petitioner on 30.7.2010 which was within two years of assumption of office by him. The petitioner challenged the same in C.W.J.C.No.12523 of 2010 on the ground that in view of first proviso to section 25(4) of the Municipal Act, the no confidence motion cannot be brought for the first time either against the first or successor incumbent of office of either Chief Councillor or Deputy Chief Councillor. The Learned Single Judge by order dated 10.5.2011 accepted the contention of the petitioner. One of the respondents preferred L.P.A. against the order of learned Single Judge. In the meantime, after passage of more than two years, the Councillors again made a requisition before the Chief Councillor (petitioner) on 23.7.2011 for convening a special meeting for tabling no confidence motion against him. The petitioner who at the relevant time was the Chief Councillor refused to convey special meeting. As such, in terms of sub- rule(iii) of Rule 2 of No Confidence Rules, 2010, the Councillors then moved the Chief Municipal Officer for convening the special meeting. The Chief Municipal Officer acting in terms of sub-rule (iii) of Rule 2 of No Confidence Rules, 2010 and section 48(3) of the Bihar Municipal Act issued notices for convening a special meeting on 10.8.2011. The point 8 raised by the petitioner is that the issue involved in C.W.J.C.No.12523 of 2010 survives and the instant special meeting ought not to have been convened. As the issue centres round section 25(4) of the Act, the same is quoted herein below: 25(4).The Chief Councillor/Deputy Chief Councillor may be removed from the office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a specials 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 further 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”. The first proviso to Section 25(4) provides that no confidence motion shall not be brought against the Chief Councillor or the Deputy Chief Councillor within a period of two years of taking over the charge of the post. The second proviso states that a further no confidence motion shall not be brought again within one year of the first no confidence motion. Thus in any view of the matter, the maximum wait time for bringing a no confidence is two years. In C.W.J.C.No.12523 of 2010, the issue was whether a no confidence motion can be 9 brought just after one year against a new incumbent of the post of Chief Councillor or Deputy Chief Councillor. The stand of the petitioner therein was that even against the successor incumbent, protection of tenure of two years is to be provided in terms of first proviso and a no confidence motion cannot be brought just after one year and within two years. The second proviso which prohibits bringing of no confidence within one year of the first no confidence motion would apply to the cases where no confidence has failed against the same holder of post of Chief Councillor/Deputy Chief Councillor. In the background of discussions above, I am not in agreement with the submission of petitioner that the issue involved in the instant case is similar to the issue involved in L.P.A., wherein the issue is whether a no confidence motion can be brought just after one year of the first no confidence motion and within two years of the first no confidence motion. In the instant case, admittedly the no confidence motion has been brought much after two years which is not hit by either of the proviso, if the requisition is made by appropriate number of Councillors as per Coram provided under section 25(4) of the Act. It is relevant to state that the first proviso to section 25(4) states 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. The second proviso states that a no confidence motion shall not be brought 10 again within one year of the first no confidence motion. In the instant case, the no confidence motion has been brought admittedly much after two years of taking over charge of the post by the petitioner. As such, the instant issue is different from the issue involved in L.P.A. and is not dependent upon the outcome of the decision in L.P.A.. As such the contention of the petitioner to wait the decision in this case till the decision in L.P.A. is rejected. The petitioner next contended that the impugned notice dated 6.8.2011 convening special meeting for tabling no confidence motion violates Rule 2(iv) of the No Confidence Rules, 2010 which is quoted herein below: “(iv) The notice issued for considering No- confidence motion against the Chief Councillor/Deputy Councillor shall clearly contain the reasons/allegations on which basis the No-Confidence motion is to be brought”. The rule states that the notice issued for convening special meeting for no confidence motion against the Chief Councillor or the Deputy Chief Councillor shall contain the allegations/reasons on the basis of which no confidence motion is brought. The petitioner‟s case is that the impugned notice does not contain the reasons and allegations on basis of which no confidence motion has been brought. The petitioner has failed to comprehend that the last two lines of the impugned notice dated 6.8.2011 reads that agenda of 11 the meeting is to consider the allegations/charges contained in the no confidence requisition appended as Annexure itself to the impugned notice. It thus appears that the charges and the allegations on the basis of which the no confidence motion has been brought has been made annexure to the impugned notice which would form integral part of the notice itself. In case the impugned notice had not been annexed, the requisition containing the allegations on the basis of which no confidence motion has been brought, the same then would have failed the requirement of sub-rule (iv) of Rule 2 of the No Confidence Rules, 2010. It is not mandatory that the allegations are incorporated in the notice itself, if the same is annexed as annexure to the notice and specified in notice itself. The necessary ingredient is that notice convening the no confidence motion must convey the allegations on which it is brought so that the Councillors can judge for themselves whether it is to be supported or not. The notice in clear terms states that the agenda of the meeting is to consider the allegations contained in requisition appended to the notice as annexure. Thus, I do not agree with the submission of learned counsel for the petitioner that merely because the allegations are not incorporated in the notice, the same fails to meet the requirement of sub-rule (iv) of Rule 2 of the No Confidence Rules, 2010, if the allegations are annexed and made part of the notice. Mr. Giri next contended that the impugned notice is 12 in violation of section 48(3) of the Bihar Municipal Act, 2007 and Rule 2(iii), as the original requisition dated 30.7.2011 filed in the office of Municipality was signed by 23 Councillors, whereas requisition dated 6.8.2011 addressed to Municipal Commissioner (Respondent No.3) pursuant to which special meeting has been fixed for 10.8.2011 has been signed by 22 Councillors and not all the 23 Councillors. As the issue centers round section 48(3) of the Municipal Act, 2007, and Rule 2(iii) of the No Confidence Rules, 2010, the same are quoted hereinbelow: “Section 48(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”. “2(iii) In case the notice not being issued by the Chief Councillor within the stipulated date or not convening the meeting within stipulated time, the special meeting shall be called by the requisitionists as per the provision of Section 48(3) of the Bihar Municipal Act, 2007 and the notice for it shall be issued by the Chief Municipal Officer. The section provides that if Chief Councillor fails to call the requisition meeting, the same can be called by the persons who signed the requisition. The import of section 48(3) is that if upon a notice the Chief Councillor failed to call the meeting provided under sub section (2) of Section 48 and Rule 2(iii) of No Confidence Rules, 2010, the meeting can be called by the persons who signed the requisition. According to the petitioner the section states that only the persons who had signed the requisition of no 13 confidence motion and called upon Chief Councillor/Deputy Chief Councillor to call a special meeting can convene special meeting for tabling of no confidence motion if there is refusal to call one. It is not the case of the petitioner that 22 Councillors who requisitioned Chief Councillor to convene a special meeting of no confidence also requisitioned the Chief Municipal Commissioner. It is admitted case of the petitioner that these 22 Councillors who requisitioned the Chief Municipal Officer were among the 23 Councillors who had originally signed for requisitioning a no confidence motion in the office of the Municipal Corporation. Section 48(3) requires that the meeting can be called by the persons who signed the requisition. If one or two persons who had signed the earlier requisition before the Chief Councillor/ Deputy Chief Councillor do not sign for convening the special meeting, the same would not become bad if such Councillors satisfy the requirement of Coram and represent more than 1/3rd of the total number of Councillors required under section 25(4) of the Act. It is quite possible that in the interregnum, one of them may resign or defect or may not otherwise be not available for signing requisitions to be made to Municipal Commissioner or Chief Municipal Officer. It is a cardinal principle of rule of interpretation that a statute is to be construed to make it workable so as to achieve the avowed object for which the law framers have brought the legislation. In the instant case, the matter is simpler, as the statute is clear and 14 specific and state that the requisitionists before Chief Councillor/Deputy Chief Councillor under section 48(2) can make requisition before the Municipal Commissioner/Municipal Officer for convening special meeting for tabling no confidence motion under section 48(3) of the Act upon failure of Chief Councillor/Deputy Chief Councillor to convene special meeting. The requirement under the law is that a special meeting can be called, on a requisition made in writing by not less than 1/3rd of the total number of Councillors. Admittedly the number of persons making requisition for convening a no confidence motion were much more than the required as provided under section 25(4) of the Act for bringing no confidence motion and comprised 22 out of 23 members who filed requisitions before the Chief Councillor to convene a special meeting for tabling no confidence motion. The petitioner does not controvert that persons who signed the requisitions on 6.8.2011 made to Municipal Commissioner (Respondent No.3), were amongst the Councillors who requisitioned the Chief Councillor (the petitioner) to convene a special meeting for no confidence. As such, I see no merit in the contention of the petitioner that the provisions of section 48(3) of the Act have been violated. Another contention of the petitioner is that Respondent no.3 issued notice to all the Councillors to participate in the special meeting to be held on 10.8.2011 for tabling of no confidence 15 motion. The notice ought not to have been issued to Respondent nos.43 to 47 as they were suspended under section 52(3) of the Act. The petitioner submits that a suspended member cannot participate and vote in a no confidence motion. I would broadly agree to the proposition of law that a suspended member cannot participate in a no confidence motion. It is too early for the petitioner to say whether the five suspended members would participate and vote in the special meeting convened for no confidence motion to be held on 10.8.2011. Merely because the notice has been issued to all the Councillors including the five suspended Councillors, the schedule meeting held for 10.8.2011 would not become bad ipso facto. It may be quite possible that the five suspended members may not participate or vote in the meeting. In case if they do not participate and vote in the meeting, the meeting would be in order. The impugned notice cannot be declared illegal on account of aforesaid defect, which at the best can be an irregularity or an oversight, which itself would hold not much of significance, if the suspended members do not participate and vote. The issue is accordingly answered in negative against the petitioner. The last contention of the petitioner is that the Municipal Commissioner ought to have waited for guidelines from Respondent no.1 which he sought regarding convening of a special