THE HIGH COURT OF JUDICATURE AT PATNA LPA No.847 of 2010 1. GULSHAN AFROZ W/O ABU JAFFAR R/O HANDI KESHWAR, WARD NO. 6, P.O. & P.S. SASARAM, DISTT- ROHTAS AT SASARAM, EX-CHIEF COUNCILOR OF SASARAM NAGAR PARISHAD, P.O.& P.S. SASARAM, DISTT- ROHTAS AT SASARAM. 2. SURENDER KUMAR AGRAWAL S/O LATE JAGDISH CHANDER AGRAWAL R/O MOH. NAVARATAN BAZAR, P.O.& P.S. SASARAM, DISTT-ROHTAS AS SASARAM, EX-DEPUTY CHIEF COUNCILOR OF SASARAM NAGAR PARISHAD , P.O. & P.S.SASARAM, DISTT-ROHTAS AT SASARAM. 3. DASHRATH PRASAD S/O LATE JAY DEO RAM R/O MOH. KABIRGANJ, P.O.&P.S.SASARAM, DISTT-ROHTAS AT SASARAM , PRESENTLY THE WARD COUNCILOR OF SASARAM NAGAR PARISHAD, P.O.& P.S.SASARAM, DISTT- ROHTAS AT SASARAM. …… PETITIONERS-APPELLANTS. VERSUS 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE, ROHTAS AT SASARAM, DISTT-ROHTAS. 4. THE EXECUTIVE OFFICER, NAGAR PARISHAD SASARAM, DISTT-ROHTAS AT SASARAM. 5. NAJIA BEGUM W/O NOT KNOWN TO THE APPELLANTS. 6. CHANDRA SHEKHAR SINGH S/O NOT KNOWN TO THE APPELLANTS. 7. SHASHI PANDEY S/O NOT KNOWN TO THE APPELLANTS. 8.ANITA AGRAWAL W/O NOT KNOWN TO THE APPELLANTS. 9. MANOJ KUMAR PASWAN S/O NOT KNOWN TO THE APPELLANTS. 10. VIKASH KUMAR S/O NOT KNOWN TO THE APPELLANTS. 11. UMESH KUMAR S/O NOT KNOWN TO THE APPELLANTS. 12. BABY DEVI W/O NOT KNOWN TO THE APPELLANTS. 13. HASINA BANO W/O NOT KNOWN TO THE APPELLANTS. 14. REYAZ AHMAD S/O NOT KNOWN TO THE APPELLANTS. 15. MANOJ KUMAR S/O NOT KNOWN TO THE APPELLANTS. 16. MALTI DEVI W/O NOT KNOWN TO THE APPELLANTS. 17. LALTI DEVI W/O NOT KNOWN TO THE APPELLANTS. 18. VIJAY KUMAR MAHTO S/O NOT KNOWN TO THE APPELLANTS. - 2 - 19. KALAWATI DEVI W/O NOT KNOWN TO THE APPELLANTS. 20. BIHARI KUMAR S/O NOT KNOWN TO THE APPELLANTS. 21. JULEBA BEGUM W/O NOT KNOWN TO THE APPELLANTS. 22. SANJAY CHAUDHARY S/O NOT KNOWN TO THE APPELLANTS. 23. SHYAM DULARI DEVI W/O NOT KNOWN TO THE APPELLANTS. 24. RITA SINHA W/O NOT KNOWN TO THE APPELLANTS. 25. MAMTA DEVI W/O NOT KNOWN TO THE APPELLANTS. 26.AVINASH KUMAR S/O NOT KNOWN TO THE APPELLANTS. 27. BIRENDRA PRASAD CHAURASIA S/O NOT KNOWN TO THE APPELLANTS. 28. RAJESH GOND S/O NOT KNOWN TO THE APPELLANTS. 29. BINOD PRASAD S/O NOT KNOWN TO THE APPELLANTS. 30. NASRIN BANO W/O NOT KNOWN TO THE APPELLANTS. 31. KISHAN LAL SONKAR S/O NOT KNOWN TO THE APPELLANTS. 32. ANJU DEVI W/O NOT KNOWN TO THE APPELLANTS. 33. RINA DEVI W/O NOT KNOWN TO THE APPELLANTS. 34. YATENDRA KUMAR SINGH S/O NOT KNOWN TO THE APPELLANTS. 35. DHANANJAY SINGH S/O NOT KNOWN TO THE APPELLANTS. 36. SUNITA SINGH W/O NOT KNOWN TO THE APPELLANTS. 37. MIRA KAUR W/O NOT KNOWN TO THE APPELLANTS. 38. SABNAM PRAVIN W/O NOT KNOWN TO THE APPELLANTS. 39. NIRMALA DEVI W/O NOT KNOWN TO THE APPELLANTS. RESPONDENT NO.S 5 TO 39 ARE THE MEMBER OF THE SASARAM NAGAR PARISHAD, SASARAM , THROUGH THE EXECUTIVE OFFICER, SASARAM NAGAR PARISHAD, SASARAM, P.O. & P.S.SASARAM, DISTT-ROHTAS AT SASARAM. …..RESPONDENTS. ----------- For the appellants : Mr. S.B.K.Mangalam, Advocate. For the respondent no.6 : Mr.R.B.Mahto, Senior Advocate. Mr. Sanjay Kumar @ Manu, Advocate. For the State Election : Mr. Ram Shankar Pradhan, Commission Senior Advocate along with Mr. Rajeev Lochan, Advocate. For the Municipality : Mr. R.C.Sinha, Advocate. ------ - 3 - P R E S E N T: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R ( 11.05.2010) As per Dipak Misra, C.J. In this intra-court appeal, the challenge is to the legal propriety of order dated 21.04.2010 passed by the learned single Judge in CWJC No.2608 of 2010. 2. The facts which are essential to be stated are that the appellants no.1 and 2 were elected as the Chief Councillor and the Deputy Chief Councillor of Sasaram Nagar Parishad under the provisions of Bihar Municipal Act, 2007 (for brevity, „the Act‟). After expiry of two years, on 10.06.2009 a requisition was made for consideration of no confidence motion against the appellants no.1 and 2. The appellant no.1, who was required to fix the meeting for such consideration, did not fix the meeting. The State Government, in the meantime, issued an executive circular, as contained in Memo No.23670 dated 22.06.2009, wherein procedure for convening and holding a special meeting for consideration of no confidence motion against the Chief Councillor and the Deputy Chief Councillor simultaneously was laid down. It is worth noting under the statutory provision read with the circular, the Chief Councillor has power to convene the meeting within seven days and the meeting is required to - 4 - be held within 15 days, failing which the District Magistrate has been authorised to convene the meeting and preside over the said meeting. As the appellant no.1 did not convene the meeting, the requisition became infructuous. 3. As is evident, the Executive Officer of the Municipal Corporation then noticed to convene a special meeting on 11.07.2009 which was challenged by the appellant no.2 in CWJC No.7805 of 2009 and the writ court by order dated 14.01.2010 quashed the notice fixing the special meeting and granted liberty to the councillors to move a fresh vote of no confidence motion, if they so desired. The said order was passed placing reliance on a decision rendered in Pawan Kumar Purvey & another Vs. The State of Bihar and Others, 2010 (1) PLJR 272. 4. After the court set aside the said requisition on technical ground a fresh requisition in terms of Section 25(4) of the Act was moved by 31 councillors out of 40 elected councilors on 19.01.2010 for mooting of vote of no confidence motion against the Chief Councillor and the Deputy Chief Councillor and then after receipt of the requisition the Chief Councillor instead of convening the meeting sought legal opinion from the lawyer of the Municipal corporation who opined that in the absence of the Rules engrafted with reference to Section 25(4), the meeting could not be convened. The appellant - 5 - no.1 also sought opinion from the District Magistrate in this regard. As a dilatory tactics adopted by the appellant no.1, the same had created a sense of frustration amongst the councillors. The 31 elected councillors noticed the appellants no.1 and 2 to attend the meeting being requisitioned which was fixed on 16.02.2010. The appellants, being grieved preferred CWJC no.2608 of 2010 wherein this court declined to interdict in the meeting. As there was no interdiction, the meeting was convened and vote of no confidence was passed against the appellants no.1 and 2 by majority of over 2/3rd of the elected members though Section 25(4) of the Act stipulates such a motion can be passed by majority of votes of elected members. 5. It was contended before the learned single Judge that in the absence of Rules as contemplated under Section 25(4) of the Act, no meeting could be called; that there was no valid requisition to convene a meeting; that the meeting that was called by the members who had requisitioned was fully misconceived being contrary to the provisions of the statute; that the resolution that has been passed against the appellant does not remotely indicate any deliberation; and further that the votes were cast by show of hands and not by secret ballots. 6. The learned single Judge referred to Section 25(4) and Section 50 of the Act and came to hold that the requisition was - 6 - justified in law; that the 33 persons had voted in favour of the motion and that the removal of the Chief Councillor and the Deputy Chief Councillor are justified in law. Being of this view, he dismissed the writ petition. 7. We have heard Mr. S.B.K.Mangalam, learned counsel for the appellant, Mr. Ram Balak Mahto, learned senior counsel for the contesting respondent and Mr. R.S.Pradhan, learned counsel for the State Election Commission. 8. Mr. Mangalam, learned counsel appearing for the appellant has raised the following contentions: (a) In the absence of procedure prescribed as postulated in the dictionary clause under Section 2, the vote of no confidence motion could not have been mooted. (b) The request that was sent was holding of ordinary meeting and therefore the special meeting could not have been convened for mooting the vote of no confidence motion. (c) Voting process, namely, show of hands, is absolutely impermissible in law in a democratic body polity regard being had to the fact that the election is to be done by secret ballot and, therefore, the vote of no confidence has to be done by secret ballot. - 7 - (d) The resolution that was passed by the Municipality does not reflect that there was debate of any kind and, therefore this is an attack on the democratic process as a result of which elected members have been shown their doors. (e) The meeting that was convened by the councillors does not have the sanction of the statutory provisions and it violates the basic principle that if the law requires that something has to be done in a particular manner, the same has to be done accordingly and not to be done in any other manner at all. 9. Mr. Ram Balak Mahto and Mr. R.S.Pradhan, learned counsel for the respondents supported the order passed by the learned single Judge on the foundation that the appellants have been making maladroit endeavors to fight against no confidence motion and that has to be taken into consideration, the same being paramount in a state of good governance, no fault can be found. It is also urged by both of them that the procedure of voting that has been adopted in the meeting cannot be faulted as they came and attended the meeting and thereafter left the meeting place. Learned counsel for the respondents further submitted that one cannot take the benefit by one‟s absence what they could not have gained by their presence. The last plank of submission of learned counsel for the respondents is that when an elected candidate loses the confidence and there was no irregularity as - 8 - such which is mandatory in nature, the same cannot ordinarily be interfered with by this court. 10. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the materials brought on record and the order passed by the learned single Judge. It is the admitted position that previous to the present occasion, two attempts were made by the present councillors to moot a vote of no confidence motion after expiry of two years as permissible under Section 25 of the Act, but they became unsuccessful because of many a reason. Thereafter, the councillors after availing the liberty granted by the learned single Judge passed a requisition. The submission of Mr. Mangalam is that the requisition was for an ordinary meeting but not for a special meeting. On a perusal of the letter of requisition, as contained in Annexure-7 to the writ petition, for considering no confidence motion. True it is, they had mentioned „Samanya‟ meaning thereby „ordinary‟. The tenor of the language used in the requisition has to be seen in entirety and not in the manner Mr. Manglam would like to perceive it. There is a reference to Section 25(4) which deals with the mooting for vote of no confidence motion and there is a mention in categorical terms that a meeting for vote of no confidence motion be held. In view of the aforesaid, the contention that use of the term „Samanya‟ would obliterate the entire process does not deserve acceptance. - 9 - 11. The next plank of the submission of Mr. Manglam is that in the absence of the Rule prescribed a meeting cannot be convened. This court in Ruby Singh Vs. The State of Bihar and others, L.P.A.No.1564 of 2009 and other connected matters, decided on 15.04.2010 has held as follows: 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 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. 12. In view of the aforesaid, the said submission has to melt into insignificance and we so hold. 13. The next submission of Mr. Mangalam is that the meeting could not have been held by the councillors as admittedly the fact-situation would show the maladroit efforts were made to delay the meeting by taking legal opinion and subsequently by the District Magistrate. In this context, we may refer to Section 48(3) of the Act which reads as under:- - 10 - “48. Meetings.- (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.” 14. In our considered opinion, the language employed in sub- section (3) of Section 48 grant immense authority to the councillors to have the meeting. Thus, we do not find any substance in the submission put forth and accordingly, we repel the same. 15. The next limb of submission of Mr. Mangalam is that when the election of Chief Councillor and Deputy Chief Councillor are to be held by secret ballot, they have to be removed in the same process and not by show of hands. He has invited our attention to Rule 96 of the Bihar Municipal Rules, 2007 (for short, „the Rules‟). We have carefully perused the Rules. On a perusal of the said Rules, it is quite vivid that voting has to take place in a ballot paper. Emphasizing on the term „ballot paper‟, learned counsel has submitted that it presupposes secrecy. There cannot be any cavil over the same. When the election takes place between the two candidates, the concept of secret ballot, which is inherent secrecy, has to be observed and when a person is removed by vote of no confidence it stands on two different footings. In this connection, we may refer to sub-section 5 of Section 50 of the Act. The same reads as under: “50(5). The voting shall be by show of hands, provided that the Municipality may, subject - 11 - to such regulations as may be made by it, resolve that any question, or class of questions, shall be decided by secret ballot.” 16. On a perusal of the same it is clear as day that voting can be done by show of hands unless contrary is provided by the regulation framed by the Municipality. We have been apprised at the Bar that the regulation has not yet been framed. In view of the aforesaid, voting can be done by show of hands as the statute is unambiguous and does not use the term „ballot paper‟. Thus, the said submission is sans substratum. 17. The resolution has been brought on record as Annexure-14 which clearly reveals that 33 councillors raised their hands against the Chief Councillor and the Deputy Chief Councillor. Section 25(4) requires a majority of the whole number of councillors. Out of total strength of 40, 33 have voted against appellants no.1 and 2 and 7 have chosen to abstain. Be that as it may, when 33 members have voted against the Chief Councillor and the Deputy Chief Councillor and the requirement under Section 25(4) is specific we do not find any illegality in mooting the vote of no confidence motion. 18. Ergo, we do not perceive any error in the order of the learned single Judge and we respectfully concur with the same, and accordingly, the appeal, being devoid of merit stands dismissed. There shall be no order as to costs. - 12 - 19. Needless to emphasise, when the appeal is dismissed, all other interim order passed by this court would be deemed to have been vacated. ( Dipak Misra, C.J.) ( Mihir Kumar Jha, J.) Patna High Court. Dated 11th May, 2010. A.F.R. Sunil/