IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9843 of 2011 1.Rajeshwar Prasad son of Late Shivnath Prasad, resident of Nabinagar, P.S. Nabinagar, District Aurangabad, Bihar 2.Amarawati Devi wife of Shri Suresh Prasad Singh resident of Thana Road, Nabinagar, P.S. Nabinagar, District Aurangabad (Bihar) 3.Anil Kumar Singh son of Shri Chandradeep Singh, resident of Village Gurdi, P.S. Nabinagar, District Aurangabad 4. Ram Dish Thakur son of late Sukam Thakur, resident of Village-Koshdihra, P.S. Nabingar, District Aurangabad 5. Satyendra Ram son of late Nanhaku Ram, resident of Mohalla Janakpur, Nabingar, District Aurangabad 6. Kapildeo Singh son of late Rameshwar Singh, resident of village Jobe, P.S. Nabinagar, District Aurangabad 7. Sarita Devi wife of Sunil Kumar resident of village Shankarpur, P.S. Nabingar, District Aurangabad 8. Giresh Singh son of late Mundrika Singh, resident of village Jainagra, P.S. Station Nabinagar, District Aurangabad ….. Petitioners Versus The State Of Bihar & Ors . ………. Respondents ----------- For the Petitioner : Mr.Rajiv Kumar Verma, Sr. Advocate M/s Bindhyachal Singh, Sushil Kumar Singh, Vipin Kumar For the State : Mr. Siddharth Shankar Pandey, Advocate Sanjay Kumar, AC to GP 24 For the Respondent No.8 : Mr.Ashutosh Ranjan Pandey, Advocate For the Intervener Respn. : Mr. Mrigank Mouli, Advocate Mr.Rakesh Kumar, Mr.Umesh Pathak For the State Election Commission: Mr. Sanjeev Nikesh, Advocate O r d e r 4. 08.11.2011 I.A. No. 4546 of 2011 has been filed by petitioner no.4, Ram Dish Thakur, praying therein for deleting his name from the array of petitioners. In view of reasons stated in I.A. application, but without prejudice to any of the parties. I direct the deletion of his name as a petitioner in this case. I.A. No.4546 of 2011 is thus disposed of. 2. I.A. No.4527 of 2011 has been filed on behalf of Upendra Choudhary, Ward Commissioner from Ward No.12 of Nabinagar Nagar Panchayat for being added as respondent. The 2 prayer is allowed. The office would add Upendra Choudhary as respondent no.9 to this writ application. 3. All the seven petitioners (now excluding petitioner no.4), who are Ward Councillors of Nabinagar Nagar Panchayat, pray for quashing the order contained in Memo no.3308 dated 13.06.2011 (Annexure-7), issued under the signature of Deputy Secretary –cum- Director, Urban Development and Housing Department, Government of Bihar, Patna, whereby the resolution of No Confidence Motion passed on 28.04.2011 in the meeting of Ward Councillors of Nabinagar Nagar Panchayat against private respondent no.8 has been annulled / quashed and it was declared that the post of Chief Councillor of Nabinagar Nagar Panchayat is not vacant. The petitioners also pray for a declaration that the resolution passed on 28.04.2011 is legal and valid and the post of Chief Councillor of Nabinagar Nagar Panchayat has fallen vacant. 4. The reliefs prayed by the petitioners is founded on the grounds that the respondent State in exercise of Section 67 read with section 62 of the Bihar Municipal Act, 2007 cannot interfere in democratic process and decision of a local self- government. According to the petitioners, the respondent State can interfere only in administrative matters and that too not before providing a hearing to the Municipal authority. The petitioners have also raised the ground that a Councilor, who is disentitled to vote pursuant to have been chosen to preside over a special meeting under Rule 2(iii) of the Bihar Municipal No 3 Confidence Motion Process Rules, 2010 (hereinafter referred to as „the No Confidence Rules,2010‟), cannot be counted towards the whole number of the house under Section 25(4) of the Bihar Municipal Act, 2007. 5. Before I deal with the issues involved in this case, the brief facts of the case and provisions of law are required to be noticed; The petitioners, are Ward Councillors of Nabinagar Nagar Panchayat in the district of Aurangabad having a total strength of fourteen members. All 14 Councillors were elected in the year, 2007. On 07.03.2011, eight councillors, seven of whom are petitioners herein this writ, submitted a requisition before the Chief Councillor (respondent no.8) for calling a special meeting of the house of Nabinagar Nagar Panchayat to consider the proposal of no confidence motion against him.The respondent no.8 did not summon the meeting, whereupon the Councillors made a requisition before the Executive Officer, Nabinagar Nagar Panchayat for calling such meeting. The special meeting was accordingly fixed for 28.04.2011. Nine (9) out of total fourteen (14) councilors participated in the business of the meeting. As no confidence motion was proposed against the Chief Councillor and the post of the Deputy Chief Councillor was vacant, one Ram Dish Thakur was elected to preside over the meeting in terms of Rule 2(ii) of No Confidence Rules, 2010. After required deliberations, no confidence motion was carried against respondent no.8 by seven votes to one. In other words, seven votes were cast for removal of the Chief Councillor, 4 whereas one vote was against the motion. According to the petitioners, Ram Dish Thakur, the Councillor elected for the purpose of presiding over the meeting was not permitted to cast his vote by the Executive Officer, Nabinagar Nagar Panchayat. The Presiding Officer, Ram Dish Thakur declared that no confidence motion has been passed against respondent no.8. The Executive Officer, Nabinagar Nagar Panchayat vide letter no.149 dated 05.05.2011 requested District Magistrate – cum – District Election Officer, Aurangabad to take necessary action for election of new Chief Councillor of Nabinagar Nagar Panchayat, as the post of Chief Councillor had become vacant. A copy of letter dated 5.5.2011 of Executive Officer, Nabinagar Nagar Panchayat is annexed as Annexure-4 to this writ application. 6. The private respondent no.8 made representation to the Principal Secretary, respondent no.2, that the resolution dated 28.04.2011 removing him from his post is in violation of Section 25(4) of the Act. Simultaneously, he also filed a writ application bearing C.W.J.C. No.8971 of 2011 before this Court challenging the resolution dated 28.04.2011 removing him from the post of Chief Councillor. On 20.05.2011, learned Single Judge issued notice to respondents to file their counter affidavits. The learned Single Judge, however, did not accede to the prayer of respondent no.8 to stay the operation of impugned resolution, dated 28.04.2011. A copy of order dated 20.05.2011 passed in C.W.J.C. No.8971 of 2011 is annexed as Annexure-5. 5 C.W.J.C.No.8971 of 2011 was later on withdrawn on 21.6.2011. In the meantime, the State Government referred the representation of the petitioner to the Law Department for its opinion. On receipt of the opinion, the Government vide Memo no.3308, dated 13.06.2011 annulled the resolution dated 28.04.2011 under sections 62 and 67 of the Act on the ground that the same has not been passed by a majority of whole number of councilors and thus the post of Chief Councilors would not be deemed to have fallen vacant. The aforesaid Memo dated 13.06.2011 is under challenge in this writ application along with other reliefs earlier stated. 7. The following issues arise for consideration in view of the pleas taken by the parties: i) What would be the meaning of a „majority of whole number of Councillors holding office for the time being‟ as occurring in section 25(4) of the Bihar Municipal Act, 2007 ii) Whether the Presiding Officer is entitled to vote in a meeting called for removal of Chief Councillor/Deputy Chief Councillor under section 25(4) of the Bihar Municipal Act, 2007 read with Bihar Municipal No Confidence Motion Process Rules, 2010. iii) Whether the action of the State Government annulling the resolution dated 28.4.2011 unseating respondent no.8 in no 6 confidence vote amounts to interference in the democratic function of the institution of self governance. iv) Whether an opportunity providing show cause was necessary under section 67 of the Municipal Act by the Government before annulling the resolution of the Councillors regarding passing of no confidence motion against respondent no.8. 8. Issue No.1- What would be the meaning of the term „a majority of whole number of Councillors holding office for the time being‟, as occurring in section 25(4) of the Bihar Municipal Act, 2007: Section 25(4) of the Bihar Municipal Act, 2007 (hereinafter referred to as „the Act‟) states that a Chief Councillor/Deputy Chief Councillor may be removed from the office by a resolution carried out by a majority of whole number of Councillors for the time being at a special meeting in accordance with the procedure prescribed under the No Confidence Motion Rules, 2010. The meaning of the term „majority of the whole number‟ is one of the issues for consideration. To appreciate the issue section 25(4) of the Act is quoted hereinbelow: “25(4)- The Chief Councillor/Deputy Chief Councillor may be removed from office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a special meeting to be called 7 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” 9. The term “Councillor” occurring in section 25(4) of the Act too has been defined in sub-section (27) of Section 2 of the Act, as a person chosen by direct election from a ward of a Municipality. The term „Councillor‟ thus refers to an elected Councillor. 10. The petitioners state that Nabinagar Nagar Panchayat has 14 elected Councillors, out of which 9 Councillors attended the no confidence meeting held on 28.4.2011. As the post of Deputy Chief Councillor was vacant and motion of no confidence was being moved against the Chief Councillor, one Ram Dish Thakur, one of the 9 participating Councillors was elected to preside over the meeting. During voting, while the other 8 Councillors were allowed to cast their votes, the above mentioned Ram Dish Thakur was not allowed to do so, on the ground that the Presiding Officer in term of section 51(2), can cast his vote only in case of equality of votes. He thus submits that as Ram Dish Thakur was debarred from voting, the whole number or the total number of Councillors would be 13 and not 14. He accordingly inferred that majority of the whole number in such circumstances would be 7 and not 8 as suggested by the respondents. He submits that as the resolution was passed by 7:1 8 vote, the respondent no.8 would be deemed to be removed by force of Section 25(4) of the Act, 2007. 11. In nut shell, the petitioners submit that the whole number is to be construed vis-a-viz the persons, who are entitled to vote. In support of their submissions, the petitioners have referred to the decisions in the case of Ramesh Mehta Vs Sanwal Chand Singhvi & Ors, reported in 2004 SC 2258 = (2004) 5 SCC 409 particularly paragraphs 9 and 11. The petitioners have also relied upon a decision in the case of Prem Raj Bohra & Ors Vs Jairoopa & Ors, reported in A.I.R. 2003 Rajasthan 128. 12. Mr. Mrigank Mouli, who appears for the intervener respondent Upendra Choudhary submits that the whole number would be deemed to be a total number of elected members holding office for the time being at a special meeting having right to vote. Mr. Mouli in support of his submissions, has tried to draw parity from decisions rendered in respect of meaning of term „majority of the whole number‟ occurring in the Bihar & Orissa Municipal Act, 1922 as well as Bihar Panchayat Raj Act, 2006, also a form of local self government duly recognized under our Constitution. In support of his contention, Mr. Mouli relied upon decisions in the case of (i) Sukhdeo Narayan Vs Municipal Commissioner of Arrah Municipality, reported in AIR 1956 Patna 367(D.B.); (ii) Binay Kumar Srivastava Vs State of Bihar & Ors, reported in 1990(1) BLJ 736 (D.B.); (iii) Brij Nandan Sharma Vs The State of Bihar, reported in 2004(2) PLJR 244; (iv) Sarita Kumari Vs State of Bihar, reported in 9 2008(4) PLJR 519; (v) Sunita Devi Vs State of Bihar, reported in 2007(3) PLJR 457 and (vi) Ramesh Mehta Vs Sanwal Chand Singhvi, reported in (2004) 5 SCC 409. 13. Mr. Ashutosh Pandey who appeared for respondent no.8 while adopting the argument of Mr. Mouli relied upon the decisions rendered in the case of (i) Ramesh Mehta Vs Sanwal Chand Singhvi & Ors, reported in 2004 SC 2258, (ii) Brij Nandan Sharma Vs The State of Bihar, reported in 2004(2) PLJR 244, (iii) Sarita Kumari Vs State of Bihar, reported in 2008(4) PLJR 519, (iv) Sunita Devi Vs State of Bihar, reported in 2007(3) PLJR 457, (v) Sukhdeo Narayan & Ors Vs Municipal Commissioner of Arrah, Municipality & Ors, reported in 1956 Patna 367 and (vi) Binay Kumar Shrivastava & anr Vs State of Bihar& Ors, reported in 1990(1) BLJ 736. 14. I need not refer to different case laws individually cited by Mr. Mouli and Mr. Pandey appearing for the private respondents as the meaning of the term „the whole number of Councillors/Members‟ holding the office for the time being is well settled by authoritative pronouncements of this court as well as Hon‟ble Apex Court. It would be suffice to refer to the case of Ramesh Mehta (supra), wherein the Hon‟ble Apex Court was considering a similar issue with reference to Rajasthan Municipality (Motion of No Confidence against Chairman or Vice Chairman) Rules, 1974. The Apex Court observed that the expression „whole number‟ of Members or „total number‟ of members shall mean total number of members holding the office 10 at the given time and would include only such members who have been elected directly and have been given right to vote. A dispute was raised whether the two nominated members and one co-opted member would be included in the expression „whole number‟ or „total number‟, The Hon‟ble Apex Court held that „total number‟ or „whole number‟ shall not include the two nominated and co-opted members and whole number or total number would include only elected member of the Municipal Board. 15. Mr. Rajiv Kumar Verma, though did not dispute the interpretation or the meaning of „whole number‟ to mean total number of the Councillors holding office for the time being, but he argued that the whole number should be counted only in reference to the members, who would be entitled to vote. He submits that for instance, a member who is under suspension at the time of such proceeding or has resigned cannot be counted towards the whole number, as he would not be entitled to vote in view of the observations of the Hon‟ble Apex Court, in paragraph 11, in the case of Ramesh Mehta (supra), which is quoted hereinbelow : “11………. Hence in our view, the expression whole number or total number connotes the total number of elected members”. While considering the word majority in para 9 of the judgment the Hon‟ble Court was pleased to find that “Therefore, the word majority would mean majority of persons entitled to vote”. 16. There is no difficulty in accepting the aforesaid 11 submissions, as section 25(4) of the Act refers to „whole number of Councillor‟ holding office for the time being at a special meeting. The Councillor who has resigned or ceases to be a member or otherwise disqualified or barred from voting at the relevant time, cannot be deemed to be holding office. In such circumstances, while calculating the total of whole number, the number of such members has to be excluded. However, such is not the position in the instant case, as none of the Councillors has vacated the office, or is dead or has been otherwise disqualified/suspended or barred from voting. The whole number of councilors holding office during the proceedings of no confidence motion was 14, and thus 8 votes were needed for passing of the resolution of removal of Chief Councillor (Respondent no.8). The motion was carried only by 7:1 which would not form majority of whole number. The issue is decided against the petitioner. 17. This brings us to the next issue:- (ii) “Whether the Presiding Officer is entitled to vote in a meeting called for removal of Chief Councillor/Deputy Chief Councillor under section 25(4) of the Bihar Municipal Act, 2007 read with Bihar Municipal No Confidence Motion Process Rules, 2010”. As the motion was moved against the Chief Councillor and the post of Deputy Chief Councillor being vacant, so in terms of Rule 2(iii) of the No Confidence Rules, 2010, one of the participating councilors, namely Ram Dish Thakur was 12 elected to preside over the meeting. After the usual deliberations and discussions, the motion was put to vote. 8 out of 9 Councillors participated in the voting process. It is in dispute whether the Presiding Officer Ram Dish Thakur was prevented from voting or he himself did not vote. The net result is that Ram Dish Thakur, who presided over the meeting did not vote. 18. Mr. Rajiv Kumar Verma, learned Senior Counsel submits that as Ram Dish Thakur presided over the meeting, he lost his voting right in view of section 51(2) of the Act. He submits that in view of section 51(2) of the Act, a Presiding Officer would have a right to exercise a casting vote only in cases of equality of votes. In support of his submissions, learned counsel has referred to Articles 100(1) and 189 of the Constitution of India which bars voting right to Chairman or Speaker of Parliament and House of Legislature of a State respectively, save and except for a casting vote in case of an equality of votes. Learned counsel submits that as Ram Dish Thakur was not entitled to vote, he ought not to have been included towards counting of total number of councilors, which in the circumstances would narrow down to 13 from 14. Thus, passing of the motion by 7:1 would form majority of whole number, which in the circumstance has to be counted as 13. 19. Mr. Mouli submits that a Councillor presiding a special meeting has two votes under the Municipal Act. He states that in the Panchayati Raj Act, similar provisions exist where two votes have been granted; one as Member and the other in case of 13 a tie. The relevant provisions relating to Mukhiya is Section 21(2); for Pramukh, it is Section 46(7) and for Adhyakshya it is section 72(3) read with section 72(5) of the Act. 20. The point in issue is whether a Councillor who presides over a no confidence meeting would have a regular voting right apart from a casting vote in case of equality of votes as provided under section 51(2) of the Act. Section 25(4) of the Act states that a Chief Councillor or Deputy Chief Councillor may be removed from the office by a resolution carried by a majority of whole number of Councillors holding office for the time being at a special meeting. In no ambiguous term, the section states that all the Councillors who are holding office for the time being can participate and exercise their vote in a proceeding relating to removal of a Chief Councillor/Deputy Chief Councillor. The term that the Chief Councillor/Deputy Chief Councillor may be removed from office by a resolution carried by majority of whole number of Councillors holding office for the time being, would include the Councillor who is presiding over the meeting, as he is also holding office like other Councillors for the time being. A Speaker or Chairman of Parliament or the State Legislature under Article 100(1) and Article 189 of the Constitution of India are barred by specific provisions contained therein which is not the situation under the Municipal Act, 2007. Article 100(1) and Article 189 of the Constitution of India are quoted to illustrate the point mentioned above: “Article 100– Voting in Houses, power of Houses to act notwithstanding vacancies and 14 quorum-(1) Save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes” “Article 189. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum-(1) Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determined by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such. The Speaker or Chairman, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the caseof an equality of votes”. 21. It is also evident from bare perusal of section 51(1) & (2) of the Act that a Presiding Officer will have a regular voting right apart from casting vote incase of equality of votes. Section 51 and its proviso would not be only applicable to transaction of business of Municipality, but would be equally applicable to special meeting convened for removal of Chief Councillor/Deputy Chief Councillor. Section 51(1) & (2) of the Act is quoted hereinunder: “51. Presiding officer of a meeting of Municipality-(1) The Chief Councillor shall preside at every meeting of the Muncipality and in his absence the Deputy Chief Coucnillor shall preside the meeting (and if both the Chief Councillor and Deputy Chief Councillor are absent from the meeting, the members present shall choose one of their members to preside; Provided that when a meeting is held 15 to consider a motion fort the removal of the Chief Councillor, the Chief Couuncillor shall not preside at such meeting. Provided further that if the meeting is convened for the removal of both Chief Councillor and Deputy Chief Councillor, the members present shall choose one of the members to preside”. “51(2) The Chief Councillor, or the person presiding over a meeting of the Municipality, shall also have, and may exercise, a casting vote in all cases of equality of votes”. Section 51(2) of the Act provides that a Chief Coucnillor or the person presiding over the meeting of a Municipality shall also have and may exercise a casting vote in all cases of equality of votes. The underlining is mine for emphasis. The word „shall also‟ referred to the provision, is of utmost significance. The section provides that such Councillor who presides over a meeting apart from the regular vote as implicit in section 25(4) of the Act, would also have a casting vote. If the intention of the legislature was to provide only a casting vote to a Presiding Officer and that too, in case of equality of votes, the word “shall also” have and may exercise, a casting vote in case of equality would not have been incorporated in section 52(2) of the Act in one go. Further more, section 25(4) of the Act, which is quoted in paragraph 8, states that the Chief Councillor or Deputy Chief Councillor may be removed by a resolution in a special meeting in the manner prescribed, which has been detailed in No Confidence Motion Rules, 2010. Rule 2(v) states that the 16 motion of no confidence shall be put to votes by presiding member by secret ballot which is quoted herein below: “2(v) As soon as the meeting, called for, commences, the presiding member at the meeting shall read out the motion on which the meeting has been called, before the members present and declare it open for discussion. During discussion, opportunity shall be given to the Chief Councillor/Deputy Chief Councillor against whom no confidence motion is moved, to defend himself. The motion shall be put to vote by the presiding member by secret ballot on the same day after discussion and after counting result shall