IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1067 of 2010 1. SAGUFTA PARWEEN W/O MD. MURSHID R/O WARD NO.45, GHUGHRI TAND, P.S. CIVIL LINES, DISTT.- GAYA VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. MUNICIPAL COMMISSIONER GAYA MUNICIPAL CORPORATION, GAYA 4. DEPUTY SECRETARY-CUM-DIRECTOR URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. EXECUTIVE OFFICER GAYA MUNICIPAL CORPORATION, GAYA ----------- For the Petitioner : Mr. Y.V. Giri, Sr. Adv. Mr. Raju Giri. For the Intervenors : Mr. Mrigank Mauli. Mr. Dharmendra Kumar. Mr. Vinay Mistry. Mr. Kundan Mishra. Mr. Sanjeev Kumar. --------------- 02 23.02.2010 The petitioner is a member and has now been elected as Mayor/Chief Councillor of Gaya Municipal Corporation, a Corporation duly constituted under the Bihar Municipal Act, 2007. He challenges the government direction, as contained in Memo No.6020 dated 18.12.2009, issued by the government in the department of Urban Development and Housing to the effect that notwithstanding change of Chief Councilor (Mayor), the Empowered Standing Committee of the Municipal Corporation, as nominated earlier, would continue. Meaning thereby, that the Chief Councillor newly elected would not have the power to nominate members of the Empowered Standing Committee of the Corporation in terms of Section 21(3) of the Municipal Act. Two intervention petitions have been filed on behalf of two members of the empowered standing committee, which is - 2 - sought to be changed by the new Mayor. The intervention applications are allowed and they have been heard at length. Heard the parties and with their consent the writ petition is being disposed of at this stage itself. As it is purely a question of legal interpretation, on behalf of petitioner, it is submitted that the petitioner having been elected as Mayor of the Gaya Municipal Corporation, he has in terms of Section 21(3) a right to nominate from amongst the councillors (elected members) to the Empowered Standing Committee of the Municipality. Section 21 is quoted hereunder:- Constitution of Empowered Standing Committee of Municipality.- (1) In every Municipality there shall be an Empowered Standing Committee. (2) The Empowered Standing Committee shall consist of- (a) in the case of a Municipal Corporation, the Mayor, the Deputy Mayor, and seven other Councillors; (b) in the case of a Class ‘A’ or Class ‘B’ Municipal Council, the Municipal Chairperson, the - 3 - Municipal Vice Chairperson, and five other Councillors; (c) in the case of a Class ‘C’ Municipal Council, the Municipal Chairperson, the Municipal Vice- Chairperson, and three other Councillors; and (d) in the case of a Nagar Panchayat, the Municipal President, the Municipal Vice-President, and three other Councillors. (3) The other members of the Empowered Standing Committee shall be nominated by the Chief Councillor from among the Councillors elected under sub section (1) of section 12 within a period of seven days of his entering office. (4) The other members of the Empowered Standing Committee shall assume charge after taking the oath of secrecy under section 24. (5) The Chief Councillor shall be the presiding officer of the Empowered - 4 - Standing Committee. (6) The manner of transaction of business of the Empowered Standing Committee shall be such as may be prescribed. (7) The Empowered Standing Committee shall be collectively responsible to the Municipal Corporation or the Municipal Council or the Nagar Panchayat, as the case may be. Learned counsels for the intervenors submit that once an Empowered Standing Committee has been constituted, it shall continue notwithstanding change of Mayor. It is this diametrically opposite stands that are to be resolved by this Court in these proceedings. Any Municipal Corporation by virtue of Section 20 Sub-section (2) the Mayor is the Presiding Officer of the Corporation. By virtue of Section 22 of the Act the executive power of the Corporation is to be exercised by the Empowered Standing Committee. The Empowered Standing Committee consists of Mayor, Deputy Mayor and seven other councillors. The Mayor by virtue of Section 21(5) is the Presiding Officer of the Empowered Standing Committee. By virtue of Section 21 (7) it is the Empowered Standing Committee which is collectively responsible to the Corporation. From these provisions, it would be - 5 - seen that the Empowered Standing Committee is a body within the Municipality. In this case, the Municipal Corporation which has to function as one body and one team. I am purposefully saying this because it is the spirit of this that is to be found in Sub-section (3) of Section 21 where it is the sole prerogative of the Mayor to choose amongst the many councillors elected in terms of Section 21 to be a part of the Empowered Standing Committee and to work with him. This scheme will lose all its significance if we were to say that the Mayor would be at logger heads with the members of the Empowered Standing Committee not nominated by him. It is the whole concept of collective responsibility of Sub-section (7) of Section 21. It is in view of these schemes that Sub-Section (3) of Section 21 provides that the other members of the Empowered Standing Committee [the Mayor and the Deputy Mayor being already there by virtue of Section 21 (2) (a)] shall be nominated by the Mayor from amongst the councillors within a period of seven days of his entering office. We may also refer to Section 24 where the Mayor and the members of the Empowered Standing Committee, who as noticed above, have to work as a team, have to subscribe an oath of secrecy and as is provided under this Section. If this scheme is kept in mind then it would be seen that the Empowered Standing Committee of the Corporation is the team of the Mayor nominated by the Mayor within seven days of his assuming office from amongst the members of the Corporation. If that be so then when - 6 - a new Mayor is elected, he will automatically have a right to nominate his team and work with his team, as contemplated under the Act. We may look at it from a different angle. When a Mayor is elected and he nominates seven members to the Empowered Standing Committee, which has to work as a team, and subsequently he loses the confidence of the house and is ousted now. If the members of the Empowered Standing Committee continue as before, and a new Mayor comes, then he will have to work with nominated members by a Mayor, who had no confidence of the house. He would have to work with a team whose leader lost the confidence of the house, that would give rise only to conflict with the rights. In my view, that is not to be. It is then urged on behalf of intervenors with reference to Section 27 of the Act that the term of the office of Chief Councillor/Mayor in this case and the members of the Empowered Standing Committee shall be co-terminus with duration of members of municipality. What is suggested by the learned counsels for the intervenors is that once a member becomes a member of the Empowered Standing Committee then for the duration on his membership of the council he cannot be removed. On the face of it, the argument is only noted to be rejected. For the example, reading that provision itself refers to Chief Councillor and the members of the Empowered Standing Committee. If the Chief Councillor is voted and his term be cut short as a Chief - 7 - Councillor/Mayor then why will not the life of the members of the Empowered Standing Committee be cut short. The whole concept is that the life of the Empowered Standing Committee members is co-terminus with the life of the Chief Councillor/Mayor, who nominated them. It is one team. Thus seen, the directives of the State Government, as contained in Anneuxre-5, are clearly contrary to the statutory provisions and the statutory scheme. Once a new Mayor has been elected, he will have a right to nominate his new team of Empowered Standing Committee members from amongst the members itself. That being so, Annexure-5 to the writ petition cannot be sustained and is quashed accordingly. The writ petition is allowed and the necessary consequences will accordingly follow. Trivedi (Navaniti Prasad Singh, J.)