IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 18323 of 2009 1. DHANANJAY KUMAR S/O RAMDEO PRASAD R/O MOHALLA- MATHURIA, P.S. BIHARSHARIF, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY URBAN DEVELOPMENT AND HOUSING DEPARTMENT GOVT. OF BIHAR, PATNA 2. THE DISTRICT MAGISTRATE, NALANDA 3. THE TOWN COMMISSIONER BIHARSHARIF MUNICIPAL CORPORATION, NALANDA 4. THE MAYER, BIHARSHARIF MUNICIPAL CORPORATION, NALANDA 5. THE SECRETARY BIHAR STATE ELECTION COMMISSIONER GOVT. OF BIHAR 6. NADEEM ZAFFAR S/O LATE QAMRUL HASAN R/O MOHALLA- CHHAJJU MOHALLA, P.S. BIHARSHARIF, DISTT.- NALANDA, EX-DEPUTY MAYOR BIHARSHARIF MUNICIPAL CORPORATION, NALANDA *** For the petitioner : M/s Md Khurshid Alam, Arun Kumar Bhagat & Samir Kumar Singh, Advocates For the S t a t e : Mr Md Anis Akhtar, AC to AAG X For the Corporation : Mr Gyan Prakash Ojha, Advocate For the Commission : Mr Sanjeev Nikesh, Advocate *** 2 16.02.2010 By this writ application, petitioner has challenged the order of the State Election Commission, Bihar as contained in Memo No 3859 dated the 27th November, 2009 and consequential order passed by the Collector, Nalanda dated 02.12.2009 as contained in Annexure-6/a. By the aforesaid orders, first the State Election Commission has arrogated to itself the authority to decide upon the validity of a no confidence motion passed in the Biharsharif Municipal Corporation against the Deputy Mayor. Having arrogated to itself the said power to adjudicate upon such a matter, it directs the District Magistrate to declare the removal of 2 Deputy Mayor as wrong, illegal and contrary to statute which the District Magistrate –cum- Collector, Nalanda obliges without even caring whether they have such an authority in law or not. Learned counsel for the State Election Commission and State have been heard. Biharsharif Municipal Corporation is also represented and has been heard. The challenge of the petitioner is short and simple. He submits that upon a special resolution being brought for consideration of no confidence motion as against the Deputy Mayor of Biharsharif Municipal Corporation, a special meeting was duly convened. In the special meeting, all the 46 members were present including the Mayor who presided over the meeting. The motion having been put to vote, 23 votes were polled in favour of the no confidence motion. There were 21 votes opposing the motion. Two votes were declared invalid. Thus, 50% of the people who constituted the House voted in favour of the no confidence motion. The Deputy Mayor, thus, lost the confidence of the House. The Town Commissioner, Biharsharif Municipal Corporation then sent a report of these proceedings to the State Election Commission. The State Election Commission then assumed jurisdiction suo motu and arrogated powers to itself to adjudicate and decided the same ex parte holding that in fact the votes are not 50% majority as required by Section 25 (4) of the Bihar Municipal Act. Having thus declared the removal of Deputy Mayor illegal, he directed the District Magistrate –cum- Collector 3 to allow the Deputy Mayor to continue. The Collector has, thus, passed a consequential order holding that the removal of the Deputy Mayor is illegal and the Deputy Mayor would be deemed to be continuing in office. The short issue raised is under what authority did the Town Commissioner communicate to the State Election Commission the results and more importantly where is the authority in the State Election Commission to intervene in the affairs of the House which have been decided democratically and further where is the authority of the Collector to make such a declaration. On behalf of the State Election Commission, reference has been made to Article 243ZA of the Constitution which reads as follows : “243ZA. Elections to the Municipalities.- (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K. (2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities.” I am afraid, a bare reading of the said provision does not authorise the State Election Commission to sit in appeal over no confidence motion as passed by the House. It has to conduct election to the House and becomes functus officio thereafter. It is not a forum for decision of any such dispute. 4 Learned counsel for the State, when asked the authority of Collector, fairly conceded that he was obliged to do so because of the directions of the State Election Commission otherwise he also did not know of any statutory provision under which he had such an authority. The learned counsel for the Corporation similarly was unable to point to any statutory provision which obliges him to send information to the State Election Commission in this regard. I may notice Section 25, sub sections (5) and (6) in this regard as well. Section 25 (4) of the Bihar Municipal Act provides for a democratic way of removing a Mayor or Deputy Mayor from the elected post by the electorate themselves but sub- section (5) confers power on the Executive to remove the Chief Councillor or the Deputy Chief Councillor on certain specific grounds mentioned therein and sub-section (6) thereof provides that if they are so removed that is under sub-section (5), they shall not be eligible for reelection. In sub-section (6), it is further provided that an appeal shall lie to the State Government against the order of the Divisional Commissioner which necessarily means against an order passed under sub-section (5) of Section 25. Thus seen, I find and I hold that the State Election Commission has absolutely no authority even to entertain such a complaint if they were to be made much less to decide it. Arrogating the power to itself was wholly illegal and impermissible in law. Similarly, the action of the District Magistrate –cum- Collector was wholly without jurisdiction. He 5 had no authority to interfere in the matter. Here, while holding so, my decision is based on two well established principles of law. The first that wherever a procedure is prescribed for a thing to be done in a particular manner then that thing can only be done in that particular manner and all other modes are prohibited by implication. In the present, as seen, no authority is conferred on the State Election Commission to interfere in these matters which take place within the House. If there is any dispute inter se then the ordinary civil law would apply but certainly the State Election Commission cannot arrogate to power itself. This aspect of the matter has earlier been noticed by this Court and actions of the State Election Commission deprecated in the case of Orsil Paswan –Versus- The State of Bihar & Others, 2009 (2) PLJR 557 but apparently has gone in vain. The next principle is that even assuming the decision of the Election Commission to be right, it is well settled principle of law that a right decision by a wrong forum is no decision in the eye of law. No one had made any complaint to the State Election Commission. No one has challenged the validity of the proceedings of the House before this Court yet the State Election Commission has arrogated to itself the power to adjudicate suo motu. Such an adjudication is unknown to law and cannot be sustained. So far as the role of the Town Commissioner of the 6 Biharsharif Municipal Corporation is concerned in regard to its communication to the State Election Commission, the same is understandable and explainable. The vote of no confidence having been passed, by operation of law, the post of Deputy Mayor falls vacant. Once the post falls vacant, it then becomes the duty of the State Election Commission to draw programme to fill up the vacancy which it can do only upon information being received. The said information is, thus, only for the said purpose and not seeking the views of the State Election Commission in the matter. The writ application, thus, is allowed. The impugned orders of the State Election Commission and District Magistrate – cum- Collector, Nalanda at Biharsharif are set aside. M.E.H./ (Navaniti Prasad Singh)