IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.6094 of 2011 ======================================================== S.M.Zafar Imam, S/o Late S.M.Zareef, R/o At and P.O. and P.S.-Bahera, District-Darbhanga. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Chief Secretary, Government of Bihar, Old Secretariat, Patna. 3. The Principal Secretary, Government of Bihar, Ministry of Urban Development Department, New Secretariat, Patna. .... .... Respondent/s ======================================================== Appearance : For the Petitioner/s : Mr. Sarva Deo Singh, Advocate. For the Respondent/s : Mr. Vikash Kumar, AC to AAG-1. ======================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5. 29-06-2011 This petition under Article 226 of the Constitution is filed by one S.M.Zafar Imam to challenge the constitutional validity of first proviso to Sub section (4) of Section 25 of the Bihar Municipal Act, 2007 (hereinafter referred to as ‘the Act’). Section 25 of the Act provides for removal of the Chief Councillor/Deputy Chief Councillor. Sub section (4) thereof reads as under: “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 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: Patna High Court CWJC No.6094 of 2011 (5) dt.29-06-2011 2 Provided 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.” It is the above referred first proviso which is under challenge before us in so far as it imposes bar against no confidence motion for two years from the date the Chief Councillor or Deputy Chief Councillor takes over the charge. Learned counsel Mr. S.D. Singh has appeared for the petitioner. He has submitted that the power conferred upon the Councillors to seek removal of a Chief Councillor or a Deputy Chief Councillor by no confidence motion is a holistic provision upheld by the Hon’ble Supreme Court as conferred in consonance with the constitutional set up. Such provision is upheld by the Hon’ble Supreme Court in the matter of “Bhanumati and Others Vs. State of Uttar Pradesh and Others [(2010) 12 SCC 1]”. He has particularly relied upon the observation made in paragraph 58 of the judgment. Mr. S.D. Singh has submitted that once the power to remove through no confidence motion is conferred upon the Councillors, such power could not have been curtailed by the impugned proviso. It is the Councillors who elect the Chief Councillor and the Deputy Chief Councillor. The persons who elect the officers should have power to remove them from office. Such power cannot be curtailed in the manner it is done under the Patna High Court CWJC No.6094 of 2011 (5) dt.29-06-2011 3 impugned proviso. The petition is contested by the State Government. Learned Advocate Mr. Vikash Kumar has appeared for the State. He has submitted that the impugned proviso was specifically enacted with a view to grant stability to the Municipality. In the event any Chief Councillor or Deputy Chief Councillor is found to be failing in performing his duty or committing acts of commission and omission amounting to misconduct etc. adequate power is conferred upon the State Government to take action for removal of such Chief Councillor or Deputy Chief Councillor under Sub section (5) of Section 25 of the Act. He has submitted that the impugned proviso does not violate the constitutional provisions or infringes the basic structure of the Constitution. We see no substance in the challenge to the impugned proviso. Nothing in the Constitution confers power upon the elected members of the Municipality to remove the Chief Councillor or the Deputy Chief Councillor elected by them. The power to move no confidence motion is statutory right conferred under the Act. If the State Legislature has considered it expedient not to allow the Councillors to unsettle an elected body by moving no confidence motion without giving opportunity to such Chief Councillors or Deputy Chief Councillors to establish themselves the same does not warrant interference. Mr. Singh has also relied upon Section 48 of the Act. He has submitted that the said Section 48 mandates that Municipality must meet at least once in every month. However, in fact, meetings of the Municipality are not convened for six months at a time. We are unable to see how the impugned proviso can Patna High Court CWJC No.6094 of 2011 (5) dt.29-06-2011 4 be held to be ultra vires Section 48 of the Act. In the event, the Chief Councillor or the Deputy Chief Councillor fails to perform his duty including the duty of calling the meeting of the Municipality, adequate provision is made under Section 25(5) of the Act to take punitive action against such Chief Councillor or Deputy Chief Councillor. For the aforesaid reasons, we reject the challenge to the constitutional validity of the first proviso to Sub section (4) of Section 25 of the Bihar Municipal Act, 2007. The petition is dismissed in limine. Sujit/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)