IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9346 of 2010 OM PRAKASH GUPTA S/O LATE SITA RAM SAH R/O MOHALLA- CHAWAL BAZAR, WARD NO.21, RAXAUL, P.O. + P.S.- RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI ……PETITIONER. VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE EAST CHAMPARAN, MOTIHARI 4. THE EXECUTIVE OFFICER, NAGAR PARISHAD RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 5. SRI GUNJAN ANIL S/O NOT KNOWN WARD COUNCILLOR OF WARD NO. 16 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 6. SRI NATHU PRASAD S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.12 OF NAGAR PARISHAD RAXAUL, DISTT.- EAST CHAMPARAN, MOTIHARI 7. SRI KASHI NATH PRASAD S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.13, OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 8. SRI ASHOK AGRAWAL S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.11, OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 9. SRI MANOJ PASWAN S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.14, OF NAGAR PARISHAD RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 10. SMT. SABNAM ARA W/O NOT KNOWN WARD COUNCILLOR OF WARD NO.9, OF NAGAR PARISHAD RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 11. SRI AJAY SAH S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.20 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 12. SMT. SUBHADRA DEVI W/O NOT KNOWN WARD COUNCILLOR OF WARD NO.23 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 13. SRI VIJAY SAH S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.22 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 2 14. SMT. SAKUNTALA DEVI W/O NOT KNOWN WARD COUNCILLOR OF WARD NO.23 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 15. SMT. AMUL NISHA W/O NOT KNOWN WARD COUNCILLOR OF WARD NO.17 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 16. SMT. SALMA KHATOON W/O NOT KNOWN WARD COUNCILLOR OF WARD NO.7 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 17. SMT. ANITA SINGH W/O NOT KNOWN WARD COUNCILLOR OF WARD NO.2 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 18. SRI SURESH CHANDRAVANSI S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.18 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN 19. SRI VISHWANATH SAH S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.1 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 20. SRI SHAKIL AHMAD S/O NOT KNOWN WARD COUNCILLOR OF WARD NO.8 OF NAGAR PARISHAD, RAXAUL, DISTT.- EAST CHAMPARAN AT MOTIHARI 21. THE STATE ELECTION COMMISSION, BIHAR THROUGH THE SECRETARY, STATE ELECTION COMMISSION, BIHAR………….RESPONDENTS. For the petitioner : M/s Y.V. Giri, Sr. Advocate with Indu Bhushan, Advocate. For the State : Mr. Anil Kumar, G.P.11 For respondent nos. 5 to 20 : M/s S.A. Narayan, Sr. Advocate with Prakash Srivastava, Advocate. For respondent nos.22, 23 & 26 to 29 : Mr. Raju Giri, Advocate. For respondent nos.24 & 25 : Md. Md. Sahnawaz, Advocate. For the Election Commission : Mr. Sanjeev Nikesh, Advocate. ----------- 07/ 17.08.2010 I.A. No.5276 of 2010 has been filed on 14.06.2010 on behalf of the petitioner for adding the names of eight Councillors of Raxaul Nagar Parishad detailed in paragraph-1 of the interlocutory application as respondents to the writ petition in addition to the Councillors already impleaded therein. Considering the facts and circumstances of the case as well as the claim of the parties, the said interlocutory 3 application is allowed. Let the aforesaid eight persons be impleaded as party respondents to the instant writ case. The said respondents have already appeared and have filed their respective affidavits and have also taken part in the arguments, along with other respondents, through their respective learned counsel. 2. This writ petition has been filed by the petitioner challenging the entire proceeding of the special meeting of the Raxaul Nagar Parishad (hereinafter referred to as „the Nagar Parishad‟ for the sake of brevity) held on 18.05.2010 including the resolution of No Confidence Motion there in against the petitioner for removing him from the post of Chief Councillor of the Nagar Parishad. 3. It is not in dispute that election for Ward Councillors of the Nagar Parishad was held in the year 2007 in which 25 Ward Councillors were elected out of whom petitioner was elected from Ward No.21. It is not in dispute that the said Ward Councillors elected the petitioner for the post of Chief Councillor of Nagar Parishad on 09.06.2007 and since then he had been performing his duties on the said post. 4. The contesting respondents have claimed that a requisition dated 25.03.2010 (Annexure R/6 to counter affidavit of respondent no.5, 6,7 and 9 to 20) was sent by 18 out of 25 Councillors for holding a meeting with respect to No Confidence Motion against the petitioner. However, the petitioner denies receipt of any such requisition as the said requisition was not even addressed to the petitioner as Chief Councillor, rather it was addressed to the Executive Officer of the Parishad. 4 5. It further transpires that letter dated 01.04.2010 (Annexure-B to counter affidavit of respondent no.8) was sent by Executive Officer of the Nagar Parishad (respondent no.4) to the District Magistrate, East Champaran (respondent no.3) stating that requisition was received by the Executive Officer who sent it to the petitioner but petitioner returned the same. It is also claimed by the respondents that due to return of the requisition by the petitioner, some members of the Nagar Parishad held a meeting and passed resolution dated 08.05.2010 (Annexure-R/2 to counter affidavit filed by respondent nos.5, 6, 7 and 9 to 20) fixing 18.05.2010 as the date of special meeting for considering No Confidence Motion against the petitioner and on the same date i.e. 08.05.2010 the said decision of the members was conveyed to the Executive Officer (respondent no.4) which was received in his office. 6. Learned counsel for the petitioner on the other hand submits that the Executive Officer sent a notice to the petitioner dated 14.05.2010 (Annexure-5 to I.A. No.5266 of 2010) informing him with regard to the date fixed by the members i.e. 18.05.2010 for holding special meeting of No Confidence Motion against the petitioner. Learned counsel for the petitioner also stated that the term of the said Executive Officer had ended on 31.03.2010 and the new Executive Officer had taken charge on 03.04.2010 and he had no jurisdiction at all to send the aforesaid notice dated 14.05.2010 to the petitioner. Hence, the petitioner sent a letter dated 15.05.2010 (Anneure-2) to the new Executive Officer stating the matter in detail and claiming that the entire procedure adopted was against the specific provisions of law 5 and was clearly a mischief without giving any prior information or requisition to the petitioner. Thereafter, the new Executive Officer of Nagar Parishad replied vide letter dated 17.05.2010 (Annexure-7 to the petitioner‟s reply to counter affidavit of respondent no.8) stating that the requisition of the members dated 25.03.2010 was sent to the petitioner through one Md. Subhan-Tax Daroga of Nagar Parishad, who had reported that the petitioner after receiving the notice did not sign the receipt, nor fixed any date of such meeting and after getting the requisition photocopied returned the same. 7. On the other hand, learned counsel for the contesting respondents submit that a copy of their requisition was sent to the petitioner also on 25.03.2010 (Annexure-A to the counter affidavit of respondent no.8) which was received in his office on the same day, hence the petitioner had notice of the said requisition which included the specific charges and when even thereafter he did not fix the date for the special meeting of No Confidence Motion, as per the requisition of members (Councillors), they were quite justified in holding a meeting and asking the Executive Officer to hold a meeting of No Confidence Motion for which 18.05.2010 was fixed. In addition to that they claimed that service of notice dated 14.05.2010 sent by the Executive Officer to the petitioner and others is fully proved by Annexure-R/3 to the counter affidavit filed by respondent nos.5, 6, 7 and 9 to 20 and news with regard to the said requisition was also published in several newspapers dated 27.03.2010, 01.04.2010, 08.04.2010, 15.05.2010 and 18.05.2010 (Annexure-4 series to the counter affidavit filed by respondent nos.5, 6, 7 and 9 to 20). In the 6 said circumstances learned counsel for the respondents submits that the procedures of sections 48, 49 and 51 of the Bihar Municipal Act, 2007 (hereinafter referred to as „the Act‟ for the sake of brevity) were fully followed. 8. Learned counsel for the respondents further submit that the erstwhile Executive Officer was relieved from the office on 03.04.2010 and was in office on 01.04.2010 on which date he sent a letter to the District Magistrate (Ext.C to I.A. No.5822 of 2010) informing him about the situation when the communication was sent by him which was clearly valid. They also relied upon Ext.A to I.A. No.5822 of 2010 which showed that the requisition was sent to the Executive Officer with a copy to the Chief Councillor (petitioner) and a separate requisition was also sent to the petitioner which is proved by the report of the Tax Daroga (Ext.B to I.A. No.5822 of 2010). They also relied upon a letter dated 08.05.2010 (Annexure-D to I.A. No.5822 of 2010 ) sent by majority of the Councillors to the Executive Officer for holding a meeting of No Confidence Motion on 18.05.2010, thereafter notice was sent by the Executive Officer on 14.05.2010 (Annexure–E to I.A. No.5822 of 2010) to all the Councillors including the petitioner specifying the allegation against him which was received by the petitioner as is proved from the receipt (Annexure-F to I.A. No.5822 of 2010). Hence, learned counsel for the respondents submits that the requisition and notice were duly sent to the petitioner and all concerned legally and properly and there was no violation of the provision of sections 48, 49 and 51 of the Act, and as per the said requisition and notice meeting was held on 18.05.2010 and 7 No Confidence Motion against the Chief Councillor (petitioner) was passed by a huge margin of 17-0 votes. 9. After passing of the aforesaid resolution of No Confidence Motion in meeting dated 18.05.2010, the date of election of a new Chief Councillor was fixed by the authorities on 11.06.2010. However, in the meantime the instant writ petition was filed on 24.05.2010 and when this matter was heard by a Bench of this court on 09.06.2010, notices were directed to be issued to the non-appearing respondents and ad interim order was passed that in consequence of No Confidence Motion passed against the petitioner, no further step will be taken and the election which is fixed on 11.06.2010 shall remain stayed till 25.06.2010. It transpires from the affidavits and applications filed by the parties that after the said date no election as mentioned above has taken place. 10. Thereafter respondents appeared and the claim of petitioner was supported by learned counsel appearing for respondent nos.21, 22, 26, 27, 28 and 29 who adopted the arguments raised by learned counsel for the petitioner. However, on the other hand the arguments raised by learned counsel for respondent nos.5 to 20 against the petitioner‟s claim were supported by learned counsel for respondent nos.1 to 4 (State of Bihar and its authorities) as well as learned counsel for respondent nos.24 and 25. 11. After hearing learned counsel for the parties and after perusing the materials on record it is quite apparent that the petitioner had not raised any objection regarding service of notice sent by the Executive Officer dated 14.05.2010 (Annexure-5), rather the petitioner 8 had raised only one question regarding non-service of requisition said to have been sent by 18 out of 25 Councillors of the Nagar Parishad on 25.03.2010 (Annexure-R/6 to the counter affidavit of respondent nos.5, 6, 7 and 9 to 20). In the said circumstances, the arguments raised by learned counsel for contesting respondents regarding validity of service of notice dated 14.05.2010 (Annexure-5) by the Executive Officer to the petitioner is clearly an exercise in futility, as the only question which has to be considered in this case is with respect to the legality and validity of the service of requisition dated 25.03.2010 on the petitioner (Chief Councillor). 12. Section 25(4) of the Act specifically provides that 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 total number of Councillors and the procedure for the conduct of business in the special meeting shall be such as may be prescribed. Hence, the requisition has to be made in the manner prescribed whereas the said word “Prescribed” is defined in section 2(76) of the Act, as meaning prescribed by rules made under this Act. 13. It is quite strange that although three years have lapsed but still no Rules have been framed by the State Government for the provisions of section 25(4) of the Act, whereas with respect to some other provisions of the Act, Rules have been framed much earlier. Hence for the purposes of said provision of section 25(4), the other 9 provision of the Act specially sections 48, 49 and 51 thereof will have to be looked into along with the case laws in that regard. Section 48(2) and (3) of the Act provides that the Chief Councillor may whenever he thinks fit, and shall, upon a requisition in writing by not less than one- fifth of the Councillors convene a meeting of the municipality and if the Chief Councillor fails to call the said requisitioned meeting, it may be called by the persons who had signed the requisition. Section 49 of the Act provides the manner in which notice of the meeting has to be sent by the Executive Officer to all the Councillors of the municipality including the Chief Councillor. Section 51 of the Act provides that the Chief Councillor shall preside over meeting of the municipality and in his absence the Deputy Chief Councillor shall preside the meeting; Provided that when a meeting is held to consider a motion for the removal of the Chief Councillor, the Chief Councillor shall not preside at such meeting, but any person who is presiding over the meeting of the municipality, shall also have, and may exercise, a casting vote in all cases of equality of votes. 14. From the aforesaid provisions of law it is quite apparent that the requisition for meeting has to be sent to the Chief Councillor by the Councillors upon which the Chief Councillor shall call the meeting by asking the Executive Officer to issue notices to all the Councillors. In the said scheme provided under the law, the Councillors must send their requisition for such a meeting to the Chief Councillor and if the requisition is not sent to the Chief Councillor, the said requisition cannot be held to be legal and valid. The law is well settled in this regard that if a statute provides for a thing to be done in 10 a particular manner, then it has to be done in that manner and in no other manner. Reference in this regard may be made to a decision of the Apex Court in case of Chandra Kishore Jha vs. Mahavir Prasad and others, reported in (1999) 8 Supreme Court Cases 276. 15. In a similar case under the Bihar Panchayat Raj, it has been held by another Bench of this court in case of Nirmala Singh & Anr. vs. The State of Bihar & Ors., reported in 2006(1) P.L.J.R. 129 that the Act obliges the requisitionist to make the requisition a valid requisition by submitting the same to Pramukh and unless the requisition is submitted to the Pramukh, it itself is invalid as the requisitionist cannot legally ask the Executive Officer to convene a meeting. 16. So far the reliance of the contesting respondents upon a decision of Single Bench of this court in case of Pawan Kumar Purvey & Anr. vs. The State of Bihar & Ors., reported in 2010(1) P.L.J.R. 272 is concerned, the said decision does not support their claim with regard to the legality of the requisition, rather it has been specifically held therein that the Rules should have been framed by the State Government as per the requirement of the provisions of the Act, as such Rules are subordinate legislations which cannot be substituted by executive instructions. It has also been held in that that Rules have a force of law prepared in the manner prescribed under the Bihar and Orissa General Clauses Act and hence such powers cannot legally be usurped by the executive replacing Rule of law by the Rule of executive fiat. Hence, it was held that the State Government was duty bound to frame Rules under the provisions of the Act and until that is 11 done, the procedures as described under sections 48, 49 and 51 of the Act have to be followed. Hence, the aforesaid decision in substance also supports the claim of the petitioner. 17. The reliance of the contesting respondents on the Bihar Municipal No Confidence Motion process Rule 2010 also does not cut much ice as it has been published in the Bihar Gazette dated 10.06.2010 and hence the said rule was not in force when the requisition was made, notice was issued and the meeting of No Confidence Motion was held and as such the provisions of the said Rule cannot be made applicable to the facts and circumstances of this case. 18. In view of the aforesaid settled principles of law, if requisition dated 25.03.2010 has been legally made by the members, then the entire procedure, following the said requisition, adopted by the respondents in this case can be held to be legal and proper, but if any illegality is found in the said requisition, the very basis of the entire procedure falls and the said requisition along with all the subsequent action has to be set aside. 19. It has already been found that the law requires service of requisition for a meeting of No Confidence Motion upon the Chief Councillor and only thereafter further procedures are to be followed and the Chief Councillor may call a meeting and direct the Executive Officer to send notices to the Councillors as per the requisition and if he fails to do so, then the requisitionists may themselves call such meeting fixing a date and ask the Executive Officer to send notices thereof to all the Councillors. In the said circumstances, the main issue 12 is the service of notice upon the Chief Councillor (petitioner) in accordance with law. 20. On the above matter much importance has been placed on the copy of requisition dated 25.03.2010 which are annexed as Annexure-R/6 to the counter affidavit of respondent nos.5, 6, 7 and 9 to 20 as well as the other copy annexed as Annexure-A to I.A. 5822 of 2010 filed by respondent nos.24 and 25, but both the aforesaid Annexures show that the requisition was addressed to the Executive Officer and only copies thereof were to be sent to five persons including the Chief Councillor, but no receipt has been produced by the contesting respondents to substantiate their said claim regarding requisition. 21. Contesting respondents also emphasised Annexure-F to I.A. No.5822 of 2010 filed by respondent nos.24 and 25 showing receipts by all the Councillors including the petitioner, but a bare perusal of the said receipts clarified that it was dated 14.05.2001 and thus was not with respect to requisition dated 25.03.2010 rather it was with respect to notice dated 14.05.2010 sent by the Executive Officer to the petitioner. Hence the said document has got absolutely no relevance at all to the point involved in this case. 22. So far the report of Tax Daroga dated 27.03.2010 (Annexure-B to I.A. No.5822 of 2010) is concerned, it is mentioned therein that he had taken requisition to the Chief Councillor who read it and got it photocopied and returned it to the Tax Daroga saying that he will fix the date after coming into his office. According to the said report, it was filed before the Executive Officer on 27.03.2010, but in 13 the proceeding book (Annexure-8) of the Executive Officer it is nowhere shown that the said report of the Tax Daroga was received in the office. Furthermore, no mention of the said report of Tax Daroga or service of requisition upon the petitioner has been made in any letter, notice or document of the Executive Officer or in any document of the respondents up till 17.05.2010 when the Executive Officer mentioned about the same in his letter dated 17.05.2010 (Annexure-7) sent to the petitioner. 23. The facts and materials produced show that after receiving notice dated 14.05.2010 from the Executive Officer with respect to a meeting of No Confidence Motion, the petitioner had sent a letter to the Executive Officer dated 15.05.2010 (Annexure-2) mentioning specific illegalities in the matter and challenging the validity of the said notice in view of the clear violation of specific provisions of law. Thereafter the report of Tax Daroga dated 27.03.2010 (Annexure-B to I.A. No.5822 of 2010 of respondent nos.24 and 25) as well as a note of the Executive Officer dated 12.05.2010 saw the light of the day relying upon which the aforesaid reply dated 17.05.2010 (Annexure-7) was sent by the Executive Officer to the petitioner. Even in letter sent by the contesting respondents to the Executive Officer on 08.05.2010 no mention of the said report of Tax Daroga had been made, regarding service of requisition on the petitioner. 24. It is interesting to note that the petitioner as Chief Councillor of the Municipality had sent letter dated 24.02.2010 (Annexure-9) to the Deputy Chief Minister-cum-Minister of Urban 14 Development and Housing Department, Government of Bihar for removing the erstwhile Executive Officer due to his various omissions and commissions fully enumerated in the said letter and subsequently the said Executive Officer was removed by the higher authorities in April, 2010. In the said circumstances, the alleged report of Tax Daroga dated 27.03.2010 as well as much subsequent noting dated 12.05.2010 with respect thereto cannot be legally relied upon. It was also falsified by the admitted documents produced by both the sides showing that the requisition was not even addressed to the Chief Councillor and there was no mention of the alleged report of Tax Daroga prior to 12.05.2010 in the register or in any of the various communications or any where else. 25. Considering the entire matter in detail, it is fully proved that the alleged requisition was neither addressed to the Chief Councillor (petitioner) nor it was ever served upon him and hence the said requisition for the meeting of No Confidence Motion dated 25.03.2010 (Annexure-R/6 to counter affidavit of respondent nos.5, 6, 7 and 9 to 20) was absolutely against the specific provisions of law. Furthermore the resolution dated 08.05.2010 (Annexure-R/2 to the counter affidavit of the said respondents) of the requisitionists to direct the Executive Officer to hold a meeting of No Confidence Motion and notice dated 14.05.2010 (Anneuxre-5) issued by the Executive Officer for holding a meeting of No Confidence Motion as well as the No Confidence Motion dated 18.05.2010 itself were all consequent to the requisition which was the basis of the entire procedure and hence all of them were also not valid, legal and proper being violative of the 15 settled principles of law. 26. Accordingly, this writ petition is allowed, resolution of No Confidence Motion passed by the Councillors in the special meeting on 18.05.2010 ( Annexure-1) is hereby quashed along with the above mentioned requisition and resolution of