IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10291 of 2011 Sanjay Kumar, Son of Late Bulkan Prasad, Resident of Maa Dulari Kunj, Bhanwar Pokhar behind the Pakka Kuan, PS Pirbahore, P.O. Bankipore, District Patna, Bihar. ----- Petitioner. Versus 1. The State of Bihar through the Secretary, Town Planning and Housing Department, Government of Bihar, Patna. 2. The Patna Municipal Corporation through the Municipal Commissioner, Mauryalok Patna. 3. The Municipal Commissioner, Patna Municipal Corporation, Patna. 4. The Deputy Secretary-cum-Director, Town Planning and Housing Department, Government of Bihar. 5. The Chief Councilor, Patna Municipal Corporation, Patna. For the petitioner : Mr. Gajendra Pratap Singh, Advocate. For the State : Mr. Gyan Prakash Ojha, A.C. to G.A. 5. For the P.M.C. : Nikesh Kumar, Advocate. ----------- 5 23.9.2011 Heard the parties. The petitioner is aggrieved by the order as contained in letter no. 7118, dated 28.12.2010, passed by the Chief Executive Officer i.e. the Municipal Commissioner. By the said order, the Municipal Commissioner has refused to issue notice to call special meeting for holding a no confidence motion. This case relates to interpretation of Section 25(4) of the Bihar Municipal Act, 2007. Before considering the application of the petitioner under Section 25(4) of the Bihar Municipal Act, 2007, the facts of this case would be relevant. The petitioner was elected as a Councillor and subsequently as a Chief Councilor of the Patna Municipality in the year 2007. On 13.6.2009, a no confidence motion was tabled 2 against the petitioner and he was subsequently removed on 14.6.2009. The new Chief Councillor (respondent no. 5) was subsequently elected in May, 2010. The petitioner on 11.5.2011 tabled a second no confidence motion against the sitting Chief Councilor so that a special meeting could be convened for the purposes of testing the no confidence motion. The Chief Councilor rejected the application for No Confidence Motion and accordingly the petitioner under Section 25(4) of the Bihar Municipal Act, 2007 filed an application before the Municipal Commissioner. The Municipal Commissioner by the impugned order rejected the application of the petitioner. Section 25(4) of the Bihar Municipal Act, 2007 reads as follows: 1)………………………. 2)………………………. 3)………………………. 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 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. “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 3 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. On perusal of the Section it is quite clear that the Chief Councilor/Deputy Chief Councilor can be removed from office by a resolution carried by a majority of the whole number of Councilors holding office for the time being at a special meeting to be called for this purpose upon a requisition made by at least one- third of the total number of councilors. The petitioner relies on the second proviso of the said Section which provides that a no confidence motion shall not be brought again within one year of the first no confidence motion. The second proviso has to be read in the context of the entire section as well as the first proviso to Section 25 of the Act. The first proviso clearly states 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. It is obvious from the facts as stated above that a new incumbent i.e. the respondent no. 5 took charge of the post in May, 2010. Accordingly, a no confidence motion could 4 not have been brought against him before a period of two years. Learned counsel for the petitioner submits that this Court should interpret the period provided in the second proviso which would govern the facts of this case to mean that the period ought to be counted from the day the first no confidence motion was trebled i.e. 13.6.2009. This Court does not agree with the submissions made aforesaid on the ground that it is quite clear that while speaking of a second no confidence motion it necessarily means that the first no confidence motion should have been brought against the incumbent who is sought to be removed. Under those circumstances, the second no confidence motion cannot and could not be brought against the incumbent within a period of one year thereafter. In the case of this petitioner no confidence motion was brought after the new incumbent had not completed two years, and as such, the Chief Councillor had rightly rejected the motion for ‘no confidence’. I must observe that the reasons given by the Municipal Commissioner for rejecting the application of the petitioner are not in accordance with law as no executive order can 5 replace the provisions of the Act. Learned counsel for the petitioner has also submitted that the said order rejecting his motion for no confidence is not in accordance with the Rules as it is incumbent that the Chief Councillor should convene a special meeting of the local body within seven days from the receipt of the requisition and the meeting should be convened within 15 days of issuance of such notice. This Court finds that infact there was no question of issuing a notice as the provisions of the proviso to Section 25(4) of the Bihar Municipal Act, 2007 is not applicable as the requisition was not in accordance with the proviso to Section 25(4) of the Bihar Municipal Act. In order to support his submissions, counsel for the petitioner relies on a case decided by the Apex Court in the case of Afjal Imam Vs. State of Bihar & Ors. [(2011) 5 SCC 729]. The question that was decided by the Supreme Court was that whether the members of the Empowered Standing Committee nominated by a Mayor or/Chief Councillor, Office of Members stands automatically vacated when a vacancy arises of a post of a Mayor or/Chief Councillor either on account of death, resignation, removal 6 or otherwise and newly elected Mayor or/Chief Councillor gets authority to nominate fresh Members of his choice. The appeal actually arises out of the consequential question whether Section 27 of the Act should be read as it is and without reference to other connected sections, meaning thereby whether the members of the Empowered Standing Committee will continue to hold office (for the entire term of the municipal body) even if the nominator Mayor/Chief Councillor is no longer in the office? This question has been answered by the Supreme Court in this case. The interpretation of Section 25(4) of the Bihar Municipal Act, 2007 in the terms as has been raised by the petitioner in this writ was not is an issue in the aforesaid case as such, the facts are not applicable in the present case. In view of the discussions above, this Court dismisses the writ application of the petitioner. Sanjay (Sheema Ali Khan, J.)