IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.840 of 2010 SANJAY KUMAR, S/O LATE NAND LAL SAH, R/O GANDHI CHOWK, WARD NO.17, P.O. & P.S. SITAMARHI TOWN, DISTT.- SITAMARHI ……………………………… Respondent no.20-Appellant Versus 1. ASHA DEVI, W/O SRI NAGESHWAR PRASAD, R/O VILL.- COURT BAZAR, SITAMARHI, P.O. & P.S. SITAMARHI. DISTT.- SITAMARHI ………………………………… Writ petitioner-respondent 1st set, 2. THE STATE OF BIHAR, 3. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, SITAMARHI, DISTT.- SITAMARHI 5. THE EXECUTIVE OFFICER, NAGAR PARISHAD, SITAMARHI, DISTT.- SITAMARHI 6. SMT. JAI MUNI DEVI, W/O SRI SHANKAR PRASAD, R/O KAPRAUL ROAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 7. SRI SUBHASH RAI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 8. SRI ABHISHEK MISHRA, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 9. SMT. SAKINA KHATOON, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 10. SRI YUGESHWAR PASWAN, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 11. SMT. SUNITA CHOUDHARY, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI - 2 - 12. SRI JAI KISHORE SAH, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 13. SMT. INDRA GUPTA, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 14. SMT. MANJU DEVI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 15. SUSHRI PRAMILA KUMARI LOHIA, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 16. SRI DHANANJAY KUMAR, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 17. SRI SANJAY KUMAR, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 18. SRI SHATRUGHAN GUPTA, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 19. SRI AMAR NATH PRASAD, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI 20. SMT. LALITA DEVI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI 21. SMT SARSWATI DEVI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI 22. SRI PRAMOD KUMAR SINGH, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI - 3 - 23. SMT. RAM DULARI DEVI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI 24. SRI VIJAY KUMAR MISHRA, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI 25. SRI MANOJ KUMAR, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S.- SITAMARHI, DISTT.- SITAMARHI 26. MD. JALALUDDIN KHAN, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 27. SRI ARUN KUMAR RAI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 28. SMT. SAROJ DEVI, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 29. SMT. KISHWAR SULTANA, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 30. SRI RAMANEK SINGH, MEMBER OF THE SITAMARHI NAGAR PARISHAD, SITAMARHI, P.O. & P.S. SITAMARHI, DISTT.- SITAMARHI 31. THE STATE ELECTION COMMISSIONER, BIHAR, PATNA 32. THE SECRETARY OF STATE ELECTION COMMISSIONER, BIHAR, PATNA ……………………..… Respondents …. Respondents. ----------- For the Appellant : Mr. Y.V. Giri, Sr. Advocate with Mr. Raju Giri, Advocate. For the State: Mr. Krishna Kant Singh, AC to GP-V. For the Pvt. respondent: Mr. S.B.K.Mangalam with Mrs. Manimala, Advocate. ----------- - 4 - 6. 25.06.2010. Heard learned counsel for the parties. 2. In this appeal, the appellant has challenged the judgment and order dated 05.03.2010 whereby two writ petitions, one bearing CWJC No. 8092/2009 preferred by the respondent no. 1 and another bearing CWJC No. 7540/2009 preferred by one Jai Muni Devi, were allowed and it was held that the meeting for no confidence called for by the District Magistrate, Sitamahri and presided by him was invalid in law in view of the recent judgment of this Court in the case of Pawan Kumar Purvey v. The State of Bihar & Ors., [2010 (1) PLJR 272]. The writ Court has held that the so-called no confidence motion is invalid in law and cannot be acted upon. An observation has also been made that the judgment will not come in the way of the Councillors to bring about a fresh no confidence motion against the two writ petitioners, who are Deputy Chief Councillor and Chief Councillor respectively of Sitamarhi Nagar Parishad. 3. The appellant is aggrieved by the said judgment interfering with the no confidence motion for the reason that in the subsequent meeting of the Nagar Parishad, the - 5 - appellant contested for the post of Deputy Chief Councillor and got elected. On this ground alone, it has been canvassed on behalf of the appellant that the writ petitioner should not be given any consequential relief and the appellant should be allowed to continue on the post of Deputy Chief Councillor. According to the learned counsel for the appellant, the main reason why the writ petitioner should not be given the benefit of the law laid down in the case of Pawan Kumar Purvey (supra) is his act of acquiescence in participating in the subsequent meeting as a voter because in spite of that the appellant got elected. An attempt was also made to canvass that the law laid down in the case of Pawan Kumar Purvey (supra) cannot come to the benefit of the writ petitioner because of de facto doctrine expounded in another case bearing L.P.A. No. 733 of 2010 (Vinay Kumar “Pappu” @ Binay Kumar “Pappu”& Ors. v. The State of Bihar & Ors.) decided on 14.05.2010. 4. So far as de-facto doctrine is concerned, it is well settled that it can save the acts of an occupant of a public office when his occupation of the office in - 6 - question is not under challenge directly but only collaterally. That is not the fact situation in this case. Here the issue of removal of the writ petitioner by a resolution of no-confidence is directly under issue and decided in her favour. De-facto doctrine is not applicable for the plea that she is disentitled to a just and proper consequential relief. Hence, the judgment in the case of “Vinay Kumar “Pappu” (supra) is found to be of no help to the appellant. In that case such issue was not under consideration, at least directly. 5. On the other hand, learned counsel for the respondent – writ petitioner has contested both the aforesaid submissions and, according to him, once the no confidence motion has been found to be invalid in law, the writ petitioner must be held to be lawfully occupying the office of the Deputy Chief Councillor and, hence, any subsequent election must be held to be of no consequence because of lack of vacancy in the concerned office. 6. Ordinarily, once the removal process is found to be invalid, the occupant of the office is entitled to be - 7 - reinstated or to be treated as an occupant of the concerned office. In certain exceptional circumstances he may be denied such relief on account of act of acquiescence by agreeing to subsequent action resulting into filling up of the vacancy or by taking a chance to get himself reappointed or re-elected unsuccessfully. 7. In fact, the Chief Councillor whose writ petition was also allowed by the order under appeal has been denied relief of getting back into the office by a Division Bench of this Court by the judgment and order dated 20.04.2010 passed in L.P.A. No. No. 525 of 2010 on the ground that she did not restrain herself from contesting the second election and since she took the chance of subsequent contest and lost the election, she was not entitled for the relief to get back into the office of the Chief Councillor. 8. Learned counsel for the appellant has placed reliance upon that judgment as well as on the judgment of the learned single Judge in the case of Nirmala Singh & Anr. V. The State of Bihar & Ors., [2006 (1) PLJR 129] to canvass the proposition that even by participating - 8 - in the subsequent meeting and voting in the re-election, an office bearer like the writ petitioner will disentitle herself or himself from getting consequential relief of re- occupying the office from which the removal has been found to be illegal. 9. No doubt, the judgment in the case of Nirmala Singh & Anr. (supra) while considering cases of the two office bearers together held that both of them were not entitled to get the relief because one of them had contested the election and other had cast his vote, but the law relating to acquiescence and waiver was not discussed by the learned single Judge at all. 10. In the Division Bench judgment in the case of Sanjay Kumar Mahajan V. The State of Bihar & Ors., (L.P.A. No. 525 of 2010 and analogous case, disposed of on 20.04.2010) arising out of the judgment and order under appeal and relating to Chief Councillor, the law has been discussed and it has been held that the Chief Councillor had disentitled herself to any relief because she took the chance of contesting the subsequent election wherein she lost. - 9 - 11. So far as the respondent – writ petitioner in this appeal is concerned, she has admittedly not contested the subsequent election and, hence, the issue narrows down to testing whether by not abstaining herself from the subsequent meeting and by exercising her right to vote she has committed some wrong act for which she must be penalized and deprived from the fruits of a lawful finding in her favour that her removal was illegal and the no confidence motion was against law. Acquiescence or waiver must be based upon deliberate acts which can show that the person concerned has consciously given up his rights and has opted for a course of action which is not consistent with his or her earlier claims. By simply opting to participate in a subsequent meeting of the Nagar Parishad which was not stayed by this Court in spite of prayer, the writ petitioner, in our considered opinion, has merely acted in accordance with law to exercise her right of voting in a meeting which was being held in spite of pendency of the writ petition. Such an action, in our opinion, alone would not be sufficient to hold that the writ petitioner had done something to - 10 - disentitle herself from the benefit of restoration to the office from which she was illegally removed. 12. In view of the aforesaid facts and discussions, we find no merit in this appeal and it is accordingly dismissed. However, there shall be no order as to costs. Dilip ( R.M. Doshit, CJ ) ( Shiva Kirti Singh, J )