IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.618 of 2010 1. JITENDRA KUMAR VERMA, S/O SRI RAMJI PD. VERMA, R/O MOHALLA – KHARKHURA, BHALUAHI, P.S - DELHA, DISTRICT- GAYA. 2. BRIJ BHUSHAN PRASAD, S/O SRI KRISHNA NARAYAN LAL, R/O MOHALLA- DULHINGANJ , P.S - KOTWALI, DISTRICT - GAYA. 3. INDU DEVI, W/O SRI SURESH SHARMA, R/O MOHALLA- RANI JAILKHANA, RANGBAHADUR ROAD, P.S - KOTWALI, DISTRICT - GAYA. 4. DHARMENDRA KUMAR, S/O BAL MUKUND RAM, R/O MOHALLA - ANUGRAH NARAYAN ROAD, P.S - KOTWALI, DISTRICT - GAYA. …………………. APPELLANTS (NOT PARTY IN CONNECTED WRIT PETITION) Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT & HOUSING DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT & HOUSING DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. MUNICIPAL COMMISSIONER, GAYA MUNICIPAL CORPORATION, GAYA. 4. DEPUTY SECRETARY – CUM - DIRECTOR, URBAN DEVELOPMENT & HOUSING DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE EXECUTIVE OFFICER, GAYA MUNICIPAL CORPORATION, GAYA. …… RESPONDENTS/RESPONDENTS 6. SAGUFTA PARWEEN, W/O MD. MURSHID, R/O WARD NO. 45, GHUGHRI TAND, P.S- CIVIL LINES, DISTRICT - GAYA. ……………………………………. RESPONDENT - PETITIONER ----------- For the Appellants: Mr. Bhanu Pratap Singh, Advocate. For the State: Mr. Lalit Kishore, AAG III, Mr. Mahesh Prasad, S.C. VIII, Ms. Archana Prasad, A.C. to S.C. VIII & Ms. Meera Kumari, A.C. to S.C. VIII. 2 For the 5th Respondent: Mr. Rabindra Kr. Priyadarshi, Advocate. For the 6th Respondent: Mr. Y.V. Giri, Sr. Advocate and Mr. Raju Giri, Advocate. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA THE HON’BLE MR JUSTICE JYOTI SARAN O R D E R (11.05.2010) As per Dipak Misra, C.J.- Questioning the defensibility and legal sustainability of the order dated 23.02.2010 passed by the learned single Judge in CWJC No. 1067 of 2010, the present intra-Court appeal has been preferred under Clause X of the Letters Patent. When the matter was listed before the Division Bench on 13.04.2010, the Division Bench, after referring to Section 27 of the Bihar Municipal Act, 2007 (for brevity `the Act’) and taking note of the decision rendered in Jagdish Singh v. The State of Bihar & Ors., (CWJC No. 9380 of 2008), decided on 14th November, 2008 and further the reliance placed by Mr. Y.V. Giri, learned Senior Counsel appearing for the contesting respondent no. 6, on Section 21 of the Act, especially sub- section (3) of Section 21, thought it appropriate that the 3 matter should be heard by a larger Bench as there are certain observations in the decision rendered in Jagdish Singh (supra). On the basis of the aforesaid order, the larger Bench has been constituted and the matter has been placed before us. 2. Bereft of unnecessary details, the facts which are essential for adjudication of this appeal are that the 6th respondent - writ petitioner, challenged the government’s direction contained in Memo No. 6020 dated 18.12.2009 issued by the the Department of Urban Development and Housing to the effect that notwithstanding the change of Chief Councillor (Mayor), the Empowered Standing Committee (for short `the Committee’) of the Municipal Corporation, as nominated earlier, would continue. It is worth noting that the writ petitioner was elected as Mayor- cum-Chief Councillor of Gaya Municipal Corporation after the death of the Chief Councillor on 27.09.2009. 3. It was contended before the learned single Judge that as a newly elected Chief Councillor, he has the right under Section 21(3) of the Act to nominate the Members of the Committee. The said proponement was combatted 4 by the present appellants who had filed an application for intervention and were heard by the learned single Judge. The learned single Judge referred to various provisions of the Act and after scanning the anatomy of Sections 21, 22, 24 & 27 of the Act came to hold that the life of the Committee Members is co-terminous with the life of the Chief Councillor / Mayor who nominated them. The learned single Judge further opined that the directives issued by the State Government under Annexure-5 to the writ petition was clearly contrary to the statutory provisions and the statutory scheme inasmuch as once a new Mayor has been elected, he has the right to nominate his new team of the Empowered Standing Committee from amongst the Members itself and further that the Chief Councillor and the Members of the Committee are collectively responsible to the Municipal Council and that the words used in Section 21(3) of the Act which empowers the Chief Councillor to nominate from among the Councillors elected within a period of seven days on his entering office has its own signification and it conveys that he has to work with the Committee as one team. 5 4. Being of this view, the learned single Judge lanceted the direction of the State Government pertaining to continuance of the Committee. 5. Being dissatisfied with the aforesaid order, the present appeal has been preferred by the interveners- appellants, the Members of the earlier Empowered Standing Committee, contending, inter alia, that the interpretation placed by the learned single Judge on Section 21(3), if read in juxtaposition with Section 27 of the Act, is palpably erroneous inasmuch as the term of the Committee is co-terminous with the term of the Members of the Municipal Council and, therefore, it cannot be construed that it is co-terminous with the tenure of the Chief Councillor who had nominated them. It is urged by Mr. Bhanu Pratap Singh, learned counsel for the appellants, that the order passed by the learned single Judge is vulnerable inasmuch as he has been guided by the concept of democracy and collective responsibility whereas the situation in respect of continuance of the Committee is governed and controlled by the statutory provisions. It is canvassed by him that if Section 27 of the 6 Act is read in a purposive manner, it cannot, by any stretch of imagination, be construed that the Committee would cease to be so once the Chief Councillor is removed from the office or breathes his last. 6. Mr. Lalit Kishore, learned Additional Advocate General-III for the State, supporting the memorandum of the Government, submitted that Section 21(3) of the Act empowers the elected Chief Councillor to nominate the other Members of the Empowered Standing Committee after entering into office but the exercise of that power is not absolute and hedged by the language employed under Section 27 of the Act. It is urged by him that Section 22 of the Act stipulates that the executive power of the Municipality is to be exercised by the Committee and, therefore, the conception of stability and continuity is inhered and, hence, it has to be conferred the status of a permanent body. The learned counsel for the State has submitted that when the power of withdrawal of nomination is absent in the statute which was earlier there, the said power cannot be engrafted into the provision. 7. Mr. Y.V. Giri, learned Senior Counsel appearing 7 for the 6th respondent, supporting the order of the learned single Judge, has invited our attention to the impugned order wherein the learned single Judge has dealt with the concept of collective responsibility and highlighted how the Chief Councillor has a role under the Act to nominate his own team. It is contended by Mr. Giri that the concept of collective responsibility does find place in sub-section (7) of Section 21 of the Act which lays a postulate that the Committee shall be collectively responsible to the Municipal Council and, therefore, a conception of collective responsibility on which emphasis has been laid down by the learned single Judge cannot be marginalized or allowed to pale into insignificance. It is further submitted by Mr. Giri that the Chief Councillor is the Chairman of the Empowered Standing Committee and when the concept of collective responsibility is attracted, the basic tenet of democracy has to be kept in view, regard being had to the language employed in Article 164(1) and (2) of the Constitution of India and, hence, the re-elected Chief Councillor has the authority to re-nominate the Committee by removing the earlier nominated Members. 8 Mr. Giri further urged that the power to nominate also engulfs the power to remove as the General Clauses Act would come into play. It is next propounded by him that Sections 21 and 27 of the Act have to be read harmoniously and on a harmonious reading of the said two provisions, to avoid any kind of anomalous situation, the only possible conclusion that can be arrived at is that the term of the Members of the Committee has to be co- terminous with the Chief Councillor who had nominated them and, therefore, when a new Chief Councillor comes into office, he has the power to nominate the Members of the Committee. It is canvassed by him that the interpretation placed by the learned single Judge is in accord with the concept of democracy which has to be pyramided at the grass root level and also in consonance with the deeply cherished constitutional philosophy. He has commended us to the decision in The State Financial Corporation & Anr. v. M/s. Jagdamba Oil Mills & Anr., AIR 2002 SC 834. 8. To appreciate the rivalised submissions raised at the Bar, we think it seemly to x-ray the scheme of the 9 Act. Section 11 of the Act defines “Municipality”. It reads as follows: “11. The Municipality. (1) The Municipality shall consist of such number of elected Councillors as there are wards within the municipal area as determined in accordance with the provisions made under section 13 of this Act. (2) The Municipality shall be a body corporate with perpetual succession and a common seal, and may, by the name of the Municipality of the city or the town or the Nagar Panchayat, as the case may be, by reference to which the Municipality is known, sue and be sued. (3) All executive actions of the Empowered Standing Committee shall be expressed to be taken in the name of the Municipality. (4) Subject to the provisions of this Act, the Municipality shall have the power to acquire, hold and dispose of properties.” 9. In this context, we may profitably refer to Section 57 of the Act which deals with the right of the Councillors to ask questions. Section 57 is seemly to be reproduced as follows: “57. Right of Councillors to ask 10 questions.- (1) A Councillor may, subject to the provisions of sub-section (2), ask the Empowered Standing Committee questions on any matter relating to the administration of the Municipality or municipal governance, and all such questions shall be addressed to the Empowered Standing Committee and shall be answered either by the Chief Councillor or by any other member of the Empowered Standing Committee. (2) The right to ask a question shall be governed by the following conditions, namely:- (a) not less than seven working days' notice, in writing, specifying the question shall be given to the Municipal Secretary; (b) no question shall - (i) bring in any name or statement not strictly necessary to make the question intelligible, (ii) contain arguments, ironical expressions, imputations, epithets or defamatory statements, (iii) ask for an expression of opinion or the solution of a hypothetical proposition, (iv) ask as to the character or conduct of any person except in his official or public capacity, (v) relate to a matter which is not primarily the concern of the Municipality, 11 (vi) make or imply a charge of a personal character, (vii) raise questions of policy too large to be dealt with within the limits of an answer to a question, (viii) repeat in substance questions already answered or to which an answer has been refused, (ix) ask for information on trivial matters, (x) ask for information on matters of past history, (xi) ask for information set forth in accessible documents or in ordinary works of reference, (xii) raise matters under the control of bodies or, persons not primarily responsible to the Municipality, or (xiii) ask for any information on any matter which is under adjudication by a court of law. (3) The presiding officer shall disallow any question, which is, in his opinion, in contravention of the provisions of sub-section (2). (4) If any doubt arises whether any question is or is not in contravention of the provisions of sub-section (2), the matter shall be decided by the presiding officer, whose decision shall be final. (5) The Chief Councillor or any member of the Empowered Standing Committee shall 12 not be bound to answer a question seeking information which has been communicated to him or to the Empowered Standing Committee in confidence or if, in his opinion, it cannot be answered without prejudice to the public interest. (6) Unless otherwise directed by the presiding officer of the meeting, every question shall be answered at a meeting of the Municipality.” 10. Section 59 of the Act, being relevant in the present context, is reproduced below: “59. Asking for statement from Empowered Standing Committee.- (1) Any Councillor may ask for a statement from the Empowered Standing Committee on an urgent matter relating to the administration of the Municipality by giving notice to the Municipal Secretary at least one hour before the commencement of the meeting of the Municipality on any day. (2) The Chief Councillor or a member of the Empowered Standing Committee may either make a brief statement on the same day or fix a date for making such statement. (3) Not more than two such matters shall be raised at the same meeting and, in the event of 13 more than two matters being raised priority shall be given to the matters which are, in the opinion of the Chief Councillor, more urgent and important. (4) There shall be no debate on such statement at the time it is made.” 11. We have referred to the aforesaid provisions to appreciate the role ascribed to the Committee under the Act. As is patent, the entire executive action of the Committee is taken in the name of the Municipality. Thus, the Committee has its own importance in the Municipality and thereby in the sphere of governance in the local body. 12. In Chapter IV of the Act, Section 20 deals with “Municipal Authorities”. In the said provision, the Empowered Standing Committee finds mention as a wing to give effect to the purposes of the various provisions of the Act. 13. Section 21 of the Act deals with the constitution of the Empowered Standing Committee of the Municipality. The said provision, being relevant for our purpose, is reproduced below in entirety. “21. Constitution of Empowered Standing 14 Committee of Municipality. (1) In every Municipality there shall be an Empowered Standing Committee. (2) The Empowered Standing Committee shall consist of- (a) in the case of a Municipal Corporation, the Mayor, the Deputy Mayor, and seven other Councillors; (b) in the case of a Class `A’ or Class `B’ Municipal Council, the Municipal Chairperson, the Municipal Vice Chairperson, and five other Councillors; (c) in the case of a Class `C’ Municipal Council, the Municipal Chairperson, the Municipal Vice- Chairperson, and three other Councillors; and (d) in the case of a Nagar Panchayat, the Municipal President, the Municipal Vice- President, and three other Councillors; (3) The other members of the Empowered Standing Committee shall be nominated by the Chief Councillor from among the Councillors elected under sub section (1) of section 12 within a period of seven days of his entering office. (4) The other members of the Empowered Standing Committee shall assume charge after taking the oath of secrecy under section 24. (5) The Chief Councillor shall be the presiding officer of the Empowered Standing Committee. (6) The manner of transaction of business of the 15 Empowered Standing Committee shall be such as may be prescribed. (7) The Empowered Standing Committee shall be collectively responsible to the Municipal Corporation or the Municipal Council or the Nagar Panchayat, as the case may be.” 14. Section 22 of the Act deals with the executive power of Municipality to be exercised by the Empowered Standing Committee. The said provision has been pressed into service by the learned counsel for the appellants as well as by Mr. Giri appearing for the 6th respondent. It reads as follows: “22. Executive power of Municipality to be exercised by Empowered Standing Committee.- Subject to the provision of this Act and the rules and the regulations made there under, the executive power of a Municipality shall be exercised by the Empowered Standing Committee.” 15. Section 27 of the Act, which deals with the term of office of the Chief Councillor and the members of the Empowered Standing Committee, is as follows: “27. The term of office of the Chief Councillor and the members of Empowered Standing Committee.- The terms of office of the Chief 16 Councillor and the members of Empowered Standing Committee shall be coterminous with the duration of members of the Municipality.” 16. As is perceivable from the scheme of things, the executive power of the Municipality is to be exercised by the Committee and it has been ascribed a significant role. 17. Section 21(3) of the Act confers power on the Chief Councillor to nominate the other members of the Empowered Standing Committee barring the Ex-officio Members from amongst the Councillors elected under sub- section (1) of Section 12 within a period of seven days of his entering office. Sub-section (7) of the said provision stipulates that the Empowered Standing Committee shall be collectively responsible to the Municipal Corporation or the Municipal Council or the Nagar Panchayat, as the case may be. 18. Section 27 of the Act clearly lays down that the term of office of the Chief Councillor and the members of the Committee shall be co-terminous with the duration of the members of the Municipality. In this context, we may fruitfully refer to Section 16 of the Act which provides for 17 the terms of office of the Councillors of the Municipality. The said provision reads as under: “16. Terms of office of Councillors of Municipality.- Subject to the provisions of sub-section (6) or sub-section (7), as the case may be, of section 12, a Councillor shall hold office for a period of five years from the date of the first meeting of the Municipality under section 35 or, in the case of a Councillor chosen to fill a casual vacancy, for the remainder of the term of office of his predecessor, unless – (a) the Municipality is dissolved earlier, or (b) he resigns his office by notice, in writing, under his hand addressed to the Chief Councillor, and, thereupon, his office shall become vacant from the date of the notice, or (c) his election is void, or is declared to be void, under the provisions of any law relating to municipal elections in the State, or (d) the entire area of the ward from which he has been elected is withdrawn from the operation of this Act under clause (a) of section 8.” 19. On a reading of the aforesaid two provisions in juxtaposition, it is clear as day that a member of the 18 Committee shall continue as long as he is a Member of the Municipality. There is no provision in the statute that it will be co-terminous with the term of the Chief Councillor. There is no command in the statute that the Empowered Standing Committee as a whole would stand dissolved with the death of the Chief Councillor or where he is voted out in a vote of no-confidence. The language is absolutely clear, unambiguous, categorical and unequivocal. Section 21(3) of the Act does empower the Chief Councillor to nominate other members barring the Ex-officio Members as the Members of the Committee but it is a one time act. It is a permanent body and the members of the committee continue till the duration of the members of the municipality. There are various provisions which disqualify a person to continue as a member of the Council. Section 17 of the Act makes a provision for recalling the Councillor. Section 18 stipulates for certain conditions which disqualify a person being elected to hold the office if he incurs certain disqualifications. The Division Bench in Jagdish Singh (supra) has opined thus: “10. If a member of the Municipality is nominated as member of the empowered 19 standing committee and he is either recalled under section 17 or incurs disqualification after election for holding the post as member of the Municipality and an order of removal for such disqualification is passed in terms of section 18(2), his membership to the empowered standing committee ipso facto comes to an end. In this view of the matter, even if there is no specific provision for removal of the members of the empowered standing committee, there is enough mechanism provided in the Act, 2007, that cessation of membership to the municipality automatically brings an end to the membership of the empowered standing committee. 11. We, thus, find that there is no merit in challenge to the constitutionality of section 27 of the Act, 2007. No other point was pressed by the counsel.” We are respectfully in agreement with the said view. 20. True it is, the said decision was rendered when the constitutional validity of Section 27 of the Act was challenged but the Bench has expressed the view that the term of the Member of the Committee comes to an end if he is recalled or incurs disqualification to hold the post as 20 Member of the Municipality as envisaged under Section 18(2) of the Act. It has been held by the Bench that even if there is no specific provision for removal of the Members of the Committee, there is enough mechanism in the Act and, hence, the provision is valid. In the said decision, in paragraph 6, it has been stated as follows: “6. Section 27 provides for the duration of term of the office of Chief Councillor and the members of the empowered standing committee. The expression `duration of member of Municipality’ is an indicative of the position that a member of the empowered standing committee can continue to be member of such committee so long as he is Councillor.” 21. The submission of Mr. Giri, learned Senior Counsel for the 6th respondent, is that the view expressed by the Division Bench is not correct as it was basically dealing with the constitutional validity and not interpreting the term “co-terminous” and the basic effect of nomination vis-à-vis collective responsibility. We have referred to the various provisions of the Act and how the Committee functions within the scheme of the Act. In the absence of 21 any provision to the effect that the Committee as a whole would stand dissolved on ouster of the Chief Councillor in any manner or by way of death, it is difficult to place such a construction on Section 27 of the Act that the body would stand dissolved or the term of the Member would come to an end. The language employed, as we have indicated hereinbefore, is absolutely clear. It is also urged by Mr. Giri that the term “co-terminous” should have nexus with the nomination and the Chief Councillor having the power to nominate within a period of seven days of his entering into office. To put it differently, his submission is that the power of the Chief Councillor to nominate his team after entering into the office within a period of seven days cannot be curbed or curtailed. He has given emphasis on the term of collective responsibility as the said words are employed in Section 21(7) of the Act. The learned Senior Counsel has drawn an analogy of collective responsibility from the concept enjoined under Article 164 of the Constitution of India. The language employed in the said Article is totally different from the present statutory provisions. Under the scheme of the Act, 22 there