IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7563 of 2009 BAIJU KUMAR CHOUDHARY s/o Sri Mahadev Choudhary, resident of ward no. 17, Dhobi Tola, P.S. Supaul, Town & District- Supaul. Versus 1. THE STATE OF BIHAR . 2. Secretary, Department of Urban Development and Housing, Govt. of Bihar, Patna. 3. Deputy Secretary, Department of Urban Development and Housing, Govt. of Bihar, Patna. 4. Nagar Parishad Supaul through its Executive Officer. 5. Chief Councilor, Nagar Parishad,Supaul. 6. Deputy Chief Councilor, Nagar Parishad, Supaul. 7. Executive Officer, Nagar Parishad,Supaul. ----------- For the Petitioner : M/s Rajendra Narain , Anju Narain, Sanjay Kr. Srivastava and Vinay Kumar For the State : Mr. Prahat Kumar Sharan, A.C. to AAG- XI For Nagar Parishad : Mr. Amitesh Kumar. 3 4.11.2009 Petitioner is one of the Councilors in Supaul Nagar Parishad constituted under the provisions of Bihar Municipal Act, 2007. His grievance is first the direction of the State Government (not the State Election Commission), dated 23.6.2009, as contained in Annexure 3/a as also against Annexure 3 issued by the Executive Officer of the Nagar Parishad dated 24.6.2009 in pursuance of Annexure 3/a. By the said two communications, the requisition of 18 Councilors to convene special meeting of the Councilors to decide upon vote of ‘no confidence’ so far as Chief Councilor and Deputy Chief Councilor are concerned has been refused . Nagar Parishad, Chief Councilor and other parties have appeared. State has also appeared. Counter and rejoinder have been filed. Petitioner submits that the elected body of Councilors of 2 Supaul Nagar Parishad consists 31 in all, out of which 28 are elected and three are ex officio. 18 members filed a written requisition on 10th June, 2009 to the Executive Officer in terms of Section 25(4) of the Act for calling a special meeting for considering no confidence motion. In law there is no option given to the Executive Officer or the Chief Councilor in this regard and as the meeting was requisitioned by more than 1/3rd members, it was bound to be held. I may point out that there are basically two exceptions , firstly that ‘ no confidence motion’ cannot be brought within two years of the election and the other it cannot be brought within one year of the motion being defeated. Here these two conditions do not arise in the present case. What happened thereafter is quite curious . The Executive Officer, who was bound to call and that too within fifteen days, a special meeting for the purpose of considering ‘no confidence’ against the Chief Councilor and the Deputy Chief Councilor, referred the matter to the State Government. There was no requirement in law to do so but apparently there was something else operating . The State Government by Annexure 3/a, dated 23.6.2009, as noted above, wrote that as the matter of disqualification of nine Councilors are to be considered, no special meeting can be convened . At the very outset, I may state that the State Government has no business to interfere in this matter notwithstanding Section 67 of the Act. The reliance of the State and the respondent- Nagar Parishad and others on Section 67 of the Act is misconceived on the face of it. Section 67, as contained in Chapter VII of the Act deals with the report and records. It has nothing to do with calling of special meeting. It must be remembered 3 here that we are not dealing with employer- employee relationship. We are dealing with the rights of an elected body in a democratic set up where people govern themselves in the form of local self- government enshrined under Chapter IXA of the Constitution. Here an outside interference in the internal affair of the Parishad which is not called for and has to be decided by the elected members amongst themselves. This is not to be tolerated or permitted. The result of this exercise by the State was that the Chief Councilor and the Deputy Chief Councilor, who would otherwise face no confidence are being permitted to continue at the mercy of the State Government with this unauthorized intervention. Learned counsel for Nagar Parishad that is the Chief Councilor, the Executive Officer and other Councilors submits that Section 18(1)(n) provides that if a councilor has not attended three consecutive meetings he would be disqualified. It is pointed out that the Collector of the district has sent a report in this regard to the State Government and to the Bihar State Election Commission. Under what authority the Collector had acted and why report was sent to the State Government is not disclosed. It is submitted on behalf of the respondents that the matter of disqualification of nine Councilors is under consideration and as such the Councilors cannot meet for any purpose and decide anything in respect of ‘no confidence’ but can carry with all other business. This diabolical stand has no leg to stand on. It is not in dispute that the State Election Commission is yet to call upon the parties, hear them and decide the matter. The State Government and 4 the district authorities are only preempting a democratic body from functioning as a democratic institution. I may note at this stage that the petitioner has brought on record that all this exercise of alleging disqualification against several Councilors started only after the requisition for no confidence motion was made. Earlier Councilors were abstaining in protest against the high- handed attitude of the Chief Councilor in association with the Executive Officer. As late on 4th March, 2009, they had attended the meeting but thereafter on dates they have abstained in protest. I am not going into the question whether absenting would be abstention for disqualification because it is well settled principle of democratic governance that abstaing in protest is a mode of protest and is not an abstention per se . However, this question now cannot be gone into as the matter appears pending before the Election Commission. From what is noticed above, it is clear that once by duly elected members, who have completed the formality as envisaged under Section 25(4), a special meeting is requisitioned then the Executive officer is bound to convene a meeting to consider ‘no confidence ‘ and doing otherwise would be murder of the democratic institution where the executive non elected officer can sit over the will of elected members who are to govern themselves. Thus found there is no reason why special general meeting will not be held. The meeting was called as far back in June, 2009. It is yet to be held. We are in November, 2009. Meeting is to be held within fifteen days. Over six months have elapsed. If the Chief Councilor and the Deputy Chief Councilor did not enjoy the confidence of the House, by this 5 unauthorized action of the State and its Executive Officer, he has continued for six months. In a democratic institution things have to be decided on the floor of the House by the members of the house and not by bureaucracy sitting outside. I, therefore, set aside Annexures 3 and 3/a and direct that within two weeks from today, the special meeting of Supaul Nagar Parishad must be convened for considering no confidence motion against the Chief Councilor and the Deputy Chief Councilor, failing which they shall cease to officiate as such for any purpose. It would be the duty of the respondent- Executive Officer to ensure proper compliance of this order. With the aforesaid observations and directions, this writ petition stands allowed. Singh (Navaniti Prasad Singh, J.)