IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13112 of 2011 ====================================================== 1. Afzal Imam S/O Md. Sahabuddin R/O Mohalla- Alamganj Narkat Ghat, P.O.- Gulzarbagh, P.S.- Alamganj, Distt.- Patna presently Mayor of Patna Municipal Corporation, Distt.- Patna 2. Vinay Kumar Pappu S/O Late Surendra Nath Rai Yadav R/O Mohalla- Goriya Toli, Station Road, Patna, P.S.- Kotwali, Distt.- Patna, presently Deputy Mayor of Patna Municipal Corporation, Distt.- Patna 3. Abha Lata , Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Ramesh Kumar R/O Mohalla- Sherullahipur (Nandgaon), P.O.- Shastri Nagar, P.S- Shastri Nagar, Distt.- Patna 4. Sunil Kumar, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Shyam Nandan Prasad R/O Mohalla- Paharpur, P.O.- Anishabad, Distt.- Patna 5. Binod Kumar , Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Sri Janak Prasad Singh R/O Mohalla- Mohanpur, P.O.- Punaichak, P.S.- Shastri Nagar, Distt.- Patna 6. Mithilesh Kumar Singh, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Lakshmi Narayan Yadav R/O Mohalla- South Mandiri, P.O.- G.P.O., P.S.- Budha Colony, Distt.- Patna 7. Prabha Devi, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Pramod Kumar Singh R/O Vishal Durga Apartment, Boring Canal Road, P.S.- Budha Colony, Distt.- Patna 8. Mukesh Kumar, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Sri Nawal Kishore Prasad R/O Mohalla- Chandpur Bela, P.O.-G.P.O., P.S.- Jakkanpur, Distt.- Patna 9. Dr. Gopal Prasad, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Ram Charittar Gope R/O Mohalla- Bhikha Chak, P.O.- Anishabad, P.S.- Gardanibag, Distt.- Patna 10. Arun Kumar Chaudhary, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Ram Nath Chaudhary R/O Mohalla- Lalji Tola, P.O.- G.P.O., P.S.- Gandhi Maidan, Distt.- Patna Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 2 / 9 2 11. Md. Mahmood Quraishi, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Fakhruddin Quraishi R/O Mohalla- Shah Fasahat Ka Maidan, P.O.- Jhauganj, P.S.- Chowk, Distt.- Patna 12. Balram Chaudhary, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Madan Gopal R/O Mohalla- Gujari Bazar (Patna City), P.O.- Jhauganj, P.S.- Khajekalan, Distt.- Patna 13. Baleshwar Singh, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Punit Mahto R/O Mohalla- Purandarpur, P.O.- Purandarpur, P.S.- Jakkanpur, Distt.- Patna 14. Jai Narayan Sharma, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Kumar Narayan Sharma R/O Shyam Bhawan, Chaudhary Tola, P.O.- Mahendru, P.S.- Sultanganj, Distt.- Patna 15. Tara Devi, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Arun Sharma R/O Mohalla- Arfabad Colony, P.O.- Guljarbag, P.S.- Alamganj, Distt.- Patna 16. Sunita Pritam, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sadan Kumar R/O Mohalla- Purani Jakkanpur, Ram Lakhan Mahto Flat, P.O.- G.P.O., P.S.- Jakkanpur, Distt.- Patna 17. Ur Pramila Singh, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Shamsher Singh R/O Mohall- Yarpur Sheoji Path Rajputana, P.O.- G.P.O., P.S. - Jakkanpur, Distt.- Patna 18. Tota Chaudhary, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Bal Kishun Chaudhary R/O Mohalla- R.M.S. Colony, Chamar Toli, P.S. - Kankarbag, Distt.- Patna 19. Satya Bhama Singh, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Subhash Chandra Singh R/O Mohalla- East Indira Nagar Road No.-2, R.M.S. Colony, P.S.- Kankarbag, Distt.- Patna 20. Prabha Devi, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Raj Kumar R/O Mohalla- Chitragupta Nagar, P.S.- Patrakar Nagar, Distt.- Patna 21. Sanjay Kumar, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Sri Krishna Kant Prasad R/O Mohalla- Kumharar, P.O.- Bahadurpur Housing Colony, P.S.- Alamganj, Distt.- Patna 22. Asha Devi, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Raj Kumar Gupta R/O Mohalla- Chiraiya Tar, Petrol Pump, Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 3 / 9 3 Kumhar Toli, P.S. - Kankarbag, Distt.- Patna 23. Pinki Yadav, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Sujit Kumar R/O Mohalla- Navratanpur, P.O.-G.P.O., P.S.- Kankarbag, Distt.- Patna 24. Sudha Devi, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Kedar Chaudhary R/O Mohalla- Khalilpur Phulwarisharif, P.O. and P.S.- Phulwarisharif, Distt.- Patna 25. Sunita Kumari, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Deepak Kumar R/O Millennium Homes Apartment, Sheikhpura Bind Toli, P.O.-B.V. College, P.S.- Shastri Nagar, Distt.- Patna 26. Sanjay Kumar Singh, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Sri Mohan Prasad Singh R/O Mohalla- Digha Ghat, Pati Pool, P.O. and P.S.- Digha, Distt.- Patna 27. Punam Verma, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Akshay Kumar Sinha R/O Gulab Bag Market, Opposite Hathwa Market, P.O. - Bankipur, P.S.- Kadam Kuan, Distt.- Patna 28. Reeta Roy, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Late Shyam Sundar Roy R/O Mohalla- Kazipur, P.O. Bankipur, P.S.- Kadam Kuan, Distt.- Patna 29. Arjun Kumar Yadav, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Damodar Yadav R/O Mohalla- Babu Tola, Govind Mitra Road, P.O. Bankipur, P.S.- Pirbahore, Distt.- Patna 30. Sahzadi Begum, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Md. Tafiq Alam R/O Mohalla- Sabji Bag Road, P.O.- Bankipur, P.S.- Pirbahore, Distt.- Patna 31. Sudhir Kumar, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Late Raghu Nandan Prasad Yadav R/O Mohalla- Noorpur, P.O.- Patna City, P.S.- Malsalami, Distt.- Patna 32. Mumtaz Jahan, Elected Ward Councilor Of Patna Municipal Corporation, Patna W/O Md. Javed, R/O Mohalla- Tarini Prasad Lane, Chhoti Pinjara, Ghasyari Gali, P.O.- Jhauganj, P.S.-Khajekalan, Distt.- Patna. 33. Pramila Singh, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Anil Singh R/O Mohalla- Mahesh Nagar, P.O.- Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 4 / 9 4 Keshri Nagar, P.S. - Patliputra, Distt.- Patna 34. Pratima Yadav, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Uma Shankar Prasad Yadav R/O Mohalla- Khajekalan, Nim Ghat, P.O.- Jhauganj, P.S. - Khajekalan, Distt.- Patna 35. Manoj Kumar, Elected Ward Councilor of Patna Municipal Corporation, Patna S/O Sri Braj Kishore Rai R/O Mohalla- Pua Gali, Jahuganj, P.O.- Jhauganj, P.S.- Chowk, Distt.- Patna 36. Aruna Mehta, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Chandra Mohan Prasad R/O Mohalla- Dharmwala Chak, P.O.- Begumpur, P.S.- Byepass, Distt.- Patna 37. Madhu Devi @ Archana Devi, Elected Ward Councilor of Patna Municipal Corporation, Patna W/O Sri Sharwan Kumar R/O Mohalla- Chhoti Nagla, P.O.- Madhavmali, P.S.- Malsalami, Distt.- Patna .... .... Petitioners Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna 2. The Cabinet Secretary, Cabinet Secretariat Department, Govt. of Bihar, Patna 3. The Law Secretary, Law Department, Govt. of Bihar, Patna 4. The Principal Secretary, Urban Development and Housing Department Govt. of Bihar, Patna 5. Sri Divesh Sehra S/O not known to the petitioners, Ex- Municipal Commissioner, Patna Municipal Corporation, Patna .... .... Respondents ====================================================== Appearance : For the Petitioners : Mr. Shashi Bhushan Kumar Mangalam, Advocate For the Respondents: Mr. Lalit Kishore, AAG-1 with Mr. Vikash Kumar, A.C. to AAG-1 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 5 / 9 5 2. 12.08.2011 This Petition under Article 226 of the Constitution is filed by the elected councilors of the Patna Municipal Corporation to challenge the constitutional validity of the second proviso of Section 41 of the Bihar Municipal Act 2007 (hereinafter referred to as ‘the Act’) as violative of Article 243P(e) of the Constitution. Article 243P of the Constitution incorporates definitions. Clause (e) thereof defines ‘Municipality’ to mean “an institution of self-government constituted under article 243Q”. Section 41 of the Act provides for appointment of officers of the State Government for municipalities. The said Section empowers the State Government to appoint the officers of the Government as executive officers of the Municipal Corporation or class of municipal councils or Nagar Panchayats. The proviso thereto provides that the officers so appointed shall be under the administrative control of the Empowered Standing Committee. The said proviso also empowers the State Government to withdraw such officers suo motu or if a resolution to that effect is passed by the Councilors at a meeting called for that purpose by a 2/3rd majority of the total number of councilors holding office for the time being. The impugned proviso has been added under Section 17 of the Bihar Municipal (Amendment) Act, 2011. The impugned proviso added under the aforesaid 2011 Act reads as under:- “Provided further that resolution regarding withdrawal of the officer shall not be taken within one year of the posting of the officer.” Thus, the above proviso curtails the power of Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 6 / 9 6 the councilors of the Municipality/Municipal Corporation to pass a resolution for withdrawal of the Municipal Officer for one year from the date such officer assumes charge. It is the aforesaid proviso which is under challenge before us. Learned advocate Mr. S.B.K. Mangalam has appeared for the writ petitioners. He has submitted that the Municipal Corporation is an institution of self-governance. The officers of the State are posted in the Corporation as its executive officers. By virtue of the first proviso to Section 41 of the Act, they are under the administrative control of the Standing Committee. If such officers do not perform the duties as directed by the Standing Committee of the Municipal Corporation, the Municipal Corporation cannot function. The Corporation, therefore, should have the power to enforce removal of such officers. That power is conferred by first proviso to Section 41 of the Act. The said power conferred by the first proviso has now been curtailed under the aforesaid second proviso inserted in the Act. The curtailment of the power under second proviso to Section 41 of the Act defeats the purpose of self-governance of the Municipal Corporation. Thus, violates Article 243P(e) of the Constitution. In course of his submission Mr. Mangalam has cited instances of insubordination by the respondent No. 5, the Municipal Commissioner. He has submitted that the resolution passed by the Councilors of the Municipal Corporation to request the Government to withdraw respondent No. 5 has been turned down by the State Government under its communication dated 28th July 2011. Mr. Mangalam has also taken us to Section 36 of the Act. In support of his argument, he has relied upon the judgments Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 7 / 9 7 of the Hon’ble Supreme Court in the matter of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, [AIR 1955 SC 549]; and in the matter of Afjal Imam v. State of Bihar and others, [(2011) 5 SCC 729] particularly paragraph 48 thereof. The Petition is contested by the learned Additional Advocate General-1 Mr. Lalit Kishore. He has submitted that no provision of an enactment can be held ultra vires unless it contravenes any of the provisions of the Constitution or it is beyond the legislative competence of the State. In the present case, it is not the allegation of the petitioners that the impugned proviso has been inserted without the authority of law. He has submitted that Article 243P(e) contains the definition of the ‘Municipality’. The impugned proviso in no manner contravenes the definition of the word ‘Municipality’ incorporated in the aforesaid Article 243P(e). In absence of any other challenge, the challenge to the constitutional validity of the impugned proviso inserted under Section 17 of the 2007 Act shall fail. He has further submitted that the legislative wisdom of the State cannot be questioned. In support thereof he has relied upon the judgment of the Hon’ble Supreme Court in the matter of Sardar Sarup Singh and others v. State of Punjab and others, [AIR 1959 SC 860], particularly paragraph 5 thereof. In the matter of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, the Hon’ble Supreme Court had occasion to consider the executive order made by the State of Punjab in respect of printing and publishing the text-books. The order was challenged as being violative of Article 19(1)(g) of the Constitution. While considering the constitutional validity of the said executive order the Hon’ble Supreme Court discussed the Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 8 / 9 8 nature of our Constitution thus, “Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.” In the matter of Afjal Imam v. State of Bihar and other (supra), the Hon’ble Supreme Court had an occasion to consider the constitutional validity of Section 7 of the Bihar Municipal Act, 2007. In paragraph 48 of the judgment the Hon’ble Court has discussed the concept of executive power and Article 14. The Hon’ble Court has followed the aforesaid judgment in the matter of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab (supra) to hold that, “the executive function comprises both the determination of policy as well as carrying it into execution”. In the matter of Sardar Sarup Singh and others v. State of Punjab and others (supra), the Hon’ble Supreme Court while considering the constitutional validity of Section 148-B of the Punjab Sikh Gurdwaras Act, 1925 inserted by the amending Act of 1959 observed, “… … this Court cannot be called to Patna High Court CWJC No.13112 of 2011 (2) dt.12-08-2011 9 / 9 9 embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make.” We have considered the extensive arguments advanced by Mr. Mangalam. We do agree with the learned Additional Advocate General-1 Mr. Lalit Kishore that the impugned proviso does not in any manner contravene any of the provisions of the Constitution much less Article 243P(e) of the Constitution. We see no substance in the challenge to the constitutional validity of the impugned proviso. The challenge is rejected. Writ petition is dismissed in limine. Prakash/Pawan (R.M. Doshit, CJ) (Birendra Prasad Verma, J)