IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10582 of 2009 1. Aarti Devi wife of Akhilesh Kumar Singh, Resident of Village-Amawan, P.S. Bodh Gaya, District-Gaya, Ward No.3. 2. Pawan Kumar son of Sri Ramdeo Sao, Resident of New Taridih, P.S. Bodh Gaya, District-Gaya, Ward No.13. ……Petitioners. . Versus 1. The State of Bihar through the Principal Secretary, Urban Development and Housing Department, Govt. of Bihar, Patna. 2. The Commissioner, Magadh Division, Gaya. 3. The District Magistrate, Gaya. 4. The Secretary, State Election Commission, Patna. 5. The Executive Officer, Nagar Panchayat, Bodh Gaya. 6. The Additional District Magistrate (Land Ceiling) Gaya. 7. Ajay Kumar, son of Late Sukhdeo Mahto, Ward No.01. 8. Mahendra Pratap Singh, son of Late Madhusudan Mahto, Ward No.2. 9. Ram Charitar Choudhary, son of Late Basant Choudhary, Ward No.04. 10. Reshmi Devi, wife of Rambali Manjhi, Ward No.05. 11. Dhaneshwar Manjhi, son of name not known, Ward No.06. 12. Indu Devi, wife of Shankar Yadav, Ward No.07. 13. Dinesh Kumar Singh, son of name not known, Ward No.08. 14. Jay Singh, son of name not known, Ward No.09. 15. Yamuna Devi, wife of Rajiv Ranjan, Ward No.10. 16. Jai Ram Bhagat, son of Ram Awatar Bhagat, Ward No.11. 17. Ram Sewak Singh, son of Late Bogi Singh, Ward No.12. 18. Kamala Devi, wife of Ajay Kumar Singh, Ward no.14. 19. Saroj Devi, wife of Dr. P.C.Rai, Ward No.15. 20. Kanti Devi, wife of Ramji Manjhi, Ward No.16. 21. Lalita Devi, wife of Vijay Kumar Manjhi, Ward No.17. 22. Priti Singh, wife of Suresh Singh, Ward No.18. 23. Arun Ravidas, son of Gauri Das, Ward no.19. Serial nos. 07 to 23 all are members of Ward Councillors of Gaya Nagar Panchayat, Bodh Gaya, District-Gaya. ………Respondents. ----------- For the petitioners : Mr. Yogesh Chandra Verma, Senior Advocate. Mr. Indradeo Prasad, Advocate. For respondent nos. : Mr. Madan Mohan Prasad, Advocate. 7, 9, 12, 16, 20& 23 Mr. Kishore Kumar Jha, Advcate For respondent nos. : Mr. Y.V.Giri, Senior Advocate. 8, 10, 11, 13, 14, 15, Mr. Ashok Kumar, Advocate. 17, 18, 19, 21& 22 - 2 - For the State : Mr. Prashant Kashyap, Advocate. For the Election Commission : Mr. Sanjeev Nikesh, Advocate. ------- 08/ 12.07.2010 Heard learned counsel for the petitioner, learned counsel for respondent nos. 7, 9, 12, 16, 20 and 23 as well as learned counsel for respondent nos. 8, 10, 11, 13, 14, 15, 17, 18, 19, 21 and 22. This writ petition is being finally heard and decided at this stage itself at the instance of learned counsel for the parties. 2. This writ petition has been filed by the petitioners for quashing proceedings of motion dated 03.08.2009 (Annexure-3) by which no confidence motion was passed against the petitioners who were respectively Chairman and Vice-Chairman of Nagar Panchayat, Bodh Gaya and also for quashing letter No. Na. Ni. 50- 24/2009-1425 dated 11.08.2009 (Annexure-7) issued by the Secretary, State Election Commission, Bihar and forwarded to the District Magistrate-cum- District Returning Officer, Gaya Municipality wherein it was stated that the election of the vacant posts of Chairman and the Vice-Chairman of Nagar Panchayat, Bodh Gaya was scheduled to take place on 25.08.2009. 3. Learned counsel for the petitioner vehemently challenges the impugned orders and states that requisition was made by 11 out of 19 members of the aforesaid Nagar Panchayat on 22.07.2009 (Annexure-1), whereafter notice dated 30.07.2009 (Annexure-2) was issued by the Executive Officer, Nagar Panchayat, Bodh Gaya calling for no confidence motion to be held on 03.08.2009 without mentioning the ground on which the - 3 - requisition was made. It is also stated that on 03.08.2009 (Annexure-3) no confidence motion was passed against petitioner no.1 in which 11 members of the Nagar Panchayat supported the motion and remaining 8 opposed it. Similarly no confidence was passed against petitioner no.2 in which 12 members supported the motion and remaining 7 opposed it. 4. Learned counsel for the petitioner further claims that no confidence motion was a nullity as the notice dated 30.07.2009 (Annexure-2) was issued without the legal requirements of mentioning the grounds/allegations made against the petitioners. He further relies upon a decision of a Division Bench of this court dated 25.06.2010 passed in L.P.A.No.840 of 2010 (Sanjay Kumar Vs. Asha Devi & others) in which it was held as follows: “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 disentitle herself from the benefit of restoration to the office from which she was illegally removed.” - 4 - 5. Learned counsel for the petitioners also submits that reliance placed by the contesting respondents upon order dated 14.05.2010 passed by the Division Bench of this court in L.P.A.no.733 of 2010 (Vinay Kumar “Pappu” @ Binay Kumar “Pappu” & Ors. Vs. The State of Bihar & Ors.) is not legal and proper as the said judgment has been challenged in Special Leave to Appeal (Civil) No.16578 of 2010 in which the Supreme Court has directed issuance of notice vide order dated 31.05.2010 and the matter is still pending. The claim of the petitioners is supported by respondent nos. 7, 9, 12, 16, 20 and 23, who are 6 out of 19 members of the Nagar Panchayat, Bodh Gaya. 6. On the other hand, learned counsel for respondent nos. 8, 10, 11, 13, 14, 15, 17, 18, 19, 21 and 22, who are 11 out of 19 members of the Nagar Panchayat, Bodh Gaya contests the claim of the petitioners and submits that the notice for no confidence motion has been issued at the instance of petitioner no.1 himself and furthermore, the petitioners had not raised objection at the time of no confidence motion which has been passed in accordance with law and hence the prayer made by the petitioners in the instant writ petition is absolutely frivolous and cannot be allowed. The claim of these respondents is also supported by learned counsel for the State and its authorities (respondents nos. 1 to 6) 7. After hearing learned counsel for the parties and after perusing the materials on record it is quite apparent that admittedly - 5 - the request was made by majority of the members of the Nagar Panchayat in which specific allegations against the petitioners were enumerated. This is quite apparent from a copy of the requisition dated 22.07.2009 attached to this writ petition as Annexure-1. So far the consequent notice dated 30.07.2009 (Annexure-2) is concerned, no doubt it did not contain the allegation against the petitioners, but it is quite apparent from a plain reading of the said notice that it was issued by the Executive Officer of the Nagar Panchayat at the instance of the petitioner no.1 himself on the basis of the said requisition. Hence, he had full knowledge and information with respect to the allegations raised by majority of the members against the petitioners in the requisition. 8. It is also not in dispute that after the issuance of the said notice no objection was ever raised by the petitioners with regard to the notice or the procedure adopted in the no confidence motion nor the petitioners raised any protest in the no confidence motion in which both of them participated. Now after the process of the motion has been completed and concluded this writ petition has been filed relying upon the decision of the Division Bench of this court in case of Sanjay Kumar (supra). 9. So far the order passed by a Division Bench of this court in case of Vinay Kumar “Pappu” (supra) is concerned, it has been specifically held by a Division Bench of this court as follows:- “26. …………..Thus, it has to be treated in the - 6 - realm of individual interest. As the Chief Councillor or the Deputy Chief Councillor faces the House for vote of no confidence motion and, if he has participated in the proceeding and acceded to the procedure, he/she can waive it. The doctrine of waiver, thus, gets squarely applied.” “34. The Chief Councillor and the Deputy Chief Councillor accepted the circular and conducted the meeting. At that juncture, the authority could preside over the meeting. Nothing has come on record that the said authority interdicted during the meeting or did anything which could cause any kind of prejudice. The situation of casting vote did not arise. We are disposed to think that when a particular action has been taken and the said action is not bad, the concept of de facto doctrine would come into play on fours. The action would not be vitiated because the notification was afterwards declared invalid. Thus, apart from the principle of waiver, by applying the de facto doctrine, the vote of no confidence which has been mooted and passed by the house cannot be found fault with.” 10. The aforesaid order of the Division Bench of this court passed in L.P.A.No. 733 of 2010 was challenged in Special Leave to Appeal No.16578 of 2010 in which a prayer for stay of the operation of the order passed in the said L.P.A. was sought for which was refused by the Supreme court and only notice was directed to be issued against the respondents of the said case. However, in June, 2010 the election has been held in that case and office bearers have been elected and the selected persons are duly functioning. In the said circumstances, mere issuance of notice by the Supreme Court cannot be deemed to stay the operation of the order passed in case of Vinay Kumar “Pappu” in the above mentioned letters patent appeal. 11. In view of the aforesaid settled principles of law, it - 7 - is quite apparent that the petitioners were fully aware of the allegations made in the requisition and the notice having been issued at the instance of petitioner no.1 himself he cannot legally take any objection to the said notice issued at his instance. Furthermore, after the notice no objection having been raised and even at the time of no confidence no protest having been made and furthermore, the participation of the petitioners in the no confidence motion in the aforesaid facts and circumstances clearly applies doctrine of waiver squarely. Apart from the principle of waiver, if the doctrine of de facto is applied to the instant case the vote of no confidence motion which has been passed by the house cannot be legally found to be erroneous. 12. So far the decision of this court in case of Sanjay Kumar (supra) is concerned, it was passed in completely different sets of facts which are not similar to the facts of the instant case, rather this case is governed by the principle of law laid down by a division bench of this court in case of Vinay Kumar „Pappu‟ (supra). 13. In the aforesaid facts and circumstances, this court does not find any illegality either in the notice of no confidence motion or in the no confidence motion itself. Accordingly, this writ petition is dismissed. Sunil (S. N. Hussain, J.)