IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 8603 of 2009 1 Sanjay Kumar, son of late Bulkan Prasad, resident of Mohalla – Bhawan Pokhar, P S – Pirbahore, Town & District – Patna 2 Santosh Mehta, son of late Ayodhya Prasad, resident of Chowk Shikarpur, Patna City, P S – Chowk, District – Patna - Petitioner Versus 1 The State of Bihar through the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna 2 The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna 3 The District Magistrate, Patna 4 The Commissioner, Patna Division, Patna 5 The Patna Municipal Corporation through its Urban Secretary, Patna 6 The Municipal Commissioner, Patna Municipal Corporation, Patna 7 The Additional District Magistrate (General), Patna 8 Sanjay Kumar Singh 9 Sunil Kumar 10 Ashok Kumar 11 Malti Devi 12 Sunita Pritam 13 Jyoti Gupta 14 Mukeshwar Kumar 15 Gopal Prasad 16 Baleshwar Singh 17 Binay Kumar Papu 18 Bindo Kumar 19 Jai Narain Sharma 20 Balram Chaudhary 21 Mohammad Kuraishi 22 Prabha Devi 23 Mumtaz Jehan 24 Sudhir Kumar 25 Tara Devi 26 Pramila Singh 27 Mithilesh Kumar Sinha 28 Arjun Kumar Yadav 29 Abha Lata 30 Urmila Devi 31 Amrita Singh 32 Tota Chaudhary 33 Pinki Yadav 34 Pratima Yadav 35 Manoj Kumar 36 Gita Devi 37 Shahzadi Begum 38 Arun Kumar Chaudhary 39 Raj Kapoor Yadav 40 Madhu Devi 41 Arti Devi 42 Sunita Kumari 2 43 Dhanraj Devi 44 Afzal Imam 45 Sudha Devi, all are Ward Councillors of the Patna Municipal Corporation, Patna - Respondents WITH CWJC No 8501 of 2009 Kumar Sanjeet, son of late Naresh Chandra Sinha, resident of A/136, Housing Colony, Lohia Nagar (Kankarbagh), P S – Kankarbagh in the Town and district of Patna - Petitioner Versus 1 The State of Bihar through the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna 2 The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna 3 The District Magistrate, Patna 4 The Commissioner, Patna Division, Patna 5 The Patna Municipal Corporation through its Urban Secretary, Patna 6 The Municipal Commissioner, Patna Municipal Corporation, Patna 7 The Additional District Magistrate (General), Patna 8 Sri Sanjay Kumar, Mayor, Patna Municipal Corporation, Patna. 9 Sri Santosh Mehta, Deputy Mayor, Patna Municipal Corporation, Patna. 10 Sunil Kumar 11 Ashok Kumar 12 Malti Devi 13 Sunita Pritam 14 Jyoti Gupta 15 Mukeshwar Kumar 16 Gopal Prasad 17 Baleshwar Singh 18 Binay Kumar Papu 19 Binod Kumar 20 Jai Narain Sharma 21 Balram Chaudhary 22 Mohammad Kuraishi 23 Prabha Devi 24 Mumtaz Jehan 25 Sudhir Kumar 26 Tara Devi 27 Pramila Singh 28 Mithilesh Kumar Sinha 29 Arjun Kumar Yadav 30 Abha Lata 31 Urmila Devi 32 Amrita Singh 33 Tota Chaudhary 34 Pinki Yadav 35 Pratima Yadav 36 Manoj Kumar 37 Gita Devi 38 Shahzadi Begum 39 Arun Kumar Chaudhary 3 40 Raj Kapoor Yadav 41 Madhu Devi 42 Arti Devi 43 Sunita Kumari 44 Dhanraj Devi 45 Afzal Imam 46 Sudha Devi, all are Ward Councillors of the Patna Municipal Corporation, Patna. -Respondents WITH CWJC No.9232 of 2009 Amrtia Singh, wife of Sri Jagannath Kishore, C/o-Sri Kishori Rai, Mohalla- New Punaichak, Boaring Road, Near Lalita Hotel, P.S.-Sri Krishnapuri, District-Patna. –Petitioner. Versus 1 The State of Bihar. 2 The Secretary, Urban Development and Housing Department, Government of Bihar, Patna. 3 State Election Commission, Bihar through the Secretary State Election Commission Bihar, Patna, Sone Bhawan, Third Floor Birchand Patel Marg, Patna-800001. 4 The Commissioner, Patna Division, Patna. 5 The District Magistrate, Patna cum District Election Officer (Nagar Palika) Patna. 6 The Patna Municipal Corporation through its Urban Development Secretary, Patna. 7 The Municipal Commissioner, Patna, Municipal Corporation, Patna. -Respondents. WITH CWJC No.9932 of 2009 Prabha Devi, W/o-Rajkumar, R/o-Mohalla-Chitragupta Nagar, Kankarbagh, P.O.-Lohiya Nagar, P.S.-Patrakar Nagar, Town-Patna, in the district of Patna. -Petitioner. Versus 1 The State of Bihar, through the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna. 2 The Chief Commissioner, Patna Municipal Corporation, Patna. -Respondents. *** For the petitioner : M/s Y V Giri, Sr Advocate & Markendeya Singh, Raghunath Singh, Kumar Rajeev, Indu Bhushan, Rajoday Satyajeet, Advocates For private respondents : M/s Dronacharya, Indu Bhushan, Bidhu Ranjan, Dr Poonam Kumari Singh, Akhileshwar Pandey, Advocates For the S t a t e : M/s Harendra Prasad, G A 6, S C I, Dr Kumar Amitesh, Babita Kumari, AC to SC I 4 For the Corporation : M/s Chandrashekhar, Sr Advocate Dr Poonam Kumar Singh, Bishwa Bibhuti Kr Singh, Advocates For the Commission : M/s R S Pradhan, Sr Advocate Sanjeev Nikesh, Advocate *** 7 02.04.2010 As pleadings are complete and a question of law is to be decided, with consent of parties, these writ petitions have been taken up for disposal at this stage itself, the issues being the same. The two petitioners of the first writ application are Mayor and Deputy Mayor of Patna Municipal Corporation who were removed by a vote of no confidence motion in a hotly contested manner. Their initial challenge was based on the ground that in terms of Section 25 (4) of the Bihar Municipal Act 2007, they could be removed by majority supporting vote of no confidence in a special meeting called for this purpose in the manner “prescribed”. “Prescribed” as is defined under the Act means prescribed by Rules. Thus, it is submitted that in absence of Rules being framed in this regard, no meeting for considering no confidence motion at all could be called. Secondly, it was submitted that the executive circular issued being Circular No 2360 dated 22.06.2009 (Annexure-3) could not take the place of Rules as required to be framed in terms of Section 25 (4) of the Act. It was then contended that even otherwise, a circular, as aforesaid, could not alter and amend substantive law as made by the legislature and anything done in pursuance of the said executive circular was invalid in law. 5 The facts are not in dispute. Petitioners of the first writ application were elected Councillors in the election for Patna Municipal Corporation under the Bihar Municipal Act, 2007. Thereafter, in the meeting of Councillors in the year 2007, they were duly elected as Mayor and Deputy Mayor of the Corporation. In terms of Section 25 (4), a requisition for special meeting for considering no confidence motion against the petitioners was moved on 13.06.2009 (Annexure-1). It may be noted that when this requisition was made, even the so-called executive circular was not in existence. Apparently, this requisition created a piquant problem. It was so because Section 51 of the Act provided that where a motion of removal of Chief Councillor (Mayor) is moved then he cannot preside over the meeting. It is Deputy Chief Councillor (Deputy Mayor) who would preside. Here, both Mayor and the Deputy Mayor were facing motions of no confidence. Apparently, in this situation, an executive circular was issued by the Government on 22.06.2009 dealing only with this contingency. This executive circular, which is Annexure-3 to the first writ petition, inter alia, provides that when requisition is made for removal of Mayor and Deputy Mayor simultaneously, it shall be made to the District Collector who shall fix a date and who shall preside over the meeting. There shall be no quorum and the District Magistrate would have the casting vote in case of tie. In the present case, the requisition having been made to the Mayor because at that time, the circular was not there, the 6 Mayor fixed 14.07.2009 as the date for holding the special meeting. The Town Commissioner of the Corporation then informed the District Magistrate that in view of the circular aforesaid dated 22.06.2009, he was required to preside over the meeting. Instead of himself presiding over the meeting, the District Magistrate –cum- Collector, Patna authorised an Additional District Magistrate to preside over the meeting. On the meeting being so held, the Mayor lost the confidence of the House by 39 to 30 votes whereas Deputy Mayor lost the confidence of the House by 42 to 28 votes. This having created vacancy, information was sent to the State Election Commission and State Election Commission then announced date and programme for fresh election of Mayor and Deputy Mayor which, by interim order earlier passed in this case, were stayed. Two primary contentions have been raised by Mr Giri, learned Senior Counsel appearing in support of the first writ petition. Firstly, he submits that a reference to Section 25 (4) would show that the manner in which the meeting has to be called and conducted for removal of the Mayor or the Deputy Mayor has to be prescribed by Rules. No rules having been framed, no such meeting could be conducted. He then submits that the State Government circular issued trying to fill up the lacuna of absence of rule is invalid in itself as that absence of rule cannot be filled up by executive orders. It is then submitted that this circular is a direct impingement and infringement of democratic principles of 7 local self-Government. It is an unauthorised intrusion by executive into democratic process of the Municipal Corporation. Mr Giri, in substance, submits that if a procedure is prescribed to do an act in a particular manner, it should be done in that manner and all other modes are necessarily prohibited, a principle of law well established since the case of Nazir Ahmad –Versus- King- Emperor since reported in AIR 1936 Privy Council 253 (2) which has consistently been followed by Courts in India including in the case of Hukam Chand Shyam Lal –Versus- Union of India & Others, AIR 1976 Supreme Court 789 and, in particular, paragraph-18 thereof. On the other hand, on behalf of the Councillors who oppose the petitioners, reliance was placed on the recent judgment of Apex Court in the case of Jantia Hill Truck Owners Association & Others –Versus- Shailang Area Coal Dealer and Truck Owner Association & Others since reported in (2009) 8 Supreme Court Cases 492 for the proposition that the executive power of the State extends to its legislative field and the same can be exercised by the executive irrespective of legislative backing in that regard. In other words, he submitted that in absence of statutory rules, executive instructions could be issued to fill up the gap. Firstly, I may note that in a recent decision of this Court in the case of Pawan Kumar Purvey & Another –Versus- State of Bihar & Others since reported in 2010 (1) PLJR 272, this Court has already held the aforesaid executive circular to be invalid and 8 ineffectual. That being so, actions taken in pursuant thereto cannot be upheld. One of the grounds on which the circular was invalidated was that it was an unnecessary intrusion of executive in democratic process. It was for the House to consider no confidence motion against its Mayor and Deputy Mayor. Why should a non-elected person be permitted to intrude in this democratic exercise of power? Not only was the Collector to preside but he was given the casting vote itself. Thus, the District Magistrate (executive) was being drawn into local Government politics directly. That is destructive of the democratic principles of self-Government. Here, I may also note that formation of Corporation and election of Mayor and Deputy Mayor now has the sanctity of Constitution. It is a constitutional requirement under Part IXA of the Constitution which was introduced by the 74th Constitutional Amendment. That democratic form of local self- Government cannot be upset by executive interference. That could have ended this case but as strong reliance has been placed on the judgment of Jantia Hill Truck Owners Association & Others (supra), it is necessary to deal with the submission. The submission by the counsel for the respondents, with aid of the said judgment, was that even where Rules were required to be framed and they were not framed, executive circulars could effectively fill the gap of the rules. In my humble view, that is not the judgment. In that case, the complaint of truck owners Association was that while they move loaded truck 9 through the State of Meghalaya, they had to, at different places, pay different kinds of fees. The Court was concerned only with charge levied and realised by weighbridges for weighing and granting certificate on the weighment to the trucks. The challenge before the High Court which was accepted was that this charge was a fee which would only be levied in accordance with Rules made under the Motor Vehicles Act. The situation is explained by the Apex Court in para-33 of the report wherein Apex Court held that the truck owners were required to obtain certificate for fulfilling the statutory obligation that they were not carrying overloaded trucks as was prohibited under the Motor Vehicles Act. They had to get the trucks weighed. That service cannot be free of charge. When private parties were permitted to set up weighbridges, they were entitled to reasonable profit. It was not the contention of the writ petitioners that the charges as fixed were exorbitant. Thus seen, the Court upheld the executive order by which charges were fixed. I may note here that the challenge was not from the side of the people who had installed the weighbridges but by people who were required to pay for getting their vehicles weighed. In my humble view, their Lordships have not held that where the procedure is specifically prescribed that a thing has to be done by rules to be framed then without framing rules, executive can rule by executive fiat especially when it affects rights of individual. Learned counsel for the respondents relies on paragraphs-29 and 30 of the said judgment wherein two earlier 10 decisions of the Apex Court has been quoted. The first is the case of T Cajee –Versus- U Jormanik (AIR 1961 Supreme Court 276). In that quotation itself, it is clear that their Lordships have noted as under : “it is better that where executive power impinges upon the rights of citizens it will have to be backed by appropriate law, but where executive power is concerned only with the personnel of the administration it is not necessary.” If anything in my view is, that judgment is against the respondents. Next noticed in paragraph-31 of the said judgment is the case of Surinder Singh –Versus- Central Government, (1986) 4 Supreme Court Cases 667. There again, the provision was for disposal of compensation pool property subject to the rules that may be made. The Apex Court held that the expression is “subject to rules” and not “by rules”. In absence of rules, nothing hindered the exercise of executive power. Thus, even this decision does not help the respondents. To the contrary, the principle of law that has been consistently followed by Courts in India is what is stated first in the case of Nazir Ahmad (supra) wherein it has been held that the procedure prescribed to do an act must be followed as doing that act in any other manner would be impliedly prohibited. Thus seen, Section 25 (4) of the Act stipulates that the special meeting has to be called in the manner prescribed. That prescription would be by rules and not by executive fiat, if not otherwise found in the Act. In the case of State of Madhya Pradesh & Another –Versus- Thakur Bharat Singh, a 11 Constitution Bench judgement of the Apex Court since reported in AIR 1967, Supreme Court 1170 when the case of Ram Jawaya Kapur –Versus- State of Punjab, AIR 1955 Supreme Court 549 was pressed, their Lordships, after analysing that judgment held thus : “… … … Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued.” Again in the case of Maganbhai Ishwarbhai Patel – Versus- Union of India & Another, a Constitution Bench judgment of the Apex Court since reported in AIR 1969 Supreme Court 783, in paragraphs-81 and 82, have, inter alia, held thus : “81. … … … But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty. “82. … … … If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.” Lastly, I may refer another Constitution Bench judgment of the Apex Court in the case of State of Orissa –Versus- Sudhansu Sekhar Misra & Others since reported in AIR 1968 12 Supreme Court 647 as to what is the precedent value of a judgment for the learned counsel for the respondents, relying on the case of Jantia Hill Truck Owners Association (supra), wanted to impress upon the Court that the Apex Court held that notwithstanding the rules not being framed, objects would be achieved by executive fiat. All I can say is that in the case of State of Orissa –Versus- Sudhansu Sekhar Misra (supra), it has been held that a judgment is an authority for what it decides and not what logically follows from it. It is an authority upon the facts as found notwithstanding generally of observations contained therein. As noted above, the Apex Court upheld the action of the executive merely because it was a charge for a service which was being rendered. In that view of the matter, I have no option but to hold that the meeting, as convened and consequently the proceedings thereof are not sustainable in law being conducted under the executive circular. The first writ application is allowed. As the first writ application is allowed, there shall be no necessity for a further election. It is declared that the petitioners have not lawfully lost the confidence of the House and shall not be deemed to be lawfully removed. Other writ applications are, accordingly, disposed of which either support the writ petitioners or oppose the writ petitioners or pray for an interim arrangement to be made. M.E.H./AFR (Navaniti Prasad Singh) 13