IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.733 of 2010 1. VINAY KUMAR “PAPPU” @ BINAY KUMAR “PAPPU” S/O LATE DR. SURENDRA NATH RAI YADAV R/O MOH - GORIYA TOLI, P.S. KOTWALI, DISTT-PATNA 2. DR. GOPAL PRASAD, S/O LATE RAM CHARITRA GOPE, R/O MOH - BHIKHA CHAK, ANISHABAD, P.S.-GARDANIBAG, DISTT-PATNA 3. SUNIL KUMAR, S/O LATE SHYAM NANDAN PRASAD, R/O MOH PAHARPUR, POLICE COLONY, ANISHABAD, P.S.GARDANIBAG, DISTT-PATNA 4. ASHOK KUMAR, S/O SRI RAM SWAROOP PRASAD R/O 174, TYPE-II, P&T COLONY, KIDWAIPURI, P.S. BUDHA COLONY, DISTT-PATNA 5. BINOD KUMAR @ BINDO KUMAR S/O SRI JANAK PRASAD R/O MOH PUNAICHAK, P.S.SHASTRI NAGAR, DISTT-PATNA 6. MUKESH KUMAR @ MUKESHWAR KUMAR S/O SRI NAWAL KISHORE PRASAD, R/O MOH CHANDPUR BELA, P.S. JAKKANPUR, DISTT-PATNA 7. SANJAY KUMAR SINGH S/O SRI MOHAN PRASAD SINGH R/O MOH DIGHA GHAT, PATIPUL, P.O.& P.S.DIGHA, DISTT- PATNA 8. BALESHWAR SINGH S/O LATE PUNIT MAHTO R/O MOH PURENDRAPUR, P.S. JAKKANPUR, DISTT-PATNA 9. ABHA LATA, W/O SRI RAMESH KUMAR R/O MOH SHERULLAHPUR (NANDGAON), P.S.SHASTRI NAGAR, DISTT- PATNA ………………………. RESPONDENTS – APPELLANTS Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT 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 2 7. THE ADDITIONAL DISTRICT MAGISTRATE (GENERAL), PATNA 8. MALTI DEVI, W/O NOT KNOWN, WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 9. SUNITA PRITAM, W/O NOT KNOWN, WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 10. JYOTI GUPTA, W/O NOT KNOWN, WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION, PATNA 11. JAI NARAIN SHARMA, S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION, PATNA 12. BALRAM CHAUDHARY, S/O NOT KNOWN, WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION, PATNA 13. MOHAMMAD KURAISHI, S/O NOT KNOWN, WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION, PATNA 14. PRABHA DEVIM W/O NOT KNOWN, WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 15. MUMTAZ JEHAN, W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 16. SUDHIR KUMAR S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 17. TARA DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 18. PRAMILA SINGH W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 19. MITHILESH KUMAR SINHA S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 20. ARJUN KUMAR YADAV S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 21. URMILA DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 22. AMRITA SINGH W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 23. TOTA CHAUDHARY S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 24. PINKI YADAV W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 25. PRATIMA YADAV W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 3 26. MANOJ KUMAR S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 27. GITA DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 28. SHAHZADI BEGUM W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 29. ARUN KUMAR CHAUDHARY S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 30. RAJ KAPOOR YADAV S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 31. MADHU DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 32. ARTI DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 33. SUNITA KUMARI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 34. DHANRAJ DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 35. AFZAL IMAM S/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION , PATNA 36. SUDHA DEVI W/O NOT KNOWN WARD COUNCILOR OF THE PATNA MUNICIPAL CORPORATION, PATNA …………………………RESPONDENTS - RESPONDENTS 37. SANJAY KUMAR S/O LATE BULKAN PRASAD R/O MOH BHAWAR POKHAR, P.S.PIRBAHORE, TOWN & DISTT-PATNA 38. SANTOSH MEHTA S/O LATE AYODHA PRASAD R/O CHOWK SHIKARPUR, PATNA CITY, P.S.CHOWK, DISTT- PATNA …………………… PETITIONERS – RESPONDENTS. ----------- For the Appellants : Mr. S.B.K. Mangalam, Advocate. For the State : Mr. P.K. Shahi, Advocate General and Mr. Harendra Prasad Sinha, Advocate. For the Corporation : Mr. Chandra Shekhar, Sr. Advocate and Mr. Bishun Bibhuti Kumar Sinha, Advocates ------------ 4 PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (14.05.2010) As per Dipak Misra, C.J.- The present intra-Court appeal has been directed against the order dated 02.04.2010 passed by the learned single Judge in CWJC No. 8603 of 2009. 2. The exposé of facts which are imperative to be stated for adjudication of this appeal are that the writ petitioners – respondents no. 37 and 38 to this appeal were elected as Chief Councillor and Deputy Chief Councillor of Patna Municipal Corporation under the Bihar Municipal Act, 2007 (for brevity `the Act’). A requisition was moved for holding a special meeting for considering No Confidence Motion against them in the absence of the rules as required under the Act. A circular under Memo No. 2360 dated 22.06.2009 was issued by the State Government stipulating that when a requisition is moved for removing the Chief Councillor and the Deputy Chief Councillor simultaneously, it shall be the duty of the District Collector to fix a date and also his obligation to 5 preside over the meeting. It is worth noting that at the time the requisition was moved, the said circular had not come into existence. The Chief Councillor fixed the date on 14.07.2009 for holding a special meeting. The Town Commissioner of the Corporation then informed the District Magistrate that in view of the aforesaid circular dated 22.06.2009, he was required to preside over the meeting. The District Magistrate-cum-Collector, Patna authorized an Additional District Magistrate to preside over the meeting. As is manifest from the material on record, the meeting was held on 14.07.2009 and the Chief Councillor lost the confidence of the House by 39 to 30 votes whereas the Deputy Chief Councillor lost the confidence of the House by 42 to 28 votes. As the vacancies came into existence, information was sent to the State Election Commission (for short `the Commission’) and the Commission announced the date and programme for fresh election of the Chief Councillor and Deputy Chief Councillor. 3. The said respondents, being grieved by the aforesaid action, invoked the jurisdiction of this Court 6 under Article 226 of the Constitution of India and the writ Court directed stay of the election by way of issuing an interim direction. 4. It was contended before the writ Court that in the absence of any rules, the vote of no confidence could not have been mooted and the government circular that has been issued on 22.06.2009 is a direct infringement of the democratic set up of local self government. It was also canvassed before the learned single Judge that the meeting could not have been presided over by the District Magistrate or the Additional District Magistrate as they have no role under the Act. The aforesaid submissions were combatted by the present appellants contending, inter alia, that even if the rules have not been framed, a vote of no confidence could be mooted against the Chief Councillor or the Deputy Chief Councillor. 5. The learned single Judge placed reliance on the decision rendered in Pawan Kumar Purvey v. The State of Bihar & Ors., 2010 (1) PLJR 272 wherein the executive circular dated 22.06.2009 was declared invalid and, consequently, the proceedings conducted in 7 pursuance thereof were not sustainable in law, the same having been conducted under the said circular. 6. Being of this view, the learned single Judge allowed the writ petition and expressed the view that the writ petitioners had not lawfully lost the confidence of the House and shall not be deemed to be lawfully removed. 7. Questioning the legal substantiality of the aforesaid order passed by the learned single Judge, Mr. S.B.K. Mangalam, learned counsel for the appellants, has raised the following submissions: (a) The learned single Judge has fallen into grave error by expressing the opinion that without the rules being in force, a vote of no confidence motion could have been mooted against the writ petitioners. (b) Even if the circular dated 22.06.2009 is invalid, the meeting had been held where the Councillors had participated and the requirement under Section 25(4) of the Act has been satisfied, therefore, the vote of no confidence should have been given the stamp of approval. 8 (c) The writ petitioners had participated from the beginning till the end and at no point of time raised any kind of protest and, therefore, they have waived their right to challenge the proceedings after losing the confidence of the House. (d) The right that has been waived by the writ petitioners is the individual right and does not involve any public interest and, therefore, their participation would invite the doctrine of waiver but the same has not been considered by the learned single Judge and the impugned order has been passed which makes it unsustainable in law. (e) The meeting once having been called and carried to the logical end, the writ petitioners cannot take a somersault and attack or assail the procedure in the meeting solely on the ground that the Additional District Magistrate presided over the same. (f) The matter would have been different had the Additional District Magistrate played any role in the meeting by exercising his casting vote as 9 engrafted under Section 51 of the Act. (g) The ultimate concept of democracy lies in the manner in which the majority reacts and not by a technical flaw as such a flaw cannot destroy the basic democratic set up. (h) The learned single Judge has totally erred by applying the principle that if the 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 inasmuch as such a principle would not apply in stricto sensu to the case at hand as the doctrine of waiver gets squarely attracted. 8. Mr. Y.V. Giri, learned senior counsel for the respondent no. 6, per contra, advanced the following contentions: (i) The order passed by the learned single Judge cannot be faulted as he has held that the Government circular dated 22.06.2009 having no force of law, any consequent action taken on the basis of the said circular has to pave the path of 10 extinction. (ii) The finding of the learned single Judge to the effect that a non-elected person cannot be allowed or permitted to intrude in the democratic exercise of power and be conferred the authority of casting vote as the same is inconceivable in the scheme of things is absolutely flawless and warrants no interference. (iii) The formation of corporation and election of the Chief Councillor and Deputy Chief Councillor which is the sole object of the Act and their basic source lies with the constitutional requirement under Part 9A of the Constitution which was introduced by the 74th Amendment and, therefore, the democratic form of local self- government cannot be remotely upset by executive interference in the absence of a legislative provision and, hence, the meeting cannot be presided over by an outsider and, if it is done, it goes to the very root of the matter that destroys the democratic process. Therefore, the infrastructure being violative of law, 11 the superstructure is bound to collapse failing which the democracy at the grass root level is likely to be corroded. (iv) The presence of the Additional District Magistrate in the meeting being totally impermissible, the possibility of influence and lack of free atmosphere cannot be totally ruled out and when a possibility of this nature comes into existence, the sanctity of voting, though may be a secret one, gets vitiated. (v) The legislature had intended the meeting to be presided over by a councillor and when that is not done, the principle that if the procedure is prescribed to do an act in a particular manner, it should be done in that manner and not in any other manner comes into full play. (vi) The doctrine of waiver which has been highlighted by the appellant has no applicability to the facts of the present case as an individual may by his own conduct waive a right or a protective facet which has been created for the protection of his 12 individual interest but there cannot be waiver or abandonment which involves public interest or public interest element. (vii) An elected candidate facing the House in a vote of no confidence motion waives his right by his conduct by participating in the meeting though there may not be fulfillment of certain requirements like issuing notice for specified period or not asking to address the house explaining his strength, etc. but when an outsider, contrary to the statutory provisions, intrudes and is permitted to preside over the meeting it falls within the realm of public interest element which cannot be waived by an individual as the meeting in its conceptual essentiality is the meeting of the House and cannot be presided over by a rank outsider and while the meeting is held in such a manner, the whole thing has to be lanceted. 9. To appreciate the submissions raised at the Bar, it is apposite to refer to Section 25 of the Act. “25. Removal of Chief Councillor/Deputy Chief Councillor.- (1) The Chief 13 Councillor/Deputy Chief Councillor shall cease to hold office as such if he ceases to be a Councillor. (2) The Chief Councillor may resign his office by writing under his hand addressed to the Divisional Commissioner and Deputy Chief Councillor may resign his office by writing under his hand addressed to the Chief Councillor. (3) Every resignation under sub-section (2) shall take effect on the expiry of seven days from the date of such resignation, unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Divisional Commissioner or the Chief Councillor, as the case may be. (4) The Chief Councillor/Deputy Chief Councillor may be removed from office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a requisition made in writing by not less than one- third of the total number of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be 14 prescribed: “Provided that a no confidence motion shall not be brought against the Chief Councillor/Deputy Chief Councillor within a period of two years of taking over the charge of the post: Provided further that a no confidence motion shall not be brought again within one year of the first no confidence motion: Provided further also that no confidence motion shall not be brought within the residual period of six months of the municipality. (5) “Without prejudice to the provisions under this Act, if, in opinion of the Divisional Commissioner having territorial jurisdiction over the Municipality the Chief Councillor/Deputy Chief Councillor absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Divisional Commissioner may, after giving the Chief Councillor/Deputy Chief Councillor a 15 reasonable opportunity for explanation, by order, remove such Chief Councillor from office. (6) The Chief Councillor/Deputy Chief Councillor so removed shall not be eligible for re-election as Chief Councillor/Deputy Chief Councillor or Councillor during the remaining term of office of such Municipality. Appeal shall lie before the State Government against the order of the Divisional Commissioner.” 10. In this context, we may refer with profit to Section 51 of the Act which reads as follows: “51. Presiding officer of a meeting of Municipality.- (1) The Chief Councillor shall preside at every meeting of the Municipality and in his absence the Deputy Chief Councillor shall preside the meeting: Provided that when a meeting is held to consider a motion for the removal of the Chief Councillor, the Chief Councillor shall not preside at such meeting. (2) The Chief Councillor, or the person presiding 16 over a meeting of the Municipality, shall also have, and may exercise, a casting vote in all cases of equality of votes”. 11. The Division Bench of this Court in Ruby Singh v. The State of Bihar & Ors., (LPA No. 1564 of 2009 & analogous cases), decided on 15.04.2010, has held thus: “14. On a reading of the said provision, it is clear as day that the Chief Councillor shall preside over the meeting and in his absence, the Deputy Chief Councillor shall do so. In the proviso, an exception has been carved out that the Chief Councillor shall not preside at such a meeting if the meeting has been convened to consider a motion for his removal. Sub-section (2) empowers the Chief Councillor or the person presiding over a meeting of the Municipality to exercise a casting vote in all cases of equality of votes. It can be stated by applying the deductive method that a person who has power to cast his vote can only preside over the meeting. If the scheme of the Act is read in proper perspective, there can be no scintilla of doubt that a Chief Councillor who has power to participate in the transaction has power to vote. Thus, a Chief Councillor can, 17 under certain circumstances, be asked to preside over the meeting. Such a contingency can be met with if there is a requisition to moot a motion of no confidence against the Chief Councillor and the Deputy Chief Councillor. No role can be ascribed to any person from the executive to preside over such a meeting. True it is, there are provisions in certain statutes where a meeting is held in the presence of the Executive Officer of the Municipality or by a Sub Divisional Officer or even by the District Magistrate, but in the said provisions, no power is conferred on them for casting vote in case of equality of votes but Section 51 of the Act has been differently couched and, therefore, the only conclusion that can be arrived at is that a meeting has to be presided over by the - 17 - Chief Councillor or the Deputy Councillor or the Councillor which would be in apposite and in fitness of thing in a democratic set up regard being had to the power conferred on the Municipalities under the Act. 15. In view of the aforesaid, the plea of the State Government that to meet a contingency of this nature, the executive instruction was issued does not deserve acceptance and, accordingly, we concur with the finding of the learned single Judge on that score.” 18 12. Thus, the finding of the learned single Judge that no circular could have been issued to fill up the lacunae cannot be found fault with. 13. The learned single Judge has opined that in the absence of rules, the meeting could not have been held as per the executive circular. In the case of Ruby Singh (supra), the Division Bench posed the question whether in the absence of the rule as provided under Section 25(4) read with Section 2(76), of the Act no meeting can be held for mooting a motion of no confidence and after referring to the decisions rendered in P. Kasilingam & Ors. V. P.S.G. College of Technology & Ors., AIR 1995 SC 1395, People’s Union for Civil Liberties (PUCL) v. Union of India & Anr., (1997) 1 SCC 301, Maneka Gandhi v. Union of India, (1978) 1 SCC 248, J.K. Industries Ltd. & Anr. v. Union of India & Ors., (2007) 13 SCC 673, Jagannath Prasad v. The State of Uttar Pradesh, AIR 1963 SC 416, Orissa State Prevention and Control of Pollution Board v. M/s Orient Paper Mills and Anr., AIR 2003 SC 1966, and Jantia Hill Truck Owners Association v. Shailang Area Coal 19 Dealer and Truck Owner Association & Ors., (2009) 8 SCC 492 expressed the view as under: “27. On a scrutiny of the scheme of the Act, we are of the considered opinion that it cannot be said that without laying down of the procedure for conduct of business in a special meeting under the rules, the provision as engrafted under Sections 25 and 51 of the Act cannot really be effectively carried out. The procedure to be adopted has to be fair. Appreciating the scheme of the Act in entirety, we notice that the Chief Councillor has been empowered to convene a meeting of the Municipality. In fact, Section 48 of the Act adequate guidance and safeguard. It is a well settled proposition of law that a statute has to be read as a whole to understand its object and purpose. On a reading of the provisions in entirety, we are of the considered view that a vote of no confidence can be mooted and carried out without framing of the rules and, hence, the provisions of the statute are workable.” 14. The next aspect that arises for consideration is whether the meeting presided over by the Additional District Magistrate would nullify the entire proceeding or 20 the meeting has to be held invalid as the same has been acquiesced to by the elected candidate who was facing a vote of no confidence motion. On a perusal of the pleadings and the material brought on record, it is evincible that the special meeting was convened by the Additional District Magistrate (General) and he presided over the meeting on 14th July, 2009. The Chief Councillor and the Deputy Chief Councillor were present and neither absented from the meeting nor declined to attend the vote of no confidence motion. The meeting continued and a vote of no confidence was passed against them. Though the learned counsel appearing for the parties have raised a number of submissions from various spectrums, yet three significant issues do emerge for consideration. First, whether when a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden and, hence, the meeting is null and void; secondly, whether the doctrine of waiver would get attracted as the affected parties participated in the meeting and being grieved by the result 21 thereafter have taken a somersault to challenge the same and thirdly, whether the action taken can be sustained regard being had to the will of the House which is a significant bedrock in a local self governanment or would get vitiated because of the meeting having been presided over by an outsider, namely, the Addl. District Magistrate (General). 15. In Hukam Chand Shyam Lal v. Union of India & Ors., AIR 1976 SC 789, the Apex Court has held thus: “18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative