Case: Afzal Imam Vs. State Of Bihar

4. Facts leading to this appeal:-The Election to the Patna Municipal Corporation was held sometime in May/June, 2007. The Municipal Corporation has 72 members. After the election of the Municipal Corporation, the councillors elected one Shri Sanjay Kumar as the Mayor and one Shri Santosh Mehta as the Deputy Mayor. Two years later, no confidence motions were moved against both of them on 13.6.2009, and were passed on 14.7.2009. As far as the motion against the Mayor is concerned, we are informed that 42 members voted in favour thereof and 28 opposed it. One member is reported to have remained absent being in jail, and one had died.5. The above referred Sanjay Kumar challenged the decision on the no confidence motion by filing a Writ Petition bearing No. 8603 of 2009. A Learned Single Judge of the Patna High Court who heard the petition, initially granted a stay on the fresh election being held to fill the vacancy in the post of Mayor arising out of the no confidence motion. Ultimately the petition was allowed. That decision was challenged in an appeal to the Division Bench of the Patna High Court, and the Division Bench set aside that order by its judgment dated 14.5.2010. Shri Sanjay Kumar challenged the decision of the Division Bench by filing Special Leave Petition No. 16578/2010. A prayer was made to this Court that the election to fill the vacancy should not be permitted. This Court did not grant that prayer, but vide its order dated 31.5.2010 directed that the subsequent election will be subject to the decision on this SLP. (It is relevant to place it on record at this stage that this Writ Petition came to be dismissed by this bench by its separate order passed on 3.2.2011).6. In view of the order passed by this Court on 31.5.2010, a notice was given on 3.6.2010, and a meeting was accordingly convened on 14.7.2010 wherein the appellant was elected as the Mayor of the Municipal Corporation. We are informed that the he obtained 44 votes and Shri Sanjay Kumar 18 votes, a third candidate 9 votes and 1 vote was rejected. The appellant was given the oath of his office on the same day. On his election, he nominated 7 councillors to be the members of the Empowered Standing Committee of the Municipal Corporation as per the provision of section 21 (3) of the Bihar Municipal Act. He requested the District Magistrate (D.M.) of Patna to give them oath of secrecy as per section 21 (4) read with section 24 of the Act, but the D.M. declined to do so, in view of the decision of a Full Bench of the Patna High Court dated 11.5.2010 in LPA No.618 of 2010 holding that such nomination by the Mayor is only a one time Act. In that decision, the Full Bench had upleld the Govt. Memo No.6020 dated 12.12.2009 to the effect that notwithstanding change of Mayor/Chief Councillor, the Empowered Standing Committee as nominated earlier shall continue.7. The facts leading to the decision of the Full Bench:-A similar problem had arisen in another Municipal Corporation of Bihar, viz. Ara Municipal Corporation. One Jagdish Singh who was elected as a councillor of Ara Municipal Corporation, filed a Writ Petition bearing CWJC NO. 9380 of 2008 to challenge the constitutional validity of the above referred section 27, on the ground that although there was a provision for the removal of the Chief Councillor (or Mayor) in section 25 of the Act, there was no similar provision for removal of the members of the Empowered Standing Committee. Once the councillors were nominated to the Empowered Standing Committee, they continued to be members of that committee so long as they remained councillors. There was a lack of any provision for removal of members of the Empowered Standing Committee, and the members of such committee had been given unguided and unbridled power. The Division Bench negated that contention by holding that a member of the Municipal Council, if he is nominated as a member of the Empowered Standing Committee, can either be recalled under section 17 of the Act, or if he incurs disqualification for holding the post as a member, and an order of removal for such disqualification is passed under section 18 (2), his membership of the Empowered Standing Committee ipso facto comes to an end. The bench, therefore observed:-"In this view of the matter, even if there was no specific provision for removal of the members of the Empowered Standing Committee, there is enough mechanism under the Act, 2007 that cessation of membership to the municipality automatically brings to an end the membership of the Empowered Standing Committee".The High Court therefore repelled the challenge to the constitutionality of Section 27 of the Act. This Division Bench rendered its decision on 14.11.2008 which is reported in 2009 (2) PLJR at page 394 in the case of Jagdish Singh v. State of Bihar.8. It so transpired that in another Municipal Corporation, namely Gaya Municipal Corporation, the Mayor of the Municipal Corporation expired, and one Sagufta Parween was elected as a new Mayor in that vacancy. She wanted to nominate her nominees on the Empowered Standing Committee, but was not allowed to do so in view of the above referred Government Direction in Memo No. 6020 dated 18.12.2009, to the effect that notwithstanding the change of Mayor or Chief Councillor, the Empowered Standing Committee of the Municipal Corporation, as nominated earlier, would continue. Meaning thereby, that the Mayor/Chief Councillor newly elected would not have the power to nominate members of the Empowered Standing Committee of the Corporation in terms of section 21 (3) of the Municipal Act. Smt. Sagufta Parween challenged that Government Direction by filing CWJC No. 1067 of 2010 which was heard by a Single Judge, who held that the aforesaid Government Direction was contrary to the statutory provisions and the statutory scheme. The Learned Single Judge therefore, allowed the Writ Petition and directed that the necessary consequences will accordingly follow. This Judgment of the Learned Single Judge dated 23.2.2010 is reported in 2010 (2) PLJR at page 1072.9. Being aggrieved by this judgment of the Single Judge, one Jitendra Kumar Verma and others filed LPA No. 618 of 2010. When this LPA came up before a Division Bench, it took note of the above referred Division Bench decision rendered in Jagdish Singh vs. The State of Bihar & Ors. (Supra), and thought it appropriate that the matter should be heard by a larger Bench. That LPA, therefore, came to be decided by a Full Bench. The Full Bench in its decision dated 11.5.2010 followed the decision of the Division Bench in the case of Jagdish Singh (Supra), and held in paragraph 19 of its judgment reported in 2010 (3) PLJR 285 that the appointment of the members of the Empowered Standing Committee was a one time act. The full bench therefore allowed the appeal and set aside the order passed by the learned Single Judge.10. On this background, after the appellant in the present appeal was elected as the Mayor of Patna, he nominated his nominees on the Empowered Standing Committee. However, the D.M., Patna declined to administer the oath of office to them. The appellant therefore filed Writ Petition bearing No. 9981 of 2010 for a declaration that section 27 of the Act is ultra vires to the provisions of the Constitution of India and to section 21 of the Act, and alternatively to read down section 27 of the act. The appellant also prayed for a Writ of Mandamus commanding the respondent D.M., Patna to administer oath of office to those nominees. The Division Bench which decided the petition, noted in its order that the petition had sought to challenge the constitutional validity of section 27 of the Bihar Municipal Act, 2007 for being contrary to section 21 of that Act. It, however, noted that the matters at issue were squarely covered by the decision of the Full Bench in Jitendra Kumar Vs. State of Bihar (Supra). The bench, therefore, passed an order dated 8.7.2010 that for the reasons recorded by the Full Bench, this petition was dismissed in limine. This order is being challenged in this Appeal by Special Leave wherein the issues which are mentioned at the outset of this judgment have been raised for our consideration.

Reasoning:
27. Thus, it will be seen that the Bihar Municipal Act is quite a comprehensive Act, and as noted earlier the executive powers of the Municipality are vested in the Empowered Standing Committee under section 22 of the Act. The members of this Empowered Standing Committee are nominated by the Mayor. After a Mayor is removed, and another Mayor is elected in his place, if the new Mayor is not allowed to nominate his nominees on the Empowered Standing Committee, it is likely to result into a situation of conflict. This is apart from the fact that the new Mayor will be treated dissimilarly with the earlier Mayor, although both of them are elected by the same full House and there is no justifiable reason for making any distinction. The fact that a councillor is elected as the Mayor immediately after the general election to the Municipality, and he nominates seven councillors on the Empowered Standing Committee, cannot make this act of nomination as a one time act, nor does the enactment say so.Apart from the aforesaid resultant administrative difficulty, if a literal interpretation of section 27 is followed alongwith adding words in section 21 (3) as pointed out above, the newly elected Mayor will be treated dissimilarly for no justifiable distinction. In that case, as against the earlier elected Mayor he will not permitted to have his nominees on the Empowered Standing Committee. A literal interpretation of section 27 of the Act will clearly bring it in conflict with section 21 (3) of the Act, and will also be violative of Article 14 of the Constitution of India as held by the Constitution Bench of this Court way back in State of West Bengal Vs. Anwar Ali Sarkar, reported in [AIR 1952 SCabove overview clearly shows that after the 74th Amendment to the Constitution, the Municipalities are strengthened and they are given wide ranging powers. The Municipal Laws in other states which we have seen clearly demonstrate that wherever Mayor-in-Council system is adopted, the tenure of the members in the Council is made co-terminus with that of the Mayor. The idea is that the Mayor should have the confidence of the Executive Council or the Empowered Standing Committee, as the case may be, apart from that of the House. The members of the Empowered Standing Committee are authorized to answer the questions on behalf of the Empowered Standing Committee under the Bihar Municipal Act. Thus, there is an element of collective responsibility. The Empowered Standing Committee is supposed to function on the basis of the principle of Democratic Governance in the sense that the decisions are to be taken by the majority. If the new Mayor is not permitted to have his nominees on the Empowered Standing Committee, the collective functioning will be under jeopardy. Thus, there is a clear omission in the Bihar Municipal Act, 2007 in this behalf.38. As noted above, the interpretation sought to be placed on section 27 by the respondents requires addition of words in section 21 (3) of the Act. Even after adding the necessary words, the result will be incongruous to a democratic functioning in as much as the nomination on the Empowered Standing Committee will be a one time act and the newly elected Mayor will be at the mercy of the other members of the Empowered Standing Committee. Such a reading will be also be contrary to section 21 of the Act and the newly elected Mayor will be treated dissimilarly as against the earlier elected Mayor for no justifiable reason. Thereby section 27 will be ultra vires to Article 14 of the Constitution. The legislature cannot be attributed such an intent. On the other hand, reading section 27 by making a cross-reference and making the same subject to sections 25 (4), 23 (3), 21 (3) and 21 (4) will lead to a harmonious functioning of the Municipal Corporation and will also save the section from being ultra vires Article 14. The judgment of the Division Bench of the Patna High Court in Jagdish Singh Vs. State of Bihar (supra) and that of the full bench of that Court in Jitendra Kumar Vs. State of Bihar (supra) do not lay down the correct legal position and are overruled.