Afzal Imam vs State Of Bihar & Ors

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 5 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:-

(i) the preparation of plans for economic development and social justice;

Part VI deals with Urban Environmental Management, Community Health and Public Safety.

Chapter 28 is on local agenda for Urban Environmental Management, Chapter 29 on Environmental Sanitation and Community Health, Chapter 30 on restraint of infection, Chapter 31 on disposal of the dead, Chapter 32 on Urban Forestry, Parks, Gardens, Trees and Playgrounds.

Part VII deals with the Regulatory Jurisdiction, and contains chapters on Development Plans, Improvement, Public Streets, Buildings, Municipal Licences, Vital Statistics, Disaster Management and Industrial Townships.

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 29 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.

This being the breadth of the executive power of the Empowered Standing Committee, the newly elected Mayor will not be able to exercise the 31 same effectively and the entire municipal governance will come in jeopardy, if the other members on the Committee are not his nominees.

in Srinivasa and we find no reason to depart from the Court's construction."

(emphasis supplied)

(emphasis supplied)

State trade and commerce and sales which occasioned import of goods.

37. Conclusions The above 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 42 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.

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.

39. In the circumstances, we allow this appeal. Impugned judgment and order passed by the Division Bench of the Patna High Court in Writ Petition 43 bearing No. CWJC 9981/2010, dated 8th July, 2010, is set aside. The said writ petition filed by the appellant herein stands allowed in part. Section 27 of the Bihar Municipal Act 2007, shall be read down harmoniously with and subject to sections 25 (4), 23 (3), 21 (3) and 21 (4) of the said Act. The respondent no.3, the District Magistrate, Patna, Bihar is consequently directed to administer the oath of secrecy under Section 24 of the Act to the seven Municipal Councillors nominated by the appellant to the Empowered Standing Committee. The appellant as well as the members of the Empowered Standing Committee shall be entitled to exercise all the powers as the Mayor and the members of the Empowered Standing Committee as provided in the Bihar Municipal Act, 2007, in accordance with law.

40. Parties will bear their own costs of the proceedings.