IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.17463 of 2009
SUNITA DEVI W/O SRI VISHNU RAM R/O MOH- BARAH
PATHAR, P.O- DEHRI, P.S- DEHRI, DISTT- ROHTAS,
PRESENTLY THE CHIEF COUNCILOR OF DEHRI-
DALMIYANAGAR NAGAR, PARISHAD, DISTT- ROHTAS AT
SASARAM.
.... PETITIONER.
Versus
1. THE STATE OF BIHAR.
2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND
HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA.
3. THE DISTRICT MAGISTRATE, ROHTAS AT SASARAM, DISTT-
ROHTAS.
4. THE SUB-DIVISIONAL OFFICER, DEHRI-DALMIANAGAR,
SUB-DIVISION, DISTT- ROHTAS AT SASARAM.
5. THE EXECUTIVE OFFICER, NAGAR PARISHAD, DEHRI-
DALMIYANAGAR, DISTT- ROHTAS AT SASARAM.
6. SMT. BINDA DEVI W/O SRI MANISH KUMAR SINGH @ BITU
SINGH, PRESENTLY THE DEPUTY CHAIRMAN OF DEHRI-
DALMIYANAGAR, PARISHAD, DISTT- ROHTAS AT
SASARAM.
7. SRI SATYENDRA SINGH S/O NOT KNOWN TO THE
PETITIONER,
8. SMT. PRABHA DEVI W/O NOT KNOWN TO THE PETITIONER,
9. SRI AMARENDRA KUMAR S/O NOT KNOWN TO THE
PETITIONER,
10. SMT. RINKI DEVI W/O NOT KNOWN TO THIS PETITIONER,
11. SMT. ANSUNI DEVI W/O NOT KNOWN TO THE PETITIONER,
12. SMT. SNEHLATA W/O NOT KNOWN TO THE PETITIONER,
13. SMT. SUSHMA DEVI W/O NOT KNOWN TO THE PETITIONER,
14. SRI KRISHNA KUMAR S/O NOT KNOWN TO THE PETITIONER,
15. SRI UPENDRA SINGH S/O NOT KNOWN TO THE PETITIONER,
16. SRI SATYENDRA KUMAR SINGH S/O NOT KNOWN TO THE
PETITIONER,
17. SMT. LALSO DEVI W/O NOT KNOWN TO THE PETITIONER,
18. SRI KAMLESH KUMAR SHARMA, S/O NOT KNOWN TO THE
PETITIONER,
19. SRI TAPESHWAR SINGH S/O NOT KNOWN TO THE
PETITIONER,
20. SRI CHANDRADEO SINGH S/O NOT KNOWN TO THE
PETITIONER,
21. SMT. SHOBHA DEVI W/O NOT KNOWN TO THE PETITIONER,
22. SMT. MIRA PAL W/O NOT KNOWN TO THE PETITIONER,
23. SMT. MIRA DEVI W/O NOT KNOWN TO THE PETITIONER,
24. SRI SANJAY RAM S/O NOT KNOWN TO PETITIONER,
25. SRI RAM PRAVESH RAM S/O NOT KNOWN TO THE
PETITIONER,
26. SMT. SHILA DEVI W/O NOT KNOWN TO THE PETITONER,
27. SMT. ANITA DEVI W/O NOT KNOWN TO THE PETITIONER,
28. SMT. NOOR JAHAN W/O NOT KNOWN TO THE PETITIONER,
29. SRI AKHATAR MOIN KHAN S/O NOT KNOWN TO THE
PETITIONER,
-2-
30. SRI MADAN CHANDRA BANSHI S/O NOT KNOWN TO THE
PETITONER,
31. SRI SURENDRA PRASAD S/O NOT KNOWN TO THE
PETITIONER,
32. SRI LAUKU SINGH S/O NOT KNOWN TO THE PETITIONER,
33. SRI MANISH SINGH S/O NOT KNOWN TO THE PETITIONER,
34. SRI MOHAN SINGH S/O NOT KNOWN TO THE PETITIONER,
35. SRI MOJIBUL ANSARI S/O NOT KNOWN TO THE PETITIONER,
36. SMT. BIBHA SINHA W/O NOT KNOWN TO THE PETITIONER,
37. SMT. KULWANTI DEVI W/O NOT KNOWN TO THE
PETITIONER,
38. SRI SANJEET SINGH S/O NOT KNOWN TO THE PETITIONER,
39. SMT.LAKSHMINA DEVI W/O NOT KNOWN TO THE
PETITIONER,
40. SMT. MUSRAT KHATTON W/O NOT KNOWN TO THE
PETITIIONER,
41. SMT. ANOMOLA SINGH W/O NOT KNOWN TO THE
PETITIONER,
42. SMT. BINTI DEVI W/O NOT KNOWN TO THE PETITIONER,
43. SRI DHAMU CHAUDHARY S/O NOT KNOWN TO THE
PETITIONER,
RESPONDENT NOS. 7 TO 43 ARE THE MEMBERS OF THE
DEHRI DALMIYANAGAR PARISHAD, THROUGH THE
EXECUTIVE OFFICER, DEHRI-DALMIYANAGAR NAGAR
PARISHAD, P.O & P.S- DEHRI, DISTT- ROHTAS AT SASARAM.
.... RESPONDENTS.
--------
For the petitioner : Mr. S.B.K.Mangalam, Advocate.
For the State : Mr. Himansu Kumar, A. C to G.A. 5
For the Municipality : Mr. S.K.Agrawal, Advocate.
For respondent nos. 6, 7, 9, : Mr. Shyama Prasad Mukherjee, Senior Advocate.
12, 14 to 21, 23 to 25, 28, 32 Mr. Shanti Pratap, Advocate.
33 and 41 Mr. Binay Kumar, Advocate.
-------
PRESENT
HON'BLE MR. JUSTICE S. N. HUSSAIN
------
S. N. Hussain, J. This writ petition has been filed by the petitioner challenging
notice dated 02.12.2009 (Annexure-6) issued by the District Magistrate,
Rohtas (respondent no.3) for convening a special meeting of Dehri-
Dalmianagar Nagar Parishad (hereinafter referred to as „the Nagar Parishad‟
for the sake of brevity), on 18.12.2009 for considering the no confidence
motion against the petitioner, who was the Chief Councillor of the Nagar
Parishad and also for declaration that since Section 419 of the Bihar
-3-
Municipal Act, 2007 (hereinafter referred to as „the Act‟ for the sake of
brevity) authorizes the State Government to make rules for carrying out the
purposes of the Act, the impugned instructions vide memo no.2360 dated
22.06.2009 (Annexure-5) issued by the Principal Secretary, Urban
Development and Housing Department, Govt. of Bihar (respondent no.2)
with respect to Section 25(4) of the Act was a nullity and the said
instructions were not sustainable in the eye of law. Subsequently by
I.A.No.186 of 2010, petitioner added one more relief for quashing the
proceedings of the special meeting dated 18.12.2009 (Annexure-1 to
I.A.No.186 of 2010) in which a no confidence motion was passed against
the petitioner removing him from the post of Chief Councillor of the Nagar
Parishad.
2. It is not in dispute that election of members of the Nagar
Parishad was held on 09.06.2007 in which the petitioner was elected as
member from Ward No.36, whereafter a meeting of all the 39 elected ward
members was convened in which petitioner was elected Chief Councillor of
the Nagar Parishad by majority. It is stated by learned counsel for the
petitioner that subsequently out of the aforesaid members, 15 of them sent
requisition dated 16.06.2009 (Annexure-1) for holding a special meeting for
considering no confidence motion against the petitioner. Although the said
requisition was addressed to the petitioner, it was sent to the Executive
Officer of the Nagar Parishad (respondent no.5) and no copy of the same
was presented to the petitioner. It is also claimed that in consequence to the
said requisition no meeting was held for about six months and subsequently
vide order dated 02.12.2009 (Annexure-6), the District Magistrate, Rohtas
(respondent no.3) himself decided to convene the meeting of no confidence
motion against the petitioner under his own presidentship and sent notice for
-4-
the same to all members of the Nagar Parishad. The meeting was held on
18.12.2009 in which 3 members absented and 36 participated, out of whom
20 members supported the motion and 13 voted against the motion, whereas
3 votes were rejected. So far the petitioner is concerned she appeared in the
meeting and raised objection to the requisition, to the notice and to the
manner in which the meeting for no confidence motion was held on the
direction of the District Magistrate, but when her objection was not heeded,
she left the meeting taking no part in the said meeting as well as in the
resolution of no confidence motion which was passed in the meeting dated
18.12.2009 (Annexure-1 to I.A.No.186 of 2010).
3. In the aforesaid facts and circumstances, learned counsel for
the petitioner raises two points with respect to the impugned matters. The
first is that the order issued by the Principal Secretary, Urban Development
and Housing Department, Govt. of Bihar, Patna (respondent no.2) vide
memo no.2360 dated 22.06.2009 (Annexure-5) laying down the procedure
for removal of Chief Councillor or Deputy Chief Councillor of any Nagar
Parishad under the provision contained in Section 25(4) of the Act cannot be
sustained in the eye of law since Section 419 of the Act gives power to the
State Government to make rules for the purpose subject to the provision of
the Act, but in the instant case, neither any rules were framed nor any
notification was made, nor the provisions of the Act were considered. The
second point raised by learned counsel for the petitioner is that requisition
for no confidence motion against the petitioner made by 15 persons dated
16.06.2009 (Annexure-1) should have been sent to the Chief Councillor
(petitioner), but though it was addressed to the Chief Councillor, it was
never served upon her and in any view of the matter, the District Magistrate,
Rohtas had no jurisdiction to call the meeting for considering no confidence
-5-
motion of the Councillors and that, too, about six months after the
requisition.
4. So far the first question raised by learned counsel for the
petitioner is concerned, learned counsel for the State of Bihar and its
authorities (respondents nos. 1 to 4), learned counsel for the Executive
Officer, Nagar Parishad (respondent no.5) as well as learned counsel for the
private respondents, including respondent no.33, averred that since no Rule
was framed under the Act for the purposes of Section 25 of the Act and also
because the people of the area approached the authorities concerned due to
the inaction of Chief Councillor of the Nagar Parishad (petitioner) with
respect to the requisition, the authorities had no option but to take necessary
steps in that regard which are under challenge in this case. They
emphasized that the direction/instruction issued by the State Government
and the notice issued and steps taken by the District Magistrate were also
necessary for full and proper implementation of the provisions of the Act. It
was further claimed that by issuing the aforesaid direction/instruction the
authorities did not violate any of the provisions of the Act and thus it was
legal and proper and the District Magistrate did not commit any illegality in
issuing notice and taking steps in accordance with the said
direction/instruction.
5. Considering the arguments of the parties on the aforesaid
point, it is apparent that there is no dispute that the provisions of the Act are
applicable to the instant case. Section 25 of the Act reads as follows:
“25. Removal of Chief Councillor/Deputy Chief
Councillor.- (1) The Chief 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.
-6-
(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 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 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.”
6. The aforesaid sub-section (4) of Section 25 provides the
manner for holding a special meeting for removing the Chief Councillor or
the Deputy Chief Councillor and it is specifically mentioned therein that the
procedure for conduct of business in the special meeting shall be such as
may be prescribed. The said procedure must be prescribed by a specifically
-7-
formulated rule by the State Government for carrying out the said purposes
of the Act. Such power has been given vide Section 419 of the Act which
reads as follows:
“419. Power to make rules. (1) The State Government
may, by notification, and subject to the condition of previous
publication, make rules for carrying out the purposes of this
Act.
(2) Any rule made under this Act may provide that any
contravention thereof shall be punishable with fine which may
extend to five thousand rupees.
(3) Every rule made under this Act shall be laid as soon
as may be after it is made before the State Legislature while it
is in session for a total period of ten days which may be
comprised in one session or in two or more successive
sessions, and if, before the expiry of the session in which it is
so laid or the successive sessions aforesaid, the State
Legislature agrees in making any modification in the rules or
the State Legislature agrees that the rules should not be made,
the rule shall thereafter have effect only in such modified form
or be of no effect, as the case may be, so however, that such
modification or annulment shall be without prejudice to the
validity of anything previously done or omitted to be done
under that rule.”
7. In the admitted facts and circumstances of this case, it is
quite apparent that no rule under the aforesaid provision of law has been
framed by the State Government for laying down the procedure for a special
meeting for no confidence motion. However, in spite of the said situation it
cannot be legally presumed that in absence of any such rule, the conduct of
business of special meeting for considering no confidence motion against
the Chief Councillor cannot be legally carried out. The provision of the Act
has to be followed and the procedure has to be adopted fairly appreciating
the scheme provided under the Act in its entirety. In this connection, two
provisions made in the Act, namely Sections 48 and 51 with respect to
meetings and the Presiding Officer of such meeting have to be considered.
They are as follows:
48. Meetings.- (1) The Municipality shall meet not less
than once in every month for the transaction of its business.
-8-
(2) The Chief Councillor may, whenever he thinks fit, and
shall, upon a requisition in writing by not less than one-fifth of
the Councillors, convene a meeting of the Municipality.
(3) If the Chief Councillor fails to call the requisition
meeting provided in sub-section (2), the meeting may be called
by the persons who signed the requisition.”
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 over a
meeting of the Municipality, shall also have, and may exercise, a
casting vote in all cases of equality of votes”.
8. If the provision of Section 25 is read with the aforesaid
sections 48 and 51 of the Act, the object and purpose of the Act and
adequate guidance and safeguard provided therein would be apparent.
Section 48 clearly provides that a meeting as per the requisition of members
has to be called by the Chief Councillor and if he fails to call such meeting it
may be called by the persons who had signed the requisition. In addition
thereto, Section 51 provides that the Chief Councillor shall preside at every
meeting and in his absence or in the situation where the meeting is for
removal of the Chief Councillor, the said meeting shall be presided by the
Deputy Chief Councillor and whosoever presides over such meeting shall
also have a casting vote in all cases of equality of votes. In the said
circumstances, the entire procedure has already been laid down in the Act
which has to be followed while framing the rules and if the rule is not
framed for conduct of the business of the Municipality under the aforesaid
provisions of law, then also the special meeting of no confidence motion can
be proceeded with as per the aforesaid provisions of the Act. This aspect of
the matter has been fully considered and decided by a division Bench of this
-9-
Court in L.P.A No.1564 of 2009 (Ruby Singh Vs. The State of Bihar &
Ors.) vide order dated 15.04.2010.
9. Furthermore, Section 25 of the Act uses the term „prescribed‟
and according to Section 2(76) of the Act it means prescribed by rules made
under the Act. But it is quite strange that although about 3 years have lapsed
and other rules have been framed under the Act as far as back as in the year
2007 itself, but with respect to such an important aspect of the matter no rule
has been framed by the authorities as yet. Furthermore, taking advantage of
their own aforesaid inaction and ignorance of the expectation of the
legislature clearly expressed in the Statute, an order dated 22.06.2009
(Annexure-5) was issued by the Department which, at best, can be termed as
„executive instructions‟. Rules are subordinate legislation framed under the
guidance of the specific provisions made in the statute and hence they have
the force of law and thus, they cannot be substituted by executive
instructions which cannot supplement or supplant the rules.
10. The impugned order dated 22.06.2009 (Annexure-5) issued
by the Department is completely contradictory to the procedure prescribed
under Sections 51, 48 and 25 of the Act. Furthermore, by the said impugned
order of the Department, an executive authority has been given precedence
over the elected persons which is quite detrimental to the health and growth
of the democracy. The authority cannot take help of the provisions of
Section 487 of the Act in that regard, because in the garb of removal of any
difficulty in giving effect to the provision of the Act, they cannot be allowed
to annihilate the basic principle for which the statute had been provided,
namely establishment of basic democracy and giving powers in the hands of
people. Hence the aforesaid impugned order cannot be sustained in law.
Furthermore, for removal of any such difficulty either the rules as per the
– 10 –
provisions of the Act should have been framed or the difficulties should
have been removed within the framework of the Statute considering the
same in its entirety.
11. So far the second point raised by learned counsel for the
petitioner is concerned, learned counsel for the State of Bihar and its
authorities (respondent nos. 1 to 4), learned counsel for the Executive
Officer, Nagar Parishad (respondent no.5) as well as learned counsel for the
private respondents, including respondent no.33, vehemently contested
stating that the notice for special meeting for no confidence motion was
given to the petitioner on 02.12.2009 (Annexure-6) and hence she had
sufficient time, but she did not challenge it and participated in the meeting
held on 18.12.2009 (Annexure-1 to I.A.No.186 of 2010), where she was
defeated by 20 to 13 votes and hence the petitioner had waived her right to
challenge the same and was, thus, not entitled to any relief claimed by her.
In this connection, they relied upon a decision of a Division Bench of this
Court in case of Vinay Kumar “Pappu” @ Binay Kumar “Pappu” Vs. The
State of Bihar & others, reported in 2010 (3) P.L.J.R. 259 in which it has
been held that apart from the principle of waiver, by applying the de facto
doctrine, the vote of no confidence motion which has been passed by the
House in a meeting in which aggrieved person had also taken part cannot be
found fault with. Hence, they claimed that the petitioner had no locus to
challenge the said no confidence motion.
12. In the instant case, it is not in dispute that although the
petitioner, who was the Chief Councillor, arrived in the meeting of no
confidence motion held on 18.12.2009, but she raised objections and when
her objections with regard to the justification of holding of such meeting and
legality of requisition and notice were not considered, she left without
– 11 –
taking part in the voting and immediately thereafter the instant writ petition
had been filed. In the said circumstances, neither the question of waiver, nor
the question of de facto doctrine can be legally made applicable to the
instant case and the petitioner definitely has the locus to challenge the
impugned orders.
13. Furthermore, from a bare perusal of the aforesaid decision in
case of Vinay Kumar “Pappu” @ Binay Kumar “Pappu” (supra), it is quite
apparent that the petitioner of that case who was a Mayor called the meeting
himself and participated therein and when he lost in the no confidence
motion he filed the case which was rightly rejected on the points of waiver
as well as de facto doctrine as the petitioner of that case had no locus due to
his own acts mentioned above. The said case law is not applicable to the
facts and circumstances of this case in which neither the petitioner had
called the meeting nor he participated in the meeting of no confidence
motion.
14. From the arguments of the parties on the factual aspect of the
matter, it is quite apparent that requisition dated 16.06.2009 (Annexure-1)
by 15 members for holding a special meeting of no confidence motion
against the Chief Councillor (petitioner) was not sent to the petitioner
although it was addressed to the petitioner and the law required that such
requisition must be presented to the Chief Councillor. Furthermore, even if
the Chief Councillor was not taking any step as per the requisition, it was for
the requisitionists to themselves call a meeting of no confidence motion as
per the specific provision made in the Act, namely Section 48 thereof.
15. So far notice dated 02.12.2009 (Annexure-6) sent by the
District Magistrate for the special meeting is concerned it had been clearly
– 12 –
sent after about six months delay without mentioning any rhyme or reason
for such delay. Although the District Magistrate had no authority in law to
call for such a meeting under his presidentship which was clearly against the
specific provisions of the Act, it transpires that the said notice was sent by
the District Magistrate on the basis of an order issued by the Department
dated 22.06.2009 (Annexure-5), but the said order of the Government
having already been found to be illegal and violative of the specific
provisions of the Act, any step taken in pursuance thereof cannot be legally
held to be valid and proper.
16. In the said circumstances, the requisition dated 16.06.2009/
23.06.2009 (Annexures-1 and 2 series), notice issued by the District
Magistrate dated 02.12.2009 (Annexure-6) and the proceeding and
resolution of the special meeting of no confidence motion dated 18.12.2009
are found to be illegal and bad and, accordingly, are quashed. So far the
instructions issued by the Urban Development and Housing Department,
Govt. of Bihar, Patna vide memo no.2306 dated 22.06.2009 (Annexure-5)
laying down the procedure for removal of Chief Councillor and Deputy
Chief Councillor under Section 25 (4) of the Act is concerned, it is also held
to be violative of the provisions of the Act and is quashed.
17. With the aforesaid observations/ directions, this writ petition
is allowed.
(S.N. Hussain, J.)
Patna High Court.
Dated, the 20th of August, 2010.
N.A.F.R.
Sunil/