{"id":196121,"date":"2010-08-20T00:00:00","date_gmt":"2010-08-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunita-devi-vs-the-state-of-bihar-amp-ors-on-20-august-2010"},"modified":"2017-04-25T14:51:59","modified_gmt":"2017-04-25T09:21:59","slug":"sunita-devi-vs-the-state-of-bihar-amp-ors-on-20-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunita-devi-vs-the-state-of-bihar-amp-ors-on-20-august-2010","title":{"rendered":"Sunita Devi vs The State Of Bihar &Amp; Ors on 20 August, 2010"},"content":{"rendered":"
Patna High Court – Orders<\/div>\n
Sunita Devi vs The State Of Bihar &Amp; Ors on 20 August, 2010<\/div>\n
  IN THE HIGH COURT OF JUDICATURE AT PATNA\n                   CWJC No.17463 of 2009\n\n      SUNITA DEVI W\/O SRI VISHNU RAM R\/O MOH- BARAH\n      PATHAR, P.O- DEHRI, P.S- DEHRI, DISTT- ROHTAS,\n      PRESENTLY THE        CHIEF    COUNCILOR OF      DEHRI-\n      DALMIYANAGAR NAGAR, PARISHAD, DISTT- ROHTAS AT\n      SASARAM.\n                                              .... PETITIONER.\n                             Versus\n1.    THE STATE OF BIHAR.\n2.    THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND\n      HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA.\n3.    THE DISTRICT MAGISTRATE, ROHTAS AT SASARAM, DISTT-\n      ROHTAS.\n4.    THE SUB-DIVISIONAL OFFICER, DEHRI-DALMIANAGAR,\n      SUB-DIVISION, DISTT- ROHTAS AT SASARAM.\n5.    THE EXECUTIVE OFFICER, NAGAR PARISHAD, DEHRI-\n      DALMIYANAGAR, DISTT- ROHTAS AT SASARAM.\n6.    SMT. BINDA DEVI W\/O SRI MANISH KUMAR SINGH @ BITU\n      SINGH, PRESENTLY THE DEPUTY CHAIRMAN OF DEHRI-\n      DALMIYANAGAR,      PARISHAD,     DISTT-   ROHTAS   AT\n      SASARAM.\n7.    SRI SATYENDRA SINGH S\/O NOT KNOWN TO THE\n      PETITIONER,\n8.    SMT. PRABHA DEVI W\/O NOT KNOWN TO THE PETITIONER,\n9.    SRI AMARENDRA KUMAR S\/O NOT KNOWN TO THE\n      PETITIONER,\n10.   SMT. RINKI DEVI W\/O NOT KNOWN TO THIS PETITIONER,\n11.   SMT. ANSUNI DEVI W\/O NOT KNOWN TO THE PETITIONER,\n12.   SMT. SNEHLATA W\/O NOT KNOWN TO THE PETITIONER,\n13.   SMT. SUSHMA DEVI W\/O NOT KNOWN TO THE PETITIONER,\n14.   SRI KRISHNA KUMAR S\/O NOT KNOWN TO THE PETITIONER,\n15.   SRI UPENDRA SINGH S\/O NOT KNOWN TO THE PETITIONER,\n16.   SRI SATYENDRA KUMAR SINGH S\/O NOT KNOWN TO THE\n      PETITIONER,\n17.   SMT. LALSO DEVI W\/O NOT KNOWN TO THE PETITIONER,\n18.   SRI KAMLESH KUMAR SHARMA, S\/O NOT KNOWN TO THE\n      PETITIONER,\n19.   SRI TAPESHWAR SINGH S\/O NOT KNOWN TO THE\n      PETITIONER,\n20.   SRI CHANDRADEO SINGH S\/O NOT KNOWN TO THE\n      PETITIONER,\n21.   SMT. SHOBHA DEVI W\/O NOT KNOWN TO THE PETITIONER,\n22.   SMT. MIRA PAL W\/O NOT KNOWN TO THE PETITIONER,\n23.   SMT. MIRA DEVI W\/O NOT KNOWN TO THE PETITIONER,\n24.   SRI SANJAY RAM S\/O NOT KNOWN TO PETITIONER,\n25.   SRI RAM PRAVESH RAM S\/O NOT KNOWN TO THE\n      PETITIONER,\n26.   SMT. SHILA DEVI W\/O NOT KNOWN TO THE PETITONER,\n27.   SMT. ANITA DEVI W\/O NOT KNOWN TO THE PETITIONER,\n28.   SMT. NOOR JAHAN W\/O NOT KNOWN TO THE PETITIONER,\n29.   SRI AKHATAR MOIN KHAN S\/O NOT KNOWN TO THE\n      PETITIONER,\n                                                     -2-\n\n\n\n\n              30.   SRI MADAN CHANDRA BANSHI S\/O NOT KNOWN TO THE\n                    PETITONER,\n              31.   SRI SURENDRA PRASAD S\/O NOT KNOWN TO THE\n                    PETITIONER,\n              32.   SRI LAUKU SINGH S\/O NOT KNOWN TO THE PETITIONER,\n              33.   SRI MANISH SINGH S\/O NOT KNOWN TO THE PETITIONER,\n              34.   SRI MOHAN SINGH S\/O NOT KNOWN TO THE PETITIONER,\n              35.   SRI MOJIBUL ANSARI S\/O NOT KNOWN TO THE PETITIONER,\n              36.   SMT. BIBHA SINHA W\/O NOT KNOWN TO THE PETITIONER,\n              37.   SMT. KULWANTI DEVI W\/O NOT KNOWN TO THE\n                    PETITIONER,\n              38.   SRI SANJEET SINGH S\/O NOT KNOWN TO THE PETITIONER,\n              39.   SMT.LAKSHMINA DEVI W\/O NOT KNOWN TO THE\n                    PETITIONER,\n              40.   SMT. MUSRAT KHATTON W\/O NOT KNOWN TO THE\n                    PETITIIONER,\n              41.   SMT. ANOMOLA SINGH W\/O NOT KNOWN TO THE\n                    PETITIONER,\n              42.   SMT. BINTI DEVI W\/O NOT KNOWN TO THE PETITIONER,\n              43.   SRI DHAMU CHAUDHARY S\/O NOT KNOWN TO THE\n                    PETITIONER,\n                    RESPONDENT NOS. 7 TO 43 ARE THE MEMBERS OF THE\n                    DEHRI DALMIYANAGAR PARISHAD, THROUGH THE\n                    EXECUTIVE OFFICER, DEHRI-DALMIYANAGAR NAGAR\n                    PARISHAD, P.O & P.S- DEHRI, DISTT- ROHTAS AT SASARAM.\n                                                           .... RESPONDENTS.\n                                           --------\n<\/pre>\n
              For the petitioner               : Mr. S.B.K.Mangalam, Advocate.\n<\/p>\n
              For the State                    : Mr. Himansu Kumar, A. C to G.A. 5\n              For the Municipality             : Mr. S.K.Agrawal, Advocate.\n              For respondent nos. 6, 7, 9,     : Mr. Shyama Prasad Mukherjee, Senior Advocate.\n              12, 14 to 21, 23 to 25, 28, 32     Mr. Shanti Pratap, Advocate.\n              33 and 41                          Mr. Binay Kumar, Advocate.\n                                                     -------\n\n                                               PRESENT\n\n                             HON'BLE MR. JUSTICE S. N. HUSSAIN\n                                           ------\n\nS. N. Hussain, J.            This writ petition has been filed by the petitioner challenging\n\n<\/pre>\n
              notice dated 02.12.2009 (Annexure-6) issued by the District Magistrate,<\/p>\n
              Rohtas (respondent no.3) for convening a special meeting of Dehri-<\/p>\n
              Dalmianagar Nagar Parishad (hereinafter referred to as \u201ethe Nagar Parishad\u201f<\/p>\n
              for the sake of brevity), on 18.12.2009 for considering the no confidence<\/p>\n
              motion against the petitioner, who was the Chief Councillor of the Nagar<\/p>\n
              Parishad and also for declaration that since Section 419 of the Bihar
\n                                     -3-<\/span><\/p>\n
Municipal Act, 2007 (hereinafter referred to as \u201ethe Act\u201f for the sake of<\/p>\n
brevity) authorizes the State Government to make rules for carrying out the<\/p>\n
purposes of the Act, the impugned instructions vide memo no.2360 dated<\/p>\n
22.06.2009 (Annexure-5) issued by the Principal Secretary, Urban<\/p>\n
Development and Housing Department, Govt. of Bihar (respondent no.2)<\/p>\n
with respect to    Section 25(4) of the Act was a nullity and the said<\/p>\n
instructions were not sustainable in the eye of law. Subsequently by<\/p>\n
I.A.No.186 of 2010, petitioner added one more relief for quashing the<\/p>\n
proceedings of the special meeting dated 18.12.2009 (Annexure-1 to<\/p>\n
I.A.No.186 of 2010) in which a no confidence motion was passed against<\/p>\n
the petitioner removing him from the post of Chief Councillor of the Nagar<\/p>\n
Parishad.\n<\/p>\n<\/p>\n
2.             It is not in dispute that election of members of the Nagar<\/p>\n
Parishad was held on 09.06.2007 in which the petitioner was elected as<\/p>\n
member from Ward No.36, whereafter a meeting of all the 39 elected ward<\/p>\n
members was convened in which petitioner was elected Chief Councillor of<\/p>\n
the Nagar Parishad by majority. It is stated by learned counsel for the<\/p>\n
petitioner that subsequently out of the aforesaid members, 15 of them sent<\/p>\n
requisition dated 16.06.2009 (Annexure-1) for holding a special meeting for<\/p>\n
considering no confidence motion against the petitioner. Although the said<\/p>\n
requisition was addressed to the petitioner, it was sent to the Executive<\/p>\n
Officer of the Nagar Parishad (respondent no.5) and no copy of the same<\/p>\n
was presented to the petitioner. It is also claimed that in consequence to the<\/p>\n
said requisition no meeting was held for about six months and subsequently<\/p>\n
vide order dated 02.12.2009 (Annexure-6), the District Magistrate, Rohtas<\/p>\n
(respondent no.3) himself decided to convene the meeting of no confidence<\/p>\n
motion against the petitioner under his own presidentship and sent notice for
\n                                     -4-<\/span><\/p>\n
the same to all members of the Nagar Parishad. The meeting was held on<\/p>\n
18.12.2009 in which 3 members absented and 36 participated, out of whom<\/p>\n
20 members supported the motion and 13 voted against the motion, whereas<\/p>\n
3 votes were rejected. So far the petitioner is concerned she appeared in the<\/p>\n
meeting and raised objection to the requisition, to the notice and to the<\/p>\n
manner in which the meeting for no confidence motion was held on the<\/p>\n
direction of the District Magistrate, but when her objection was not heeded,<\/p>\n
she left the meeting taking no part in the said meeting as well as in the<\/p>\n
resolution of no confidence motion which was passed in the meeting dated<\/p>\n
18.12.2009 (Annexure-1 to I.A.No.186 of 2010).\n<\/p>\n<\/p>\n
3.             In the aforesaid facts and circumstances, learned counsel for<\/p>\n
the petitioner raises two points with respect to the impugned matters. The<\/p>\n
first is that the order issued by the Principal Secretary, Urban Development<\/p>\n
and Housing Department, Govt. of Bihar, Patna (respondent no.2) vide<\/p>\n
memo no.2360 dated 22.06.2009 (Annexure-5) laying down the procedure<\/p>\n
for removal of Chief Councillor or Deputy Chief Councillor of any Nagar<\/p>\n
Parishad under the provision contained in Section 25(4) of the Act cannot be<\/p>\n
sustained in the eye of law since Section 419 of the Act gives power to the<\/p>\n
State Government to make rules for the purpose subject to the provision of<\/p>\n
the Act, but in the instant case, neither any rules were framed nor any<\/p>\n
notification was made, nor the provisions of the Act were considered. The<\/p>\n
second point raised by learned counsel for the petitioner is that requisition<\/p>\n
for no confidence motion against the petitioner made by 15 persons dated<\/p>\n
16.06.2009 (Annexure-1) should have been sent to the Chief Councillor<\/p>\n
(petitioner), but though it was addressed to the Chief Councillor, it was<\/p>\n
never served upon her and in any view of the matter, the District Magistrate,<\/p>\n
Rohtas had no jurisdiction to call the meeting for considering no confidence
\n                                        -5-<\/span><\/p>\n
motion of the Councillors and that, too, about six months after the<\/p>\n
requisition.\n<\/p>\n
4.               So far the first question raised by learned counsel for the<\/p>\n
petitioner is concerned, learned counsel for the State of Bihar and its<\/p>\n
authorities (respondents nos. 1 to 4), learned counsel for the Executive<\/p>\n
Officer, Nagar Parishad (respondent no.5) as well as learned counsel for the<\/p>\n
private respondents, including respondent no.33, averred that since no Rule<\/p>\n
was framed under the Act for the purposes of Section 25 of the Act and also<\/p>\n
because the people of the area approached the authorities concerned due to<\/p>\n
the inaction of Chief Councillor of the Nagar Parishad (petitioner) with<\/p>\n
respect to the requisition, the authorities had no option but to take necessary<\/p>\n
steps in that regard which are under challenge in this case.                   They<\/p>\n
emphasized that the direction\/instruction issued by the State Government<\/p>\n
and the notice issued and steps taken by the District Magistrate were also<\/p>\n
necessary for full and proper implementation of the provisions of the Act. It<\/p>\n
was further claimed that by issuing the aforesaid direction\/instruction the<\/p>\n
authorities did not violate any of the provisions of the Act and thus it was<\/p>\n
legal and proper and the District Magistrate did not commit any illegality in<\/p>\n
issuing     notice   and   taking    steps   in   accordance    with   the     said<\/p>\n
direction\/instruction.\n<\/p>\n
5.               Considering the arguments of the parties on the aforesaid<\/p>\n
point, it is apparent that there is no dispute that the provisions of the Act are<\/p>\n
applicable to the instant case. Section 25 of the Act reads as follows:<\/p>\n
               “25. Removal of Chief Councillor\/Deputy Chief
\n          Councillor.- (1) The Chief Councillor\/Deputy Chief
\n          Councillor shall cease to hold office as such if he ceases to be a
\n          Councillor.\n<\/p><\/blockquote>\n
               (2) The Chief Councillor may resign his office by writing
\n          under his hand addressed to the Divisional Commissioner and
\n          Deputy Chief Councillor may resign his office by writing
\n          under his hand addressed to the Chief Councillor.\n<\/p><\/blockquote>\n
                                     -6-<\/span><\/p>\n
              (3) Every resignation under sub-section (2) shall take
\n       effect on the expiry of seven days from the date of such
\n       resignation, unless within the said period of seven days he
\n       withdraws such resignation by writing under his hand
\n       addressed to the Divisional Commissioner or the Chief
\n       Councillor, as the case may be.\n<\/p><\/blockquote>\n
              (4) The Chief Councillor\/Deputy Chief Councillor may
\n       be removed from office by a resolution carried by a majority of
\n       the whole number of Councillors holding office for the time
\n       being at a special meeting to be called for this purpose in the
\n       manner prescribed, upon a requisition made in writing by not
\n       less than one third of the total number of Councillors, and the
\n       procedure for the conduct of business in the special meeting
\n       shall be such as may be prescribed:\n<\/p><\/blockquote>\n
              “Provided that a no confidence motion shall not be
\n       brought against the Chief Councillor\/Deputy Chief Councillor
\n       within a period of two years of taking over the charge of the
\n       post:\n<\/p><\/blockquote>\n
              Provided further that a no confidence motion shall not be
\n       brought again within one year of the first no confidence
\n       motion:\n<\/p><\/blockquote>\n
              Provided further also that no confidence motion shall not
\n       be brought within the residual period of six months of the
\n       municipality.\n<\/p><\/blockquote>\n
              (5) “Without prejudice to the provisions under this Act,
\n       if, in opinion of the Divisional Commissioner having territorial
\n       jurisdiction over the Municipality the Chief Councillor\/Deputy
\n       Chief Councillor absents himself without sufficient cause for
\n       more than three consecutive meetings or sittings or willfully
\n       omits or refuses to perform his duties and functions under this
\n       Act, or is found to be guilty of misconduct in the discharge of
\n       his duties or becomes physically or mentally incapacitated for
\n       performing his duties or is absconding being an accused in a
\n       criminal case for more than six months, the Divisional
\n       Commissioner may, after giving the Chief Councillor\/Deputy
\n       Chief Councillor a reasonable opportunity for explanation, by
\n       order, remove such Chief Councillor from office.\n<\/p><\/blockquote>\n
              (6) The Chief Councillor\/Deputy Chief Councillor so
\n       removed shall not be eligible for re-election as Chief
\n       Councillor\/Deputy Chief Councillor or Councillor during the
\n       remaining term of office of such Municipality.\n<\/p><\/blockquote>\n
              Appeal shall lie before the State Government against the
\n       order of the Divisional Commissioner.”\n<\/p><\/blockquote>\n
6.             The aforesaid sub-section (4) of Section 25 provides the<\/p>\n
manner for holding a special meeting for removing the Chief Councillor or<\/p>\n
the Deputy Chief Councillor and it is specifically mentioned therein that the<\/p>\n
procedure for conduct of business in the special meeting shall be such as<\/p>\n
may be prescribed. The said procedure must be prescribed by a specifically
\n                                     -7-<\/span><\/p>\n
formulated rule by the State Government for carrying out the said purposes<\/p>\n
of the Act. Such power has been given vide Section 419 of the Act which<\/p>\n
reads as follows:\n<\/p>\n
             “419. Power to make rules. (1) The State Government
\n       may, by notification, and subject to the condition of previous
\n       publication, make rules for carrying out the purposes of this
\n       Act.\n<\/p><\/blockquote>\n
             (2) Any rule made under this Act may provide that any
\n       contravention thereof shall be punishable with fine which may
\n       extend to five thousand rupees.\n<\/p><\/blockquote>\n
             (3) Every rule made under this Act shall be laid as soon
\n       as may be after it is made before the State Legislature while it
\n       is in session for a total period of ten days which may be
\n       comprised in one session or in two or more successive
\n       sessions, and if, before the expiry of the session in which it is
\n       so laid or the successive sessions aforesaid, the State
\n       Legislature agrees in making any modification in the rules or
\n       the State Legislature agrees that the rules should not be made,
\n       the rule shall thereafter have effect only in such modified form
\n       or be of no effect, as the case may be, so however, that such
\n       modification or annulment shall be without prejudice to the
\n       validity of anything previously done or omitted to be done
\n       under that rule.”\n<\/p><\/blockquote>\n
7.             In the admitted facts and circumstances of this case, it is<\/p>\n
quite apparent that no rule under the aforesaid provision of law has been<\/p>\n
framed by the State Government for laying down the procedure for a special<\/p>\n
meeting for no confidence motion. However, in spite of the said situation it<\/p>\n
cannot be legally presumed that in absence of any such rule, the conduct of<\/p>\n
business of special meeting for considering no confidence motion against<\/p>\n
the Chief Councillor cannot be legally carried out. The provision of the Act<\/p>\n
has to be followed and the procedure has to be adopted fairly appreciating<\/p>\n
the scheme provided under the Act in its entirety. In this connection, two<\/p>\n
provisions made in the Act, namely Sections 48 and 51 with respect to<\/p>\n
meetings and the Presiding Officer of such meeting have to be considered.<\/p>\n
They are as follows:\n<\/p>\n
             48. Meetings.- (1) The Municipality shall meet not less
\n       than once in every month for the transaction of its business.\n<\/p><\/blockquote>\n
                                      -8-<\/span><\/p>\n
             (2) The Chief Councillor may, whenever he thinks fit, and
\n       shall, upon a requisition in writing by not less than one-fifth of
\n       the Councillors, convene a meeting of the Municipality.\n<\/p><\/blockquote>\n
             (3) If the Chief Councillor fails to call the requisition
\n       meeting provided in sub-section (2), the meeting may be called
\n       by the persons who signed the requisition.”\n<\/p><\/blockquote>\n
             51. Presiding officer of a meeting of Municipality.- (1)
\n       The Chief Councillor shall preside at every meeting of the
\n       Municipality and in his absence the Deputy Chief Councillor
\n       shall preside the meeting:\n<\/p><\/blockquote>\n
             Provided that when a meeting is held to consider a motion
\n       for the removal of the Chief Councillor, the Chief Councillor
\n       shall not preside at such meeting.\n<\/p><\/blockquote>\n
             (2) The Chief Councillor, or the person presiding over a
\n       meeting of the Municipality, shall also have, and may exercise, a
\n       casting vote in all cases of equality of votes”.\n<\/p><\/blockquote>\n
8.             If the provision of Section 25 is read with the aforesaid<\/p>\n
sections 48 and 51 of the Act, the object and purpose of the Act and<\/p>\n
adequate guidance and safeguard provided therein would be apparent.<\/p>\n
Section 48 clearly provides that a meeting as per the requisition of members<\/p>\n
has to be called by the Chief Councillor and if he fails to call such meeting it<\/p>\n
may be called by the persons who had signed the requisition. In addition<\/p>\n
thereto, Section 51 provides that the Chief Councillor shall preside at every<\/p>\n
meeting and in his absence or in the situation where the meeting is for<\/p>\n
removal of the Chief Councillor, the said meeting shall be presided by the<\/p>\n
Deputy Chief Councillor and whosoever presides over such meeting shall<\/p>\n
also have a casting vote in all cases of equality of votes. In the said<\/p>\n
circumstances, the entire procedure has already been laid down in the Act<\/p>\n
which has to be followed while framing the rules and if the rule is not<\/p>\n
framed for conduct of the business of the Municipality under the aforesaid<\/p>\n
provisions of law, then also the special meeting of no confidence motion can<\/p>\n
be proceeded with as per the aforesaid provisions of the Act. This aspect of<\/p>\n
the matter has been fully considered and decided by a division Bench of this
\n                                      -9-<\/span><\/p>\n
Court in L.P.A No.1564 of 2009 (Ruby Singh Vs. The State of Bihar &<\/p>\n
Ors.) vide order dated 15.04.2010.\n<\/p>\n<\/p>\n
9.             Furthermore, Section 25 of the Act uses the term \u201eprescribed\u201f<\/p>\n
and according to Section 2(76) of the Act it means prescribed by rules made<\/p>\n
under the Act. But it is quite strange that although about 3 years have lapsed<\/p>\n
and other rules have been framed under the Act as far as back as in the year<\/p>\n
2007 itself, but with respect to such an important aspect of the matter no rule<\/p>\n
has been framed by the authorities as yet. Furthermore, taking advantage of<\/p>\n
their own aforesaid inaction and ignorance of the expectation of the<\/p>\n
legislature clearly expressed in the Statute, an order dated 22.06.2009<\/p>\n
(Annexure-5) was issued by the Department which, at best, can be termed as<\/p>\n
\u201eexecutive instructions\u201f. Rules are subordinate legislation framed under the<\/p>\n
guidance of the specific provisions made in the statute and hence they have<\/p>\n
the force of law and thus, they cannot be substituted by executive<\/p>\n
instructions which cannot supplement or supplant the rules.<\/p>\n
10.             The impugned order dated 22.06.2009 (Annexure-5) issued<\/p>\n
by the Department is completely contradictory to the procedure prescribed<\/p>\n
under Sections 51, 48 and 25 of the Act. Furthermore, by the said impugned<\/p>\n
order of the Department, an executive authority has been given precedence<\/p>\n
over the elected persons which is quite detrimental to the health and growth<\/p>\n
of the democracy. The authority cannot take help of the provisions of<\/p>\n
Section 487 of the Act in that regard, because in the garb of removal of any<\/p>\n
difficulty in giving effect to the provision of the Act, they cannot be allowed<\/p>\n
to annihilate the basic principle for which the statute had been provided,<\/p>\n
namely establishment of basic democracy and giving powers in the hands of<\/p>\n
people. Hence the aforesaid impugned order cannot be sustained in law.<\/p>\n
Furthermore, for removal of any such difficulty either the rules as per the\n<\/p>\n
                                     – 10 –\n<\/p>\n
provisions of the Act should have been framed or the difficulties should<\/p>\n
have been removed within the framework of the Statute considering the<\/p>\n
same in its entirety.\n<\/p>\n<\/p>\n
11.             So far the second point raised by learned counsel for the<\/p>\n
petitioner is concerned, learned counsel for the State of Bihar and its<\/p>\n
authorities (respondent nos. 1 to 4), learned counsel for the Executive<\/p>\n
Officer, Nagar Parishad (respondent no.5) as well as learned counsel for the<\/p>\n
private respondents, including respondent no.33, vehemently contested<\/p>\n
stating that the notice for special meeting for no confidence motion was<\/p>\n
given to the petitioner on 02.12.2009 (Annexure-6) and hence she had<\/p>\n
sufficient time, but she did not challenge it and participated in the meeting<\/p>\n
held on 18.12.2009 (Annexure-1 to I.A.No.186 of 2010), where she was<\/p>\n
defeated by 20 to 13 votes and hence the petitioner had waived her right to<\/p>\n
challenge the same and was, thus, not entitled to any relief claimed by her.<\/p>\n
In this connection, they relied upon a decision of a Division Bench of this<\/p>\n
Court in case of Vinay Kumar “Pappu” @ Binay Kumar “Pappu” Vs. The<\/p>\n
State of Bihar & others, reported in 2010 (3) P.L.J.R. 259 in which it has<\/p>\n
been held that apart from the principle of waiver, by applying the de facto<\/p>\n
doctrine, the vote of no confidence motion which has been passed by the<\/p>\n
House in a meeting in which aggrieved person had also taken part cannot be<\/p>\n
found fault with. Hence, they claimed that the petitioner had no locus to<\/p>\n
challenge the said no confidence motion.\n<\/p>\n
12.             In the instant case, it is not in dispute that although the<\/p>\n
petitioner, who was the Chief Councillor, arrived in the meeting of no<\/p>\n
confidence motion held on 18.12.2009, but she raised objections and when<\/p>\n
her objections with regard to the justification of holding of such meeting and<\/p>\n
legality of requisition and notice were not considered, she left without\n<\/p>\n
                                     – 11 –\n<\/p>\n
taking part in the voting and immediately thereafter the instant writ petition<\/p>\n
had been filed. In the said circumstances, neither the question of waiver, nor<\/p>\n
the question of de facto doctrine can be legally made applicable to the<\/p>\n
instant case and the petitioner definitely has the locus to challenge the<\/p>\n
impugned orders.\n<\/p>\n<\/p>\n
13.            Furthermore, from a bare perusal of the aforesaid decision in<\/p>\n
case of Vinay Kumar “Pappu” @ Binay Kumar “Pappu” (supra), it is quite<\/p>\n
apparent that the petitioner of that case who was a Mayor called the meeting<\/p>\n
himself and participated therein and when he lost in the no confidence<\/p>\n
motion he filed the case which was rightly rejected on the points of waiver<\/p>\n
as well as de facto doctrine as the petitioner of that case had no locus due to<\/p>\n
his own acts mentioned above. The said case law is not applicable to the<\/p>\n
facts and circumstances of this case in which neither the petitioner had<\/p>\n
called the meeting nor he participated in the meeting of no confidence<\/p>\n
motion.\n<\/p>\n<\/p>\n
14.            From the arguments of the parties on the factual aspect of the<\/p>\n
matter, it is quite apparent that requisition dated 16.06.2009 (Annexure-1)<\/p>\n
by 15 members for holding a special meeting of no confidence motion<\/p>\n
against the Chief Councillor (petitioner) was not sent to the petitioner<\/p>\n
although it was addressed to the petitioner and the law required that such<\/p>\n
requisition must be presented to the Chief Councillor. Furthermore, even if<\/p>\n
the Chief Councillor was not taking any step as per the requisition, it was for<\/p>\n
the requisitionists to themselves call a meeting of no confidence motion as<\/p>\n
per the specific provision made in the Act, namely Section 48 thereof.<\/p>\n
15.            So far notice dated 02.12.2009 (Annexure-6) sent by the<\/p>\n
District Magistrate for the special meeting is concerned it had been clearly\n<\/p>\n
                                     – 12 –\n<\/p>\n
sent after about six months delay without mentioning any rhyme or reason<\/p>\n
for such delay. Although the District Magistrate had no authority in law to<\/p>\n
call for such a meeting under his presidentship which was clearly against the<\/p>\n
specific provisions of the Act, it transpires that the said notice was sent by<\/p>\n
the District Magistrate on the basis of an order issued by the Department<\/p>\n
dated 22.06.2009 (Annexure-5), but the said order of the Government<\/p>\n
having already been found to be illegal and violative of the specific<\/p>\n
provisions of the Act, any step taken in pursuance thereof cannot be legally<\/p>\n
held to be valid and proper.\n<\/p>\n<\/p>\n
16.            In the said circumstances, the requisition dated 16.06.2009\/<\/p>\n
23.06.2009 (Annexures-1 and 2 series), notice issued by the District<\/p>\n
Magistrate dated 02.12.2009 (Annexure-6) and the proceeding and<\/p>\n
resolution of the special meeting of no confidence motion dated 18.12.2009<\/p>\n
are found to be illegal and bad and, accordingly, are quashed. So far the<\/p>\n
instructions issued by the Urban Development and Housing Department,<\/p>\n
Govt. of Bihar, Patna vide memo no.2306 dated 22.06.2009 (Annexure-5)<\/p>\n
laying down the procedure for removal of Chief Councillor and Deputy<\/p>\n
Chief Councillor under Section 25 (4) of the Act is concerned, it is also held<\/p>\n
to be violative of the provisions of the Act and is quashed.<\/p>\n
17.            With the aforesaid observations\/ directions, this writ petition<\/p>\n
is allowed.\n<\/p>\n
                                                      (S.N. Hussain, J.)<\/p>\n
Patna High Court.\n<\/p>\n
Dated, the 20th of August, 2010.\n<\/p>\n
N.A.F.R.\n<\/p>\n
Sunil\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court – Orders Sunita Devi vs The State Of Bihar &Amp; Ors on 20 August, 2010 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,27],"tags":[],"class_list":["post-196121","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court-orders"],"yoast_head":"\nSunita Devi vs The State Of Bihar &Amp; Ors on 20 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunita-devi-vs-the-state-of-bihar-amp-ors-on-20-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunita Devi vs The State Of Bihar &Amp; 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