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2003 DIGILAW 538 (PAT)

Bihar Mayor Council v. Union Of India

2003-05-06

R.N.PRASAD, RAVI S.DHAVAN

body2003
Judgment Ravi S.Dhavan, J. 1. While this petition has been pending the sanctity of the proceedings were attempted to be eroded and, thus, it necessitates an interim order today. But, the better part is that as soon the situation was brought to the notice of the Additional Advocate General II (Mr. S.K.Ghosh, Senior Advocate) that while this matter is under consideration, with notice issued to the Advocate General, Bihar, status quo of the situation when the writ petition was filed should not be disturbed. The Additional Advocate General II sought an adjournment on 25 April, 2003 to advise and take instruction from the Government. Certain parts of Patna Municipal Corporation Act, 1951 are asserted (by the petitioner) to be ultra vires. Further, the five recently elected Mayors apprehended that their tenures are being threatened to be less than one year, when an annual tenure is guaranteed under the Act. 2. At the Bhagalpur Municipal Corporation, the Chief Executive Officer announced an election to the office of the Mayor when the last election had been held in August, 2002. In fact, the very filing of this petition was on an apprehension that the tenure of the Mayor may be cut short and it was submitted on behalf of the petitioners that there is an attempt that while the elections to the office of the Mayor had been held in September, 2002 there is an exercise afoot to hold elections after the close of the financial year, that is to say, April. The writ petition was filed in January. It needs to be recorded appreciating the stand of the Additional Advocate General II that he has advised the government while the matter is pending nothing should be done to upset the sanctity of proceedings in this public cause. Noticing that the law clearly suggests that the office is available to a Mayor at least for a year, the Additional Advocate General assured the Court that while issues will be debated on the two aspects noticed by the Court, the Bhagalpur Municipal Corporation was advised not to hold elections atleast within one year of the last election. In accordance with the advice of the Additional Advocate General II, the Court is informed today by State Counsel, S.C. 8, that the Chief Executive Officer, Bhagalpur Municipal Corporation has stayed his action and is not pursuing the matter as of now. 3. In accordance with the advice of the Additional Advocate General II, the Court is informed today by State Counsel, S.C. 8, that the Chief Executive Officer, Bhagalpur Municipal Corporation has stayed his action and is not pursuing the matter as of now. 3. The Court would have finally heard this matter after the summer vacation to accommodate the Additional Advocate General II, who is reported to be suffering from a knee injury. It was understood at the Bar between the parties, the petitioners and the respondents i.e. the State and the Municipal Corporations as arrayed, that the hearing of this matter would be after the summer vacation and in between whatever be the situation, the status quo would continue. 4. In between have come intervenors. This is a matter, which concerns the working of a democracy within self government institutions, the third tier of the government after the amendments were brought in to the Constitution by insertion of chapters on Panchayats and Municipalities. The pattern on the form and tenure of self governments (the Parliament and the State Legislatures not excluded) has been set by the Constitution. As a symmetry the tenure is five years for the three tiers of government. No one is at issues on this. The issues for the debate are in the Courts order dated 12.3.2003 reproduced below : "In this petition submissions and grounds have been sufficiently taken to highlight the aspect that the tenure of a Mayor to a Municipal Corporation is not compatible with the tenure of the elected representatives under Part IX A (the Municipalities) of the Constitution of India. The submission which is being made is to the effect that while the Chief Executive Officer has a tenure of 5 years and his appointment is a subject matter of consultation "by the State after consultation with the Public Service Commission and the Mayor", the Mayor himself has a tenure of one year only. The tenure of the Mayor must be quo terminus with that of tenure of the elected representatives, it is contended. As the petitioner submits on ultra vires of Section 19 of the Patna Municipal Corporation Act, 1951, as a formality let notice be issued to the Advocate General, Bihar. Notice is made returnable after a fortnight. It may be mentioned on record that in this case notice on the petition has already been issued on 21.2.2003. As the petitioner submits on ultra vires of Section 19 of the Patna Municipal Corporation Act, 1951, as a formality let notice be issued to the Advocate General, Bihar. Notice is made returnable after a fortnight. It may be mentioned on record that in this case notice on the petition has already been issued on 21.2.2003. Put up for admission after a fortnight in the supplementary list. Let a copy of this order be immediately given to the Additional Advocate General II." 5. The intervenors have come with another case. They contend that the tenure of Mayors is not even one year. When the court pointed to the Constitution which suggests that the tenure may be co-terminus with the life of the elected body, their counsel virtually stated that the state law would prevail. The Court mentions this because for 25 years Bihar has lost its experience of the third tier of government. Despite the order of the Supreme Court in re : Dr. D.C. Wadhwa and others V/s. State of Bihar & Ors.; A.I.R. 1987 SC 579 (commonly known as the Ordinance Raj case), elections to self government institutions were not held for another thirteen years. A misplaced interpretation within the State government that the Supreme Court had directed that the election may remain stayed was cleared in the year 2001 so that Bihar saw elections to bring in the third tier of government. These were the Panchayats, and later, came and Nagar Panchayats, Municipalities and the city Corporations. 6. Now the intervenors contended that if section 19 were to be seen then the time has come for the Mayors who were elected only last August or September, to quit their offices. The intervenors are ward members. Their contention is that the financial year closed with March, and the first meeting of the new financial year must see a new Mayor in place. This is the contention of the first intervenor. The second intervenor was quite frank about the submission when the court put a proposition that should a Mayor come into office on 31 March then according to him during the next week of April a fresh election must be held for the Mayors office leaving the last Mayor a tenure of a few days. The Court was told that such is the law and if the law is an ass, then, the advantage is of this intervenor. The Court was told that such is the law and if the law is an ass, then, the advantage is of this intervenor. At the time of dictation of this order the Court was requested not to put the submission in print, test it may be misunderstood as contemptuous. It was indicated to learned counsel that the Court had not lost its humour when he could not locate the author of the quotable quote. It is Charles Dickens in Oliver Twist. This argument suggests an assembly line of Mayors and of many Mayors in a year. And why apprehend contempt action if politics plays with the law. The Court was being indicated on the logic of law in section 19 to suggest that it specifies that the tenure of Mayor will conclude at the first meeting in the next financial year, and even to the extent that a Mayor in March will go in April next. 7. Let politics in a democracy not wreak local self government. Let the centres of power in State capitals and the national capital nurse self government institutions, otherwise the argument of intervenors suggests syndicalism playing the toppling game. Then, indeed, politics with a dirty meaning will overturn and destroy self governing institutions and intervenors will as they say make the law look like an____. On the contrary, "The life of the law has not been logic, it has been experience 8. This Court is not denying access to any intervenor to make submission more so in a State where democracy had been held to ransom and self government institutions held at by for almost ten years even after the Constitution was amended. 9. On the other hand, petitioners are pointing out that section 19 as it stands in the Act is out dated. It is contended that this section is as old as half a century. It is submitted that when the Constitution of India brought in self government by 73rd and 74th amendments, the tenure of an elected body of self government institutions, like Parliament and the State Legislature cannot be less than five years. Further, the Constitution also takes care of any mischief to specify that the intervening period during which elected members may not be in office cannot be more than six months, a pattern which is compatible with the federal parliament and the State legislatures. Further, the Constitution also takes care of any mischief to specify that the intervening period during which elected members may not be in office cannot be more than six months, a pattern which is compatible with the federal parliament and the State legislatures. In the circumstances, it is contended that any tenure which might have been guaranteed to institutions of self government will have to be compatible with the pattern which has been set and provided by the Constitution. It is the case of the petitioners that far from the tenure being one year, in fact, as long as this one year exists in section 19, it is ultra vires to the Constitution. The contention is that the tenure of Mayors is five years. 10. This Court has already issued notice to the Advocate General, Bihar, to make this address or redress the legislation to fall in line with the Constitution. The Advocate General has yet to submit. The counter affidavit of the State does accept an annual election. It also mentions that in some States it is one year and yet in others-two and half years, and in some five years. The counter affidavit also submits that "the matter has been referred to the Law Department for there (sic) comments. Till the orders of the Government are obtained in the matters at present, it can only be submitted that the issues are at present under active consideration of the Government and the matter has to be discussed and debated at different forums before it can be considered for enactment." It further submits that "steps are being taken to enact a unified Municipal Law for all categories of Urban Local Bodies in Bihar." The need to fall in line with the Constitution is, thus, not denied. 11. There is an attempt to disturb the balance, while this case is pending; to bring in new Mayors" while those who are holding office at present have barely been in office for less than five months (when the case was brought to the High Court). At present, the learned Additional Advocate General II has advised the government that while the matter is being debated nothing should be done. It was understood that the tenure of the Mayor would at least be one year. At present, the learned Additional Advocate General II has advised the government that while the matter is being debated nothing should be done. It was understood that the tenure of the Mayor would at least be one year. If and when the court holds section 19 as ultra vires to the Constitution, then may arise the occasion whether the Mayor may have a tenure for five years or not. There is an attempt, clearly to dislodge the Mayors who were elected in last August and September, a few months ago. 12. The section refers to an annual election of Mayors. It speeks of a first meeting each year and to hold office until the first meeting in the next following year. The court has no hesitation in holding that even though the Act was drafted in 1951, notwithstanding the issue whether section 19 is ultra vires or not, the law does suggest that Mayors have a term of one year. He may be dislodged for any other reason but this is not an aspect before the Court. Otherwise, it will lead to a ridiculous result of a Mayor coming into office on 31 March and get bundled out of office next week in April, The law has not ordained such a situation. The tenure of Mayor is atleast of one year from the date they take charge of their office. 13. Put up the matter in July, 2003 in the supplementary list. 14. Let a copy of this order be handed over to the State counsel.