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2005 DIGILAW 128 (PAT)

Jitendra Kumar Yadav v. State Of Bihar

2005-02-08

NAGENDRA RAI, S.N.HUSSAIN

body2005
Judgment Nagendra Rai, J. 1. The petitioners who are Councillors of the Gaya Municipal Corporation (hereinafter referred to as the Corporation) has filed the present writ application in the nature of P.I.L for quashing the order dated 20.12.2004 contained in letter No. 4205 of the said date issued by the Ministry of Urban Development, Bihar, Patna directing to reinstate Asha Devi as a Mayor of the Corporation, who according to the petitioner, was removed by resolution dated 29.11.2004 in pursuance of no confidence motion brought and passed by 33 Ward Councillors present out of 40 ward Councillors of the Corporation. A copy of the said order has been annexed as Annexure-6 to the writ application. The said order has been passed by the Department on the ground that under the provisions of Patna Municipal Corporation Act, 1951 (hereinafter referred to as the Act), there is no provision to bring no confidence motion against a Mayor. 2. The factual foundations culminating into the present dispute are as follows. 3. In pursuance of 73rd and 74th amendment of the Constitution of India the State Government decided to hold an election of the Municipal Corporations in the State in the month of February, 2002. The Corporation consists of 40 Ward Councillors. The elections were held and 40 Ward Councillors were elected out of whom two were ladies candidates belonging to scheduled caste and were elected from Ward Nos. 3 and 9 respectively. 4. The Election Commission, Bihar, issued a notification dated 8.8.2002 reserving the post of Mayor of the Corporation for the Scheduled Caste Women Councillors. The Chief Executive Officer of the Corporation fixed 7.9.2002 for election of the Mayor and Deputy Mayor and accordingly a meeting was hefd on the said date. There were only two ladies candidates as stated above. Asha Devi, intervenor, respondent No. 8 and Lacho Devi. Asha Devi raised a claim that Lacho Devi was not a Scheduled caste and the matter was sub judice as a result of which Asha Devi remained as only woman scheduled caste candidate and accordingly on 7.9.2002, she was elected as a Mayor of the Corporation and petitioner No. 1 Jitendra Kumar Yadav was elected as Deputy Mayor of the Corporation. The Mayor started functioning in arbitrary manner and committed many misdeeds, misconduct and assaulted the Chief Executive Officer for which a case was registered against her. The Mayor started functioning in arbitrary manner and committed many misdeeds, misconduct and assaulted the Chief Executive Officer for which a case was registered against her. Her behaviour was so arrogant that the Chief Executive Officer was transferred one after another and no one was allowed to work peacefully. The Ward Councillors having noticed the. inaction, incompetency, misbehavior with the employees and deficiencies in her performance, 30 Councillors filed a requisition for no confidence motion against the Mayor Asha Devi, respondent no. 8 under section 20 of the Act on 16.11.2004, which has been annexed as Annexure-2 to the writ application. The said requisition was sent to respondent No. 8 Asha Devi, Mayor but she did not call the special meeting and thereafter requisition was sent to the Deputy Mayor by the Chief Executive officer of the Corporation and on 25.11.2004, the Deputy Mayor called a special meeting on the basis of the said requisition and fixed 29.11.2004 at 11.30 A.M. for discussion and accordingly, notice was issued to all the Councillors for the special meeting, vide annexure-3 to the writ application. 5. The special meeting was held on 29.11.2004 which was attended by 33 councillors out of 40 and all the Councillors present in the meeting voted in favour of no confidence against the Mayor and resolved to send recommendation under section 20 of the Act to the State Government for removal from the post of the Mayor, respondent No. 8 as well as Councillor also. A copy of the proceeding was also sent to the State Government by the Chief Executive Officer, vide Annexure-4 to the writ application. When the minutes of the proceedings of the no confidence motion were placed before the Minister, Urban Development, Govt. of Bihar on 29.11.2004 itself, he ordered to take opinion of the Law Department. Thereafter as it appears from the file as it was placed by the State Counsei before this Court that respondent No. 3, Arun Kumar Singh, Joint Secretary, Urban Development Department, Govt. of Bihar on 29.11.2004 itself, he ordered to take opinion of the Law Department. Thereafter as it appears from the file as it was placed by the State Counsei before this Court that respondent No. 3, Arun Kumar Singh, Joint Secretary, Urban Development Department, Govt. of Bihar, Patna submitted a note that there is no provision for expressing no confidence motion against the Mayor and as such a direction may be issued to the Chief Executive Officer not to give effect to the aforesaid minutes, but the Minister on that file wrote that as the matter is pending in the High Court, it is better to await decision of the Court on 14.12.2004. At this stage it is to be pointed out that ousted Mayor, respondent No. 8, filed a writ application being CWJC No. 15469 of 2004 with regard to no confidence motion about which reference has been made by the Minister in his note on 14.12.2004. The matter was adjourned and that was withdrawn on 20.12.2004. 6. Again respondent No. 3 Arun Kumar Singh, Joint Secretary, Urban Development Department, Govt, of Bihar, on 18.12.2004 without taking opinion from the Law De- partment or fresh material presented the file before the Minister to issue a direction not to give effect to the no confidence motion as the High Court may make ad- verse order against the department in the aforesaid pending writ application. Thereaf- ter, the Minister having observed that tak- ing opinion from the Law Department will take time ordered for issuance of letter reinstating the Mayor, respondent No. 8, which has been challenged as contained in Annexure-6 to the writ application. 7. According to the petitioners, the aforesaid decision taken by the State Government suffers from infirmities on the following grounds. (i) The authorities having ignored the provision of Section 20 of the Act which contains a provision for removal of Councillors on the grounds mentioned therein passed the order hurriedly even without taking any final decision in the matter and taking opinion of the Law Department. (i) The authorities having ignored the provision of Section 20 of the Act which contains a provision for removal of Councillors on the grounds mentioned therein passed the order hurriedly even without taking any final decision in the matter and taking opinion of the Law Department. (ii) The authorities also ignored the judgment rendered by a Division Bench of this Court in the case of Bihar Mayor Council V/s. The Union of India & Others, reported in 2003 (4) PLJR 649 where this court having held the provision of Section 19 of the Act which provides the term of Mayor and the Deputy Mayor one year as ultra vires held that the term of the Mayor should be five years and further held in paragraph 18 of the said judgment that the Mayor can be removed by no confidence motion which is a part of the democratic process. (iii) No final decision has yet been taken as appears from the record and without taking final decision on the matter, the order was passed for reinstatement of the Mayor which has been ousted by the majority of the Councillors which is an arbitrary and lacks bonafide. 8. Learned counsel appearing for the State and intervenors combatted all the submissions advanced on behalf of the petitioners and submitted that there being no provision for moving the no confidence against the Mayor, once the Mayor is elected, he cannot be removed unless he vacates the office and as such the decision taken by the Councillors in a specially convened meeting was without jurisdiction and the State Government rightly held that no effect should be given to the same. It was also pointed out that some of the Councillors has criminal antecedents, but in our view, that is not the relevant fact to be decided while deciding the question involved in the matter. 9. In view of the respective submissions advanced at the bar, two questions arise for consideration in this case, the first is as to whether the Mayor can be ousted by vote of no confidence and the second is as to whether in view of the provision of Section 20 of the Act, for misconduct, the Councillor, who is a Mayor also, can be removed from both offices. 10. 10. It is not disputed during course of argument that out of 40 Councillors, 33 were present in the specially convened meeting and passed a vote of no confidence. The controversy is with regard to legal provision. 11. Three sections, namely, 19, 20 and 529 are relevant for the purpose of this case and they are reproduced below. 19. Annual election of Mayor ana Deputy Mayor. (1) The Corporation shall, at its first meeting each year elect from amongst the Councillors, a Mayor and a Deputy Mayor to hold office until the first meeting in the next following year. (2) If any casual vacancy occurs in the office of Mayor or Deputy Mayor, the Corporation shall, as soon as may be after the occurrence of such vacancy, elect a Councillor to fill such vacancy; and the Mayor or Deputy Mayor so elected shall continue in office for the unexpired term of his predecessor. (3) Any Councillor who ceases to be a Mayor or Deputy Mayor shall be eligible for further election to either office. 20. Removal of Councillors. (1) The State Government may at any time remove a Councillor (a) if he becomes incapable of acting as Councillor and the Corporation recommends his removal by a majority of two-thirds of the Councillors present and voting at a meeting specially convened for the purpose; or (b) if he is guilty of any misconduct in the performance of his duties under this Act and if the Corporation recommends his removal by a majority of two-thirds of the Councillors present and voting at a meeting specially convened for the purpose; or (c) If he, being a legal practitioner, acts or appears on behalf of any other person against the Corporation in any legal proceeding or against the State Government in any such proceeding relating to any matter in which the Corporation is or has been concerned, or acts or appears on behalf of any person in any criminal proceeding instituted by or on behalf of the Corporation against such person. (2) If three-fourths of the registered electors of any ward submit a representation to the State Government alleging that any Councillor representing the ward is unfit to continue in office, the State Government, after making such inquiry as it thinks fit, may remove the Councillor: Provided that no Councillor shall be so removed unless he has held office for a period of one year from the date he entered upon his office. (3) No order under sub-section (1) or sub-section (2) shall be passed until reasonable opportunity has been given to the person concerned to furnish an explanation. (4) All acts done by any Councillor removed under this section and proceedings in which he may have taken part shall, if done or held previously to such removal, be valid and effectual to all intents and purposes. (5) Removal from office under subsection (1) or sub-section (2) shall disqualify the person so removed for further election, selection or appointment to the office from which he is removed for a period of three years from the date of his removal. 529. Power of State Government to suspend any resolution or order. (1) If the State Government is of opinion that execution of any resolution or order of the Corporation or of any other authority or officer subordinate thereto, or the doing of any act which is about to be done or is being done by or on behalf of the Corporation is not in conformity with law or the rules or bye-laws made thereunder, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons or is likely to cause waste or damage to the municipal fund, the State Government may, by order in writing suspend the execution of such resolution or order or prohibit the doing of any such act. (2) A copy of such order of the State Government shall thereupon be sent to the Corporation by the State Government. (2) A copy of such order of the State Government shall thereupon be sent to the Corporation by the State Government. (3) On receipt of a copy of the order as aforesaid, the Corporation may, if it is of opinion that the resolution, order or act is not in contravention or excess of the powers conferred by any law tor the time being in force, or the execution of the resolution or the doing of the act is not likely to cause waste of or damage to the municipal fund, make a representation to the State Government against the said order and the State Government may, after considering the said representation either cancel, modify or confirm the order passed by it under sub-section (1) or take such other action in respect of the matter as may in the opinion of the State Government be just or expedient, have regard to all the circumstances of the case." 12. So far Section 19 of the Act is concerned, it contains a provisions with regard to annual election of Mayor and Deputy Mayor. Under Article 243U of the Constitution, the duration of Municipalities which includes Corporation is for five years. 13. A PIL being CWJC No. 1019 of 2003 (Bihar Mayor Council V/s. The Union of India & others) [Reported in 2003(4) PLJR 649 ] was filed in this Court for deciding the question as to whether the provision of Section 19 of the Act is valid in view of the Constitutional provision contained under Article 243U of the Constitution. This Court having considered the aforesaid provision held that annual term of the Mayor and Deputy Mayor is against the spirit of the Constitution as it ultra vires the Constitution. The Mayor and the Deputy Mayor shall have the tenure which is co-terminus with the life of the municipality or corporation unless their tenure is curtailed for any reasons like, resignation, no confidence motion, disqualification etc. This court further held in specific term in paragraph 18 "the Circumstances by which a tenure of a Chairperson may come to an end prematurely, could be a resignation tendered by him which is an act voluntary to any public office. This court further held in specific term in paragraph 18 "the Circumstances by which a tenure of a Chairperson may come to an end prematurely, could be a resignation tendered by him which is an act voluntary to any public office. The other circumstances could be a motion of no confidence which is part of the democratic process." The said judgment was challenged by the State Government before the Apex Court in Special Leave to Appeal (Civil) No. 24112 of 2003 wherein leave was granted and in the meantime election was ordered to be held as per impugned judgment, meaning there by that the tenure of the Mayor and the Deputy Mayor will be for five years and not one year as provided under section 20 of the Act. 14. Thus, from reading of Section 19 of the Act as well as judgment of this Court as quoted above, two things are clear, namely, the term of Mayor and the Deputy Mayor is co-terminus with the terms of the Corporation which is for five years and the Mayor can be removed by issuing a no confidence motion. 15. Section 20 of the Act as quoted above contains a provision for removal of the Councillors by the State Government on three grounds, namely, if he becomes incapable of acting as Councillor or is guilty of any misconduct in the performance of his duties under this Act or he, being the legal practitioner, acts or appears against the interest of the Corporation. In case of two categories, the recommendation has to be made by the Corporation by two-thirds of the Councillors present and voting at a meeting specially convened for the purpose. Thus, on the recommendation by a majority of two-thirds of the councillors present and voting at a meeting specially convened for the purpose with regard to incapability or misconduct, the State Government has power to remove a Councillor. 16. Power is vested in the State Government under section 529 of the Act to suspend or prohibit of doing any act in accordance with the resolution of the Corporation and other authorities as mentioned therein, if the resolution is not in conformity with law or the rules or byelaws made thereunder or is likely to make a breach of the peace and the other circumstances not relevant to be referred here. 17. 17. Admittedly, the notice was issued for moving a no confidence against the Mayor on the basis of misconduct under section 20 of the Act and that has been passed by more than two-thirds of the Councillors present and voting. There is no doubt that Mayor is a Councillor and once it is found that the Councillor working in any capacity even as a Mayor has committed misconduct, then two-thirds majority of the councillors has power for removal of the Mayor and the State Government on being satisfied may remove or suspend the resolution as the situation may demand in terms of the aforesaid provision. 18. Thus, the ground given by the State Government as appears from the noting of the Joint Secretary, Urban Development Department, which has been approved by the Minister shows complete non-application of mind regarding the statutory provision. To say that there is no provision for removing the Mayor is thus contrary to law as the Mayor has committed misconduct and admittedly, he or she is a councillor, then Section 20 of the Act is attracted. 19. As stated above, this Court has already held that Mayor can also be removed by vote of no confidence and that judgment has not been stayed by the Supreme Court and as such the State Government cannot act contrary to law laid down by this Court. Thus, the ground given that there is no provision for moving no confidence against a Mayor is also contrary to law laid down by a Division Bench of this Court. This apart, the State has not passed as yet final order, not taking opinion of the Law Department and hurriedly has nullified the resolution of no confidence motion passed by a majority of Councillors. In other words, democratic process followed by majority of Councillors in a specially convened meeting has been nullified by the State Government which is contrary to law. 20. Accordingly, the order dated 20.12.2004 as contained in Annexure 6 to the writ application is quashed. The State Government is now directed to consider the matter in the light of the observations made above. The consideration of the matter will naturally take some time and as such the question arises as to who should look after the affairs of the Corporation. The State Government is now directed to consider the matter in the light of the observations made above. The consideration of the matter will naturally take some time and as such the question arises as to who should look after the affairs of the Corporation. The Deputy Mayor who is petitioner No. 1, is also involved in several criminal cases and some cases are pending in this court also with regard to decisions taken by him and this court has passed some orders. In such situation, it is not proper to allow him at present to work as Incharge of the Corporation. Respondent No. 8, Asha Devi, as stated above, has already voted out by a majority of Councillors and as such it will not be proper to allow her also to continue as Mayor. To keep peace and for proper management of the Corporation, I think till the matter is decided by the State Government, the Collector-cum-District Magistrate, Gaya is made Incharge of the Corporation and he will look after the affairs of the Corporation and the State Government will decide the matter within a period of two months from the date of receipt/production of a copy of this order. 21. With the aforesaid observations/directions the writ application is allowed. S.N.Hussain, J. 22 I agree.