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2005 DIGILAW 411 (PAT)

Narayan Prasad v. State of Bihar

2005-04-08

body2005
ORDER Heard learned counsel for the petitioner and learned counsel for State. 2. The petitioner who is the Chairman of the Daudnagar Nagar Panchayat has filed this writ petition assailing the resolution of the Panchayat Samiti dated 23.11.2004, Annexure-8 to the I.A. No. 5904/94 where under no confidence motion against him has been carried through by a majority of 12 votes of nil as none opposed the motion. 3. Counsel for the petitioner Sri Rajendra Pd. Singh, Sr. Advocate initially submitted that the Nagar Panchayat has altogether 20 members out of which 18 are elected and two are ex-officio nominated members and as motion of no confidence was carried by a majority of 12 only, the resolution is violative of the provisions contained in Section 34 of the B. & O. Municipal Act, 1922 which inter alia provides that the motion of no confidence against the Chairman in order to succeed must be carried through by a majority of not less than 2/3rd of the whole number of the Commissioners. According to the learned counsel, majority of 12 is not 2/3rd of the total number of 20 Commissioners. In support of the aforesaid contention, learned counsel has relied on a Division Bench judgment of this Court rendered in the case of Binod Kumar Srivastava Vs The State of Bihar and others reported in 1990 PLJR 456 wherein Division Bench of this Court considered Section 34 of the aforesaid Act and held that the resolution of no confidence should be carried by 2/3rd of the whole number of the Commissioners i.o. both the elected and nominated category of Commissioners. In the said case Division Bench of this Court considered the meaning of the word whole and held that the word is synonym of the word total and as the motion of removal was not carried through by 2/3rd majority of the total number of Commissioners the motion is contrary to the provisions contained in Section 34 of the Act. I regret my inability to accept the aforesaid decision rendered in the case of Binod Kumar Shrivastava (supra) in view of the subsequent judgment of the Hon'ble Supreme Court in he case of Ramesh Mehta Vs. I regret my inability to accept the aforesaid decision rendered in the case of Binod Kumar Shrivastava (supra) in view of the subsequent judgment of the Hon'ble Supreme Court in he case of Ramesh Mehta Vs. Sanwel Chand Singhvi and others, reported in AIR 2004 SC 2258 in which Hon'ble Supreme Court had the occasion to consider the similar provision with reference to the Rajasthan Municipalities Act (38 of 1959), as amended in 1994 and the Hon'ble Supreme Court held that the expression whole number of member shall include only the elected members and not ex-officio members. In view of the aforesaid judgment of the Hon'ble Supreme Court motion of no confidence having been carried by a majority of 12 Commissioners out of 18 elected Commissioner is 2/3rd majority of the elected Commissioners and there is no illegality in the resolution dated 23.11.2004. 4. Learned counsel for the petitioner then submitted that notice dated 10.11.2004, Annexure-4 calling the special meeting on 23.11.2004 was issued by the requisitionist themselves without making a request to the Vice-Chairman of the Nagar Panchayat to call the meeting to consider the motion of no confidence and the notice is violative of the provisions contained in sub-section 2 of Section 34 of the Act. I regret even to accept this submission as in terms of sub-section (2) of Section 34 of the Act on the refusal of the Chairman it is either the Vice-Chairman or the requisitionist who is empowered to call the meeting once the Chairman has failed to act on the requisition. From the notice itself it appears that the requisitionist had earlier requested the Chairman (the petitioner) to call the special meeting on 16.10.2004 and when he did not call the meeting on 16.10.2004 the requisitionist had no option but to call the special meeting dated 23.11.2004. 5. There is no error either in the notice dated 10.11.2004 or the resolution dated 23.11.2004, Annexures-4 and 8. This being the position, the writ petition is accordingly dismissed.