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2007 DIGILAW 177 (PAT)

Sunita Devi v. State Of Bihar

2007-01-25

S.N.HUSSAIN

body2007
Judgment 1. These two writ petitions have been heard together and are being disposed of by this common order as both of them arise out of different stages of the same proceeding of no-confidence-motion against the petitioner Sunita Devi, who was the Chairperson of Munger Nagar Parishad (hereinafter referred to as Parishad for the sake of brevity). CWJC No. 3958 of 2006 has been filed by the said Sunita Devi (i) for quashing notice dated 16.3.2006 issued under the signatures of six Ward Commissioners (respondents no. 6-11) fixing 27.3.2006 as the date of special meeting of the Parishad for deciding the noconfidence-motion against the petitioner and also (ii) for restraining the respondents from holding any special meeting for no-confidence-motion against the petitioner in the light of Letter no. 128/sa dated 13.3.2006 issued by the Parishad under the signature of its Executive Officer and also in the light of resolution dated 30.7.2005 of the Parishad. On the other hand CWJC No. 5199 of 2006 was filed by the said Sunita Devi alongwith five other Ward Commissioners of the Parishad (i) for quashing the decision and proceeding of the Special meeting of the Parishad dated 27.3.2006 removing the said Sunita Devi from the office of Chairperson of the Parishad and also (ii) for quashing Letter no. 780-C dated 15.4.2006 issued by the Sub-Divisional Officer Munger for election of new Chairperson of the Parishad on 17.4.2006. However, no fresh election was held either on that date or even subsequently as this court passed its order dated 23.6.2006 in CWJC No. 5199 of 2006 in that regard. 2. Admitted facts of these two cases are that in the election of Ward Commissioner from Ward No. 3 at Laldarwaza under Munger Municipality held in the year 2002, petitioner Sunita Devi was elected as Ward Commissioner and after declaration of the results of elections of all the thirty five wards under the said Municipality, Nagar Parishad Board of Munger was constituted on 15.6.2002 consisting total number of thirty five Ward Commissioners, who elected the petitioner as Chairperson of the said Parishad on the same date and since then petitioner was continuing on that post. About three years thereafter fifteen members (Ward Commissioners) of the Parishad gave application before the District Magistrate, Munger on 11.5.2005 to call a special meeting of the Parishad for removal of the petitioner from the post of Chairperson of the Parishad under the provision of Sec.34 of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as the Act for the sake of brevity), a copy of which was also given to the Sub-Divisional Officer, Munger-cum-Executive Officer of the Parishad at whose instance the petitioner as the Chairperson of the Parishad fixed 21.5.2005 as the date for convening the said special meeting, notices of which were sent to all the members of the Parishad, whereafter on 20.5.2005 eleven out of the abovementioned fifteen requisitionists gave an application to the Executive Officer of the Parishad for withdrawal of the said noconfidence-motion, and accordingly the special meeting was not held. Thereafter in the general monthly meeting of the Parishad on 30.7.2005 a proposal of one of the members of Parishad was considered as Proposal No. 19 alongwith other proposals and a decision was taken unanimously on that proposal by the members that no further proposal of no-confidence-motion against the Chairperson, namely the petitioner Sunita Devi, will be brought till one year, as the previous no-confidence-motion fixed for 21.5.2005 had failed. 3. It is also not in dispute that on 28.2.2006 six Ward Commissioners (Respondents No. 5-10 of CWJC No. 5199 of 2006) of the Parishad submitted their application before its Executive Officer under Sec. 44A of the. Act for convening a special meeting for testing the no-confidence-motion against he Chairperson, namely the petitioner Sunita Devi, for her removal from the said post levelling several allegations against her, failing which they would be constrained to themselves call such a meeting under the provisions of the Act. This matter was referred by the Executive Officer on 1.3.2006 to the said Chairperson, who by her note dated 11.3.2006 asked the Executive Magistrate to inform all the members of the Parishad that as per the decision of the Parishad dated 30.7.2006 No-Confidence-Motion against the said Chairperson (Sunita Devi) cannot be moved within one year from that date, whereafter the said decision was circulated by the Executive Officer to all the members of the Parishad vide letter dated 13.3.2006. After the said letter the above named six members jointly issued notice on 16.3.2006 under the provision of Sec. 44(2) read with 34 of the Act calling a meeting of the members for considering the no-confidence-motion against the Chairperson on 27.3.2006 and communicated the same to the members, which was challenged by the Chairperson (Sunita Devi) in CWJC No. 3958 of 2006. 4. Furthermore, it is admitted by the parties that as per the said requisition dated 16.3.2006, the special meeting of the Parishad was convened on 27.3.2006 which was attended by 23 Ward Commissioners, who passed the said resolution of no-confidence-motion against the Chairperson (Sunita Devi) and removed her from that post whereafter the Executive Officer of the Parishad-cum-Sub-Divisional Officer, Munger issued letter dated 15.4.2006 to all the members for election of new Chairperson on 17.4.2006 as per the directions of the District Magistrate, Munger. However, meeting for election of new Chairperson could not be held on 17.4.2006 due to the absence of the Returning Officer. In the meantime, against the aforementioned decision of the Parishad and the letter of the Executive Officer, the said Sunita Devi (Chairperson) alongwith five other Ward Commissioners filed CWJC No. 5199 of 2006 in which interim orders had been passed on 23.6.2006 and 7.7.2006 noting the undertaking of the learned counsel for the State that no fresh election shall be held for the post in question till the writ petition is disposed of. 5. 5. Learned counsel for the petitioners challenged the aforementioned impugned notice, decision, proceeding and letter on several grounds, namely (i) that no second no-confidence-motion can be legally moved within one year from the date of rejection of earlier no-confidence-motion against the same person, (ii) that the Parishad having itself unanimously decided on 30.7.2005 not to move any no-confidence-motion within one year, the calling of no-confidence-motion on 27.3.2006 as bad, (iii) that any notice for no-confidence-motion must contain the subject and allegations, but nothing was mentioned in notice dated 16.3.2006 as to what was to be discussed, (iv) that the action of the Executive Officer of the Parishad, who conducted the meeting of no-confidence-motion on 27.3.2006, was mala fide as he had grudge against the petitioner, who had filed complaint dated 27.6.2005 against him for financial embezzlement and he was earlier removed from the post of Executive Officer of the Parishad as per the order of the High Court, (v) that number of members actually voting in the meeting of 27.3.2006 was only seven, (vi) that even as claimed by the petitioner number of persons voting in favour of the no-confidence-motion was merely twenty three out of a total number of thirty five and hence it was not two-third as required by Sec.34 of the Act, (vii) that petitioner no. 3 and respondent no. 8 of CWJC No. 5199 of 2006 were included among the twenty three members voting in favour of the motion, but they were forced to sign on the resolution by the other members as had been stated by them on affidavit, and (viii) that whole number legally means total number of the Board, which would include members who have resigned or who have died, hence out of thirty five members only tv/enty one members had voted, which cannot be two-third as required by law. 6. Although several respondents appeared in the writ cases and several intervenors filed their interlocutory applications, but only respondent no. 8 of CWJC No. 5199 of 2006 who is respondent no. 9 of CWJC No. 3958 of 2006 appeared to support the claim of the petitioners, whereas respondent nos. 5, 6, 9 and 10 of CWJC No. 5199 of 2006, who are respondents no. 8 of CWJC No. 5199 of 2006 who is respondent no. 9 of CWJC No. 3958 of 2006 appeared to support the claim of the petitioners, whereas respondent nos. 5, 6, 9 and 10 of CWJC No. 5199 of 2006, who are respondents no. 6, 7, 10 and 11 of CWJC No. 3958 of 2006 contested the claim of the writ petitioners and were supported by the learned counsel for the intervenor Smt. Anita Sahu who has filed I.A. No. 4265 of 2006 in CWJC No. 5199 of 2006. The learned Additional Advocate General appeared for the State of Bihar and its authorities and he alongwith the Standing Counsel of the Munger Municipality contested the claim of the petitioner at length. No learned counsel for any other intervenors appeared to place their claim and press their interlocutory applications although several opportunities and adjournments were given for that purpose. Considering the facts and circumstances the intervention petition bearing I.A. No. 4265 of 2006 filed by Smt. Anita Sahu who is also an elected Ward Commissioner of the Parishad is allowed, whereas the other intervention petitions bearing I.A. No. 5174 of 2006 and I.A. No. 5175 of 2006 are rejected. 7. After hearing the learned counsel for the contesting parties and after perusing the materials on record as well as the provisions of law it is quite apparent that there is no provision in the entire Act providing a bar for calling a meeting of no-confidence-motion within one year from the date of rejection of earlier no-confidence-motion against the same person and hence the notice dated 16.3.2006 issued by six members of the Parishad for convening a meeting of no-confidence-motion cannot be said to be illegal on that ground. Furthermore there was no occasion for rejection of the earlier no-confidence-motion as the special meeting fixed for the said purpose on 21.5.2005 was never convened due to the withdrawal of the said motion by the requisitionists themselves on 20.5.2005 and hence there being no question of any first no-confidence-motion or second no confidence-motion, the plea of the petitioner is not tenable in law, nor on that ground notice dated 16.3.2006 calling a meeting of no-confidence-motion on 27.3.2006 can be held to be illegal or bad. 8. 8. Moreover even the resolution of the Parishad dated 30.7.2005 cannot be of any help for the petitioners as it can at best be termed as self restriction for not moving any proposal of no-confidence-motion against the Chairperson, namely Sunita Devi, till one year and hence such self imposed restriction cannot be legally assumed to be a binding law, specially when the said resolution was passed clearly under misconception of the legal provision with respect to any such bar. In this regard, learned counsel for the petitioner wrongly relied upon the decision of this court in case of Smt. Shyama Devi vs. The State of Bihar and Others, reported in 2002(2) PLJR 765 . as it was with respect to Gram Panchayat Act and was challenged in the Hon ble Apex Court which decided the matter in case of Mithilesh Singh and Others vs. State of Bihar and Others, reported in 2002(4) PLJR (SC)75 holding that the aforesaid observations made in the said order of this High Court were not binding as they were mere suggestions. Hence as per the said decision such suggestions may or may not be followed by the State Government and thus the State Government rightly followed the said suggestions in the case of Gram Panchayats by way of inclusion of such provision in the new Gram Panchayat Act, 2006 because the aforesaid case laws were only with respect to the Gram Panchayat Act, 1993. But the State Government did not follow the said suggestions with respect to the Municipal Act in which no such bar was provided and the aforesaid case laws were also not with respect to Municipal Laws. Accordingly, the decision of this court in case of Smt. Shyama Devi (supra) does not support the case of the petitioners. 9. But the State Government did not follow the said suggestions with respect to the Municipal Act in which no such bar was provided and the aforesaid case laws were also not with respect to Municipal Laws. Accordingly, the decision of this court in case of Smt. Shyama Devi (supra) does not support the case of the petitioners. 9. From the admitted facts of this case it is quite apparent that six Ward Commissioners of the Parishad submitted their requisition on 28.2.2006 before the Executive Officer for convening a meeting for testing the no-confidence-motion against the Chairperson (Sunita Devi) and that requisition contained the subject matter and the allegations against the Chairperson (Sunita Devi) in detail as required by law and the said requisition was sent through the Executive Officer to the petitioner, Sunita Devi (Chairperson), who refused to convene the meeting, hence there was no occasion for the requisitionists to repeat the same subject matter and allegations against the Chairperson again in the notice dated 16.3.2006 as the requirement of law according to the provision of Sec. 44 of the Act and also according to the decision of this Court in case of Sindhu Devi and Others vs. The State of Bihar and Others, reported in 2002(1) PLJR 281 , had already been fulfilled by the requisition dated 28.2.2006, reference of which had been specifically made in the notice dated 16.3.2006. 10. So far the allegation of mala fide against the Executive Officer is concerned, no material at all is produced by the petitioners in support of their said contentions, although the onus was squarely upon them to prove the same to the hilt, in which they have miserably failed. Mere filing of any complaint by the petitioner Sunita Devi against the said Executive Officer and that too much earlier does not fulfill the said requirement, specially when the motion was to be completed by only counting of votes in the Parishad. The much earlier removal of the said Executive Officer from the Parishad on the orders of the High Court does not show that he was barred from acting as such even temporarily for all times to come. He was merely asked by the District Magistrate to attend the said meeting acting in place of the regular Executive Officer-cum-Sub-Divisional Officer, Munger, who had gone on leave and the matter could not be delayed due to its apparent urgency. He was merely asked by the District Magistrate to attend the said meeting acting in place of the regular Executive Officer-cum-Sub-Divisional Officer, Munger, who had gone on leave and the matter could not be delayed due to its apparent urgency. Hence this ground also taken by the petitioner cannot be legally held to be tenable as per the tactual matrix and the provisions of law. 11. The petitioners have claimed that on the date of the meeting i.e. 27.3.2006 in fact only seven members took part in the voting, whereas signatures of sixteen others, including petitioner no. 3 and respondent no. 8 of CWJC No. 5199 of 2006, were forcibly obtained subsequently, but the petitioners failed to substantiate their claim and allegation by any valid material whatsoever. Mere statements of petitioner no. 3 and respondent no. 8 before this court cannot serve the purpose as they miserably failed to show as to what steps they had taken in that regard after the alleged incident and why they did not move the relevant authorities by way of filing any case or complaint against the persons who had committed such offence. On the other hand, the other members of the Parishad who had voted in support of the no-confidence-motion, including the intervenor falsified the claim of the petitioners and specifically stated that meeting was held on the date fixed i.e. 27.3.2006 in which twenty three members of the Parishad voted in favour of the motion of no-confidence against the petitioner Sunita Devi (Chairperson), which fact is supported by the resolution of that meeting, containing signatures of all the said twenty three members. Thus it is clearly proved that twenty three members of the Parishad took part in the meeting of 27.3.2006 and voted in favour of the motion of no-confidence against the petitioner Sunita Devi (Chairperson). 12. Sec.34 of the Act provides that a Chairman appointed under Sec.12 or elected under Sections 20 or 30 or a Vice-Chairman may at any time be removed from his office by a resolution of the Commissioners in favour of which not less than two-thirds of the whole number of the Commissioners have given their votes at a meeting specially convened for the purpose. In the instant case, it is quite clear that, as discussed above, twenty three Commissioners had given their votes in favour of resolution at the meeting specially convened for the purpose, hence the only question which remains to be decided is that whether twenty three Commissioners would be two-third of the whole number of Commissioners. 13. Article 243-R of the Constitution of India inserted by the Seventy-fourth Amendment of 1994 provided composition of Municipalities including elected members and nominated members, but the said nominated members had no right to vote in such matters. However, in the instant case all the thirty five members of the Parishad were elected members, hence question of nominated member does not arise. Furthermore Articles 90, 94, 179 and 183 of the Constitution of India provide mode for removal of Deputy Chairman of the Council of State, Speaker & Deputy Speaker of House of People, Speaker & Deputy Speaker of Legislature Assembly and Chairman & Deputy Chairman of Legislature Council respectively, but one thing is common in all those provisions that the voting has to be done for passing the resolution of removal by the "then existing members" thereof. 14. Furthermore, the Hon ble Apex Court in case of Rarnesh Mehta vs. Sanwal Chand Singhvi and Others, reported in (2004)5 SCC 409 has held that only members who have got voting rights would constitute the whole number for the purpose of passing any such resolution for the municipalities. In the instant case, admittedly the Parishad was constituted of thirty-five members (Commissioners) out of whom one had died whereas the other had resigned. A dead person or a person who has already resigned cannot be legally presumed to have any voting right and hence they cannot be counted in the whole number. According to the above-mentioned provisions and the case law, the term whole number" for the purposes of Sec.34 of the Bihar and Orissa Municipal Act, 1922 would legally mean total number of existing members having right to vote at the time when such a meeting is specially convened for the said purpose. 15. According to the above-mentioned provisions and the case law, the term whole number" for the purposes of Sec.34 of the Bihar and Orissa Municipal Act, 1922 would legally mean total number of existing members having right to vote at the time when such a meeting is specially convened for the said purpose. 15. Even if the claim of the petitioner challenging the resignation of one of the members mentioned above on the ground that he had resigned from the post of Vice-Chairman of the Parishad and not from the post of Ward Commissioner is accepted, the whole number as per the above discussions would be thirty four out of whom twenty-three members had voted in favour of the motion, which clearly constitute not less than two-third of the "whole number" of the Commissioners as required by the provisions of the Act. Hence the resolution passed by the Parishad regarding no-confidence-motion against the petitioner Sunita Devi (Chairperson) is legal and proper and so is the letter sent by the Sub-Divisional Officer issued on the basis of said resolution. 16. In the aforesaid facts and circumstances, no illegality or irregularity having been found either in the requisition notice dated 16.3.2006 or in the resolution of the special meeting of the Parishad dated 27.3.2006 or even in the letter dated 15.4.2006 issued by the Sub-Divisional Officer, Munger, for election of a new Chairperson of the Parishad, both these writ petitions are devoid of any merit and are accordingly dismissed.