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2010 DIGILAW 881 (PAT)

Gulshan Afroz v. State of Bihar

2010-04-21

NAVANITI PRASAD SINGH

body2010
ORDER By the present writ application, the petitioners had challenged the meeting, as called for by notice dated 06.02.2010 (Annexure-10), fixing 16.02.2010 for consideration of no confidence motion against petitioner nos.1 & 2. During pendency of the writ application, the meeting was convened on 16.02.2010, and by over 2/3rd of total elected Councillors of the Sasaram Municipal Corporation vote of no confidence was passed against petitioner nos.1&2, which has been challenged by the interlocutory application, and as a consequence of vacancy being created subsequent elections were called for, which was again challenged and by interim order of this Court stayed the elections. 2. As the main contending respondents have appeared and filed counter affidavit, the pleadings being complete, with consent of parties, the writ application has been heard for final disposal at this stage itself. 3. The main point for consideration is, whether the meeting for consideration of no confidence motion was validly called for, and the no confidence motion validly carried through where voting was done by show of hands and not by secret ballots. 4. The present case has chequered history where for quite sometime substantial majority of Councillors have been attempting to get a meeting convened for consideration of no confidence against petitioner nos.1&2, but on one pretext or the other the same could not be done and, as such, it would be relevant to note the sequence of events in this regard before coming to the legal issues. 5. Sasaram Nagar Parishad (Sasaram Municipal Corporation) was duly constituted under the provisions of the Bihar Municipal Act, 2007 (hereinafter referred to as the Act). In May, 2007 elections of Councillors were held and pursuant thereto, the petitioner no.1 was elected as Chief Councillor (Chairman) and petitioner no.2 was elected as the Deputy Chief Councillor (Vice Chairman) of the Sasarma Nagar Parishad (Sasaram Municipal Corporation). The main contesting respondents are respondent nos.5&6, who had contested for the post of Chief Councillor and the Deputy Chief Councillor unsuccessfully against petitioner nos.1&2 respectively. On expiry of the two years period from the first election within which by virtue of Section 25(4) no motion of no confidence could be brought, on 10.06.2009, a requisition was made for consideration of no confidence motion against petitioner nos.1&2. On expiry of the two years period from the first election within which by virtue of Section 25(4) no motion of no confidence could be brought, on 10.06.2009, a requisition was made for consideration of no confidence motion against petitioner nos.1&2. Petitioner no.1, who was to fix the meeting for such consideration being of the view that as contemplated by Section 25(4) of the said Act no Rules having been prescribed, he was not obliged to convene such a meeting, did not take any action in this regards. In the meantime, State Government issued an executive circular, as contained in Memo No.23670 dated 22.06.2009, wherein procedure for convening and holding special meeting for consideration of no confidence motion against the Chief Councillor and the Deputy Chief Councillor simultaneously was laid out (Annexure-3). 6. The stand of the petitioner is that instead of framing Rules, State had by executive instructions laid down the procedure, which was not proper. However, as per the said circular, it was provided that the Chief Councillor shall have power to convene the meeting within 7 days and the meeting should be held within 15 days, failing which the District Magistrate was authorized to convene a meeting and preside over the said meeting. The further stand of the petitioner is that petitioner no.1 not having convened the meeting within 7 days, and the meeting not having been held within 15 days, the requisition become infructuous and, as such, he could not call a meeting and no meeting was called for. It is then stated that notwithstanding the aforesaid letter dated 22.06.2009, the Executive Officer of the Municipal Corporation then noticed convening the special meeting on 11.07.2009, which was now challenged by the petitioner no.2 in C.W.J.C. No.7805 of 2009, and by order dated 10.07.2009, this Court stayed the holding of the meeting, which was fixed for 11.09.2009. The challenge to the said meeting was on the ground that it was being done in accordance with the executive circulars dated 22.06.2009, which was invalid. The said writ application being C.W.J.C. No.7805 of 2009 was ultimately disposed of by order dated 14.01.2010, where stay granted was made absolute, meaning thereby, the notice fixing date for special meeting was quashed, but liberty was given to the Councillor to move fresh no confidence motion in accordance with law, if they so desire. The said writ application being C.W.J.C. No.7805 of 2009 was ultimately disposed of by order dated 14.01.2010, where stay granted was made absolute, meaning thereby, the notice fixing date for special meeting was quashed, but liberty was given to the Councillor to move fresh no confidence motion in accordance with law, if they so desire. The reason for quashing the said notice is apparent from the judgment dated 14.01.2010 (Annexure-6) is that this Court in the case of Pawan Kumar Purvey & another Vs. The State of Bihar & Ors. since reported in 2010(1) PLJR 272 held that the executive circular which intended to prescribe procedure for holding special meeting for consideration of no confidence motion against Chief Councillor and the Deputy Chief Councillor simultaneously to be invalid and accordingly the notice issued pursuant to the said circular was set aside. At this stage, I may notice that this Court did not hold that till Rules are framed no such meeting could be convened, rather to the contrary held that a special meeting for consideration of no confidence motion was nothing but a general meeting with a special agenda and had special requirements. It could be convened and held even without Rules as per existing provisions, as noted in the said judgment. 7. No sooner this attempt to call a meeting was set aside by this Court giving liberty, as aforesaid, a fresh requisition in terms of Section 25(4) of the Act was moved by 31 of the 40 elected Councillors of the Sasaram Municipal Corporation on 19.01.2010, for consideration of no confidence motion against petitioner nos.1&2, who were the Chief Councillor and the Deputy Chief Councillor respectively. In the requisition an ordinary (general) meeting was requested to be called for consideration of no confidence as a special agenda. Here again, petitioner no.1 instead of convening the meeting sought legal opinion from the Lawyer for the Municipal Corporation, who opined (Annexure-8) that in absence of Rules enacted with reference to Section 25(4) meeting could not be convened. At this stage itself, I may mention that this sought for opinion is totally misconceived, in view of the judgment of this Court in the case of Pawan Kumar Purvey (supra), which was noticed by the learned Lawyer but not understood. To buy further time petitioner no.1 also sought opinion from the District Magistrate in this regards. At this stage itself, I may mention that this sought for opinion is totally misconceived, in view of the judgment of this Court in the case of Pawan Kumar Purvey (supra), which was noticed by the learned Lawyer but not understood. To buy further time petitioner no.1 also sought opinion from the District Magistrate in this regards. Apparently, being fed up with this delaying tactics of petitioner no.1, 31 elected Councillors out of 40 then noticed petitioner nos.1&2 by notice dated 06.02.2010 (Annexure-10), to attend the meeting special being requisitioned and fixed for 16.02.2010 for consideration of no confidence against petitioner nos.1&2. It is this notice which is first challenged in these proceedings on the ground that there is no provision under the Municipal Act authorizing the Ward Councillors to take a decision on their own to convene a special meeting and that too without laying out charges in that regards in the requisition. 8. As no stay was granted, the special meeting was duly convened on 16.02.2010, and upon votes being taken by show of hands, the motion of no confidence as against petitioner nos.1&2 were passed by a majority of over 2/3rd of the elected members as against the requirement of simple majority of elected members. Consequent to the vacancy caused, election programme for electing new Chief Councillor or Deputy Councillor were issued, both of which were challenged by the subsequent interlocutory application. 9. Having heard the arguments at length, in my view, the writ application does not merit consideration and is liable to be dismissed. 10. So far as petitioners’ contention that no Rules having been prescribed as contemplated under Section 25(4) of the Bihar Municipal Act, 2007, no meeting could at all be convened for considering no confidence motion against the Chief Councillor and the Deputy Chief Councillor is concerned, that question is no more open to debate, as identical situation has been considered and judgment delivered in the case of Pawan Kumar Purvey (supra), the executive circular dated 22.06.2009 having been held to be illegal. This Court further held that even in absence of Rules such a meeting could be convened. It was a general meeting with special agenda and a special procedure. At the Bar, it was conceded that the judgment has attained finality inasmuch as challenge thereto before the Division Bench in Letters Patent Appeal has been unsuccessful. 11. This Court further held that even in absence of Rules such a meeting could be convened. It was a general meeting with special agenda and a special procedure. At the Bar, it was conceded that the judgment has attained finality inasmuch as challenge thereto before the Division Bench in Letters Patent Appeal has been unsuccessful. 11. Now, we come to the question of the meeting as requisitioned by 31 Councillors by their notice dated 06.02.2010, fixing 16.02.2010 as the date for consideration of no confidence motion against petitioner nos.1&2. It is said that this requisition is bad because Councillors are not authorized under the Act to themselves fix the meeting and further charges are not there in the said requisition or notice. Both contentions are equally misconceived and recorded for the purpose of rejection. As noted above in Pawan Kumar Purvey’s case (supra) such a meeting is a general meeting with special agenda and, as such, provisions of chapter-VII of the Act could be resorted to. Section 48(3) specifically provides that if the Chief Councillor fails to call a meeting, as requisitioned, then the meeting may be called for by the persons who signed the requisition. Thus, the action of the Councillors in calling the meeting and fixing its date on failure of the Chief Councillor, petitioner no.1 to do the same cannot be said to be illegal in any manner. So far as the charges not being mentioned in the requisition is concerned, from the provisions of the Municipal Act, specially, Section 25(4) it would be seen that there is no such requirement. Apparently, this ground is being taken because under the Bihar Panchayat Raj Act, 2006 the requirement is to specify the charges. It is well settled that the requirement of one statute cannot be imported into another statute by mere implication because the legislature must be taken to be aware of the requirements they prescribed, and if they have omitted to prescribe mentioning of charges in requisition, it is not open for the Court to read that in the provision, specially when there is no confusion in the matter and the statute is clear and unambiguous. Thus, there is no illegality in the requisition and fixing date of meeting by the Councillors themselves. 12. Now, we come to the meeting dated 16.02.2010, wherein by more than 2/3rd majority of the elected members no confidence motion was passed. Thus, there is no illegality in the requisition and fixing date of meeting by the Councillors themselves. 12. Now, we come to the meeting dated 16.02.2010, wherein by more than 2/3rd majority of the elected members no confidence motion was passed. The challenge to this is on two grounds. Firstly, it is said that the resolution does not show deliberation, and secondly the voting was done by show of hands and not by secret ballots. Again both are misconceived grounds for challenge. Resolution is record of proceedings as resolved. It is not to be recorded as a judgment, recording of various arguments and contentions but only the result of the deliberation. The resolution records that after deliberation voting took place that is sufficient and no illegality was committed. 13. Next, we come to the contention of voting by show of hands. To be fair to the learned counsel for the petitioners, this Court is also of the view that when such contentious matter like vote of no confidence is to be voted, to ensure free and fearless voting it should be ordinarily by a secret ballots, but merely wishing it to be so is of no consequence because the legislature have provided otherwise and such prescription is not either arbitrary or illegal in any manner. Here, I may refer to Section 50(5) of the Bihar Municipal Act, 2007, which is quoted hereunder:- “50. Quorum for transaction of business at a meeting of municipality and method of deciding questions. (5) The voting shall be by show of hands, provided that the Municipality may, subject to such regulations as may be made by it, resolve that any question, or class questions, shall be decided by secret ballot. ……….” 14. The legislature have provided that ordinarily voting shall be by show of hands. It gives authority to the municipality to make regulation in respect of matters which have to be decided by secret ballot. No such regulation has been shown to have made where secret ballot voting procedure is prescribed by the municipality. In such circumstances, voting by show of hands being permissible, though in the opinion of the Court not desirable, it cannot be said that the voting procedure was illegal in any manner. That being so, it cannot be said that petitioner nos.1&2 have wrongly or illegally been removed from the post of Chief Councillor and Deputy Chief Councillor respectively. In such circumstances, voting by show of hands being permissible, though in the opinion of the Court not desirable, it cannot be said that the voting procedure was illegal in any manner. That being so, it cannot be said that petitioner nos.1&2 have wrongly or illegally been removed from the post of Chief Councillor and Deputy Chief Councillor respectively. The substantial majority of Councillors having lost confidence in petitioner nos.1&2, they must at last now give way to the will of the House and make way for fresh elections in that regards. In the result, the writ application is dismissed. All interim orders are vacated and respondents would be free to hold election to fill up the vacancies so caused forthwith. ?