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2011 DIGILAW 1700 (PAT)

Prakash Kumar Singh v. State Of Bihar

2011-08-11

JYOTI SARAN

body2011
ORDER : Heard learned counsel appearing on behalf of the parties. 2. The writ petition had initially been filed questioning the validity of the notice dated 19.4.2010 as contained in Annexure-2 of the writ petition in so far as Agenda no.26 is concerned proposing for dissolution of the Empowered Standing Committee of the Nagar Parishad, Munger. During the pendency of the proceedings, the Empowered Standing Committee, Nagar Parishad, Munger was dissolved vide ORDER :dated 24.4.2010 and which is sought to be challenged vide I.A.No.6405 of 2010. 3. I.A.No.6405 of 2010 is allowed and the petitioner is permitted to challenge the ORDER :dated 24.4.2010 as communicated vide letter dated 28.4.2010 placed at Annexure-5 of the Interlocutory Application in the present proceedings. 4. The facts of the case is in a very narrow compass. The petitioners are elected Ward Commissioners of different Wards in the Munger township. It is not in dispute that following the process for Election of the Chairman, in terms of the provisions of the Bihar Municipal Act, 2007 (hereinafter referred to as ‘the Act’), one Kumkum Devi was elected Chairman of the Nagar Parishad while Sunil Rai was elected against the post of Vice Chairman. The petitioners and two others were nominated by the Chairman against the post of members of the Empowered Standing Committee. 5. Learned counsel for the petitioners contends that the provisions of the Act imposes serious obligation on the members of the Empowered Standing Committee of the Nagar Parishad, to raise issue of welfare and development of the area falling under the Parishad and to share the grievances of the general masses. It is contended that being a nominee of the Chairman does not oblige them to follow the dictate of the Chairman rather they have a larger responsibility and it is this attitude of the members of the Committee which has agitated the Chairman leading to the impugned ORDER :s, dissolving the Empowered Standing Committee itself. 6. Learned counsel for the petitioner, while assailing the action of the Chairman of the Nagar Parishad, submitted that being a creature of the statute, the Elected bodies are bound by the obligations and restrictions created thereunder keeping in mind the interest of the masses and that the Chairman can not run the body as her personal fiefdom. 7. 6. Learned counsel for the petitioner, while assailing the action of the Chairman of the Nagar Parishad, submitted that being a creature of the statute, the Elected bodies are bound by the obligations and restrictions created thereunder keeping in mind the interest of the masses and that the Chairman can not run the body as her personal fiefdom. 7. The writ petition was taken up on 27.4.2010, when this court considering the issue raised by the petitioner, directed the State to respond to the issue as to whether any such jurisdiction was vested in the Chief Councillor of the Nagar Parishad under the Act to dissolve the Empowered Standing Committee (hereinafter referred to as ‘the Committee) constituted under Section 21 of the Act, simply on grounds that the members were not agreeable to her proposals and questioned her misdeeds. 8. Even while this writ petition was pending consideration before this Court, the Chief Executive Officer, vide letter dated 28.4.2010 addressed to the members of the Empowered Standing Committee, informed them that a decision had been taken by the Board of the Nagar Parishad in its meeting held on 24.4.2010 of dissolving the Empowered Standing Committee of the Nagar Parishad and which has been placed at Annexure-5 of the Interlocutory Application. 9. It is this action of the Chairman, Nagar Parishad, Munger which is put to question in the present proceedings. 10. As I find from the ORDER :passed in the present proceedings that a reference has been made to a JUDGMENT : of a Full Bench of this Court and the pendency of an appeal arising there from, before the Supreme Court, I would first deal with the said aspect before proceeding to take up the matter in issue in the present proceedings. 11. A matter raising issues as to whether the life and term of the Empowered Standing Committee of a Municipality is co-terminus with the change in the office of the Chief Councilor or is co-terminus with the term of the Municipality, came up for consideration before a Full Bench of this Court of which I, also was a member. 11. A matter raising issues as to whether the life and term of the Empowered Standing Committee of a Municipality is co-terminus with the change in the office of the Chief Councilor or is co-terminus with the term of the Municipality, came up for consideration before a Full Bench of this Court of which I, also was a member. The Full Bench of this court by a JUDGMENT : and ORDER :reported in 2010 (3) PLJR 285 , held that the term of the Empowered Standing Committee did not end with a change in the office of the Chief Councilor and that the Committee so constituted, would continue until the duration of the Municipality. The view of the Full Bench was upset in Appeal before the Supreme Court and by JUDGMENT : and ORDER :reported in (2011) 5 SCC 729 , the Hon’ble Supreme Court considering the element of collective responsibility vested in such Committees in the back drop of the principles of democratic governance, was pleased to hold that the term of the members of the Empowered Standing Committee shall be co-terminus upon any change in the office of the Chief Councilor who had nominated them. It was thus held that upon change in the office of the Chief Councilor, the members of the Empowered Standing Committee would have to automatically vacate the office and would have to make way for fresh members, in terms of the nomination made by the new incumbent to the post of Chief Councillor, for effective discharge of duties. 12. The JUDGMENT : of the Hon’ble Supreme Court undoubtedly is an authority to the proposition that the term of the members of the Empowered Standing Committee would depend upon the term of the Chief Councillor who nominated them and would be co-terminus upon the change of the office by a new incumbent. 13. But the issue which falls for consideration in the present writ petition is somewhat different and which is that even while the Chief Councillor who nominated the members of the Committee continues to hold office, whether he is vested with the powers under the provisions of the Act to dissolve the Committee itself and substitute by nominating new members. 14. But the issue which falls for consideration in the present writ petition is somewhat different and which is that even while the Chief Councillor who nominated the members of the Committee continues to hold office, whether he is vested with the powers under the provisions of the Act to dissolve the Committee itself and substitute by nominating new members. 14. A counter affidavit has been filed on behalf of the State and the stand of the State is that the action of the Chief Councillor in dissolving the Committee is without sanction of law and against the mandate of section 27 of the Act. 15. Mr. S.B.K. Mangalam, learned counsel appearing on behalf of the Chief Councillor, placing reliance on Article 243 P (e) of the Constitution, submits that the Municipality has been defined to mean an institution of self governance and thus if there is a decision of the Municipality itself to dissolve the Empowered Standing Committee, there is no infirmity in the action of the Municipality in taking such action and the Chief Councillor being an authority under the Municipality, is legally bound to carry out the said decision. It is contended that the decision to dissolve the Committee was taken by the Board of the Municipality and not the Chairman alone. 16. As observed at the onset, the core issue raised before this court is as to whether the Chief Councillor elected under section 23 of the Act and vested with the power of nominating the Committee for the Municipality under section 21 of the Act, is vested with the power to dissolve the Committee if he comes to a conclusion that the Committee was not functioning in terms of the responsibility cast upon them and were not discharging their duties in terms of the Act or the members of the Committee were acting averse to interest of the Municipality. 17. During the course of hearing of the present application, it was brought to the notice of the Court that an amendment had been introduced in the Bihar Municipal Act 2007 vide Bihar Municipal (Amendment) Act, 2011 (Bihar Act 7 of 2011) and which has been published in the Bihar Gazette Extra Ordinary dated 27.5.2011. 18. 17. During the course of hearing of the present application, it was brought to the notice of the Court that an amendment had been introduced in the Bihar Municipal Act 2007 vide Bihar Municipal (Amendment) Act, 2011 (Bihar Act 7 of 2011) and which has been published in the Bihar Gazette Extra Ordinary dated 27.5.2011. 18. Amongst several amendments introduced in the Act, Section 27 of the Act has been substituted and a specific provision has been introduced in Section 27(1)(C) whereby a power has been vested in the Chairman of the Municipality to remove any member of the Empowered Standing Committee but not before the expiry of two years since his nomination. A perusal of the Amendment Act shows that it has been enforced w.e.f. the date of publication in the official gazette on 27.5.2011. 19. The said amendment introduced through section 27(1)(C) of the Act, by itself answers the issue posed at the onset, meaning thereby that Board of the Municipality at the stage of taking the decision on 24.4.2010 as communicated vide letter dated 28.4.2010, was not vested with statutory powers of removal of the members of the Empowered Standing Committee or to dissolve the same, during the term of the Municipality and in absence of any change in the office of the Chief Councillor. 20. Undoubtedly, by the Amending Act, the Chairman-cum-Chief Councillor of the Municipality has now been vested with the power of removal of the members of the Committee, but that exercise of power is also subject to the condition that the member concerned must have been in occupancy of the office for a period of not less than two years, since his nomination. 21. Considering the issue in the backdrop of the statutory provisions and the judicial pronouncement, it is more than evident that the action complained of by the petitioner, was without sanction of law and can not be upheld. 22. For the reasons aforesaid, the Agenda No.26 of the notice dated 19.4.2010 as contained in Annexure-2 to the writ petition together with the ORDER :of dissolution of the Empowered Standing Committee dated 24.4.2010 as communicated by letter dated 28.4.2010 placed at Annexure-5 of the Interlocutory Application are quashed and set aside. 23. The writ petition is allowed.