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2012 DIGILAW 748 (PAT)

Subhansh Rai v. State of Bihar

2012-05-08

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2012
ORDER Feeling aggrieved by the judgment and order dated 3rd November 2011 passed by the learned single Judge in CWJC No. 14067 of 2011, the respondent no. 8 has preferred this Appeal under Clause 10 of the Letters Patent. 2. The writ petitioner and the respondent nos. 6 to 32 were the elected Councillors of Nagar Parishad, Sitamarhi (hereinafter referred to as ‘the Municipality’) pursuant to the election held in 2007. Pursuant to the said election, one Jai Muni Devi, the respondent no. 6, was elected as the Chief Councillor and one Asha Devi, the respondent no. 7, was elected as the Deputy Chief Councillor of the Municipality. On 18th July 2009 a no confidence motion was passed against the said Jai Muni Devi and Asha Devi. The same was challenged by the said Jai Muni Devi and Asha Devi before this Court under Article 226 of the Constitution in CWJC Nos. 7540 of 2009 and 8092 of 2009 respectively. Consequent to the removal of the said Jai Muni Devi, the respondent no. 32 – the writ petitioner was elected to be the Chief Councillor on 4th August 2009. Aforesaid CWJC No. 7540 of 2009 was allowed by this Court on 5th March 2010. Pursuant to the order of this Court, the said Jai Muni Devi was restored as the Chief Councillor on 6th March 2010. 3. Feeling aggrieved by the aforesaid order dated 5th March 2010 of this Court, the respondent no. 32 – the writ petitioner preferred Letters Patent Appeal No. 670 of 2010. The said Appeal was allowed on 20th April 2010. Pursuant to the said order dated 20th April 2010, once again the said Jai Muni Devi was replaced by the respondent no. 32 – the writ petitioner on 21st April 2010. On 26th August 2010, some 11 Councillors made a requisition for no confidence motion against the respondent no. 32 – the writ petitioner. The said requisition was challenged by the writ petitioner before this Court in CWJC No. 17121 of 2010. This Court, by order dated 10th May 2011, held that the requisition was not maintainable as a no confidence motion cannot be brought within two years from assuming the charge of the post. 4. Once again, a no confidence motion was passed against the writ petitioner on 26th August 2011. This Court, by order dated 10th May 2011, held that the requisition was not maintainable as a no confidence motion cannot be brought within two years from assuming the charge of the post. 4. Once again, a no confidence motion was passed against the writ petitioner on 26th August 2011. The requisition for “no confidence motion” taken out against the writ petitioner was challenged by him in CWJC No. 14067 of 2011. Pending the said writ petition, pursuant to the interim order made by this Court, the writ petitioner continued to hold the post of Chief Councillor. The said petition has been allowed by the learned single Judge under the impugned judgment and order dated 3rd November 2011. The learned single Judge has held that in view of the bar imposed by proviso to Section 25(4) of the Bihar Municipal Act, 2007 (hereinafter referred to as ‘the Act’), no no confidence motion can be brought against the Chief Councillor / Deputy Chief Councillor for two years from the date of assuming the charge. On 26th August 2011, the petitioner had not completed a total period of two years in the Office as Chief Councillor. The resolution of ‘no confidence’ passed against the petitioner was, therefore, unsustainable. 5. Feeling aggrieved, the respondent no. 8, one of the Councillors, has preferred this Appeal. 6. Learned advocate Mr. S.B.K. Mangalam has appeared for the appellant. He has challenged the observation, “… as a no confidence motion cannot be brought against the succeeding Chief Councillor / Deputy Chief Councillor on vacation of post by the earlier incumbent till he completes a total period of two years of taking over charge as enumerated in first proviso of Section 25(4) of the Act.” Mr. Mangalam has strenuously urged that the aforesaid reading of the learned single Judge is manifestly erroneous. The proviso to Section 25(4) of the Act does not mention ‘a total period of two years of taking over charge’. The word ‘total’ has been read by the learned single Judge though the said word does not appear in the text of the enactment. The High Court, exercising power of judicial review under Article 226 of the Constitution, has no jurisdiction to read the word not incorporated in the statutory provision or to add or insert any word in the legislative enactment. 7. In support of his submissions, Mr. The High Court, exercising power of judicial review under Article 226 of the Constitution, has no jurisdiction to read the word not incorporated in the statutory provision or to add or insert any word in the legislative enactment. 7. In support of his submissions, Mr. Mangalam has relied upon the judgments in the matters of A.K. Gopalan Vs. State of Madras [AIR (37) 1950 SC 27]; of S.P. Gupta Vs. Union of India & Anr. ( AIR 1982 SC 149 ); of Keshavji Ravji And Co. & Ors. Vs. Commissioner of Income Tax [ (1990) 2 SCC 231 ]; of Union of India & Anr. Vs. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323] and of Satheedevi Vs. Prasanna & Anr. [ (2010) 5 SCC 622 ]. 8. Learned advocate Mr. Raju Giri has appeared for the respondent no. 32 - the writ petitioner. He has contested the Appeal. He has relied upon the judgment of this Court in the matter of Ashok Kumar Bajaj Vs. The State of Bihar & Ors. [ 2002 (2) PLJR 674 ]. 9. The matter at dispute centers around Section 25 of the Act. Section 25 of the Act provides for removal of Chief Councillor or Deputy Chief Councillor. Sub-section (4) thereof provides for removal of the Chief Councillor or Deputy Chief Councillor from office by a resolution carried by a majority of the Councillors at a special meeting. The first proviso thereto imposes a bar against such no confidence motion. It reads, “a no confidence motion shall not be brought against the Chief Councillor / Deputy Chief Councillor within a period of two years of taking over the charge of the post.” The second proviso to sub-section (4) reads, “a no confidence motion shall not be brought again within one year of the first no confidence motion.” The third proviso to the said sub-section (4) reads, “no confidence motion shall not be brought within the residual period of six months of the municipality.” 10. The legislative intention in incorporating the aforesaid provisos to sub-section (4) of Section 25 of the Act is loud and clear. The intention is that any Chief Councillor or a Deputy Chief Councillor taking over charge as such shall have an uninterrupted term of two years to perform his duties. The legislative intention in incorporating the aforesaid provisos to sub-section (4) of Section 25 of the Act is loud and clear. The intention is that any Chief Councillor or a Deputy Chief Councillor taking over charge as such shall have an uninterrupted term of two years to perform his duties. In other words, the Chief Councillor or the Deputy Chief Councillor shall not be constantly under the pressure of being removed from the office by a resolution passed by the majority of the Councillors. Therefore, although the second proviso does not specify in so many words, the only meaning which can be attributed is that in case the first no confidence motion fails, a second no confidence motion shall not be brought within one year from the date of the first no confidence motion. Similarly, there should not be ripples in the last six months in the office. The said period should be permitted to be completed uninterruptedly or without any pressure of being removed from the office by a resolution of the majority of the Councillors. 11. As recorded hereinabove, in the present case, on account of the proceedings before this Court and the orders of this Court; the aforesaid Chief Councillor Jai Muni Devi having been restored as Chief Councillor, the tenure of the writ petitioner as Chief Councillor was interrupted for the period from 6th March 2010 till 21st April 2010 during which the aforesaid Jai Muni Devi was restored as a Chief Councillor. Thus, the tenure of the writ petitioner from 4th August 2009 was not continuous. In absence of any specific statutory provision made for the extant eventuality, in our opinion, the provision under Section 25(4) of the Act should be applied in letter and spirit. Thus, the writ petitioner, in our opinion, should have been held to have assumed charge of the office first on 4th August 2009 when he was elected as the Chief Councillor and; second on 21st April 2010 on which date he was restored as Chief Councilor pursuant to the decision of this Court dated 20th April 2010 in Letters Patent Appeal No. 670 of 2010. 12. In our opinion, learned advocate Mr. Mangalam is right in submitting that in exercise of power of judicial review under Article 226 of the Constitution, this Court has no jurisdiction to add or insert or read the words not provided by the Legislature. 12. In our opinion, learned advocate Mr. Mangalam is right in submitting that in exercise of power of judicial review under Article 226 of the Constitution, this Court has no jurisdiction to add or insert or read the words not provided by the Legislature. Hence, in our opinion, the learned single Judge has erred in reading ‘total two years’; nor can we read ‘uninterrupted two years’. In our opinion, therefore, for the purpose of the first proviso to Section 25(4) of the Act; the writ petitioner should be held to have taken over the charge when he was restored as Chief Councillor on 21st April 2010. A no confidence motion, therefore, could not have been brought against the writ petitioner for two years from 21st April 2010. 13. As disclosed by the learned advocate Mr. Mangalam, the present term of the Municipality has expired on 14th April 2012; the matter has thus become academic. In any view of the matter, pursuant to the interim order made by the learned single Judge pending the writ petition; the writ petitioner having continued in office continuously since 21st April 2010 till the expiry of the term of the Municipality (14th April 2012), no further order is required to be made on this Appeal. 14. Subject to the above construction of the provisos to sub-section (4) of Section 25 of the Act, the Appeal is disposed of. BIRENDRA PRASAD VERMA, J.:–I agree. ?