ORAL ORDER Reg: CWJC No. 12068 of 2014 with I.A. No. 5188 of 2014 alongwith CWJC No. 12190 of 2014 with I.A. No. 5189 of 2014 Since these two writ petitions arise out of the same motion of no confidence passed against the respective petitioners hence they have been heard analogous with a view to its final disposal. 2. While Mr. Y.V. Giri, learned senior counsel has appeared on behalf of the petitioner in CWJC No. 12068 of 2014, the petitioner in the second writ petition bearing CWJC No. 12190 of 2014 is represented by Mr. Chitranjan Sinha, learned senior counsel. The State is represented by the respective State counsel. The Executive Officer of the Nagar Parishad is represented by Ms. Arpana Bharti and the private respondents by Mr. Surendra Kishore Thakur. Mr. Amit Shrivastava appears for the Election Commission. 3. I shall be referring to the pleadings and the Annexures with reference to CWJC No. 12190 of 2014 unless clarified by specific reference to the other writ petition. 4. Facts of the case briefly stated is that a requisition under Section 25(4) of the Bihar Municipal Act, 2007 (hereinafter referred to as the ‘Act’) read with Rule 2(i) of the Bihar Municipal No Confidence Motion Process Rules, 2010 (hereinafter referred to as the ‘Rules) was moved against the petitioners in the two writ petitions on 9.6.2014 which was questioned by the two petitioners in CWJC No. 10391 of 2014. While the said writ petition was pending consideration, a notice was issued by the Executive Officer of the Nagar Parishad fixing date of special meeting on 27.6.2014 by the Ward Councillors on the failure of the Chief Councillor to fix the date of special meeting and which was questioned by filing I.A. No. 4445 of 2014. When the said writ petition came up for consideration the counsel appearing for the respective parties gave consensus to its disposal subject to the Chief Councillor fixing the date of special meeting latest by 30.6.2014 and in view of the consensus reached by the parties the writ petition and the interlocutory application were disposed of on 27.6.2014. The records of the present proceedings manifest that no steps were taken by the Chief Councillor in the light of the concession given before this Court in the earlier round of proceedings rather the documents on record reflects an evasive attitude of the Chief Councillor. The records of the present proceedings manifest that no steps were taken by the Chief Councillor in the light of the concession given before this Court in the earlier round of proceedings rather the documents on record reflects an evasive attitude of the Chief Councillor. Although the Chief Councillor was well aware of the directions of this Court passed on 27.6.2014 no steps were taken by her and on 30.6.2014 she wrote a letter to the Executive Officer charging him for not placing the relevant file. Annexure-4 is a letter dated 30.6.2014 of the Executive Officer requesting the Chief Councillor for appropriate orders in the light of the order passed in CWJC No. 10391 of 2014 but the noting of the service peon shows that he could not meet her. On the following day i.e. 1.7.2014 again the Executive Officer invited the attention of the Chief Councillor to her obligation and she responded to by saying that since the last date granted by the High Court was 30.06.2014 and which date has passed off, she would seek legal opinion thereon. Clearly the action of the Chief Councillor was not in tune with her admission before this Court rather was an abdication of her responsibility. Obviously on the failure of the Chief Councillor to fix the date of special meeting the requisitionists on their part and by virtue of power vested in them under Rule 2(iii) of the Rules took decision on 1.7.2014 to hold the special meeting on 7.7.2014. The decision of the requisitionists was communicated by the Executive Officer to the Chief Councillor who gave her approval on the same date i.e. 2.7.2014 placed at Annexure-6. Following the direction of the Chief Councillor a notice was issued by the Executive Officer on 4.7.2014 intimating the Chief Councillor, the Deputy Chief Councillor and other Councillors about the meeting to be held on 7.7.2014 and the motion was passed following which the Chief Councillor and the Deputy Chief Councillor were removed from their respective posts. Following the passing of the no confidence motion, the Secretary, State Election Commission has issued a letter on 14.7.2014 requesting the District Magistrate cum the District Election Officer, Vaishali to hold election on 28.7.2014 for filling up the post of Chief Councillor and Deputy Chief Councillor. Following the passing of the no confidence motion, the Secretary, State Election Commission has issued a letter on 14.7.2014 requesting the District Magistrate cum the District Election Officer, Vaishali to hold election on 28.7.2014 for filling up the post of Chief Councillor and Deputy Chief Councillor. The letter of the State Election Commission has been placed at Annexure-11 to the Interlocutory Application filed in CWJC No. 12190 of 2014 and Annexure 10 to the other writ petition and has been questioned alongwith. 5. Mr. Giri, learned senior counsel appearing in support of the Deputy Chief Councillor has questioned the motion passed on the following grounds: (a) He submits that although Section 49 of the Act mandates a service of notice at least 72 hours prior to the date of meeting fixed in this regard, the petitioner received the notice fixing special meeting at 3:30 P.M. on the same day. In support of his submission, learned counsel has referred to the notice received by him through speed post, copy whereof is placed at Annexure-8 to CWJC No. 12068 of 2014 and which reflects that the notice was issued on 5.7.2014 and received on 7.7.2014 i.e. on the very date of meeting. Learned counsel submits that although attempt has been made by the Executive Officer to demonstrate that the notice had been served on the Deputy Chief Councillor on the same date but the report at Annexure-B to the counter affidavit filed in CWJC No. 12068 of 2014 shows that it was served on one Basant Kumar and not the petitioner. He thus submits that the notice of special meeting was never served on the petitioner. (b) Learned counsel next referred to the statutory provisions underlying Rule 2(v) to submit that upon commencement of no confidence motion, it is the presiding member alone who has to read out the motion and which is to be followed by a discussion on the motion and it is only thereafter that the secret ballot can take place but in the present case the statutory requirement have been given go bye. In support of his submission learned counsel has referred to the proceedings of the ‘no confidence motion, impugned at Annexure-9 to the writ petition and with reference thereto it was submitted that although one Niket Kumar Sinha Ward Councillor was nominated to preside in the meeting but upon the commencement of the meeting, it was the Executive Officer who usurped the responsibility and read out the motion and not the presiding officer as required under the Rules. He further submits that the illegality did not stop at that and was perpetuated when the discussion as required under the Rule was not allowed to be held rather in a circuitous manner, the Ward Councillors after waiving out of the mandatory requirement proceeded to hold the secret ballot. Learned counsel with reference to the statutory failure by the requisitionists in moving the ‘no confidence motion, has submitted that the meeting shrouded with statutory violations, the motion passed cannot be upheld and is fit to be set aside. 6. The argument of Mr. Giri has been seconded by Mr. Sinha appearing on behalf of the Chief Councillor in the other writ petitions who while admitting to the lapse on the part of the Chief Councillor in carrying out her obligation in the light of the directions passed in the earlier round of litigation, submits that even if the Chief Councillor did fail in her obligation, the requisitionists were required to proceed in accordance with law. 7. The motion passed is supported by learned counsel appearing for the Executive Officer and the requisitionists, though learned counsel for the Executive Officer could not justify his presence in the ‘no confidence motion’ and his role played therein. Mr. Surendra Kishore Thakur, learned counsel appearing on behalf of the requisitionists submits that since it has all along been the endeavour of the Chief Councillor to somehow scuttle the motion they cannot be granted any indulgence. Even while charging the Chief Councillor of evasive action, Mr. Thakur could not persuade this Court on the infraction of lawful procedure in the special meeting held for the ‘no confidence motion’. 8. I have heard learned counsel for the parties and I have perused the materials on record. Even while charging the Chief Councillor of evasive action, Mr. Thakur could not persuade this Court on the infraction of lawful procedure in the special meeting held for the ‘no confidence motion’. 8. I have heard learned counsel for the parties and I have perused the materials on record. That the Chief Councillor has utterly failed to honour her commitment before this Court is manifest from her conduct but then her conduct gave all liberty to the requisitionists to proceed in terms of Rule 2(iii) of the Rules and in fact they did proceed in the matter and took a decision on 1.7.2014 to hold the special meeting on 7.7.2014 but the decision to hold special meeting also required the notice issued in this regard to be served on the Chief Councillor as well as the Deputy Chief Councillor. Although a plea has been taken by the Chief Councillor that when contacted in this regard, she had informed that she would not be present but in view of her own direction dated 2.7.2014 permitting the meeting to be held on 7.7.2014, she can take no such excuse. The issue is whether such lapse on the part of the Chief Councillor would validate the proceeding or it has to be considered on its own merit. 9. Mr. Giri had canvassed regarding non service of notice on the Deputy Chief Councillor in respect of the special meeting and whereas the registered cover placed on record in CWJC No. 12068 of 2014 shows that it was received on the date of meeting the personal service was effected on some other person. There is thus a cloud as regarding the service of notice on the Deputy Chief Councillor. 10. In normal circumstances this Court would have been persuaded to invalidate the proceedings only to the extent of the issue raised by the Deputy Chief Councillor while not drawing in favour of the Chief Councillor but taking into consideration the gross violation of the statutory provisions as reflecting in the proceedings held for considering ‘no confidence motion’, the benefit thereof, automatically goes to the Chief Councillor as well even though she would not be otherwise entitled to the same. As rightly pointed out by Mr. Giri, the Executive Officer was a stranger to the ‘no confidence motion’ and should not have participated therein. As rightly pointed out by Mr. Giri, the Executive Officer was a stranger to the ‘no confidence motion’ and should not have participated therein. Whereas the obligation lay upon the Chairman nominated for the purpose in terms of Rule 2(v) of the Rules, this responsibility was usurped by the Executive Officer who chose to read the motion. The illegality was further perpetuated when the requisitionists waived of requirement of the discussions which is a mandatory requirement under Rule 2(v) and even if the two persons charged against were not present, that did not take away the performance of the statutory obligation. 11. In the circumstances discussed there cannot be any other conclusion but to hold that the ‘no confidence motion’ passed against the two petitioners on 7.7.2014 having been conducted in violation of the statutory provisions cannot be upheld and is accordingly set aside. As a consequence the letter of the State Election Commission dated 14.7.2014 notifying election on 28.7.2014 as contained in Annexure-11 to the interlocutory application would also loose its relevance and is accordingly set aside. These writ petitions are allowed. The interlocutory applications are accordingly disposed of. This order, however, would not preclude the requisitionists to proceed against the petitioners in accordance with law.