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IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.1564 of 2009
RUBY SINGH, WIFE OF MANISH SINGH, RESIDENT OF
WARD NO. 21, BHOOP NARAIN SINGH COLONY, P.S-
MADHUBANI, DISTT- MADHUBANI.
...PETITIONER/APPELLANT.
VERSUS
1. THE STATE OF BIHAR
2. THE SECRETARY, DEPARTMENT OF URBAN
DEVELOPMENT, GOVERNMENT OF BIHAR, PATNA.
3. DEPUTY SECRETAWRY, DEPARTMENT OF URBAN
DEVELOPMENT GOVERNMENT OF BIHAR, PATNA.
4. COMISSIONER, DARBHANGA DIVISION,
DARBHANGA.
5. DISTRICT MAGISTRATE, MADHUBANI.
6. EXECUTIVE OFFICER, NAGAR PARISHAD,
MADHUBANI.
7. CHAIRMAN, MADHUBANI NAGAR PARISHAD,
MADHUBANI.
8. PUNAM DEVI, W/O BHAGWAN LAL PRASAD, R/O
WARD NO. 6, P.S AND DISTT- MADHUBAI.
9. MAHESH MAHTO S/O SHIVJI MAHTO R/O WARD NO. 5,
P.S- AND DISTT- MADHUBANI.
10. JAI SHANKAR SAH S/O LATE MAHANTHI SAH R/O
WARD NO. 1, P.S AND DISTT- MADHUBANI.
11. BAJRANG MAHTO S/O LATE RAMCHANDRA MAHTO
R/O WARD NO. 2, P.S AND DISTT- MADHUBANI.
12. SUDHA DEVI W/O TRILOKI MANDAL R/O WARD NO. 7,
P.S AND DISTT- MADHUBANI.
13. OM PRAKASH THAKUR, S/O LATE GHURAN THAKUR
R/O WARD NO. 5, P.S AND DISTT- MADHUBANI.
14. MAKHANI DEVI W/O RAM PRIT PASWAN R/O WARD
NO. 9, P.S AND DISTT- MADHUBANI.
15. PAWAN KARAK S/O LATE NARAYAN KARAK R/O
WARD NO. 10, P.S AND DISTT- MADHUBANI.
16. SHAHNAJ KHATOON, W/O FAKRUDDIN, R/O WARD NO.
25, P.S AND DISTT- MADHUBANI.
17. BIMLA KHATO DEVI, W/O SURESH DAS, R/O WARD
NO. 26, P.S AND DISTT- MADHUBANI.
18. VIJAY KUMAR CHOUDHARY, S/O SITA RAM
CHOUDHARY R/O WARD NO. 16, P.S AND DISTT-
MADHUBANI.
19. SAMIUR RAHMAN, S/O NOZIUR RAHMAN, R/O WARD
NO. 29, P.S AND DISTT- MADHUBANI.
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20. SUNITA DEVI, W/O ANIL PURVEY @ SUNIL PURVEY,
R/O WARD NO. 14, P.S AND DISTT- MADHUBANI.
21. KRISHNA DEVI, W/O KAILASH SAH, R/O WARD NO 18,
P.S- AND DISTT- MADHUBANI.
22. HENA KAUSAR, W/O MD. ISTIYAK, R/O WARD NO. 17,
P.S AND DISTT- MADHUBANI.
23. ANUJA JHA, S/O KEDAR NATH JHA, R/O WARD NO. -
20, P.S AND DISTT- MADHUBANI.
24. RAUSHAN KHATOON, W/O MD. IDRISH, R/O WARD
NO. 4, P.S AND DISTT- MADHUBANI.
25. SUMITRA DEVI, W/O JAMUN SAHNI, R/O WARD NO. 27,
P.S AND DISTT- MADHUBANI.
.....RESPONDENTS/RESPONDENTS.
For the appellant : Mr. Y.V.Giri, Senior Advocate
Mr. Indu Bhushan, Advocate
Mr. A.K.Thakur, Advocate
For respondent nos.1 to 5 : Mr. Ritesh Kumar, A.C to A.A.G.-I
For respondent nos. 6 & 7 : Mr. B.N.P.Singh, Advocate
For respondents 8 to 25 : Mr. Purushottam Jha, Advocate
-------
WITH
LPA No.1579 of 2009
PAWAN KUMAR PURBEY, S/O LATE BALDEO PURVEY, R/O
MOHALLA-SURATGANJ, WARD NO.15, MADHUBANI,
DISTT- MADHUBANI.
WRIT PETITIONER/ APPELLANT.
VERSUS
1. THE STATE OF BIHAR, REPRESENTED THROUGH
CHIEF SECRETARY, GOVT. OF BIHAR, PATNA.
2. THE SECRETARY, DEPARTMENT OF URBAN
DEVELOPMENT, GOVT. OF BIHAR, PATNA.
3. THE DEPUTY SECRETARY, DEPARTMENT OF URBAN
DEVELOPMENT, GOVT. OF BIHAR, PATNA.
4. THE DIVISIONAL COMMISSIONER, DARBHANGA.
5. DISTRICT MAGISTRATE, MADUBANI.
6. THE SUB- DIVISIONAL OFFICER, SADAR,
MADHUBANI.
7. EXECUTIVE OFFICER, NAGAR PRISHAD,
MADHUBANI.
8. SMT. PUNAM DEVI, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 6, NAGAR PARISHAD,
MADHUBANI.
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9. SRI MAHESH MAHTO, SON OF NOT KNOWN,
COUNCILOR OF WARD NO. 8, NAGAR PARISHAD
MADHUBANI.
10. SHRI JAI SHANKAR SAH, SON OF NOT KNOWN,
COUNCILOR OF WARD NO. 1, NAGAR PARISHAD-
MADHUBANI.
11. SRI BAJRANG MAHTO, SON OF NOT KNOWN,
COUNCILOR OF WARD NO. 2, NAGAR PARISHAD,
MADHUBANI.
12. SMT. SUDHA DEVI, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 7, NAGAR PARISHAD,
MADHUBANI.
13. SRI OM PRAKASH THAKUR, SON OF NOT KNOWN,
COUNCILOR OF WARD NO. 5, NAGAR PARISHAD,
MADHUBANI.
14. SMT. MAKHANI DEVI, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 3, NAGAR PARISHAD,
MADHUBANI.
15. SHRI PAWAN KARAK, SON OF NOT KNOWN,
COUNCILOR OF WARD NO. 10, NAGAR PARISHAD,
MADHUBANI.
16. SHAHNAJ KHATOON, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 25, NAGAR PARISHAD,
MADHUBANI.
17. SMT. BIMLA KHATO DEVI, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 26, NAGAR PARISHAD,
MADHUBANI.
18. SHRI VIJAY KUMAR CHOUDHARY, SON OF NOT
KNOWN, COUNCILOR OF WARD NO. 16, NAGAR
PARISHAD, MADHUBANI.
19. SAMIUR RAHMAN, SON OF NOT KNOWN,
COUNCILOR OF WARD NO. 29, NAGAR PARISHAD,
MADHUBANI.
20. SUNITA DEVI, WIFE OF NOT KNOWN, COUNCILOR OF
WARD NO. 14, NAGAR PARISHAD, MADHUBANI.
21. KRISHNA DEVI, WIFE OF NOT KNOWN, COUNCILOR
OF WARD NO. 18, NAGAR PARISHAD, MADHUBANI.
22. HENA KAUSAR, WIFE OF NOT KNOWN, COUNCILOR
OF WARD NO. 17, NAGAR PARISHAD, MADHUBANI.
23. ANUJA JHA, WIFE OF NOT KNOWN, COUNCILOR OF
WARD NO. 20, NAGAR PARISHAD, MADHUBANI.
24. RAUSHAN KHATOON, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 4, NAGAR PARISHAD,
MADHUBANI.
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25. SMT. SUMITRA DEVI, WIFE OF NOT KNOWN,
COUNCILOR OF WARD NO. 27, NAGAR PARISHAD,
MADHUBANI.
.....RESPONDENTS/RESPONDENTS.
For the appellant : Mr. Y.V.Giri, Senior Advocate
Mr. Indu Bhushan, Advocate
Mr. A.K.Thakur, Advocate
For respondent nos.1 to 6 : Mr. Ritesh Kumar, A.C to A.A.G.-I
For respondent nos. 7 : Mr. B.N.P.Singh, Advocate
For respondents 8 to 25 : Mr. Purushottam Jha, Advocate
---------
WITH
LPA No.1580 of 2009
1. PAWAN KUMAR PURBEY S/O LATE BALDEO PURVEY,
R/O MOHALLA-SURATGANJ, WARD NO. 15, P.S
MADHUBANI, DISTT- MADHUBANI.
2. FAROOQUE ANSARI S/O LATE BAM BHOLA MAJID, R/O
STADIUM ROAD, WARD NO. 22, P.S- MADHUBANI, DISTT-
MADHUBANI.
......WRIT PETITIONERS/APPELLANTS.
VERSUS
1. THE STATE OF BIHAR
2. THE SECRETARY, DEPARTMENT OF URBAN
DEVELOPMENT, GOVT. OF BIHAR, PATNA
3. THE DEPUTY SECRETARY, DEPTT. OF URBAN
DEVELOPMENT, GOVT. OF BIHAR, PATNA
4. COMMISSIONER, DARBHANGA DIVISION,
DARBHANGA.
5. DISTRICT MAGISTRATE, MADHUBANI.
6. INCHARGE DY. COLLECTOR, GENERAL SECTION,
MADHUBANI.
7. EXECUTIVE OFFICER, NAGAR PARISHAD,
MADHUBANI
8. VIJAY KUMAR CHOUDHARY, S/O SITA RAM
CHOUDHARY, WARD MEMBER, WARD NO. 16, LOHA
PATTI ROAD, P.S AND DISTT- MADHUBANI.
9. BAJRANG MAHTO, S/O LATE RAMCHANDRA MAHTO,
WARD MEMBER, WARD NO. 2, RESIDENT OF
MOHALLA-SANTU NAGAR, P.S AND DISTT-
MADHUBANI.
10. MAHESH MAHTO, S/O SHIVJI MAHTO, WARD
MEMBER, WARD NO. 8, RESIDENT OF MOHALLA-
NONIA TOLI, P.S- AND DISTT- MADHUBANI.
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11. MAKHANI DEVI, W/O RAM PRIT PASWAN, WARD
MEMBER, WARD NO. 9, RESIDENT OF MOHALLA -
DHANIK TOLA, P.S AND DISTT- MADHUBANI.
12. JAI SHANKAR SAH, S/O LATE MAHANTHI SAH, WARD
MEMBER, WARD NO. 1, RESIDENT OF MOHALLA-
LAHERIAGANJ, P.S AND DISTT- MADHUBANI.
13. OM PRAKASH THAKUR, S/O LATE GHURAN
THAKUR, WARD MEMBER, WARD NO. 5, RESIDENT
OF MOHALLA- GADIYANI, P.S AND DISTT-
MADHUBANI.
14. RAUSHAN KHATOON, W/O MD. IDRISH, WARD
MEMBER, WARD NO. 4, RESIDENT OF MOHALLA -
R.K.COLLEGE, P.S AND DISTT- MADHUBANI
15. POONAM DEVI, W/O BHAGWAN LAL PRASAD, WARD
MEMBER, WARD NO. 6, RESIDENT OF MOHALLA-
BABU SAHEB CHOWK, P.S AND DISTT- MADHUBAI
16. SUDHA DEVI, W/O TRILOKI MANDAL, WARD
MEMBER, WARD NO. 7, RESIDENT OF MOHALLA -
GAUSHALA ROAD PURANI GHATT., P.S AND DISTT-
MADHUBANI.
17. SUNITA DEVI, W/O ANIL PURVEY, WARD MEMBER,
WARD NO. 14, RESIDENT OF MOHALLA-J.P.COLONY,
P.S AND DISTT- MADHUBANI.
18. HENA KAUSAR, W/O MD. ISTIYAK, WARD MEMBER,
WARD NO. 17, RESIDENT OF MOHALLA -SURATGANJ,
P.S AND DISTT- MADHUBANI.
19. KRISHNA DEVI, W/O KAILASH SAH, WARD MEMBER,
WARD NO 18, RESIDENT OF MOHALLA-
GANGASAGAR CHOWK, P.S- AND DISTT-
MADHUBANI.
20. SAMIUR RAHMAN, S/O MOZIUR RAHMAN, WARD
MEMBER, WARD NO. 29, RESIDENT OF MOHALLA-
KOTWALI CHOWK, P.S AND DISTT- MADHUBANI.
21. SHAHNAJ KHATOON, W/O FAKRUDDIN, WARD
MEMBER, WARD NO. 25, RESIDENT OF MOHALLA-
KARBALA CHOWK, P.S AND DISTT- MADHUBANI.
22. SUMITRA DEVI, W/O JAMUN SAHNI, WARD MEMBER,
WARD NO. 27, RESIDENT OF MOHALLA-MALLAH
TOLI, P.S AND DISTT- MADHUBANI.
23. ANUJA JHA, W/O KEDAR NATH JHA, WARD MEMBER,
WARD NO. - 20, RESIDENT OF MOHALLA-HANUMAN
NAGAR, P.S AND DISTT- MADHUBANI.
24. PAWAN KARAK, S/O LATE DEV NARAYAN KARAK,
WARD MEMBER, WARD NO. 10, RESIDENT OF
MOHALLA-KARAK PATTI, P.S AND DISTT-
MADHUBANI.
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25. BIMLA KHATO DEVI, W/O SURESH DAS, WARD
MEMBER, WARD NO. 26, RESIDENT OF MOHALLA-
YADAV TOLA, P.S AND DISTT- MADHUBANI.
.....RESPONDENTS/RESPONDENTS.
For the appellants : Mr. Y.V.Giri, Senior Advocate
Mr. Indu Bhushan, Advocate
Mr. A.K.Thakur, Advocate
For respondent nos.1 to 6 : Mr. Ritesh Kumar, A.C to A.A.G.-I
For respondent no. 7 : Mr. B.N.P.Singh, Advocate
For respondents 8 to 25 : Mr. Purushottam Jha, Advocate
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PRESENT: THE HON'BLE CHIEF JUSTICE
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
ORDER
(15-04-2010) As per Dipak Misra, C.J.
In this batch of appeals, the assail is to the common order dated 24.11.2009 passed by the learned Single Judge disposing of three writ petitions, namely, CWJC No.7646 of 2009, CWJC No.7567 of 2009 and CWJC No.8075 of 2009, whereby he has directed the Chief Councillor to fix and notify a special meeting with regard to no confidence motion against him and the Deputy Chief Councillor in accordance with the requisition as received and seek confidence of the House within the period as provided under the Bihar Municipal Act, 2007 (for brevity, „the Act‟).
2. Be it noted, though there were three writ petitions and three appeals have been preferred against the common order passed by the learned Single Judge, yet the factual exposition in all the cases -7- has an inseparable thread of commonality and, therefore, it is apposite to adumbrate the facts in singular compartment.
3. Eighteen Councillors of Madhubani Nagar Parishad filed requisition for convening special meeting of the Nagar Parishad for considering of the vote of no confidence against the Chief Councillor as well as the Deputy Chief Councillor. On the basis of the requisition, the Chief Councillor fixed the meeting to 16.07.2009 and noticed the Councillors. On the 09th of July, 2009, the in-charge Additional Collector informed the Chief Executive Officer of the Nagar Parishad that in view of the order dated 08.07.2009 of the District Magistrate, Madhubani, the special meeting relating to the vote of no confidence against the Chief Councillor and the Deputy Chief Councillor should be adjourned to 10.30 a.m. on 17.07.2009 and the said meeting should be held at the Vikash Bhawan. It is the admitted position that the Collector-cum-District Magistrate had received the earlier communication from the Nagar Parishad in which the meeting was fixed to 16.07.2009. As the Collector-cum- District Magistrate had no role in the scheme of the Act, the said order passed by the Collector came to be challenged in CWJC no.8075 of 2009. The writ petition came to be filed by the petitioners who are the Chief Councilor and the Deputy Chief Councillor. -8-
4. In CWJC No.7646 of 2009, a Ward Member assailed the notice containing memo no. 442 dated 01.07.2009 issued by the Executive Officer, Nagar Parishad, Madhubani by which he had directed the Chief Councillor to call a meeting on 16.07.2009 at
11.a.m. for consideration of the no confidence motion. The notice issued by the Executive Officer contained the circular issued by the State Government, as contained in memo no.2360 dated 22.06.2009, wherein it has been stipulated that the meeting would be held as per the procedure laid down in the said circular. Be it noted, the said circular has been issued by the Principal Secretary, Department of Urban Development and Housing. The writ petitioner challenged the circular on the ground that in the said circular, it has been stipulated that once a notice has been given for holding a meeting of no confidence motion, the same shall not be postponed and for discussion on the motion, there would be no necessity for a quorum. To put it otherwise, it has been conveyed by the circular that the meeting of no confidence would be allowed to continue even if the minimum quorum is not fulfilled. It was contended that the authority had no power to issue such a circular as that would run counter to the mandate of the statute.
5. In CWJC No.7567 of 2009 filed by the petitioner-Chief Councillor of the Municipal Council,it was stated that after getting the information from the Chief Executive Officer, he had instructed on -9- 22.06.2009 for convening the meeting of the council on 16.07.2009, but the same was adjourned by the Collector placing reliance on the circular dated 22.06.2009 which had no legs to stand upon. It was also urged that the District Magistrate had no right to change the date or to preside over the meeting. It was also contended that in the absence of any framing of rules as mandated under Section 25(4) of the Act, vote of no confidence motion could not be mooted.
6. A counter affidavit was filed by the answering respondents contending, inter alia, that in the absence of the statutory rule, the State was competent to issue circular which would have force of the rule. The said circular provides that where there is no confidence motion against the Chief Councillor and the Deputy Chief Councillor simultaneously, the meeting would be called for by the Collector of the District and would be presided over by him and convened under his supervision or under his delegated authority. It further provides that for such a special meeting, there would be no requirement of quorum. It was put forth that as no procedure is envisaged in the Act how a vote of no confidence motion is to be moved and mooted when there is a requisition against both the Chief Councillor and the Deputy Chief Councillor, the said circular was issued to fill up the lacuna. Reliance was placed under various provisions of the Act especially Section 487 of the Act which deals with removal of difficulties.
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7. Before we proceed to state about the conclusions arrived at by the learned Single Judge, it is apt to mention that on 16.07.2009 in CWJC No.8075 of 2009 wherein the postponement of the meeting by the District Magistrate vide communication dated 09th July, 2009 was assailed, the said order was stayed and further it was directed status quo prior to the holding of the meeting of no confidence motion fixed for the date, i.e., 16.07.2009, shall be maintained.
8. The learned Single Judge, after hearing the learned counsel for the parties, came to hold that the notification issued by the State Government vide memo no.2360 dated 22.06.2009 making provision for holding of special meeting is totally contrary to the provisions contained in Sections 25(4) and 51 of the Act and, therefore, cannot be accepted to remain in force and the State Government in the guise of issuing executive instructions cannot usurp the statutory provision. He has further opined that the Act itself takes care about the person who would preside over the meeting under Section 51 of the Act and, hence, the District Magistrate could not have been conferred the power by executive instruction more so in the absence of a rule. The language employed in Section 25(4) of the Act to the effect that "the manner prescribed" would mean the manner prescribed as in the statute, meaning thereby making rules and not by issuing executive instructions. The learned
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Single Judge has further held that the State Government had no authority whatsoever to stipulate that no quorum would be necessary as the same is in clear transgression of the postulates laid down in the Act. Being of this view, the learned Single Judge came to hold that the meeting could not have been adjourned by the District Magistrate. After so holding, it has been noted by him that by order dated 16.07.2009, the writ court had stayed the communication of the Collector and a meeting was held by the Chief Councillor on that day and the same was attended by 12 members. The learned Single Judge further took note of the fact that once the meeting was adjourned by the District Magistrate and due to the interim order passed on 16.07.2009 in which parties were not represented the meeting was held, it cannot be regarded as a notice to all. He further took note of the fact that the Chief Councillor and the Deputy Chief Councillor after obtaining the interim order immediately held the meeting on the same day and, therefore, the resolution passed therein cannot be treated to be proper resolution passed in a valid meeting and, accordingly, it directed the Chief Councillor to fix and notify a special meeting, with the agenda with regard to no confidence motion against him and the Deputy Chief Councillor in accordance with the requisition, as received and seek confidence of the House within the period as has been provided in the Act.
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9. We have heard Mr. Y.V. Giri, learned Senior Counsel appearing for the appellant in LPA No. 1564 of 2009, Mr. Ajay Kumar Thakur, learned counsel appearing for the appellants in LPA No. 1579 of 2009 and LPA No. 1580 of 2009, Mr. P.K. Shahi, learned Advocate General along with Mr. Ritesh Kumar, AC to AAG-I for the State, Mr. B.N.P. Singh, learned counsel for the respondents no. 6 & 7 and Mr. Purushottam Jha, learned counsel for the respondents no. 8 to 25.
10. Section 25 of the Act deals with removal of Chief Councillor / Deputy Chief Councillor. It reads as follows:
"25.Removal of Chief Councillor/Deputy Chief Councillor.- (1) The Chief Councillor/Deputy Chief Councillor shall cease to hold office as such if he ceases to be a Councillor.
(2) The Chief Councillor may resign his office by writing under his hand addressed to the Divisional Commissioner and Deputy Chief Councillor may resign his office by writing under his hand addressed to the Chief Councillor.
(3) Every resignation under sub-section (2) shall take effect on the expiry of seven days from the date of such resignation, unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Divisional Commissioner or the Chief Councillor, as the case may be.
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(4) The Chief Councillor/Deputy Chief Councillor may be removed from office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a requisition made in writing by not less than one-third of the total number of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed:
"Provided that 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:
Provided further that a no confidence motion shall not be brought again within one year of the first no confidence motion:
Provided further also that no confidence motion shall not be brought within the residual period of six months of the municipality.
(5) "Without prejudice to the provisions under this Act, if, in opinion of the Divisional Commissioner having territorial jurisdiction over the Municipality the Chief Councillor/Deputy Chief Councillor absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and
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functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Divisional Commissioner may, after giving the Chief Councillor/Deputy Chief Councillor a reasonable opportunity for explanation, by order, remove such Chief Councillor from office.
(6) The Chief Councillor/Deputy Chief Councillor so removed shall not be eligible for re-election as Chief Councillor/Deputy Chief Councillor or Councillor during the remaining term of office of such Municipality.
Appeal shall lie before the State Government against the order of the Divisional Commissioner."
11. Sub-section (4) of the said Section postulates that a resolution has to be carried out by majority of the whole number of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed upon a requisition made in writing by not less than one-third of the total number of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed.
12. In the dictionary clause, the term `prescribed‟ has been conferred a meaning under Section 2(76) of the Act whereby it has
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been stated that `prescribed‟ means `prescribed by rules made under the Act‟. It is not in dispute that the State Government has not framed the rules. In the absence of the rules, a circular has been issued by the Under Secretary, Department of Urban Development, Govt. of Bihar, Patna. The said circular in various clauses has laid down certain conditions which have been discussed by the learned single Judge at length. In Clause 4 of the said circular, there is a stipulation that no quorum would be necessary. The said stipulation is in flagrant violation of the statutory provisions and cannot be held to be valid. That apart, the said circular confers power on the District Magistrate.
13. Chapter VII of the Act in Part-A deals with Transaction of Business by Municipality. Section 51 which occurs in the said provision reads as follows:
"51.Presiding officer of a meeting of Municipality.- (1) The Chief Councillor shall preside at every meeting of the Municipality and in his absence the Deputy Chief Councillor shall preside the meeting:
Provided that when a meeting is held to consider a motion for the removal of the Chief Councillor, the Chief Councillor shall not preside at such meeting.
(2) The Chief Councillor, or the person presiding over a meeting of the Municipality, shall also have, and may exercise, a casting vote in all cases of equality of votes".
14. On a reading of the said provision, it is clear as day that the Chief Councillor shall preside over the meeting and in his
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absence, the Deputy Chief Councillor shall do so. In the proviso, an exception has been carved out that the Chief Councillor shall not preside at such a meeting if the meeting has been convened to consider a motion for his removal. Sub-section (2) empowers the Chief Councillor or the person presiding over a meeting of the Municipality to exercise a casting vote in all cases of equality of votes. It can be stated by applying the deductive method that a person who has power to cast his vote can only preside over the meeting. If the scheme of the Act is read in proper perspective, there can be no scintilla of doubt that a Chief Councillor who has power to participate in the transaction has power to vote. Thus, a Chief Councillor can, under certain circumstances, be asked to preside over the meeting. Such a contingency can be met with if there is a requisition to moot a motion of no confidence against the Chief Councillor and the Deputy Chief Councillor. No role can be ascribed to any person from the executive to preside over such a meeting. True it is, there are provisions in certain statutes where a meeting is held in the presence of the Executive Officer of the Municipality or by a Sub Divisional Officer or even by the District Magistrate, but in the said provisions, no power is conferred on them for casting vote in case of equality of votes but Section 51 of the Act has been differently couched and, therefore, the only conclusion that can be arrived at is that a meeting has to be presided over by the
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Chief Councillor or the Deputy Councillor or the Councillor which would be in apposite and in fitness of thing in a democratic set up regard being had to the power conferred on the Municipalities under the Act.
15. In view of the aforesaid, the plea of the State Government that to meet a contingency of this nature, the executive instruction was issued does not deserve acceptance and, accordingly, we concur with the finding of the learned single Judge on that score.
16. It is next contended by the learned counsel for the appellants that in the absence of a rule as provided under Section 25(4) read with Section 2(76) of the Act, no meeting can be held for mooting a motion of no confidence.
17. The learned counsel for the appellants, in this context, has commended us to certain authorities. In P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., (AIR 1995 SC 1395), it has been held as follows:
"20. The Rules have been made in exercise of the power conferred by Section 53 of the Act. Under Section 54(2) of the Act every rule made under the Act is required to be placed on the table of both Houses of the Legislature as soon as possible after it is made. It is accepted principle of statutory construction that "rules made under a statute are a legitimate aid to construction of the statute as Contemporanea Expositio" (See : Craies on Statute Law, 7th Edition pp. 157-158; Tata Engineering and Locomotive Company Ltd. V. Gram
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Panchayat Pimpri Waghere, (1977) 1 SCR 306, at p. 317 : (AIR 1976 Supreme Court 2463 at p.2467). Rule 2(b) and Rule 2(d) defining the expression "College" and "Director" can, therefore, be taken into consideration as contemporanea exposition for construing the expression "private college" in Section 2(8) of the Act. Moreover, the Act and the Rules form part of a composite scheme. Many of the provisions of the Act can be put into operation only after the relevant provision or form is prescribed in the Rules. In the absence of the Rules the Act cannot be enforced. If it is held that Rules do not apply to technical educational institutions the provisions of the Act cannot be enforced in respect of such institutions. There is, therefore, no escape from the conclusion that professional and technical education institutions are excluded from the ambit of the Act and the High Court has rightly taken the said view. Since we agree with the view of the High Court that professional and technical educational institutions are not covered by the Act and the Rules, we do not consider it necessary to go into the question whether the provisions of the Act fall within the ambit of Entry 25 or List III and do not relate to Entry 66 of List I."
18. On a reading of the said passage, it is clear that their Lordships have opined that many of the provisions of the Act can be put into operation only after the relevant provision or form is prescribed in the Rules and in the absence of the Rules, the Act cannot be enforced. In our considered opinion, the said decision
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does not lay down an absolute rule that in all cases, no provision of the Act can be given effect to if the Rules are not framed.
19. In People's Union for Civil Liberties (PUCL) v. Union of India & Anr., (1997) 1 SCC 301, the Apex Court was dealing with telephone-tapping which was criticized as an invasion on an individual‟s privacy. In that context their Lordships referred to Section 5(2) of the Indian Telegraph Act, 1885 and expressed that the substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. In that context, their Lordships referred to the decision rendered in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, wherein it has been held that the procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. A rule cannot be arbitrary, freakish or bizarre. After so stating, their Lordships proceeded to observe as follows:
"31. ......... It is not disputed that no rules have been framed under Section 7(2)(b) of the Act for providing the precautions to be taken for preventing the improper interception or disclosure of messages. In the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the rights of the citizens guaranteed under
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Articles 19(1)(a) and 21 of the Constitution of India......."
20. The aforesaid decision has been rendered in a different context altogether and emphasis was laid on backing of procedural law. It was a decision rendered in the backdrop of Article 21 of the Constitution of India. We are disposed to think the said decision cannot be applicable to a case of the present nature.
21. In J.K. Industries Limited and another v. Union of India and others, (2007) 13 SCC 673, the Apex Court was dealing with the issue whether Accounting Standard is inconsistent with the provisions contained in Section 642(1) of the Companies Act, 1956. In that context, in paragraph 138, their Lordships have ruled thus:
"138. There is one more way of looking at the arguments. The Companies Act has been enacted to consolidate and amend the law relating to companies and certain other associations. Under Section 311(3-A) Accounting Standards framed by National Advisory Committee on Accounting Standards constituted under Section 210-A are now made mandatory. Every company has to comply with the said standards. Similarly, under Section 227(3)(d) every auditor has to certify whether the P&L account and balance sheet comply with the accounting standards referred to in Section 211(3-C). Similarly, under Section 211(1) the company accounts have to reflect "true and fair" view of the state of affairs. Therefore, the object behind
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insistence on compliance with the AS and "true and fair" accrual is the presentation of accounts in a manner which would reflect the true income/profit. One has, therefore, to look at the entire scheme of the Companies Act. In our view, the provisions of the Companies Act together with the Rules framed by the Central Government constitute a complete scheme. Without the Rules, the Companies Act cannot be implemented. The impugned Rules framed under Section 642 are a legitimate aid to construction of the Companies Act as contemporanea expositio. Many of the provisions of the Companies Act, like computation of book profit, net profit, etc. cannot be put into operation without the Rules."
22. The principle laid down therein, we are disposed to think, deals with a different facet altogether. Their Lordships have expressed the view that without the rule, the provisions of the Companies Act cannot be implemented because of the object behind the various provisions of the Act and, hence, the framing of the rule was imperative. As has been indicated hereinabove, the factual matrix of the present case is in a different spectrum. It pertains to calling of a meeting for vote of no confidence and, therefore, the said decision is of no assistance to the learned counsel for the appellant.
23. The learned counsel for the appellants commended us to the decision in Jagannath Prasad V. The State of Uttar Pradesh, AIR 1963 SC 416, wherein the Apex Court has held that
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the terms `as may be prescribed‟ could only be done by Rules and no Rules have been made under Section 3(A) of the Uttar Pradesh Sales Tax Act, 1948 (U.P. 15 of 1948) which makes every dealer liable to sales tax if he was an importer from outside Uttar Pradesh and the same cannot be substituted by a notification. It is well settled in law that imposition of tax has to have a statutory sanction. The Act has made a provision that it has to be provided by a rule and their Lordships have held that it could not have been done by a notification. Thus, the ratio laid down in the said decision is not applicable to the case at hand.
24. At this juncture, we may fruitfully refer to the decision in Orissa State Prevention and Control of Pollution Board v. M/s Orient Paper Mills and another, AIR 2003 S.C. 1966 wherein their Lordships were dealing with the matter of declaration of an area within the State as an Air Pollution Control Area. The Air (Prevention and Control of Pollution) Act, 1981, under Section 54(2)(k), stipulates framing of rules prescribing the manner in which an area is to be declared as air pollution control area. The State Government had not framed the rules. In that context, their Lordships have held as follows:
"Even if the State Government has not framed under S. 54(2)(k) Rules prescribing the manner in which an area is to be declared as air pollution control area, the State Government is empowered
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to declare any area within the State as an Air Pollution Control Area by notification in the Official Gazette. It may, however, be after consultation with the Board and in the manner as may be prescribed. Absence of rules will not render the Act inoperative. The Act under S.19 vests the State Government with power to notify any area, in an official gazette, as Air Pollution Control Area, but it cannot be said that exercise of such power is solely dependent upon framing of the rules prescribing the manner in which an area may be declared as Air Pollution Control Area."
(Quoted from the placitum)
25. In this context, we may refer with profit to the decision rendered in Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association and others, (2009) 8 SCC 492, wherein their Lordships were considering the decision rendered by a division bench of the Gauhati High Court whereby and whereunder the memorandum dated 11.09.2003 issued by the Government of Meghalaya purported to be in terms of Section 138(2)(v) of the Motor Vehicles Act, 1988 was held to be illegal and a writ in the nature of mandamus was issued directing the Government of Meghalaya to make rules in exercise of the powers made therein. Their Lordships posed the question in paragraph 20 whether the State Government is empowered to issue any executive order in respect of the matters required to be prescribed by the rules.
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In that context, their Lordships have held in paragraphs 22 and 23 as follows:
"22. Clause (3) of Article 166 empowers the Governor to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Minister of the said business insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. The memorandum was issued in the name of the Governor. It is not in dispute that it was authenticated in terms of clause (2) of Article 166 of the Constitution. The power was exercised by the State under the provisions of the Act. The said order was to remain in force till rules are framed in the prescribed manner.
23. The provisions of the Act mandate that the unladen weight and laden weight must be determined. Indisputably, weighing devices had to be provided for the said purpose. It is true that for the said purpose rules may have to be framed. It is, however, a well-settled principle of law that even in a case where the statute provides for certain things to be done, subject to rules, any action taken without framing the rules would not render any (sic that) action invalid. If a statute is workable even without framing of the rules, the same has to be given effect to. The law itself except in certain situations does not envisage vacuum. Non- compliance with the provisions relating to "laden
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weight" and "unladen weight" being penal in nature must be held to be imperative in character."
26. From the aforesaid enunciation of law, it is clear as crystal that if the provisions of the Act can be given effect to, non-framing of the rules would not vitiate the act. The acid test is the workability of the provisions. The submission of the learned counsel for the appellants is that without framing of the rules, a vote of no confidence cannot be carried out. They have invited our attention to Sections 48 and 51 of the Act. We have already reproduced Section 51 of the Act hereinabove. Section 48 of the Act reads as under:
48. Meetings.- (1) The Municipality shall meet not less than once in every month for the transaction of its business.
(2) The Chief Councillor may, whenever he thinks fit, and shall, upon a requisition in writing by not less than one-fifth of the Councillors, convene a meeting of the Municipality.
(3) If the Chief Councillor fails to call the requisition meeting provided in sub-section (2), the meeting may be called by the persons who signed the requisition.
27. On a scrutiny of the scheme of the Act, we are of the considered opinion that it cannot be said that without laying down of the procedure for conduct of business in a special meeting under the rules, the provision as engrafted under Sections 25 and 51 of the Act cannot really be effectively carried out. The procedure to be adopted
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has to be fair. Appreciating the scheme of the Act in entirety, we notice that the Chief Councillor has been empowered to convene a meeting of the Municipality. In fact, Section 48 of the Act adequate guidance and safeguard. It is a well settled proposition of law that a statute has to be read as a whole to understand its object and purpose. On a reading of the provisions in entirety, we are of the considered view that a vote of no confidence can be mooted and carried out without framing of the rules and, hence, the provisions of the statute are workable.
28. The next contention that is canvassed is that the learned single Judge has fallen into grave error by directing to convene another meeting though a meeting had already been held on 16.07.2009. It is worth noting that initially the meeting was fixed on 16.07.2009 by the Chief Councillor himself. There was an interdiction by the Additional Collector to postpone the meeting to 17.07.2009. The said communication was dated 9th July, 2009. This Court on 16.07.2009, while directing stay of the notice dated 19.07.2009, had further directed status quo with regard to the holding of the meeting of no confidence on 16.07.2009. On that day, as is evident from the material on record, 12 Councillors attended the meeting and it is not in dispute that the Madhubani Nagar Parishad consists of 30 elected members. The learned single Judge opined and rightly so that when all the Councillors were not represented and
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the Court had interdicted and the meeting was held on 16.07.2009, there was really no notice to all concerned. If we permit ourselves to say so, the writ court has applied the doctrine that `nobody should suffer for the fault of the Court‟. Eighteen Councillors had filed a requisition for convening a special meeting of the Nagar Parishad for considering the vote of no confidence. Sub-section 25(4) postulates that a Chief Councillor or a Deputy Chief Councillor can be removed from the office by resolution carried by a majority of the whole number of Councillors holding the office. When the requisition was sent by 18 elected Councillors and a meeting is scheduled there has to be notice to all so that they can participate in the no confidence motion. The meeting was conducted on 16.07.2009 because of an interim order of this Court. The learned single Judge has held that the said meeting was really no meeting in the eye of law. We think the opinion expressed is correct inasmuch as in a democratic set up there has to be a proper notice but in the instant case, there was a state of confusion because of the interdiction by the Court at the eleventh hour. The writ court thought it appropriate to rectify the error and issue the direction. The same is in the fitness of things because it would be travesty of justice if the Councillors who had requested for convening the meeting were not noticed when to appear in the meeting because nothing has been brought on record that the Councillors were noticed again to attend the meeting on
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16.7.2009. Thus, we do not find any error in the said direction of the learned single Judge.
29. Consequently, we perceive no merit in any of the appeals and, accordingly, all the appeals are dismissed without any order as to costs.
( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. ) Patna High Court. The 15th April, 2010. AFR Sunil.