Patna High Court - Orders
Vibha Devi vs The State Of Bihar & Ors on 11 September, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1160 of 2014
In
Civil Writ Jurisdiction Case No. 12226 of 2014
======================================================
1. Vibha Devi, wife of Sri Indradeo Yadav, resident of
Mohalla - Kandi, Ward No.5, P.O. Nawada, P.S.
Chandauti, District - Gaya, Presently Chief Concillor/
Mayor, Gaya Municipal Corporation, District - Gaya
.... .... Appellant
Versus
1. The State of Bihar through the Chief Secretary,
Government of Bihar, Patna
2. The Principal Secretary, Housing Department,
Government of Bihar, Patna
3. The Director, Urban Development and Housing
Department, Government of Bihar, Patna
4. The District Magistrate, Gaya, District - Gaya
5. The Municipal Commissioner, Gaya Municipal
Corporation, Gaya, District - Gaya
6. Smt. Sunaina Devi
7. Sri Rajesh Kumar
8. Sri Jitendra Kumar Verma
9. Sri Binod Kumar Mandal
10. Smt. Saraswati Devi
11. Smt. Nibha Kumar
12. Smt. Sony Kumari
13. Smt. Asha Devi
14. Sri Akhauri Onkar Nath
15. Sri Upendra Kumar
16. Smt. Sunitra Devi
17. Smt. Anju Sharma
18. Smt. Indu Devi
19. Smt. Anita Anu
20. Smt. Usha Devi
21. Sri Pramod Kumar Nawadia
22. Sri Braj Bhushan Prasad
23. Sri Manoj Kumar
24. Sri Dharmendra Kumar
25. Sri Shiv Das Mochi
26. Sri Lalji Prasad
27. Sri Khatib Ahmad
28. Smt. Shamima Ara
29. Sri Abarar Ahmad
30. Smt. Sabina Praveen
Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014
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31. Smt. Anita Devi
32. Sri Santosh Yadav
33. Sri Bhim Yadav
34. Sri Naresh Kumar
35. Smt. Sangita Mani
36. Smt. Ragini
37. Smt. Sumaiya Praveen
38. Sri Rakesh Kumar
39. Sri Anand Kumar
40. Sri Chitranjan Prasad Verma
41. Smt. Sarika Verma
42. Smt. Afsana Khanam
43. Smt. Rajani Kumari
44. Sri Om Prakash
45. Sri Shashi Kishore
46. Smt. Sudha Sinha
47. Smt. Mina Devi
48. Sri Surendra Prasad
49. Smt. Sagufta Praveen
50. Sri Santosh Singh
51. Smt. Sarita Devi
51. Smt. Hajra Khatoon
52. Smt. Pramila Devi
53. Smt. Veena Devi
54. Smt. Kiran Devi
55. Smt. Guriya Devi
56. Sri Ram Lakhan Chaudhary
Respondent Nos. 6 to 56 are the Ward Councilors of Gaya
Municipal Corporation, Gaya, P.O.+ P.S. and District - Gaya
.... .... Respondents
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Appearance :
For the Appellant :
Mr. Y. V. Giri, Senior Advocate
Mr. Ashish Giri, Advocate
For the State : Mr. Santosh Kumar Jha, G.P. 3
For the Corporation : Mr. Rabindra Priyadarshi, Advocate
For respondents 8 & 15 : Mr. Binod Kumar Singh, Advocate
Mr. Ram Pravesh Kumar, Advocate
For S.E.C. : Mr. Amit Shrivastava, Advocate
Mr. Girish Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014
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5 11 -09-2014Aggrieved by a resolution, dated 10.07.2014, whereby special meeting, held for considering the motion of no confidence against the appellant herein, who was the elected Chief Councillor of the Municipal Corporation, Gaya, had been adjourned to 23.07.2014 for want of quorum, the appellant herein filed a writ petition, under Article 226 of the Constitution of India, seeking, inter alia, issuance of a writ in the nature of Certirorari for quashing that part of the resolution, dated 10.07.2014, of the special meeting, whereby the special meeting was adjourned, for want of quorum, to 23.07.2014, at 10:30 AM, for the purpose of considering a motion of no confidence, which had been brought against the appellant herein.
2. The case of the writ petitioner-appellant may, in brief, be set out as under:
(i) Though the writ petitioner-appellant, as Chief Councillor of the Gaya Municipal Corporation, received the support of the majority of the Ward Councillors, the Deputy Chief Councillor, namely, Akhauri Onkar Nath, had been struggling to, somehow, remove the writ petitioner-
appellant from the Office of the Chief Councillor and, with this design in mind, had been creating hindrances in the Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 4/27 effective performance of the writ petitioner-appellant. Since the majority of the Councillors were not approving the conduct of Akhauri Onkar Nath, as Deputy Chief Councillor, a requisition by more than sufficient number of Ward Councillors was given to the writ petitioner-appellant to convene special meeting for consideration of a motion of no confidence, against Akhauri Onkar Nath, as Deputy Chief Councillor, the resolution seeking removal of Akhouri Onkar Nath from the Office of the Deputy Chief Councillor having been so given soon after completion of his two years in the Office of the Deputy Chief Councillor.
(ii) On a special meeting being convened to discussion the no confidence motion brought against the said Deputy Chief Councillor, the special meeting was held on 20.06.2014 and, by majority of votes, the motion of no confidence, brought against Deputy Chief Councillor, was passed and he stood removed from the said Office, whereupon the said Deputy Chief Councillor challenged the proceedings of the special meeting by way of a writ petition, which gave rise to CWJC No. 9899 of 2014, and, by an order, dated 11.07.2014, a learned single Judge of this Court stayed the notification issued for election of a new Deputy Chief Councillor.
(iii) At the time, when the motion of no Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 5/27 confidence was passed against the Deputy Chief Councillor, he was in jail and, immediately after his release from jail, he started acting more intensely than before to ensure that the writ petitioner-appellant, too, is removed from her Office. In order to accomplish his design, he got signatures of the Ward Councillors on a plain paper on some pretext or other and converted the same into a requisition, addressed to the writ petitioner-appellant, seeking a special meeting to be called for the purpose of considering a motion of no confidence against the writ petitioner-appellant and sent the said requisition to the Municipal Commissioner, Gaya, on 12.06.2014, although Rule 2 (i) of Bihar Municipal No Confidence Motion Process Rules, 2010 (hereinafter referred to as "2010 Rules"), provides for giving such a requisition to the Chief Councillor. The requisition, so given to the Municipal Commissioner, was placed before the writ petitioner- appellant, on 12.06.2014 itself, and, by order, dated 12.06.2014, the writ petitioner-appellant rejected the said requisition on the ground that only two elected members had asked for convening the special meeting to consider the motion of no confidence; whereas 28 elected Ward Councillors had put their signatures on another page on which it was clearly mentioned at the top „against No Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 6/27 confidence motion'.
(iv) Notwithstanding the fact that the writ petitioner-appellant had rejected the said requisition on 12.06.2014, another copy of the said requisition was, again, placed before the writ petitioner-appellant for a decision to convene a special meeting, whereupon the writ petitioner-appellant, by her noting, dated 28.06.2014, directed the Municipal Commissioner to obtain legal opinion.
(v) On 01.07.2014, the writ petitioner-appellant asked the Municipal Corporation to place the relevant file with the legal opinion, because she was informed, on 30.06.2014, that the opinion of the Legal Department had been obtained. On 01.07.2014, when the writ petitioner- appellant made enquiry with regard to production of the file, it transpired that 27, out of 53 elected Ward Councillors, had decided to convene a special meeting, on 10.07.2014, to consider a motion of no confidence against the writ petitioner-appellant, whereupon the writ petitioner-appellant directed the Municipal Commissioner to issue notice convening a special meeting for considering the motion of no confidence.
(vi) The Municipal Commissioner, accordingly, issued notices, on 02.07.2014, convening the special Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 7/27 meeting, on 10.07.2014, to discuss the motion of no confidence, brought against the appellant herein. On the date so fixed, i.e. 10.07.2014, only 7, out of 53 elected Ward Councillors, however, attended the special meeting and since 7 Ward Councillors, who were present in the special meeting, did not constitute the majority of the elected Ward Councillors of the said Corporation, motion of no confidence, according to the writ petitioner-appellant, ought to be treated as having failed.
(vii) Coupled with the above, it has been the further case of the writ petitioner-appellant that since the Municipal Commissioner was in league with the requisitionists, the special meeting was adjourned to the next date, i.e. 23.07.2014, ignoring the fact that since the special meeting, which was held on 10.07.2014, had not been attended to by the requisite number of Ward Councillors of the said Municipal Corporation, the no confidence motion, which was brought against the writ petitioner-appellant, ought to be treated as having failed and no further special meeting to discuss the motion of no confidence against the writ petitioner-appellant could have been brought, in the light of the provisions contained in Section 25 (4) of Bihar Municipal Act, 2007 (hereinafter referred to as "2007 Act"), more particularly, the second Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 8/27 proviso to sub-Section (4) of Section 25 of 2007 Act, within one year thereof.
(viii) The writ petitioner-appellant herein asserts that though the special meeting is claimed to have been chaired by Shashi Kishore by virtue of power contained in Section 51 (1) of 2007 Act, the fact remains that the special meeting could not have elected Shashi Kishore, a Ward Councillor, to preside over the special meeting, when the special meeting did not, admittedly, have the requisite number of elected Ward Councillors present and, in consequence thereof, even the adjournment of the special meeting is nullity in the eyes of law.
3. The private respondents herein resisted the writ petition by contending, inter alia, that as no quorum was available for holding the special meeting on 10.07.2014, the requisitionists elected unanimously, in terms of Section 51 (1) of 2007 Act and in accordance with the provisions of Section 50 (2) of the 2007 Act, Shri Shashi Kishore to chair the special meeting and as the special meeting, in absence of quorum, ought to have been adjourned, the special meeting was accordingly adjourned to 23.07.2014 by taking recourse to the provisions of Section 50(3) of 2007 Act. The decision, with regard to adjournment, was noted in the letter, contained Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 9/27 in Memo No. 1037, dated 10.07.2014, issued by the said Shashi Kishore and information thereof was also forwarded to the district authorities, namely, Commissioner, Magadh Division, Gaya. In the said letter, it was clearly indicated that the notice of the aforesaid special meeting, to be held on 23.07.2014, would be fixed on the Notice Board for information to all Ward Councillors.
4. The respondents herein also contended, in the writ petition, that in pursuance of the aforesaid notice, the special meeting was held on 23.07.2014 and, out of 34 Ward Councillors, who had participated in the said special meeting, 30 voted in favour of the No Confidence Motion brought against the writ petitioner-appellant; whereas 3 Ward Councillors had cast their votes against the said No Confidence Motion and one vote was declared invalid.
5. Consequently, the writ petitioner-appellant, according to the respondents herein, stood removed by a majority of the Councillors of Gaya Municipal Corporation present at the voting, and the said decision was duly communicated, vide Memo No. 1097, dated 23.07.2014, to the concerned authorities including all elected Ward Councillors of Gaya Municipal Corporation.
6. The learned single Judge of this Court, having heard learned Counsel for the parties concerned and Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 10/27 taking into account the provisions of law, found that no illegality had been committed, while adopting the resolution adjourning the special meeting for want of quorum and fixing the next date of the special meeting on 23.07.2014. On the conclusion, so reached, the learned single Judge has dismissed the writ petition on 22.07.2014.
7. As the removal of the writ petitioner-appellant from the office of the Chief Councillor, Gaya Municipal Corporation, has been upheld by the learned single Judge and the writ petition has been dismissed, this appeal has been preferred by the writ petitioner-appellant.
8. In the mean-while, however, the meeting to elect a new Chief Councillor has been held on 28.07.2014; but this Court has made, by the interim order, dated 26.08.2014, the result of the election subject to the outcome of this appeal.
9. We have heard Mr. Y. V. Giri, learned Senior Counsel, appearing on behalf of the writ petitioner- appellant and Mr. Santosh Kumar Jha, learned Government Pleader No. 3, for the State respondents. We have also heard Mr. Binod Kumar Singh, learned Counsel, for respondents 8 and 15, Mr. Rabindra Priyadarshi, learned Counsel, for the Gaya Municipal Corporation, and Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 11/27 Mr. Amit Shrivastava, learned Counsel, appearing on behalf of State Election Commission.
10. The sole ground of challenge, posed to the order, dated 22.07.2014, whereby the writ petition has been dismissed, is that the learned single Judge has failed to notice that sub-Section (2) of Section 50 of 2007 Act applies only to the general meeting of a Municipality and do not apply to a special meeting and, in consequence thereof, it clearly follows that it has been wrongly held by the learned single Judge that the provisions for adjournment, embodied in sub-Section (2) of Section 50 of 2007 Act, would apply, apart from general meetings, to special meetings too.
11. In order to strengthen the above submission, it has been contended that the quorum, for transaction of business at a meeting of Municipality, mentioned in sub- Section (1) of Section 50 of 2007 Act, is not applicable to a special meeting inasmuch as Section 50 (1) of 2007 Act prescribes one-third of the total number of Councillors as quorum necessary for a meeting; whereas one-third of the total number of elected Councillors of the Municipality can requisition a special meeting for removal of a Chief Councillor and a resolution of no confidence against the Chief Councillor will be treated to have been carried out Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 12/27 provided that majority of the whole number of Councillors adopt a resolution removing the Chief Councillor.
12. Before we enter into the merit of the ground on which the adjournment of the special meeting, held on 10.07.2014, had taken place and the special meeting was held, on 23.07.2014, resulting in removal of the writ petitioner-appellant from the office of the Chief Councillor of Gaya Municipal Corporation, it is imperative that certain provisions of the 2007 Act as well as 2010 Rules be taken note of so that the grounds of challenge become a little clearer. With this end in view, the relevant provisions of the 2007 Act and the 2010 Rules are being reproduced below.
13. Section 25 of 2007 Act reads as under:
"Removal of Chief Councillor/Deputy Chief Councillor.-
(1) xx xx xx
(2) xx xx xx
(3) xx xx xx
(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 Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 13/27 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 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) xx xx xx
(6) xx xx xx"
14. Following the provisions embodied in Section 25 of the 2007 Act, the relevant provisions of Sections 50 and 51 read as under:
"50. Quorum for transaction of business at a meeting of municipality and method of deciding questions.-
(1) The quorum necessary for the transaction of business at a meeting of the Municipality shall be 1[one-third] of the total number of meeting of Councillors.
(2) If at any time during a meeting of the Municipality, there is no Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 14/27 quorum, it shall be the duty of the person presiding over such meeting either to adjourn the meeting or to suspend the meeting until there is a quorum (3) Where a meeting has been adjourned under sub-section (2), the presiding authority shall fix date, time and place for the same as he shall think convenient which shall not be earlier than three days from the date of adjournment.
A notice of adjournment exhibited in the municipal office on the day on which the meeting is adjourned shall be sufficient notice of the subsequent meeting. The business which would have been brought before such meeting shall be brought before, and may be transacted at, the adjourned meeting, and no quorum shall be necessary for such adjourned meeting.
(4) All matters required to be decided at a meeting of the Municipality shall, save as otherwise provided in this Act, be determined by a majority of votes of the Councillors present and voting.
(5) xx xx xx
(6) xx xx xx
(7) xx xx xx
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, and if both the Chief Councillor Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 15/27 and Deputy Chief Councillor are absent from the meeting, the members present shall choose one of their members to preside;
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.
Provided further that if the meeting is convened for the removal of both Chief Councillor and Deputy Chief Councillor, the members present shall choose one of the members to preside.
(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."
(Emphasis is supplied)
15. On the heels of the statutory provisions, reproduced above, relevant provisions of Rule 2 of 2010 Rules read as under:
"2. No confidence motion brought under Section 25 (4) of the Bihar Municipal Act, 2007, against the Chief Councillor/Deputy Chief Councillor shall be considered and disposed of as per the following process:-
(i) To remove the Chief
Councillor/Deputy Chief Councillor, a
Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014
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special meeting of the elected Councillors shall be called for, such special meeting shall be requisitioned and signed by not less than one third of the total numbers of the elected Councillors which shall be given to the Chief Councillor. Notice shall be issued by the Chief Councillor for the special meeting of the Urban Local Body within seven days from receipt of requisition and the meeting shall be convened within fifteen days of the date of issuance of the notice.
(ii) The Special meeting shall be presided over by the Chief Councillor, if the no confidence motion is against the Deputy Chief Councillor and shall be presided over by Deputy Chief Councillor, if the no confidence motion is against the Chief Councillor and if it is against both the Chief Councillor and the Deputy Chief Councillor, the meeting shall be presided over by the Councillor elected for the purpose of the Councillors in the meeting. In case of post of Deputy Chief Councillor being vacant or in his absence from the meeting convened for discussion on no confidence motion against the Chief Councillor or the post of the Chief Councillor being vacant or in his absence from the meeting convened for discussion against the Deputy Chief Councillor, the meeting shall be presided over by the Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 17/27 member elected for the purpose in the meeting by the Councillors.
(iii) xx xx xx
(iv) xx xx xx
(v) As soon as the meeting, called
for, commences, the presiding member at the meeting shall read out the motion on which the meeting has been called, before the members present and declare it open for discussion. During discussion, opportunity shall be given to the Chief Councillor/Deputy Chief Councillor against whom no confidence motion is moved, to defend himself. The motion shall be put to vote by the presiding member by secret ballot on the same day after discussion and after counting result shall be declared.
(vi) Quorum for the meeting shall be as per the provision of section 50 of the Bihar Municipal Act, 2007.
(vii) In the event of both the posts, Chief Councillor and Deputy Chief Councillor falling vacant as a sequel to the passage of the No confidence motion, till the new Chief Councillor and Deputy Chief Councillor are elected, all the powers and duties which, under the provisions of the Act or the rules or the regulations made thereunder or any other law for the time being in force, are to be exercised or performed by the Chief Municipal Officer of the Municipality.Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 18/27
(viii) On completion of the process, the Chief Municipal Officer shall submit a written report to the State Election Commission.
(ix) Where the posts of Chief
Councillor/Deputy Chief Councillor fall
vacant as a consequence of no confidence motion, the process of electing new Chief Councillor or Deputy Chief Councillor shall be completed within 30 days of report to the State Election Commission."
(Emphasis is added)
16. From a conjoint reading of the provisions of Sections 25, 50 and 51 of 2007 Act and Rule 2 of 2010 Rules, what clearly emerges, as regards removal of a Chief Councillor from his/her office by carrying out a motion of no confidence, is that one of the modes for removal of a Chief Councillor is prescribed by sub-Section (4) of Section 25 of 2007 Act, which provides that a Chief Councillor may be removed from office by a resolution carried out by a majority of the Councillors at a special meeting to be called for this purpose in the manner prescribed subject to the condition that a requisition to convene special meeting is made, in writing, by not less than one-third of the total number of Councillors. Sub-Section (2) of Section 50 of 2007 Act further makes it clear that the procedure, for conduct of business, in the special meeting, for Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 19/27 removal of a Chief Councillor from his/her office by way of a motion of no confidence, shall be such as may be prescribed.
17. Conversely put, it becomes clear that no Chief Councillor can be said to have been removed from office by a resolution of no confidence unless a resolution, in this regard, is carried out by a majority of the whole number of Councillors at a special meeting, which is required to be called for this purpose in the manner as may be prescribed, but the special meeting cannot be held unless a requisition for convening a special meeting is given, in writing, by not less than one-third of the total number of Councillors, the procedure for the conduct of business, in the special meeting, being such as may be prescribed.
18. Thus, the provisions, contained in sub-Section (4) of Section 25 of 2007 Act, clearly convey that a special meeting shall be convened if one-third of the total number of Councillors give requisition, in writing, for a special meeting to discuss a motion of no confidence against the Chief Councillor and a Chief Councillor shall stand removed from his/her office if a resolution is carried out by a majority of the whole number of Councillors at a special meeting, which may be requisitioned, as Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 20/27 indicated hereinbefore.
19. Coupled with the above, the scheme of removal of a Chief Councillor at a special meeting, as embodied in Section 25 (4) of 2007 Act, shows that though, ordinarily, it is the Chief Councillor, who shall preside at every meeting of the Municipality, and, in his/her absence, the Deputy Chief Councillor, it puts an embargo, in this regard, on the power of the Chief Councillor to preside over the special meeting of the Municipality by laying down that when a meeting (i.e., special meeting) is held to consider a motion of no confidence for removal of the Chief Councillor, the Chief Councillor shall not preside over the meeting and, when a meeting (i.e., a special meeting) is convened for removal of the Chief Councillor, the members shall choose one of their members to preside if the office of the Deputy Chief Councillor is vacant.
20. When the above provisions, embodied in Section 25 (4) of 2007 Act, are considered, in the context of the facts of the present case, it becomes abundantly clear that since the Deputy Chief Councillor already stood remove from his office by way of a motion of no confidence and when the motion of no confidence, in the case at hand, had been brought against a Chief Councillor, Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 21/27 neither the Chief Councillor nor the Deputy Chief Councillor could have presided over the special meeting to discuss the motion of no confidence brought against the Chief Councillor.
21. The question, in the case at hand, is: who could have presided over the special meeting in the present case?
22. Our quest for an answer to the above question brings us to sub-Section (1) of Section 51 of 2007 Act , which makes it clear that a meeting, which Section 51(1) of 2007 Act, perceives includes a special meeting and the first proviso coupled with the second proviso to sub-Section (1) of Section 51 of 2007 Act show that when a special meeting is held to consider a motion of no confidence for removal of the Chief Councillor, the Chief Councillor shall not preside over such a special meeting and when the special meeting is convened for the removal of both, Chief Councillor and Deputy Chief Councillor, the members present shall choose one of the members to preside over the special meeting. It was, therefore, permissible, in a case of present nature, for the members to elect one of their members to preside at the special meeting.
23. What becomes evident from a combined Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 22/27 reading of Sections 25 and 51 of 2007 Act is, if we may reiterate, that a special meeting, requisitioned by one- third of the total number of Councillors, for the purpose of removal of the Chief Councillor, cannot be presided over by the Chief Councillor and the members present there shall choose one of the members present to preside over the special meeting if the office of the Deputy Chief Councillor, as in the case at hand, was lying vacant.
24. The correctness of our conclusion, which we have reached above, can be examined from yet another angle. Closely following the provisions of Sections 25 and 51 of 2007 Act, Rule 2 of 2010 Rules prescribes the procedure of the special meeting convened, by virtue of sub-Section (4) of Section 25 of 2007 Act, to discuss a motion of no confidence against the Chief Councillor. Rule 2(ii) of 2010 Rules makes it abundantly clear that when a special meeting is held for removal of the Chief Councillor, it is, ordinarily, the Deputy Chief Councillor, who shall preside over the special meeting, and, in case, the post of the Deputy Chief Councillor is vacant or, in his absence, the special meeting, requisitioned to discuss a motion for removal of the Chief Councillor, shall be presided over by a member, who may be elected for the purpose, in the special meeting, by the Councillors. Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 23/27
25. Thus, when a motion of no confidence is brought against the Chief Councillor, the meeting shall be presided over by the Deputy Chief Councillor and if the office of the Deputy Chief Councillor falls vacant or he is absent, the special meeting to discuss the motion of no confidence brought against the Chief Councillor shall be presided over by the member, who may be elected for the purpose by the Councillors.
26. In the case at hand, the writ petitioner- appellant does not challenge the legality of the special meeting, which had been requisitioned. What is contended, on behalf of the writ petitioner-appellant, is that there is no prescribed quorum for the purpose of special meeting nor is there any provision for adjournment of special meeting.
27. The submissions, so made on behalf of the writ petitioner-appellant, ignores clause (vi) of Rule 2 of 2010 Rules inasmuch as clause (vi), in no uncertain words, lays down that quorum, for a special meeting, shall be as per provisions of Section 50 of 2007 Act and sub- Section (1) of Section 50 of 2007 Act lays down that quorum, necessary for the transaction of business, at a meeting of the Municipality, shall be one-third of the total number of elected Councillors. However, in order to Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 24/27 remove the Chief Councillor/Deputy Chief Councillor, the motion of no confidence shall be carried out, in the light of sub-Section (4) of Section 25 of 2007 Act, by majority of Councillors.
28. Situated thus, what can be safely held, and we do hold, that though quorum, in the light of the provisions of clause (vi) of Rule 2 of 2010 Rules, for a special meeting, shall be one-third of the total number of elected Councillors, the resolution of no confidence motion shall be taken to have been carried out against a Chief Councillor or a Deputy Chief Councillor, as the case may be, if the motion of no confidence (be the motion against the Chief Councillor or the Deputy Chief Councillor) is carried out at a special meeting by majority of elected Councillors.
29. In the backdrop of the fact that it has been clearly laid down by Rule 2 (vi) of 2010 Rules that the quorum, for a special meeting, shall be as per provisions of Section 50of 2007 Act, it will naturally mean that the quorum, which has been prescribed for the meeting of the Municipality by sub-Section (1) of Section 50 of 2007 Act, would also be the quorum for a special meeting. In this regard, if we may reiterate, sub-Section ((2) of Section 50 of 2007 Act lays down that the quorum, necessary for Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 25/27 transaction of business at a meeting of Municipality, shall be one-third of the total number of Councillors.
30. Situated thus, there can be no escape from the conclusion that the quorum, necessary for transaction of business, at a special meeting of Municipality, shall be one-third of the total number of Councillors.
31. In the light of what sub-Section (1) and sub- Section (2) of Section 50 of 2007 Act lay down, it becomes abundantly clear that in the case at hand, when the total number of Councillors of Gaya Municipal Corporation is 53, presence of, at least, 18 Councillors is mandatory in order to constitute a quorum for the special meeting.
32. Sub-Section (2) of Section 50 of 2007 Act read with clause (vi) of Rule 2 of 2010 Rules further makes it clear that in a meeting ▬ whether general or special ▬ of Municipality, when there is no quorum, it shall be the duty of the person, presiding over such a meeting, either to adjourn the meeting or suspend the meeting until there is quorum and sub-Section (3) of Section 50 of 2007 Act says that where the meeting has been adjourned under sub-Section (2) of Section 50 of 2007 Act, the member, presiding over such a meeting, shall fix date, time and place for the meeting, which shall not be less than three days from the date of adjournment. Patna High Court LPA No.1160 of 2014 (5) dt.11-09-2014 26/27
33. In the case at hand, as already indicated above, the total number of elected Councillors of the Gaya Municipal Corporation is 53 and the presence of 18 elected Councillors is necessary to constitute quorum. On 10.07.2014, when special meeting was held to discuss the motion of no confidence brought against the appellant, there were present only 7 (seven) Councillors present.
34. Obviously, therefore, the quorum was not complete and the meeting could have been adjourned by the person presiding over the meeting. This is precisely what has been done in the present case inasmuch as the person, presiding over the meeting, has adjourned the meeting to 23.07.2014 and the notice was accordingly given.
35. Following the adjournment of the meeting, a special meeting was held on 23.07.2014, which was attended not only be the present appellant, but also by 33 other elected Councillors. Out of 34 Councillors, as many as 30 Councillors voted in favour of the motion of no confidence and 3 Councillors voted against the motion of no confidence. Consequently, the present appellant, as Chief Councillor, stood removed the moment the motion of no confidence was carried out at the special meeting held on 23.07.2014.
Patna High Court LPA No.1160 of 2014 (5) dt.11-09-201427/27
36. We find no infirmity either in the adjournment of the special meeting, because of lack of quorum in the face of what has been discussed above, nor do we find any infirmity, legal or factual, in the motion of no confidence carried out against the writ petitioner-appellant, on 23.07.2014, in the special meeting.
37. What logically follows from the above discussion is that the learned single Judge has committed no error in disallowing the writ petition.
38. For the reasons discussed above, we find this appeal wholly without merit and is accordingly dismissed. Following the dismissal of the appeal, the interim direction, which have been passed on 26.08.2014, shall accordingly stand vacated.
38. No order as to costs.
(I. A. Ansari, J.)
Anjana Mishra, J.: I agree.
(Anjana Mishra, J.)
SNkumar/Anand
AFR
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