Patna High Court - Orders
Vinay Kumar'Pappu'@Binay Kr.'P vs The State Of Bihar & Ors on 14 May, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.733 of 2010
1. VINAY KUMAR "PAPPU" @ BINAY KUMAR "PAPPU" S/O
LATE DR. SURENDRA NATH RAI YADAV R/O MOH - GORIYA
TOLI, P.S. KOTWALI, DISTT-PATNA
2. DR. GOPAL PRASAD, S/O LATE RAM CHARITRA GOPE, R/O
MOH - BHIKHA CHAK, ANISHABAD, P.S.-GARDANIBAG,
DISTT-PATNA
3. SUNIL KUMAR, S/O LATE SHYAM NANDAN PRASAD, R/O
MOH PAHARPUR, POLICE COLONY, ANISHABAD,
P.S.GARDANIBAG, DISTT-PATNA
4. ASHOK KUMAR, S/O SRI RAM SWAROOP PRASAD R/O 174,
TYPE-II, P&T COLONY, KIDWAIPURI, P.S. BUDHA COLONY,
DISTT-PATNA
5. BINOD KUMAR @ BINDO KUMAR S/O SRI JANAK PRASAD
R/O MOH PUNAICHAK, P.S.SHASTRI NAGAR, DISTT-PATNA
6. MUKESH KUMAR @ MUKESHWAR KUMAR S/O SRI
NAWAL KISHORE PRASAD, R/O MOH CHANDPUR BELA, P.S.
JAKKANPUR, DISTT-PATNA
7. SANJAY KUMAR SINGH S/O SRI MOHAN PRASAD SINGH
R/O MOH DIGHA GHAT, PATIPUL, P.O.& P.S.DIGHA, DISTT-
PATNA
8. BALESHWAR SINGH S/O LATE PUNIT MAHTO R/O MOH
PURENDRAPUR, P.S. JAKKANPUR, DISTT-PATNA
9. ABHA LATA, W/O SRI RAMESH KUMAR R/O MOH
SHERULLAHPUR (NANDGAON), P.S.SHASTRI NAGAR, DISTT-
PATNA ............................ RESPONDENTS - APPELLANTS
Versus
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL
SECRETARY, URBAN DEVELOPMENT AND HOUSING
DEPARTMENT, GOVERNMENT BIHAR, PATNA
2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND
HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA
3. THE DISTRICT MAGISTRATE, PATNA
4. THE COMMISSIONER, PATNA DIVISION, PATNA
5. THE PATNA MUNICIPAL CORPORATION THROUGH ITS
URBAN SECRETARY, PATNA
6. THE MUNICIPAL COMMISSIONER, PATNA MUNICIPAL
CORPORATION, PATNA
2
7. THE ADDITIONAL DISTRICT MAGISTRATE (GENERAL),
PATNA
8. MALTI DEVI, W/O NOT KNOWN, WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
9. SUNITA PRITAM, W/O NOT KNOWN, WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
10. JYOTI GUPTA, W/O NOT KNOWN, WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION, PATNA
11. JAI NARAIN SHARMA, S/O NOT KNOWN WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION,
PATNA
12. BALRAM CHAUDHARY, S/O NOT KNOWN, WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION,
PATNA
13. MOHAMMAD KURAISHI, S/O NOT KNOWN, WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION,
PATNA
14. PRABHA DEVIM W/O NOT KNOWN, WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
15. MUMTAZ JEHAN, W/O NOT KNOWN WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
16. SUDHIR KUMAR S/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
17. TARA DEVI W/O NOT KNOWN WARD COUNCILOR OF THE
PATNA MUNICIPAL CORPORATION , PATNA
18. PRAMILA SINGH W/O NOT KNOWN WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
19. MITHILESH KUMAR SINHA S/O NOT KNOWN WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION ,
PATNA
20. ARJUN KUMAR YADAV S/O NOT KNOWN WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION ,
PATNA
21. URMILA DEVI W/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
22. AMRITA SINGH W/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
23. TOTA CHAUDHARY S/O NOT KNOWN WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
24. PINKI YADAV W/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
25. PRATIMA YADAV W/O NOT KNOWN WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
3
26. MANOJ KUMAR S/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
27. GITA DEVI W/O NOT KNOWN WARD COUNCILOR OF THE
PATNA MUNICIPAL CORPORATION , PATNA
28. SHAHZADI BEGUM W/O NOT KNOWN WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
29. ARUN KUMAR CHAUDHARY S/O NOT KNOWN WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION ,
PATNA
30. RAJ KAPOOR YADAV S/O NOT KNOWN WARD
COUNCILOR OF THE PATNA MUNICIPAL CORPORATION ,
PATNA
31. MADHU DEVI W/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
32. ARTI DEVI W/O NOT KNOWN WARD COUNCILOR OF THE
PATNA MUNICIPAL CORPORATION , PATNA
33. SUNITA KUMARI W/O NOT KNOWN WARD COUNCILOR
OF THE PATNA MUNICIPAL CORPORATION , PATNA
34. DHANRAJ DEVI W/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
35. AFZAL IMAM S/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION , PATNA
36. SUDHA DEVI W/O NOT KNOWN WARD COUNCILOR OF
THE PATNA MUNICIPAL CORPORATION, PATNA
..............................RESPONDENTS - RESPONDENTS
37. SANJAY KUMAR S/O LATE BULKAN PRASAD R/O MOH
BHAWAR POKHAR, P.S.PIRBAHORE, TOWN & DISTT-PATNA
38. SANTOSH MEHTA S/O LATE AYODHA PRASAD R/O
CHOWK SHIKARPUR, PATNA CITY, P.S.CHOWK, DISTT-
PATNA ........................ PETITIONERS - RESPONDENTS.
-----------
For the Appellants : Mr. S.B.K. Mangalam, Advocate.
For the State : Mr. P.K. Shahi, Advocate General and
Mr. Harendra Prasad Sinha, Advocate.
For the Corporation : Mr. Chandra Shekhar, Sr. Advocate and
Mr. Bishun Bibhuti Kumar Sinha, Advocates
------------
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PRESENT-
THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR JUSTICE MIHIR KUMAR JHA
ORDER
(14.05.2010)
As per Dipak Misra, C.J.-
The present intra-Court appeal has been
directed against the order dated 02.04.2010 passed by the
learned single Judge in CWJC No. 8603 of 2009.
2. The exposé of facts which are imperative to
be stated for adjudication of this appeal are that the writ
petitioners - respondents no. 37 and 38 to this appeal were
elected as Chief Councillor and Deputy Chief Councillor
of Patna Municipal Corporation under the Bihar Municipal
Act, 2007 (for brevity `the Act'). A requisition was
moved for holding a special meeting for considering No
Confidence Motion against them in the absence of the
rules as required under the Act. A circular under Memo
No. 2360 dated 22.06.2009 was issued by the State
Government stipulating that when a requisition is moved
for removing the Chief Councillor and the Deputy Chief
Councillor simultaneously, it shall be the duty of the
District Collector to fix a date and also his obligation to
5
preside over the meeting. It is worth noting that at the
time the requisition was moved, the said circular had not
come into existence. The Chief Councillor fixed the date
on 14.07.2009 for holding a special meeting. The Town
Commissioner of the Corporation then informed the
District Magistrate that in view of the aforesaid circular
dated 22.06.2009, he was required to preside over the
meeting. The District Magistrate-cum-Collector, Patna
authorized an Additional District Magistrate to preside
over the meeting. As is manifest from the material on
record, the meeting was held on 14.07.2009 and the Chief
Councillor lost the confidence of the House by 39 to 30
votes whereas the Deputy Chief Councillor lost the
confidence of the House by 42 to 28 votes. As the
vacancies came into existence, information was sent to the
State Election Commission (for short `the Commission')
and the Commission announced the date and programme
for fresh election of the Chief Councillor and Deputy
Chief Councillor.
3. The said respondents, being grieved by the
aforesaid action, invoked the jurisdiction of this Court
6
under Article 226 of the Constitution of India and the writ
Court directed stay of the election by way of issuing an
interim direction.
4. It was contended before the writ Court that in
the absence of any rules, the vote of no confidence could
not have been mooted and the government circular that has
been issued on 22.06.2009 is a direct infringement of the
democratic set up of local self government. It was also
canvassed before the learned single Judge that the meeting
could not have been presided over by the District
Magistrate or the Additional District Magistrate as they
have no role under the Act. The aforesaid submissions
were combatted by the present appellants contending, inter
alia, that even if the rules have not been framed, a vote of
no confidence could be mooted against the Chief
Councillor or the Deputy Chief Councillor.
5. The learned single Judge placed reliance on
the decision rendered in Pawan Kumar Purvey v. The
State of Bihar & Ors., 2010 (1) PLJR 272 wherein the
executive circular dated 22.06.2009 was declared invalid
and, consequently, the proceedings conducted in
7
pursuance thereof were not sustainable in law, the same
having been conducted under the said circular.
6. Being of this view, the learned single Judge
allowed the writ petition and expressed the view that the
writ petitioners had not lawfully lost the confidence of the
House and shall not be deemed to be lawfully removed.
7. Questioning the legal substantiality of the
aforesaid order passed by the learned single Judge, Mr.
S.B.K. Mangalam, learned counsel for the appellants, has
raised the following submissions:
(a) The learned single Judge has fallen into grave
error by expressing the opinion that without the
rules being in force, a vote of no confidence
motion could have been mooted against the writ
petitioners.
(b) Even if the circular dated 22.06.2009 is
invalid, the meeting had been held where the
Councillors had participated and the requirement
under Section 25(4) of the Act has been satisfied,
therefore, the vote of no confidence should have
been given the stamp of approval.
8
(c) The writ petitioners had participated from
the beginning till the end and at no point of time
raised any kind of protest and, therefore, they have
waived their right to challenge the proceedings
after losing the confidence of the House.
(d) The right that has been waived by the writ
petitioners is the individual right and does not
involve any public interest and, therefore, their
participation would invite the doctrine of waiver
but the same has not been considered by the
learned single Judge and the impugned order has
been passed which makes it unsustainable in law.
(e) The meeting once having been called and
carried to the logical end, the writ petitioners
cannot take a somersault and attack or assail the
procedure in the meeting solely on the ground that
the Additional District Magistrate presided over
the same.
(f) The matter would have been different had the
Additional District Magistrate played any role in
the meeting by exercising his casting vote as
9
engrafted under Section 51 of the Act.
(g) The ultimate concept of democracy lies in the
manner in which the majority reacts and not by a
technical flaw as such a flaw cannot destroy the
basic democratic set up.
(h) The learned single Judge has totally erred by
applying the principle that if the procedure is
prescribed to do an act in a particular manner, it
should be done in that manner and all other modes
are necessarily prohibited inasmuch as such a
principle would not apply in stricto sensu to the
case at hand as the doctrine of waiver gets
squarely attracted.
8. Mr. Y.V. Giri, learned senior counsel for the
respondent no. 6, per contra, advanced the following
contentions:
(i) The order passed by the learned single
Judge cannot be faulted as he has held that the
Government circular dated 22.06.2009 having no
force of law, any consequent action taken on the
basis of the said circular has to pave the path of
10
extinction.
(ii) The finding of the learned single Judge
to the effect that a non-elected person cannot be
allowed or permitted to intrude in the democratic
exercise of power and be conferred the authority of
casting vote as the same is inconceivable in the
scheme of things is absolutely flawless and warrants
no interference.
(iii) The formation of corporation and
election of the Chief Councillor and Deputy Chief
Councillor which is the sole object of the Act and
their basic source lies with the constitutional
requirement under Part 9A of the Constitution
which was introduced by the 74th Amendment and,
therefore, the democratic form of local self-
government cannot be remotely upset by executive
interference in the absence of a legislative provision
and, hence, the meeting cannot be presided over by
an outsider and, if it is done, it goes to the very root
of the matter that destroys the democratic process.
Therefore, the infrastructure being violative of law,
11
the superstructure is bound to collapse failing which
the democracy at the grass root level is likely to be
corroded.
(iv) The presence of the Additional District
Magistrate in the meeting being totally
impermissible, the possibility of influence and lack
of free atmosphere cannot be totally ruled out and
when a possibility of this nature comes into
existence, the sanctity of voting, though may be a
secret one, gets vitiated.
(v) The legislature had intended the meeting
to be presided over by a councillor and when that is
not done, the principle that if the procedure is
prescribed to do an act in a particular manner, it
should be done in that manner and not in any other
manner comes into full play.
(vi) The doctrine of waiver which has been
highlighted by the appellant has no applicability to
the facts of the present case as an individual may by
his own conduct waive a right or a protective facet
which has been created for the protection of his
12
individual interest but there cannot be waiver or
abandonment which involves public interest or
public interest element.
(vii) An elected candidate facing the House in
a vote of no confidence motion waives his right by
his conduct by participating in the meeting though
there may not be fulfillment of certain requirements
like issuing notice for specified period or not asking
to address the house explaining his strength, etc. but
when an outsider, contrary to the statutory
provisions, intrudes and is permitted to preside over
the meeting it falls within the realm of public
interest element which cannot be waived by an
individual as the meeting in its conceptual
essentiality is the meeting of the House and cannot
be presided over by a rank outsider and while the
meeting is held in such a manner, the whole thing
has to be lanceted.
9. To appreciate the submissions raised at the Bar,
it is apposite to refer to Section 25 of the Act.
"25. Removal of Chief Councillor/Deputy
Chief Councillor.- (1) The Chief
13
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.
(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
14
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 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
15
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."
10. In this context, we may refer with profit to
Section 51 of the Act which 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
16
over a meeting of the Municipality, shall also
have, and may exercise, a casting vote in all
cases of equality of votes".
11. The Division Bench of this Court in Ruby
Singh v. The State of Bihar & Ors., (LPA No. 1564 of
2009 & analogous cases), decided on 15.04.2010, has
held thus:
"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 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,
17
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 - 17 -
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."
18
12. Thus, the finding of the learned single Judge
that no circular could have been issued to fill up the
lacunae cannot be found fault with.
13. The learned single Judge has opined that in
the absence of rules, the meeting could not have been held
as per the executive circular. In the case of Ruby Singh
(supra), the Division Bench posed the question whether in
the absence of the 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 and after referring
to the decisions rendered in P. Kasilingam & Ors. V.
P.S.G. College of Technology & Ors., AIR 1995 SC
1395, People's Union for Civil Liberties (PUCL) v.
Union of India & Anr., (1997) 1 SCC 301, Maneka
Gandhi v. Union of India, (1978) 1 SCC 248, J.K.
Industries Ltd. & Anr. v. Union of India & Ors., (2007)
13 SCC 673, Jagannath Prasad v. The State of Uttar
Pradesh, AIR 1963 SC 416, Orissa State Prevention
and Control of Pollution Board v. M/s Orient Paper
Mills and Anr., AIR 2003 SC 1966, and Jantia Hill
Truck Owners Association v. Shailang Area Coal
19
Dealer and Truck Owner Association & Ors., (2009) 8
SCC 492 expressed the view as under:
"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 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."
14. The next aspect that arises for consideration
is whether the meeting presided over by the Additional
District Magistrate would nullify the entire proceeding or
20
the meeting has to be held invalid as the same has been
acquiesced to by the elected candidate who was facing a
vote of no confidence motion. On a perusal of the
pleadings and the material brought on record, it is
evincible that the special meeting was convened by the
Additional District Magistrate (General) and he presided
over the meeting on 14th July, 2009. The Chief Councillor
and the Deputy Chief Councillor were present and neither
absented from the meeting nor declined to attend the vote
of no confidence motion. The meeting continued and a
vote of no confidence was passed against them. Though
the learned counsel appearing for the parties have raised a
number of submissions from various spectrums, yet three
significant issues do emerge for consideration. First,
whether when a power is required to be exercised by a
certain authority in a certain way, it should be exercised in
that manner or not at all, and all other modes of
performance are necessarily forbidden and, hence, the
meeting is null and void; secondly, whether the doctrine of
waiver would get attracted as the affected parties
participated in the meeting and being grieved by the result
21
thereafter have taken a somersault to challenge the same
and thirdly, whether the action taken can be sustained
regard being had to the will of the House which is a
significant bedrock in a local self governanment or would
get vitiated because of the meeting having been presided
over by an outsider, namely, the Addl. District Magistrate
(General).
15. In Hukam Chand Shyam Lal v. Union of
India & Ors., AIR 1976 SC 789, the Apex Court has held
thus:
"18. It is well settled that where a power is
required to be exercised by a certain authority in a
certain way, it should be exercised in that manner
or not at all, and all other modes of performance
are necessarily forbidden. It is all the more
necessary to observe this rule where power is of a
drastic nature and its exercise in a mode other than
the one provided, will be violative of the
fundamental principles of natural justice. Now, in
the present case, if the telephones of the appellants
were to be disconnected on the ground of misuse,
then they had to give, in consonance with the
principles of natural justice, opportunity to the
appellants to explain their conduct before taking
action under Rule 427 read with Rules 416 and
22
421. Resort to the wrong and more drastic course
provided in Rule 422, on a ground which was not
germane to an action under that Rule, vitiates the
impugned order, particularly when it is manifest
that in making the impugned order, the General
Manager was influenced more by this ground and
less, if at all, by the existence of 'public
emergency' certified by the Delhi Administration."
16. Though the said principle is absolutely well
known, yet it would not get attracted to the factual matrix
of the case at hand for the simon pure reason that there
was no clear provision in the statute as to how to convene
a meeting when a vote of no confidence motion is mooted
against the Chief Councillor and Deputy Chief Councillor.
That apart, the decisions as have been stated, in principle
pertained to a different lis altogether.
17. The second aspect deals with waiver. In
Sanjay Singh Som v. The State of Bihar & Ors., 2002
(3) PLJR 589, the learned single Judge of this Court has
held as follows:
"8. Even if the election was held disregarding
the petitioner's request there was no
compulsion for him to take part in the election.
Had the petitioner not participated in the
23
election of 6.5.2002 or even if he had
participated in the election putting it clearly on
the record that his participation was under
protest and without prejudice to his claim and
subject to the result of his writ petition in the
High Court, the matter might have been
different. But the petitioner did not do any
such thing. He participated in the election
unconditionally, with his eyes open and took a
chance of winning the election. Now having
been defeated in that election he may not be
allowed to question the earlier resolution
removing him from the office of Pramukh."
xxxx xxxx xxxx
"10. In the facts and circumstances stated
above, any interference by this Court in the
petitioner's favour will give a very wrong
message to the public. To a layman it would
appear that taking advantage of some loop-
hole in the law the petitioner was able to
persuade the court to reinstate him in the
office of Pramukh even though he lost the
election in full public gaze in the meeting of
6.5.2002."
18. In Nirmala Singh & Anr., v. State of Bihar & Ors., 2006 (1) PLJR 129, the view has been expressed 24 thus:
"Be that as it may, the meeting was convened pursuant to the notice as aforesaid. At the meeting the petitioners were removed from the posts of Pramukh as well as Up-pramukh. Neither in the requisition, nor in the notice, any reason in support of the motion had been mentioned, which appears to be a requirement of law. However, for that reason the petitioners did not suffer any prejudice inasmuch, none of the petitioners attended the meeting. After the meeting was held and they were removed, again a meeting was held for the purpose of supplying the vacancy caused by such removal and both the petitioners participated in the said meeting proceeding on the basis that the same was a valid and legal meeting. While the petitioner no.1 participated in the meeting, the petitioner no.2 even offered himself for one of the posts for which election was to be held. In such a situation, if I interfere either with the requisition or with the notice or with the meeting being the subject matter of challenge in the instant writ petition, that would be travesty of justice and would permit the petitioner to have the status restored despite having had participated in the meeting by which with the mandate of the majority the status has been altered."25
19. In Jogindra Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31, a two-Judge Bench of the Apex Court was dealing with the stand taken as regards waiver on the part of the landlady by her own conduct. Their Lordships expressed the view that waiver is a question of fact which must be expressly pleaded, clearly proved and no such plea had been raised by the tenant or by the sub-tenant. Their Lordships further held that a bald plea of waiver cannot defeat the statutory provision made in the larger interest. In that context, their Lordships referred to the earlier decisions rendered in Shalimar Tar Products Ltd. v. H.C. Sharma, (1988) 1 SCC 70 and Pulin Behari Lal v. Mahadeb Dutta & Ors., (1993) 1 SCC 629. In Shalimar Tar Products Ltd. (supra), the Apex Court has expressed the views as follows:-
"13. Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity. We are, however, in this case unable to agree. Firstly, in this case there was no case of waiver. Waiver is a question of fact which has to be tested by facts and evidence. There was no conscious 26 relinquishment of the advantage of any statute. No court has gone into this fact. It does not seem to have been urged before the High Court also. Apart from this, in this requirement of the statute which is in the public interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord. ...."
In Pulin Behari Lal (supra), it has been held as follows:-
"6. ... ... ... Waiver is a question of fact which depends on the facts and circumstances of each case. In the case of waiver of any provisions of the statute it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute. ... ... ..."
20. In this context, we may profitably refer to Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229, wherein it has been held as follows:-
"9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.27
10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct."
21. In Babulal Badriprasad Varma v. Surat Municipal Corpn., (2008) 12 SCC 401, the Apex Court has held in paragraphs 28 and 29 as follows:-
"28. We would, however, assume that it was obligatory on the part of the State to serve a special notice upon the appellant. The question, however, would be: what would be the consequence of non-compliance therewith vis- a-vis the conduct of the appellant himself?"
"29. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation."
22. In Jaswantsingh Mathurasingh & Anr. V. 28 Ahmedabad Municipal Corporation, 1992 Suppl. (1) SCC 5, a three-Judge Bench of the Apex Court, while dealing with the principle of waiver, has expressed thus: -
"14. The principle of waiver connotes issuance of notice and non-response thereto. Everyone has a right to waive an advantage or protection which law seeks to give him/her. Undoubtedly, if a notice is issued and no representation was made by either the owner, tenant or a sub- tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non- compliance of sub-rules (3) and (4) of Rule 21. It would amount to putting premium on dilatory and dishonest conduct."
23. In Krishna Lal V. State of J & K, (1994) (4) SCC 422, the Apex Court, after referring to the earlier decisions rendered in Vellayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197; Bhagchand Dagadusa v. Secretary of State for India in Council, 54 IA 338; Dhirendra Nath Gorai v. Shudhir Chandra Ghosh, AIR 1964 SC 1300; Lachoo Mal v. Radhey Shyam, AIR 1971 SC 2213, has expressed the 29 view as follows: -
"20. Having seen the pronouncements of judicial fora, we can now inform ourselves as to the view of the reputed authors on interpretation of statutes as well as administrative law. We may start with what has been stated in Maxwell's The interpretation of Statutes. This aspect has been dealt at pages 328-330 (12th Edn.) and it has been stated that if the benefit be for the protection of an individual in his private capacity the same can be waived. To illustrate, reference has been made about waiver of the benefit of the Limitation Act. This is on the maxim of law "Quilibet potest renunciare juri pro se introducto", meaning "an individual may renounce a law made for his special benefit". Maxwell then says that if the benefit be one which has been imposed in public interest there can be no waiver of the same."
"21. Craies in his Statute Law has opined the same, as would appear from what has been stated at page 269 of 7th Edn. By drawing attention to the aforesaid maxim, it has been observed that if the object of a statute is "not one of general policy, or if the thing which is being done will benefit only a particular person 30 or class of persons, then the conditions prescribed by the statute are not considered as being indispensable". To illustrate this principle, it has been stated that if the statutory condition be imposed simply for the security or the benefit of the parties to the action themselves, such condition will not be considered as indispensable and either party may waive it."
"22. Crawford in his Interpretation of Laws takes the same view as would appear from pages 540-542 (1989 Reprint). The learned author while quoting the aforesaid maxim states at page 542 that requirement like giving of notice may be waived as the same is intended for the benefit of the person concerned."
"23. We may also refer to the views expressed by Francis Bennion in his Statutory Interpretation (1984), wherein this aspect has been dealt with at pages 27 et seq and it has been stated that if the performance of statutory duty be one which would come within the aforesaid maxim, the person entitled to the performance can effectively waive performance of the duty by the person bound. As an illustration mention has been made (at page 29) of decisions in Toronto Corpn. V. Russell and 31 Stylo Shoes Ltd. v. Prices Tailors Ltd. wherein it was held that a duty to give notice of certain matters can be waived by the person entitled to notice, if there is no express or implied indication that absence of notice would be fatal."
"24. H.W.R. Wade's name is well known in the world of administrative law. He has dealt with this aspect at page 267 of the 6th Edn. of his treatise wherein he has quoted what Lord Denning, MR said in Wells v. Minister of Housing and Local Government which is as below:
"I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid."
24. In this context, we may refer with profit to the decision in Indira Bai (supra) wherein the Apex Court while drawing a distinction between private and public interest has expressed thus:-
"5. .......... The test to determine the nature of interest, namely, private or public is whether 32 the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct. ........."
[Emphasis supplied]
25. In Shamshad Khatun v. The State of Bihar & Ors., 2010 (1) PLJR 929, while dealing with the concept of acquiescence and waiver, the Division Bench of this Court has held thus:
"21. Applying the aforesaid principle to the facts of the present case there can be no room for doubt that the right could be waived by the elected candidate and she has done so by her express conduct. Quite a part from the above this Court cannot be oblivious of the fact that the appellant had participated in the meeting by taking a chance and 12 members voted against her. It is also apt to note all the members had been served and they had participated. The requisite majority had voted against her. Ergo, there is no justification or warrant to interfere in the proceeding of No Confidence Motion in 33 exercise of the extraordinary and equitable jurisdiction of this Court under Articles 226 and 227 of the Constitution of India."
26. The submission of Mr. Giri, learned senior counsel, is that the concept of acquiescence would not get attracted so far as the public interest element is concerned. Elaborating the said submission, Mr. Giri contended that in a democracy meant for local self government, the intervention of an outsider is totally inconceivable. The learned senior counsel would submit that the statute gives certain power to the State Government only to control the administration of the local bodies. When the power is not there, any intrusion will attack at the very marrow of democracy. The aforesaid submission, on a first blush, looks quite attractive but on a keener study and deeper scrutiny, pales into insignificance. It has been held by their Lordships that if it is a right of a party alone then it is capable of being abnegated either in writing or by conduct. Facing of vote of no confidence motion by a Chief Councillor or a Deputy Chief Councillor, in our considered view, is an individual right. The submission of 34 Mr. Giri, learned senior counsel, is that when an elected candidate is to be removed by a vote of no confidence, it will come in the realm of public interest. We are inclined to think that the test to determine the nature of interest - private or public, as has been held by their Lordships of the Apex Court, is whether the right which is re- enunciated is the right of the party alone and the public also in the sense that the general welfare of the society is involved. The requirement as laid down is not in the public interest. When an elected candidate is removed from the office, the same cannot be compared with preparing a budget, approving a master plan or recommending certain aspects for imposing tax which are absolutely in the realm of public interest affecting the general public. Thus, it has to be treated in the realm of individual interest. As the Chief Councillor or the Deputy Chief Councillor faces the House for vote of no confidence motion and, if he has participated in the proceeding and acceded to the procedure, he/she can waive it. The doctrine of waiver, thus, gets squarely applied.
27. The controversy can be viewed and 35 appreciated from another angle. As there is no provision in the Act, the State Government issued the notification on 22.06.2009. This Court for the first time declared that the said notification could not have been issued and was declared invalid in Pawan Kumar Purvey (supra). The said judgment was delivered on 24.11.2009. The view expressed therein was approved by the Division Bench in Ruby Singh (supra). Prior to that date, the executive circular was in force.
28. In this regard, we may refer with profit to the decision in Gokaraju Rangaraju (supra) wherein their Lordships have held as follows:
"12. The de facto doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor, (1912-15 Cal LJ 517) Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows:
"The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine 36 in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined."
Thereafter, their Lordships referred to the decision in P.S. Menon v. State of Kerala, AIR 1970 Ker. 165 and, eventually, expressed thus:
"15. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced 37 by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against the judgment is, of course, 38 such a collateral attack."
29. Similar view was reiterated in State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162.
30. In M/s Beopar Sahayak (P) Ltd. & ors. V. Vishwa Nath & ors., (1987) 3 SCC 693, the Apex Court has expressed the view as follows:
"Even if the person appointed as
Prescribed Authority was not fully
qualified to act as such and pass the order of release, the validity and legality of the order of release passed by him cannot be impugned because of the `do fact doctrine' inasmuch as he had not held the office as an usurper but only under colour of lawful authority."
31. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the Apex Court has held thus:
"422. In Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3 SCR 474, this Court held that : (SCR pp. 484-85: SCC p. 140, para
17) "A judge, de facto, therefore, is one who is not a mere intruder or usurper 39 but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective.
Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief."
This Court also further held that the validity of the appointment cannot be challenged in collateral proceedings. It is true that in the light of the finding that Section 9(7) is invalid, violative of the basic structure and judicial independence envisaged in the Constitution, public policy requires that the doctrine of de facto be engrafted on necessity to protect the interest of the public and the individuals involved in the official acts of persons exercising the duty of an office without actually being one in strict point of law. Therefore, though, de jure 40 they are not by title validly appointed, but by colour of title the exercise and functions as Judge of the Designated Court, trials conducted, judgments rendered, orders passed, punishments imposed and convictions made are legal and valid. The de facto doctrine is not a stranger to the Constitution or to the Parliament and the legislature of the States. Article 233-A recognises this doctrine brought by Constitution Twentieth Amendment Act, 1966. Therefore, the trials conducted, judgments pronounced and the orders or punishment imposed under the Act remained valid."
32. In Union of India and Anr. v. Charanjit S. Gill & Ors., AIR 2000 SC 3425, the Apex Court also applied the de facto doctrine to the cases which had attained finality.
33. In Dr. A.R. Sircar v. State of U.P. & Ors., 1993 Supp (2) SCC 734, the Apex Court has opined that even if an administrative doctrine is declared ultra vires Articles 14 and 300A, but prior to such declaration, the decision taken bona fide by the government is in 41 accordance with the Rules framed under the Act, such decision would be saved by the de facto doctrine.
34. The Chief Councillor and the Deputy Chief Councillor accepted the circular and conducted the meeting. At that juncture, the authority could preside over the meeting. Nothing has come on record that the said authority interdicted during the meeting or did anything which could cause any kind of prejudice. The situation of casting vote did not arise. We are disposed to think that when a particular action has been taken and the said action is not bad, the concept of de facto doctrine would come into play on fours. The action would not be vitiated because the notification was afterwards declared invalid. Thus, apart from the principle of waiver, by applying the de facto doctrine, the vote of no confidence which has been mooted and passed by the house cannot be found fault with.
35. In view of our preceding analysis, the appeal is allowed and the order passed by the learned single Judge is set aside. As an inevitable corollary, the election has to be held by the State Election Commission as per 42 law. In the facts and circumstances of the case, there shall be no order as to costs.
( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. ) Patna High Court.
The 14th May, 2010.
AFR.
Dilip