This writ petition challenging the defeat of the petitioner, a Chief Councillor, in a no-confidence motion. The Court rejected objections regarding notice timing and the Presiding Officer's use of a casting vote, dismissing the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20267 of 2014 With
Interlocutory Application No. 8878 of 2014
====================================================== 1. Rukmini Devi, Wife of Shri Jyoti Prakash Barnawal, Resident of Haziapur Road, Ward No. 11, P.O. and P.S.- Gopalganj, District- Gopalganj
.... .... Petitioner/s Versus 1. The State of Bihar, through the Principal Secretary, Urban Development Department, Government of Bihar, Patna
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.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Y.V.Giri, Sr. Adv. For the Respondent-State: Mr. Punam Kumari, J.C. to GP-4 For the Nagar Parishad : Mr. Ravi Bhushan Verma, Adv. For the respondent No.7 : Mr. Ygendra Prasad Sinha, Adv. For the respondent No.25 : Mr. S.B.K. Mangalam, Adv.
====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT Date: 05-12-2014
Heard Mr. Y.V. Giri, learned Senior counsel for the petitioner, Mr. Yogendra Prasad Sinha for the respondent No.7, Mr. S.B.K. Mangalam for the respondent No.25, Mr. Ravi Bhushan Verma for the Nagar Parishad, Mr. Punam Kumari Singh J.C. to G.P.IV for the State and learned counsel for the State Election Commission.
Although the matter is listed under the heading ‘For Orders on Petition’ for consideration of the prayer made in the interlocutory application for stay of the election notified by the State Election Commission but considering the nature of grievance raised in the writ
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petition and with the consent of the parties in attendance, the writ petition itself has been taken up for disposal.
The petitioner is an elected Councillor for the Nagar Parishad, Gopalganj in the election held in the year 2012. The petitioner was elected Chief Councillor in the election held on 9.6.2012. On 27.6.2014 a requisition was filed expressing no confidence motion in the petitioner which led to the filing of the writ petition bearing C.W.J.C. No. 12565 of 2014. This Court vide order passed on 25.7.2014 stayed the holding of the special meeting pursuant to the requisition dated 27.6.2014. While the writ petition was pending and stay was in operation, that the requisitionists chose to move a second requisition on 26.8.2014 and which was objected to by the petitioner as the matter itself was pending consideration before this Court. The requisitionists did not stop and proceeded with the special meeting which was held on 16.9.2014 and when the no confidence motion was passed against the petitioner. The motion was questioned in the pending writ proceedings by the petitioner by filing interlocutory application and the writ petition was taken up for consideration on 21.10.2014 when this Court taking note of the infirmities in the procedure adopted by the requisitionists quashed the first requisition dated 27.6.2014, the notice dated 19.7.2014, the second requisition dated 26.8.2014 and the notice dated 11.9.2014 as well as the no confidence motion passed on 16.9.2014. The writ petition was
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allowed while reserving liberty for the requisitionists to move afresh in accordance with law. The order passed by this Court in C.W.J.C. No. 12565 of 2014 is present at Annexure-2 to the writ petition.
It is pursuant to the liberty granted by this Court that the requisition sought to be challenged in the present proceedings was moved by the requisitionists for the third time on 24.10.2014, a copy of which is present at Annexure-3. Since the petitioner did not proceed to fix the date of special meeting that the requisitionists on 5.11.2014 fixed the same for 11.11.2014 and communicated their decision to the Executive Officer who circulated a notice on 6.11.2014, copies whereof were placed at Annexures-7 and 8 respectively. On 11.11.2014 the no confidence motion was moved and when the petitioner has been unseated from the post of Chief Councillor and hence this writ petition.
Mr. Giri learned Senior counsel standing in support of the petitioner has raised two grounds to question the no confidence motion namely;
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in absence of any tie of vote.
I shall be dealing with each of the issues one by one.
In so far as the objection raised by the petitioner regarding absence of statutory period for service of notice of special meeting as provided under Section 49 is concerned, all that the statutory provision provides is that a list of business be sent to the registered address of each Councillor at least 72 hours before the time fixed. The stipulation provided in the Act is that the list of business is to be sent 72 hours in advance and thus the objection raised is contrary to the statutory provision and is rejected.
In so far as the second objection regarding unnecessary exercise of casting of vote under Section 51(2) in absence of any tie, is concerned, the records of the special meeting is present at Annexure-11 and manifests that 16 Councillors including the Deputy Chief Councillor were present in the meeting which was presided by the Deputy Chief Councillor. After discussion on the allegations, the polling took place in which the 15 Councillors present other than the Deputy Chief Councillor who was presiding over the meeting, exercised their vote and in which 14 votes were cast in support of the no confidence motion while one vote was cast against. There are 28 elected Councillors in the Nagar Parishad and thus for a motion to be declared passed, it needed a majority of at least 15 votes to pass the motion.
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Since there was 14 votes polled by the members present at the special meeting other than the Presiding Officer who was yet to exercise her vote as a member, that she cast her vote in support of the motion and which resulted in a majority of the elected Councillors voting in support of the motion.
Though Mr. Giri sought to take advantage from the proceedings of the special meeting to submit that the exercise undertaken by the Presiding Officer was to break the tie but in my opinion this would be a hyper technicality for it is now a settled position that a Presiding Officer has a right of exercising his vote as a member and of exercising a casting vote, in case of a tie.
In the present case, the right vested in the Presiding Officer as a member of the Council had not been exercised and hence the vote so cast by her would be treated to be an exercise in that direction as a member.
In the aforesaid view of the matter, even the second objection raised by Mr. Giri cannot be upheld.
Since there are no other infirmities in the motion I find no reasons to interfere with the same and as a consequence the writ petition as well as the interlocutory applications are dismissed.
(Jyoti Saran, J)
Bibhash/-
U
2 issues framed by the court
Whether service of notice for a special meeting within 72 hours is mandatory under Section 49 of the Bihar Municipal Act, 2009.
Whether the Presiding Officer's casting vote under Section 51(2) was justified in the absence of a tied vote.
2 provisions across 1 enactments
Rukmini Devi
The State of Bihar
Bihar State Election Commission
District Magistrate, Gopalganj
Sub-Divisional Officer, Gopalganj
Executive Officer, Nagar Parishad, Gopalganj
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
