Merikh Darkhasan vs The State of Bihar and Others

Jyoti Saran, J.—Heard Mr. Y.V. Giri, learned senior counsel appearing on behalf of the petitioner, learned counsel for the State, Mr. Shashi Anugrah Narain, learned senior counsel appearing for the private respondents, Mr. Shri Prakash Srivastava, learned counsel appearing for the respondent No. 8 and Mr. Manindra Kishore Singh, learned counsel appearing for the Nagar Panchayat. Although this matter has been listed under the heading ''For orders on petitions'' for consideration of the petition filed by the private respondents for vacating the order on stay passed on 27.6.2014 but since the parties have appeared and the pleadings are complete hence with consent of the parties the writ petition itself has been taken up with a view to its final disposal.

The petitioner who is the Chief Councillor of the Nagar Panchayat, Rafiganj in the district of Aurangabad has questioned the requisition dated 10.6.2014 placed at Annexure-1, inter alia, on grounds that the same has not been served on her in the manner prescribed under rule 2(i) of the Bihar Municipal No Confidence Motion Process Rules, 2010 (hereinafter referred to as ''the Rules'') framed under Sections 25(4) and 419 of the Bihar Municipal Act 2007 (hereinafter referred to as ''the Act''). The petitioner also complains that she has not been given the prescribed period of 7 days as mandated under the Rules for fixing the date of special meeting inasmuch as the notice for special meeting has been issued within 7 days of the filing of the requisition i.e. on 17.6.014 itself.

The second issue raised by Mr. Giri is that the notice dated 17.6.2014 issued by the Executive Officer, Nagar Panchayat, Rafiganj as contained in Annexure-2 fixing special meeting on 3.7.2014 is not in tune with the provisions underlying Rule 2(iv) of ''the Rules'' inasmuch as there is no mention of the reasons/charges.

The third issue raised is that even when by notice dated 17.6.2014 the meeting was fixed on 3.7.2014 but a second notice was issued on 24.6.2014 by the Executive Officer, whereby the defect regarding absence of allegations/reasons in the notice was sought to be cured and the date of special meeting was advanced from 3.7.2014 to 28.6.2014.

I have heard learned counsel for the parties and I have perused the materials on record.

In so far as the issue of non-service of requisition and depriving the petitioner of the period of 7 days as provided under Rule 2(i) of ''the Rules'' is concerned, by passage of time and in view of the report of the process server enclosed with the counter affidavit, the objection does not hold good and in any view of the matter since the requisition has now come within the knowledge of the petitioner she can raise no such technical objections.

The issue which survives is that though the initial notice issued by the Executive Officer on 17.6.2014 did not contain allegations/reasons for moving the motion as required under Rule 2(iv) of ''the Rules'' but the defect was sought to be cured by a subsequent notice issued on 24.6.2014 whereby the date of special meeting was advanced to 28.6.2014. The exercise of statutory power is clearly in teeth of the lawful procedure.

Taking note of the circumstances existing and without going into the contest advanced by the rival parties, this Court while setting aside the notice dated 17.6.2014 and 24.6.2014 as contained in Annexures-2 and 3 respectively of the writ petition issued by the Executive Officer, Nagar Panchayat, Rafiganj, District-Aurangabad on grounds of having issued in violation of statutory provisions would direct the petitioner to fix the date of special meeting on or before 19.8.2014 and ensure its circulation by the Executive Officer of the Nagar Panchayat failing which the private respondents/requisitionists would be at liberty to proceed in accordance with law.

The Executive Officer of the Nagar Panchayat is directed to ensure that there is no such lapse this time in observing the provisions of Rule 2(iv) of ''the Rules'' and the reasons/allegations are mentioned in the notice fixing special meeting as prescribed failing which this Court would be constrained to pass appropriate orders against him. The writ petition is allowed with the observation and direction aforementioned. The interlocutory application stands disposed of.