Raju Mahto @APPELLANT@Hash Ranjana Singh

Mukesh R. Shah, CJ

Having not agreeing with the decision of the Division Bench of this Court in the case of Vibha Devi vs. State of Bihar [2015 (2) PLJR 167], the

Division Bench of this Court vide order dated 18.05.2015 has referred the matter to the Full Bench to deal with the following questions, viz.

(a) Whether the procedure stipulated in Section 50 of the Act would apply to the meeting referable to Section 25(4) of the Act, particularly in view of

the saving clause contained in sub-section (4) of Section 50 of the Act?

(b) Whether there exists any possibility or occasion for adjourning a meeting to take up a meeting for motion to express want of confidence; when

Section 25(4) and the Rules specially made for this purpose, do not provide for it?

(c) Whether it becomes necessary to adjourn a meeting convened under Section 25(4) of the Act, when not a single Councillor and the person who

was expected to preside over the meeting, did not turn up?

(d) Whether the recording of the developments of a meeting by the Executive Officer can be treated as the expression of views about the resolution

or meeting?

1.1. At the outset, it is required to be noted that according to learned counsel appearing on behalf of the respective parties as such the present Appeal

has become infructuous by afflux of time. However, as the aforesaid questions are referred to the Full Bench, we proceed further to answer the

aforesaid questions.

The subject matter is the no confidence motion moved against the appellant herein. The appellant was elected as Chief Councillor of Saharsa

Municipality. A requisition to convene a meeting to take up a motion, to express want of confidence in the appellant was signed and delivered by more

than one-third members of the Council. The Chief Executive Officer of the Council convened a meeting on 08.11.2014. However, on that date, not a

single Councillor, including those who signed the requisition had attended. The Chief Executive Officer issued the proceeding dated 08.11.2014,

recording the developments.

2.1. The first respondent herein filed CWJC No.21450 of 2014 challenging the action of the Chief Executive Officer in issuing letter dated 08.11.2014.

The learned Single Judge allowed the writ petition vide judgment and order dated 27.04.2015, setting aside the proceedings dated 08.11.2014, and

directed that a fresh meeting be convened, for taking up the motion, to express want of confidence. Heavy reliance was placed upon Section 50 of the

Bihar Municipal Act, 2007 (hereinafter referred to as ‘the Act, 2007’). The judgment and order passed by the learned Single Judge dated

27.04.2015 passed in CWJC No.21450 of 2014 is the subject matter of appeal.

2.2. It was the case on behalf of the appellant herein that once the meeting was convened, the question of adjourning the same, as contemplated under

Section 50 of the Act, does not arise, particularly when not a single Councillor had attended. It was also his case that question of adjourning the

meeting for want of quorum would arise only in respect of general meeting of the Council provided for under Section 50, and not special meetings,

which are dealt with under Section 25 of the Act, 2007.

2.3. At the time of hearing of the Appeal, learned counsel appearing on behalf of respondent no.1 herein- the original writ petitioner placed reliance

upon a decision of the Division Bench of this Court in the case of Vibha Devi (supra) by which it was held that adjournment of the meeting as

provided for under Section 50 of the Act was very much legal and that no confidence motion was upheld. In that case before the Division Bench, a

meeting to take up the motion to express want of confidence was fixed on 10th July, 2014 and, on that date, only 7 out of 53 elected Ward Councillors

attended. The meeting was adjourned for want of quorum, by referring to Section 50 of the Act and in the adjourned meeting, the motion was carried

out. When the same was challenged, the Division Bench held that the adjournment for meeting as provided for under Section 50 of the Act was very

much legal and consequently no confidence motion was upheld. Not agreeing with the view taken by the Division Bench of this Court in the case of

Vibha Devi (supra), the Division Bench vide order dated 18.05.2015 referred the matter to the Full Bench to deal with the aforesaid questions.

We have heard learned counsel appearing on behalf of the respective parties at length and perused and considered the relevant provisions of the

Act and the Rules. The relevant provisions are Section 25, more particularly Section 25(4) of the Act and Section 50 and more particularly Section 50

(2) of the Act and Rule 2 of the Bihar Municipal No Confidence Motion Process Rules 2010 (hereafter referred to as the ‘Rules 2010,) which read

as under:-

Bihar Municipal Act, 2007

“25. Removal of Chief Councillor/Deputy Chief Councillor .-

(1) xx xx

(2) xx xx

(3) 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 total number of Councillors, and the procedure for the conduct of business in the special meeting shall be such

as may be prescribed:

Provided that a no confidence motion shall not be brought against the Chief Councillor/Deputy Chief Councillor within a period of two years of taking

over the charge of the post:

Provided further that a no confidence motion shall not be brought again within one year of the first no confidence motion:

Provided further also that no confidence motion shall not be brought within the residual period of six months of the municipality.

(5) xx xx

(6) xx xx

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 one-third of the total number of meeting of Councillors.

(2) If at any time during a meeting of the Municipality there is no 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

Bihar Municipal No Confidence Motion Process Rules 2010

“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:â€

(i) To remove the Chief Councillor/the Deputy Chief Councillor, a 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 by the 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 by 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 member elected for the purpose in the meeting by the Councillors.

(iii) In case the notice not being issued by the Chief Councillor within the stipulated date or not convening the meeting within stipulated time, the

special meeting shall be called by the requisitionists as per the provision of section-48 (3) of the Bihar Municipal Act, 2007 and the notice for it shall be

issued by the chief Municipal officer.

(iv) The notice issued for considering no confidence motion against the chief Councillor/Deputy Chief Councillor shall clearly contain the

reasons/allegations on which basis the no confidence motion is to be brought.

(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 Councillor, shall

be exercised or performed by the Chief Municipal Officer of the Municipality.

(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.â€​

3.1. Section 25 of Act, 2007 provides for removal of Chief Councillor/Deputy Chief Councillor. As per sub-section (4) of Section 25, 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. It further provides that the procedure for the conduct of business in the special meeting shall be such as

may be prescribed.

3.2. Rule 2 of Rules 2010 provides the process and manner to consider and dispose of the no confidence motion brought under Section 25(4) of the

2007 Act, against the Chief Councillor/Deputy Chief Councillor reproduced hereinabove. As per sub-rule (vi) of Rule 2 of Rules 2010, the quorum for

the meeting shall be as per the provision of Section 50 of the Act, 2007.

3.3. Sub-section (2) of Section 50 of Act, 2007 makes it clear that the procedure, for conduct of business, in the special meeting, for removal of a

Chief Councillor from his/her office by way of a motion of no confidence, shall be such as may be prescribed. It further provides that if any time

during a meeting of the Municipality, there is no 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.

3.4. Therefore, on conjoint reading of sub-section (4) of Section 25, sub-section (2) of Section 50 of the Act, 2007 and Rule 2 of Rules 2010, it

becomes clear that special meeting shall be convened if one-third member of the total number of councillors give requisition, in writing, for a special

meeting to discuss the 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. It also becomes clear from

the aforesaid provisions that if there is no 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. Therefore, by virtue of Section 25(4) read with Rule 2 of Rules 2010 read with sub-section (2) of Section

50 of Act, 2007 even in case of special meeting convened to consider the question of no confidence motion against the Chief Councillor or the Deputy

Chief Councillor under Section 25(4) of the Act, 2007 also if there is no 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. The same is also required to be read with sub-section (3) of Section 50 which

provides that where a meeting has been adjourned under sub-section (2) due to non-quorum, the presiding authority shall fix date, time and place of the

next meeting and the subject may be transacted at the adjourned meeting and no quorum shall be necessary for such adjourned meeting. Thus, quorum

is required in the first meeting even in the case of special meeting under Section 25(4) of the Act 2007, however, at the adjourned meeting no quorum

shall be necessary for such adjourned meeting.

3.5. Therefore, considering the relevant provisions of Sections 25 and 50, referred to hereinabove of the Act, 2007 and Rule 2 of Rules 2010, we are

in complete agreement with the view taken by the Division Bench in the case of Vibha Devi (supra).

In view of the above and for the reasons stated above, the questions referred to the Full Bench reproduced hereinabove are answered as under:

(a) The procedure stipulated in Section 50 of the Act would apply to the meeting referable to Section 25(4) of the Act, particularly in view of the

provision of sub-section (4) of Section 50 of the Act.

(b) In case of non-quorum at a special meeting called under Section 25(4) of the Act 2007, the meeting is required to be adjourned as provided under

sub-section (2) of Section 50 of the Act and the motion can be considered at the adjourned meeting as per sub-section (3) of Section 50.

(c) In case, the meeting is convened under Section 25(4) of the Act, 2007 when not a single Councillor and the person who is expected to preside over

the meeting, do not turn up, in that case, the meeting is required to be adjourned in case there is a non-quorum. However, it is clarified that if there is a

quorum and the person who is expected to preside over the meeting do not turn up, in that case, the meeting shall be carried out as per Section 25 of

the Act, 2007 read with Rule 2 of Rules 2010.

(d) The recording of the developments of the meeting by the Executive Officer can never be treated as the expression of the views about the

resolution of the meeting and the same can be said to be recording the events to adjourn the meeting due to non-quorum only.

4.1. The aforesaid questions are answered accordingly.

With this the present Letters Patent Appeal is dismissed as no error has been committed by the learned Single Judge in directing that a fresh

meeting be convened, for taking up the motion, to express want of confidence.