Binay Kumar Srivastava And Anr. v. State Of Bihar And Ors.

N.P. Singh, A.C.J.

1. This application has been filed on behalf of the petitioners for a writ of mandamus restraining the respondents from taking steps for holding any election for the office of the Chairman of the Motihari Municipality (hereinafter referred to as 'the said Municipality) in view of the fact that the petitioner No. 2, who had been duly elected as the Chairman of the said Municipality, it continuing as the Chairman.

2. It is the case of the petitioners that in the year 1986, election was held of the Ward Commissioners of the said Municipality in accordance with the provisions of the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act') and the rules framed thereunder. In the said election 20 persons were elected as Ward Commissioners. One Sri Nand Lal Ram and one Veena Rai were co-opted as Commissioners. The Member of the Bihar Legislative Assembly of the area also became a Commissioner of the said Municipality. The whole number of the Commissioners of the Municipality is 23 as envisaged under Section 13 of the Act. In September, 1988 petitioner No. 2 was elected as the Chairman of the Municipality by the Commissioners.

3. It is said that a meeting of the Commissioners was held on 18.7.1989 in which 15 Commissioners were present, out of which 14 supported the no confidence motion for removal of the Chairman (petitioner No. 2) and petitioner No. 1 opposed the same. On the basis of the resolution of no confidence motion having been supported by 14 Commissioners it was taken that the resolution of the removal of the Chairman has been passed. A notice was issued on 28.7.1989 by the Additional Collector, East Champaran-cutn-Returning Officer, calling a meeting of the Commissioners on 4.8.1989 to elect a new Chairman. According to the petitioners, unless petitioner No. 2, who was the duly elected Chairman, has been removed in accordance with Section 34 of the Act he is continuing as the Chairman of the Municipality and there was no occasion on the part of the Returning Officer to issue a notice calling upon the Commissioners to elect a new Chairman.

4. Section 34 of the Act provides the procedures for removal of a Chairman, which is as follows:

34. Removal of Chairman and Vice Chairman.--A Chairman appointed under Section 12 or elected under Section 20 or 30 or a Vice-Chairman may at any time be removed from his office by a resolution of the Commissioners in favour of which not less than two-thirds of the whole number of the Commissioners have given their votes at a meeting specially convened for the purpose.

In view of aforesaid section a person, who has been elected as the Chairman of the Municipality, may be removed at any time from his office by a resolution of the Commissioners in favour of which "not less than two-thirds of the whole number of the Commissioners have given their votes at a meeting....

5. The controversy, which has been raised in the present writ application, is as to whether for a valid resolution of removal the requirement of Section 34 being supported by two-thirds of the total number of the Commissioners has been fulfilled. Unfortunately, in Section 34 neither it has been said that two thirds of the members present at the meeting should support such a resolution nor it has been said that two thirds of the total number of the Commissioners should support. It speaks about "two thirds of the whole number of the Commissioners." As such, the question, which has to be answered is as to whether the words "whole number" have to be read to mean the number of Commissioners present at the meeting or the total number of the Commissioners.

6. In the case of Sukhdeo Narayan and Ors. v. AIR1956Pat367 a similar question was considered in connection with Section 34 of the present Act in respect of removal of the Chairman of the then Arrah Municipality. The total number of the Commissioners of the said Municipality was 40. From the proceedings of the meeting held on 9.1.1956 it appeared that 23 Commissioners voted for the removal of the Chairman and 9 opposed the same. While challenging the validity of the resolution of removal it was urged before this Court that as the total number of the Commissioners of the said Municipality was 40 the requisite majority for removal of the Chairman was 27; and as only 23 Municipal Commissioners had voted in the said meeting in support of the resolution of the removal of the Chairman, in view of Section 34 of the Act, the resolution was not valid and in eye of law there had been no removal of the Chairman. From the other side a stand was taken that as the resolution of the removal was backed by two-thirds of the number of the Commissioners present at the meeting there has been a compliance of the requirement of Section 34 of the Act and the resolution of removal was valid. In that connection it was said as follows:

I am unable to hold that the Chairman or the Vice-Chairman could be removed by a resolution of Commissioners in favour of which not less than two thirds of the Commissioners present at the meeting gave their votes. It is only natural for the Legislature to apply a very strict test in an important matter which concerned the two highest Executives of a Municipal Board.

The word "whole" in Sections 34 and 35, therefore, plays an important role in construing whether such a resolution requires the votes of two-thirds of the entire body of the Municipal Commissioners or two-thirds of the votes of the Municipal Commissioners who happen to be present at a meeting. In my view, therefore, the requisite majority was 27 and as the votes given in the meeting of 9.1.1956, fell short by 4, the resolution on item No. 2 of the agenda was illegal and the Chairman could not be deemed to have been removed from his office by this resolution.

7. In a Full Bench decision of the Allahabad High Court in the case of Mangala Prasad Jaiswal v. AIR1971All77 , the words "total number of members of the committee" occurring in Section 87-A(12) of the U.P. Municipalities Act fell for consideration. It was held that the said words meant the total number of members initially constituting the Committee and not the members for the time being. It was pointed out that any casual vacancy at a particular time was irrelevant for calculating the total number of members for the purpose of the sub-section In that connection it was pointed out as follows:

The meaning of the words "total number of members" is quite plain. It can hardly be disputed that the words "total" and "whole are synonymous. The dictionary meaning of the word "whole" is "total" and vice versa. In fact the whole members of a Board or a body is a well known expression and is used to convey the totality of the members provided for a complete constitution of the body. In English statutes alto the word "whole" has been used in the sense of total membership constituting the Board.

8. In this connection reference can be made to an English decision in Newhaven Local Board v. Newhaven School Board (1935) 30 Ch D 350. From the facts of that case it shall appear that there was a local Board established under the Public Health Act, 1875, The constitution of the Board provided that no Action could be taken by the Board unless one-third of the full number of the members of the Board were present at the meeting. The Board consisted of 9 members. Out of 9 members 7 had resigned. In that situation it was held that the two remaining members of the Board were incompetent to transact the business of the local Board. It appears that although the impugned action was upheld, but a view was taken that no action could be taken except in a meeting in which one-third of the full number of the members of the Board were present.

9. In the case of Shyampada Ganguly v. AIR1951Cal420 while constuing the words "whole number of the Commissioners," occurring in Section 61(2) of the Bengal Municipal Act it was held that the said words have reference to the total number of elected seats in a municipality and the fact that a fact was declared vacant by the Government does not matter. In that case the total number of Commissioner was 17, but only 11 Commissioners had voted in respect of the resolution, which was held to be not the compliance of the requirement of Section 61(2) of the aforesaid Act.

10. There is no dispute that the total number of the Commissioners of the Municipality in question is 23. According to the respondents, one Commissioner Sri Abinash Kishore Sinha died before the date of the meeting aforesaid and one Commissioner of the Municipality had resigned. As such, on the relevant date the whole member of the Commissioners was 21 of which 14 shall be two-thirds. On behalf of the petitioners it was pointed out that even the death of one of the Commissioners shall not make any difference because two-thirds has to be calculated with reference to the initial strength of the Municipality. But for the purpose of the present case even if it is assumed that whole number was reduced by the death of one of the Commissioners from 23 to 22, still 14 Commissioners supporting the resolution of removal cannot be held to be a resolution supported by not less than two-thirds of the whole number i.e. two thirds of 22 Commissioners on the relevant date.

11. In this connection in the counter affidavit filed on behalf of the State of Bihar and the District Magistrate, Motihari, it has been pointed out that out of 23 Commissioners, as already stated above, one Sri Abinash Kishore Sinha had died and another Commissioner Sri Nand Lal Ram had joined service on 29.4.1989 in the Champaran Kshetriya Gramin Bank and had submitted his resignation letter from the post of the Commissioner of the Municipality. It is said that the resignation letter dated 24.4.1989 had been addressed to the Chairman and the Executive Officer of the Municipality. The same stand has been taken in the counter-affidavit filed on behalf of respondent No. 3, the Municipal Commissioners of the Municipality.

12. Sub-sections (2) and (3) of Section 33 of the Act is as follows:

33. Resignation of Chairman, Vice Chairman, President or Commissioner:

(1) ** **

(2) A Vice-Chairman, a President or a Commissioner may resign by giving notice in writing of his intention to do so, to the Chairman who shall forthwith lay such notice before the Commissioners at a meeting.

(3) On resignation under Sub-sections (1) or (2) being accepted by the Commissioners at a meeting or by the State Government, as the case may be, the Chairman, the Vice-Chairman, the President or the Commissioner, as the case may be, shall be deemed to have vacated his office.

On a plain reading any resignation by any Commissioner has to be accepted by the Commissioners. There is no statement in any of the counter-affidavits that resignation of Nand Lal Ram bad been accepted by the Commissioners of the Municipality. In paragraph 6 of the counter-affidavit filed on behalf of the Commissioners of the Municipality it has been stated as follows:

That Nand Lal Ram resigned from the Office of Commissioners on 24.4.1989 which was accepted by the Chairman in anticipation of the acceptance by the Board of Commissioners on 24.4.1989 itself.

In this background it is difficult to hold that the resignation of Nand Lal Ram had been accepted in accordance with requirement of Section 33 of the Act so that he ceased to be a Commissioner of the Municipality before the meeting held on 18.7.1989.

13. Although in view of the judgments referred to above, the words "two-thirds of the whole number of the Commissioners" has to be interpreted to mean two-thirds of the total number of the Commissioners of the Municipality in question, but even if for argument sake it is held that by death of one Commissioner the whole number had been reduced from 23 to 22, as admittedly the resolution for removal of the Chairman was supported by only 14 Commissioners, it cannot be held that in support of the resolution not less than two-third of the whole number of the Commissioners, had given their votes. The result will be that it has to be held that the resolution for removal has not been passed in accordance with the requirement of Section 34 of the Act, and as such, petitioner No. 2 is continuing as the Chairman of the said Municipality.

14. In the result, this writ application is allowed, and I hold that there was no occasion to issue the impugned notice dated 28.7.1989 by the Returning Officer of the Municipality requesting the Commissioners of the Municipality to participate at the meeting for election of a Chairman. The notice (Annexure-4 to the supplementary affidavit) is, accordingly, quashed. In the circumstances of the case, there shall be no order as to costs.