ORAL ORDER

Heard Mr. Y.V Giri learned Senior counsel for the petitioners, Mr. Binay Kumar Pandey, A.C to G.A.3 and Mr. Dilip Kumar A.C to G.A.2 for the State and Mr. S.B.K Manglam learned counsel for the private respondents-requisitionists.

The petitioner in C.W.J.C No. 11142 of 2014 is the Deputy Chief Councillor, Nagar Panchayat, Nabinagar in the District of Aurangabad and the petitioner in C.W.J.C No. 11227 of 2014 is the Chief Councillor of the same Nagar Panchayat. Since the issues raised in the two writ petitions are same, hence both the writ petitions have been heard analogous with a view to their final disposal with the consent of the parties. Two separate requisitions were moved by the Ward Councillors of the Nagar Panchayat in question against the Chief Councillor as well as the Deputy Chief Councillor both dated 16.6.2014 and copy whereof are placed at Annexure-1 to the respective writ petitions and put to question in the present proceedings. The sole issue raised by Mr. Giri learned Senior appearing on behalf of the petitioners is that the requisitions for moving the no confidence motion against the Councillor as well as the Deputy Chief Councillor has not been served upon the Chief Councillor in the manner prescribed under Rule 2(i) of the Bihar Municipal No Confidence Motion Rules 2010 (hereinafter referred to as the ‘Rules’). According to Mr. Giri whereas the requisition for moving a no confidence motion has to be statutorily served on the Chief Councillor, it is a matter of record that the requisition for moving the no confidence motion against the Chief Councillor and the Deputy Chief Councillor was not served upon the Chief Councillor. He thus submits that since the no confidence motion is founded on a statutory violation of Rule 2(i) of the Rules, it cannot proceed any further and is fit to be set aside.

The sheet anchor of Mr. Giri's argument is Rule 2(i) of the Rules which provides that a requisition for special meeting signed by not less than 1/3rd of the total number of the elected Councillors should be given to the Chief Councillor. Relying upon this provision it is sought to be contended that a requisition not served on the Chief Councillor cannot be a basis for a valid special meeting. In support of his submission Mr. Giri has relied upon the following judgments of the Supreme Court:

(a) AIR 1976 SC 789 (Hukum Chand Shyam Lal v. Union of India) paragraph 18 and

(b) (2014) 3 SCC 502 (Dipak Babaria v. State of Gujarat) paragraph 61.

On the strength of the two judgments it was contended that where a statute prescribes for the mode and manner in which an act has to be performed it has to be performed in that very mode and manner alone and all other modes are forbidden. According to Mr. Giri, since the statute itself provides for service of requisition on the Chief Councillor, any other form of service, would not suffice the requirement of law and in view of the law settled by the Supreme Court as regarding adherence to statutory requirements, a no confidence motion called on such a requisition cannot be upheld. Canvassing his point on this issue, Mr. Giri has also referred to certain paragraphs of the counter affidavit and his rejoinder to state that the receipt by one Satendra Kumar Singh who is stated to be a staff in the office of the Chief Councillor, Nagar Panchayat, Nabinagar, is not a valid service and in fact even such service is by the husband of one of the Councillor. It is also the argument of Mr. Giri that merely because the Chief Councillor has proceeded to fix the date of special meeting, this act would not amount to waiver as discussed in the judgments reported in 2010 (1) PLJR 929 and 2010 (3) PLJR 259.

The arguments of Mr. Giri has been contested by Mr. Raj Kumar Rajesh appearing for the Executive Officer as well as Mr. Manglam appearing for the requisitionists and who with reference to the file notings, copy whereof has been placed in the counter affidavit filed in the two cases, have submitted that where the Chief Councillor himself has admitted that the requisition was placed before him in the file and has also proceeded to fix the date of hearing on 8.7.2014, it does not lie in the mouth of the Chief Councillor now to turn back and question the validity of the no confidence motion on the anvil of statutory violations. The direction of the Chief Councillor dated 23.6.2014 is placed at Annexure-B to the counter affidavit filed in C.W.J.C No. 11227 of 2014.

Learned counsel for the Executive Officer as well as the requisitionists however despite their efforts could not satisfy this Court as regarding the service of requisition in respect of the Deputy Chief Councillor.

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

Whereas the Deputy Chief Councillor in paragraphs 8 and 13 of C.W.J.C No. 11142 of 2014 has admitted to the receipt of the requisition as well as the notice, the same position also exists in the case of the Chief Councillor when he admits in paragraphs 9 and 10 of C.W.J.C No. 11227 of 2014 that the requisition was placed before him in file and that he has fixed the date of special meeting on 8.7.2014 upon such presentation. Annexure-B to the counter affidavit filed on behalf of the Executive Officer in C.W.J.C No. 11227 of 2014 further contains the admission of the Chief Councillor regarding the requisition moved against him and in consideration whereof, he has fixed the date of special meeting on 8.7.2014 but while doing so, he has also mentioned that since he has no information regarding the requisition moved against the Deputy Chief Councillor, hence it was not proper for him to fix any date.

The provisions of Rule 2(i) of the Rules framed under the Bihar Municipal Act 2007 merely requires that a requisition signed by not less than 1/3 of the total number of the Ward Councillor be given to the Councillor. It is nowhere mentioned in the rules as canvassed by Mr. Giri that it has to be personally served upon the Chief Councillor. All that law requires is that the copy of the requisition should be given to the Chief Councillor. Now in view of this mandate as reflected from the rule it is to be seen is whether the requisition placed before the Chief Councillor was a compliance of the rule or not. As per the admission of the Chief Councillor himself in paragraph 9 and 10 of the writ petition, the copy of the requisition was placed before him in the file and following which he has proceeded to fix the date of special meeting on 8.7.2014 The Chief Councillor after admitting this position and after having fixed the date for special meeting on 8.7.2014 cannot now turn back to contest that the requisition was not served upon him in the manner prescribed when indeed it was placed before him in the file and has been acted upon.

On such uncontested facts and in view of the requirement of law the judgments of the Supreme Court relied upon by Mr. Giri would have no applicability in the present context. The proposition of law laid down in the judgments is based on the sound principle that no authority can be permitted to act in violation of statutory provisions and such adherence is even more necessary where any such circuitous act would result in violation of the principles of natural justice. In fact paragraph 18 of the judgment rendered in the case of p (supra) itself clarifies this issue. In the case of Hukum Chand (supra) the authorities of the Telecom Department had disconnected the line of the petitioner by invoking the emergency provision even when there was a specific provision relatable to disconnection of telephone line in normal cases. It is in this context and in absence of any pre-requisites for invoking the emergency provisions that it was held that when a law prescribed the mode and manner of doing a particular act it should be done in that particular manner alone and such exercise is to be more rigorously followed where such violation would result in violation of the principles of natural justice.

In so far as the present case is concerned, all that the law requires is that the requisition for moving a no confidence motion against the Councillor/Deputy Chief Councillor, is to be given to the Chief Councillor. It is no where provided that it has to be personally served upon him or that unless the main copy is placed before the Chief Councillor, he is not required to proceed thereon. In the opinion of this Court, the placement of the requisition in the file before the Chief Councillor and which stands acknowledged by him in the file noting dated 23.6.2014, would be substantial compliance of the statutory provision. In fact the mode and manner of service of requisition under Rule 2(i) of the Rules also came up for consideration in another matter arising from C.W.J.C No. 11869 of 2014 and this Court taking into consideration the statutory provisions has opined as follows:

“Insofar as the service of requisition on the petitioner is concerned, this Court is of the opinion that the very admission of the petitioner as reflected from his letter dated 19.6.2014 placed at Annexure-2A admitting to the receipt of a copy of the requisition, would be substantial compliance of Rule 2(i) of the Rules and merely because the original copy of the requisition was not served on the petitioner, would not be a ground to invalidate the motion. The requirement of law is that the Chief Councillor should be made aware of the allegations set out against him or the Deputy Chief Councillor, be it any form. The moment a requisition is brought to the notice of the Chief Councillor in whatever form, it would be substantial compliance of law and no technical objection can be raised by him by relying upon rule 2(i). A requisition thus having been admittedly received by the petitioner, this would bring this Court to the second issue raised regarding fixing the date of the special meeting”.

The situation is even worse in the present case. The Chief Councillor after admitting to the knowledge of the requisition and its placement before him in the file has even proceeded to fix the date of special meeting but thereafter has chosen to question the mode and manner of moving the no confidence motion by filing the writ petition.

In view of my discussions hereinabove on the requirements of law as envisaged under Rule 2(i) of the Rules coupled with the admitted fact of receipt of the requisition by the Chief Councillor and the follow up action taken by him resulting in fixation of the date of special meeting, the Chief Councillor in the opinion of this Court had no cause of action to file the writ petition.

In view of my conclusion drawn on the issue raised by the Chief Councillor, no cause for indulgence is made out and C.W.J.C No. 11227 of 2014 is dismissed accordingly.

Since the date of special meeting for considering the no confidence motion moved against the Chief Councillor was fixed on 8.7.2014 by the Chief Councillor himself and it is on his writ petition that the meeting was stayed, the Chief Councillor would fix the date of special meeting on/or before 28.7.2014 failing which the requisitionists would be at liberty to take recourse to the provisions of Rule 2(iii) of the Rules for fixing the date of special meeting.

Coming to the writ petition filed by the Deputy Chief Councillor bearing C.W.J.C No. 11142 of 2014, the pleadings on record do not reflect that the requisition for moving the no confidence motion against the Deputy Chief Councillor was placed before the Chief Councillor. In fact Annexure-B of the counter affidavit filed by the Executive Officer in C.W.J.C No. 11227 of 2014 contains the file notings. The direction of the Chief Councillor recorded by him on 23.6.2014 manifests that while fixing the date of special meeting on 8.7.2014 for consideration of the motion moved against him, he has categorically mentioned that since he is not in receipt of the requisition in relation to the no confidence motion moved against the Deputy Chief Councillor, hence he is not in a position to fix any date. The file noting further reflect that though the Executive Officer did direct for placement of the requisition moved against the Deputy Chief Councillor but it was never placed before the Chief Councillor, at least the file noting do not indicate anything in this regard. Hence in absence of any document supporting the fact that the requisition moved against the Deputy Chief Councillor was placed before the Chief Councillor in terms of the Rule 2(i) of the Rules, the motion cannot proceed against him.

In the circumstances discussed, the requisition dated 16.6.2014 as contained in Annexure-1 to C.W.J.C No. 11142 of 2014 is held to be an invalid requisition and would not be given effect to for holding any no confidence motion against the Deputy Chief Councillor but this would not preclude the requisitionists to move afresh in accordance with law.

With the observations aforementioned, C.W.J.C No. 11142 of 2014 is disposed of.