Civil Writ Jurisdiction Case No. 13788 of 2016. Case: Bijay Kumar Bimal and Ors. Vs The State of Bihar and Ors.. Patna High Court

Case Number:Civil Writ Jurisdiction Case No. 13788 of 2016
Party Name:Bijay Kumar Bimal and Ors. Vs The State of Bihar and Ors.
Counsel:For Appellant: S.B.K. Mangalam and Ravi Ranjan, Advocates and For Respondents: Yogendra Prasad Sinha, A.A.G. and Ram Subhas Singh, AC to AAG
Judges:Navaniti Prasad Singh and Vikash Jain, JJ.
Issue:Bihar Municipal Act, 2007 - Sections 2(76), 25(4), 48, 50(4), 51(2)
Judgement Date:February 14, 2017
Court:Patna High Court
 
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Judgment:

Vikash Jain, J.

  1. Heard learned counsel for the petitioners and learned counsel for the respondents.

  2. The present matter is under consideration by this Bench on a reference by a learned Single Judge of this Court, who was of the view that "Section 25(4) of the Act requiring a particular minimum number for a no confidence motion to be passed, would not mean that when 50% of the whole number of Councillors have voted one way, irrespective of the actual number of votes cast, the same would also be a case of' equality of votes' as contemplated in Section 51(2) of the Act", which was contrary to the decisions of two co-ordinate Benches of this Court as reported in Sanjay Kumar Singh & Ors. vs. The State of Bihar & Ors. [2015 (1) PLJR 394] and Rajeshwar Prasad vs. The State of Bihar & Ors. [2012 (2) PLJR 525].

  3. The short facts of the case according to the reference order are that pursuant to a requisition for bringing a no confidence motion against the Chief Councillor and Deputy Chief Councillor of Nagar Parishad, Madhepura which was constituted of a total 26 elected Ward Councillors at the relevant time, a special meeting under Section 25(4) of the Bihar Municipal Act, 2007 (for short, "the Act") was held on 05.08.2016. Out of the 26 members, 15 attended the meeting and the petitioner No. 1 was nominated by the attending members to preside over the special meeting. After discussions, the no confidence motion was put to vote. Out of the votes cast, 13 votes were in favour of the no confidence motion, one vote was cast against the motion, while one ballot paper was blank and hence declared invalid. It was claimed by the petitioner No. 1 that this resulted in an equality of votes, there being 26 members in all, and therefore he had a right to a casting vote in terms of Section 51(2) of the Act, which right he was, however, prevented from exercising by the respondent No. 5. After counting, the respondent No. 5 declared the no confidence motion to have failed in the absence of majority of votes being in favour of the motion.

  4. The learned Single Judge has opined that the right of a casting vote would arise only in a situation where the number of votes cast were equally divided and led to a tie. Though the Learned Single Judge has not framed a specific question for reference to the Division Bench, the core questions arising in the present controversy may be formulated as under-

    i) Whether the term "equality of votes" as occurring in Section 51(2) of the Act contemplates an equal division in the number of votes cast by the members present and voting?

    ii) Whether the said term "equality of votes" covers a situation where only half the total number of members vote one way while the remaining half of the members remain absent or abstain from voting or some of them vote the other way?

  5. The core issues that require to be decided are, therefore, the interpretation of the terms "votes" and "equality of votes" and whether votes cast by half of the whole number of members in favour of the no confidence motion can be viewed as an equality of votes by treating the votes of the members who remained absent from the meeting or abstained from voting as being against the motion for the purposes of sec. 51(2) of the Act in order to afford the Chief Councillor or the Presiding Officer the right to exercise a casting vote.

  6. On a careful consideration of the issue in controversy and on a perusal of the various provisions of the Act and Rules as a whole, I am in agreement with the view expressed by the learned Single Judge in his reference order.

  7. The relevant provisions of Section 25(4), Section 50(4) and Section 51(2) of the Act are reproduced hereinbelow for the...

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