JANAK YADAV Vs. STATE

JUDGEMENT

(1.) C.W.J.C. No. 6514 of 1990 has been filed on behalf of the sole petitioner Janak Yadav (hereinafter referred to as 'the petitioner') claiming to be duly co-opted Commissioner and duly elected Chairman of Chapra Municipality (hereinafter referred to as the Municipality) for quashing the decision of the Collector, Saran as Communicated by the Deputy Collector Incharge General Section in his letter dated 5-10-1990 (Annexure-1) directing Shri S. S. Prasad, Executive Magistrate, Sadar, Chapra to take necessary steps for the co-option of the local Legislator as commissioner of the Municipality under the provisions of Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act'), as also for quashing the consequential notice dated 6-10-1990 (Annexure-2) issued under Rule 57 of the Bihar Municipal Election and Election Petition Rules, 1953. C.W.J.C. No. 6547 of 1990 has been filed by four persons (who have also filed intervention Petition in C.W.J.C. No. 6514 of 1990 and will be referred to as intervenors in this Judgment) for issuance of a writ in the nature of quo warranto questioning the competency of the aforesaid Janak Yadav (impleaded as respondent No. 3 in this case) to continue as the Chairman of the said Municipality. These two writ petitions have been heard together and are being disposed of by this common judgment as the facts and the points arising for consideration are the same in both the cases.

(2.) In the Chapra Municipality, the total number of Municipal Commissioners is 36 out of which 32 are to be elected and the rest are to be co-opted from amongst six constituencies as mentioned in Sub-section (2) of S.13 of the Act. On 26-2-1989 the general election in respect of 32 Ward Commissioners was held and 32 persons were elected as Commissioners. A meeting of the elected Municipal Commissioners thereafter was held on 31-3-1989 in which four persons, including the petitioner, were co-opted as Commissioner of the said Municipality. It may be stated here that at the relevant time the petitioner was a member of the Bihar Legislative Assembly and he was co-opted from the category of Local Legislator'as mentioned in clause (VI) of S.13 (2) of the Act. Thereafter, as contemplated by S. 14 of the Act, the names of all the elected and co-opted Commissioners including the petitioner were published in the official Gazette. On 7-4-1989 a meeting was held of the elected and co-opted Commissioners in the premises of the Municipality in terms of the provisions of S. 20 of the Act to elect the Chairman and other office bearers. It is said that the petitioner was elected as Chairman by defeating the nearest rival by a margin of 8 votes. Thereafter, the election of the petitioner as Chairman was duly notified in the official Gazette.

(3.) According to the case of the petitioner, the term of the office of the petitioner as the Chairman of Municipality is of five years subject to the provisions of S. 30 read with Ss. 33, 34 and 35 of the Act and unless and until he is removed from the aforesaid office in accordance with the relevant provisions, the State Government or the Collector of District have no jurisdiction to remove the petitioner from the office of the Chairman and / or to take steps for co-option of another person in his place as the Commissioner and therefore, the impugned action purporting to take steps for co-option of another person in his place is illegal and without jurisdiction. .