BIHAR MAYOR COUNCIL Vs. UNION OF INDIA

JUDGEMENT

(1.) WHILE this petition has been pending the sanctity of the proceedings were attempted to be eroded and, thus, it necessitates an interim order today. But, the better part is that as soon the situation was brought to the notice of the Additional Advocate General II (Mr. S.K.Ghosh, Senior Advocate) that while this matter is under consideration, with notice issued to the Advocate General, Bihar, status quo of the situation when the writ petition was filed should not be disturbed. The Additional Advocate General II sought an adjournment on 25 April, 2003 to advise and take instruction from the Government. Certain parts of Patna Municipal Corporation Act, 1951 are asserted (by the petitioner) to be ultra vires. Further, the five recently elected Mayors apprehended that their tenures are being threatened to be less than one year, when an annual tenure is guaranteed under the Act.

(2.) AT the Bhagalpur Municipal Corporation, the Chief Executive Officer announced an election to the office of the Mayor when the last election had been held in August, 2002. In fact, the very filing of this petition was on an apprehension that the tenure of the Mayor may be cut short and it was submitted on behalf of the petitioners that there is an attempt that while the elections to the office of the Mayor had been held in September, 2002 there is an exercise afoot to hold elections after the close of the financial year, that is to say, April. The writ petition was filed in January. It needs to be recorded appreciating the stand of the Additional Advocate General II that he has advised the government while the matter is pending nothing should be done to upset the sanctity of proceedings in this public cause. Noticing that the law clearly suggests that the office is available to a Mayor at least for a year, the Additional Advocate General assured the Court that while issues will be debated on the two aspects noticed by the Court, the Bhagalpur Municipal Corporation was advised not to hold elections atleast within one year of the last election. In accordance with the advice of the Additional Advocate General II, the Court is informed today by State Counsel, S.C. 8, that the Chief Executive Officer, Bhagalpur Municipal Corporation has stayed his action and is not pursuing the matter as of now.

(3.) IN between have come intervenors. This is a matter, which concerns the working of a democracy within self government institutions, the third tier of the government after the amendments were brought in to the Constitution by insertion of chapters on Panchayats and Municipalities. The pattern on the form and tenure of self governments (the Parliament and the State Legislatures not excluded) has been set by the Constitution. As a symmetry the tenure is five years for the three tiers of government. No one is at issues on this. The issues for the debate are in the Courts order dated 12.3.2003 reproduced below : "In this petition submissions and grounds have been sufficiently taken to highlight the aspect that the tenure of a Mayor to a Municipal Corporation is not compatible with the tenure of the elected representatives under Part IX A (the Municipalities) of the Constitution of India. The submission which is being made is to the effect that while the Chief Executive Officer has a tenure of 5 years and his appointment is a subject matter of consultation "by the State after consultation with the Public Service Commission and the Mayor", the Mayor himself has a tenure of one year only. The tenure of the Mayor must be quo terminus with that of tenure of the elected representatives, it is contended. As the petitioner submits on ultra vires of Section 19 of the Patna Municipal Corporation Act, 1951, as a formality let notice be issued to the Advocate General, Bihar. Notice is made returnable after a fortnight. It may be mentioned on record that in this case notice on the petition has already been issued on 21.2.2003. Put up for admission after a fortnight in the supplementary list. Let a copy of this order be immediately given to the Additional Advocate General II."