NARAYAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Learned Counsel for the petitioner and Learned Counsel for State.

(2.) The petitioner who is the Chairman of the Daudnagar Nagar Panchayat has filed this writ petition assailing the resolution of the Panchayat Samiti dated 23.11.2004, Annexure-8 to the I.A. No. 5904/ 94 where under no confidence motion against him has been carried through by a majority of 12 votes to nil as none opposed the motion.

(3.) Counsel for the petitioner Sri Rajendra Pd. Singh, Sr. Advocate initially submitted that the Nagar Panchayat has altogether 20 members out of which 18 are elected and two are ex-officio nominated members and as motion of no confidence was carried by a majority of 12 only, the resolution is violative of the provisions contained in section 34 of the B.O. Municipal Act, 1922 which inter alia provides that the motion of no confidence against the chairman in order to succeed must be carried through by a majority of not less than ⅔rd of the whole number of the Commissioners. According to the Learned Counsel, majority of 12 is not ⅔rd of the total number of 20 Commissioners. In support of the aforesaid contention, Learned Counsel has relied on a Division Bench judgment of this Court rendered in the case of Binod Kumar Srivastava Vs. the State of Bihar and others reported in, 1990 PLJR 456 wherein Division Bench of this Court considered Sec. 34 of the aforesaid Act and held that the resolution of no confidence should be carried by ⅔rd of the whole number of the Commissioners i.e. both the elected and nominated category of Commissioners. In the said case Division Bench of this Court considered the meaning of the word whole and held that the word is synonym of the word total and as the motion of removal was not carried through by ⅔rd majority of the total number of Commissioner the motion is contrary to the provisions contained in Sec. 34 of the Act. I regret my inability to accept the aforesaid decision rendered in the case of Binod Kumar Shrivastava (supra) in view of the subsequent judgment of the Honourable Supreme Court in the case of Ramesh Mehta Vs. Sanwel Chand Singhvi and others, reported in, AIR 2004 SC 2258 in which Honourable Supreme Court had the occasion to consider the similar provision with reference to the Rajasthan Municipalities Act (38 of 1959), as amended in 1994 and the Hon'ble Supreme Court held that the expression whole number of member shall include only the elected members and not ex-officio members. In view of the aforesaid judgment of the Honourable Supreme Court motion of no confidence having been carried by a majority of 12 Commissioners out of 18 elected Commissioner is ⅔rd majority of the elected Commissioners and there is no illegality in the resolution dated 23.11.2004.