# 5 S.C.R. 771 AFJAL IMAM v. STATE OF BIHAR AND ORS

- **Citation:** [2011] 5 S.C.R. 771
- **Court:** Supreme Court of India
- **Decided:** 2011-04-19
- **Case number:** Civil Appeal No. 2843 of 2011
- **Bench:** J.M. Panchal, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-771-afjal-imam-v-state-of-bihar-and-ors-27677
- **Pages:** 53

## Headnote

Bihar Municipal Act, 2007:
A
B
ss. 23, 27 - Election of new Mayor when the vacancy c
arises in the office of Mayor - Power of newly elected Mayor
to nominate members of Empowered Standing Committee of
the Municipal Corporation - Held: If a vote of no confidence
is passed against the Mayor and a new Mayor is elected in
his place, the members of the Empowered Standing D
Committee nominated by erstwhile Mayor shall have to
. vacate their seats and the new Mayor will have the authority
to nominate· his nominees on the Committee - If the new
Mayor is not allowed to nominate his nominees on the
Committee, it is likely to result into a situation of conflict - In
E
such situation, the new Mayor would be treated dissimilarly
with the earlier Mayor for no justifiable distinction - s.23(3)
does not say that the newly elected Mayor will not have the
powers of nominating the other members on the Committee
which is available to the Chief Councillor or Mayor uls.21(3)
F
- Thus, in fact, by stating that the nomination of the members
on the Committee is a one time act, the respondents are
adding words in s.21(3) - Thus, in a way, they are supplying
the words 'only by the first Chief Councillor and not by his
successors in office' in place of 'the Chief Councillor' after the
words 'shall be nominated' in s.21(3) of the Act - Such a G
reading and resultant situation will be contrary to the basic
principle of parliamentary democracy, viz. that those in office
ought to be representative of and responsible to the House -
If, however, s.27 is read as it is, without being read in line with
771
H
772
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A and subject to ss. 25(4), 23(3) and 21 (3) of the Act, the
councillors nominated by the earlier Mayor will continue on
the Committee - This straight reading of s.27 would lead to
an anomalous situation - Such interpretation would make
s.27 ultra-vires Article 14 of the Constitution and contrary to
B the powers of Mayor u/s.21(3) - Therefore, s.27 should be
read down harmoniously with ss.25(4), 23 (3) and 21(3) of the
Act thereby, holding that the nominated members shall also
automatically vacate their office when the Mayor nominating
them is no longer in the office - This would clearly show that
c after the 74th Amendment to the Constitution, the
Municipalities are given wide ranging powers - The Municipal
Laws in other states demonstrate that wherever Mayor-inCounci/ system is adopted, the tenure of the members in the
Council is made co-terminus with that of the Mayor -
0 Municipalities - Interpretation of statutes - Reading down a
section to save it from being ultra vires - Constitution of India,
1950 - Articles 14, 243W
s.22 - Concept of 'Executive Power' and Article 14 -
Held: The term 'Executive Power' has been specifically used
E in s. 22 and s. 57 specifically uses the term 'Municipal
Governance' - The executive function comprises both the
determination of the policy as well as carrying it into execution
- Administrative law - Constitution of India, 1950 - Article 14.
F
s.28(1) - Delegation of Powers - s.28(1) of the Act
provides for delegation of the powers and functions of the
Municipal Corporation to the Empowered Standing
Committee, and u/s. 28(2), the Committee may delegate its
powers and function to the Chief Councillor or to the Chief
G Municipal Officer.
H
ss.57 to 59 - Pnnciple of Collective responsibility- Held:
Empowered Standing Committee is expected to function on
the principle of collective responsibility - This element of
collective functioning is introduced in Municipal Governance
AFJAL IMAM v. STATE OF BIHAR AND ORS.
773
u/ss.57 and 59 of the Act - s.57(1) clearly uses the phrase
A
'Municipal Governance' -
Besides, questions about the
Municipal Administration can be asked to the Empowered
Standing Committee and any member of the Committee can
answer such questions - Apart from these provisions in the
Act, separate rules have been framed under s. 419 of the Act
B
read with ss.22 and 63 thereo

## Text

_Characters 0–39,309 of 96,519. This is a partial read: ask again with offset=39309 for what follows._

(2011] 5 S.C.R. 771
AFJAL IMAM
v.
STATE OF BIHAR AND ORS.
(Civil Appeal No. 2843 of 2011)
APRIL 19, 2011
(J.M. PANCHAL AND H.L. GOKHALE, JJ.]
Bihar Municipal Act, 2007:
A
B
ss. 23, 27 - Election of new Mayor when the vacancy c
arises in the office of Mayor - Power of newly elected Mayor
to nominate members of Empowered Standing Committee of
the Municipal Corporation - Held: If a vote of no confidence
is passed against the Mayor and a new Mayor is elected in
his place, the members of the Empowered Standing D
Committee nominated by erstwhile Mayor shall have to
. vacate their seats and the new Mayor will have the authority
to nominate· his nominees on the Committee - If the new
Mayor is not allowed to nominate his nominees on the
Committee, it is likely to result into a situation of conflict - In
E
such situation, the new Mayor would be treated dissimilarly
with the earlier Mayor for no justifiable distinction - s.23(3)
does not say that the newly elected Mayor will not have the
powers of nominating the other members on the Committee
which is available to the Chief Councillor or Mayor uls.21(3)
F
- Thus, in fact, by stating that the nomination of the members
on the Committee is a one time act, the respondents are
adding words in s.21(3) - Thus, in a way, they are supplying
the words 'only by the first Chief Councillor and not by his
successors in office' in place of 'the Chief Councillor' after the
words 'shall be nominated' in s.21(3) of the Act - Such a G
reading and resultant situation will be contrary to the basic
principle of parliamentary democracy, viz. that those in office
ought to be representative of and responsible to the House -
If, however, s.27 is read as it is, without being read in line with
771
H
772
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A and subject to ss. 25(4), 23(3) and 21 (3) of the Act, the
councillors nominated by the earlier Mayor will continue on
the Committee - This straight reading of s.27 would lead to
an anomalous situation - Such interpretation would make
s.27 ultra-vires Article 14 of the Constitution and contrary to
B the powers of Mayor u/s.21(3) - Therefore, s.27 should be
read down harmoniously with ss.25(4), 23 (3) and 21(3) of the
Act thereby, holding that the nominated members shall also
automatically vacate their office when the Mayor nominating
them is no longer in the office - This would clearly show that
c after the 74th Amendment to the Constitution, the
Municipalities are given wide ranging powers - The Municipal
Laws in other states demonstrate that wherever Mayor-inCounci/ system is adopted, the tenure of the members in the
Council is made co-terminus with that of the Mayor -
0 Municipalities - Interpretation of statutes - Reading down a
section to save it from being ultra vires - Constitution of India,
1950 - Articles 14, 243W
s.22 - Concept of 'Executive Power' and Article 14 -
Held: The term 'Executive Power' has been specifically used
E in s. 22 and s. 57 specifically uses the term 'Municipal
Governance' - The executive function comprises both the
determination of the policy as well as carrying it into execution
- Administrative law - Constitution of India, 1950 - Article 14.
F
s.28(1) - Delegation of Powers - s.28(1) of the Act
provides for delegation of the powers and functions of the
Municipal Corporation to the Empowered Standing
Committee, and u/s. 28(2), the Committee may delegate its
powers and function to the Chief Councillor or to the Chief
G Municipal Officer.
H
ss.57 to 59 - Pnnciple of Collective responsibility- Held:
Empowered Standing Committee is expected to function on
the principle of collective responsibility - This element of
collective functioning is introduced in Municipal Governance
AFJAL IMAM v. STATE OF BIHAR AND ORS.
773
u/ss.57 and 59 of the Act - s.57(1) clearly uses the phrase
A
'Municipal Governance' -
Besides, questions about the
Municipal Administration can be asked to the Empowered
Standing Committee and any member of the Committee can
answer such questions - Apart from these provisions in the
Act, separate rules have been framed under s. 419 of the Act
B
read with ss.22 and 63 thereof, to regulate the exercise of this
executive power under s. 22 of the Act - These rules are known
as Bihar Municipal Empowered Standing Committee Conduct
of Business Rules, 2010 - These rules make it clear that the
executive power vests in the Committee - Though the Mayor c
nominates the members of the Committee, the decisions of
the Committee are to be taken by majority, and the
Committee members. have to function on the basis of
collective responsibility -
Bihar Municipal Empowered
Standing Committee Conduct of Business Rules, 2010- rr.6,
D
7, 10.
Empowered Standing Committee - Powers and duties -
Discussed.
Interpretation of statutes:
Anomalous situation - Removal of anomaly - Held:
When on a construction of a statute, two views are possible,
one which results in an anomaly and the other not, it is our
duty to adopt the latter and not the former, seeking
consolation in the thought that the law bristles with anomalies.
Harmonious construction - Held: It is a cardinal principle
of construction of a statute that effort should be made in
construing its provisions by avoiding a conflict and adopting
a harmonious construction - Bihar Municipal Act, 2007.
The Bihar Municipal Act, 2007, like other Municipal
Acts, provided for the election of the Municipal
Councillors, the Mayor or Chief Councillor and the
E
F
G
H
774
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Deputy Mayor/Deputy Chief Councillor. It also provided
for an Empowered Standing Committee to exercise the
executive power of the Municipality. This Committee
consists of the Mayor, the Deputy Mayor and seven other
Councillors nominated by the Mayor/Chief Councillor
B under section 21 (3) of this Act. Section 27 of the Act
provides that the term of office of the Mayor/Chief
Councillor and the members of the Empowered Standing
Committee shall be co-terminous with the duration of
members of the Municipality. The Act provides for the
c removal of the Mayor/Chief Councillor and the Deputy
Mayor/Deputy Chief Councillor under section 25(4) of the
Act by a vote of no confidence, which can be moved only
after two years from taking over of the charge of the post.
Section 23(3) of the Act provides for the election of a new
0 Mayor/Chief Councillor when a vacancy arises in the
office of Mayor/Chief Councillor on account of death,
resignation, removal or otherwise. There is, however, no
specific provision for the removal of the members of the
Empowered Standing Committee appointed by the earlier
Mayor or for nomination of new members on the
E Committee in their place by the newly elected Mayor/
Chief Councillor, thereby leading to an anomalous
situation, namely that the Municipal Council will have a
new Mayor/Chief Councillor having the confidence of the
house, but the members on the Committee nominated by
F the previous Mayor/Chief Councillor who has lost the
confidence of the house will continue to remain on the
Committee.
The question which arose for consideration in the
G instant appeal was whether the members of the
Empowered Standing Committee nominated by a Mayor/
Chief Councillor continue in their office or vacate it by
implication, when a vacancy arises in the· post of a
Mayo.r/Chief Councillor either on account of death,
H
AFJAL IMAM v. STATE OF BIHAR AND ORS.
775
resignation, removal or otherwise, and when a new
A
Mayor/Chief Councillor is elected in that vacancy. The
consequential question was whether section 27 of the
Bihar Municipal Act, 2007 should be read as it is and
without reference to other connected sections, meaning
thereby whether the members of the Empowered
Standing Committee would continue to hold office (for the
entire period of the municipal bodyf even if the nominator
Mayor/Chief Councillor is no longer iri the office or,
whether such a reading of section 27 would tr'e~t a newly
elected Mayor dissimilarly, and, therefore, whether· c
section 27 of the Act is ultra vires the Constitution of India
and in that event, can it be saved by reading it down
harmoniously by implication in line with and subject to
sections 25(4), 23(3) and 21(3) of the Act, thereby holding·
that the term of nominated members shall be co0
terminous with the nominating Mayor, and they would
automatically vacate their office when the Mayor
nominating them is no longer in the office, and that the
newly elected Mayor/Chief Councillor wo4ld have the
authority to nominate seven members of his choice on
B
E
the Empowered Standing Committee.
· Partly allowing the appeal, the Court
HELD: 1. By virtue of Section 22 of the Bihar
Municipal Act, 2007, the Executive power of the
F
Municipality is to be exercised by the Empowered
Standing Committee, and in the case of a Municipal
Corporation, their committee consists of the Mayor, the .
Deputy Mayor and seven other Councillors under section
21 (2)(a) of the Act. These seven members are to be
G
nominated under section 21 (3) of the Act by the Mayor
or the Chief Councillor from amongst the Councillors.
[Para 13] [794-D-E]
'
'
2. Delegation of Powers: Section 28. (1) of the A~t
H
776
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A provides for delegation of the powers and functions of
the Municipal Corporation to the Empowered Standing
Committee, and under section 28(2), the Empowered
Standing Committee may delegate its powers and
function to the Chief Councillor or to the Chief Municipal
B Officer. [Para 15) [795-B-C]
3. Collective responsibility:
The Empowered
Standing Committee is expected to function on the
principle of collective responsibility. This element of
C collective functioning is introduced in Municipal
Governance under sections 57 and 59 of the Act. Under
section 57(1 ), a Councillor may, subject to the provisions
of sub-section (2), ask the Empowered Standing
Committee, questions on any matter relating to the
administration of the Municipality or municipal
D governance. Sub-section (2) of this section lays down the
conditions subject to which this right to ask the question
is to be exercised. Section 57(1) clearly uses the phrase
'Municipal Governance.' Besides, questions about the
Municipal Administration can be asked to the Empowered
E Standing Committee and any member of the Empowered
Standing Committee can answer such questions. Apart
from these provisions in the Act, separate rules have been
framed under Section 419 of the Act read with Sections
22 and 63 thereof, to regulate the exercise of this
F executive power under Section 22 of the Act. These rules
are known as Bihar Municipal Empowered Standing
Committee Conduct of Business Rules, 2010. Rule 6 of
these rules provides for the quorum of the meeting of the
committee, Rule 7 provides for the notice for the meeting,
G and the items to be taken up for consideration, and it
specifically lays down that except with the assent of the
majority of members present, no business other than
those included in the list shall be transacted in the
meeting. Rule 1 O speaks about the executive power of the
H
AFJAL IMAM v. STATE OF BIHAR AND ORS.
777
Empowered Standing Committee. These rules make it A
clear that the executive power vests in the Empowered
Standing Committee. Though the Mayor nominates the
members of the Empowered Standing Committee, the
decisions of the Empowered Standing Committee are to
be taken by majority, and the committee members have
B
to function on the basis of collective responsibility. [Paras
16, 17] [797-C-H; 798-A-H; 800-0-E]
Jagdish Singh v. State of Bihar 2009 (2) PLJR 394;
Jitendra Kumar Verma v. State of Bihar 2010 (3) PLJR 285
C
- overruled.
Sagufta Parween v. State of Bihar 2010 (2) PLJR 1072;
State of Jharkhand and Anr. v. Govind Singh 2005 (10) SCC
437=2004 (6) Suppl. SCR 651; Union of India and Another
v. Shardindu 2007 (6) SCC 276=2007 (6) SCR 1039 ;
D
Satheedevi v. Prasanna and Anr. 2010 (5) SCC 622 = 2010
(6) SCR 657 -:- referred to.
4. The Municipalities are expected to render wideranging functions. They are now enumerated in the
E
Constitution. Article 243W lays down the powers of the
Municipalities to perform the functions that are listed in
Twelfth Schedule. [Para 25] [806-E-F]
5. The scheme of the Bihar Municipal Act, 2007: The
Act is a detailed Act running into 488 sections which are
F
divided into VIII parts and 44 chapters and they govern
all the aspects of Municipal Governance and
Administration. Part I contains the preliminary provisions.
Part II deals with the Constitution of the Government of
the Municipal Bodies. Part Ill deals with the Financial
G
Management of Municipalities. Part IV is on the Municipal
Revenue. Part V is on the Urban Environmental
Infrastructure and Services. Part VI deals with Urban
Environmental Management, Community Health and
Public Safety. Part VII deals with the Regulatory
H
778
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Jurisdiction, and contains chapters on Development
Plans, Improvement, Public Streets, Buildings, Municipal
Licences, Vital Statistics, Disaster Management and
Industrial Townships. Lastly Part VIII deals with the
Powers, Procedures, Offences and Penalties. Thus, the
B Bihar Municipal Act is quite a comprehensive Act, and the
executive powers of the Municipality are vested in the
Empowered Standing Committee under section 22 of the
Act. The members of this Empowered Standing
Committee are nominated by the Mayor. After a Mayor is
c removed, and another Mayor is elected in his place, if the
new Mayor is not allowed to nominate his nominees on
the Empowered Standing Committee, it is likely to result
into a situation of conflict. This is apart from the fact that
the new Mayor will be treated dissimilarly with the earlier
0 Mayor, although both of them are elected by the same full
House and there is no justifiable reason for making any
distinction. The fact that a councillor is elected as the
Mayor immediately after the general election to the
Municipality, and he nominates seven councillors on the
Empowered Standing Committee, cannot make this act
E of nomination as a one time act, nor does the enactment
say so. After a Mayor is removed under section 25(4) .of
the Act, a n~w Mayor is to be elected under section 23(3)
of the Act. This section does not say that the newly
elected Mayor will not have the powers of nominating the
F other members on the Empowered Standing Committee
which is available to the Chief Councillor or Mayor under
section 21(3) of the Act. Thus, in fact, by stating that the
nomination of the members on the Empowered Standing
Committee is a one time act, the respondents are adding
G words in section 21(3) of the Act. Thus, in a way, they are
supplying in section 21(3) the words 'only by the first
Chief Councillor and not by his successors in office' in
place of 'the Chief Councillor' after the words 'shall be
nominated' in section 21(3) of the Act. Such a reading and
H
AFJAL IMAM v. STATE OF BIHAR AND ORS.
779
resultant situation will be contrary to the basic principle
A
of parliamentary democracy, viz. that those in office
ought to be representative of and responsible 'to the
House. Therefore, if the house has lost confidence in the
earlier Mayor, it is all the more necessary that the
members of the Empowered Standing Committee should
B
be made to step down alongwith him and a newly elected
Mayor be permitted to have his nominees on the
Empowered Standing Committee. [Paras 26, 27) (808-FH; 809-A~H; 810-A-H; 811-B-C)
6. The concept of Executive Power and Article 14:
C
The term executive power has been specifically used in
section 22 of the Act and section 57 specifically uses the
term Municipal Governance. The executive function
comprises both the determination of the policy as well as
carrying it into execution. The executive power of the
D
Empowered Standing Committee, the newly elected
Mayor will not be able to exercise the same effectively and
the entire municipal governance will come in jeopardy, if
the other members on the Committee are not his
nominees. ·Apart from the said resultant administrative
E
difficulty, if a literal interpretation of section 27 is followed
alongwith adding words in section 21 (3) as pointed out,
the newly elected Mayor will be treated dissimilarly for no
justifiable distinction. In that case, as against the earlier
elected Mayor he will not permitted to have his nominees
F
on the Empowered Standing Committee. A literal
interpretation of section 27 of the Act will clearly bring it
in conflict with section 21 (3) of the Act, and will also be
violative of Article 14 of the Constitution of India. (Paras
28, 29) (811-D-H; 812-A-D]
G
Rai Sahib Ram Jawaya Kapur & Ors. v. The State of
Punjab AIR 1955 SC 549 = 1955 SCR 225; State of West
Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 = 1952 SCR
284 - referred to.
H
780
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
7.1. Removal of anomaly. When on a construction of
a statute, two views are possible, one which results in an
anomaly and the other not, it is duty of court to adopt the
latter and not the former, seeking consolation in the
thought that the law bristles with anomalies. [Para 31)
B (815-B; G-H; 816-A]
N. T. Veluswami Thevar v. G. Raja Nainar AIR 1959 SC
422 = 1959 Suppl. SCR 623 - relied on.
7.2. Making cross-reference to sections to read them
C harmoniously. One of the methods adopted in such
situations is to make cross-reference to the relevant
sections to read them harmoniously. [Para 33) [816-E-G]
Ramkissendas Dhanuka v. Satyacharan Lal AIR 1950
o PC 81- relied on.
7.3. Reading down a section to save it from being
ultra vires. The intention of the legislature as seen from
the provisions of the Act and the Rules is to have a
'Mayor-in-Council' who enjoys the confidence of the
E Municipal House. The Empowered Standing Committee
along with him is vested with the executive power and is
expected to run the municipal governance. There is no
reason to treat the subsequently elected Mayor
differently, and deny him the right to nominate his
F nominees on the Empowered Standing Committee which
right is available to the duly elected Mayor under section
21 (3) of the Act. Except for the fact that the person who
is elected as the Mayor after the no confidence motion is
passed against the first Mayor, is elected subsequent to
G the first Mayor, there is no ground to classify the
subsequent Mayor differently from the first Mayor. The
view canvassed by the respondents would lead to a
conflict between the newly elected Mayor and the other
members of the Empowered Standing Committee if they
H are not nominated by him. That was surely not the
AFJAL IMAM v. STATE OF BIHAR AND ORS.
781
intention of the legislature. Considering the powers
A
which are available to the Empowered Standing
Committee, if the newly elected Mayor is not read a.s
having the power to nominate his nominees on the
Empowered Standing Committee, he will be treated
dissimilarly and such an interpretation will make section
B
27 violative of Article 14 of the Constitution and contrary
to the powers of the Mayor under section 21(3) of the Act.
The only way, therefore, to save section 27 is to read it
down by implication, and to make it subject to sections
25(4), 23 (3) and 21 (3) of the Act, thereby, holding that the c
nominated members shall also automatically vacate their
office when the Mayor nominating them is no longer in
the office. Thus, the newly elected Mayor will also have
the authority to nominate seven members of his choice
on the Empowered Standing Committee. This would
0
clearly show that after the 74th Amendment to the
Constitution, the Municipalities are strengthened and they
are given wide ranging powers. The Municipal Laws in
other States demonstrate that wherever Mayor-in-Council
system is adopted, the tenure of the members in the
Council is made co-terminus with that of the Mayor. The
E
idea is that the Mayor should have the confidence of the
Executive Council or the Empowered Standing
Committee, as the case may be, apart from that of the
House. The members of the Empowered Standing
Committee are authorized to answer the questions on
behalf of the Empowered Standing Committee under the
Bihar Municipal Act. Thus, there is an element of
collective responsibility. The Empowered Standing
Committee is supposed to function on the basis of the
principle of Democratic Governance in the sense that the
G
decisions are to be taken by the majority. If the new Mayor
F
is not permitted to have his nominees on the Empowered
Standing ·committee, the collective functioning will be
under jeopardy. Thus, there is a clear omission in the
H
782
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Bihar Municipal Act, 2007 in this behalf. The interpretation
sought to be placed on section 27 by the respondents
requirf:1S addition of words in section 21(3) of the Act.
Even after adding the necessary words, the result will be
incongruous to a democratic functioning in as much as
B the nomination on the Empowered Standing Committee
will be a one time act and the newly elected Mayor will
be at the mercy of the other members of the Empowered
Standing Committee. Such a reading will be also be·
contrary to section 21 of the Act and the newly elected
c Mayor .will be treated dissimilarly as against the earlier
elected Mayor for no justifiable reason. Thereby section
27 will be ultra vires to Article 14 of the Constitution. The
legislature cannot be attributed such an intent. On the
other hand, reading section 27 by making a crossD reference and making the same subject to sections 25 (4),
23 (3), 21 (3) and 21 (4) will lead to a harmonious
functioning of the Municipal Corporation and will also
save the section from being ultra vires Article 14. The
judgment of the Divis.ion Bench of the Patna High Court
E in Jagdish Singh V. State of Bihar and that of the full
bench of that Court in Jitendra Kumar V. State of Bihar
do not lay down the correct legal position and are
overruled. Impugned judgment and order passed by the
Division Bench of the High Court is set aside. The said
writ petition filed by the appellant herein stands allowed
F in part. Section 27 of the Bihar Municipal Act 2007, shall
be read down harmoniously with and subject to sections
25(4), 23(3), 21 (3) and 21 (4) of the Act. The respondent
no.3, the District Magistrate, Patna, Bihar is consequently
directed to administer the oath of secrecy under Section
G 24 of the Act to the seven Municipal Councillors
nominated by the appellant to the Empowered Standing
Committee. The appellant as well as the members of the
Empowered Standing Committee shall be entitled to
exercise all the powers as the Mayor and the members
H of the Empowered Standing Committee as provided in
AFJAL IMAM v. STATE OF BIHAR AND ORS:
783
the Bihar Municipal Act, 2007, in accordance with law.
A
[Paras 35, 37-39] [819-C-H; 820-A-C; 821-E-H; 822-A-H;
823-A-B]
"
'
'·
Durgesh Sharma v. Jayshree 2008 (9) SCC 648 = 2008
(13) SCR 1056; 20th Century Finance Corpn. •Ltd. v. State
B
of Maharashtra 2000 (6) SCC 12 = 2000 (1) Suppl. SCR 120
- relied on.
Reserve Bank of India v. Peerless Corp. 1987 (1) SCC.
424=1987 (2) SCR 1 ; Union of India v. Filip Tiago De Gama,
1990 (1) SCC 277= 1989 (2) Suppl. SCR 336; Anwar c
Hasan Khan v. Mohd. Shafi and others 2001 (8) SCC 540;
S. V. Kondeakar v. V.M. Deshpande AIR 1972 SC 878 = 1972
(2) SCR 965, referred to.
Case Law Reference:
D
2009 (2) PLJR 394
overruled
Paras 7, 38
2010 (2) PLJR 1072
referred to Para 8
2010 (3) PLJR 285
overruled
Paras 9, 38
E
2004 (6) Suppl. SCR 651 referred to Para 22
2007 (6) SCR 1039
referred to Para 23
2010 (6) SCR 657
referred to Para 24
1955 SCR 225
referred to Para 28
F
1952 SCR 284
referred to Para 29
1987 (2) SCR 1
referred to Para 30
1989 (2) Suppl. SCR 336 referred to Para 30
G
2001 (8) sec 540
referred to Para 30
1959 Suppl. SCR 623
relied on
Para 31
1972 (2) SCR 965
referred to Para 32
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784
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SUPREME COURT REPORTS
[2011) 5 S.C.R.
AIR 1950 PC 81
2008 (13) SCR 1056
relied on
Para 33
relied on
Para 34
2000 (1) Suppl. SCR 120 relied on
Para 36
B
CIVIL APPEAL JURISDICTION : Civil Appeal No. 2843 of
2011.
.
From the Judgment and Order dated 08.07.2010 of the
High Court of Judicature at Patna in CWJC No. 9981 of 2010.
c
S.B.K. Mangalam, Rajesh Anand, Ashutosh Pande,
Madhumita Singh and Abhay Kumar for the Appellant.
Santosh Mishra, Gopal Singh, Manish Kumar, Chandan
Kumar, Santosh Kumar Tripathi and Neeraj Shekhar for the
D Respondents.
The Judgment of the Court was delivered by
GOKHALE J. 1. Leave granted.
By the order passed by us on April 1, 2011, we had
E allowed this appeal. We had, further, observed that we will
indicate our reasons by a separate judgment. We do so herein.
2. The Bihar Municipal Act, 2007, like other Municipal Acts,
provides for the election of the Municipal Councillors, the Mayor
F or Chief Councillor and the Deputy Mayor/Deputy Chief
Councillor. It also provides for an Empowered Standing
Committee to exercise the executive power of the Municipality.
This committee is supposed to consist of the Mayor, the Deputy
Mayor and seven other Councillors nominated by the Mayor/
G Chief Councillor under section 21 (3) of this Act. Section 27 of
this Act provides that the term of office of the Mayor/Chief
Councillor and the members of the Empowered Standing
Committee shall be co-terminous with the duration of members
of the Municipality. The Act provides for the removal of the
H
AFJAL IMAM v. STATE OF BIHAR AND ORS.
785
[H.L. GOKHALE, J.]
Mayor/Chief Councillor and the Deputy Mayor/Deputy Chief
A
Councillor under section 25 (4) of the Act by a vote of no
confidence, which can be moved only after two years from
taking over of the charge of the post. Section 23 (3) of the Act
provides for the election of a new Mayor/Chief Councillor when
a vacancy arises in the office of Mayor/Chief Councillor on
account of death, resignatiop, removal or otherwise. There is,
however, no specific provision for the removal of the members
B
of the Empowered Standing Committee appointed by the
earlier Mayor or for nomination of new members on the
Committee in their place by the newly elected Mayor/Chief c
Councillor, thereby leading to an anomalous situation, namely
that the Municipal Council will have a new Mayor/Chief
Councillor having the confidence of the house, but the members
on the .Committee nominated by the previous Mayor/Chief
Councillor who has lost the confidence of the house will continue
0
to remain on the committee.
3. Questions of Law arising in this appeal
A question, therefore, arises as to whether the members
of the Empowered Standing Committee nominated by a Mayor/
E
Chief Councillor continue in their office or vacate it by
implication, when a vacancy arises in the post of a Mayor/Chief
Councillor either on account of death, resignation, removal or
otherwise, and when a new Mayor/Chief Councillor is elected
in that vacancy. This appeal raises the consequential question
F
as to whether section 27 of the Act should be read as it is and ·
without reference to other connected sections, meaning thereby
whether the members of the Empowered Standing Committee
will continue to hold office (for the entire period of the municipal
body) even if the nominator Mayor/Chief Councillor is no longer
G
in the office? Or, whether such a reading of section 27 treats a
newly elected Mayor dissimilarly, and therefore, whether section
27 of the Act is ultra vires the Constitution of India? In that event,
can it be saved by reading it down harmoniously by implication
in line with and subject to sections 25 (4), 23 (3) and 21 (3) of
H
786
SUPREME COURT REPORTS
(2011] 5 S.C.R.
A the Act, thereby holding that the term of nominated members
shall be co-terminous with the nominating Mayor, and they will
automatically vacate their office when the Mayor nominating
them is no longer in the office, and that the newly elected
Mayor/Chief Councillor will have the authority to nominate seven
B members of his choice on the Empowered Standing
Committee?
. 4. Facts leading to this appeal:-
The Election to the Patna Municipal Corporation was held
C sometime in May/June, 2007. The Municipal Corporation has
72 members. After the election of the Municipal Corporation,
the councillors elected one Shri Sanjay Kumar as the Mayor
and one Shri Santosh Mehta as the Deputy Mayor. Two years
later, no confidence motions were moved against both of them
D on 13.6.2009, and were passed on 14.7.2009. As far as the
motion against the Mayor is concerned, we are informed that
42 members voted in favour thereof and 28 opposed it. One
member is reported to have remained absent being in jail, and
one had died.
E
5. The above referred Sanjay Kumar challenged the
decision on the no confidence motion by filing a Writ Petition
bearing No. 8603 of 2009. A Learned Single Judge of the
Patna High Court who heard the petition, initially granted a stay
on the fresh election being held to fill the vacancy in the post of.
F Mayor arising out of the no confidence motion. Ultimately the
petition was allowed. That decision was challenged in an
appeal to the Division Bench of the Patna High Court, and the
Division Bench set aside that order by its judgment dated
14.5.2010. Shri Sanjay Kumar challenged the decision of the
G Division ·Bench by filing Special Leave Petition No. 16578/
2010. A prayer was made to this Court that the election to fiil
the vacancy should not be permitted. This Court did not grant
that prayer, but vide its order dated 31.5.2010 directed that the
subsequent election Will be subject to the decision on this SLP.
H (It is relevant to place it on record at this stage that this Writ
AFJAL IMAM v. STATE OF BIHAR AND ORS.
787
[H.L. GOKHALE, J.)
Petition came to be dismissed by this bench by its separate
A
order passed on 3.2.2011).
6. In view of the order passed by this Court on 31.5.2010,
a notice was given on'3.6.2010, and a meeting was accordingly
convened on 14.7.2010 wherein the appellant was elected·as
8
the Mayor of the Municipal Corporation, We are informed that
the he obtained 44 votes and Shri Sanjay Kumar 18 votes, a
third candidate 9 votes and 1 vote was rejected. The appellant.
was given the oath of his office on the saine day .. On his
election, he nominated 7 councillors to be the members of the
C
Empowered Standing Committee of the Municipal Corporation
as per the provision of section 21 (3) of the Bihar Municipal
Act. He requested the District Magistrate (D.M.) of Patna to
give them oath of secrecy as per section 21 (4) read with
section 24 of the Act, but the D.M. declined to do so, in view
of the decision of a Full Bench of the Patna High Court dated
D
11.5.2010 in LPA No.618 of 2010 holding that such nomination
by the Mayor is only a one time Act. In that decision, the Full
Bench had upleld the Govt. Memo No.6020 dated 12.12.2009
to the effect that notwithstanding change of Mayor/Chief
Cou11cillor, the Empowered Standing Committee as nominated
E
earlier shall continue.
7. The facts leading to the decision of the Full
Bench:-
·
A similar problem had arisen in another Municipal
F,
·Corporation of Bihar, viz. Ara Municipal Corporation. One
Jagdish Singh who was elected as a councillor of Ara Municipal
Corporation, filed a Writ Petition bearing CWJC NO. 9380 of
2008 to challenge the constitutional validity of the above
referred section 27, on the ground that although there was a
G
provision for the removal of the Chief Councillor (or Mayor) in
section 25 of the Act, there was no similar provision for removal . ·
of the members of the Empowered Standing Committee. Once
the councillors were nominated to the Empowered Standing
Committee, they continued to be members of that committee : . H
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SUPREME COURT REPORTS
[2011] 5 S.C.R.
A so long as they remained councillors. There was a lack of any
provision for removal of members of the Empowered Standing
Committee, and the members of such committee had been
given unguided and unbridled power. The Division Bench
negated that contention by holding that a member of the
9
Municipal Council, if he is nominated as a member of the
Empowered Standing Committee, can either be recalled under
section 17 of the Act, or if he incurs disqualification for holding
the post as a member, and an order of removal for such
disqualification is passed under section 18 (2), his membership
c of the Empowered Standing Committee ipso facto comes to
an end. The bench, therefore observed:-
D
"ln this view of the matter, even if there was no specific
provision for removal of the members of the Empowered
Standing Committee, there is enough mechanism under
the Act, 2007 that cessation of membership to the
municipality automatically brings to an end the membership
of the Empowered Standing Committee".
The High Court therefore repelled the challenge to the
E constitutionality of Section 27 of the Act. This Division Bench
rendered its decision on 14.11.2008 which is reported in 2009
(2) PLJR at page 394 in the case of Jagdish Singh v. State of
Bihar.
8. It so transpired that in another Municipal Corporation,
F namely Gaya Municipal Corporation, the Mayor of the Municipal
Corporation expired, and one Sagufta Parween was elected
as a new Mayor in that vacancy. She wanted to nominate her
nominees on the Empowered Standing Committee, but was not
allowed to do so in view of the above referred Government
G Direction in Memo No. 6020 dated 18.12.2009, to the effect
that notwithstanding the change of Mayor or Chief Councillor,
the Empowered Standing Committee of the Municipal
Corporation, as nominated earlier, would continue. Meaning
thereby, that the Mayor/Chief Councillor newly elected would not
H have the power to nominate members of the Empowered
AF JAL IMAM v. STATE OF BIHAR AND 'ORS.
· 7'89
[H.L. GOKHALE, J.]
Standing Committee of the Corporation in terms of section 21
A
(3) of the Municipal Act. Smt. Sagufta Parween challenged that
Government Direction by filing CW JC No. 1067 of 201 O which
was heard by a Single Judge, who held that the aforesaid
Government Direction was contrary to the statutory provisions
and the statutory scheme. The Learned Single Judge therefore,
B
c;illowed the Writ Petition and directed that the necessary
consequences will according.ly follow. This Judgment :of the
Learned Single Judge dated 23.2.2010 is' reported in 2010 (2)
PLJR at page 1072.
'
9. Being aggrieved by this judgment of the Singl~ Judge, . C
one Jitendra ·Kumar Verma and others filed LPA 'No. 618 of
. 2010. When this LPA came up before a Division Bench, it took
· note of the above referred· Division Bench decision· rendered
in Jagdis/J Singh vs. The State of Bihar & Ors. (Supra), and
thought it appropriate that the matter should be heard by a
D
larger Bench. That LPA, therefore, came to be decided by a
Full Bench. The Full Bench in its decision dated 11.5.2010
followed· the decision of the Division Bench in the case of
Jagdish Singh (Supra), and held in paragraph 19 of its
judgment reported·in 2010 (3) PLJR 285 that the appointment
E
of the members of the Empowered Standing Committee was
a one time act. The full bench therefore allowed the appeal and
set aside the order passed by the learned Single Judge.
10. On this background, after the appellant in the present
F
appeal was elected as the Mayor of Patna, he nominated his
nominees on the Empowered Standing Committee. However,
the D.M., Patna declined to administer the oath of office to
them. The appellant therefore filed Writ Petition bearing No.
9981 of 2010 for a declaration that section 27 of the Act is ultra
G
vires to the provisions of the Constituti~ of India and to section
21 of the Act, and alternatively to read do.wn section ?7 of the
act. The appellant also prayed for a Writ of Mandamus
commanding the respondent D.M., Patna to administer oath of
office to those nominees. The Division Bench which decided
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790
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A the petition, noted in its order that the petition had sought to
challenge the constitutional validity of section 27 of the Bihar
Municipal Act, 2007 for being contrary to section 21 of that Act.
It, however, noted that the matters at issue were squarely
covered by the decision of the Full Bench in Jitendra Kumar
B
Vs. State of Bihar (Supra). The bench, therefore, passed an
order dated 8.7.2010 that for the reasons recorded by the Full
Bench, this petition was dismissed in limine. This order is being
challenged in this Appeal by Special Leave wherein the issues
which are mentioned at the outset of this judgment have been
c raised for our consideration.
11. We have heard the learned counsel for the appellant
as well as the counsel for the State of Bihar, Patna Municipal
Corporation and the counsel for the intervening members of the
Empowered Standing Committee who would be unseated if this
D appeal was to be allowed. We have also gone through the
written submissions presented by them.
E
F
G
H
12. The relevant Sections of the Bihar Municipal Act,
2007
In this appeal we are concerned with the interrelation
amongst sections 21, 23, 25 and 27 of the Act. The sections
of the Bihar Municipal Act relevant for our purposes are as
follows:-
"2. Definition:-
(36) "Empowered Standing Committee" means the
Empowered Standing Committee referred to in Section 21.
Section 21. Constitution of Empowered Standing
Committee of Municipality. (1) In every Municipality there
shall be an Empowered Standing Committee.
(2) The Empowered Standing Committee shall consist of-
(a) in the case of a Municipal Corporation, the
AFJAL IMAM v. STATE OF BIHAR AND ORS.
791
[H.L. GOKHALE, J.]
Mayor, the Deputy Mayor, and seven other A
Councillors;
(b) in the case of a Class 'A' or Class 'B' Municipal
Council, the Municipal Chairperson, the Municipal
Vice Chairperson, and five other Councillors;
(c) in the case of a Class 'C' Municipal Council, the
Municipal Chairperson, the Municipal ViceChairperson, and three other Councillors; and
B
(d) in the case of a Nagar Panchayat, the Municipal c
President, the Municipal Vice-President, and three
other Councillors.
(3) The other members of the Empowered Standing
Committee shall be nominated by the Chief Councillor from
D
among the Councillors elected under sub section (1) of
section 12 within a period of seven days of his entering
office.
(4) The other members of the Empowered Standing
Committee shall assume charge after taking the oath of
E
secrecy under section 24.
(5) The Chief Councillor shall be the presiding officer of
the Empowered Standing Committee.
(6) The manner of transaction of business of the
F
Empowered Standing Committee shall be such as may be
prescribed.
(7) The Empowered Standing Committee shall be
collectively responsible to the Municipal Corporation or the
G
Municipal Council or the Nagar Panchayat, as the case
may be.
Section 22. Executive power of Municipality to be
exercised by Empowered Standing Committee. -
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SUPREME COURT REPORTS
[2011] 5 S.C.R.
Subject to the provisions of this Act and the rules and the
regulations made there under, the executive power of a
Municipality shall be exercised by the Empowered
Standing Committee .
.
Section 23. Election of Chief Councillor and Deputy
Chief Councillor. - (1) The Councillors shall, in the first
meeting under section 35,.