| Headnote |
Bihar Municipal Act, 2007: 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 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 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 u/s.21(3) - 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 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 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 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 after the 74th Amendment to the Constitution, the Municipalities 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 -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 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.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 Municipal Officer.ss.57 to 59 - Principle 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 u/ss.57 and 59 of the Act - s.57(1) clearly uses the phrase '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 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 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, 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. |
