Devkant Prasad vs The State Of Bihar
2023 Latest Caselaw 5019 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7363 of 2022
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Devkant Prasad Son of Late Sugriv Prasad Resident of Chak Hussain, Ward No.8, P.O. and P.S.- Khusrupur, Patna- 803202.

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Department of Urban Development and Housing, Government of Bihar, Patna.

2. The Under Secretary, Department of Urban Development and Housing, Government of Bihar, Patna.

3. The Secretary, Department of Law, Government of Bihar, Patna.

4. The District Magistrate, Patna.

5. Nagar Panchayat, Khusrupur, District- Patna through its Executive Officer.

6. The State Election Commission, Bihar, 3rd Floor, Sone Bhawan, Daroga Rai Path, R- Block Chauraha, Bir Chand Patel Path, Patna through the State Election Commissioner, Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Shivam, Advocate For the Respondent/s : Mr. Pawan Kumar, AC to AG ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 03-10-2023

The writ petition is filed challenging Rule 97 of

the Bihar Municipal Election Rules, 2007, as amended by

the Bihar Municipal Election (Amendment) Rules 2022, to

be ultra vires Section 23 of the Bihar Municipal Act, 2007

as amended by the Bihar Municipal (Amendment) Act,

2022.

2. The amendments in the Act and the Rules, Patna High Court CWJC No.7363 of 2022 dt.03-10-2023

challenged herein are with reference to the election of the

Chief Councillor and Deputy Chief Councillor in the

municipalities and the filling up of casual vacancies. Prior

to the amendment, the Chief Councillor and the Deputy

Chief Councillor were elected from among the Councillors.

On any casual vacancy arising in either of the said two

posts; by reason of death, resignation, removal or otherwise,

as per the procedure prescribed, election of one of the

Councillors has to be conducted, who would continue in

office for the unexpired term of his predecessor. The Rules

provided for the casual vacancy to be filled up as per the

procedure prescribed in Rules 93 to 96.

3. By amendment Act of 2022, a system of

direct election of Chief Councillor and the Deputy Chief

Councillor by the voters enrolled in the municipality

themselves, was brought in. Such election was also to be

done under the control and supervision of the State Election

Commission, which was the amended Section 23(1).

4. Section 23(2) again permitted the casual

vacancies in the office of the Chief Councillor and the

Deputy Chief Councillor caused by death, resignation, Patna High Court CWJC No.7363 of 2022 dt.03-10-2023

removal or otherwise to be held by such procedure as may

be prescribed.

5. The prescription under the Rule was as

follows:-

"In case of an indirectly elected Chief Councillor and Deputy Chief Councillor to fill a casual vacancy in a Municipality, the procedure prescribed in Rules 93 to 96 shall apply".

6. Hence, when a casual vacancy arises the

prescription was that there should be an election from the

existing Councillors and the elected person would continue

for the balance of the term.

7. The contention of the petitioner is that when

direct elections are prescribed under sub-section (1) there

cannot be an indirect election to fill up the casual vacancy

and the Rule is ultra vires. By sub-section (1) of Section 23

the Act provides for a direct election by the voters of the

municipality to the post of Chief Councillor and the Deputy

Chief Councillor. Any casual vacancy arising in the said

post is to be filled up as prescribed. The prescription now, is Patna High Court CWJC No.7363 of 2022 dt.03-10-2023

taht when a casual vacancy arises, the election will be an

indirect one from the Councillors themselves. Sub-sections

(1) and (2) of Section 23 are in different aspects, one on the

filling up of the vacancy when it arises on the term of the

elected Councillors end. This has to be through election by

the voters. However, when a casual vacancy arises, it can be

as prescribed; which prescription is of an indirect election.

We find the amendment in the rules to be perfectly valid;

brought about only to fill up casual vacancies.

8 . We find absolutely no reason to entertain the

writ petition and dismiss the same.

(K. Vinod Chandran, CJ)

( Rajiv Roy, J) aditya/-

AFR/NAFR
CAV DATE
Uploading Date          06.10.2023.
Transmission Date