The doctrine of waiver applied, and the erstwhile Chief Councillor could not continue after losing in the election.

Dipak Misra, J.

1. Regard being had to the commonality of the con-,-- troversy in both the appeals, they have been heard analogously and are being disposed of by a singular order.

2. Be it noted, L.P.A. 525 of 2010 has been preferred by Sanjay Kumar Mahajan, the 12th respondent in C.W.J.C.

"No. 7540 of 2009 which was preferred by Jai Muni Devi who was the Chief Councillor of Sitamarhi Nagar Parishad. L.P.A. No. 670 of 2010 has been preferred by Md. Jalaluddin Khan.who has preferred the appeal after obtaining grant of leave, on the foundation that he is the elected Chief Councillor of Sitamarhi Municipality after the election was held when the post of Chief Councillor, which was occupied by Jai Muni Devi, fell vacant because of vote of no confidence motion mooted against her became successful.

3. The factual matrix lies in a narrow compass. Jai Muni Devi was elected as a Councillor of Sitamarhi Municipality after contesting the election under Bihar Municipal Act, 2007 (for brevity the Act). The elected Councillors elected Jai Muni Devi as Chief Councillor. The vote of no confidence motion was mooted under Section 25 of the Act and the same was put to vote on 18.7.2009. On that date on the basis of vote cast the Chief Councillor was removed frona post. Because of removal, the post was treated to be vacant and accordingly the State Election Commissioner took steps to hold the election on 4.8.2009 to fill up the post.

4. It is apposite to note that Jai Muni Devi has challenged the manner in which the vote of no confidence motion was mooted and finalized, in C.W.J.C. No. 7540 of 2009. While the matter was sub judice, she participated in the election but lost the same and Md. Jalaluddin Khan was elected as the Chief Councillor.

5. Learned Single Judge took note of the fact that the meeting was called and in the said meeting the writ petitioner, Jai Muni Devi was removed on the basis of Circular No. 62 dated 22.6.2009. Reliance has been placed upon the case of Pawan Kumar Purvey and Others vs. The State or Bihar and Others, 2010(1) P.L.J.R. 272 wherein it has been held that circulars have no authority of law and, therefore, the action taken therein is invalid. Because of the said view he annulled the no confidence motion and allowed the writ petition and observed that replacement of no confidence motion could not be an impediment for bringing up a fresh no confidence motion under the provisions of the Act and Rules framed in 2010 which has been promulgated by the State Government.

6. At this juncture it is seemly to state that Jalaluddin Khan was elected in the resultant election because of the vacancy caused. He had thought to challenge the order of the learned Single Judge as he was apprehensive that his right would be affected and on the basis of a decision rendered in Nirrnala Singh vs. State of Bihar & Ors. 2006(1) P.L.J.R. 129 leave was granted to prefer an appeal. Thus, the appeal at his instance.

7. We have heard Mr. Y.V. Giri alongwith Mr. Raju Giri, learned counsel for the appellants in both the appeals, Mr.S.B.K. Mangalam, learned counsel for contesting respondents and Mr. Vijay Kumar Pandey, learned counsel for the State in both the appeals.

8. At the very outset we may state that initially we were required to consider the justifiability and the legal substantiality of the order passed by the learned Single Judge whether the vote of no confidence motion, that has been nullified by the learned Single Judge on the basis of the decision rendered in Pawan Kumar Purvey (supra), is correct or not but, pregnant one, we are not disposed to and it is not required to dwell upon the same as the learned Senior counsel, Mr. Giri, appearing for the appellants, submitted that when the erstwhile Chief Councilor contested the election that took place on the basis of vacancy of the post which had come into existence due to the order of removal, invited and attracted in fullest vigour the doctrine of waiver to the realm of the case