Orissa High Court
Mamata Behera vs State Of Odisha And Others --- Opposite ... on 28 January, 2020
Equivalent citations: AIR 2020 ORISSA 100, AIRONLINE 2020 ORI 55
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.21724 of 2019
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In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Mamata Behera --- Petitioner
Versus
State of Odisha and others --- Opposite Parties
For Petitioner : Mr.D.P.Dhal,
Senior Counsel
M/s.B.S.Dasparida, S.K.Dash,
A.P.Bose, S.Mohapatra,
K.Mohanty and M.K.Agrawalla
For Opp. Parties : Miss.S.Ratho, AGA
(For O.Ps.1 and 2)
Mr.L.K.Mohanty and Mr.B.K.Jena
(For O.P.3)
M/s.G.M.Rath, A.P.Rath,
S.Jena, K.Ansari and P.Panda
(For O.Ps.4 to 10)
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE D.DASH
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Date of hearing : 17.01.2020 : Date of judgment :28.01.2020
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D.Dash,J. The Petitioner, by filing this writ application, seeks to assail the
decision of the District Magistrate, Kandhamal (Opposite Party no.2) in
convening a meeting to consider the no confidence motion against her, who is
the elected Chairperson of Baliguda Notified Area Council (for short, „the NAC‟)
in the district of Kandhamal.
2. The Petitioner is the elected Chairperson of Baliguda N.A.C. and
has been in the office and discharging her duties as such since her assumption
of the charge of the office after the election.
When the matter was continuing as such, the District Magistrate,
Kandhamal (opposite party no.2), by his letter no.4883 (13)// DUDA dated
08.11.2019, convened the special meeting of the N.A.C. on 16.11.2019 for
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consideration of the no confidence motion against the Petitioner in the sitting
hall of the N.A.C. fixing the time at 11 am under Annexure-1. The challenge
here is to the said decision in convening the meeting for record of the no
confidence motion against the petitioner by issuance of such notice as at
Annexure-1.
3. The Baliguda N.A.C. comprising of 13 Wards, the Council has
thus 13 Councillors including the Chairperson as one among them. The main
contention raised in this application in support of the challenge to the decision of
the Opposite Party no.2 by issuance of notice under Annexure-1 pursuant to the
so-called requisition under Annexure-2 said to have been given by seven
Councillors, i.e. Opposite party nos.4 to 10 is that those are not in consonance
with the statutory requirements as provided in section 54 of the Odisha
Municipal Act, 1950 (hereinafter referred to as the O.M. Act). Thus it is said that
the decision of the Opposite Party no.2 to convene a special meeting in issuing
notice under Annexure-1 is arbitrary and illegal resulting from non-application of
mind.
4. Mr. D.P. Dhal, learned Senior Counsel for the Petitioner in course
of hearing confines his submission on the score that the said decision of the
Opposite Party no.2 in convening the special meeting for record of no
confidence motion against the Petitioner who is the elected Chairperson of the
N.A.C., is in gross violation of sub-section-2 of section 54 of the O.M. Act and
thus, it is liable to be quashed. According to him, admittedly, the notice
reflecting the decision of the opposite party no.2, for convening the said meeting
as at Annexure-1 is based on the so-called signed requisition as tendered by
the Opposite Party nos.4 to 10 as at Annexure-2, there has been total non-
compliance of the provision of sub-section 2 of section 54 of the O.M. Act, which
clearly mandates that such requisition signed by 1/3rd members of the Council
has to accompany the resolution, which is proposed to be moved in that
meeting. He submitted that this letter under Annexure-2, if is taken as the
requisition, as required under section 54 (2)(a) of the O.M. Act, no such
proposed resolution being sent with the same to the Opposite Party no.2, no
decision ought to have been taken by the Opposite Party no.2 for issuance of
the notice under Annexure-2 in convening the special meeting for said move of
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no confidence motion against the petitioner, the Chairperson of the N.A.C as
desired. He submitted that as mandated under section 54(2)(a) of the O.M.Act,
the Councillors have not been served with any such copy of the proposed
resolution to be moved in the said convened meeting. He submitted that the
legislature in its wisdom having provided the safeguard that not only 1/3 rd of the
total members of the Councillors have to send the requisition to the authority but
also they must enclose the resolution which they propose to move in the said
specially convened meeting, it was not within the competence/domain of the
Opposite Party no.2 to dispense with the requirement of either of those two,
treating one as composite serving as requisition as also the proposed
resolution. He submitted that the provision of law in this regard has to be strictly
construed and here in the case, the so-called letter of the Opposite Party nos.4
to 10 addressed to the opposite party no.2 even if is said to be the requisition in
terms of the provision of the 54(2)(a) of the O.M. Act, it cannot also be taken to
be the proposed resolution in terms of that provision so as to meet the twin
requirements as provided thereunder. It was submitted that the letter as at
Annexure-2 said to have been sent by the Opposite Party nos.2 to 4 on being
read in entirety, do not satisfy the twin requirements as provided in section
54(2)(a) of the Act and thus it can be only said to be a request as required in
law made by those Opposite Party nos.4 to 10 to the Opposite Party no.2 to
convene a meeting for record of no confidence motion against the petitioner
without due compliance of the provision of law in that regard.
With all the above, he submitted that the Opposite Party no.2 has
committed grave error both on fact and law in accepting the letter under
Annexure-2 and by reading it as the requisition as well as the proposed
resolution in proceeding ahead in the matter by taking a decision to convene a
meeting by issuing the notice for the purpose as at Annexure-1 without
annexing the copy of the proposed resolution which is mandatory. In support of
his submission, he heavily relied upon the decision of this Court in the case of
"Smt. Kamala Tiriya -V- State of Orissa and others; AIR 2001 Orissa 67,
Muktamanjari Sahu Vrs. State of Orissa and Others, 2010 (II) O.L.R. 473 and
Prahallad Dalei Vrs. State of Odisha and Others; 2014 (II) O.L.R., 574, which
would be discussed hereinafter at the appropriate place.
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5. Miss. S. Ratho, learned Additional Government Advocate referring
to the averments taken in the counter filed by the Opposite Party no.2 submitted
all in favour of the said decision as to issuance of the notice under Annexure-2.
According to her, the requisition under Annexure-2 sent by the Opposite Party
nos.4 to 10 had been thoroughly scrutinized and has been ascertained to have
been so given by them under their signatures and as per their own desire and
volition for the reason and purpose stated therein. She, therefore, submitted that
the Opposite Party no.2 has rightly taken the decision to convene the special
meeting. She submitted that the said letter as at Annexure-2 since satisfies the
twin requirements as provided in section 54(2)(a) of the O.M. Act, the Opposite
Party no.2 did commit no mistake in reading to convene the special meeting by
issuing the notice. She further submitted that in every case, it is not so required
that the requisition should accompany the proposed resolution in separate
sheet/s and if in the requisition the proposed resolution also finds mention or is
indicated/hinted, the decision pursuant to the same if is taken by the concerned
authority in reading the requisition as also comprising the proposed resolution,
is not amenable to challenge on the ground of non-application of mind and it
cannot be at all said to be arbitrary and illegal. She submitted that in such
appropriate case if the authority concerned arrives at a satisfaction that the
requisition also comprises of the proposed resolution and takes the decision
thereof, the objection that as regards the absence of the proposed resolution
has to fall flat and in that event, issuance of the notice with the copy of the
requisition would satisfy the requirement of section 54(2)(c) of the O.M.Act. She,
however, placed that pursuant to the interim order dated 14.11.2019 passed by
this Court, said convened meeting has been deferred and further action in that
direction would follow as per the decision in this writ application.
6. Mr. L.K. Mohanty, learned Counsel for the N.A.C. (Opposite Party
no.3) placing the averments taken in the counter filed by the Opposite Party
no.3 submitted that there is not illegality or impropriety in the said decision of
the Opposite Party no.2 in convening the special meeting for consideration of
the no confidence motion against the Petitioner pursuant to said requisition-
cum-resolution sent by the Opposite Party nos.4 to 10 comprising 1/3 rd of the
total number of Councillors.
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7. Miss. S. Jena and Mr. G. Rath, learned Counsels appearing on
behalf of the Opposite Party nos.4 to 10 reiterating the submission of Miss.
Ratho, the learned Additional Government Advocate, contended that there
being no violation of the statutory provisions in taking the decision by the
Opposite Party no.2 in convening the special meeting for record of no
confidence motion followed by the issuance of notice as provided in section 54
of the O.M.Act, this writ application is liable to be dismissed. In support of their
submissions, they placed strong reliance upon the decisions of this Court in the
following cases:-
"(i) Jagadish Pradhan and others -V- Kapileswar Pradhan
and others; OJC No.11288 of 1985 (decided on 27.08.2005);
(ii) Padmini Nayak -V- State of Orissa; W.P.(C) No.9603 of
2004 (decided on 30.08.2005, MANU/OR/0507/2005); and
(ii) Binodini Das -V- State of Orissa and others; 2013 (Supp-
I) OLR 891."
8. In order to address the rival submissions, it would be appropriate
to refer section 54 (2) of the O.M.Act.
"54. Vote of no confidence against Chairperson or Vice-
Chairperson:-
(1) xx xx xx xx
(2) In convening a meeting under Sub-section (1) and in the
conduct of business at such meeting the procedure shall be in
accordance with the rules, made under this Act, subject
however to the following provisions, namely :
(a) no such meeting shall be convened except on a requisition
signed by at least one-third of the total number of Councillors
alongwith a copy of the resolution of proposed to be moved at
the meeting;
(b) the requisition shall be addressed to the District Magistrate;
(c) the District Magistrate shall, within 10 days of receipt of
such requisition, fix the date, hour and place of such meeting
and give notice of the same to all the Councillors holding office
on the date of such notice alongwith a copy of the resolution
and of the proposed resolution, at least three clear days before
the date so fixed;
(d) xx xx xx xx
(e) xx xx xx xx
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(f) xx xx xx xx
(g) xx xx xx xx
(h) xx xx xx xx; and
(i) xx xx xx xx"
It provides that no such meeting shall be convened except upon a
requisition signed by at least 1/3rd of the total number of Councillors holding the
office along with the copy of the resolution proposed to be moved at the
meeting. The requisition will be addressed to the District Magistrate who within
ten days of receipt of it shall fix the date, hour and place of such meeting and
give notice of the same to all the Councillors holding the office along with the
copy of the requisition and the proposed resolution at least three clear days
before the date so fixed.
A close and careful reading of the aforesaid provision would show
that the decision by the authority to convene the special meeting for recording
want of confidence in the Chairperson of the Municipal Council, should be upon
the receipt of a requisition to be addressed to the said authority signed by at
least one-third of the total member of Councillors holding the office and that
requisition is required to be accompanied with a copy of the resolution proposed
to be moved at the meeting. On receipt of such requisition along with the
proposed resolution, the District Magistrate will take a decision in the matter of
convening the meeting and give notice fixing the date, hour and place of such
meeting to all the Councillors holding the office along with a copy of the
requisition and as also the proposed resolution to be passed at such meeting.
9. The requisition as at Annexure-2 being read reveals that Opposite
Party Nos.4 to 10 have informed the Opposite Party no.2 that the petitioner
carries no confidence of the Council and thus they want to bring a no
confidence motion against her. This is an undated letter. The Opposite Party
nos.4 to 10 also did not indicate in their courter affidavit as to when said letter
had been sent to the Opposite Party no.2 or was received. It is also no indicated
as to if they had also enclosed the proposed resolution. They have also not
expressed herein the counter affidavit that said letter had been sent in the
direction of compliance of the sending of the requisition as well as the proposed
resolution.
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The Opposite Party no.3, in his counter, is also silent on that
score. Now, perusal of the counter affidavit of Opposite Party no.2 reveals that
nowhere it has been stated as to when said letter under Annexure-2 had been
received. It is also not stated that if the said letter had any other
enclosures/annexures.
10. It is pertinent, at this stage, to mention that pursuant to the interim
order dated 14.11.2019 passed by this Court, the said specially meeting
scheduled to be held on 16.11.2019 has been deferred.
11. In case of Kamala Tiria (Supra), the resolution passed in the
specially convened meeting regarding the want of confidence in the
Chairperson of the Zilla Parishad as also the notification of the Government in
the Department of Panchayat Raj publishing that resolution have been quashed
for the reasons of non-compliance of the provisions in that regard as contained
in Odisha Zilla Parishad Act, which are in pari material with the provision of
Section 54 of the O.M.Act that the proposal to be moved in the meeting had not
been sent to the authority along with the requisition and thus not circulated to all
the members.
In case of Muktamanjari Sahoo (Supra), the notice issued by the
authority for convening a special meeting of the Gram Panchayat for discussion
of the no confidence motion against its Sarpanch has been quashed in the
absence of the copy of the proposed resolution being enclosed by those 1/3 rd of
the total members of the Gram Panchayat to the authority with the requisition
and obviously for the reason of its non-circulation to all the members.
In Prahallad Dalei‟s case (Supra), the court finally quashed the
resolution passed by the Gram Panchayat in which want of confidence in the
Sarpanch had been recorded on the ground that the authority while issuing the
notice expressing the decision to convene the specially meeting of the
Panchayat for the purpose had not enclosed the copy of the proposed
resolution for being served upon all the members of the Panchayat.
12. In case of Jagadish Pradhan and others (Supra), after the
resolution being passed in the meeting, State Government having passed the
order as required under Odisha Panchayat Samiti Act that the Chairman of the
Panchayat Samiti lacks confidence of the Panchayat Samiti, a revision had
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been moved by the said Chairman. The Revisional Authority quashed the
resolution on the ground that the requisition was not in accordance with law and
in the absence of a seal in the notice given by the authority, the said
Chairperson was mislead and could not attend the meeting. It had also been
held by the Revisional Authority that the requisition is invalid as the required
number of members had not signed therein.
This Court, by taking the proposed resolution passed into
consideration which contained the signatures of the required number of
members of Panchayat Samiti has held that non-appearance of signatures of all
those members also in the requisition is of no significance to say that the
decision taken thereunder for convening the special meeting for moving the no
confidence motion against the Chairman of the Panchayat Samiti is illegal and
vitiated. Interpreting the relevant provision of the Odisha Panchayat Samiti Act,
it has been said that the law requires that the copy of the resolution proposed to
be moved at the meeting to be sent along with the requisition and in the
resolution the proposal was clearly mentioned to be the absence of confidence
of the signatories on the Chairman. So, it has been said that merely because
the proposal is not in a separate document, the action taken thereupon does not
become illegal when there is no form prescribed for such proposed resolution
and the authority well understood the intention behind the resolution. In that
view of the matter, the decision of the Authority to convene the meeting has
been held to be right treating everything to be in non-compliance of the relevant
provisions of law contained in the Panchayat Samiti Act.
In Padmini Naik‟s case (Supra), the decision as to convene a
meeting for the no confidence motion against the Sarpanch of the Gram
Panchayat had been called in question. The issue raised therein that the
requisition under Annexrue-2 was not the requisition as mandated in law and so
also the proposed resolution under Annexure-3 of said application was not the
proposed resolution in consonance with law. The court, on going through
Annexure-2, found that eight out of twelve Ward Members of the Gram
Panchayat had written to the authority requesting him to take further step in
taking the initiative for follow up action on the no confidence motion brought by
them against the Sarpanch of the Gram Panchayat. Upon perusal of Annexure-
3, which had been enclosed that Annexure-2, the Court found that on
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11.3.2004, an urgent meeting under the Chairmanship of one Ward Member
had been held where eight Ward Members had attended and in that meeting,
there being thorough discussion about the action and manner of functioning of
the Sarpanch of the Gram Panchayat finally request had been made to the
Authority by sending Annexure-2 enclosing Annexure-3. In that eventuality, the
court has repelled the objections raised that Annexure-2 and Annexure-3 do not
satisfy the legal requirements as that of a valid requisition and proposed
respectively.
13. Adverting to the case on hand, at the cost of repetition, it may be
stated that it is nobody‟s case that Annexure-2 had any such enclosure when
had been sent to the Opposite Party no.2. It reveals that those Opposite Party
nos.2 to 4 having sat in a meeting and upon discussion, decided that the
Petitioner by discharge of her duty, as the Chairperson of the Council in the past
four years does not carry the confidence of general public as also the Council
and that she does not carry the support of majority to continue in the Office of
the Chairperson of the Council. So, it has been said therein that those Opposite
Party nos.4 to 10 would move the no confidence motion which be accepted and
accordingly, decision be taken. The word „requisition‟ as per the Black‟s Law
Dictionary (10th edition) is - "formal request to" whereas the word „resolution‟ has
been defined as "a main motion that formally expresses the sense, will, or
action of a deliberative assembly". In one go, it can be said that this Annexure-2
does neither satisfy the requirement of a requisition as provided in section
54(2)(a) of the O.M.Act nor that of the proposed resolution. On a plain reading,
to me it appears to be a resolution passed by those Opposite Party no.4 to 10 to
the effect that the Petitioner does not have the confidence of the general public
as also the Council but it, in my considered view, cannot be taken as the
required requisition.
14. So being taken that this was the proposed resolution, the
requisition as required under the law is wanting. The law of course does not
require that the 1/3rd member of the total members of Councillors of the Council
must pass a resolution for holding a meeting and then enclose the same with
the requisition for the decision of the Authority to convene the meeting for the
purpose of discussion of the no confidence motion. The very purpose of the twin
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requirements, in my considered view, appears to be that those required number
of the Councillors, if feel that the Chairperson does not carry the confidence,
they may make a request by sending the requisition to the Authority expressing
therein that a resolution, as enclosed thereto, would be in the said meeting. The
purpose of circulation of the copy of the requisition as well as the proposed
resolution with the to all the members is for the reason that they must be well
aware of the resolution with the pointed or hinted reason as also the final
outcome as expected, which is proposed to be moved, discussed and resolved
in either way in the said meeting for being passed so as to prepare themselves
to effectively take part in the discussion by making due deliberation, if so
required, on any such issue/s. This has the reference to the provision of section
64 of O.M.Act read with Rule 13 of the rules made thereinder. Section 64 of the
O.M.Act says that the Chairperson, in his absence, the Vice-Chairperson can
convene a special meeting on a requisition signed by not less than 1/3 rd of the
total members of the Councillors and if the Chairperson or Vice-Chairperson, as
the case may be, fails to call a special meeting within ten days of receipt of such
requisition of the meeting, it may be called on five days notice by those
Councillors/requisitionists and even in the absence of the Chairperson or Vice-
Chairperson, the meeting can be presided over by any of the Councillors
elected at the meeting for the purpose.
The relevant rule reads that in the special meeting, only the
business for which the meeting was called shall be considered and only when
the Councillors present give their consent for any other business to be so
considered, it can be taken up for consideration. The sending of the requisition
as well as the proposed resolution to the Authority and its onward circulation to
all the Councillors in case a decision in favour of convening said meeting by the
Authority of all the members is taken are thus not empty formalities. The
purpose of sending requisition with the proposed resolution to the Authority and
their onward circulation to all the Councillors in case of convening the meeting is
to see that all concerned are apprised of the specific purpose behind the
convening of the meeting as asked for by the Councillors/requisitionists and the
objective that those Councillors/requisitionists seek to achieve in that meeting.
The well recognized rule and sound principles are that when the
statute gives the power to do a certain thing in a certain manner, the thing must
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be done in that way or not at all. Statute conferring a power for doing an act
when lays down the method in which the power has to be exercised, it
necessarily prohibits the doing in any other manner than that has been
prescribed. Here, the decision of opposite party no.2 in convening the meeting
is clearly the outcome of non-application of mind as to the satisfaction of the
twin requirements as provided in clause (b) and (c) of sub-section 2 of section
54 of the O.M. Act
15. In the wake of aforesaid discussion, here in the case the decision
of Opposite Party no.2 in convening the special meeting by issuing notice under
Annexure-1 being without the fulfilment and satisfaction as to the twin
requirements, i.e., the receipt of the requisition and the proposed resolution for
their circulation to all the Councillors, the notice under Annexure-1 reflecting the
decision of Opposite Party no.2 to convene the special meeting for discussion
on that no confidence motion cannot sustain in the eye of law.
In the result, the decision of the opposite party no.2 in convening
the meeting to consider the no confidence motion against the petitioner, the
elected Chairperson of Balliguda NAC by issuance of notice under Annexure-1
stands quashed.
16. The writ application is accordingly allowed. No costs.
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D.Dash,J.
Orissa High Court: Cuttack Dated the 28th Jan,2020/B.Nayak