Orissa High Court
Sudarsan Behera & Four Ors vs Dr. Subramanian Swamy & Anr on 16 September, 2011
V.GOPALA GOWDA, CJ & B.N.MAHATRA, J.
W.P. (C ) NO.4435 OF 2011 (Decided on 16.09.2011)
SUDARSAN BEHERA & FOUR ORS. .........Petitioners.
.Vrs.
STATE OF ORISSA & TWO ORS. ..........Opp.Parties.
ORISSA MUNICIPAL ACT, 1950 (ACT NO. 23 OF 1950 ) - S.69 (2).
For Petitioner -
M/s. Jyotirmaya Sahoo, T.K.Mishra &
B.R.Sahoo.
For Opp.Parties - Mr. R.K.Mahapatra,
Government Advocate (for O.P.)
V.GOPALA GOWDA, C.J. The petitioners who are permanent citizens of
Purushottampur Notified Area Council have filed this writ petition questioning the legality
and propriety of the letter dated 25.1.2011 issued by the Joint Secretary to the
Government, Housing and Urban Development Department to the Executive Officer,
Purushottampur Notified Area Council, Ganjam, opposite party no.3 giving clarification
with regard to Section 69(2) of the Orissa Municipal Act, 1950 (hereinafter called in
short 'OM Act').
2. The case of the petitioners is that they are the Councillors of Purushottampur
NAC having been elected by the voters from the respective wards. For transaction of
business of the NAC the Councillors ordinarily meet once in every month at their office
or at some convenient place within the Municipal area. The Chairperson or in his
absence the Vice- Chairperson shall call for a special meeting on requisition. It is stated
that under Section 65 of the OM Act, except as otherwise provided in this Act, the
Chairperson shall preside at every meeting of the Municipality. In the absence of the
Chairperson, the Vice-Chairperson or in the absence of both Chairperson and Vice-
Chairperson, a Councillor elected at the meeting shall preside over the meeting. Section
66 of the OM Act provides for the functions of the President of the meeting. If in any
meeting there is equality of votes, the President of the meeting shall have a second or
casting vote. Further, Section 67(5) of the OM Act provides that the Councillor
concerned shall not be entitled to vote on the question referred to in sub-section (3) and
the President shall not be entitled to vote on the motion referred to in Sub-section (4). It
is stated that in the meeting held by the Notified Area Council on 3.2.2010, no final
decision could be taken for which the Executive Officer, Notified Area Council,
Purushottampur, Ganjam, opposite party no.3 sought for clarification vide letter no. 118
dated 3.2.2010 from the Joint Secretary to the Government, Housing and Urban
Development Department who issued clarification vide letter dated 8.4.2010
categorically stating that the Chairperson can only vote in case of equality of votes(tie).
The Chairperson does not have a voting power when an issue is put to vote in the
Council. The same is produced as Annexure-1. It is stated that the further clarification
given by opposite party no.2 vide letter dated 25.1.2011 with reference to earlier
clarification vide Annexure-1 is contrary to Section 69 of the OM Act. It is contended that
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intention of the Legislature cannot be clarified by adding or subtracting any language or
words from the Statute. Statute should be read in the intention of the Legislature. The
clarification made under Ananexure-2 is contrary to Section 69(2) of the OM Act. It is
further contended that under Article 166 of the Constitution of India, all executive action
of the Government of a State shall be expressed to be taken in the name of the
Governor and the Joint Secretary to the Government exceeds his jurisdiction in
clarifying the provisions of Section 69(2) of the OM Act. Article 162 of the Constitution
of India says about the extent of the executive power of the State. Therefore, there is no
ambiguity in the language of Section 69(2) of the OM Act. There was no need for
issuing second clarification on 25.1.2011. Hence, the same is illegal and contrary to
Section 69(2) of the OM Act and is liable to be quashed. It is contended that Chapter VII
of OM Act provides for conduct of business of the Notified Area Council. Section 63 of
the OM Act deals with ordinary meetings. Under Section 64, the Chairperson, in his
absence the Vice-Chairperson shall call a special meeting on a requisition signed by
not less than one-third of the total number of Councillors. In Section 66 of the OM Act,
no where it has been stated that the President has a right to vote in the meeting.
Section 67 of the OM Act states when a Councillor shall abstain from taking part in the
discussion and voting, but here also, the Legislature has not provided that the President
has a right to vote. Section 69(2) of the OM Act provides that the President of the
meeting shall have a second or casting vote. It clearly reveals that in one hand being a
member, the President has a right to vote and on the other he being a President has a
right to second vote which is illegal, arbitrary and contrary to the fundamental principles
of Representation of People's Act, 1951. The clarificatory order that the President will
cast the vote twice is illegal. Therefore, it is submitted that the clarification made under
Annexure-2 be declared as unconstitutional and contrary to Section 69 of the OM Act
and further Section 69(2) be struck down as unconstitutional and illegal.
3. The writ petition is opposed by opposite party nos. 1 and 2 by filing detailed
counter affidavit by one Rabindra Nath Sahu, who is Under Secretary to Government,
Housing and Urban Development Department. He has traversed the petition averments
and sought to justify the clarificatory order dated 25.1.2011 issued by opposite party
no.2 to opposite party no.3 clarifying Section 69 of Orissa Municipal Act. It is contended
that the writ petition is a misconceived one. It is stated that on receipt of the notice dated
15.12.2010of Sri P.C.Patnaik, Advocate, the clarification of Section 69(2) of the OM Act was sought from the Law Department. As per clarification of Law Department, the concerned Advocate and the Executive Officer, Purushottampur NAC, opposite party no.3 were intimated accordingly on 25.1.2011 by the Joint Secretary to the Government, Housing and Urban Development Department. It is stated in the counter that there is no ambiguity in Section 69(2) of the Act. It clearly speaks of a 'second or casting vote'. The use of word 'or' makes the things further clear that both should be read conjunctively to achieve the object. The purpose of conferring such power upon the President is to have a final decision in the meeting on the subject if there is any equality of votes. Where on a particular subject of a meeting or a motion either in the General Body meeting or special meeting there is equality of votes, the privilege has been given to the President to cast one additional vote if he has voted as a councilor on either side on any question or motion. In other words, the President in addition to his vote as a member of body would have right to cast additional vote on either side in the event of any tie on any issue or motion as per literal meaning of the said section. That has been clarified by opposite party no.2 to opposite party no.3 and also the learned Advocate who has 3 issued the notice. Hence, the same shall not be construed as an executive order under Article 162 of the Constitution of India after obtaining the instruction from the Law Department. Therefore, the writ petition is wholly untenable in law. Further he contends that the presumption of constitutional validity has to be given to the statutory provision keeping the object and intentment of conferring such privilege upon the President only on certain circumstance i.e. when either side of councilors vote and there is no majority. If there is a tie, in such circumstance to take a decision in the matter, the President is required to vote. In support of the said principle, learned Government Advocate has placed reliance upon the decision of the Supreme Court in the case of K.K.Baskaran Vrs. State Represented by its Secretary, Tamil Nadu & Ors., reported in (2011) 3 SCC
793. Further, strong reliance has been placed by the learned Government Advocate upon another decision of the Supreme Court in the case of Election Commission of India & Anr. Vs. Dr. Subramanian Swamy & Anr., reported in AIR 1996 SC 1810 wherein the Apex Court considered the 'doctrine of necessity' and laid down the principle at paragraphs 13,14 and 15. The relevant paragraph will be extracted in the reasoning portion of the judgment.
4. On the basis of rival and legal contentions, the following points would arise for consideration of the Court.
(a) Whether conferment of power upon the President of the meeting to a Municipal Council or Notified Area Council to have a second or casting vote in terms of Section 69(2) in case of equality of votes is arbitrary, unconstitutional and violation of Article 14 of the Constitution of India ?
(b) Whether the clarificatory order dated 25.1.2011 issued by the Joint Secretary to the Government, Housing and Urban Development Department, Bhubaneswar is liable to be quashed?
(c) What order?
5. All the points are taken up together. It is necessary to extract the relevant provisions of Section 69(2) of the OM Act which reads thus:-
"69. Decision of questions and casting votes -
(1) xxx xxx xxx (2) In cases of equality of votes the President of the meeting shall have a second or casting vote."
6. Learned Government Advocate has rightly placed reliance upon the said provision contending that the constitutional validity of the said provision has to be preserved unless it is shown that it is unconstitutional and liable to be struck down. He has rightly placed reliance upon the decision in Baskaran's case referred to supra wherein the Supreme Court with reference to the Constitutional Bench decision of the Supreme Court in the case of State of West Bengal Vrs. Kesoram Industries Ltd. & Ors., reported in (2004) 10 SCC 201, has made the following observation:-
" .....We have to look at the legislation as a whole and there is a presumption that the legislature does not exceed its constitutional limits."4
7. In fact, at paragraph-30 of the said judgment, the Supreme Court has made observation with regard to the duty of the Court which reads thus:-
"The Court should interpret the constitutional provisions against the social setting of the country and not in the abstract. The Court must take into consideration the economic realities and aspirations of the people and must further the social interest which is the purpose of the legislation, as held by Holmes, Brandeis and Frankfurter, JJ. of the US Supreme Court in a series of decisions. Hence the courts cannot function in a vacuum. It is for this reason that courts presume in favour of constitutionality of the statute because there is always a presumption that the legislature understands and correctly appreciates the needs of its own people vide Govt. of A.P. Vs. P.Laxmi Devi, reported in (2008) 4 SCC 720."
8. The said observation by the Apex Court with all fours applies to the fact situation. Further learned Government Advocate placed strong reliance upon paragraph-14 &16 of the decision in Election Commission of India referred to supra. The relevant portion of the said paragraphs reads thus:-
"We are quite conscious of the high office the Chief Election Commissioner occupies. Ordinarily we would be loath to uphold the submission of bias but having regard to the wide ramification the opinion of the Election Commissioner would have on the future of Ms. J.Jayalalitha, we think that the opinion, whatever it be, should not be vulnerable. The participation of the Chief Election Commissioner in the backdrop of the findings recorded by the learned Single Judge as well as the Division Bench of the High Court would certainly permit an argument of prejudice, should the opinion be adverse to Ms. J. Jayalalitha. Therefore, apart from the legal aspect, even prudence demands that the Chief Election Commissioner should recuse himself from expressing any opinion in the matter. However, the situation is not so simple, it is indeed complex, in that, what would happen if the two Election Commissioners do not agree and there is a conflict of opinion between them ? That would lead to a stalemate situation and the Governor would find it difficult to take a decision based on any such opinion. In such a situation, can the doctrine of necessity be invoked in favour of the Chief Election Commissioner?"
xxx xxx If the two Election Commissioners reach a unanimous opinion, the Chief Election Commissioner will have the opinion communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity. We think that in the special circumstances of this case this course of action would be the most appropriate one to follow because if the two Election Commissioners do not agree, we have no doubt that the doctrine of necessity would compel the Chief Election Commissioner to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by Article 192(1) of the Constitution."
(emphasis laid by this Court ) 5
9. In view of the said observations made by the Supreme Court with reference to interpretation of Article 191 of the Constitution of India, doctrine of necessity theory is invoked in conferring the privilege upon the President of a meeting to exercise second or casting vote in cases where there is equality of votes.
10. In view of the aforesaid reason, the prayer for striking down the provision of Section 69(2) of OM Act cannot be granted. The provision of Section 69(2) is constitutionally and legally valid and there is no violation of Article 14 of the Constitution. Therefore, the first point is answered in favour of the State. As we have already answered the first point in favour of the State, the question of quashing Annexure-2 does not arise. The same is constitutionally valid. Conferment of power upon the President of the meeting is to see that the doctrine of necessity is to be invoked for a clear decision in the matter. Therefore, the second point is also answered against the petitioner and in favour of the State.
11. For the reasons stated above, the writ petition must fail and accordingly, the same is dismissed.
Writ petition dismissed.