The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1312 of 2025 Jagyaseni Oram …. Petitioner Mr. U.K, Samal, Advocate -Versus- State of Odisha and others …. Opposite Parties Mr. Pitambar Acharya, Advocate General, Odisha Mr. P. K. Rath, Senior Advocate for O.P.Nos.4 to 26 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:28.02.2025 1. Instant writ petition is filed by the petitioner challenging the impugned notice of no confidence motion as at Annexure-1 issued by the Collector, Jharsuguda, namely, opposite party No.2 initiated against him holding the post of Chairperson, Brajarajnagar Municipality scheduled to be held on 15th January, 2025 on the grounds inter alia that the same is liable to be quashed not being in compliance with Section 54(2) of the Odisha Municipal Act, 1950 (hereinafter referred to as „the Act‟). 2. As per the pleading on record, such notice for vote of no confidence vis-a-vis the petitioner to be held on the date Page 1 of 19 fixed was intimated by opposite party No.2 to all concerned. The impugned notice dated 9th January, 2025 was though received by the petitioner, it is further pleaded that the same was not in compliance of the provisions of the Act. It is claimed that opposite party No.2 did not receive a valid requisition with a proposed resolution. The pleading is that neither the requisition expressed that the Councillors have lost their confidence nor the resolution dated 4th January, 2025 is a proposed resolution regarding want of confidence, hence, therefore, such issuance of impugned notice under Annexure-1 by opposite party No.2 is illegal and hence, contrary to law and thus, liable to be quashed. 3. The counter affidavit is filed by opposite party No.3, namely, Executive Officer, Brajarajnagar Municipality with a pleading therein that opposite party No.2 was justified in issuing the notice i.e. Annexure-1 for the no confidence motion to be held on 15th January, 2025. The further pleading is that as the Councillors lost confidence in the petitioner, the resolution was passed with an intimation to opposite party No.2, who upon receiving the requisition proceeded according to the procedure prescribed under the Act and fixed the date for the motion and as such, no illegality has been committed, rather, there is full compliance of Section 54(2)(a) of the Act. As per opposite party No.3, the elected Councillors of the Municipality are aggrieved by the functioning of the petitioner, hence, moved the no confidence motion. It is pleaded that the notice was forwarded to the Page 2 of 19 petitioner through WhatsApp and by such other means to all the Councillors, however, the petitioner refused to accept the same. The self-same letter dated 9th January, 2025 and notice of opposite party No.2, as according to opposite party No.3, have been served on all the Councillors and the petitioner through a Special Messenger but the latter refused to accept the same and hence, both were affixed in front of his residence as well as in front of the office chamber of the Chairman, Brajarajnagar Municipality and in that connection, referred to Annexure-A/3. The pleading is that Section 54(2) of the Act has been fully complied with and the petitioner was therefore to face the no confidence motion, but it is questioned on the ground that the resolution not to be the proposed resolution, which is totally misconceived and hence, liable to be rejected outrightly. 4. Opposite party Nos.4 to 26 filed the counter affidavit and pleaded that opposite party No.2 in exercise of powers vested under Section 54(2)(c) of the Act fixed the date for motion on 15th January, 2025 by giving clear three days notice and such notice was issued to the Chairperson of the Municipality, namely, the petitioner and to all 23 Councillors through Special Messenger and even the notice was affixed at the office of the Municipality. It is further pleaded that as per the service report, the petitioner refused to take notice from Process Server, though he was aware of the resolution and requisition. It is claimed that the no confidence motion was held on 15th January, 2025 and 23 Councillors participated Page 3 of 19 therein, but the result has not been declared due to the interim order of this Court. It is lastly pleaded that the resolution was sent by 22 Councillors and was received by opposite party No.2 with a requisition carrying their signatures for consideration and action as per Section 54 of the Act and such resolution was for vote of no confidence against the petitioner for the reason stated therein, hence, no illegality has been committed by any of the authorities and therefore, the plea of the petitioner is to be dismissed. 5. A rejoinder affidavit is filed by the petitioner to the counter of opposite party No.2 stating therein that the procedure for holding the no confidence motion shall have to be in accordance with Section 54(2)(a) of the Act. It is further pleaded that according to Section 54(2)(c) of the Act, opposite party No.2 within ten days of receipt of such requisition was required to fix the date, hour and place of meeting and give notice to all the Councillors holding the office as on such date of notice with a copy of the requisition and proposed resolution, which is also not complied with. Apart from the fact that the proposed resolution was never sent with the requisition and therefore, the action for the vote of no confidence cannot stand and hence, has to fall flat.
Legal Reasoning
32. This rule has since been approved by this Court in Rao Shiv Bal1adur Singh v. State of V. P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U. P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised salutary principle of a administrative law.” as 11. It is settled law that a particular act to be done in a way as prescribed under law and not otherwise. The intended purpose of such statutory procedure is a safeguard being aware of the consequences to follow which ultimately could affect the exercise of powers and the action as a result, hence, the principle of law discussed herein before laid down in Taylor (supra) has been approved time and again by the Apex Court in catena of decisions, is considered to be applicable and adhered to, while exercising jurisdiction by Page 9 of 19 the courts, which is also recognized while dealing with cases under administrative law. 12. In the instant case, Section 54(2) of the Act is relevant and hence, for better appreciation, the same is reproduced herein below: “Section 54(2) in Orissa Municipal Act, 1950- (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 along with 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 along with a copy of the resolution and of the proposed resolution, at least three clear days before the date so fixed; XXX.” As per the above provision, at least three clear days is to be allowed before the meeting is held and such an exercise is to be undertaken by the District Magistrate fixing the date and place within ten days of receipt of the requisition for the no confidence motion. Page 10 of 19 13. Mr. Samal, learned counsel for petitioner harps on sub- section 2(c) of Section 54 of the Act to claim that the impugned notice has not been received along with a copy of the proposed resolution. The challenge is to the motion on the ground that requisition must accompany a copy of the proposed resolution, while a notice for the vote of no confidence is issued by the District Magistrate but the same has not been complied with in the present case. In Smt. Kamala Tiria (supra), this Court found that the requisition was not signed by the members and sent to the authority concerned by the President of the meeting signed by him in a representative capacity and even the proposed resolution moved at the meeting was not enclosed to the requisition. In fact, it was noticed that a consolidated document comprising the requisition requesting the RDC to convene a special meeting and the resolution was sent and on a perusal of the requisition and resolution, it was held by this Court that the minutes of discussion of the meeting did not contain the proposed resolution and that being the factual position, it was concluded that there is no compliance of Section 39(2)(a) of the Orissa Zilla Parisad Act, 1991. In the present case, there is no denial to the fact that a requisition was received and also resolution signed by the Councillors. Upon considering Annexure-1, the Court finds that the resolution was signed by all the Councillors in the special meeting held on 4th January, 2025. That apart, an extract of the resolution with the signature of the Councillors was sent with the requisition. Page 11 of 19 The resolution of the elected Councillors in the meeting held on 4th January, 2025 expressing intention to go for a vote of no confidence against the petitioner is attached to the requisition. So, therefore, not only the extract of the resolution but the sum and substance of such resolution proposed by the elected Councillors at the meeting held on 4th January, 2025 was received by opposite party No.2 with a letter of the Vice-Chairman, Brajarajnagar Municipality dated 6th January, 2025 whereafter, notice dated 9th January, 2025 for the motion was issued. 14. The question is, whether, in the case at hand, the proposed resolution was sent with the requisition followed by the notice dated 9th January, 2025? 15. In Padmini Nayak (supra), this Court held in following words, such as: “5. In Smt. Kamala Tiria‟s case (supra) the requisition for convening the meeting to record want of confidence was not signed by the requisite number of members, but was signed by one member in a representative capacity. The resolution proposed to be moved at the meeting was not enclosed to the requisition. Some of the members, who were shown as signatories to the requisition, denied that they were ever present in the emergency meeting and some nominated members who had no right of voting were also allowed to remain present at the meeting held for recording the no confidence motion. For all these lacunae the Page 12 of 19 resolution passed regarding want of confidence was declared null and void. The ratio of the said case in no way applies to the present case as the facts and circumstances involved in that case is totally different form this case. In the present case 8 out of the 12 members of the Grama Panchayat have signed the requisition Annexure-2 and copy of the proposed resolution Annexure-3 was also enclosed with Annexure-2. So, the mandate of Section 24(2)(a) of the G.P. Act was substantially complied with.” 16. In Dasaratha Munda, this Court held and observed, which is reproduced herein below: "8. The 3rd contention is that the requisition did not contain the proposed resolution. It is to be noticed that the petitioner himself in paragraph-6 of the writ petition has mentioned that the meeting has been convened on the basis of the old resolution meaning thereby - he concedes that the documents sent along with the requisition was a resolution. Besides this, the words at the top of the enclosure to the letter of Annexure-3 "Swatantra Baithakare Alochana Hebaku Thiba Prastab " have been the proposed mentioned, which means, discussion to be made in the special meeting with regard to the proposed no confidence motion. In that last four lines of the said enclosure the contents of the resolution have also been mentioned in clear terms. According to Chambers English Dictionary, we make it clear ''resolution'' means, "a formal proposal put before a meeting, or its formal that Page 13 of 19 thereon". Therefore, this determination contention is also not sustainable in the eye of law." 17. Once again, this Court, while dealing with such a matter in Prahallad Dalei (supra) held as herein under: “17. Learned counsel for the petitioner leans heavily in the case of Kamala Tiria (supra). This Court, in the case of Padmini Nayak (supra) in paragraph-5 has distinguished the case of Kamala Tiria (supra) as follows: XXX. 18. In the case of Muktamanjari Sahu (supra) this Court quashed the notice issued by the Sub-Collector on the ground that the resolution passed for initiating No Confidence Motion is not the resolution as contemplated under Section 24(2)(a) of the Act, as per the decision rendered in the case of Smt. Kamala Tiria (supra), 19. From the discussions supra, it is clear that- (i) no form or proforma has been prescribed either for the Notice to be issued by the Sub- Collector calling upon the members including the Sarpanch or Naib-Sarpanch to attend the meeting of No Confidence, or the requisition to be sent by 1/3rd members of the Grama Panchayat or the proposed resolution to be moved; for for (ii) If the intention of the requisite number of members is clear from the resolution adopted Page 14 of 19 in the meeting held to prepare the requisition and the proposed resolution, then the said intention is to be accepted as indicatives of the fact that requisite number of members want to move a No Confidence Motion and that resolution adopted in such meeting is to be abstractly accepted as the proposed resolution. (iii) The so-called proposed resolution to be moved need not be on a separate sheet or document.” 18. On a reading of the decisions referred to herein before, it is made to suggest that a resolution is needed to be passed in the meeting and a copy of the same is to be sent to the authority concerned along with the requisition, whereupon, notice as per Section 54(2) (c) of the Act is required to be issued by the District Magistrate and what is important is that the proposed resolution passed in the special meeting with regard to the no confidence motion, with the requisite intention, must be made explicitly. The decision in Smt. Kamala Tiria has been noted in the case of Padmini Nayak and it was sought to be distinguished. In fact, in Smt. Kamala Tiria deficiency was noticed as the requisition was not signed by the requisite quorum but was received in a representative capacity with such other irregularities including the resolution proposed to be moved was not enclosed to the requisition. The Court in Dasaratha Munda (supra) concluded that a resolution means a final decision taken at a meeting and if the same is clearly evident to hold a special meeting to the no confidence motion, the same is Page 15 of 19 sufficient compliance of the provisions of the Odisha Grama Panchayats Act, 1964. In fact, in Prahallad Dalei (supra), it has been held that there is no specific form prescribed for a proposed resolution and any such decision for the no confidence motion and a resolution, if received with a requisition sent by the required quorum, the resolution adopted in such meeting is to be abstractly accepted as the proposed resolution. 19. In Sulochana Sethy Vrs. Collector, Puri and others AIR 2022 Ori 89, it is held that a separate resolution in a separate sheet is not mandatory requirement of law. In the said case, requisition was signed by 1/3rd members of the NAC and the resolution revealed the proposed action for the motion and considering the same, it was held by this Court that there is no illegality in the issuance of requisition. 20. In Sarat Padhi (supra), this Court held and observed: “18. XXX- The scheme of the notice contemplated under Section 24(2)(c) may be divided into three parts -- (i) requirement of giving the notice, (ii) fixing the margin of time between the date of the notice and the date of the meeting, and (iii) service of notice on the members, I am of the view, which is also conceded by the learned Advocate General, that the first two parts, namely, the duty to issue the notice and the margin of clear 15 days between the date of the notice and the date of the meeting, are mandatory. In other Page 16 of 19 words, if there is any breach of these two conditions, then the meeting will be invalid without any question of prejudice. But the third condition, i.e., the mode of service or the failure by any member to receive the notice at all or allowing him less than 15 clear days before the date of the meeting, will not render the meeting invalid. This requirement is only directory. This is also based on a sound public policy as in that event any delinquent Sarpanch can or Naib-Sarpanch the frustrate consideration of resolution of non- confidence against him by tactfully dealing or avoiding the service of the notice on him and thus frustrate the holding of the meeting. The legislation has also accordingly taken care to provide in unequivocal terms a provision to obviate such contingencies by incorporating Clause (e) to Sub-section (2) of Section 24. the 19. Once I come to the above conclusion, I must record my disapproval to the observation of a general nature made in Debaraj Mallik's case (1978) 45 Cut LT 313 to the effect that the whole of the provision under Section 24(2)(c) is directory in nature, as that is too wide. Since I have held that service of notice on a member of a Grama Panchayat without giving him 15 days clear time is not mandatory but is only directory in nature, and this being the only ground urged on behalf of the petitioner in challenge of the impugned order, this application has got no merit. 20. Before parting with the case, I may also emphasize on another aspect of the matter, namely, that the petitioner, having participated in the meeting in question without any protest or objection is estopped from challenging the Page 17 of 19 validity of the meeting on the ground that the gap between the date of service of notice and the date of the meeting was less than 15 days.” 21. In Jagadish Pradhan (supra), it reiterated that merely because the proposal is not a separate document, the action based on the same does not become illegal and it was so concluded, while dealing with a case of no confidence motion initiated under the Odisha Panchayat Samiti Act, 1959. In Dr. Ananda Prasad Pattnaik (supra), the requisition and resolution since sent along with the notice under challenge, the action was held to be in consonance with law. 22. The Court is in agreement with the contention that a resolution was passed with an unanimous decision to move the no confidence motion against the petitioner and it was received with a requisition and the substance of such resolution is with the clear intention expressed by the elected Councillors to go for the special meeting and the same having been received by opposite party No.2, it has to held that it is in compliance of Section 54(2) (c) of the Act. The decision in Smt. Kamala Tiria (supra) is distinguishable for the reason that therein the proposed resolution and requisition had not been sent by all the members of the GP and with other deficiencies being noticed, hence, the action was held to be invalid. However, having regard to the materials on record and as the resolution is attached to the requisition along with an extract of the same indicating therein that the Page 18 of 19 decision held on 4th January, 2025 is for the no confidence motion, the irresistible conclusion of the Court is that such resolution is to be treated as the proposed resolution and there is no legality committed by opposite party No.2, while issuing the notice under Annexure-1. The substance of the resolution clearly reveals the dissatisfaction in the functioning of the petitioner as the Chairperson of the Municipality and all the elected Councillors being aggrieved decided to go for the no confidence motion against her, hence, was the requisition and followed by notice dated 9th January, 2025, therefore, there is due compliance of Section 54(2)(c) of the Act. Considering the submissions of Mr. Samal, learned counsel for the petitioner, Mr. Acharya, learned Advocate General, Odisha and Mr. Rath, learned Senior Advocate for opposite party Nos.4 to 26, the Court is in no hesitation to hold that no case is made out for interference since the impugned notice has been issued upon receiving the requisition and proposed resolution, thus, it is according to law. 23. Hence, it is ordered.
Arguments
6. Heard Mr. Samal, learned counsel for the petitioner, Mr. Acharya, learned Advocate General, Odisha and Mr. Rath, learned Senior Advocate for opposite party Nos.4 to 26. Page 4 of 19 7. Mr. Samal, learned counsel for the petitioner would submit that the entire exercise stands vitiated as the requisition is not accompanied with a proposed resolution, a mandatory requirement under law. The submission is that the so-called resolution said to have been received by opposite party No.2 along with the requisition is no resolution in the eye of law as per Section 54(2) of the Act. In support of such contention, Mr. Samal, learned counsel refers to the decision of this Court in Smt. Kamala Tiria Vrs. State of Orissa and others AIR 2001 Ori 67. The following decisions, namely, Babu Verghese and others Vrs. Bar Council of Kerala and others (1999) 3 SCC 422 and Shri Mandir Sita Ramji Vrs. L.T. Governor of Delhi and others (1975) 4 SCC 298 are also placed on reliance to contend that due procedure has not been followed, while initiating the no confidence motion against the petitioner. The contention of Mr. Samal, learned counsel is that the procedure prescribed under the Act shall have to be followed in the manner specified. It is submission that a particular act is to be done only in the manner statutorily prescribed which is what has been held by the Apex Court in Babu Verghese (supra) referring to the judgment in Taylor Vrs. Taylor (1875) 1 Ch D 426, a judgement legal classicus followed by the Privy Council in Nazir Ahmad Vrs. Emperor, AIR (1936) PC 253 and in so far as the case at hand is concerned, due procedure was deviated and no proposed resolution ever accompanied the resolution, hence, the impugned notice under Annexure-1 to Page 5 of 19 be invalid. In Smt. Kamala Tiria, this Court held and concluded that the requisition was not signed by 1/3rd majority of the members of the Zilla Parisad and furthermore, the pre-condition that proposed resolution was to be moved in the special meeting, a statute compliance, was not satisfied, under such circumstances, the resolution for want of confidence was held liable to be set aside, referring to which, Mr. Samal, learned counsel submits that before issuance of notice as per Annexure-1, opposite party No.2 did not receive any such proposed resolution along with the requisition. 8. On the contrary, Mr. Acharya, learned Advocate General, Odisha submits that there is absolutely no illegality committed by opposite party No.2 and impugned notice as it was accompanied with a requisition and resolution, the action is in accordance with Section 54(2) of the Act. It is submitted that there is full compliance of the Act and procedure prescribed therein and since, the elected Councilors unanimously proposed a vote of no confidence against the petitioner and expressed it in sending the requisition to opposite party No.2 with the resolution signed by them, it is not a substantial compliance, rather, a compliance in full. It is contended by Mr. Acharya, learned Advocate General, Odisha that a vote of no confidence since at the instance of the elected Councillors and in the meantime, the same has been held with a special meeting convened on the date fixed, the result of the same should be allowed to be immediately Page 6 of 19 declared as there is no procedural irregularity or illegality committed in that regard. In support of such contention, the following citations, such as, Padmini Nayak Vrs. State of Orissa and others MANU/OR/0507/2005; Dasarath Munda Vrs. Collector 2007 (Supp.I) OLR 242; Prahallad Dalei Vrs. State of Odisha and others 2015 SCC Online Ori 395 and Sulachana Sethy Vrs. Collector, Puri and others AIR 2022 Ori 89 have been referred to further contend that no form or pro-forma is prescribed either for the notice for motion or requisition or the proposed resolution under the Act and when the intention is loud and clear of the elected Councillors and resolution is adopted by them in a meeting held and requisition sent thereafter, the same is an indication that all of them decided to move a no confidence motion and in that connection, resolution was adopted. So, the submission is that the motion held on the date fixed should be brought to a logical end with the result of the same being declared since the entire exercise has been accomplished as per the Act. 9. Mr. Rath, learned Senior Advocate for opposite party Nos.4 to 26 supported the contention of Mr. Acharya, learned Advocate General and claimed that the motion is in accordance with law and fully supported by a resolution sent along with requisition received by opposite party No.2. In support of the contention advanced, Mr. Rath, learned Senor Advocate relies on the following decisions, such as, Sulochana Behera Vrs. State of Odisha and others 2018 Page 7 of 19 AIR (Ori) 17; Padmini Nayak Vrs. State of Orissa and others 2005 Supp OLR 917; Sarat Padhi Vrs. State of Orissa and others 1987 SCC Online Ori 95; Jagadish Pradhan and others Vrs. Kapileswar Pradhan and others 1985 SCC Online Ori 287; K.D. Sharma Vrs. Steel Authority of India Limited and others (2008) 12 SCC 481 and Dr. Annada Prasad Pattnaik Vrs. State of Orissa and others 1988 SCC Online Ori 44. It is further submitted by Mr. Rath, learned Senior Advocate that the facts and circumstances under which the action was interfered with in Smt. Kamala Tiria are distinguishable and it was for the reason that therein the requisition for the meeting was not signed by the requisites number of members but was by one among them in a representative capacity and that apart, the resolution proposed to be moved at the meeting was not enclosed to the same and that some of the members shown to be the signatories to the requisition denied being ever present in the meeting and some nominated members participated despite having no right to vote, hence, it was concluded that the resolution to be invalid. 10. In Babu Verghese (supra), the Apex Court while dealing with a matter under the Advocate Act, 1960 and action initiated under Rule 6 of the Bar Council of India Rules had the occasion to reiterate the basis principle of law to be followed, while complying a statute and held as under: “31. It is the basic principle of law long settled that if the manner of doing a particular act is Page 8 of 19 prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
Decision
24. In the result, the writ petition stands dismissed. 25. In the circumstances, there is no order as to the costs. Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication TUDU Location: OHC,CTC Date: 04-Mar-2025 13:55:22 (R.K. Pattanaik) Judge Page 19 of 19