The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.9712 of 2024 (An application under Article 226 and 227 of the Constitution of India) Smt. Smitarani Mohanty …. Petitioner -versus- State of Odisha, represented through its Commissioner-cum- Secretary, Housing and Urban Development Department and Others Advocate(s) appeared in this case:- …. Opposite Parties For Petitioner : Mr. S.K. Mishra, Sr. Advocate For Opp. Parties : Ms. S. Mishra, ASC Mr. M. Kanungo, Sr. Advocate for intervener CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 28th June, 2024 B.P. Routray, J. 1.
Legal Reasoning
Heard Mr. S.K. Mishra and Mr. M. Kanungo, learned senior counsels for the Petitioner & interveners respectively and Ms. S. Mishra, learned ASC for State – Opposite Parties. WP(C) No.9712 of 2024 Page 1 of 10 2. Present writ petition has been filed by the Chairperson of Phulbani Municipality. A no confidence motion was proposed against her by 11 Councilors out of 13 Councilors of said municipality. Pursuant to the motion initiated, the Collector and District Magistrate issued notice on 15th April, 2024 under Annexure-1 series to all the Councilors to hold meeting of the Municipal Council on 23rd April, 2024 at 10 am in terms of Section 54 of the Odisha Municipal Act for voting on the motion. Said notice dated 15th April, 2024 of the Collector and District Magistrate is the subject matter of challenge in present writ petition. 3. Mr. Mishra, learned senior counsel for the Petitioner submits that the motion of no confidence and circulation of notice on the Councilors except the Chairman, against whom the motion is proposed, is violative of the principles of natural justice and secondly, also violating the statutory provisions under the Odisha Municipal Act and Rules. According to him, when the rules prescribe for notice of motion by any Councilor through the Chairperson, the notice for no confidence cannot be circulated ignoring the right of notice to the Chairperson. WP(C) No.9712 of 2024 Page 2 of 10 Moreover the principle of natural justice also mandates intimation to the Chairperson. 4. Mr. Kanungo, learned senior counsel appearing for the interveners, who are the Councilors proposing the no confidence motion, submits that the provisions contained in the Act and Rules nowhere prescribe for issuance of notice of such motion on the Chairperson and in absence of any express provision to that effect the service of notice on the Chairperson is not at all required and therefore, the contention of the Petitioner regarding want of notice or intimation on the part of the Chairperson is without any basis. He further submits that, making motion against the Chairperson for no confidence is the statutory right on the part of the Councilors and this being a statutory right, the question of right to hear or principles of natural justice cannot come into play in absence of any prescription in the statutory provisions regarding service of intimation on the person concerned. 5. Similarly Ms. Mishra, learned ASC while supporting the stand of the interveners submits that the Legislation has consciously omitted notice on the Chairperson though for other purposes like removal of Chairperson by the State Government, the statute is prescribing service WP(C) No.9712 of 2024 Page 3 of 10 of notice on the Chairman. Therefore, when it is settled that a thing has to be done in a particular procedure as prescribed in the statute the same should have been done in that procedure. Here in absence of any provision prescribing service of notice on the Chairperson, the Petitioner cannot claim any right of service of notice on her. 6. Before delving into the contentions raised by the parties it would be important to reproduce Section 54 of the Odisha Municipal Act. The same reads as under:- “54. Vote of no confidence against Chairperson or Vice- Chairperson (1)Where a meeting of the Municipality specially convened by the District Magistrate in that behalf a resolution is passed, supported by not less than two-third of the total number of Councillors recording want of confidence in the Chairperson or Vice-Chairperson the resolution along with the records of the proceedings at such meetings shall forthwith be forwarded to the State Government who shall publish the same in the Gazette and with effect from the date of passing of the resolution the person holding the office of Chairperson or Vice- Chairperson, as the case may be, shall be deemed to have vacated such office. In the event of both Chairperson and WP(C) No.9712 of 2024 Page 4 of 10 Vice-Chairperson vacating office the District Magistrate or his nominee shall discharge the responsibilities of the Chairperson till a new Chairperson is elected. [Provided that no such resolution recording want of confidence in the Chairperson or the Vice-Chairperson- (i) shall be passed within two years from the date of his election or nomination, as the case may be; and (ii) shall be moved more than once during a calendar year.] (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 WP(C) No.9712 of 2024 Page 5 of 10 copy of the resolution and of the proposed resolution, at least three clear days before the date so fixed; (d) the District Magistrate or if he is unable to attend, any Gazetted Officer above the rank to which the Executive Officer of the Municipal area belongs who is specially authorized by him in that behalf shall preside over, conduct and regulate the proceedings of the meeting; (e) the voting at all such meetings shall be made in such manner as may be prescribed; (f) no such meeting shall stand adjourned to a subsequent date and no item of business other than the resolution for recording want of confidence in the Chairperson or Vice- Chairperson, as the case may be, shall be taken up for consideration at the meeting; (g) if the number of Councillors present at the meeting is less than two-thirds of the total number of Councillors the resolution stand annulled; (h) if the resolution is passed at the meeting supported by the requisite number of Councillors as specified in Sub- section (1) the Presiding Officer shall immediately forward the same in original along with the records of the proceedings to the State Government who shall forthwith publish the resolution in accordance with the provisions of Sub-section (1); and WP(C) No.9712 of 2024 Page 6 of 10 (i) where any Gazetted Officer presides at the meeting he shall, without prejudice to the provisions of Clause (h) also send a copy of the resolution along with a copy of the proceedings to the District Magistrate for information and such action as may be necessary.]” 7. A bare reading of Section 54(2), which speaks for modalities for convening the meeting, refers to the rules prescribed under the Act in addition to such provisions enumerated in clause (a) to (i). This includes that the District Magistrate on receipt of the requisition shall fix the date, hour and place of meeting and give the notice of the same to all the Councillors along with a copy of the requisition and proposed resolution before three clear days. The words ‘give notice to all the Councillors .. .. ..’ does not include the word ‘Chairperson’ or ‘Chairman’. In other words, when clause (c) mandates giving of notice to the Councillors, at the same time it remains silent in respect of the Chairperson. 8. Law is well settled that if a statute provides for things to be done in a particular manner, then it has to be done in that manner alone and in no other manner (See: Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266, Nazir Ahmad v. King-Emperor, (1936) SCC OnLine WP(C) No.9712 of 2024 Page 7 of 10 PC. 41, Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh, (2015) 13 SCC 722) 9. In Joyti Basu and Others v. Debi Ghosal and Others, AIR 1982 983, it is observed at paragraph 8 as follows:- “8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. xxxxxx”. 10. In the instant case it is not to be forgotten that prior to 2018 amendment to the Odisha Municipal Act the Chairman of the WP(C) No.9712 of 2024 Page 8 of 10 Municipal Council happens to be one of the Councillors. But after 2018 amendment is effected, the Chairman is required to be elected directly by public. If in that context Section 54(2) would be read then the notice of no confidence was to be served on the Chairperson also in the capacity of one of the Councillors. Nonetheless, the position has been changed after 2018 and the Legislature while amending the provisions of the Act and Rules consciously left the provisions under Section 54(2) not to include the Chairperson of the Municipality for service of notice. In reference to the rules as mentioned in sub-Section (2) of Section 54, Rule 3 to 11 of the Odisha Municipal Rules appears relevant since no other rules are there regarding the business of meeting. Rule 4 of the Odisha Municipal Rules speaks that a Councillor when desires to move a motion shall give the same in writing to the Chairperson. Undoubtedly, the no confidence motion is intended to remove the Chairperson and therefore the knowledge of the Chairperson about the proposal moved against him to remove from the Chair becomes important in this context. The right of the Chairperson is definitely affected by moving such a motion against him behind his back. The principles of natural justice demand that an opportunity of hearing should be granted to the party affected by the action. When the WP(C) No.9712 of 2024 Page 9 of 10 motion is proposed against the Chairperson to be decided in the proposed meeting the principle of natural justice demands intimation to the Chairperson of such motion initiated against him. For this, absence of statutory provision would not be a hurdle since the action proposed to be taken is affecting his right of unseating him from the Chair. Therefore, in the demand of natural justice, this court is of the opinion that such notice is required to be served on the Chairperson before moving the motion along with other Councillors in terms of clause (c) of sub-Section (2) of Section 54. With such conclusion this court sets aside the impugned notice of the Collector and District Magistrate dated 15th April, 2024 under Annexure-1 series. 11. It is made clear that the authorities concerned are free to fix fresh meeting of the Council on the motion, in accordance with law, with service of notice on the Chairperson.
Decision
12. The writ petition is disposed of accordingly. Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 02-Jul-2024 17:28:14 M.K. Panda/PA (B.P. Routray) Judge WP(C) No.9712 of 2024 Page 10 of 10