The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1935 of 2024 An appeal arising out of the judgment dated 28.06.2024 passed by the learned Single Judge in W.P.(C) No. 9712 of 2024. -------------- Smt. Smitarani Mohanty ..…. Appellant -versus- 1. State of Odisha 2. Phulbani Municipality, Phulbani 3. Collector & District Magistrate, Kandhamal 4. Addl. Collector (Revenue), Kandhamal 5. Mrutyunjaya Pera …… Respondents --------------------------------------------------------------------------- For Appellant : Mr. Samir Kumar Mishra, Senior Advocate & Ms. P. Mohanty, Advocate For Respondents : Mr. Saswat Das, A.G.A. (Respondent Nos.1 to 4) Mr. Milan Kanungo, Senior Advocate & Mr. S.R. Mohanty, Advocate (Respondent No.5) ---------------------------------------------------------------------------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 18.07.2024 Savitri Ratho, J This intra court appeal has been filed challenging a judgment dated 28.06.2024 passed by a learned Single Judge of
Legal Reasoning
this Court in W.P.(C) No.9712 of 2024 to the extent it directs the W.A. No. 1935 of 2024 Page 1 of 10 respondents-authorities to fix a fresh meeting of the Phulbani Municipal Council (in short “Council”) on the motion of no confidence in accordance with law. 2.
Decision
The writ petition had been filed by the appellant, who is the Chairperson of Phulbani Municipality, challenging notice No. 674 dated 15.04.2024 issued by the Collector and District Magistrate, Kandhamal, Phulbani to the Councilors convening a meeting of the Council on 23.04.2024 at 10.00 AM, issued in terms of Section 54 (2) of the Odisha Municipal Act, 1950 (in short the “Act of 1950”), on the no confidence motion proposed against her by 11 out of 13 Councillors of the said Council, to be presided over by the Addl. Collector (Revenue), Kandhamal primarily on the following grounds:- (i) The meeting proposing the vote of no confidence was held in complete violation of the provisions of the Act as notice of the emotion was not brought to the knowledge of the Chairman. (ii) The resolution had not been passed in accordance with the procedure provided. iii) The allegation leveled against the petitioner in the resolution was baseless. (iv) No notice of the proposed resolution and meeting had not been sent to the writ petitioner, W.A. No. 1935 of 2024 Page 2 of 10 which amounted to violation of principles of natural justice. 3. The Councillors who had proposed the motion for no confidence had intervened in the writ petition through their counsel and opposed the writ petition stating that neither the Municipality Act nor the Rules prescribed for issuance of the notice of motion to the Chairperson and in absence of any such express provision, the question of observing the principles of natural justice by serving notice on the petitioner was not required. 4. The submissions made on behalf of the intervenors was supported by the learned State Counsel. 5. The learned Single Judge after referring to the provisions of Section 54 of the Orissa Municipal Act, has noticed that there is provision to give notice to all the Councillors but the Chairperson or Chairman is not included. Prior to the 2018 amendment to Orissa Municipal Act, the Chairman of the Council happened to be one of the Councilors and if in that context Section 54(2) would be read then notice of no confidence was to be served on the Chairperson in the capacity of a Councilor. After the 2018 amendment to the Act of 1950, the Chairperson was required to be elected directly by the people. But the Legislature, while amending the provisions of the Act and the Rules, consciously left the W.A. No. 1935 of 2024 Page 3 of 10 provisions under Section 54(2) not to include the chairperson of the Municipality for service of notice. Referring to Section 54 (2) of the Act of 1950 and the Rules 3 to 11 of the Odisha Municipal Rules, the learned Single Judge further held that as the motion proposed against the Chairperson, would have the effect of unseating him from his chair, so the rules of natural justice demanded that the notice was required to be served on the Chairperson along with the other Councilors, in terms of the Clause (c) of Sub-Section (2) of Section 54 before moving the motion. The impugned notice of the Collector and District Magistrate dated 15.04.2024 under Annexure-1 series was ultimately set aside and the authorities were granted the freedom to fix a fresh meeting of the Council on the motion in accordance with law with service of notice to the Chairperson. The relevant portion of the judgment is extracted below : “10. …… “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 W.A. No. 1935 of 2024 Page 4 of 10 opportunity of hearing should be granted to the party affected by the action. When the 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 light 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.”…. 6. Mr. Samir Kumar Mishra, learned Senior Counsel referring to the proviso (ii) to sub-section (1) of Section 54 of the Odisha Municipal Act, 1950 has submitted that the direction of the learned Single Judge to fix a fresh meeting is liable for interference as the earlier notice had been set aside due to lack of notice on the appellant and a meeting could not be convened within one calendar W.A. No. 1935 of 2024 Page 5 of 10 year. He has further submitted that pursuant to such direction of the learned Single Judge, a fresh notice has been issued fixing the meeting for deciding the motion of no confidence, which is in violation of the proviso (ii) to Section 54(1) of the Act inasmuch as the first meeting had been fixed to 23.04.2024 and the second meeting is fixed to a date which is within one calendar year of the first meeting. 7. Section 54 of the Act of 1950 is extracted below:- “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 Vice-Chairperson vacating office the District Magistrate or his nominee shall W.A. No. 1935 of 2024 Page 6 of 10 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 copy of the resolution and of the proposed resolution, at least three clear days before the date so fixed; W.A. No. 1935 of 2024 Page 7 of 10 (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 Subsection (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 (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 W.A. No. 1935 of 2024 Page 8 of 10 along with a copy of the proceedings to the District Magistrate for information and such action as may be necessary.” 8. Proviso (ii) to Sub-section (1) of Section 54 of the Act of (emphasis supplied) 1960, thus contains an embargo that a resolution recording want of confidence in the Chairperson or the Vice-Chairperson shall not be moved more than once during a calendar year. 9. It would be apposite to mention that while issuing notice in W.P.(C) No.9712 of 2024, where the notice dated 15.04.2024 convening a meeting of the Council on 23.04.2024 had been challenged, the learned Single Judge had passed the following order: “8. Upon hearing Mr. Mishra and Mr. Kanungo, it is directed in the interim that, no such meeting of the Municipality regarding “No Confidence Motion” shall be convened till 15th May, 2024.” The aforesaid interim order has been extended on subsequent dates, till the writ application was finally disposed of and the notice convening the meeting on 23.04.2024 was set aside on 28.06.2024 by the learned Single Judge. It is not disputed that no meeting has been held till date on the proposed motion of no confidence. W.A. No. 1935 of 2024 Page 9 of 10 10. From the above sequence of events and orders passed in W.P.(C) No. 9712 of 2024, is it is apparent the proposed resolution for recording want of confidence in the Chairperson has not been moved as no meeting has been held pursuant to the notice dated 15.04.2024. So the question of moving the resolution more than once during a calendar year does not arise, as in effect the resolution has not been moved till date. That apart, no fresh resolution has been proposed by the Councilors and it is the earlier proposed resolution which is scheduled to be moved in the meeting. So the submission of the learned Senior Counsel that the judgment of the learned Single Judge is liable for interference for allowing the authorities to fix a fresh meeting as it is in violation of the second proviso (ii) to Section 54 (1) of the Act of 1950, is bereft of merit. 11. As we do not find any infirmity in judgment of the learned Single Judge, we find no merit in the writ appeal and accordingly dismiss the same. (Chakradhari Sharan Singh) Chief Justice Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 23-Jul-2024 11:33:45 (Savitri Ratho) Judge Orissa High Court, Cuttack. The 18th July, 2024. SK Jena, Secretary W.A. No. 1935 of 2024 Page 10 of 10