The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 2303 of 2024 An appeal arising out of the order dated 09.08.2024 passed by the learned Single Judge in W.P.(C) No. 19261 of 2024. -------------- Sanjukta Behera ..…. Appellant -versus- Collector & District Magistrate, Kalahandi …… Respondent --------------------------------------------------------------------------------- For Appellant : Mr. Sushanta Kumar Joshi, Advocate For Respondent : Mr. L. Samantaray, Additional Government Advocate --------------------------------------------------------------------------------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 28.08.2024 Savitri Ratho, J This intra court appeal has been filed challenging a order dated 09.08.2024 passed by a learned Single Judge of this Court in W.P.(C) No. 19261 of 2024 as well as notice dated 02.08.2024 issued by the respondent fixing the date of meeting on 12.08.2024 and to allow the appellant to continue as chairperson of Bhawanipatna Municipality. W.A. No. 2303 of 2024 Page 1 of 10 2. The petitioner, who is the Chairperson of Bhawanipatna Municipality had earlier filed W.P. (C) No.16534 of 2024 challenging notice dated 06.07.2024 issued by the Collector and District Magistrate, Kalahandi under Section 54(2)(c) of the Orissa Municipal Act, 1954, (in short “the Act”) convening a special meeting of the Council on 12.07.2024, on the ground that copy of the proposed resolution and requisition had not been sent to her with the notice. 3. W.P.(C) No. 16534 of 2024 had been allowed by the learned Single Judge, on 31.07.2024 setting aside the notice by the learned Single Judge. The operative portion of the order is extracted below : “As per the impugned notice under Annexure-1, the no confidence motion has been scheduled against the Petitioner as the Chairman of Bhawanipatna Municipality.
Legal Reasoning
It is contended on behalf of the Petitioner that though the notice has been served on him but the same was without copy of any resolution and requisition. But it appears from the impugned notice itself that the copy of resolution is appended along with the notice. The allegation of the Petitioner that the notice is served without copy of resolution is not substantiated by materials except the averments. However it appears from Annexure-1 that, “the copies of resolution along with the resolution passed by the members of the Council were enclosed with the notice for information of all concerned”. Therefore, the prima facie W.A. No. 2303 of 2024 Page 2 of 10 belief is made to the mind of the court that the notice has been served without the copy of the requisition as prescribed in Section 54(2)(c) of the Odisha Municipality Act. Accordingly, the impugned notice under Annexure-1 is set aside and the Collector-cum District Magistrate, Kalahandi is directed to proceed in the matter by issuing a fresh notice in accordance with the provisions contained in the Odisha Municipality Act and Rules.” 4. Thereafter notice dated 02.08.2024 was issued to the petitioner by the Collector -cum- District Magistrate, Kalahandi under Section 54(2)(c) of the Act, alongwith the proposed resolution and the requisition convening the special meeting on 12.08.2024. This notice was challenged by the petitioner in W.P. (C) No.19261 of 2024 which was dismissed by the learned Single Judge on 09.08.2024. 5. While dismissing the writ petition, the learned Single Judge has observed as follows:- 3. The Petitioner is the Chairperson of Bhawanipatana Municipality against whom the no-confidence motion was proposed by the Councilors. Initially by notice dated 6th July, 2024 of the Collector-cum-District Magistrate, the same was allegedly communicated to the Petitioner which was challenged before this court by the Petitioner in WP(C) No.16534 of 2024. This court by order dated 31st July, 2024 while setting aside said notice, has directed the Collector to proceed afresh for the no-confidence motion W.A. No. 2303 of 2024 Page 3 of 10 in accordance with the provisions of the Odisha Municipal Act. 4. Thereafter a fresh notice was issued on 2nd August, 2024 under Annexure-2 fixing the date of meeting for no- confidence motion on 12th August, 2024. This is challenged by the Petitioner again in the present writ petition. 5. It is submitted on behalf of the Petitioner that the purported resolution adopted by the councilors for no- confidence motion against the Chairperson is not genuine and has been manufactured. 6. Such contention of the Petitioner at this stage is not entertainable and moreover, this court has no scope to look into the merits of the resolution at this stage also. Accordingly, no merit is seen in the challenge of the Petitioner to the notice dated 2nd August, 2024 under
Decision
Annexure-2. Resultantly the writ petition is dismissed.” 6. Mr. Sushanta Kumar Joshi, learned counsel for the appellant submits that at the instance of Collector and Dist. Magistrate, Kalahandi, notice No.1131 dated 06.07.2024 had been issued to the appellant for convening a special meeting on 12.07.2024 for voting on the proposal of no confidence motion against the appellant. The same had been challenged in W.P.(C) No.16534 of 2024 by the appellant and after hearing both the parties, by order dated 31.07.2024 the writ petition was allowed and the impugned W.A. No. 2303 of 2024 Page 4 of 10 notice dated 06.07.2024 was quashed. He further submits that on 28.06.2024 the council meeting had been convened under the chairmanship of the appellant as chairperson but the resolution had been tampered at the instance of one of the staff of the Municipality so on 01.07.2024 the appellant brought it to the notice of the Collector. So it was incumbent on the part of the Collector to inquire into the matter to ascertain the correctness of the requisition and resolution, but without doing so, notice has been issued for convening a meeting on 12.08.2024 for voting on the no confidence motion. He further submits that the earlier notice dated 06.07.2024 was quashed by this Court, but basing on the same requisition and proposed resolution, on 02.08.2024 the Collector Kalahandi has again issued the impugned notice directing the appellant to remain present in the Office of Municipality Council Hall on 12.08.2024, which is not permissible. 7. From the averments in the writ appeal and the submission of the learned counsel for the appellant, it is apparent that the Special meeting had been scheduled to be held on 12.08.2024. From a perusal of the record, it is apparent that the writ appeal has been filed on 12.08.2024. Today being 28.08.2024, the writ appeal has become W.A. No. 2303 of 2024 Page 5 of 10 infructuous. But we have thought it fit to go into the contentions raised by the learned counsel for the Appellant. 8. 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 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. W.A. No. 2303 of 2024 Page 6 of 10 (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; (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; W.A. No. 2303 of 2024 Page 7 of 10 (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 along with a copy of the proceedings to the District Magistrate for information and such action as may be necessary.” (emphasis supplied) 9. Proviso (ii) to Sub-section (1) of Section 54 of the Act of 1960, 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. 10. The previous notice dated 06.07.2024 fixing the meeting on 12.07.2024 was quashed by this Court in W.P.(C) No. 16534 of 2024, as a result of which no meeting for moving the resolution for recording want of confidence in the petitioner was held pursuant to the said notice . So the contention of the learned counsel for the W.A. No. 2303 of 2024 Page 8 of 10 appellant that basing on the same requisition and proposed resolution, another meeting could not have been fixed in the same calendar year, has no force and is rejected. This has already been decided by us in the case of Smitarani Mohanty vs. Collector (W.A. No.1935 of 2024 decided on 18.07.2024). 11. The second contention of the learned counsel for the appellant, that without enquiring into the allegations regarding tampering with the resolution on 28.06.2024, submitted by the petitioner to the Collector and District Magistrate on 01.07.2024, the Special meeting could not have been convened, is also liable to be rejected for the following reasons : i) Such plea / contention should have been raised in the first writ application for which the contention has rightly been rejected by the learned Single Judge on the ground that such contention could not be entertained at that stage. ii) The truth in the allegation that the resolution was tampered with or was a manufactured one would be put to test during voting on the proposed resolution by the councillors in the special meeting , as the councillors would be the best persons to decide if their resolution had been tampered with or was a genuine one. W.A. No. 2303 of 2024 Page 9 of 10 12. As we do not find any infirmity in judgment of the learned Single Judge or any merit in the contentions of the learned counsel for the Appellant, the Writ Appeal is dismissed. Chief Justice (Chakradhari Sharan Singh) (Savitri Ratho) Judge Orissa High Court, Cuttack. The 28th August, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Nov-2024 12:25:11 W.A. No. 2303 of 2024 Page 10 of 10