The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) Nos.22656 & 22661 of 2024 An application under Article 226 & 227 of the Constitution of India. ……………… Priyanka Gouda …. Petitioner -versus- State of Odisha & Others …. Opp. Parties For Petitioner : M/s. P.K. Rath, Sr. Adv., S.P.Sarangi, N. Dadhichi, A. Kar and A. Tripathy, Advocates (in W.P.(C) No.22656 of 2024 M/s.B. Routray, Sr.Adv (in W.P.(C ) No.22661 of 2024) For Opp. Parties: M/s. Pitambar Aharya, Advocate General along with Mr. M.K..Balabantaray, Addl. Govt. Advocate. Mr. P.K. Mohapatra,Adv. (for O.P.No.5 to 13 in W.P.(C ) No.22656 of 2024) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 30.09.2024 and Date of Judgment: 09.10.2024 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. // 2 // 2. Since both the Writ Petitions have been filed challenging the notice issued by the Collector and District Magistrate, Ganjam on 04.09.2024 to hold the No Confidence Motion against the Charman of Purusottampur N.A.C, both the Writ Petitions were heard analogously and disposed of by the present common order. 3. While W.P(C ) No.22656 of 2024 has been filed by the Chairperson of Purusottampur Notified Area Council (in short, ‘Council’ )challenging the notice dt.04.09.2024, W.P.(C ) No.22661 of 2024 has been filed by two of the Ward Members of the Council representing Ward No 11 and Ward No.6 respectively. Both the Writ Petitions were filed challenging the impugned notice dt.04.09.2024 so issued by the Collector-cum-District Magistrate, Ganjam-Opp. Party No.2 inter alia on the ground that provisions contained under Section 54(2)(c) of the Odisha Municipality Act, 1950 (hereinafter called, “the Act”) since has not been followed, the impugned notice is not sustainable in the eye of law. Page 2 of 43 // 3 // Section 54(2) of the Act reads as follows: in “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 the Chairperson or Vice- confidence 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 the District Magistrate or his nominee shall discharge the responsibilities of the Chairperson till a new Chairperson is elected. vacating office [Provided that no such resolution recording want of confidence in the Chairperson or the Vice- Chairperson- (1) 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 alongwith a copy of the resolution of proposed to be moved at the meeting; Page 3 of 43 // 4 // (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 requisition 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 authorised 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 the Chairperson or Vice- Chairperson, as the case may be, shall be taken up for consideration at the meeting; in (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 (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 Page 4 of 43 // 5 // resolution along with a copy of the proceedings to the District Magistrate for information and such action as may be necessary.]
Legal Reasoning
3.1. Since it was contended in both the Writ Petitions that provisions contained under Section 54(2) (c ) of the Act has not been followed while issuing the impugned notice dt.04.09.2024, this Court while issuing notice of the matter vide order dt.12.09.2024 passed an interim order to the following effect in W.P.(C ) No.22456 of 2024. xxx xxx xxx “Order 12.09.2024 I.A. No.12081 of 2024 1. Notice as above. 2. In the interim, the vote of no confidence as proposed, may take place but no further consequential action be taken on the same till the next date.” 3.2. It is also contended that since 7 out of 9 Councillors who have made the requisition and the resolution proposing No Confidence against the Chairman of the Council have defected to another party on 02.09.2024, the Page 5 of 43 // 6 // requisition signed by 9 Councillors should have been taken as a requisition signed by only two Councillors and thereby the said requisition is not in terms of the provisions contained under Section 54(2)(a) of the Act. 3.3. It is also contended that one of the Councilors i.e. Petitioner No.1 in W.P.(C ) No.22661 of 2023 has already made a complaint before the State Election Commission on 04.09.2024 to disqualify 7 Councillors who have defected to another party taking recourse to the provisions contained under Section 46-A read with Section 46-D of the Act. It is further contended that if the complaint made before the State Election Commission will be accepted, then 7 of the Councillors out of 9 Councilors, who have made the requisition, will face disqualification and will no more remain as Councillors of the Council w.e.f 02.09.2024and thereby will not be eligible to make the requisition. 3.4. It is also contended that the impugned notice dt.04.09.2024 since never indicates that the notice is accompanied by the Requisition as well as the Resolution in Page 6 of 43 // 7 // terms of the provisions contained under Section 54(2)( c )of the Act, the said notice is not only illegal, but also unsustainable in the eye of law and requires interference of this Court. 4. On their appearance, a counter affidavit was filed on behalf of Opp. Party Nos.2 & 4. Placing reliance on the stand taken in the counter affidavit in both the Writ Petitions and additional affidavit filed by the State on 03.10.2024 in W.P(C ) No.22661 of 20124, Mr. Pitambar Acharya, learned Advocate General along with Mr. M.K. Balabantaray, learned Addl. Govt. Advocate contended that on receipt of the requisition made by 9 Councillors out of the 13 Councilors of the Council dt.02.09.2024 and the Resolution dt.26.08.2024, Opp. Party No.2 issued the notice on 04.09.2024 proposing therein to hold the Vote of No Confidence against the Chairman of the Council on 12.09.2024. 4.1. It is contended that Opp. Party No.2 by enclosing the requisition as well as the resolution along with the Page 7 of 43 // 8 // impugned notice dt.04.09.2024 directed Opp. Party No.4 to serve the notice dt.04.09.2024 along with the requisition and resolution on all the Councilors of the Council including the Chairperson, Petitioner in W.P.(C ) No.22456 of 2024. 4.2. It is contended that even though notice along with the requisition and resolution were duly served on 05.09.2024 on 10 of the Councillors, but such notice along with the requisition and resolution could not be served on the Petitioner in W.P.(C ) No.22456 of 2024 as well as the Petitioners in the connected W.P.(C ) No.22461 of 2024. The Process Server so engaged by Opp. Party No.4 to serve the notice along with the Resolution and Requisition when failed to serve the notice along with the resolution and requisition on the Petitioners in both the cases on two occasions, the notice along with Resolution and Requisition was affixed in the front door of the residence of all the Petitioners, as reflected from Annexure-B/4 series to the Page 8 of 43 // 9 // counter filed in both the cases and the additional affidavit filed in W.P.(C ) No.22461 of 2024. 4.3. Learned Advocate General vehemently contended that since the notice along with the requisition and resolution were not accepted by the Petitioners in both the cases, the same since was affixed in the front door of the residence of the Petitioners, it is to be treated that the notice dt.04.09.2024 along with the requisitions and resolution has been duly served on all the Petitioners. 4.4. It is also contended that even though in the Writ Petition, a stand was taken that the impugned notice is not accompanied along with the requisition and resolution, but a stand has been taken in the Writ Petition that the requisition dt.02.09.2024 has been signed by 9 of the Councillors and 7 out of the 9 Councillors have defected to another party on 02.09.2024 and against whom complaint has been made for their disqualification. In view of such
Decision
pleadings made in the Writ Petition, it is to be held that the Page 9 of 43 // 10 // impugned notice is accompanied by the requisition as well as the resolution. 4.5. It is also contended that even though copy of the impugned notice along with the requisition and resolution was affixed in the front door of the residence of the Petitioners on 06.09.2024, but the same was never disclosed by the Petitioners in both the cases while filing the Writ Petition on 10.09.2024. It is accordingly contended that since Petitioners in both the cases have not approached this Court with clean hand, they are not eligible and entitled to get any relief. 4.6. In support of the aforesaid contention, learned Advocate General relied on a decision of the Hon’ble Apex Court in the case of K.D Sharma Vs. Steel Authority of India Ltd. and Others, (2008) (12) SCC 481, Hon’ble Apex Court in Paragraph 34,35,36,38 & 39 of the said judgment has held as follows: jurisdiction of 34. The under Article 32 and 226 of under Article the Supreme Court the High Court is of the Constitution Page 10 of 43 // 11 // extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of the Court, his petition may be misleading dismissed at the threshold without considering the merits of the claim. 35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 : to maintain, "…..it has been for many years the rule of the Court, and one which it is of the greatest importance that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement". 36 .A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the Page 11 of 43 // 12 // action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public to deter unscrupulous litigants from abusing the process of Court by deceiving it. interest 38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play ‘hide and seek’ or to ‘pick and choose’ the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The in very basis of the writ disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". jurisdiction rests the Court with 39. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and ‘clean breast’ cannot hold ‘soiled hands’. a writ of Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to Page 12 of 43 // 13 // discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court. 4.7. Similarly, reliance was also placed to a decision of the Hon’ble Apex Court in the case of Ramjas Foundation and Another Vs. Union of India and Others, (2010 ) 14 SCC 38. Hon’ble Apex Court in Paragraph-21 of the said judgment has held as follows: filed petitions under Articles “21.The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case.” falsehood to 4.8. Learned Advocate General accordingly contended that since the impugned notice dt.04.09.2024 accompanied by the requisition and resolution was duly served on the Page 13 of 43 // 14 // Petitioners in both the cases with due affixtures because of their refusal to accept the notice, it is to be treated that the impugned notice is in terms of the provisions contained under Section 54(2) (c ) of the Act. But by suppressing the service of the notice along with the requisition and resolution, since the Petitioners have approached this Court, they are not eligible and entitled to get any relief. 4.9. It is further contended that in terms of the interim order passed by this Court on 12.09.2024, the Vote of No Confidence was held on the date fixed and in the said Vote of No Confidence,10 of the Councillors out of the total 13 Councillors have casted their vote in support of the No Confidence. But because of the interim order, no consequential action has been taken to publish the result and consequential publication of the same in the Orissa Gazettee Extraordinary. It is accordingly contended that since the provisions contained under Section 54(2 ) of the Act has been duly followed, no interference is called for as prayed for in both the Writ Petition. Page 14 of 43 // 15 // 5. To the stand taken in the counter affidavit, learned counsels appearing for the Petitioners in W.P.(C) No.22456 of 2024, made further submission basing on the stand taken in the rejoinder affidavit so filed. While reiterating the stand that the impugned notice is not accompanied along with the requisition and resolution which amounts to non-compliance of the provisions contained under Section 54 (2)(c ) of the Act, learned Sr. Counsel appearing for the Petitioner contended that only copy of the impugned notice was affixed on the front door of the Petitioners on 06.09.2024, as found from Annexure-8. It is contended that on 06.09.2024 as reflected in Annexure-8, only copy of the impugned notice dt.04.09.2024 was affixed in the front door of the Petitioner’s residence. 5.1. It is also contended that since the impugned notice dt.04.09.2024 has been issued by Opp. Party No.2 without reflecting that the notice is accompanied by the requisition and resolution, the same could not have been served through Opp. Party No.4 and stand of Opp. Party No.4 that Page 15 of 43 // 16 // the impugned notice was served along with the requisition and resolution cannot be accepted. Similar stand was also taken by the learned Sr. Counsel appearing for the Petitioners in the connected W.P.(C ) No.22461 of 2024. 5.2. It is also further contended by the learned Sr. Counsel appearing for the W.P.(C ) No. 22656 of 2024 that on the face of the interim order passed by this Court, after holding the Vote of No Confidence at 12 Noon on 12.09.2024 in the Conference Hall of the NAC, counting of the secret ballots so casted was made. It is accordingly contended that the Opp. Parties have violated the impugned order passed by this Court on 12.09.2024 and the said fact be taken note of by this Court. 5.3. Learned Sr. Counsel appearing for the Petitioner in support of non-compliance of the provisions contained under Section 54(2) (c) of the Act relied on the decisions in the case of 1. Mamata Behera V. State of Odisha & Others, 2020 (I) OLR - 470 Page 16 of 43 // 17 // 2. Smt. Kamala Tiria Vs. State of Orissa & Others, 91 (2001) C.L.T. 159 3. Prahallad Dalei Vs. State of Odisha & Others , 2016 (I) CLR - 559 4. Damyanti Hansda Vs. State of Odisha & Others., 2020 (III) ILR-CUT-126 In the case of Mamata Behera, this Court in Paragraph 11 & 14 has held as follows: 11. In case of Kamala Tiria (Supra), the resolution passed in the specially convened meeting regarding the want of confidence in the Chairperson of the Zilla Parishad as also the notification of the Government in the Department of Panchayat Raj publishing that resolution have been quashed for the reasons of non- compliance of the provisions in that regard as contained in Odisha Zilla Parishad Act, which are in pari material with the provision of Section 54 of the O.M. Act that the proposal to be moved in the meeting had not been sent to the authority along with the requisition and thus not circulated to all the members. In case of Muktamanjari Sahoo (Supra), the notice issued by the authority for convening a special meeting of the Gram Panchayat for discussion of the no confidence motion against its Sarpanch has been quashed in the absence of the copy of the proposed resolution being enclosed by those 1/3rd of the total members of the Gram Panchayat to the authority with the requisition and obviously for the reason of its non- circulation to all the members. in which want of confidence In Prahallad Dalei’s case (Supra), the court finally quashed the resolution passed by the Gram Panchayat in the Sarpanch had been recorded on the ground that the authority while issuing the notice expressing the decision to convene the specially meeting of the Panchayat for the purpose had not enclosed the copy Page 17 of 43 // 18 // of the proposed resolution for being served upon all the members of the Panchayat. 14. So being taken that this was the proposed resolution, the requisition as required under the law is wanting. xxx xxx xxx The well recognized rule and sound principles are that when the statute gives the power to do a certain thing in a certain manner, the thing must be done in that way or not at all. Statute conferring a power for doing an act when lays down the method in which the power has to be exercised, it necessarily prohibits the doing in any other manner than that has been prescribed. Here, the decision of opposite party no. 2 in convening the meeting is clearly the outcome of non- application of mind as to the satisfaction of the twin requirements as provided in clause (b) and (c) of sub- section 2 of section 54 of the O.M. Act. In the case of Smt. Kamala Tiria, this Court in Paragraph-5 & 6 has held as follows: 5. Before considering the contentions raised in the case, it would be appropriate to refer to Section 39 of (hereinafter the Orissa Zilla Parishad Act, 1991 referred to as ‘the Act’) which deals with the procedure of recording want of confidence in the President or Vice- President of the Zilla Parishad. Sub-section (1) thereof lays down that if a resolution is passed at a meeting of the Parishad specially convened for the purpose supported by a majority of not less than two-thirds of the total members having a right to vote expressing want of confidence in the President/Vice-president of such Parishad, such resolution will be forthwith published in the prescribed manner and with effect from the date of such publication the President or Vice- President against whom resolution is passed shall be deemed to have vacated the office. Sub-section (2) containing different clauses deals with the mode of Page 18 of 43 // 19 // containing the special meeting. It is necessary to quote and extract its relevant clauses: “Sec. 39(2): xxxxxxxx (a) no such meeting shall be convened except on a requisition signed by at least one-third of the members with a right to vote along with a copy of the resolution proposed to be moved at the meeting; (b) the requisition shall be addressed to the Revenue Divisional Commissioner; (c) the Revenue Divisional Commissioner on receipt of such requisition shall fix the date, hour and place of such meeting and give notice of the same to all the members with a right to vote along with a copy of the requisition and of the proposed resolution at least seven clear days before the date so fixed; (d) the Revenue Divisional Commissioner or when he is unable to attend, any other Gazetted Officer not below the rank of a Class I Officer of the State Civil Service, authorised by him, shall preside over and conduct the proceedings of the meetings; (e) to (l) xxxxxxxx” It provides that no such meeting shall be convened except a requisition signed by at least one-third members with a right to vote along with the copy of the resolution proposed to be moved at the meeting. The requisition will be addressed to the Revenue Divisional Commissioner who on receipt of it shall fix the date, hour and place of such meeting and give notice of the same to all the members with a right to vote along with the copy of the requisition of the proposed resolution at least seven clear days before the date so fixed. The said meeting shall be presided over and conducted by the Revenue Divisional Commissioner or in his absence any such Gazetted Officer not below in the rank of Class-I Officer of State Civil Service authorised by him. Page 19 of 43 // 20 // A close and careful reading of the aforesaid would show that before convening the special meeting for recording want of confidence in the President or the Vice-president of the Parishad, it should be preceded by a requisition to be addressed to the Revenue Divisional Commissioner signed by at least one-third of the members with a right to vote. The requisition is required to be accompanied with a copy of the resolution proposed to be moved at the meeting. On receipt of such requisition the Revenue Divisional Commissioner will give notice fixing the date, hour and place of such meeting to all the members with a right to vote along with a copy of the requisition and of the proposed resolution to be passed at such meeting. 6. As already noted, Clause (a) of sub-Section (2) of Section 39 of the Act requires that the requisition shall be addressed to the Revenue Divisional Commissioner which is required to be signed by at least one-third of the members with a right to vote. Alongwith the requisition, a copy of the resolution proposed to be moved in the specially convened meeting has to be enclosed. Annexure-2 is practically a forwarding letter written by one of the members of the Zilla Parishad to the Revenue Divisional Commissioner requesting him to convene a special meeting to pass the agends “vote of no confidence against Smt. Kamala Tiria, President, Mayurbhanj Zilla Parishad”. Now coming to Annexure-3 it is the submission of the learned counsel appearing for the contesting parties that it is a consolidated document comprising the requisition to the Revenue Divisional Commissioner requesting him to convene a special meeting as well as the resolution proposed to be moved in the said special meeting. Learned counsel had taken that stand because admittedly no other document evidencing a proposed resolution to be Page 20 of 43 // 21 // moved in the specially convened meeting was enclosed to the so-called requisition. We have carefully perused Annexure-3 extracted above. On its reading it appears that a meeting was held on 5-11-1999 in which there was discussion that the petitioner should no more continue as the President of Zilla Parishad because of her arbitrary actions, etc. and accordingly it was decided in the meeting to move the Revenue Divisional Commissioner for convening a special meeting as required under Section 39(1) of the Act. There is nothing in Annexure-3 to assume that it also contained the proposed resolution to be moved in the meeting to be specially the Revenue Divisional Commissioner. This being the factual position, there is no compliance of sub-Clause (a) of sub-Section (2) of Section 39 of the Act. In the facts and circumstances, it is not possible to hold that there was substantial compliance of the provision. Therefore, pre-condition of the specially convened meeting held on 19-1-2000 having not been satisfied, resolution passed on that day (19-1-2000) regarding want of confidence in the petitioner cannot be supported in law and has to be declared null and void. We order accordingly. convened by As the writ petition succeeds on this ground, we need not proceed to examine the other submissions raised on behalf of the petitioner. In the case of Prahallad Dalei, this Court in Paragraph 10 & 12 has held as follows: 10. 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 for the requisition to be sent by 1/3rd members of the Page 21 of 43 // 22 // Grama Panchayat or for the proposed resolution to be moved. (ii) If the intention of the requisite number of members is clear from the resolution adopted 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 12. In the result, the writ petition is dismissed. The result of the No Confidence Motion kept in sealed cover be declared forthwith and action in accordance with law be taken pursuant to such resolution. In the case of Damyanti Hansda, this Court in Paragraph 11,12 & 13 has held as follows: 11. The position is settled that when the statutory functionary issues the notice for a particular purpose, and there remains certain conditions to be fulfilled while issuing the said notice, its validity must be judged by looking at the said notice as to whether those aspects even though have not been stated in detail yet if sufficient hints to that effect have been provided or appears in support of the compliance of the mandatory conditions laid down in law in that behalf so as to hold substantial compliance of those. But certainly, its substitution cannot be through an affidavit or otherwise. The reason being that the said notice being made in the beginning without the compliance to that effect cannot be so rectified when it comes to the courts on account of challenge as indicated in the petition, by any other mode like taking averment in the counter or by affidavit. So, for the purpose whether the Page 22 of 43 // 23 // copy of the requisition given by the opposite party nos.4 to 12 and the resolution that they proposed to move in the said specially convened meeting had been sent with the notice under Annexure-1 is to be construed objectively with reference to the language used or the expression given in the notice. 12. In the case at hand, the notice being in Odia language, the well accepted Odia Language Lexicon “Purna Chandra Bhasakosha” compiled by Late Gopal Chandra Praharaj, the famous celebrated writer and linguist in Odia language significantly contributing to the Odia literature by his words as well as completing such herculean task of listing, some one lakhs eighty- five thousand words and their meanings in four languages, i.e., in Odia, English, Hindi and Bengali, is bound to be referred to in order to address the rival submission. The word (alochya) as finds mention in the notice under Annexure-1 is there at page-823 of Vol.1 (The Vowels) of Purna Chandra Bhasakosha. The synonyms of word (alochya) is (bichar jogya), i.e.., “fit to be The next considered”; “deserving consideration”. synonym is “ (bicharadhina), which is “under consideration.”Thus, the word (alochya) does not mean or represent either the English word “requisition” or “resolution”. Similarly, the next odia word (prastaba) as finds mention in the notice as at Annexure-1, is there at page-5142 of the 4th volume of Purna Chandra Bhasakosha. Its synonyms are (prasanga) and (Bisaya), which are “subject”;“matter” & “topic”. The Oxford English-English-ODIA Dictionary published by Oxford University Press in its 1st edition in the year 2004 gives the meaning of the word “requisition” at page 888 as (Kaunasi Kartabya Sampadana Paaini Sarakari Adesha; Kama Paain Dakara; Adhikarbhukta Kariba Page 23 of 43 // 24 // Paain dabi Kariba or adesha deba). Similarly, the word “resolution” at page 890 of that dictionary is (sankalapa; drudha pratigyan; anusthanika prastaba). 13. In the wake of aforesaid, the notice issued by the opposite party no.3 in convening a special meeting of the Grama Panchayat to consider No Confidence Motion against the petitioner, the elected Sarpanch under Annexure-1 stands quashed. Consequently, the actions which have followed the said notice under Annexure-1 stand vitiated. 5.4. With regard to the stand taken in the counter affidavit that the notice along with the requisition and resolution was duly served by Opp. Party No.4, it is contended that since the impugned notice dt.04.09.2024 does not indicate that the notice is accompanied along with the requisition and resolution, the stand taken by Opp. Party No.4 that the notice along with the requisition and resolution were duly served by way of affixtures on all the three petitioners in both the cases through Opp. Party No.4 cannot be accepted, in view of the decision of the Hon’ble Apex Court in the case of Mahinder Singh Gill Vs. Chief Election Commissioner 1978 (1) S.C.C 405. Hon’ble Apex Court in Para 8 of the Judgment has held as follows:- Page 24 of 43 // 25 // in “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented fresh the shape of affidavit or reasons otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by later brought out. We additional grounds may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 (at p.18): by "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older: A Caveat”. 5.5. It is also contended that in view of the provisions contained under Section 54 (2)(c) of the Act, since the impugned notice is required to be accompanied with the requisition and the resolution and the same having not been indicated in the impugned notice itself from its bare Page 25 of 43 // 26 // perusal, the stand taken by Opp. Party No.4 that the impugned notice was duly served along with the requisition and resolution cannot be accepted. It is contended that if something has been provided to be done in a particular manner in the Statute, it has to be done in that manner only or not to be done at all. 5.6. In support of the same, learned Sr. Counsel appearing on behalf of the Petitioners relied on a decision of the Hon’ble Suprme Court in the case of Babu Verghese vs. Bar Council of Kerala, (1999) 3 SCC 422. Hon’ble Apex Court in Para-31 of the said judgment has held as follows : 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as under: traceable the to is “[W]here 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.” Page 26 of 43 // 27 // Similarly, in the case of Hussein Ghadially vs. State of Gujarat (2014) 8 SCC 425. Hon’ble Apex Court in Para-21.3 of the said judgment has held as follows: 21.3. Thirdly, because if the statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor [(1875) LR 1 Ch D 426] and adopted later by the Judicial Committee in Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372 : (1936) 44 LW 583 : AIR 1936 PC 253] and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322 : 1954 Cri LJ 910] , State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 Cri LJ 263 , Chandra Kishore Prasad [(1999) 8 SCC 266] Jha v. Mahavir , Dhanajaya Reddy v. State of Karnataka [(2001) 4 SCC 9 : 2001 SCC (Cri) 652] and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. [(2008) 4 SCC 755] The principle stated in the above decisions applies to the cases at hand not because there is any specific procedure that is prescribed by the statute for grant of approval but because if the approval could be granted by anyone in the police hierarchy the provision specifying the authority for grant of such approval might as well not have been enacted. (2)] 5.7. It is also contended that since as provided under Section 54 (2) (c ) of the Act, the notice was required to be issued and saved by the Collector-Opp. Party No.2, the said duty cannot be exercised by any one else as has been done Page 27 of 43 // 28 // by Opp. Party No.4. In support of the same, learned Sr. Counsel appearing for the Petitioner relied on the following decisions: 1 Commissioner of Police Vs.Gordhandas Bhanji (1951) SCC 1088, 1951 SCC Online SC 70. 2. Ganapati Singh Ji Vs. State of Ajmer (1954 2 SCC 819) In the case of Gordhandas Bhanji, Hon’ble Apex Court in Paragraph-11 has held as follows: 11. If the Commissioner of Police had the power to cancel the licence already granted and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested to whose them, and persons detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. in In the case of Ganapati Singh Ji, Hon’ble Apex Court in Paragraph-10 has held as follows: in at 10. In our opinion, the rules travel beyond the two respects. The least Regulation Regulation empowers the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation. He can only do this by bringing a system into existence and incorporating that all concerned can know what the system is and in his rules so it Page 28 of 43 // 29 // make arrangements to comply with it. What he has done is to leave it to the District Magistrate to see that persons desiring to hold a fair are in a position “to establish a proper system of conservancy, etc”. But who, according to this, is to determine what a proper system is : obviously the District Magistrate. Therefore, in effect, the District rules empower Magistrate to make his own system and see that it is observed. But the Regulation confers this power on the Chief Commissioner and not on the District Magistrate, therefore the action of the Chief Commissioner in delegating this authority to the District Magistrate is ultra vires. the 6. Mr. Buddhadev Routray, learned Sr. Counsel in support of his submission relied on the following decisions : 1. State of Haryana V. Devander Sagar, (2016) 14 SCC 2. Babanna Machched Vs. Union of India & Others, (2024) 5 SCC 306 In the case of Devander Sagar, Hon’ble Apex Court in Paragraph-8 has held as follows: xxx xxx xxx “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.” Page 29 of 43 // 30 // xxx xxx xxx In the case of Babanna Machched, Hon’ble Apex Court in Paragraph-26 has held as follows: “26. At the same time in Mohinder Singh Gill v. Chief Election Commissioner, it has been provide that the validity of the order impugned has to be tested on the basis of the reasoning contained therein and that the authorities are not supposed to supplement the same by means of extraneous material or affidavit before the Courts.” 7. To the submissions made by the learned Sr. Counsel appearing for the Petitioners, regarding service of the impugned notice by Opp. Party No.4 which is not in terms of the provisions contained under Section 54(2)(c ) of the Act, learned Advocate General contended that Section 54 (2)(c ) of the Act no where contemplates that the impugned notice has to be served only by Opp. Party No.2 and there is also no bar under the said provision for service of notice by Opp. Party No.2 through any other authority duly empowered by him. Page 30 of 43 // 31 // 7.1. It is contended that after receipt of the requisition and resolution with issuance of the impugned notice on 04.09.2024, Opp. Party No.2 permitted Opp. Party No.4 to serve the notices on all the Councillors of the Council including the present Petitioners along with the requisition and resolution by passing an order to that effect. In terms of the said order, Opp. Party No.4 served the notice along with the requisition and resolution on 10 of the Councilors on 05.09.2024. But since the notice along with the requisition and regulation were not accepted by the Petitioners in both the cases in spite of being offered, the notice along with the requisition and resolution were affixed in the front door of the residences of the petitioners on 05.09.2024, which was never disclosed. 7.2. Even though it is not disputed that such a notice was affixed in the front door of the residence of the Petitioner in W.P.(C ) No.22656 of 2024, but since as reflected in Annexure-D/4 series, the notice along with the requisition and resolution were affixed in the front door of the Page 31 of 43 // 32 // residence of the Petitioners in both the cases, the plea taken by the Petitioner that only the notice was affixed cannot be accepted, as it is a disputed question of fact which cannot be adjudicated by this Court while exercising the power under Article 226 of the Constitution of India. 7.3. In support of the aforesaid submission, learned Advocate General relied upon the following decisions of the Hon’ble Apex Court. 1. (2021 ) 10 S.C.C 690 ( Union of India and Others Vs. Puna Hinda ) 2. (2023) SCC Online Del 4607 (Harpati and Others Vs. State of NCT of Delhi and Others. In the case of Puna Hinda, Hon’ble Apex Court in Paragraph-24 has held as follows: 24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, flavour, are better having no statutory adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is Page 32 of 43 // 33 // that payable are disputed questions of facts. There is no admission on the part of the appellants to the amount stands crystallised. infer Therefore, in the absence of any acceptance of joint survey report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e. arbitration and not by the writ court as it does not have the expertise in respect of measurements or construction of roads. Similarly, in the case of Harpati and Others, Hon’ble Apex Court in Paragraph-17 to 19 has held as follows: its jurisdiction 17. It is settled law that a High Court should not under Article 226 of exercise it raises disputed the Constitution of India when question of facts. The Hon’ble Supreme Court in the case of Chairman, Grid Corpn. of Orissa Ltd. (Gridco) v. Sukamani Das, (1999) 7 SCC 298 was dealing with the question of whether the High Court had made an error in entertaining a writ petition filed seeking compensation for the death of a person due to electrocution, which had allegedly been caused due to the negligence of the authorities. The Apex Court in the said case observed as under: “6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power Article 226 of the Constitution. The High Court went wrong in under Page 33 of 43 // 34 // by itself proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that “admittedly/prima facie amounted to negligence on the part of the appellants”. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to Appellant 1 had snapped and the deceased had come in contact with it and had died was not for awarding sufficient compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in OJC No. 5229 of 1995.” beyond control their 18. The been relied/reiterated by the Apex Court in S.P.S. judgment aforesaid has Page 34 of 43 // 35 // Rathore v. State of Haryana, (2005) 10 SCC 1 wherein it observed as follows: Ltd. petition legal position of “16. In Chairman, Grid Corpn. Orissa (Gridco) v. Sukamani Das [(1999) 7 SCC 298] the question which arose for consideration was, can the High Court under Article 226 of the Constitution award compensation for death caused due to electrocution on account of negligence, when the liability was emphatically denied on the ground that the death had not occurred as a result of negligence, but because of an act of God or of acts of some other persons. The Court held that it is the that where settled disputed questions of facts are involved, a Article 226 of under the Constitution is not a proper remedy. Therefore, questions as to whether death occurred due to negligence or due to act of God or of some third person could not be decided properly on the basis of affidavits only, but should be court after decided by appreciating the evidence adduced by Electricity the Board v. Sumathi [(2000) 4 SCC 543] it was held that when a disputed question of fact arises and there is clear denial of any liability, remedy under Article 226 of the Constitution may not be proper. The Court out to exception rule by it should not be that, observing understood that in every case of tortious liability, recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to Article 226 of under proceed the Constitution.” this general parties. tortious In T.N. carved civil the Page 35 of 43 // 36 // 19. Similarly, Supreme Court in Shubhas Jain v. Rajeshwari Shivam, 2021 SCC OnLine SC 562 has held as under: the Hon’ble extraordinary writ “26. It is well settled that the High Court exercising its under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable.” jurisdiction 7.4 Learned Advocate General accordingly contended that since notice along with the requisition and resolution were duly served on the Petitioner by way of affixture because of their refusal to receive the notice, it is to be held that notice along with the requisition and resolution were duly served on all the Petitioners, which amounts to compliance of the provisions contained under Section 54(2)(c ) of the Act. 7.5. It is also contended that after holding Vote of No Confidence on 12.09.2024 in which 10 numbers of Councillors casted their votes, though it is found that all the 10 Councillors have supported the Vote of NO Confidence, but no further consequential action has been taken because of the interim order passed by this Court on Page 36 of 43 // 37 // 12.09.2024. Therefore, Opp. Parties have no way violated order dt.12.09.2024 as contended. 7.6. In order to satisfy the stand that the impugned notice along with the requisition and resolution has been duly served on the Petitioners in both the cases with due authorization to Opp. Party No.4, the relevant file was produced before this Court in original for verification. This Court after verifying the records in original found that after receipt of the requisition along with the resolution on 02.09.2024, Opp. Party No.4 while issuing the impugned notice dt.04.09.2024, authorized Opp. Party No.4 to serve the notice along with the requisition and resolution on all the councillors including the Chairman on dt. 04.09.2024 itself. Pursuant to the same, Opp. Party No.4 through the Process Server so engaged vide Order dt.05.09.2024 got the notice served on 10 numbers of the Councillors 05.09.2024. But since such notice along with the requisition and resolution could not be served on the Petitioners in both the cases on refusal the Process Server Page 37 of 43 // 38 // so engaged, affixed the notice along with the requisition and resolution in the front door of the residence of the Petitioners on 05.09.2024 as found from the report of the Process Server, so witnessed by two official witnesses. 8. I have heard Mr. P.K. Rath, learned Sr. Counsel appearing in W.P.(C ) No.22656 of 2024 along with Mr. B Rath, learned Sr. Counsel appearing for the Petitioners in W.P.(C ) No.22661 of 2024 and Mr. Pitambar Acharya, learned Advocate General along with Mr. M.K. Balabantaray, learned Addl. Govt. Advocate and Mr. Pradip Kumar Mohapatra, learned counsel appearing on behalf of private Opp. Party in W.P.(C ) No.22656 of 2024. With due exchange of the pleadings, the matter was heard at the stage of admission and disposed of by the present common order. 9. Having heard learned counsel for the parties and considering the submission made and the materials placed before this Court it is found that both the Writ Petitions were filed inter alia challenging the impugned notice Page 38 of 43 // 39 // dt.04.09.2024 so issued by Opp. Party No.2 fixing 12.09.2024 as the date to take up the Vote of No Confidence against the Chairperson of Purusottampur N.A.C. The Writ Petition was initially filed inter alia challenging the non-compliance of the provisions contained under Section 54(2) (c) of the Act. 9.1. Taking into account the contentions raised in the Writ Petition alleging non-compliance of the provisions contained under Section 54 (2)(c) of the Act, this Court while issuing notice of the matter vide Order dt.12.09.2024 passed an interim order that the Vote of No Confidence be held on the date fixed, but no consequential follow up action shall be taken. As per the said Interim order, Vote of No Confidence was held on 12.09.2024 and as found from the record, 10 out of the 13 Councillors of the N.A.C took part in the Vote of No Confidence and have casted their votes. 9.2. This Court after going through the stand taken in the counter affidavit and after perusing the original record so Page 39 of 43 // 40 // produced by the learned State Counsel finds that notice dt.04.09.2024 along with the requisition and resolution were sent for service on all the 13 Councillors of the Council through Opp. Party No.4. As found from the record, the impugned notice along with the requisition and resolution were duly served on 10 of the Councillors on 05.09.2024 by the Process Server so engaged by Opp. Party No.4 vide Order dt.05.09.2024. But Opp. Party No.4 when failed to serve the notice dt.04.09.2024along with the requisition and resolution on the Petitioners in both the cases on 05.09.2024 through the Process Server so engaged, the same was affixed along with the requisition and resolution on the front door of the residences of the Petitioners on 05.09.2024 as found from the report of the Process Server, so witnessed by two official witnesses. 9.3. Since the notice along with the resolution ad requisition have been duly served on all the 10 councillors out of the 13 and the notice along with the requisition and resolution have been served on affixtures Page 40 of 43 // 41 // on all the 3 Petitioners in both the cases on 05.09.2024, as per the considered view of this Court, it amounts to non-compliance of the provisions contained under Section 54(2)(C ) of the Act. 9.4. The stand taken by the Petitioners that only the notice dt.4.09.2024 was affixed in the front door under Annexure-8 cannot be accepted as the said stand is disputed in nature and this Court in exercise of the power under Article 226 and 227 of the Constitution of India cannot go into such disputed question of fact in view of the decision of the Hon’le Apex Court in the case of Puna Hinda and Harpati & Others as cited supra. 9.5. It is also found from the record that the Writ Peiton was filed alleging non-compliance of Section 54 (2)(c ) of the Act and with the stand that the impugned notice is not accompanied with the requisition and resolution. But in both the Writ Petitions, it has been clearly pleaded that the requisition dt.02.09.2024 was made by 9 of the Councillors. In view of such stand taken in the Writ Page 41 of 43 // 42 // Petition, it is to be held that the Petitioners were having the knowledge of the requisition dt.02.09.2024. Not only that as found from the impugned notice dt.04.09.2024, the notice was accompanied with the No Confidence proposal so submitted by the 9(nine) Councillors. Taking into account the fact that notice along with the requisition and resolution was sent for service through Opp. Party No.4 and the original record since clearly reveals such service of notice along with the requisition and resolution, the word as reflected in the impugned notice, as per the considered view of this Court is both the resolution and requisition. 9.6. It is also found from the record that even though the impugned notice along with the requisition and resolution were affixed on 05.09.2024, which was admitted in the rejoinder affidavit, but the said fact was not brought to the knowledge of this Court even though the Writ Peiton was filed on 10.09.2024. Therefore, since Petitioners in both the cases have not approached this Court with clean Page 42 of 43 // 43 // hands, placing reliance on the decisions of the Hon’ble Apex Court in the case of K.D. Sharma as well as RamJas Foundation, it is the view of this Court that the Petitioners are not eligible and entitled to get any relief. 9.7 . This Court is also unable to accept the contention raised by the learned Sr. Counsel with regard to the service of notice through Opp. Party No.4 as illegal as there is no such bar contained under Section 54(2)( c) of the Act for service of such notice by Opp. Party No.2 though any other authority duly authorized by him. 9.8. In view of the aforesaid analysis, this Court is not inclined to interfere with the impugned notice so issued on 04.09.2024. While not inclined to interfere, this Court is inclined to dismiss both the Writ Petitions and dismiss both the Writ Petitions accordingly. Interim order passed earlier stands vacated. Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticatiin of order Location: high court of orissa, cuttack Date: 09-Oct-2024 12:09:12 Orissa High Court, Cuttack Dated the 9th October, 2024/Sangita (Biraja Prasanna Satapathy) Judge Page 43 of 43