The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.24073 of 2024 Ambika Das ..... State of Odisha &Others ..... -versus- Petitioner Mr. S.K. Mishra, Sr.Adv. along with Ms. Sushrita Sahoo, Adv. Opp. Parties Mr. P. Acharya, Advocate General along with Mr. M.K. Balabantaray, AGA (for State-Opp. Parties) Mr. D.R. Bhokta, Adv. (for O.P. No.2) THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 27.09.2024 Order No.2 1. This matter is taken up through hybrid mode. 2. Heard Mr. Samir Kumar Mishra, learned Sr. Counsel along with Ms. Sushrita Sahoo, learned counsel appearing for the Petitioner. Mr. Pitambar
Legal Reasoning
by this Court in its order dt.05.09.2024, the competent authority who happens to be the Collector issued the impugned notice on 19.09.2024 under Annexure-3 series by fixing the No Confidence Motion against the Petitioner to be moved on 27.09.2024. It is not disputed by the Petitioner that the impugned notice suffer from any illegality or irregularity. 4.2. Learned Advocate General further contended that similar issue was also before this Court in W.A. NO.1935 of 2024. Judgment passed on 28.06.2024 in W.P.(C ) NO.9712 of 2024 was also challenged by one Smitarani Mohanty in Writ Appeal No.1935 of 2024. Similar contention was also raised in the said appeal that no such Motion can be moved more than once during a calendar year in view of the provisions contained under Proviso (ii) to Section 54 (1) of the . Act. But Hon’ble Division Bench in Writ Appeal No.1935 of 2024, did not accept such contention raised by the Appellant therein.The view expressed by this Court in Para 6,8,9 & 10 of the judgment dt.18.07.2024 reads as follows: 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 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. 8. Proviso (ii) to Sub-section (1) of Section 54 of the Act of 1960, thus contains an embargo that a resolution recording want of confidence 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: in “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. . 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. 4.3. It is accordingly contended that in view of the ratio decided in the aforesaid Writ Appeal, the claim made by the present Petitioner that no such no Motion can be moved more than once in a Calendar year is not sustainable in the eye of law as the No Confidence Motion pursuant to Annexure-1 was never moved as it was stayed by this Court in order dt.13.08.2024 in W.P.(C ) No.19669 of 2024. It is contended that since in terms of the earlier notice, No Confidence Motion was never moved, the plea taken by the Petitioner in the present Writ Petition regarding non-compliance of the provision contained under Proviso (ii) to Section 54(1) of the Act is not sustainable. 4.4. It is also contended that the learned Single Judge while disposing the matter finally on 05.09.2024 granted liberty to the authority to proceed afresh in accordance with law, which means, from the stage of . issuance of the notice by enclosing copy of the Resolution and requisition. 4.5. Since it is not the case of the Petitioner that the impugned notice does not contain the resolution and requisition, no illegality has been committed with issuance of such a notice under Annexure-3 series 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that a No Confidence Motion was proposed against the Petitioner by the Councillors of Nilgiri NAC. Basing on the Resolution and Requisition, when a notice was issued by Opp. Party No.4 on 09.08.2024 under Annexure-1, the same was challenged by the present Petitioner by filing W.P.(C ) No.19669 of 2024. This Court while issuing notice of the matter vide order dt.13.08.2024 passed an interim order by restraining the Opp. Parties from convening the meeting to move the No Confidence Motion. The said Interim order was allowed to continue till the Writ Petition was finally
Arguments
Acharya, learned Advocate General along with Mr. M.K.Balabantaray, learned Addl. Govt. Advocate appearing on behalf of Opp. Party No.1 and Mr. D.R. Bhokta, learned counsel appearing on behalf of Opp. Party No.2. . 3. The present Writ Petition has been filed inter alia challenging notice dt.19.09.2024 so issued by Opp. Party No.3-Collector and District Magistrate, Balasore under Annexure-3 series fixing 27.09.2024, to move the No Confidence Motion against the present Petitioner, who happens to be the Chairman, Nilgiri Notified Area Council. 3.1. Mr. S.K. Mishra, learned Sr. Counsel appearing for the Petitioner contended that earlier a similar notice was issued by Opp. Party No.4 on 09.08.2024 under Annexure-1 proposing therein to move the No Confidence Motion against the present Petitioner basing on the Resolution passed by the Councillors of the NAC and the requisition made in that regard. 3.2. It is contended that the aforesaid notice was the subject matter of challenge before this Court in WP(C) No.19669 of 2024 and this Court while issuing notice of the matter, passed an Interim Order to the following effect: “7.In the meantime, the consequential holding of meeting pursuant to the notice dated 9th August, 2024 under Annexure-1 shall remain stayed till 30th August, 2024.” 3.3. It is contended that the aforesaid Writ Petition was finally disposed of by this Court vide order dt. 05.09.2024 inter alia with the following observation and direction. “ Therefore having convinced that the copy of the resolution is not appended to the notice dated 09.08.2024, this Court has no hesitation to set aside the notice under Annexure-1. Accordingly, . while setting aside the notice of “No Confidence Meeting” dated 9.8.2024 under Annexure-1, this Court observes that it is open for the authority to proceed afresh in accordance with law as per “No Confidence Resolution” of the members.” 3.4. Placing reliance on the provisions contained under Proviso (ii) to Section 54 (1)of the Odisha Municipal Act, 1950 (in short, “the Act”), learned Sr. Counsel appearing for the Petitioner contended that since the earlier Motion basing on the notice dt.09.08.2024 could not be moved because of the defect in the said notice which was interfered with by this court in its order dt.05.09.2024, no such Motion can be moved once again during a Calendar year. 3.5. It is however not disputed that in the impugned notice issued on 19.09.2024, there is no such defect as having not been issued along with the copy of the Resolution and the requisition. 3.6. It is the main contention of the learned Sr. Counsel that in view of the clear provisions contained under Proviso (ii) to Section 54 (1)of the Act, no such Motion more than once can be moved within one Calender Year. When the Motion in terms of the notice issued on 09.08.2024 under Annexure-1 could not be moved due to its inherent lacunae, the 2nd motion basing on the impugned notice is not permissible. It is accordingly contended that the impugned notice fixing the vote of No Confidence for the 2nd time is not sustainable in the eye of law and requires interference of this Court. . 4. Mr. Pitambar Acharya, learned Advocate General appearing for the State-Opp. Parties on the other hand contended that the notice issued under Annexure-1 was challenged by the present Petitioner before this Court in W.P.(C ) No.19669 of 2024. This Court vide order dt.13.08.2024 restrained the Opp. Parties from moving the No Confidence Motion. This Court finally disposed of the matter during subsistence of the interim order with the observation that it is open for the authority to proceed afresh in accordance with law, as per No Confidence Resolution of the Members. 4.1 It is contended that in view of the liberty granted
Decision
disposed of vide Order dt.05.09.2024. 5.1. This Court finds that while disposing the matter finally vide order dt.05.09.2024,the competent authority was permitted to proceed afresh in accordance with law as per no Confidence Resolution of the Members. 5.2. Since it is not the case of the Petitioner that the impugned notice does not contain the Resolution and Requisition, as per the considered view of this Court, in . view of the liberty granted by this Court in its order dt.05.09.2024, Opp. Party No.3 has rightly issued the impugned notice on 19.09.2024 under Annexure-3 series. 5.3. It is also found that the Division Bench of this Court in W.A. No.1935 of 2024 while interpreting the provision contained under the Proviso (ii) to Section 54 (1) of the Act, 1950 has clearly held that unless and until a Motion is moved, the embargo provided under Proviso (ii) to Section 54(1) of the Act, 1950 cannot be made applicable.Since in the present case because of the Interim Order passed on 13.08.2024, the Motion was never moved, as per considered view of this Court, the submission made by the learned Sr. Counsel that no such motion can be moved more than once in a Calendar Year in terms of the impugned notice dt.19.09.2024 is not acceptable. 5.4. In view of the aforesaid analysis, this Court finds no illegality or irregularity in the impugned notice dt. 19.09.2024 so issued by Opp. Party No.3 under Annexure-3 series. Accordingly, this Court is not inclined to interfere with the same and dismiss the Writ Petition. Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 30-Sep-2024 11:09:08 Sangita ( Biraja Prasanna Satapathy) Judge .