The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.30595 of 2024 Shanti Manjari Dei …. Petitioner Mr. M. Kanungo, Senior Advocate -versus- State of Odisha & others …. Opp. Parties
Legal Reasoning
Mr. P. Acharya, Advocate General Mr. S. K. Dalai, Advocate for O.P.No.5 CORAM: JUSTICE R.K. PATTANAIK
Decision
ORDER 11.12.2024 Order No. 03. 1. Heard Mr. Kanungo, learned Senior Advocate for the petitioner, Mr. Acharya, learned Advocate General for the State opposite party Nos.1 to 4 and Mr. Dalai, learned counsel for opposite party No.5. 2. Instant writ petition is filed by the petitioner challenging the impugned notice dated 11th November, 2024 under Annexure-1 issued by opposite party No.2 along with consequential directions issued. 3. Mr. Kanungo, learned Senior Advocate for the petitioner submits that the action initiated in pursuance of Annexure-2 is pre-meditated and without opportunity of hearing provided to the petitioner to participate in such enquiry. In support of the contention, Mr. Kanungo, on the point of pre-meditation, refers to the decision in Siemens Ltd. Vrs. State of Maharashtra & others reported in (2006) 12 SCC 33 to contend that the action is, therefore, liable to be interfered with and quashed. While advancing such an argument, Mr. Kanungo, learned Senior Advocate refers to Page 1 of 4 the 74th Constitutional Amendment, 1992 which mandates that there should not be unnecessary interference in the functioning of the local bodies like in the present case, where, the petitioner, who is an elected representative, against whom, the impugned notice has been issued to respond, a decision which is uncalled for and actuated by malafide. It is finally submitted that the action at the behest of the Government is unjustified and without any basis, hence, it is required to be interfered with and set aside. 4. Mr. Acharya, learned Advocate General, on the other hand, submits that the petitioner challenged the notice as at Annexure-1 but it is as per Section 53 of the Orissa Municipality Act, 1950. It is further submitted that the State Government has powers to take action in terms of the Act and hence, therefore, the notice has been issued to which the petitioner should respond to it. In reply to the contention of Mr. Kanungo, learned Senior Advocate that the provision, such as, Section 53 of the Act is to be read down, Mr. Acharya, learned Advocate General submits that the same has not been declared unconstitutional and therefore, on such ground with the plea advanced, the impugned notice at Annexure-1 cannot be quashed. That apart, a reference is made to Article 243-U of the Constitution of India to claim that the Municipality can be dissolved unless it is allowed to continue for a period of five years from the date appointed and therefore, in exercise of such powers, the Government has issued the notice i.e. Annexure-1 and therefore, there is no illegality and as such, the time has expired without any response being received from the petitioner. Further advancing the argument, Mr. Acharya, learned Advocate General refers to the following decisions, such as, Special Director & another Vrs. Mohd. Ghulam Ghouse & another (2004) 3 Supreme Court Cases 440 and State of Uttar Pradesh Vrs. Brahm Datt Sharma & another (1987) 2 Supreme Court Cases 179 to contend that writ jurisdiction should not be exercised by the Court especially where notices have been Page 2 of 4 issued like in the instant case leaving it open for a response to be received for a decision as per law. 5. For better appreciation, the relevant paragraph of the decision in Mohd. Ghulam Ghouse (supra) is extracted herein below: the practice of “5. This Court in a large number of cases has the High Courts deprecated entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show-cause notice was totally nonest in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order, it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection not granted.” More or less, a similar view has been expressed by the Apex Court in the case of Brahm Datt Sharma (supra) and referring to which the contention is that no ground is made out for the petitioner to challenge the impugned notice at Annexure-1, Hence, therefore, the writ petition should be dismissed. Page 3 of 4 6. Considering the facts pleaded on record and the submissions of Mr. Kanungo, learned Senior Advocate for the petitioner, Mr. Acharya, learned Advocate General and Mr. Dalai, learned counsel for opposite party No.5, before reaching at the conclusion, the Court taking cognizance of the fact that while introducing the Constitutional Amendment, 1992, a concern is expressed with regard to the functions of the local bodies but in view of Section 53 of the Act, as statutory power is prescribed for the Government to exercise and pursuant thereto, the notice dated 11th November, 2024 as at Annexure-1 has been issued, since no case of want of jurisdiction is shown to exist, the petitioner, with all defences available at her disposal, shall have to respond to the same with a reply for a decision by the Government in accordance with law. This Court is, hence, for the reason stated above, not inclined to intervene and interfere with the action initiated as per the Act in view of the impugned notice i.e. Annexure-1, to which, the response should be submitted by the petitioner for consideration of the same by the Govt. 7. In the result, the writ petition stands disposed of allowing the petitioner to reply to the notice (Annexure-1) within seven days from today and upon receiving the same, it shall be duly entertained and disposed of as per law, failing which and in absence of any response received from her within the above stipulated period, the Sate shall proceed accordingly. It is made clear that the Court has not expressed any opinion with regard to the plea of the petitioner, which is to be duly examined and considered by the State Government on its own merit. 8. Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Designation: A.R.-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 12-Dec-2024 16:15:35 Manoj Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Page 4 of 4