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2012 DIGILAW 70 (ORI)

Binodini Das v. State of Orissa

2012-02-07

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
ORDER V. GOPALA GOWDA, C.J. : Petitioner working as Chairperson of Angul Municipality is before this Court questioning the correctness of the notice of no-confidence motion No.1463 dated 12.09.2011 issued by Opposite Party No.3-Collector, Angul and the second proposed requisition dated 05.09.2011 for motion of no-confidence under the provisions of Municipality Act, 1950 and rules made thereunder. 2.Heard Mrs. Bharti Dash, learned counsel for the petitioner, Mr. S. Mohanty, learned Senior Advocate appearing for opposite party Nos.5 to 14 and the learned Additional Government Advocate. 3.Petitioner challenges the correctness of the second requisition dated 05.09.2011 for moving no-confidence motion against her without proposed requisition by one third of the Councillors to hold such meeting when the first proposed resolution regarding want of no-confidence against the post of Chairperson of Angul Municipality could not be materialized and dropped due to lack of quorum. The said action of opposite parties for the second time is violative of the provisions of Section 54 of the Municipal Act and Rules made thereunder. It is contended the Annexure-1 produced is only the proposed requisition, which was not appended to the proposed resolution signed by 10 Councillors which has to be passed by the Chairperson has not been done in the present case. Therefore, Deputy Collector convening the meeting for the second time for want of no-confidence motion is not legal and valid in one calendar year. It is also further contended subsequent events pursuant to Annexure-1 are liable to be quashed since the requisition Annexure-1 itself is defective. 4.Detailed counter affidavits have been filed on behalf of opposite party No.3-Collector, Angul and opposite parties 5-14, some of the Councillors of Angul Municipality. Learned Additional Government Advocate appearing for the State submits that Angul Municipality consists of 23 wards represented by 23 Councillors out of which one is vacant. So, requisition-Annexure-1 has since been signed by 10 Councillors it means they have signed in favour of the no-confidence motion to be moved against the petitioner which is one third of the total number of Councillors and the same was considered by the District Collector for which he has passed the order for convening the special meeting on 19.09.2011 as per section 54(2)(d) of the Act. In the meeting dated 19.09.2011, 17 Councillors voted against the petitioner and 5 abstained from voting out of all 22 Councillors who attend the said meeting. In the meeting dated 19.09.2011, 17 Councillors voted against the petitioner and 5 abstained from voting out of all 22 Councillors who attend the said meeting. Since two third of the members voted against the petitioner therefore the petitioner lost the confidence of members in the Municipality; hence the petitioner is not entitled for the relief sought for in the present writ petition. Moreover, the first requisition which is alleged to be failed due to lack of quorum is not a fact rather the first motion for requisitioning no-confidence was not moved because of the assurance given by the petitioner to take the confidence of all the Councillors while doing any such works in the Municipality. 5.Mr. S. Mohanty, learned Senior Advocate appearing for the intervenor-requisitions sought to justify the second requisition notice, i.e., Annexure-1 to be moved against the petitioner for want of no-confidence motion is affirmed by Rule 54(2)(a) and Annexure-1 is to be read as a composite notice as proposed resolution which was sought to be moved against the Chairperson. Therefore, it is not a fit case where this Court to exercise its extra-ordinary jurisdiction. 6.In view of the above rival legal contentions, this Court requires to examine as to whether Annexure-1, the proposed resolution appended to the notice to be moved against the petitioner-Chairperson is legal as per section 54(2)(a) of the Act and what order. 7.Considering the rival legal contentions raised by petitioner and Mr. Mohanty, learned Senior Advocate for opposite party Nos.5 to 14, this Court at the time of preliminary hearing of the case on 16.09.2011 had directed the learned Government Advocate to take notice of the matter on behalf of opposite party No.1 to 3 and called for the requisition along with the proposed resolution signed by the requisite number of Councillors permitted to proceed with the special meeting to move no-confidence against the petitioner. Pursuant to Annexure-1, the meeting for moving the no-confidence motion against the petitioner was fixed to 19.09.2011 and on the said meeting, out of 22 Councillors present, 17 voted against the Chairperson and 5 refrained themselves from voting and subsequent thereto, resolution has been passed for removal of the petitioner as Chairperson. However, due to interim order passed by this Court on 16.09.2011, the same could not be given effect to and the office of the Chairperson could not be filled up as yet. However, due to interim order passed by this Court on 16.09.2011, the same could not be given effect to and the office of the Chairperson could not be filled up as yet. Contentions urged by Mrs. Dash, learned counsel for the petitioner, Annexure-1 is no compliance of Section 54(2)(a) of the Act cannot be accepted for the reasons that Annexure-1 was appended with the proposed resolution and it was signed by one third of the total number of the Councillors. In this view of the matter, we are of the considered view that the members who are requisitionists have complied with Section 54(2)(a) of the Act and for this it is not a fit case for interference with the impugned requisition/proposed resolution and this Court refrains itself from acceding to the prayer of such person who has lost the confidence of the Councillors by giving liberal interpretation of Section 54(2)(a) of the Act. 8.Therefore, we are of the considered view that the requisition notice/proposed resolution Annexure-1 is legal and valid as required under Section 54(2)(a) of the Act. The no-confidence motion as has been moved against the petitioner, the office of Chairperson is lying vacant and the same should be filled up within a period of three weeks from the date of receipt of a copy of this order, which we direct. 9.With the above observations and direction, the writ petition is dismissed. Interim order dated 16.09.2011 passed in Misc. Case No.14373 of 2011 stands vacated with the dismissal of the writ petition. Issue urgent certified copy of the order on proper application. A copy of the order be made available to learned Additional Government Advocate. Petition dismissed.