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2014 DIGILAW 320 (ORI)

Sashirekha Samal v. State of Orissa

2014-05-14

A.K.GOEL, A.K.RATH, B.P.RAY

body2014
JUDGMENT : A.K. RATH, J. 1. In this reference, we have been called upon to decide the expression total number of Councillors appearing in Section 54(2)(a) of the Orissa Municipal Act, 1950 (hereinafter referred to as the Act). 2. Section 54 of the Act deals with vote of no confidence against Chairperson or Vice-Chairperson. The same is quoted hereunder:- "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 alongwith the records of the proceedings at such meetings shall forthwith be forwarded to the State Government 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. (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. (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 alongwith 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 meeting shall be by secret ballot. (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. (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 alongwith the records of the proceedings to the State Government who shall forthwith publish the resolution in accordance with the provision of Sub-section (1). (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 alongwith a copy of the proceedings to the District Magistrate for information and such action as may be necessary." 3. In Jagannath Misra vs. State of Orissa and others, 40 (1974) CLT 53, a Division Bench of this Court, on an interpretation of Section 54( 1) of the Act, came to hold that the expression total refers to the total sanctioned strength of the council and not of the existing members at any given point of time. But then, another Division Bench, in Smt. Reena Trivedi vs. State of Orissa and others (Review Petition No. 197 of 2012 disposed of on 12.12.2012), took a contrary view. The later Division Bench of this Court held that a conjoint reading of Subsection (1) and Sub-section 2(c) of Section 54 of the Act conveys that two-third of the total number of Councillors shall be worked out with reference to existing councillors. 4. The subject-matter of dispute is no more res integra. The later Division Bench of this Court held that a conjoint reading of Subsection (1) and Sub-section 2(c) of Section 54 of the Act conveys that two-third of the total number of Councillors shall be worked out with reference to existing councillors. 4. The subject-matter of dispute is no more res integra. In Bhaiya Lal vs. Paras Nath Tewari and others, AIR 1970 Allahabad Law Journal 36, the question fell for consideration before Allahabad High Court was as to what is meant by the words the motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the Board occurring in Subsection (12) of Section 87-A of the U.P. Municipalities Act, 1916. In para 21 of the report, it was held that the word total occuring in sub-section (12) of Section 87-A of the U.P. Municipalities Act relates to total number of members and not to the Board. It only means that whatever be the composition of the Board at the relevant time, because of certain removals, more than half of the total number of members of the composition or residue would be enough to constitute the majority for the purposes of non-confidence motion. The said decision was over-ruled by a Full Bench of Allahabad High Court in Mangala Prasad Jaiswal vs. District Magistrate and others, AIR 1971 Allahabad 77. The Full Bench held that the words total number of members of the Board occurring in Sub-section (12) of Section 87-A of the U.P. Municipalities Act, 1916 mean the total number of members who initially constitute the Board and consequently the existence of any casual vacancy of a particular time is irrelevant for calculating the total number of members for the purposes of Sub-section (12). 5. The matter did not rest there. The Supreme Court had the occasion to interpret the words total number of members of the Zilla Parishad of U.P. Kshetra Samitis appearing in Section 28 of the U.P. Kshetra Samitis and Zilla Parishads Adhiniyam, 1961 for moving no confidence motion against the president. In Jivendra Nath Kaul vs. Collector/ District Magistrate and another, (1992) 3 SCC 576 , in para-5 of the report, their Lordship held that the Allahabad High Court judgment in Bhaiya Lal case does not lay down the correct law. In Jivendra Nath Kaul vs. Collector/ District Magistrate and another, (1992) 3 SCC 576 , in para-5 of the report, their Lordship held that the Allahabad High Court judgment in Bhaiya Lal case does not lay down the correct law. The High Court has not given natural meaning to the expression contained in Sub-sections (12) and (13) of Section 87-A of the U.P. Municipalities Act. It was held that the only meaning which can be given to the expression half of the total number of members of the Board is the members as existed on the date of its constitution (emphasis is ours). The total number of members on the date of the composition of the Municipal Board, Mugal Sarai was 16 and as such notwithstanding the removal of member/ members the motion of no confidence could only be passed if the motion was supported by more than 8 votes. It was further held that High Court on the basis of strained reasoning has given interpretation which does not flow from the simple language of Sub-sections (12) and (13) of Section 87-A of the Act and thereby over-ruled the judgment in Bhaiya Lal's case as the same does not lay down the correct law. 6. In view of the authoritative pronouncement of the apex Court, the logical sequitur of the expression total number of Councillors appearing in Section 54(2)(a) of the Act is total number of Councillors as existed on the date of its constitution and consequently the existence of any casual vacancy for a particular time is irrelevant for calculating the total number of members for the purpose. 7. Thus we hold that the view taken in Jagannath Misra is correct and contrary view in Reena Trivedi is not the correct enunciation of law, which accordingly stands overruled. The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench. I agree. Reference answered.