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2017 DIGILAW 677 (ORI)

Sulochana Behera v. State of Odisha

2017-07-07

S.K.MISHRA

body2017
JUDGMENT : S.K.Mishra, J. In this writ petition the petitioner, being the Ex-Chairperson of Hindol Notified Area Council, prays for quashing of the Order No.743 dated 6.6.2015 passed by the Collector, Dhenkanal, opposite party no.2, as at Annexure-1, requesting all the members of the said N.A.C to remain present in a meeting of the Councillors of Hindol N.A.C for voting on the motion of “No Confidence” against the petitioner and for quashing of the resolution dated 27.5.2015, i.e. Annexure-2, and to allow the petitioner to function as Chairperson of Hindol N.A.C. and any other reliefs that may be granted. 2. On 27.5.2015 requisition of twelve Councillors of Hindol N.A.C. addressed to opposite party no.2 for convening a meeting of ‘No Confidence” motion was sent. On 1.6.2015 vide Letter No.731, the Executive Officer was asked to verify the genuineness of the signatures of the Councillors. On 4.6.2015 after comparing the signatures on the requisition with the signatures available in the attendance register, the Executive Officer submitted report vide Letter No.228 that the signatures of eleven Councillors tallied, but the signature of one Bijay Kumar Das, Councillor of WardNo.14, could not be verified as his full signature was not available. Since signatures of eleven Councillors were verified, which were found to be genuine, and that was more than 1/3rd of the total members of the aforesaid N.A.C., action was taken on the basis of the requisition. On 6.6.2015 vide Letter No.743 notice was issued to the Councillors fixing 17.6.2015 as the date of for special session of N.A.C. for voting on the motion of the “No Confidence”. On 17.6.2015, the meeting was held. Chairperson and twelve Councillors attended and cast their vote. The motion of “No Confidence” was passed by 2/3rd majority of the total members and a resolution was passed. A copy of which is annexed as Annexures-A/2 and C to the Misc. Case for intervention filed by Councillor Enayatullah Khan. On 17.6.2015 report was submitted to opposite party no.2. On 22.6.2015 Notification No.15713 was published by the Department of Housing and Urban Development and by virtue of such publication, the petitioner was deemed to have vacated the office w.e.f. 17.6.2015. The matter was then reported to the State Election Commission. A fresh election was conducted and on 12.8.2015 election of Chairperson was held and result declared. 3. Mr. On 22.6.2015 Notification No.15713 was published by the Department of Housing and Urban Development and by virtue of such publication, the petitioner was deemed to have vacated the office w.e.f. 17.6.2015. The matter was then reported to the State Election Commission. A fresh election was conducted and on 12.8.2015 election of Chairperson was held and result declared. 3. Mr. Pitambar Acharya, learned Senior Counsel, for the petitioner submitted that there was no previous allegation against the petitioner, but attempt has been made by some members of the N.A.C. to oust her so that the office of the Chairperson can be managed by a person of their choice. According to Mr.Acharya, this circumvents the constitutional spirit engrafted under Article 243T of the Constitution of India. It is contended by the learned Senior Counsel for the petitioner that procedure has been laid down under Section 54 of the Odisha Municipal Act, 1950 (hereinafter referred to as the “Act” for brevity). The said provision postulates four important ingredients. Firstly, the meeting to be convened on a requisition, secondly, requisition to be signed by 1/3rd of the members, thirdly, requisition should be sent along with copy of the resolution and, fourthly, requisition shall be addressed to the District Magistrate and the proposed resolution should be based on sound reasoning for untimely removal of an election representative. 4. It is contended that so called requisition signed by 2/3rd members is not supported by any resolution to be moved in the special meeting. The requisition cannot be treated as a valid resolution for which the requisition is vitiated. It is further contended that no provisions contained in the Act and rules have been violated by the petitioner, but attempts have been made by her political opponents to remove her and keep a person of their choice. It is contended that the Councillors are acting at the behest of the opponents of the petitioner and false allegations have been made against her. Hence, learned Senior Counsel for the petitioner submits that the writ petition should be allowed and the prayer be granted in favour of the petitioner. 5. Miss Savitri Ratho, learned Addl. It is contended that the Councillors are acting at the behest of the opponents of the petitioner and false allegations have been made against her. Hence, learned Senior Counsel for the petitioner submits that the writ petition should be allowed and the prayer be granted in favour of the petitioner. 5. Miss Savitri Ratho, learned Addl. Government Advocate for the State, on the other hand, submitted that the provisions of Section 54 of the Act are not ultra vires of the Constitution of India and its requirements are fulfilled as more than 1/3rd of the members had sent the requisition to opposite party no.2 for convening special meeting to vote on the proposed resolution in view of the undesirable activities of the petitioner. It is also contended that the Full Bench of this Court has upheld the constitutional validity of Section 24 of the Odisha Grama Panchayat Act in the case of Bhagabat Sahoo Vs. Collector, Angul and others; 2005(1) CLR-606. Hence it is submitted that Section 54 of the Act and Section 24 of the Odisha Grama Panchayat Act, though are not pari materia but are similar provisions regarding removal of the elected Head of NAC and Grama Panchayat though vote of no confidence. Hence it shall be proper to hold that Section 54 of the Act is not ultra vires of the Constitution. 6. As far as the contention of learned Senior Counsel appearing for the petitioner regarding the reasons for removal of the elected Chairperson is concerned, learned Addl. Government Advocate relies upon the case of Smt. Kanti Kumbhar Vs. State of Orissa and another; 2001(II) OLR-44, wherein a Bench of this Court, while dealing with a matter of “No Confidence” under Section 46-B of the Orissa Panchayat Samiti Act, held that Section 46-B does not require any particular reason to be given for sending a requisition for the purpose of considering the no confidence motion and it is not necessary that in the proposed resolution, the reasons for moving the motion should be indicated. As far as absence of separate resolution is concerned, the learned Addl. Government Advocate for the State relied upon the reported cases of Jagadish Pradhan and others Vs. Kapileswar Pradhan and others; 1987 (1) OLR-335 and Padmini Nayak Vs. As far as absence of separate resolution is concerned, the learned Addl. Government Advocate for the State relied upon the reported cases of Jagadish Pradhan and others Vs. Kapileswar Pradhan and others; 1987 (1) OLR-335 and Padmini Nayak Vs. State of Orissa and others; 2005 (Supp.) OLR-917 and contended that it is not necessary for the requisition to be valid should always contain a proposed resolution in a separate sheet. It is further asserted that 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. 7. Learned counsel appearing for the Interveners also supported the contentions raised by the learned Addl. Government Advocate. 8. Taking up the contentions raised by Mr. Acharya, learned Senior Counsel, one by one, it is seen that the first contention raised is that the meeting has to be convened on a requisition. There is no dispute that a requisition has been sent to the authority. It is further seen that the requisition has been signed by 1/3rd members, which is also not disputed in this case. The third contention is that the requisition should be annexed with a copy of the proposed resolution and the fourth contention that the requisition shall be addressed to the District Magistrate and the proposed resolution should be based on sound reasoning. As far as issuing the requisition for convening a meeting, the matter has already been set at rest by the judgment of this Court in the case of Bhagabat Sahoo Vs. Collector, Angul and others (supra). So there is no need to answer that issue. The main question, that is the provision of Section 54 of the Act is ultra vires of Constitution. Learned Senior Counsel for the petitioner argues that Articles 243Q and 243T provide for constitution of Municipalities and Reservation of seats and, therefore, the petitioner being a candidate of the reserved category, her tenure should not be curtailed by a resolution of 2/3rd of the members. Firstly, it is noted that the vires of Section 54 of the Act has not been challenged in this writ petition. Firstly, it is noted that the vires of Section 54 of the Act has not been challenged in this writ petition. Even if the same is challenged, the matter has to be decided by a Division Bench and it cannot be decided by a single Bench of this Court. Thirdly, it seen nowhere in Articles 243-Q and 243-T of the Constitution of India that there is embargo for removal of a person who lost the confidence of the council. Moreover in the case of Padmini Nayak Vs. State of Orissa and others (supra), a Division Bench of this Court has already decided that Section 24 of the Odisha Grama Panchayat Act is not ultra vires of the Constitution. This rulling has been given based on the ratio decided by this Court in the case of Bhagabat Sahoo Vs. Collector, Angul and others (supra). Section 24 of the Odisha Grama Panchayat Act provides for removal of Sarpanch or Naib Sarpanch on loss of confidence of the Panchayat. Section 54 of the Act provides for vote of no confidence against a Chairperson or Vice Chairperson. Even though Section 54 of the Act and Section 24 of the Odisha Grama Panchayat Act are not pari material, they are in essence providing similar forum and provision for removal of the elected head of the institution because of no confidence motion of the members of the House, the Grama Panchayat or the Municipal Council. So this Court is of the opinion that the provision of Section 54 of the Act is not ultra vires of the Constitution. 9. The last important aspect that need to be considered is whether in absence of a proposed resolution in a separate sheet. An examination of the Annexure-2 at page-17 in the penultimate paragraph, it is clear that while issuing requisition, the Councillors of Hindol, N.A.C. has observed as follows:- “xxx xxx xxx xxx xxx xxx In order to respect the values in function of the local self Government, this Resolution is passed in the form of this Memorandum to present it before the Hon’ble District Magistrate-cum-Collector, Dhenkanal, to which, we the undersigned Councillors do whole heartedly support and confirm to bring a motion of No Confidence against the Chairman.” 10. Now taking this aspect of the case and relying upon the observations made by the Division Bench in the case of Padmini Nayak Vs. Now taking this aspect of the case and relying upon the observations made by the Division Bench in the case of Padmini Nayak Vs. State of Orissa and others (supra), this Court comes to the conclusion that when a request has been made in the document, Annexure-2, which contained the proposed resolution, it can be broadly accepted as the proposed resolution. Since Annexure-2 has been sent with Annexure-1 as an enclosure, Annexure-2 is being the requisition, this Court is of the opinion that a separate resolution in a separate sheet is not mandatory requirement of law. Moreover, in the case of Jagadish Pradhan and others Vs. Kapileswar Pradhan and others (supra), a Division Bench of this Court while dealing with a matter of Section 54-A of the Odisha Panchayat Samiti Act, 1959 has held that there is no prescribed form for issuance of requisition to the Sub-Divisional Officer or for the proposed resolution to be accompanied along with such requisition or for the notice by the Sub-divisional Officer. The requirement of Section 46-B (2) of the Odisha Panchayat Samiti Act should be satisfied if they are substantially complied with. At paragraph-7, the Division Bench further ruled that true it is that Section 46-B(2) requires a copy of the proposed resolution to be sent along with the requisition, which is passed by at least requisite number of members mentions clearly the reason for seeking such a special session of the Council to be no confidence on the Chairman, then merely because the proposed resolution is not in a separate document, it cannot be said that the action thereupon becomes illegal. There is no form prescribed for the proposed resolution that the Sub-divisional Officer well understood the intention behind the resolution and rightly treated the same to be in compliance of the requirement of Section 46-B(2) of the Odisha Panchayat Samiti Act, 1959. 11. Since all the contentions raised by the learned Senior Counsel for the petitioner are already covered by the judgments of the Division Benches of this Court, there appears to be no reason to re-examine the same. This Court simply follows the ratio decided by the Division Bench as discussed earlier and comes to the conclusion that there is no illegality in issuance of requisition and holding of the meeting wherein the petitioner has already been ousted because of “No Confidence” of at least 2/3rd members of the Council. This Court simply follows the ratio decided by the Division Bench as discussed earlier and comes to the conclusion that there is no illegality in issuance of requisition and holding of the meeting wherein the petitioner has already been ousted because of “No Confidence” of at least 2/3rd members of the Council. 12. In that view of the matter, this Court is of the opinion that the writ petition is devoid of any merit and the same is dismissed. However, there shall be no order as to costs.