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2017 DIGILAW 895 (ORI)

Namita Mishra v. State of Odisha

2017-08-17

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This writ petition has been filed challenging the notice dated 17.3.2017 issued by the Director Municipal Administration and Ex-Officio Addl. Secretary to Government as appearing at Annexure-2 to the writ petition. 2. Short background involved in the case is that the petitioner was elected as the Councilor of the word No.7 in the Municipal Election of the Koraput Municipality held in the year 2013 and she is continuing as such till today. It is submitted that in spite of her performance to the best satisfaction of the people, one Nalla Govinda Rao with an intention to see removal of the petitioner from the post of Councilor started making representation since 2013 under the premises that the petitioner becomes disqualified to be continuing as a Councilor for her husband’s executing a work of construction of a community centre at Hatapada in the Koraput District with the investment of M.L.A Lad Funds for the year 2014-17 and for her being disqualified under Section 17(d) of the Orissa Municipal Act 1950, the said Nalla Govinda Rao also made a request for removal of the petitioner from the post of Councilor. On the allegation that the Koraput Municipality is not taking any action on his representation, the said Nalla Govinda Rao approached this Court by filing W.P.(C) No.27 of 2017, this Court in disposal of the above writ petition on 5.01.2017 directed the Commissioner-cum-Secretary, Government of Odisha, Housing & Urban Development Department-opposite party No.1 to take a decision on the pending representation within three weeks from the date of communication of the said order. It is pleaded that following the direction of the Court for timely disposal of the representation the opposite party No.2 called for a report from the opposite party No.3 involving the grievance of the petitioner. In the meantime, the opposite party No.3 also submitted a report before the opposite party No.2 as at Annexure-1. It is alleged that in spite of clearing the allegation against the petitioner, the opposite party No.2 claimed to be in exercise of power under Section 38-A of the Municipal Act vide Annexure-2 issued a notice to show cause to the petitioner as to why action shall not be taken against her for her being found to be disqualified to continue as a Councilor on attracting the provision of clause (d) of Section 17 of the Orissa Municipal Act, 1950. Filing the writ petition the petitioner challenges the order vide Annexure-2 therein. 3. Referring to the impugned notice, Ms. Deepali Mohapatra, learned counsel for the petitioner submitted that the impugned notice vide Annexure-2 clearly reveals that the Director Municipal Administration and Ex-Officio Addl. Secretary to Government have already come to a conclusion that the petitioner has already held to be disqualified and the show cause and the subsequent decision are only mere formalities. Referring to the provisions contained in the Odisha Municipal Act, learned counsel for the petitioner further submitted that for the materials available on record, there remains no doubt that the work entrusted to the husband of the petitioner is not a work involving the Municipal Fund. It is thus pleaded that unless the money from the Municipal Fund is utilized, a Councilor cannot be charged under Section 17(d) of the Odisha Municipal Act. Further, for the gravity in the impugned notice involving removal of the petitioner, learned counsel for the petitioner also contended that before coming to a conclusion that the petitioner is disqualified, the petitioner ought to have been given a chance of satisfying her case. Further for the clear report by the Municipality itself disclosing that the contract involved here is not a work belonging to Municipality and not having involvement of Municipal Fund, the same did not attract the provision of Section 17(d) of the Municipal Act. Consequently, there is also no question of application of Section 38 of the Odisha Municipal Act. Referring to a decision as reported in (2010) 2 SCC 319 , learned counsel for the petitioner contended that the decision has a clear application to the petitioner’s case and therefore, prayed that the impugned notice should be interfered with and set aside. 4. On his appearance Sri Mohapatra, learned Additional Standing Counsel for the opposite party Nos.1 & 2 submitted that for the involvement of a notice herein and as the petitioner has scope for satisfying her case before the authority, the writ petition becomes premature. Further, for the work order involving the dispute being issued by the Municipality, even though no fund of the Municipality is involved, the provision of Section 17(d) of the Act is very much applicable to the case at hand. Further, for the work order involving the dispute being issued by the Municipality, even though no fund of the Municipality is involved, the provision of Section 17(d) of the Act is very much applicable to the case at hand. Referring to several documents appended with the counter affidavit, learned Additional Standing Counsel submitted that there is no infirmity in the notice and this Court should decline to interfere with the matter at this stage. 5. Similarly, Sri Manoj Kumar Mishra, learned Senior Advocate appearing for the Koraput Municipality referring to the counter affidavit of the opposite party No.3 submitted that the work in which the petitioner has been found to be disqualified, does not belong to the Municipality. Sri Mishra at the same time submitted that the work undertaken therein is the outcome of initiation of the local M.L.A for construction of a community centre in word No.7 of Koraput Municipality with investment of funds from the M.L.A Lad fund. Mere issuance of a work order cannot construe that the work done by the husband of the petitioner belongs to Municipality. Learned Senior Advocate also referring to a report submitted by the Municipality and a report of the competent authority justified his claim on the basis of a report submitted therein. 6. Sri B.S. Tripathy-1, learned counsel for the intervenor being permitted to make submission contended that in view of the decision of the Government, there remain no doubt that the petitioner is disqualified from being continuing as a Councilor for her husband’s involvement in a work order being issued by the Municipality. Supporting the stand taken by the learned State Counsel for the opposite party Nos.1 & 2 Sri Tripathy-1, learned counsel also contended that there is no infirmity in the impugned notice and thus prayed for dismissal of the writ petition. 7. For the factual aspect already narrated hereinabove, this Court on perusal of the impugned notice vide Annexure-2 finds a clear observation by the Director, Municipal Administration and Ex-Officio Addl. Secretary to Government in the first paragraph of the notice that for execution of the contract agreement with the Municipality by the husband of the petitioner, the provisions at clause (d) of Section 17 of the Odisha Municipal Act, 1950 are already attracted. Secretary to Government in the first paragraph of the notice that for execution of the contract agreement with the Municipality by the husband of the petitioner, the provisions at clause (d) of Section 17 of the Odisha Municipal Act, 1950 are already attracted. Thus, the notice makes it clear that the petitioner has only been issued with a show cause notice in the matter of her removal under Section 38(A) of the Odisha Municipal Act, 1950. During course of argument, on asking the State Counsel as to whether the State is intending to proceed against the petitioner under Section 38(A) or Section 17(d) of the Odisha Municipal Act, Sri Mohapatra, learned Additional Standing Counsel submitted that the notice vide Annexure-2 is only involving a show cause from the petitioner in respect of action contemplated in exercise of power under Section 38-A of the Odisha Municipal Act, 1950. Counter affidavit of opposite party Nos.1 & 2 is also an indication of the proceeding being taken under Section 38(A) of the Act. 8. Now coming to examine the report submitted by the Executive Officer, Koraput Municipality, it appears, the report has been submitted pursuant to the query of the Director Municipal Administration and Ex-Officio Additional Secretary to Government involving the dispute in relation to the petitioner. Paragraph No.3 of the report clearly reveals that the husband of the petitioner is neither a Municipality contractor nor has taken any contract or license from the Municipality for participating in the tender process. Looking to the documents filed by the opposite party Nos.1 & 2, it appears, though the opposite party Nos.1 & 2 did not file any document regarding the tender of the particular work but have only filed copy of the work order involving the construction involved herein, being issued by the Executive Officer, Koraput Municipality. There also appears no involvement of an auction process initiated by the Municipality. Looking to the provisions contained in the Odisha Municipal Act, this Court finds, Section 17 of the Act deals with disqualification of the Councilor. Similarly, looking to the provisions at Section 38(A) this Court finds, the provision deals with removal of the Councilor by the Government. Section 17 & 38(A) of the Odisha Municipal Act reads as follows: “17. Looking to the provisions contained in the Odisha Municipal Act, this Court finds, Section 17 of the Act deals with disqualification of the Councilor. Similarly, looking to the provisions at Section 38(A) this Court finds, the provision deals with removal of the Councilor by the Government. Section 17 & 38(A) of the Odisha Municipal Act reads as follows: “17. Disqualification of [***] Councillor- (1) Subject the provisions of Section 38, [***] a Councillor shall cease to hold his office, if he- (a) Subject to the proviso to Clause (xii) of Sub-section (1) of Section 16, is sentenced by Criminal Court to such punishment and for such offence, as is prescribed in that clause; or (b) Becomes unsound mind or in the opinion of the District Leprosy Officer is suffering from an infectious type of leprosy; or] (c) Applies to be adjudicated or is adjudicated as insolvent; or (d) Subject to the proviso to Clause (viii) of Sub-section (1) of Section 16 acquire any, interest in any subsisting contract, either directly or indirectly made with or work being done for, the Municipality except as share-holder in a registered joint-stock company or a co-operative society, constituted under the laws for the time being in force; or (e) Is employed as a paid legal practitioner on behalf of the Municipality or accepts employments as a legal practitioner against the Municipality; or [(e-1) has failed to pay any arrears of Municipal dues within six months from the date of service of a notice demanding payment of the same; or] (f) Is appointed as an officer or servant under Municipality or as Honorary Magistrate with jurisdiction over any part of the Municipality; or (g) Is a salaried Government servant either whole-time or part-time; Provided that if any question arises, whether any person is or not disqualified under this clause, the question shall be referred to the State Government, whose decision shall be final; or [(i) [in the case of a Councillor] absents himself from four consecutive meetings without obtaining previous permission from the Chairman or without an excuse sufficient in the opinion of the Municipality]: Provided that no meeting from which a Councillor absents himself shall be counted against him under this clause if due notice of that meeting was not given to him “[38-A. Removal of [* * *] Councillor by Government-(1) Without prejudice to the provisions contained in the foregoing section, the State Government may remove any [* * *] Councillor if they are satisfied that [in the interest of Notified Area Council, such nomination shall be cancelled and make a fresh nomination for the said Notified Area Council]: Provided that no order for removal shall be made without giving the [* * *] Councillors an opportunity of showing cause against proposed removal: Provided further that no such order shall be made in cases where an application in respect of the said [* * *] Councillor made under Section 38 on the same ground as aforesaid, is pending or where any such application having been made has been finally disposed of under the said Section.” 9. Reading of the provision at Section 17 of the Odisha Municipal Act, this Court finds, in the event any of the provision made therein applies to a Councilor and there involve a question as to whether any person is or not disqualified under Section 17 of the Act, such question shall be referred to the State Government, whose decision shall be final. Similarly, Section 38(A) deals with removal of a Councilor. This provision prescribes no order of removal shall be made without giving the Councilors an opportunity of showing cause against the proposed removal. Both the provisions stand for different proposes. While one is for disqualifying the Councilor and the other one is for removing a Councilor from his or her post being disqualified. Though the provision at Section 17 does not attach any scope of show cause or hearing but for the authority with the Government to take a decision in the matter of disqualification of a Councilor, and the Councilor being a democratically elected representative of the Municipal Council, this Court observes, disqualification of a Councilor cannot be held to be a mere formality and in absence of the allegation being established after affording opportunity to the parties likely to be affected exercise of power under Section 38 A of the Municipal Act cannot be undertaken. This Court also observes that for the report of the Municipality clearly indicating that neither the husband of the petitioner is a contractor nor he has any license under the Municipality concern, the State Government before disqualifying the petitioner ought to have taken utmost care and a decision should have been taken involving the parties likely to be affected. Taking into consideration the decision of the Hon’ble Apex Court as reported in (2010)2 SCC 319 , this Court finds, the Hon’ble Apex Court deciding removal of a Democratically Officer from his Office in paragraph Nos.23 to 27 held as follows: “23. As directed earlier, Section 41-A of the Act gives power to the State Government to remove the President, Vice-President or Chairman of a Committee on four broad grounds, namely, (a) public interest; (b) interest of the Council; (c) incapability of performing his duties; and (d) working against the provisions of the Act or the Rules made thereunder. As directed earlier, Section 41-A of the Act gives power to the State Government to remove the President, Vice-President or Chairman of a Committee on four broad grounds, namely, (a) public interest; (b) interest of the Council; (c) incapability of performing his duties; and (d) working against the provisions of the Act or the Rules made thereunder. In addition, under Section 41-A(2), THE State Government at the time of removal from office may also pass an order disqualifying the person from holding the office of the President, Vice-President or Chairman for the next term. The question to be determined is what is the scope of the application of Section 41-A and what is the nature of power of the Government? 24. In Tarlochan Dev Sharma v. State of Punjab this Court while dealing with the removal of a President of the Council under the Punjab Municipal Act of 1911, held in para 7 as under : (SCC pp. 268-69). “7. In a democracy governed by the rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. … Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held.” In para 11 this Court observed as under Tarlochan Deve Sharma case, SCC pp.270-71). “11. … A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is … The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” The same consideration must be taken into account while interpreting Section 41-A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer, and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances. 25. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer, and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances. 25. For taking action under Section 41-A for removal of the President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office-bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office-bearer. 26. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation. 27. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41-A.” 10. Reading of the aforesaid decision, this Court finds, the Hon’ble Apex Court in paragraph No.24 of the judgment also referred to a similarly situated case decided vide 2001 (6) SCC 260 where the Hon’ble Supreme Court has categorically held that the even though the President involved therein is a democratically elected officer but removal of such officer is an extreme step which must be resorted to in grate and exceptional circumstances. Both the above decisions have a clear application to the case of the petitioner. Both the above decisions have a clear application to the case of the petitioner. This Court has also gone through the decision cited by Sri B.S. Tripathy-1, learned counsel in the case in between Special Director and another v. Mohd. Ghulam Ghouse and another as reported in 2004 STPL 1598 SC and for the difference in the fact situation, the decision cited by Sri Tripathy-1 has no application to the case at hand. 11. For the observations, findings made hereinabove and the law of the land, this Court has no hesitation to interfere with the impugned notice vide Annexure-2 and consequently, sets aside the same. This Court makes it clear that setting aside of the notice vide Annexure-2 will not prevent the Government from taking up the issue involving Section 17 of the Odisha Municipal Act in respect of the petitioner independently and in the event, any such proceeding is initiated, the same shall be concluded giving opportunity of hearing to the petitioner and taking into consideration the decision of the Hon’ble Apex Court as reported in 2001 (6) SCC 260 and also the decision as reported in (2010) 2 SCC 319 . 12. The writ petition succeeds to the extent indicated hereinabove. Under the circumstance, there is no order as to cost.