Orissa High Court
Arati Pradhan vs State Of Odisha And Others .... Opposite ... on 28 January, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22679 of 2024
Arati Pradhan .... Petitioner
Mr. S.K. Mishra, Senior Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Mr. P.K. Mohanty, ASC
Mr. H.N. Mohapatra, Advocate for O.P. No. 4
Mr. B. Mishra, Senior Advocate &
T.K. Biswal, Advocate for O.P. Nos.5 to 12
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:28.01.2025
1.
Instant writ petition is filed at the behest of the petitioner
assailing the impugned notice dated 27th August, 2024 and
resolution dated 19th July, 2024 (Annexure-1 series) vis-à-vis the
no confidence motion initiated against her as per the provisions
of the Odisha Municipal Act, 1950 (hereinafter referred to as „the
Act‟) on the grounds inter alia that the same are liable to be
quashed.
2. The petitioner challenges the notice dated 27th August, 2024
served on her by learned Collector-cum-District Magistrate,
Nayagarh, namely, opposite party No.3 fixing a date for the
meeting of no confidence motion. As per the petitioner, she is the
Chairperson of Khandapada NAC elected in the year 2022 and
ever since then, has been discharging her duty sincerely. The
contention of the petitioner is that pursuant to the directions
issued in W.P.(C) No.19985 of 2024, notice with a copy of the
proposed resolution dated 19th July, 2024 was issued and served,
however, the same was not accompanied with the requisition.
Hence, it is pleaded that there has been non-compliance of
Section 54(2)(c) of the Act since a copy of the requisition was not
sent along with the notice dated 27th August, 2024. It is alleged
that while issuing such notice of no confidence motion, opposite
party No.3 annexed a copy of the resolution filed in W.P.(C)
No.19985 of 2024 instead of the one addressed to him and
therefore, due procedure has not been followed. The further
contention is that the notice for the meeting in respect of the vote
of no confidence was issued much after 10 days of receipt of the
requisition, which is in derogation to Section 54(2)(a),(b) & (c) of
the Act with the other plea that it was not companied with a
copy of the requisition received on 1st August, 2024. It is further
pleaded that there is absolutely no material to justify the initiation
of no confidence motion against the petitioner and in so far as the
allegations made in the proposed resolution are concerned, the
same are misconceived and without any basis and therefore, the
impugned action is liable to be interfered with.
3. Opposite party No.3 filed an affidavit denying the claim of the
petitioner with the pleading that the procedure as prescribed
under the Act for the purpose of no confidence motion has been
duly followed and scrupulously complied with. According to
opposite party No.3, the requisition was received signed by the
Councillors with the required numbers as per Section 54(2)(a) of
the Act and after its receipt, a clarification was sought for about
the validity of the motion since the petitioner is directly elected as
the Chairperson by the eligible voters of the ULB, however, later
to the order dated 28th August, 2024 in W.P.(C) No.19985 of
2024, notice was issued to all the Councillors including the
Chairperson to attend the meeting to be held on 17th September,
2024 in the Conference Hall of the NAC, Khandapada. The
further pleading is that opposite party No.3 proceeded as per and
in accordance with the provisions of the Act fixing the date of the
meeting with respect to the motion initiated against the petitioner
upon receiving the requisition in that regard and hence, the plea
as to non-compliance as advanced is devoid of any merit.
4. In support of such motion, opposite party No.4 through a
counter filed pleaded that the resolution was passed by the
Councillors and the requisition was signed by more than 1/3rd of
the total number of the Councillors as per Section 54(2)(a) of the
Act and the same was received by opposite party No.3 on 1st
August, 2024 and the fact of receipt of requisition is admitted in
W.P.(C) No.19985 of 2024 and therefore, the action against the
petitioner cannot be found fault with. It is further pleaded that
considering the affidavit of opposite party No.3, this Court in
W.P.(C) No.19985 of 2024, passed the order dated 29th August,
2024 Annexure-C/3, whereafter, the meeting for the no
confidence motion was fixed to 17th September, 2024. It is
claimed that the father-in-law of the petitioner received notice for
the motion with an endorsement thereon and that apart, a copy
of the notice was affixed on the front door of her house in the
presence of the witnesses as she was found absent on 3rd
September, 2024, 4th September, 2024 and 5th September, 2024
and since, there has been proper service of it, plea of non-
compliance of Section 54(2)(c) of the Act is totally a falsehood
and a concocted story. It is also claimed that the copies of the
requisition and resolution have been sent to the petitioner by post
as well. With the above contention, dismissal of the writ petition
is prayed for.
5. Opposite party No.2 filed an affidavit pleading therein that the
impugned notice has been issued as per Section 54(2) of the Act
and as such, supported opposite party No.3 for having fixed a
date vis-à-vis no confidence motion by claiming that no fault can
be attributed to the same. It is further pleaded that resolution
dated 19th July, 2024 was at the instance of eight elected
Councillors out of 13 as mandated under the Act, hence, the same
does not suffer from any illegality. It is claimed that opposite
party No.4 being the Vice-chairman of the NAC had filed W.P.(C)
No.19985 of 2024 for a direction to hold the special meeting for
the no confidence motion, consequent upon which, the notice
dated 27th August, 2024 as per Annexure-A/4 series was issued
and served with the meeting being fixed to 17th September, 2024,
however, it could not be held so as the ADM (Gen.), Nayagarh,
who was authorized to conduct the proceeding was deployed at
Bhubaneswar on an official duty due to the visit of Hon‟ble the
Prime Minister on the said date and in support thereof, letter of
the Government dated 16th September, 2024 in GA and PG
Department (Annexure-B/4) has been referred. It is also pleaded
that the meeting since could not be held on 17th September, 2024,
it was rescheduled to 27th September, 2024 and the learned Sub-
Collector was declared the authorized officer to conduct the same
by an order at Annexure-C/4, whereafter, opposite party No.3
issued notice to all the Councillors once again allowing three clear
days before the schedule date and Annexure-D/4 is placed
reliance on in support thereof. As per the pleading, notice was
sent through Speed Post and notice along with requisition and
proposed resolution was served on the Councillors and the
Chairperson of the NAC received with due acknowledgment. The
plea is that there has been no illegality committed in the entire
exercise for the no confidence motion following due procedure as
prescribed under the Act. Finally, it is pleaded that the NAC is a
local body created under Constitution of India with the aim and
object to facilitate urban basic amenities to the people and when
some of the Councillors passed the resolution and submitted the
requisition upon reaching at an unanimous conclusion regarding
the petitioner as the Chairperson having failed to discharge the
public function properly, the action followed suit, since the
former lost confidence in the latter, subsequent to which, the
notice was issued by opposite party No.3 for the no confidence
motion, hence, the action is perfectly justified and in accordance
with law.
6. Similarly, opposite party Nos.5 to 12 filed the counter affidavit
and reiterated the plea of opposite party Nos.2, 3&4 by pleading
that the no confidence motion was initiated against the petitioner
with a resolution passed and requisition duly submitted and the
delay was on account of a clarification sought for by opposite
party No.3 but the same was intervened by the Court‟s order in
W.P.(C) No.19985 of 2024, whereafter, notice dated 27th August,
2024 was issued and served on the Councillors and also the
Chairperson to attend the meeting to be held on 17th September,
2024 and thereafter, on the re-scheduled date and the whole of
the exercise is, hence, in accordance with Section 54 of the Act.
7. Heard Mr. Mishra, learned Senior Advocate for the petitioner,
Mr. Mohanty, learned ASC for the State and Mr. Mohapatra,
learned counsel for opposite party No.4 besides Mr. Mishra,
learned Senior Advocate assisted by Mr. Biswal, learned counsel
appearing for opposite party Nos.5 to 12.
8. Precisely stated, the impugned notice dated 27th August, 2024
issued in connection with a no confidence motion initiated against
the petitioner is under challenge with the grounds stated herein
before. According to the petitioner, a copy of the requisition was
not received by her with the impugned notice as at Annexure-1
series, though the same is accompanied with the resolution dated
19th July, 2024. It is admittedly in connection with a motion
which was to be held on 17th September, 2024 but was
rescheduled to 27th September, 2024, the date on which, the
special meeting was convened, however, in view of the interim
order dated 13th September, 2024 in IA No.12066 of 2024 of this
Court, the result of the motion has not been declared. The
petitioner has also claimed that the notice was not properly
served on her by opposite party No.3 but the same is stoutly
denied by the opposite parties. The question is, whether, there
has been any illegality committed in so far as the procedure
followed by opposite party No.3 vis-à-vis the vote of no
confidence initiated against the petitioner?
9. For the sake of convenience, the relevant provisions of the Act
with respect to the no confidence motion and the procedure to
be adopted is reproduced herein below.
"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 along with 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; and (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 along with 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 along with a copy of the
resolution and of the proposed resolution, at least
three clear days before the date so fixed" XXX
10. As per the above provision, the rider is that no such resolution
against the Chairperson or the Vice-chairperson shall be passed
within two years from the date of his election or nomination, as
the case may be and more than once during a calendar year. As
to the meeting to be convened in accordance with Section 54(1)
of the Act, it shall be held only upon receipt of the requisition
signed by at least 1/3rd of the total number of the Councillors. It is
further prescribed therein that after receiving the requisition, the
District Magistrate, within ten days of such receipt, shall fix the
date, hour and place of the meeting and issue notice to all the
Councillors. In fact, a detailed procedure is prescribed as to the
manner in which the no confidence motion is to be held and
concluded. It is settled law that if the manner of doing a particular
act is prescribed under a statute, the same must be done in that
manner alone or not at all and the said rule and doctrine is
vividly discussed by the Apex Court in Babu Verghese and others
Vrs. Bar Council of Kerala and others (1999) 3 SCC 422 and the
same has been reiterated in Hussein Ghadially @ M.H.G.A Shaikh
and others Vrs. State of Gujarat (2014) 8 SCC 425. Having
referred to above principle of law, it is to be ensured that the
procedure for the vote of confidence as prescribed in Section 54
of the Act has really been followed in letter and spirit without any
deviation.
11. Admittedly, in the case at hand, more than 1/3rd number of the
Councillors proposed the no confidence motion against the
petitioner. It is not denied by the petitioner that she had not
received a copy of the resolution with the notice from opposite
party No.3. The only grievance of the petitioner is that a copy of
the requisition received by opposite party No.3 from the
Councillors was not sent along with the notice dated 27th August,
2024. As earlier stated, the meeting for confidence motion could
not be held on the date fixed and it had to be rescheduled and
fixed to 27th September, 2024. It is pleaded by the opposite
parties that notice was duly issued and served on the petitioner
and the same did accompany the copies of the resolution and
requisition as was received by opposite party No.3. The manner
in which the notice was served on the petitioner has been
pleaded with reference to Annexure-A/4 series, wherein, the
father-in-law of the petitioner shown to have endorsed for having
received it. On perusal of the notice dated 27th August, 2024, the
Court finds that the special meeting was notified to be held on
17th September, 2024 and the same was received by one
Udaynath Pradhan, who is claimed to be the father-in-law of the
petitioner, with an endorsement in that regard for receiving the
copies of the resolution and requisition with a signature dated 12th
September, 2024. The identity of the person receiving the notice
as her father-in-law has not been disputed by the petitioner.
Rather, the claim is that the notice was served but it was not
accompanied with a copy of the requisition as is required in view
of Section 54(2)(c) of the Act. Considering the pleadings on
record and the fact that a copy of the requisition is shown to have
been served on the petitioner as proved from Annexure-A/4
series, the Court further finds that there has been due compliance
of Section 54(2)(c) of the Act. If the petitioner had not received a
copy of the requisition, whether, it was duly intimated to
opposite party No.3? The conduct of the petitioner shows that it
was well within her knowledge about the no confidence motion
initiated by some of the Councillors and any such non-compliance
could have been immediately brought to the notice of opposite
party No.3. As it appears, opposite party No.3 upon receiving the
resolution of the Councillors with a requisition issued notice to
the petitioner and all the Councillors serving copies of the
resolution and requisition on them. It is quite unusual to expect
that a copy of the requisition would not be served singling out
the petitioner, while serving it on others at the same time. An
inference is readily to be drawn that the public function assigned
to opposite party No.3 was duly discharged unless an exception is
carved out showing the prejudice caused to the petitioner.
However, in the case of the petitioner, receipt of such notice by
her with a copy of the requisition is prima facie proved
considering Annexure-A/4 series, hence, was duly notified vis-a-vis
the vote of no confidence.
12. As far as the action to be followed by opposite party No.3
according to Section 54(2)(c) of the Act, Mr. Mishra, learned
Senior Advocate for the petitioner would submit that it was not
accomplished within ten days of receipt of the requisition, hence,
the exercise stands vitiated. From the counter of opposite party
No.3, it is made to reveal that a clarification was sought for about
the validity of the no confidence motion, hence, was the delay
and it was thereafter followed by the order dated 28th August,
2024 in W.P.(C) No.19985 of 2024. According to the Court, the
delay is, hence, duly explained by opposite party No.3 with a
reply on record. Besides the above, the special meeting was not
held on 17th September, 2024 and was deferred to 27th
September, 2024 and the reason therefor is revealed by opposite
party No.2 referring to Annexure-B/4 to the counter filed by him.
If any such meeting is postponed and a date is fixed, the action, in
the humble view of the Court, does not die down. In fact, the
business of the meeting could not be held on the date fixed and
therefore, it was rescheduled, to which, the Court does not find
to be offensive enough with opposite party No.3 further having
issued fresh notices to the Councillors and the Chairperson and
therefore, it would not be correct to allege the same to be in
violation of Section 54(2)(f) of the Act. In any case, the challenge
to the notice for the no confidence motion is on the strength of
pleading that the petitioner was not served with a copy of the
requisition and not that, the motion was rescheduled or
adjourned for that matter. In that connection, Mr. Mohapatra,
learned counsel for opposite party No.4 cited an order dated 5th
September, 2024 of this Court in W.P.(C) No.19669 of 2024,
wherein, it was held that the authority concerned is at liberty to
proceed once again in accordance with law as per the no
confidence resolution to contend that opposite party No.3 has
committed no illegality in fixing a fresh date for the motion.
13. Mr. Mishra, Senior Advocate and Biswal, learned counsel for
opposite party Nos.5 to 12 supported the contention of Mr.
Mohapatra, learned counsel for opposite party No.4 justifying the
action and procedure followed by opposite party No.3 while
challenging the plea of the petition with an argument that it is
only to defeat the no confidence motion with an oblique intent
and purpose. Furthermore, in course of hearing, Mr. Mohapatra,
learned counsel for opposite party No.4 relied on a decision of
this Court in Priyanka Gouda Vrs. State of Odisha and others
disposed of on 9th October, 2024 in W.P.(C) Nos.22656 of 2024
in support of the contentions advanced claiming that the
resolution was as per the statutory requirement and in accordance
with law and it was duly acted upon by opposite party No.3 with
issuance of the notice accompanied with the copies of the
resolution and requisition served on all the Councillors including
the petitioner being the Chairperson. In the decision (supra), a
case law in Union of India and others Vrs. Puna Hinda (2021) 10
SCC 690 is referred to and it has been concluded therein that a
disputed question of fact with regard to affixture of notice cannot
be taken cognizance of in exercise of powers under Articles 226
and 227 of the Constitution of India. In the instant case, though,
it is questioned by the petitioner for not having received a copy
of the requisition but the same is rebutted by opposite party
No.3. It has been satisfactorily demonstrated that regarding
service of notice on the petitioner received by her father-in-law,
he having endorsed such receipt clearly and conspicuously
revealed from Annexure-A/4 series. When it is pleaded by
opposite party No.3 that the petitioner was served with a copy of
the requisition along with the notice and resolution, no justifiable
reason lies to disbelieve the same. Admittedly, after the resolution
dated 19th July, 2024 was moved by the Councillors, opposite
party No.3 received it, the fact which is not in dispute and
thereafter, notice dated 27th August, 2024 was issued for the
special meeting to be held and it was at last fixed to 27th
September, 2024 and as earlier discussed, the delay was on
account of a clarification asked for. Considering the pleadings on
record and the fact that the notice along with a copy each of the
resolution and requisition was received with an endorsement so
made to appear from Annexure-A/4 series with such other means
resorted to. Not only that, a copy of the notice along with the
resolution and requisition dated 1st August, 2024 is shown to have
been affixed on the grill gate of the house of the petitioner with
the assistance of a Special Messenger duly accomplished in the
presence of witnesses including her father-in-law and there is
again an endorsement clearly revealed from Annexure-A/4, the
entire purpose was to ensure that the petitioner is made aware of
the motion, hence, it would not be unjustified to claim about due
procedure to have been followed.
14. As regards the plea that a copy of the resolution filed in
W.P.(C)No.19985 of 2024 is borrowed and sent along with the
notice by opposite party No.3 alleging that a copy of the original
was not enclosed, the Court is of the view that such is too trivial
to be taken judicial notice of, all the more when, the copy used
and utilized is one of the originals received from the Councillors
for and in respect of a motion to be initiated against the
petitioner. So, such contention of Mr. Mishra, learned Senior
Advocate for the petitioner is liable to be outrightly rejected. At
the cost of repetition, it is to be held that opposite party No.3 did
whatever necessary upon receiving the requisition and sincerely
followed the procedure as prescribed under the Act. In other
words, the Court reaches at a conclusion that the special meeting
was to be held on the date originally fixed and it was preceded
by a notice duly served on the petitioner along with the
resolution and requisition, the fact which is satisfactorily
established and ultimately, it was rescheduled to 27th September,
2024 and as such, there has been proper compliance of law.
15. Hence, it is ordered.
16. Consequently, the writ petition stands dismissed, however,
without any order as to the costs. As a necessary corollary, the
interim order dated 13th September, 2024 in IA No.12066 of 2024
is hereby vacated as a result.
Digitally Signed (R.K. Pattanaik)
Designation: Sr. Stenographer Judge
Reason: Authentication TUDU
Location: OHC,CTC
Date: 29-Jan-2025 20:50:22
