Orissa High Court
Arati Pradhan vs State Of Odisha And Others on 10 March, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.328 of 2025
and
I.A. no.878 of 2025
Arati Pradhan .... Appellant
-Versus-
State of Odisha and others .... Respondents
Advocates appeared in this case:
For Appellant : Mr. Samir Kumar Mishra, Sr. Advocate
For Respondents : Mr. K.C. Kar, Government Advocate
Mr. Hrudananda Mohapatra, Advocate
Mr. Bibekananda Bhuyan, Sr. Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Dates of hearing: 14th February, 2025, 4th March, 2025
and 10th March, 2025
Date of judgment: 10th March, 2025
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ARINDAM SINHA, ACJ.
1. Appellant had filed a writ petition praying that notice dated 27th
August, 2024 and resolution dated 19th July, 2024 be quashed.
Contention of petitioner before the learned single Judge was, the
requisition was not enclosed in the notice issued, as mandated by sub-
section (2) of section 54 in Orissa Municipal Act, 1950. A notice to be
issued by the Collector was required to have enclosed therewith, both
the requisition as well as the resolution. Petitioner's case was, the
requisition was not enclosed in the notice. Furthermore, resolution copy
enclosed in the notice was not a true copy but apparently a copy
reflecting pagination. The requirement under the provision is
mandatory, while the procedure follows in the rules. The learned single
Judge failed to appreciate the facts in dismissing the writ petition
challenging petitioner's removal on defective notice.
2. Mr. Mishra, learned senior advocate appears on behalf of
appellant. Mr. Kar, learned advocate, Government Advocate appears on
behalf of State, Mr. Mohapatra, learned advocate appears for
respondent no.4 and Mr. Bhuyan, learned senior advocate, for
respondent nos. 6, 7, 9 to 11.
3. Contention on behalf of respondent no.4 was, the notice served
on appellant carried the resolution as well as the requisition. Appellant
cannot deny she became aware of the notice, as received by her father-
in-law, who had made clear acknowledgement on receiving the notice,
to be along with the resolution and the requisition.
4. At this juncture it would be convenient to reproduce paragraphs 5
and 6 from our order dated 14th February, 2025.
"5. Sub-section (2) says, inter alia, in convening the
meeting the procedure shall be in accordance with the
rules subject however to the provisions named therein.
Clause (a) in the sub-section says, no such meeting shall
be convened except on a requisition duly signed along with
copy of resolution proposed to be moved at the meeting.
Clause (b) provides for the requisition to be addressed to
the District Magistrate. Clause(c) mandates the District
Magistrate, to within 10 days of receipt of the requisition,
fix the meeting and give notice of the same to all
councillors holding office, of such notice along with copy
of the requisition and the proposed resolution. At this
stage we are prima facie satisfied, any aberration may
cause the meeting held thereafter to be pronounced as not
duly held.
6. In view of aforesaid we require State to produce the file
of the District Magistrate and the officer must avail the
convenience of video conferencing to assist us on
adjourned date. The officer is at liberty to be physically
present."
(emphasis supplied)
5. Today Mr. Kar produces the original file. Collector, Nayagarh is
virtually present.
6. We required Mr. Kar to show us office copy of the notice issued
to the councillors under sub-section (2) in section 54. Mr. Kar
complied. We found the office copy had attached to it photocopy of the
resolution bearing endorsement of attestation. Following it was another
copy of the notice bearing endorsement on service.
7. We then asked Mr. Kar to identify from the file, original
requisition received. Mr. Kar identified it for us. We looked at it and
rest of the papers in the file. There is no attested copy of the requisition
in it.
8. We required Mr. Mishra, appearing on behalf of petitioner, to
show us original notice received by his client. He identified it from the
writ file as produced before the learned single Judge. We looked at the
original notice appellant had received. It exactly corresponds with
office copy notice bearing as enclosure, the resolution. We note that
office copy of the notice, as aforesaid, bears enclosure of copy of the
resolution as attested, the original resolution being elsewhere in the file.
Petitioner's notice simply had enclosure of photocopy of the copy
resolution attached to the office copy of the notice, without the
endorsement of attestation.
9. It appears from impugned judgment, a position on fact was
pronounced upon by the learned single Judge to be, appellant cannot
deny receipt of the notice along with copies of the resolution and
requisition because her father-in-law had acknowledged receipt of it.
Appellant had contended otherwise before the learned single Judge and
maintains such contention before us, causing us to have called for and
look at the original file. On query made the Collector submits, omission
to enclose the requisition, when brought to his notice, he issued a
subsequent notice enclosing it.
10. It is clear that finding of fact by the learned single Judge was
erroneous. The notice convening the meeting issued on 27th August,
2024 did not meet with mandatory requirement as provided under sub-
section (2) in section 54. Mr. Bhuyan submits, this finding by the
appellate Court is not necessary in view of submission made by the
Collector and subsequent fact of deferment of the meeting, it having
been held and not challenged. We have seen from paragraph-12 of
impugned judgment, this contention was negated by the learned single
Judge. Petitioner before said Court is appellant before us. Mr. Bhuyan's
clients cannot assail the reason given on this contention as no cross
appeal was filed. Furthermore, when the original notice is bad, any
deferment or action taken pursuant thereto, must also be held to be bad.
11. Impugned judgment is set aside in appeal. Consequently, prayer
in the writ petition is allowed. Notice dated 27 th August, 2024 is set
aside and quashed. Interim order passed in the appeal will thus merge.
12. The appeal is allowed and disposed of.
( Arindam Sinha )
Acting Chief Justice
( M.S. Sahoo )
Judge
Sks
Designation: Personal Assistant
