ORISSA HIGH COURT: CUTTACK. W.P. (C) NO. 18662 OF 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India ------- Nanda Kishore Sahoo …… Petitioner -Versus- Secretary, House and Urban Development Department and others. …… Opp. parties For Petitioner: M/s. S.K.Padhi, Sr. Advocate, Bharati Dash, B.C. Sahoo-1, B. N. Panda-2, Miss Rita Singh & A.K. Rout. For opp. parties: Addl. Government Advocate (For O.Ps 1 to 3. M/s. Gopal Krishan Mohanty, P. K. Panda, & D. Mishra (O.P. Nos.8 & 9). M/s Bijan Ray & Sanjit Mohanty, Sr. Advocates and S.P. Panda & S.Pattnaik. (For O.P. 10) ------------------------------------ Date of Judgment: 13 .07.2011 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. The petitioner has filed the present writ application challenging the legality of the notice of no-confidence motion dated 12.10.2010 issued by the Collector, Dhenkanal (opposite party No.3) under the Orissa Municipal Act, 1950 and the Rules framed thereunder (hereinafter referred as “the Act” and “the Rules”) on the ground that the notice of no-confidence motion has been issued basing upon the resolutions dated 01.10.2010 and 06.10.2010 made by invalid and disqualified councillors. 2. Election to the seat of Chairman of Bhuban Notified Area Council (NAC) was held on 19.09.2008. It is the case of the petitioner that on 01.10.2010 more than 1/3rd number of councillors, i.e., six in number, out of 15, moved a no-confidence proposal against the petitioner. A requisition was sent to the Collector, Dhenkanal by the councillors along with the said proposal dated 01.10.2010 on 06.10.2010. Pursuant to the said proposal dated 01.10.2010 and the resolution dated 06.10.2010, the Collector, Dhenkanal on 12.10.2010, gave notice to all the 15 councillors to attend the no- confidence motion meeting to be held on 10.11.2010 in the meeting hall of the office of the Bhuban NAC. The petitioner has made out a case that in an adjourned meeting of the NAC, the Chairman vide resolution No. 6 (I), disqualified opposite party No.10 (Councillor) in presence of other three councillors, pursuant to which resolution, the Executive Officer, Bhuban NAC requested the opposite party No.2 – Director, Municipal Administration to take necessary action regarding disqualification of opposite party No.10 (Councillor), which is pending and no action was taken. Being aggrieved by such resolution, opposite party No.10 moved this Court in W.P.(C) No. 18087 of 2010. However, the said writ application was withdrawn by the opposite 2 party No.10 on 29.10.2010, in view of the provisions of Section 38 of the Act. The petitioner preferred the present writ application on 29.10.2010. On 30.10.2010, the opposite party No.10 filed an Election Misc. Case No. 265 of 2010 before the learned District Judge, Dhenkanal, which subsequently appears to have been dismissed, as the opposite party No.10, who was the petitioner in the election dispute, did not want to press the said dispute any further. The said election misc. case bearing No. 232 of 2010 was thus dismissed with the following order on 14.02.2011, i.e., during the pendency of this writ application:- “The petitioner is present today with his Advocate and files hazira. Adv. for the O.Ps 1 and 2 is present. No objection filed on the memo dtd. 11.2.11 filed by the petitioner. The memo dtd. 11.2.11 is put up. Heard from both sides on the memo filed by the petitioner. The O.Ps has no objection to the memo dtd. 11.2.11. Thus the memo dtd. 11.2.11 is accepted and the election petition is dismissed as the petitioner does not want to proceed further with the case.” Certified copy of the above order was filed by the learned counsel for the opposite parties 5 to 9 on 15.02.2011, when the matter was heard and judgment was reserved after conclusion of hearing. Upon hearing this writ application, Rule Nisi was issued on 09.11.2010 along with an interim order that the no-confidence motion, pursuant to the notice dated 12.10.2010 scheduled to be held on 10.11.2010 may be held, but the result thereof shall not be published. 3. The petitioner has alleged that out of the six councillors, who moved the Vote of No-Confidence, the opposite party no.5-Pabitra 3 Mohan Sahoo and opposite party no.6-Benudhar Pothal were disqualified as Councillors as they had subsisting contracts with the N.A.C. The opposite party no.10-Hrudananda Maharana was disqualified as he had not attended four consecutive meetings of the N.A.C. and the opposite party no.8-Saran Naik and opposite party no.9- Khageswar Sethy have resigned from the N.A.C., which has been accepted. 4. Mr. S.K. Padhi, learned senior counsel for the petitioner urged that the Additional District Magistrate, Dhenkanal had submitted a finding relating to subsisting contracts of the opposite party nos.5 and 6, which has been sent to the Government for taking necessary action under section 17(d) of the Orissa Municipal Act, 1950 (hereinafter referred to as ‘the Act’). The said findings of the Additional District Magistrate has been annexed at Anneuxre-7, from which it appears that on verification of record, it was revealed that one work-order bearing no.750 dated 23.06.2008 was issued in favour of Sri Benudhar Pothal-opposite party no.6 for construction of Kali Bazar Batamangala Community Centre with an estimated cost of Rs.75,000/- and the first running bill and final bill was paid to him on 18.03.2009 and 19.01.2010 respectively. Another work order bearing no.180 dated 19.02.2008 issued in favour of Sri Pabitra Mohan Sahu-opposite party no.5 was for construction of Raghunath Jew Community Centre in Ward No.4 for an estimated cost of Rs.2,30,000/-. Various running bills have been paid in favour of him. 4 The Additional District Magistrate, however, reported that the said opposite party after being elected as Councillors have continued their contract business till date of the inquiry. Section 17(d) of the Act provides as follows: “17. Disqualification of Councillor-(1) Subject the provisions of section 38, a Councillor shall cease to hold his office, if he – (a) to (c) xxx xxx xxx (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 xxx xxx xxx” 5. As stated by the petitioner the report of the Additional District Magistrate has been sent to the Government. With respect to the above Mr. G.K. Mohanty, learned counsel appearing for the opposite parties submitted that the disqualification clause, i.e., Clause-(d) of Section-17(1) provides that the same is subject to the proviso to Clause-(VIII) of Sub-Section-(I) of Section-17. He, therefore, submits that the said Sub-Section-(viii) in Section-16 clearly stipulates that a person will be disqualified if he is interested in the subsisting contract, either directly or indirectly made with or any work being done for the Municipality (here N.A.C.). In the instant case, however, Mr. Mohanty submitted that the petitioner himself has admitted that the works, in question, which were executed by the above named opposite parties, were works under the M.P. LAD and 5 M.L.A. LAD. Therefore, the N.A.C. has nothing to do with the said work. Had it been any work executed by or on behalf of the N.A.C. the procedures contemplated under Chapter-VI of the Act and Rules-332 to 339 should have been followed. In the instant case, no such procedure have been followed and rather the procedure prescribed for utilizing M.P.LAD and M.L.A. LAD fund have not been followed, it cannot be said that the above named opposite parties were disqualified as Councillors on the date of making the requisition for the Vote of No Confidence. From Anneuxre-B/5 to the counter affidavit filed on behalf of the opposite party nos.5,6 and 7, it appears that the Government in its Housing and Urban Development Department on 12.10.2010 wrote to the Collector and District Magistrate, Dhenkanal as follows:- “BY FAX Government of Orissa Housing & Urban Development Department No. Ele.-41/2010-22662/HUD,Dated, Bhubaneswar the 12. X.2010 From: Shri S.K. Mishra, Joint Secretary to Government To The Collector & District Magistrate, Dhenkanal Sub: Allegations against the Councillors of Bhuban N.A.C. Sir, I am directed to invite a reference to your Letter No.900, dated 11.10.2010 on the subject cited above and to say that as per provision Under Section 38-A of the O.M. Act., 1950, the State Government may remove any Councillor, if they are satisfied that he has become subject to any of the disqualification specified in Section 17. The enquiry report furnished in the matter may be examined as per the provision of the relevant Act & 6 Rules and hence it needs more time. Only the submission of enquiry report may not be treated as disqualification from their councillorship and deprived them to take part in the special or regular meeting of the Council. You are, therefore, requested to take appropriate action as per provision laid down under O.M. Act, 1950 and rules thereunder in the instant matter under intimation to this Department. Yours faithfully Sd/- Joint Secretary to Government. ” 6. To further appreciate the allegation with regard to the disqualification alleged against the opposite party nos.5 and 6, referring to section 17(1)(d), which has been already quoted above, it would be seen that the aforesaid clause is subject to the proviso to Clause-(viii) of Sub-Section-(1) of Section-16 of the Act. The second proviso to Clause (viii) of Sub-Section-(1) of Section-16 clearly stipulates that if any question arises, either before or after an election whether any person is or not disqualified under the said clause, the question shall be referred to the State Government whose decision shall be final. As a matter of fact, from the letter of the Government quoted above, it is evident that the Government on the inquiry report of the Additional District Magistrate has not taken any final decision with regard to the above named opposite party nos.5 and 6. Hence, at this stage, it cannot be construed that the said opposite parties being disqualified Councillors could not have become signatories to the resolution for holding a No-Confidence Motion against the petitioner. 7. Now, coming to the question with regard to the resignation of opposite party nos.8 and 9, it is prima facie found from 7 the record that such resignation letters were electronically typed in Oriya alleged to have been signed by the above two opposite parties and ultimately accepted by a resolution of the N.A.C. However, it appears from the Anneuxre-A/8 series to the counter affidavit filed on behalf of the said opposite parties 8 and 9 that the said opposite parties had taken immediate steps by writing to the Executive Officer of the N.A.C. that they have no knowledge with regard to filing of the resignation letters and they have not signed such letters. It further appears that the said opposite parties filed affidavits sworn by them to the above effect before, the Executive Officer and published a declaration in Daily Oriya News Paper “Orissa Bhaskar” on 12.10.2010 declaring that they have never tendered their resignation and the so called resignation letters are fabricated ones. In the counter affidavit filed on behalf of the opposite party no.3-Collector, Dhenkanal, it has been stated that it is a fact that Councillors, N.A.C., Bhuban vide their resolution dated 12.10.10 have accepted the resignations tendered by the opposite party nos.8 and 9. But the same has been suspended vide Government letter dated 01.11.10 in its Housing and Urban Development Department. The said letter has been annexed as Annexure-C/3 to the counter affidavit filed on behalf of the Collector from which it is evident that the Government recorded in the said letter as follows:- “Now, therefore, in exercise of powers conferred by Clause-(i) of sub-section-(I) of Section 398 of the Orissa Municipal Act, 1950, (Orissa Act 23 of 1950), the State Government do hereby suspend the above mentioned resolution of the said Council until further orders” 8 8. In view of such suspension of resolution by which the resignation of opposite party nos.8 and 9 were accepted, the said opposite parties cannot be said to have resigned from the seat of Councillors of the N.A.C. The only other objection is with regard to the opposite party no.10, who is alleged to be disqualified having not attended four consecutive meetings of the N.A.C.. As already stated above, the dispute as to whether the opposite party no.10 should be treated to be disqualified under section 38-A of the Act has not yet been resolved and no final decision has been taken thereon by the State Government for removing the said opposite party no.10 from the N.A.C. as Councillor. As a matter of fact, as per the proviso to section 38-A, in view of the application filed under section 38 before the leaned District Judge, the Government could not have passed any order. Nothing is brought before this Court that the Government has even till date offered an opportunity of showing cause to the opposite party no.10 against the proposed removal, which is also a requirement of section 38-A before passing any final order. . 9. Mr. S.K. Padhi, learned senior counsel at this juncture vehemently urged that the second proviso to section 38-A of the Act provides that no order can be passed by the Government in a case where an application in respect of the same Councillor made under section-38 of the Act on the same ground is pending or has been disposed of under the said Section. According to Mr. Padhi, taking advantage of this proviso of section 38-A, the opposite party no.10 9 cleverly filed an application under section 38 of the Act before the learned District Judge thereby causing an automatic stay on the question of removal of the opposite party no.10 by the State Government in exercise of power under section 38-A of the Act. Sections 38 and 38-A of the Act are quoted hereunder: “38. District Judge to decide question of disqualification of Councillor- (1) Whenever it is alleged that any person, who has been elected as Councillors is disqualified under Section 16 or 17 and such person does not admit the allegation or whenever any Councillor himself is in doubt, whether or not he has become disqualified for office under section 16 or 17, such Councillor or any other Councillor may, and the Chairperson at request of the Municipality shall apply to District Judge of the district in which the Municipality area is situated. (2) The said Judge after making such inquiry as he deems necessary shall determine whether or no such person is disqualified under section 16 or 17 and his decision shall be final. (3) Pending such decision, the Councillor shall be entitled to act as if he were not disqualified.” “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. (2) Any Councillor against whom an order of removal is made under sub-section (1) may within thirty days of such order, prefer an appeal before the District Judge of the district in which the Municipality is situate”. 10 10. No doubt, if a move is made under section 38 of the Act with regard to removal of a Councillor by initiating a proceeding under section 38 by the Chairperson or the Councillor himself, the second proviso of section 38-A shall come into operation and pending such decision, a Councillor shall be entitled to act as if he was not disqualified. 11. Mr. Padhi, learned senior counsel, therefore, submitted that in view of the provision under section 38 and 38-A of the Act, an absurd, ambiguous and incongruous situation may arise, i.e., at the choice of the Councillor against whom removal is sought for under section 38-A, he may file an application under section 38 before the learned District Judge thereby automatically staying the proceeding under section 38-A and till a decision is taken by the learned District Judge, he will continue to act as a Councillor though, as a matter of fact, he may be a disqualified Councillor. Thus, such a proceeding can be termed as a collusive proceeding. He, therefore, submits that this Court should interpret and clarify the position so as to clear such ambiguity. 12. This Court upon a plain reading of the above two sections, i.e., sections 38 and 38-A of the Act finds no ambiguity in the same except that as submitted by the Mr. Padhi, a person may take advantage of the said provisions by filing a collusive petition under section 38 of the Act, if move is made against him to be 11 removed from the office of the Councillor under section 38-A of the Act. 13. This Court is, therefore, of the view that there being absence of ambiguity as contended by Mr. Padhi, the only remedy would be that whenever a person has been proceeded against for removal from the office of the Councillor by the State Government under section38-A of the Act and, thereafter a proceeding under section 38 of the Act is filed before the learned District Judge and the learned District Judge is made aware that the matter is pending consideration of the State Government under section 38-A of the Act, the learned District Judge should take immediate and expeditious steps to conclude the proceeding under section 38 of the Act within a time frame. 14. However, in the instant case, as an application under section 38 of the Act was filed by the opposite party no.10, he continued to remain as a Councillor on the date when the resolution was taken for moving the Vote of No-Confidence against the petitioner. 15. In view of the above analysis of fact and the law, this Court is of the considered opinion that there is no illegality in the notice issued for holding the No-Confidence Motion against the petitioner. Pursuant to the interim order passed, the said meeting has been held but the result thereof has not been published. Such result shall be declared by the concerned authorities within a period of two 12 weeks from the date of production of the certified copy of this order before the said concerned authority, i.e., the District Magistrate, who issued the notice to hold the meeting of the No-Confidence Motion. Depending on the result of the said meeting, consequential steps shall be taken by the concerned authorities as provided under the Act and the Rules framed thereunder. 16. The writ application being devoid of merit stands dismissed, but in the circumstances without costs. All pending Misc. Cases stand disposed of. …………………… M.M. Das, J. Orissa High Court, Cuttack. July 13th ,2011/Himansu 13 14