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2006 Supreme(Ori) 775
2007 (I) OLR — 186
A. K. GANGULY AND I. MAHANTY, JJ.
Kabita Barik...Petitioner
Versus
State of Orissa and others...Opp. Parties
W.P. (C) Nos. 1825 of 2006 & 2090 of 2006
Decided on 22nd December, 2006.
For Petitioner:M/s. Sidheswar Mohanty, C. R. Patnaik & L. Pani
For Opp.Parties:Mr. D. K. Nanda Addl.Government Advocate (O.P. Nos.1 to 3)
Mr. R. K. Rath, Senior Advocate (Intervenor)
M/s. P. K. Mishra & S. K. Das
M/s. I. Mishra & P. K. Nanda (O.P. No.4)
M/s. Pitambar Acharya, S. R. Pati & P. K. Ray (O.P. No.5)
M/s. M. K. Mishra, J. Panda, (O.P. Nos.6 & 7)
In W.P.(C) No.2090/06
Kabita Barik...Petitioner
Versus
State of Orissa and others...Opp. Parties
For Petitioner:M/s. Sidheswar Mohanty, C. R. Patnaik & L. Pani
For Opp.Parties:Mr. D. K. Nanda,Addl. Government Advocate (O.P. Nos.1 to 3)
Mr. R. K. Rath (Intervenor)
M/s. P.K. Mishra & S. K. Das
M/s. B. P. Tripathy, R. N. Mohanty, P. Acharya, S. R. Pari¬ja, S. Mishra & R. R. Jena
Headnote:1. ORISSA MUNICIPAL ACT, 1950 - Sec. 43(1) - Resignation by Councillors - Councillors themselves have filed affidavit to the effect that they have never tendered their resignations to the petitioner in writing - A Councillor may resign from his office by writing under his hand - In the present case it is nobody’s case that O.P.Nos. 6 and 7 have tendered their resignation let¬ters by writing under their own hands - The so-called resignation letters of the Councillors are not in accordance with law, its acceptance does not amount to a valid acceptance of the resigna¬tion of O.P.Nos. 6 and 7. (Para - 7)
2. ORISSA MUNICIPAL RULES, 1953 - Rule 38 - Resignation of Councillors - Acceptance of resignation in the meeting of NAC - No business shall be transacted at an adjourned meeting, except the business contemplated at the original meeting - Resolution so far as it purports to acceptance of the alleged resignation of O.Ps. 6 and 7 is invalid in the eye of law since there were no item of agenda to that effect. (Para - 7)
3. ORISSA MUNICIPAL ACT, 1950 - Secs. 54(1)(ii), 52(2)(g) - No confidence motion against Chairperson - No reason recording want of confidence in the Chairperson or the Vice-Chairperson shall be moved more than once during a calendar year - Purpose of Clause (g) is to prevent any claim or contention that the resolution not having been moved or considered remains alive to be considered in another meeting - In the present case the reso¬lution dated 20.2.06 is not vitiated under Section 54(1)(ii) inasmuch as no previous resolution was moved recording about any vote of no confidence against the petitioner. (Paras - 12 to 25)
4. ORISSA MUNICIPAL ACT, 1950 - Sec. 54(1)(ii) - “Calendar Year” - Meaning of - Year is a period of 365 days (or 366 days in leap year) - The same may be from the 1st of January or the period of the same length, starting at a different point. (Para - 17)
5. WORDS AND PHRASES - Orissa Municipal Act - “Move”, “annul” - “Annul” means a situation where there is no outcome and as no meeting was held the no-confidence proposal was neither debated nor discussed - The expression moving a resolution means initiation of a debate or discussion about the resolution.
(Para - 21)
JUDGMENT
A. K. GANGULY, J. — These two Writ Petitions were heard together as the question involved in one was connected with the other.
2. In W.P.(C) No.1825 of 2006, the subject-matter of challenge is an order of the Collector, Dhenkanal by which the Collector, according to the petitioner, interfered with the acceptance of resignation of two councillors of the Notified Area Council, Bhuban (hereinafter called the “said NAC”).
3. The writ petition was filed by Kabita Barik who claims to be the elected Chairperson of the said NAC. Her main case is that two councillors of the NAC, namely, Prasant Kumar Maharana and Bhajaman Naik submitted their resignations to the petitioner. Prasanta Kumar Maharana gave his resignation on 23.11.2005 and Bhajamana Naik on 25.11.2005 on different grounds. The case of the petitioner is that the resignation letters of both the coun¬cillors were placed before the meeting of the said NAC on 16.12.2005 for acceptance but due to want of quorum that meeting was not held and was adjourned to 21.12.2005. In the adjourned meeting held on 21.12.2005, the resignation letters of those two persons were accepted. As such, both the persons ceased to be councillors of the said NAC. The Executive Officer of the NAC intimated the same to the concerned councillors and also to the District Magistrate, Dhenkanal, Sub-Collector, Kamakhyanagar and the Secretary to Government, Housing and Urban Development Depart¬ment. The further case of the petitioner is that the Executive Officer intimated the same to the State Election Commission for holding bye-election in respect of Office of the two Councillors which became vacant by way of resignation, namely, in respect of Ward Nos.1 and 7. Thereafter the State Election Commission di¬rected the revision of the electoral roll of Bhuban NAC for conducting the election and the State Election Commission also directed the conduct of the bye-election. The grievance of the petitioner is that at this stage she received a letter from the Executive Officer, Bhuban NAC dated 27.1.2006 and a letter of the Collector, Dhenkanal that the question of holding of bye-election to the Office of the Councillors in the said NAC in respect of Ward Nos.1 and 7 does not arise as the resignations of the coun¬cillors have not been legally accepted. It was alleged that the acceptance of the resignations of the councillors was in viola¬tion of Section 43(1) of Orissa Municipal Act, 1900. It also appears from the said letter that there was a direction by the Collector to the Sub-Collector, Kamakhyanagar to cause an inquiry into the allegation made by the Councillors regarding acceptance of their resignations. It also appears that pursuant to the direction of the Collector, the Sub-Collector had already started holding an inquiry.
4. In this matter, pursuant to the order of this Court dated 4.5.2006, those two councillors have been impleaded as parties and they have also appeared and filed affidavits. Various counter affidavits have been filed by the opposite parties. One counter affidavit has been filed by opposite party No.4-the Executive Officer of the concerned NAC and the other counter affidavit has been filed by those two councillors. A counter affidavit has also been filed by opposite party Nos.2 and 3 and a separate one by opposite party No.4.
5. In the counter affidavit filed by opposite party No.4, a stand has been taken that due to lack of quorum on 16.12.2005 the General Body Meeting of Bhuban NAC was adjourned by the Chairperson to 21.12.2005 and in the said meeting the Chairperson along with three other councillors had allegedly accepted the resignation of the councillors in respect of Ward Nos.1 and 7. It was also stated that opposite party No.4 intimated the vacancies which were caused in view of the resignation of the councillors of Ward Nos.1 and 7 to the State Election Commission. It also ap¬pears from the said counter affidavit that those two councillors filed their representations along
