Decided on November 13,1973

State of Orissa and Ors. Respondents


R.N. Misra, J. - (1.) THIS is an application for a writ of certiorari to quash a resolution adopted at a special meeting of the Hinjilicut Notified Area Council recording want of no confidence in the Petitioner who was its Chairman.
(2.) HINJILICUT Notified Area Council within the district of Ganjam consists of 16 councillors. On 25 -11 -1969, general election of members to the council was held. The Petitioner was elected as the Chairman alia the opposite party No. 5 as; the Vice Chairman by the Councillors. Under Section 41 of the Orissa Municipal Act (hereinafter referred to as the Act) the terms of office is 4 years. The Petitioner, is, therefore, entitled to continue in office until 25 -11 -1973. The opposite parties 4 to 16 are the members of the council. Out of the two other elected members one is dead and the other has resigned. The council is, therefore, left with a total membership of 14 including the Petitioner and the opposite parties 4 to 16. A requisition was given to hold a special meeting of the Notified Area Council for recording a vote of no confidence against the Petitioner and 5 -9 -1973 was appointed for the said purpose. The Opposite parties 4 to 8 and 10 to 14, in all ten members, attended the said meeting and supported the resolution. The Petitioner contends that two of these members were not qualified. But conceding that ten members had supported the resolution it is claimed that the resolution is not in accordance with law and the vote of no confidence cannot be taken to have been passed. The Petitioner has prayed that the same be quashed as not being in conformity with law. Section 54 of the Act provides: (1) Where at a meeting of the municipal council specially convened by the District Magistrate in that behalf a resolution is passed supported by not less than two -thirds of the total number of councillors recording want of confidence in the Chairman or Vice -Chairman the resolution along with the records of the proceedings at such meetings shall forth with be forwarded to the State Government who shall publish the same in the Gazette and with effect from the date of passing of the resolution the person holding the office of Chairman or Vice -Chairman, as the case may be, shall be deemed to have vacated such office It is not disputed that the total membership of the Notified Area Council is 16. In view of the provision of Section 54 that two -thirds must support the resolution, Mr. Rath for the Petitioner contends that the requisite number to satisfy the requirement of two -thirds in the case of Hinjilicut Notified Area Council would be 11. Since only 10 members have supported the resolution the motion of non -confidence cannot be taken to have been duly adopted. Reliance is placed on two decisions of this Court. The first case is reported in Ajit Kumar Das v. State of Orissa, 8 O.J.D. 147 and the second case in Nirmal Chandra Misra v. State of Orissa : 39 (1973) C.L.T. 251. In the latter Orissa Case the relevant provision for consideration was Section 24 of the Orissa Grama Panchayat Act. The requirement there is also two -thirds of the total membership of the Grama Panchayat. The membership in the said case was also 16. The Court held that the requirement of two -thirds would be satisfied if only 11 of the members support the resolution. On behalf of the State this contention of Mr. Rath is accepted to be correct. Mr. Adhikari appearing for some of the opposite parties also does not dispute this calculation. He, however, raises the contention that the total membership was only 14 because one of the elected members was dead and the other had resigned. Two -thirds, therefore, according to Mr. Adhikari, must be of 14 and not of 16. As we have already indicated, Section 54 of the Act clearly provides that it must be two -thirds of the total number of councillors. In the Municipal Act words like "whole", " entire" and " total" with reference to the councillors have been used. In our view all these expressions are synonymous and they really refer to the total sanctioned strength of the council and not of the existing members at any given point of time. Clear support for such a view is available from a Full Bench case of the Allahabad High Court in Mangala Prasad v. District Magistrate, A.I.R. 1971 All where considering the phrase "total number of members of the Board"the Court came to hold that it meant the total number of members who initially constituted the Board, casual vacancies not being taken into consideration. To the same effect is a Bench decision of the Bombay High Court in B.N. Hardikar v. S.G. Daithankar : A.I.R. 1971 Bom. 188. The expression for construction was total number of councillors and the Court, came to hold that it must be the sanctioned, strength and not the councillors entitled to sit and vote only. In the earlier Orissa decision already referred to Ajit Kumar Pati v. State of Orissa 8 O.J.D. 147 this Court also construed the total number of councillors"appearing in this very Act as the whole number of members or the entire strength of the council. As against these decisions Mr. Adhikari for some of the opposite parties lies, upon a decision of the Bombay High Court in Namdeorao v. Dula Ji, 1969 M.L.J. 74. The dispute there was also of the same type. The relevant provision of the Maharashtra Zilla Parishads and Panchayat Samitis Act provided that a motion is to be carried by a majority of the total number of councillors. The Court took the view that the constitution of the Zilla parishad was peculiar as under the Act at no given moment of time it can be said to be composite of a definite number of councillor by the constitution there occurs an overlapping of seats where for, instance one individual occupies two seats for example in the case of a woman elected as a councillor. Because she is elected, out of the two seats provided to be filled up by co -option of two women, one cannot be filled up. For these reasons the body is from time to time liable to fluctuate and its membership may be added to or subtracted from as occasion arises. It is true to observations in the said case support Mr. Adhikari 's contention, but the facts which we have indicated above cannot be lost sight of.
(3.) WE are bound by a Bench decision of our Own Court. We are impressed by the reasonings given by the decisions of the Bombay case and the Allahabad case; already referred to and we are of the view that, if the special facts did not exist thee Full Bench in the Maharashtra case would not have taken the view it has. We are therefore, satisfied that the valid vote of want of confidence could be carried if 11 councillors supported it. As that has not been done, the resolution dated 5 -9 -1973 must be taken to have not been legally passed. We do not find any justification to quash the said resolution : We would only hold that the said resolution cannot provide the basis for removal of the Petitioner from the office of Chairman. We accordingly direct the opposite parties 1, 2 and 3 not to take any action as provided under the Act on the basis of the said resolution for removing the Petitioner from the office of Chairman of Hinjilicut Notified Area Council.;

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