Orissa High Court
Jagyaseni Oram vs State Of Odisha And Others …. Opposite … on 28 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.1312 of 2025
Jagyaseni Oram .... Petitioner
Mr. U.K, Samal, Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Mr. Pitambar Acharya, Advocate General, Odisha
Mr. P. K. Rath, Senior Advocate for O.P.Nos.4 to 26
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:28.02.2025
1.
Instant writ petition is filed by the petitioner challenging
the impugned notice of no confidence motion as at
Annexure-1 issued by the Collector, Jharsuguda, namely,
opposite party No.2 initiated against him holding the post of
Chairperson, Brajarajnagar Municipality scheduled to be held
on 15th January, 2025 on the grounds inter alia that the same
is liable to be quashed not being in compliance with Section
54(2) of the Odisha Municipal Act, 1950 (hereinafter referred
to as „the Act‟).
2. As per the pleading on record, such notice for vote of no
confidence vis-a-vis the petitioner to be held on the date
Page 1 of 19
fixed was intimated by opposite party No.2 to all concerned.
The impugned notice dated 9th January, 2025 was though
received by the petitioner, it is further pleaded that the same
was not in compliance of the provisions of the Act. It is
claimed that opposite party No.2 did not receive a valid
requisition with a proposed resolution. The pleading is that
neither the requisition expressed that the Councillors have
lost their confidence nor the resolution dated 4th January,
2025 is a proposed resolution regarding want of confidence,
hence, therefore, such issuance of impugned notice under
Annexure-1 by opposite party No.2 is illegal and hence,
contrary to law and thus, liable to be quashed.
3. The counter affidavit is filed by opposite party No.3,
namely, Executive Officer, Brajarajnagar Municipality with a
pleading therein that opposite party No.2 was justified in
issuing the notice i.e. Annexure-1 for the no confidence
motion to be held on 15th January, 2025. The further pleading
is that as the Councillors lost confidence in the petitioner, the
resolution was passed with an intimation to opposite party
No.2, who upon receiving the requisition proceeded
according to the procedure prescribed under the Act and
fixed the date for the motion and as such, no illegality has
been committed, rather, there is full compliance of Section
54(2)(a) of the Act. As per opposite party No.3, the elected
Councillors of the Municipality are aggrieved by the
functioning of the petitioner, hence, moved the no confidence
motion. It is pleaded that the notice was forwarded to the
Page 2 of 19
petitioner through WhatsApp and by such other means to all
the Councillors, however, the petitioner refused to accept the
same. The self-same letter dated 9th January, 2025 and notice
of opposite party No.2, as according to opposite party No.3,
have been served on all the Councillors and the petitioner
through a Special Messenger but the latter refused to accept
the same and hence, both were affixed in front of his
residence as well as in front of the office chamber of the
Chairman, Brajarajnagar Municipality and in that connection,
referred to Annexure-A/3. The pleading is that Section 54(2)
of the Act has been fully complied with and the petitioner
was therefore to face the no confidence motion, but it is
questioned on the ground that the resolution not to be the
proposed resolution, which is totally misconceived and
hence, liable to be rejected outrightly.
4. Opposite party Nos.4 to 26 filed the counter affidavit and
pleaded that opposite party No.2 in exercise of powers vested
under Section 54(2)(c) of the Act fixed the date for motion on
15th January, 2025 by giving clear three days notice and such
notice was issued to the Chairperson of the Municipality,
namely, the petitioner and to all 23 Councillors through
Special Messenger and even the notice was affixed at the
office of the Municipality. It is further pleaded that as per the
service report, the petitioner refused to take notice from
Process Server, though he was aware of the resolution and
requisition. It is claimed that the no confidence motion was
held on 15th January, 2025 and 23 Councillors participated
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therein, but the result has not been declared due to the interim
order of this Court. It is lastly pleaded that the resolution was
sent by 22 Councillors and was received by opposite party
No.2 with a requisition carrying their signatures for
consideration and action as per Section 54 of the Act and
such resolution was for vote of no confidence against the
petitioner for the reason stated therein, hence, no illegality
has been committed by any of the authorities and therefore,
the plea of the petitioner is to be dismissed.
5. A rejoinder affidavit is filed by the petitioner to the
counter of opposite party No.2 stating therein that the
procedure for holding the no confidence motion shall have to
be in accordance with Section 54(2)(a) of the Act. It is
further pleaded that according to Section 54(2)(c) of the Act,
opposite party No.2 within ten days of receipt of such
requisition was required to fix the date, hour and place of
meeting and give notice to all the Councillors holding the
office as on such date of notice with a copy of the requisition
and proposed resolution, which is also not complied with.
Apart from the fact that the proposed resolution was never
sent with the requisition and therefore, the action for the vote
of no confidence cannot stand and hence, has to fall flat.
6. Heard Mr. Samal, learned counsel for the petitioner, Mr.
Acharya, learned Advocate General, Odisha and Mr. Rath,
learned Senior Advocate for opposite party Nos.4 to 26.
Page 4 of 19
7. Mr. Samal, learned counsel for the petitioner would submit
that the entire exercise stands vitiated as the requisition is not
accompanied with a proposed resolution, a mandatory
requirement under law. The submission is that the so-called
resolution said to have been received by opposite party No.2
along with the requisition is no resolution in the eye of law as
per Section 54(2) of the Act. In support of such contention,
Mr. Samal, learned counsel refers to the decision of this
Court in Smt. Kamala Tiria Vrs. State of Orissa and
others AIR 2001 Ori 67. The following decisions, namely,
Babu Verghese and others Vrs. Bar Council of Kerala
and others (1999) 3 SCC 422 and Shri Mandir Sita Ramji
Vrs. L.T. Governor of Delhi and others (1975) 4 SCC 298
are also placed on reliance to contend that due procedure has
not been followed, while initiating the no confidence motion
against the petitioner. The contention of Mr. Samal, learned
counsel is that the procedure prescribed under the Act shall
have to be followed in the manner specified. It is submission
that a particular act is to be done only in the manner
statutorily prescribed which is what has been held by the
Apex Court in Babu Verghese (supra) referring to the
judgment in Taylor Vrs. Taylor (1875) 1 Ch D 426, a
judgement legal classicus followed by the Privy Council in
Nazir Ahmad Vrs. Emperor, AIR (1936) PC 253 and in so
far as the case at hand is concerned, due procedure was
deviated and no proposed resolution ever accompanied the
resolution, hence, the impugned notice under Annexure-1 to
Page 5 of 19
be invalid. In Smt. Kamala Tiria, this Court held and
concluded that the requisition was not signed by 1/3 rd
majority of the members of the Zilla Parisad and furthermore,
the pre-condition that proposed resolution was to be moved
in the special meeting, a statute compliance, was not
satisfied, under such circumstances, the resolution for want
of confidence was held liable to be set aside, referring to
which, Mr. Samal, learned counsel submits that before
issuance of notice as per Annexure-1, opposite party No.2 did
not receive any such proposed resolution along with the
requisition.
8. On the contrary, Mr. Acharya, learned Advocate General,
Odisha submits that there is absolutely no illegality
committed by opposite party No.2 and impugned notice as it
was accompanied with a requisition and resolution, the action
is in accordance with Section 54(2) of the Act. It is submitted
that there is full compliance of the Act and procedure
prescribed therein and since, the elected Councilors
unanimously proposed a vote of no confidence against the
petitioner and expressed it in sending the requisition to
opposite party No.2 with the resolution signed by them, it is
not a substantial compliance, rather, a compliance in full. It is
contended by Mr. Acharya, learned Advocate General,
Odisha that a vote of no confidence since at the instance of
the elected Councillors and in the meantime, the same has
been held with a special meeting convened on the date fixed,
the result of the same should be allowed to be immediately
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declared as there is no procedural irregularity or illegality
committed in that regard. In support of such contention, the
following citations, such as, Padmini Nayak Vrs. State of
Orissa and others MANU/OR/0507/2005; Dasarath
Munda Vrs. Collector 2007 (Supp.I) OLR 242; Prahallad
Dalei Vrs. State of Odisha and others 2015 SCC Online
Ori 395 and Sulachana Sethy Vrs. Collector, Puri and
others AIR 2022 Ori 89 have been referred to further
contend that no form or pro-forma is prescribed either for the
notice for motion or requisition or the proposed resolution
under the Act and when the intention is loud and clear of the
elected Councillors and resolution is adopted by them in a
meeting held and requisition sent thereafter, the same is an
indication that all of them decided to move a no confidence
motion and in that connection, resolution was adopted. So,
the submission is that the motion held on the date fixed
should be brought to a logical end with the result of the same
being declared since the entire exercise has been
accomplished as per the Act.
9. Mr. Rath, learned Senior Advocate for opposite party
Nos.4 to 26 supported the contention of Mr. Acharya, learned
Advocate General and claimed that the motion is in
accordance with law and fully supported by a resolution sent
along with requisition received by opposite party No.2. In
support of the contention advanced, Mr. Rath, learned Senor
Advocate relies on the following decisions, such as,
Sulochana Behera Vrs. State of Odisha and others 2018
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AIR (Ori) 17; Padmini Nayak Vrs. State of Orissa and
others 2005 Supp OLR 917; Sarat Padhi Vrs. State of
Orissa and others 1987 SCC Online Ori 95; Jagadish
Pradhan and others Vrs. Kapileswar Pradhan and others
1985 SCC Online Ori 287; K.D. Sharma Vrs. Steel
Authority of India Limited and others (2008) 12 SCC 481
and Dr. Annada Prasad Pattnaik Vrs. State of Orissa and
others 1988 SCC Online Ori 44. It is further submitted by
Mr. Rath, learned Senior Advocate that the facts and
circumstances under which the action was interfered with in
Smt. Kamala Tiria are distinguishable and it was for the
reason that therein the requisition for the meeting was not
signed by the requisites number of members but was by one
among them in a representative capacity and that apart, the
resolution proposed to be moved at the meeting was not
enclosed to the same and that some of the members shown to
be the signatories to the requisition denied being ever present
in the meeting and some nominated members participated
despite having no right to vote, hence, it was concluded that
the resolution to be invalid.
10. In Babu Verghese (supra), the Apex Court while dealing
with a matter under the Advocate Act, 1960 and action
initiated under Rule 6 of the Bar Council of India Rules had
the occasion to reiterate the basis principle of law to be
followed, while complying a statute and held as under:
“31. It is the basic principle of law long settled
that if the manner of doing a particular act is
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prescribed under any statute, the act must be
done in that manner or not at all. The origin of
this rule is traceable to the decision in Taylor
v. Taylor which was followed by Lord Roche
in Nazir Ahmad v. King Emperor who stated
as under:
“Where a power is given to do a certain thing
in a certain way, the thing must be done in that
way or not at all.”
32. This rule has since been approved by this
Court in Rao Shiv Bal1adur Singh v. State of
V. P. and again in Deep Chand v. State of
Rajasthan. These cases were considered by a
three-Judge Bench of this Court in State of U.
P. v. Singhara Singh and the rule laid down in
Nazir Ahmad case was again upheld. This rule
has since been applied to the exercise of
jurisdiction by courts and has also been
recognised as a salutary principle of
administrative law.”
11. It is settled law that a particular act to be done in a way
as prescribed under law and not otherwise. The intended
purpose of such statutory procedure is a safeguard being
aware of the consequences to follow which ultimately could
affect the exercise of powers and the action as a result, hence,
the principle of law discussed herein before laid down in
Taylor (supra) has been approved time and again by the
Apex Court in catena of decisions, is considered to be
applicable and adhered to, while exercising jurisdiction by
Page 9 of 19
the courts, which is also recognized while dealing with cases
under administrative law.
12. In the instant case, Section 54(2) of the Act is relevant
and hence, for better appreciation, the same is reproduced
herein below:
“Section 54(2) in Orissa Municipal Act, 1950–
(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.”
As per the above provision, at least three clear days is to
be allowed before the meeting is held and such an exercise is
to be undertaken by the District Magistrate fixing the date
and place within ten days of receipt of the requisition for the
no confidence motion.
Page 10 of 19
13. Mr. Samal, learned counsel for petitioner harps on sub-
section 2(c) of Section 54 of the Act to claim that the
impugned notice has not been received along with a copy of
the proposed resolution. The challenge is to the motion on the
ground that requisition must accompany a copy of the
proposed resolution, while a notice for the vote of no
confidence is issued by the District Magistrate but the same
has not been complied with in the present case. In Smt.
Kamala Tiria (supra), this Court found that the requisition
was not signed by the members and sent to the authority
concerned by the President of the meeting signed by him in a
representative capacity and even the proposed resolution
moved at the meeting was not enclosed to the requisition. In
fact, it was noticed that a consolidated document comprising
the requisition requesting the RDC to convene a special
meeting and the resolution was sent and on a perusal of the
requisition and resolution, it was held by this Court that the
minutes of discussion of the meeting did not contain the
proposed resolution and that being the factual position, it was
concluded that there is no compliance of Section 39(2)(a) of
the Orissa Zilla Parisad Act, 1991. In the present case, there
is no denial to the fact that a requisition was received and
also resolution signed by the Councillors. Upon considering
Annexure-1, the Court finds that the resolution was signed by
all the Councillors in the special meeting held on 4th January,
2025. That apart, an extract of the resolution with the
signature of the Councillors was sent with the requisition.
Page 11 of 19
The resolution of the elected Councillors in the meeting held
on 4th January, 2025 expressing intention to go for a vote of
no confidence against the petitioner is attached to the
requisition. So, therefore, not only the extract of the
resolution but the sum and substance of such resolution
proposed by the elected Councillors at the meeting held on
4th January, 2025 was received by opposite party No.2 with a
letter of the Vice-Chairman, Brajarajnagar Municipality
dated 6th January, 2025 whereafter, notice dated 9th January,
2025 for the motion was issued.
14. The question is, whether, in the case at hand, the
proposed resolution was sent with the requisition followed by
the notice dated 9th January, 2025?
15. In Padmini Nayak (supra), this Court held in following
words, such as:
“5. In Smt. Kamala Tiria‟s case (supra) the
requisition for convening the meeting to record
want of confidence was not signed by the
requisite number of members, but was signed
by one member in a representative capacity.
The resolution proposed to be moved at the
meeting was not enclosed to the requisition.
Some of the members, who were shown as
signatories to the requisition, denied that they
were ever present in the emergency meeting
and some nominated members who had no
right of voting were also allowed to remain
present at the meeting held for recording the
no confidence motion. For all these lacunae the
Page 12 of 19
resolution passed regarding want of confidence
was declared null and void. The ratio of the
said case in no way applies to the present case
as the facts and circumstances involved in that
case is totally different form this case. In the
present case 8 out of the 12 members of the
Grama Panchayat have signed the requisition
Annexure-2 and copy of the proposed
resolution Annexure-3 was also enclosed with
Annexure-2. So, the mandate of Section
24(2)(a) of the G.P. Act was substantially
complied with.”
16. In Dasaratha Munda, this Court held and observed,
which is reproduced herein below:
“8. The 3rd contention is that the requisition
did not contain the proposed resolution. It is to
be noticed that the petitioner himself in
paragraph-6 of the writ petition has mentioned
that the meeting has been convened on the
basis of the old resolution meaning thereby –
he concedes that the documents sent along
with the requisition was a resolution. Besides
this, the words at the top of the enclosure to
the letter of Annexure-3 “Swatantra Baithakare
Alochana Hebaku Thiba Prastab ” have been
mentioned, which means, the proposed
discussion to be made in the special meeting
with regard to the proposed no confidence
motion. In that last four lines of the said
enclosure the contents of the resolution have
also been mentioned in clear terms. According
to Chambers English Dictionary, we make it
clear that ”resolution” means, “a formal
proposal put before a meeting, or its formal
Page 13 of 19
determination thereon”. Therefore, this
contention is also not sustainable in the eye of
law.”
17. Once again, this Court, while dealing with such a matter
in Prahallad Dalei (supra) held as herein under:
“17. Learned counsel for the petitioner leans
heavily in the case of Kamala Tiria (supra).
This Court, in the case of Padmini Nayak
(supra) in paragraph-5 has distinguished the
case of Kamala Tiria (supra) as follows:
XXX.
18. In the case of Muktamanjari Sahu (supra)
this Court quashed the notice issued by the
Sub-Collector on the ground that the resolution
passed for initiating No Confidence Motion is
not the resolution as contemplated under
Section 24(2)(a) of the Act, as per the decision
rendered in the case of Smt. Kamala Tiria
(supra),
19. From the discussions supra, it is clear that-
(i) no form or proforma has been prescribed
either for the Notice to be issued by the Sub-
Collector calling upon the members including
the Sarpanch or Naib-Sarpanch to attend the
meeting of No Confidence, or for the
requisition to be sent by 1/3rd members of the
Grama Panchayat or for the proposed
resolution to be moved;
(ii) If the intention of the requisite number of
members is clear from the resolution adopted
Page 14 of 19
in the meeting held to prepare the requisition
and the proposed resolution, then the said
intention is to be accepted as indicatives of the
fact that requisite number of members want to
move a No Confidence Motion and that
resolution adopted in such meeting is to be
abstractly accepted as the proposed resolution.
(iii) The so-called proposed resolution to be
moved need not be on a separate sheet or
document.”
18. On a reading of the decisions referred to herein before, it
is made to suggest that a resolution is needed to be passed in
the meeting and a copy of the same is to be sent to the
authority concerned along with the requisition, whereupon,
notice as per Section 54(2) (c) of the Act is required to be
issued by the District Magistrate and what is important is that
the proposed resolution passed in the special meeting with
regard to the no confidence motion, with the requisite
intention, must be made explicitly. The decision in Smt.
Kamala Tiria has been noted in the case of Padmini Nayak
and it was sought to be distinguished. In fact, in Smt.
Kamala Tiria deficiency was noticed as the requisition was
not signed by the requisite quorum but was received in a
representative capacity with such other irregularities
including the resolution proposed to be moved was not
enclosed to the requisition. The Court in Dasaratha Munda
(supra) concluded that a resolution means a final decision
taken at a meeting and if the same is clearly evident to hold a
special meeting to the no confidence motion, the same is
Page 15 of 19
sufficient compliance of the provisions of the Odisha Grama
Panchayats Act, 1964. In fact, in Prahallad Dalei (supra), it
has been held that there is no specific form prescribed for a
proposed resolution and any such decision for the no
confidence motion and a resolution, if received with a
requisition sent by the required quorum, the resolution
adopted in such meeting is to be abstractly accepted as the
proposed resolution.
19. In Sulochana Sethy Vrs. Collector, Puri and others
AIR 2022 Ori 89, it is held that a separate resolution in a
separate sheet is not mandatory requirement of law. In the
said case, requisition was signed by 1/3rd members of the
NAC and the resolution revealed the proposed action for the
motion and considering the same, it was held by this Court
that there is no illegality in the issuance of requisition.
20. In Sarat Padhi (supra), this Court held and observed:
“18. XXX-
The scheme of the notice contemplated
under Section 24(2)(c) may be divided into
three parts — (i) requirement of giving the
notice, (ii) fixing the margin of time between
the date of the notice and the date of the
meeting, and (iii) service of notice on the
members, I am of the view, which is also
conceded by the learned Advocate General,
that the first two parts, namely, the duty to
issue the notice and the margin of clear 15
days between the date of the notice and the
date of the meeting, are mandatory. In otherPage 16 of 19
words, if there is any breach of these two
conditions, then the meeting will be invalid
without any question of prejudice. But the
third condition, i.e., the mode of service or the
failure by any member to receive the notice at
all or allowing him less than 15 clear days
before the date of the meeting, will not render
the meeting invalid. This requirement is only
directory. This is also based on a sound public
policy as in that event any delinquent Sarpanch
or Naib-Sarpanch can frustrate the
consideration of the resolution of non-
confidence against him by tactfully dealing or
avoiding the service of the notice on him and
thus frustrate the holding of the meeting. The
legislation has also accordingly taken care to
provide in unequivocal terms a provision to
obviate such contingencies by incorporating
Clause (e) to Sub-section (2) of Section 24.
19. Once I come to the above conclusion, I
must record my disapproval to the observation
of a general nature made in Debaraj Mallik’s
case (1978) 45 Cut LT 313 to the effect that
the whole of the provision under Section
24(2)(c) is directory in nature, as that is too
wide.
Since I have held that service of notice on a
member of a Grama Panchayat without giving
him 15 days clear time is not mandatory but is
only directory in nature, and this being the
only ground urged on behalf of the petitioner
in challenge of the impugned order, this
application has got no merit.
20. Before parting with the case, I may also
emphasize on another aspect of the matter,
namely, that the petitioner, having participated
in the meeting in question without any protest
or objection is estopped from challenging the
Page 17 of 19
validity of the meeting on the ground that the
gap between the date of service of notice and
the date of the meeting was less than 15 days.”
21. In Jagadish Pradhan (supra), it reiterated that merely
because the proposal is not a separate document, the action
based on the same does not become illegal and it was so
concluded, while dealing with a case of no confidence
motion initiated under the Odisha Panchayat Samiti Act,
1959. In Dr. Ananda Prasad Pattnaik (supra), the
requisition and resolution since sent along with the notice
under challenge, the action was held to be in consonance with
law.
22. The Court is in agreement with the contention that a
resolution was passed with an unanimous decision to move
the no confidence motion against the petitioner and it was
received with a requisition and the substance of such
resolution is with the clear intention expressed by the elected
Councillors to go for the special meeting and the same
having been received by opposite party No.2, it has to held
that it is in compliance of Section 54(2) (c) of the Act. The
decision in Smt. Kamala Tiria (supra) is distinguishable for
the reason that therein the proposed resolution and requisition
had not been sent by all the members of the GP and with
other deficiencies being noticed, hence, the action was held
to be invalid. However, having regard to the materials on
record and as the resolution is attached to the requisition
along with an extract of the same indicating therein that the
Page 18 of 19
decision held on 4th January, 2025 is for the no confidence
motion, the irresistible conclusion of the Court is that such
resolution is to be treated as the proposed resolution and
there is no legality committed by opposite party No.2, while
issuing the notice under Annexure-1. The substance of the
resolution clearly reveals the dissatisfaction in the
functioning of the petitioner as the Chairperson of the
Municipality and all the elected Councillors being aggrieved
decided to go for the no confidence motion against her,
hence, was the requisition and followed by notice dated 9th
January, 2025, therefore, there is due compliance of Section
54(2)(c) of the Act. Considering the submissions of Mr.
Samal, learned counsel for the petitioner, Mr. Acharya,
learned Advocate General, Odisha and Mr. Rath, learned
Senior Advocate for opposite party Nos.4 to 26, the Court is
in no hesitation to hold that no case is made out for
interference since the impugned notice has been issued upon
receiving the requisition and proposed resolution, thus, it is
according to law.
23. Hence, it is ordered.
24.In the result, the writ petition stands dismissed.
25. In the circumstances, there is no order as to the costs.
Signature Not Verified (R.K. Pattanaik)
Digitally Signed
Signed by: THAKURDAS TUDU Judge Reason: Authentication Location: OHC,CTC TUDU Date: 04-Mar-2025 13:55:22 Page 19 of 19
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