TMI Blog2006 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... journed 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 Department. 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 directed 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 7 is in violation of Section 43(1) of the Municipal Act and the Sub-Collector was appointed to make an inquiry. 6. For holding the said inquiry the Sub-Collector issued notices to both the councillors with an intimation that both of them may be present on 21.1.2006 in his Office for inquiry. At this stage, the direction for holding bye-election was withdrawn and revision of the electoral roll was stopped with immediate effect. In the counter affidavit filed by opposite party No. 5 on behalf of the State Election Commission, it was stated that the two councillors represented to the District Magistrate that they had not tendered their resignation to the Chairperson, rather in order to tackle the vote of No-Confidence Motion which was scheduled to be moved against the Chairperson on 26.12.2005, the Chairperson by interpolating the resolution as well as by forging their signatures got the resolution passed on 21.12.2005 allegedly accepting their resignation. It was also stated that after inquiry a comprehensive report was submitted by the Sub-Collector with the finding that the resignation by those two councillors was not tendered nor was it accepted in accordance with the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act ) provides how a councillor can resign. Section 43(1) makes it very clear that a councillor may resign from his office by writing under his hand. Here it is nobody's case that opposite party Nos. 6 and 7 have tendered their resignation letters by writing under their own hands. This is very clear from the counter affidavit filed by opposite party Nos. 6 and 7. Therefore, as 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 resignation of opposite party Nos. 6 and 7. Apart from that, In the instant case, admittedly there were no items of agenda in the meeting dated 16.12.2005 about alleged acceptance of the resignation letters of opposite party Nos. 6 and 7. in the absence of any agendum the alleged resignation letters of opposite party Nos. 6 and 7 cannot be accepted. The claim of the writ petitioner is that the alleged resignation letters of opposite party Nos. 6 and 7 were accepted in the adjourned meeting dated 21.12.2005. It is nobody's case that in the adjourned meeting any new agendum was incorporated. In fact it cannot be done also. Therefore, the alleged acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kamakhyanagar issued notice to all fifteen councillors by notice dated 14.10.2005 and fixed the meeting on 20.10.2005. The said meeting was allegedly presided over by Sub-Collector, Kamakhyanagar but none of the councillors turned up in the meeting and as such the proposed resolution stood annulled under Section 54(2)(g). Thereafter on 5. 12.2005 another requisition signed by ten councillors proposing No-Confidence Motion against the petitioner was again sent to the Collector, Dhenkanal. This time on 19.12.2005 the Sub-Collector issued notice intimating the proposed meeting fixed to 26.12.2005. Holding of such meeting was challenged by the petitioner by filing a writ petition being W.P.(C) No. 15823 of 2005. However, on 22.12.2005 the Hon'ble Court in W.P.(C) No. 15823 of 2005 issued notice to the opposite parties and as an interim measure the meeting which was scheduled to be held on 26.12.2005 was stayed. Thereafter during the pendency of Writ Petition No. 15823 of 2005 the Collector, Dhenkanal issued a further notice for recording want of confidence of the petitioner on the requisition notice dated 3.2.2006 of some of the councillors of Bhuban NAC including those two counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court while dealing with the provision of Sections 54(2)(f) and 54(2)(g) held that after reading those two provisions together it appears that the 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 paragraph-5 of the judgment, the learned Judges have explained the position. 14. In fact the provision of Section 54 of the said Act was different when it was considered in Pradeep Kumar Sahu (supra) than what it is today. The decision in Pradeep Kumar Sahu's case was rendered on 19.9.2000 but the Proviso to Section 54(1 )(ii) has been incorporated by the Orissa Act 6 of 2002. Therefore ratio in the decision in the case of Pradeep Kumar Sahu (supra) does not apply to the present case when the statutory context has changed. 15. Reliance was placed on a decision in the case of Shyam Kumar Meher v. Collector, Bargarh and Ors. reported in 1995 (II) OLR 34 in which the provision of Section 24(3) of the Orissa Grama Panchayat Act, 1964 was construed. In the said decision it was held that if the number of members present at the meeting is less than two-third of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of Section 54(1)(ii), the Court must keep in its mind that the Court is called upon to construe a condition of disability or in other words, a condition imposing restriction. Whenever restriction is imposed on a person's right to call a meeting to ascertain whether the Chairperson is enjoying the confidence of the majority members, such restriction on the person's right in a democratic set up must be strictly construed. It is well known that all democratic institutions have to function on the confidence on the head of the institution by its members. At the same time, the purpose behind Section 54(1)(ii) must not to lost sight of. The purpose is that No-Confidence Motion against a Chairperson or Vice-Chairperson cannot be moved on the drop of that and if such a resolution is moved, it cannot be moved again unless one calendar year which is 365 days are allowed to pass. 20. In the background of these conditions, the purpose of the stipulations in Section 54(1)(ii) is that if a meeting has been called to record want of no confidence motion against the Chairperson or Vice-Chairperson and the resolution has been moved and obviously failed, no such further resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. In that context the expression move has been defined in different Dictionaries and reference may be made to some of them. In Corpus Juris Secundum Volume-LXI at page 943, the word move has been defined as a generic word, meaning to set in motion; to take action or to incite to an action. The expression move has been held as synonymous with affect . Therefore, in the context of Section 54(1)(ii) the expression moving a resolution means initiation of a debate or discussion about the resolution. 22. In the similar way, the word move has been explained in The Law Lexicon of 2nd Edition (Reprint 2002) at page 1261. The word move has been defined to mean, to change position or posture or otherwise exhibit outward activity . 23. In Words and Phrases Permanent Edition Volume 27A at page-417 the word move has been explained to mean, to change the place or position of in any manner. 24. Similarly, in Judicial Dictionary by the Orient Publishing Company, Second Edition, the word move has been defined to mean, to propose a resolution or recommend action in a deliberate body . In Judicial Dictionary by K.J. Aiyar 13th Edition, Butterworths, the word mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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