NAMITA MISHRA Vs. STATE OF ODISHA & OTHERS

JUDGEMENT

(1.) This writ petition has been filed challenging the notice dated 17.3.2017 issued by the Director Municipal Administration and Ex-Officio Addl. Secretary to Government as appearing at Annexure-2 to the writ petition.

(2.) Short background involved in the case is that the petitioner was elected as the Councilor of the word No. 7 in the Municipal Election of the Koraput Municipality held in the year 2013 and she is continuing as such till today. It is submitted that in spite of her performance to the best satisfaction of the people, one Nalla Govinda Rao with an intention to see removal of the petitioner from the post of Councilor started making representation since 2013 under the premises that the petitioner becomes disqualified to be continuing as a Councilor for her husband's executing a work of construction of a community centre at Hatapada in the Koraput District with the investment of M.L.A Lad Funds for the year 2014-17 and for her being disqualified under Section 17(d) of the Orissa Municipal Act 1950, the said Nalla Govinda Rao also made a request for removal of the petitioner from the post of Councilor. On the allegation that the Koraput Municipality is not taking any action on his representation, the said Nalla Govinda Rao approached this Court by filing W.P.(C) No. 27 of 2017, this Court in disposal of the above writ petition on 5.01.2017 directed the Commissioner-cum-Secretary, Government of Odisha, Housing & Urban Development Department-opposite party No. 1 to take a decision on the pending representation within three weeks from the date of communication of the said order. It is pleaded that following the direction of the Court for timely disposal of the representation the opposite party No. 2 called for a report from the opposite party No. 3 involving the grievance of the petitioner. In the meantime, the opposite party No. 3 also submitted a report before the opposite party No. 2 as at Annexure-1. It is alleged that in spite of clearing the allegation against the petitioner, the opposite party No. 2 claimed to be in exercise of power under Section 38-A of the Municipal Act vide Annexure-2 issued a notice to show cause to the petitioner as to why action shall not be taken against her for her being found to be disqualified to continue as a Councilor on attracting the provision of clause (d) of Section 17 of the Orissa Municipal Act, 1950. Filing the writ petition the petitioner challenges the order vide Annexure-2 therein.

(3.) Referring to the impugned notice, Ms. Deepali Mohapatra, learned counsel for the petitioner submitted that the impugned notice vide Annexure-2 clearly reveals that the Director Municipal Administration and Ex-Officio Addl. Secretary to Government have already come to a conclusion that the petitioner has already held to be disqualified and the show cause and the subsequent decision are only mere formalities. Referring to the provisions contained in the Odisha Municipal Act, learned counsel for the petitioner further submitted that for the materials available on record, there remains no doubt that the work entrusted to the husband of the petitioner is not a work involving the Municipal Fund. It is thus pleaded that unless the money from the Municipal Fund is utilized, a Councilor cannot be charged under Section 17(d) of the Odisha Municipal Act. Further, for the gravity in the impugned notice involving removal of the petitioner, learned counsel for the petitioner also contended that before coming to a conclusion that the petitioner is disqualified, the petitioner ought to have been given a chance of satisfying her case. Further for the clear report by the Municipality itself disclosing that the contract involved here is not a work belonging to Municipality and not having involvement of Municipal Fund, the same did not attract the provision of Section 17(d) of the Municipal Act. Consequently, there is also no question of application of Section 38 of the Odisha Municipal Act. Referring to a decision as reported in (2010) 2 SCC 319, learned counsel for the petitioner contended that the decision has a clear application to the petitioner's case and therefore, prayed that the impugned notice should be interfered with and set aside.