ASHIRBAD BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner is a sitting Councillor of the Cuttack Municipality. Challenge in this application under Article 226 of the Constitution is to Government order dated 23rd of June, 1979 (Annexure-4), purported to have been made in exercise of powers under Section 398 (1) of the Orissa Municipal Act of 1950, cancelling a resolution of the Municipal Council of Cuttack dated 2nd of April, 1979,

(2.) Election was held on 31st of January, 1979, for the 28 seats of Councillors and the Chairman of the Council. Petitioner was elected from Ward No. 2 while 27 others were elected from the different wards. Opposite Party No. 3 was elected as Chairman of the Municipality by direct franchise under the amended provisions of the Act. The Council assumed office with effect from 23rd of February, 1979. At the Meeting of the Council held on 2nd of April, 1979, one of the items in the Agenda was to authorise the Chairman to sanction expenditure up to Rs. 50,000/- at a time for the smooth working of the various works of the Municipality. There was an official note circulated for justifying such action. From the minutes of the meeting, it appears that all the 28 Councillors were present. When consideration of item No. 4 of the agenda came, dispute arose as to the manner of voting and a protest was raised that voting by show of hands should be adopted. The Chairman ruled that voting should be by ballot. Thereafter votes were taken by ballot; all the 28 Councillors participated and the result was 14 in favour of the proposal and 14 against. The Chairman exercised his casting vote in favour of the proposal and declared that by a majority of votes, the proposal was carried. The State Government in the Urban Development Department issued a notice on 21st of May, 1979 (Annexure-1) to the Chairman of the Council to show cause within fifteen days from the date of receipt of the notice as to why the resolution in question should not be cancelled. The Executive Officer of the Municipality and the Chairman differently showed cause vide Annexures 2 and 3 respectively. While the Executive Officer pointed out that the Act and its Rules had been strictly followed and there was no lapse justifying cancellation by the State Government, the Chairman indicated that for the meeting of 31st March, 1979, the question of delegation of financial power to the Chairman was an official item on the agenda. The meeting was adjourned to 2nd April, 1979, and the matter was put to secret vote. After the voting result was 14 in favour and 14 against, the Chairman who was President of the meeting gave his casting vote in favour of the official item. It was, therefore, pointed out that the official item had been passed in conformity with Section 69 (1) of the Municipal Act. Thereafter the impugend order was made which for convenience, we extract in its entirety:

(3.) When this application was placed for preliminary hearing, learned Advocate- General entered appearance for the State and wanted that he should be heard in case we were inclined to grant stay of operation of the order as prayed for by the petitioner. We were not inclined to grant any interim order and on the other hand considering both the urgency as also the importance of the matter and as suggested by Counsel for all parties, we agreed that the application itself may be taken up for hearing on immediate notice to the other opposite parties. On the 6th of July, 1979, an application was made on behalf of 15 Councillors for leave to intervene. That was allowed as there was no opposition. The interveners filed a counter affidavit disclosing their stand. The State has also filed its counter. The Municipal Council entered appearance through Chairman and the Chairman himself as opposite party No. 3 separately appeared through a different counsel. The matter was taken up for hearing on 7th July, 1979, when the interveners pointed out by filing an application that the Municipal Council had not been duly represented, inasmuch as it had been impleaded through the Chairman and the Chairman besides appearing for himself had also entered appearance for the Council. Learned Advocate General supported this stand of the interveners while the petitioner and opposite party No. 3 as also the Counsel appearing for the opposite party No. 2 Council took the stand that there was no bar for the Chairman to represent the Council and the Council having already been served with notice from Court had duly entered appearance through its retained counsel and no objection could be taken to it. We shall deal with this objection in due course.