Judgment:
HIGH COURT OF ORISSA: CUTTACK RVWPET NO.197 of 2012 Against order dated 11.05.2012 passed by this Court in W.P.(C) No.8242 of 2012. ---------Smt. Reena Trivedi … Petitioner -Vs.State of Orissa and others … For Petitioner : For Opp. Parties : Opp. Parties Mr. A.K. Parija, Senior Advocate Mr. Sidhartha Swain, Mr. R.K. Mohapatra, Government Advocate & Mr. P.K. Muduli, Addl. Standing Counsel) [For State-Opp. Party No.1]. Mr. Jayant Das, Sr. Advocate [For Interveners]. -----------W.P.(C) No.9946 of 2012 In the matter of an application under Articles 226 & 227 of the Constitution of India. -----------Smt. Reena Trivedi … Petitioner -Vs.State of Orissa and others … Opp. parties For Petitioner : For Opp. Parties : Mr. A. K. Parija, Sr. Advocate M/s. S.P. Sarangi, P.P. Mohanty, D.K. Das, P.K. Dash & A. Pattnaik Mr. R.K. Mohapatra, Government Advocate & 2 Mr. P.K. Muduli, Addl. Standing Counsel [For State-Opp. Party No.1]. Mr. B.P. Das (for OP -5) Mr. Jayant Das, Sr. Advocate M/s. K.P. Mishra & Gitanjali Majhi [For O.P. 6 to 24]. ----------P R E S E N T: THE HON’BLE THE CHIEF JUSTICE V. GOPALA GOWDA AND THE HON’BLE MR. JUSTICE B. N. MAHAPATRA ----------------------------------------------------------------------------------------Date of Judgment:
12. 12.2012 ----------------------------------------------------------------------------------------B.N. MAHAPATRA, J.This Review Petition No.197 of 2012 has been filed with a prayer to review the order dated 11.5.2012 passed in W.P.(c) No.8242 of 2012. The writ petition bearing W.P.(C) No.8242 of 2012 was filed challenging the order passed by the District Magistrate and Collector, Sambalpur by which the Collector directed to convene a special meeting on 2.5.2012 to move no-confidence motion against the Chairperson of Sambalpur Municipality. This Court vide impugned order dated 11.5.2012 has dismissed the writ petition. Hence, the present review petition.
2. W.P.(C) No.9946 of 2012 has been filed for quashing resolution dated 07.05.2012 passed by the Councilors of Sambalpur Municipality, report dated 14.5.2012 of the A.D.M., Sambalpur and Notification dated 29.5.2012 of the Director, Municipal Administration & Ex-Officio Joint Secretary to Government notifying that Reena Trivedi holding the office of Chairperson of 3 Sambalpur Municipality shall be deemed to have vacated such office with effect from the date of passing of resolution i.e. 7th May, 2012.
3. Since the subject matter of the Review Petition No.197 of 2012 and W.P.(C) No.9946 of 2012 relates to passing of the no-confidence motion against the petitioner both the matters are heard analogously and disposed of by this common judgment.
4. Mr. A.K. Parija, learned Senior Advocate appearing on behalf of the petitioner submitted that the order of the Collector to convene a special meeting on 07.05.2012 to move a no-confidence motion against the Chairperson of the Sambalpur Municipality was passed on the basis of a requisition received from 20 Councilors out of 29 Councilors. While dismissing the writ petition some wrong and incorrect facts have inadvertently crept into the impugned order dated 11.5.2012 for which it has been necessary to review the said order. According to Mr. Parija, learned Senior Advocate, the total number of councilors of Sambalpur Municipality is 29 and out of 29 Councilors, one Councilor, namely, Ladara Munda expired on 15.02.2012. It was submitted that notwithstanding death of one of the Councilors, the total strength of the councilors constituting the municipal council continues to remain 29. Requisition to move no-confidence motion was signed by 20 councilors, but at the meeting on 7.5.2012 which was presided over by the Additional District Magistrate, Sambalpur in which the said no-confidence motion was moved, 19 councilors voted in favour of the motion. In support of his contention Mr. 4 Parija relied upon the resolution of Sambalpur Municipality dated 07.05.2012 passed under Annexure-1 to the Review petition (Annexure-5A to W.P.(C) No.9946 of 2012). Mr. Parija submitted that the finding has been recorded in the order dated 11.5.2012 that 20 councilors voted against the petitioner, which is contrary to the resolution dated 7.5.2012 (Annexure-1). On this erroneous premises, further finding has been recorded that 20 councilors who voted against the Chairperson constitute 2/3rd majority is also an error of record. 19 councilors, who voted in favour of no-confidence motion do not constitute 2/3rd majority as envisaged under Section 54(1) of the Orissa Municipal Act.
5. Mr. A.K. Parija relying on the judgment of this Court in the case of Jagannath Misra V. State of Orissa and others, reported in 40(1974) CLT 5.submitted that in the Municipal Act words like “whole”., “entire”. and “total”. with reference to the councilors have been used and all these expressions are synonymous and they really refer to the total sanctioned strength of the Councillors and not of the existing Councillors at any given point of time. In support of his above contention, Mr. Parija also relied upon the decisions of the Karnataka High Shivashankarappa and others The V. Court in Davangere the City case of S. Municipality, Davangere and others, reported in AIR 197.Karnataka 140; Allahabad High Court in the case of Mangala Prasad Jaiswal V. District Magistrate and others, reported in AIR 197.All 77 and Patna High Court in the case of 5 Sukhdeo Narayan and others V. Municipal Commissioners of Arrah, Municipality and others, reported in AIR 195.Patna 367.
6. In support of the contention that fraction shall be treated as one, Mr. Parija relied upon the judgment of Andhra Pradesh High Court in the case of Gogineni Koteswara Rao V. Government of Andhra Pradesh, Panchayat Raj, Hyderabad and others, reported in AIR 199.AP 34.and the judgment of Rajasthan High Court in the case of Chimna Ram V. State of Rajasthan and others, reported in AIR 199.Raj 93 and the judgment of the Hon’ble Supreme Court in the case of State of Uttar Pradesh and another V. Pawan Kumar Tiwari and others, dated 4.1.2005 in Appeal (civil) 4079 of 2004. Concluding his argument, Mr. Parija prayed to allow the review petition by reviewing the order dated 11.05.2012 passed in W.P.(C) No.8242 of 2012 as well as W.P.(C) No.9946 of 2012.
7. The councilors have filed objection petition inter alia raising the issue of maintainability of the review petition. Mr. J.Das, learned Senior Advocate appearing for opposite party-intervenot submitted that the review petition is not maintainable for non-joinder of necessary and proper party. Placing reliance on the judgments of the Hon’ble Supreme Court in the cases of M/s Northern India Caterers ( India) Ltd. V. Lt. Governot of Delhi , (1980) 2 SCC 167.it is submitted that review can be granted only in case of glaring omission, patent mistake or like grave error and not for re-hearing of case. In Commissioner of Sales Tax, J & K and others v. Pine Chemicals Ltd. and others (1995) 1 SCC 58.the Hon’ble Supreme Court held that 6 interpretation of statute law at variance with the clear and simple language thereof, is an error apparent on the face of the record and review lies. Placing reliance on the judgment of the Hon’ble Supreme Court in the case of Dr. Mohd. Yasin vs. University of Kashmir, Srinagar and others (1995) 1 SCC 150.Mr. Das submitted that the petitioner in the review petition cannot be allowed to take a position inconsistent with the earlier stand. The Hon’ble Supreme Court in the case of Kondopant vs. Arjuna and others, 1995 Supp (4) SCC 10.held that where review petition is filed without disputing the fact but raising some additional grounds, the same cannot be a ground to review the earlier order. In Lily Thomas and others vs. Union of India and others, (2006) 6 SCC 224.the Hon’ble Supreme Court held that errors requiring review are those which are patent and apparent from the face of the record and are errors of inadvertence and not those that need to be fished out. Mr. Dash further submitted that in the writ petition since the petitioner never raised the issue of interpretation of the word “total”., it would not be available for the petitioner to raise the same in present review petition. The error pointed out by the review petitioner does not materially and/or substantially affect or make a difference in the judgment. Therefore, the typographical error pointed out by the review petitioner cannot be a ground for review. Alternatively, Mr. Das, learned Senior Advocate submitted that the expression “total”. has been given the correct and purposeful meaning”
8. As the impugned judgment has not been filed along with the review petition, the Hon’ble Court ought not to have proceeded with the matter. The review petition has been filed on 29.6.2012 to review the order dated 11.5.2012 passed in W.P.(C) No.8242 of 2012. No application for condonation of delay has been filed. In such view of the matter, the application as filed would necessarily be treated as fatally hit by law of Limitation and liable to be dismissed in limine on this ground alone. Perusal of the review petition clearly demonstrates that there is no error apparent on the face of the record which necessitates to review the aforesaid order. It was submitted that the review application is an abuse of process of Court and liable to be dismissed. It is further submitted that writ petition is clearly hit by principle of constructive res judicata. Therefore, it is not maintainable in the eye of law. In support of his contention Mr. Das, learned Senior Advocate relied upon the judgment of the Hon’ble Supreme Court in the case of Forward Construction Co. & others vs. Prabhat Mandal (Regd.), Andheri and others, (1986) 1 SCC 100.
9. Mr. R.K. Mohapatra, learned Government Advocate submitted that there is no infirmity or illegality in the order dated 11.5.2012 passed by this Court in W.P.(C) No.8242 of 2012, which requires review of the said order. Placing reliance on the judgment of the Supreme Court in the case of Jivendra Nath Kaul V. Collector/District Magistrate and another, reported in (1992) 3 SCC 57.and the Full Bench decision of the Bombay High Court in the case of Ashok Maniklal Harkut v. Collector of Amaravati and another, 8 AIR 198.Bombay 207 and provisions of Section 54(2)(c) of the Act, 1950, Mr. Mohapatra submitted that two-third majority shall be computed taking into consideration the existing position i.e. actual membership in existence on the date of Motion of No Confidence.
10. On the rival contentions, the following questions fall for consideration by this Court: (i) (ii) What is the meaning of expression “the total number of Councilors”. appearing in Section 54 (1) of Orissa Municipal Act; whether it means the sanctioned strength of Councilors or it means number of Councilors entitled to sit and vote?. (iii) Whether 19 councilors voted against the Chairperson constitute two-third majority as envisaged U/s.54(1) of the Orissa Municipal Act?. (iv) Whether fraction of the vote while working out two-third of the majority as envisages in Section 54(1) of the Orissa Municipal Act should be ignored?. (v) 11. Whether the review petition is maintainable?. Whether the writ petition bearing W.P.(C) No.9946 of 2012 is maintainable ?. Question No.(i) is with regard to the maintainability of the Review Petition. Undisputed facts are that at the meeting on 7.5.2012 which was presided over by the Additional District Magistrate, Sambalpur in which no-confidence motion in question was moved, 19 Councillors voted in favour of the motion. This fact is evident from the resolution of the Sambalpur Municipality dated 7.5.2012 which has been annexed to the review petition as Annexure-1.Against the said undisputed fact it has been recorded in the impugned order dated 11.5.2012 that 20 councilors voted 9 against the petitioner and the said number constitutes 2/3rd majority as envisaged under Section 54 of the Orissa Municipal Act. Since basing on a wrong figure this Court came to a conclusion that 2/3rd majority of councilors as envisaged under Section 54 of the Act has voted in favour of the no-confidence motion and accordingly dismissed the writ petition, it is a good ground on which the review petition is maintainable. As prima facie case for review of the impugned order passed in the writ petition No.8242 of 2012 was made out by the petitioner, the learned counsel appearing in the review petition were directed to make their submission on merits.
12. Since question Nos. (ii) and (iii) are inter-linked they are dealt with together. Now, we have to examine as to whether 19 Councilors who cast their votes in favour of the no-confidence motion constitute 2/3rd majority as envisaged under Section 54(1) of the Orissa Municipal Act. The contention of Mr. Parija, learned Senior Advocate is that notwithstanding the death of one councilor the total strength of the councilors constituting the Municipal Council continue to remain 29 and 2/3rd of 29 Councillors comes to 19.32 which is certainly more than 19 councilors. Placing reliance on the judgment of the Hon’ble Supreme Court in the case of Gogineni Koteswara Rao vs. Government of Andhra Pradesh, Panchayat Raj, Hyderabad and others (AIR 199.A.P. 348), it is submitted that when a fraction comes that should be treated as one. Therefore, in order to move no-confidence motion to remove the petitioner from the post of Chairperso”
20. councilors must vote in favour of the no-confidence motion i.e. against the petitioner which is wanting in this case. Hence, the prayer made in the Writ Petition has to be allowed.
13. Contention of Mr. Das is that since the fraction comes less than 0.50, it should be ignored. Further referring to the expression used in Section 54(1), i.e., “supported by not less than two-third of the total number of Councilors recording want of confidence”., Mr. Das submitted that since one member, namely, Ladara Mandal expired on 15.2.2012 the total number of existing members comes down to 28 and 2/3rd of the 28 comes to 18.6 as against which 19 Councillors voted in favour of the noconfidence motion, i.e., 2/3rd majority of the Councillors as envisaged under Section 54(1) of the Orissa Municipal Act have voted against the Chairperson, who is the present review petitioner. Therefore, there is no illegality or infirmity in the order of no-confidence passed by the District Magistrate and Collector, Sambalpur and consequentially there is no need to review the order of this Court dated 11.5.2012 passed in W.P.(c) No.8242 of 2012.
14. To deal with the issue, it is necessary to extract the relevant provision of Sec.54 of the Orissa Municipal Act.
“54. Vote of no confidence against Chairperson or ViceChairperson – (1) Where a meeting of the Municipality specially convened by the District Magistrate in that behalf a resolution is passed, supported by not less than two-third of the total number of Councillors recording want of confidence in the Chairperson or Vice-Chairperson the resolution along with the records of the proceedings at such meetings shall forthwith be forwarded to the State Government shall publish the same in the Gazette and with effect from the date of 11 passing of the resolution the person holding the office of Chairperson or Vice-Chairperson, as the case may be, shall be deemed to have vacated such office. In the event of both Chairperson and Vice-Chairperson vacating office the District Magistrate or his nominee shall discharge the responsibilities of the Chairperson till a new Chairperson is elected. Provided that no such resolution recording want of confidence in the Chairperson or the Vice-Chairperson(i) shall be passed within two years from the date of his election or nomination, as the case may be; and (ii) shall be moved more than once during a calendar year. (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: xx xx xx (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 the proposed resolution, at least three clear days before the date so fixed.”
15. Neither in Section 54 not in any of the provisions of the Act, 1950, it is provided how two-third of the total number of councilors recording want of confidence in the Chairperson or Vice-Chairperson”. appearing in Section 54(1) shall be worked out; whether with reference to the total sanction strength of the councilors of the Municipality or with reference to the existing councilors of the Municipality on the date of motion of no confidence. A conjoint reading of Sub-section (1) and Subsection 2(c) of Section 54 of the Act, 1950 conveys that two-third of the total number of councilors shall be worked out with reference to existing councilors. Section 54(2)(c) requires that the District Magistrate shall within ten days of receipt of the requisition fix the date, hour and place of such meeting and give notice of the same to all Councillors holding office on the date of such notice along with copy of the proposed resolution. The 12 expression “all the Councillors holding the office on the date of such notice”. only means that the meeting to move no confidence motion shall be held among the Councillors holding office on the date of such notice. Therefore, the irresistible conclusion is that two-third majority as required under Section 54(1) is of the existing Councillors holding the office at the relevant time and not the total strength of the Councillors.
16. At this juncture, it would be profitable to refer to some of the judicial pronouncements of Hon’ble Supreme Court and High Courts. The Hon’ble Supreme Court in the case of Jivendra Nath Kaul (supra) held that the only meaning which can be given to the expression “half of the total members of the Board is the actual membership in existence on the date of Motion of No Confidence. A Full Bench of Bombay High Court in the case of Ashok Maniklal Harkut (supra), held that the phrase ‘total number of councillors’ as used in Section 55(3) of the Act can only mean total number of councilors who are entitled to sit and vote at the relevant time. It may be relevant to extract here Section 55(1) of the Maharashtra Municipal Act, 1965 which reads as follows: “ 55.(1) A president shall cease to be President, if the Council by a resolution passed by a majority of not less than twothirds of the total number of Councillors (excluding the co-opted Councillors) at a special meeting so decides.”
17. This issue can be looked at from a different angle. If the total strength of the Councilors will be taken for the purpose of working out twothird majority, then in many circumstances that will lead to manifest 13 absurdity. To illustrate in the instant case, if for any reason, the existing number of councilors comes down to 19, even if 18 Councilors support the No Confidence Motion against a Chairperson, the Chairperson cannot be removed as the two-third of 29 Councillors will always be 20. This is certainly not the intention of the Legislature. Therefore, the two-third majority as envisaged under Section 54 (1) of the Orissa Municipal Act is always the two-third of the total existing Councilors and not the total sanctioned strength of Councilors.
18. In view of the above, we are of the considered opinion that the meaning of the expression “the total number of Councillors”. appearing in Section 54 of the Orissa Municipal Act shall mean that the resolution is to be supported by not less than two-third of the total number of Councillors, who are entitled to sit and vote at the relevant time and not the total sanctioned strength of the councilors.
19. Question No.(iv) is as to whether fraction of a vote should be ignored. While working out two-third of the total Councillors the ‘fraction’ cannot be ignored. As per mandatory provision of Section 54, the number of votes must not be less than two-third. If fraction is ignored then the majority will be less than the requisite number of Councillors required to pass a motion of no confidence. Therefore, fraction should not be ignored. [See judgment of the Hon’ble Supreme Court in the case of State of Uttar Pradesh & Anr. Vs. Pawan Kumar Tiwari & Ors., disposed of o”
04. 01.2005 in Appeal (Civil) No.4079 of 2004; judgment of Andhra Pradesh High Court in Gogineni Koteswara Rao (supra); the judgment of Rajasthan High Court in the case of Chimna Ram (supra); and judgment of Bombay High Court in Ashok Maniklal Harkut (supra)].
20. In view of the above, the judgment of this Court in Jagannath Mishra (supra); High Court of Karnataka in Shivashankarappa and others (supra); Allahabad High Court in the case of Mangala Prasad Jaiswal(supra) and Patna High Court in the case of Sukhdeo Narayan and others(supra), wherein it is held that the total number of councilors refers to total sanctioned strength of the Councillors and not of the existing strength of Councillors at given point of time are of no help to the petitioner. This Court in the case of Jagannath Mishra (supra) placed reliance upon the judgment of Bombay High Court in B.N. Hardikal (supra) and also judgment of Allahabad High Court in Mangala Prasad Jaiswal (supra). The Full Bench of Bombay High Court in the case of Ashok Maniklal Harkut (supra), did not agree with the decision of the Division Bench of Bombay High Court in B.N. Hardikal (supra). Similarly, the Gujarat High Court in Manu Bhai Patel F. (supra) did not agree with the view expressed in the judgment of Allahabad High Court in Mangala Prasad Jaiswal (supra). Moreover, in the case of Jagannath Mishra (supra), while interpreting the expression “two-third of the total number of councilors recording want of confidence in Chairperson or Vice-Chairperson”. appearing in Section 54(1) of the Act, 1950, this Court has not taken into 15 consideration the provisions of Sub-section 2(c) of Section 54 of the Act, 1950.
21. In the case at hand in no confidence motion, 19 Councillors voted in favour of the motion. The total sanctioned strength of Councillors of Sambalpur Municipality is 29 and out of 29 Councillors one Councillor, namely, Ladara Munda expired on 15.02.2012; the Councillors, who are entitled to sit and vote at the relevant time is 28. Two third of 28 comes to 18.6 as against which 19 persons voted in favour of the no confidence motion. Therefore, two-third of total number of Councillors as required under Section 54 (1) of the Orissa Municipal Act to support the no confidence mention is satisfied in the present case. Hence, there is no substance in the Writ Petition as well as the Review Petition.
22. Question No.(v) is with regard to maintainability of the writ petition bearing W.P.(C) No.9946 of 2012. The writ petition bearing W.P.(C) No.9946 of 2012 has been filed for quashing resolution dated 07.05.2012 passed by the Councilors of Sambalpur Municipality, report dated 14.5.2012 of the A.D.M., Sambalpur and Notification dated 29.5.2012 of the Director, Municipal Administration & ExOfficio Joint Secretary to Government. The issue involved in this case has been adjudicated by order dated 11.05.2012 passed in W.P.(C) No.8242 of 2012. Therefore, the said writ petition is not maintainable by application of principles of constructive res-judicata”
23. Law is well settled that the provisions of the Code of Civil Procedure are applicable to the writ jurisdiction; the principles enshrined therein can be resorted to for the reason that the principles on which CPC is based are founded on public policy. Therefore, they are required to be extended and made applicable in writ jurisdiction and also in the interest of administration of justice.
24. The Hon’ble Supreme Court in the case of Forward Construction Co. and others (supra), has held as under”.
“20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force”. (underlined for emphasis”
25. Even if a party does not pray for relief in the earlier writ petition, which he ought to have claimed in the earlier petition, she cannot file a successive writ petition claiming that relief, as it would be barred by the principles of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2, Rule 2 C.P.C. as has been explained, in unambiguous and crystal clear language by the Supreme Court in Commissioner of Income Tax, Bombay vs. T.P. Kumaran, 1996 (10) SCC 561.Union of India & Ors., vs. Punnilal & Ors., 1996 (11) SCC 112.and M/s. D. Cawasji & Co. & Ors., vs. State of Mysore & Anr., AIR 197.SC 813.
26. In Burn & Co. Ltd. v. Their Employees, AIR 195.SC 38.the Hon’ble Supreme Court has held as under: “That would be contrary to the well-recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in Section 11 of the Civil Procedure Code is based. That section is, no doubt, in terms inapplicable to the present matter, but the principle underlying it, expressed in the maxim “interest rei publicae ut sit finis litium”., is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, 10th Edn.p.218). “The rule of res judicata is dictated”. observed Sir Lawrence Jenkins, C.J.in Sheoparsan Singh v. Ramnandan Prasad Singh by a wisdom which is for all time”.
27. Apart from the above, in view of the decision in present review petition, nothing remains to be decided in W.P.(C) No.9946 of 2012.
28. dismissed. In the result, the review petition as well as the writ petition is 18 No order as to costs. …………………………. B.N. Mahapatra,J.V. Gopala Gowda,C.J.I agree. I agree. …………………………. Chief Justice Orissa High Court, Cuttack The 12th December, 2012/ssd/ss/skj