P.K. Mohanty, J.
1. The writ petitioner, who is the Chairperson of Jatni Municipal Council, Jatni in the district of Khurda, has approached this Court with the following prayer:
It is therefore prayed that this Hon'ble Court may graciously be pleased to issue Rule NISI to the Opp. Parties to show cause as to why:
(i) The order No. 2439, dt. 24.7.2004 under Annexure-6 shall not be quashed.
(ii) The resolution dated 5.11.2004 said to have been passed by the Jatni Municipal Council presided over by the Vice-Chairman, O.P. No. 5 signed on 9.11.2004 under Annexure-2 shall not be quashed.
(iii) Confirming the later resolution dated 5.11.2004 presided over by the Vice-Chairman under Annexure-7 shall not be quashed.
(iv) The opposite party No. 1 and 2 shall not be directed to take necessary action against the opposite party No. 3 who as acted excess violating provision of all Rules and guidelines.
(v) An inquiry shall not be conducted by the agency like Vigilance Department with regard to misutilisation, misappropriation of the fund of the Jatni Municipal Council.
If the opposite parties fail to show cause or show insufficient cause the said Rule be made absolute quashing Annexures 2, 6 and 7 and also direct the opposite party Nos. 1 and 2 to take necessary steps to initiate proceeding against the opposite party Nos. 3 and 4 and further direct for inquiry by the Vigilance Department, opp. party No. 6, to inquire into the misappropriation of Municipal Fund.
And may pass such other order/orders, direction/directions, writ/writs are deem fit and proper.
2. The petitioner's case in brief is that she is discharging the duty and responsibility of Chairperson of Jatni Municipal Council being duly elected as such since the month of September, 2004. Opp. party No. 3 is an officer from Orissa Administrative Service and has been posted/deputed as Executive Officer of Jatni Municipality from March, 2004. The Executive Officer, from the date of joining, is acting in a manner detrimental to the interest of the Council by manipulating records including the Resolutions of the Council, in violation of the provisions of the Orissa Municipal Act and Rules made thereunder. Several allegations have been made regarding the illegal activities of the Executive Officer, who has been impleaded by name as opposite party No. 4. A requisition meeting of the Council was held on 19.2.2004 for discussion of the Agenda in terms of the notices issued by the petitioner on 15.10.2004, a copy of which is Annexure-1. However, since the discussion could not be completed, the meeting was adjourned to 5.11.2004. The adjourned meeting was held as per the schedule in terms of Rule 38 of the Orissa Municipal Rules. The petitioner as the Chairperson, closed the meeting after discussion on 5.11.2004, signed the Resolution Book and handed over the same to the Executive Officer (opp. party No. 3), who is the custodian of the records as per law. But the opp. party No. 3, being the custodian of the records had interpolated the Resolution Books and Circulated such resolution amongst the members, which shows that the signature of the petitioner has been erased and the Resolution has been inserted, wherein the Council has withdrawn all the duties and responsibilities of the Chairperson in the garb of delegation of powers by Municipality to the Executive Officer (opp. party No. 4). A copy of said Resolution has been annexed as Annexure-2. According to the petitioner, page 3 of Annexure-2 would show that there are three 'x' marks below which the petitioner has signed and the other Resolutions which are written are inserted by opp. party No. 4 after the meeting was over. The interpolations in the resolutions were allegedly inserted with an evil intention to take away the duties and responsibilities of the Chairmperson vested in her under law in the garb of the delegation of power under Section 96 of the Act. By the insertion, the Executive Officer has assumed all the functions of Chairperson and the post of Chairperson has become functus officio contrary to the provisions of the Act and Rules. It is submitted that the meeting held on 5.11.2004 was an adjourned meeting of the meeting dated 19.10.2004. But the Resolutions manipulated by opposite party No. 4 contains the resolution of 5.11.2004 and not the resolution taken on 19.10.2004. The Resolution said to have been made by the Council has been signed by the Vice-Chairman, who is said to have presided over the meeting on 9.11.2004. Submission is made that the adjourned meeting was held on 5.11.2004, it is purportedly signed on 9.11.2004 and proceeding was dispatched on 19.11.2004, even though in accordance with Rule 71(2) of the Act, the proceeding and resolution ought to be circulated within three days from the date of resolution and, as such, that speaks of manipulation and therefore has no effect.
3. Learned Counsel for the petitioner referring to page 4 of the resolution in Annexure-2, submitted that even though Section 103 of the Act and Rule 93 of the Rules are with regard to inspection of stamping of weights and measures, the resolution speaks of the Vice-Chairperson's power under the siad rule, which indicates the manner and the haste in which opposite party No. 4 has tried to manipulate the resolution. The Vice Chairperson is authorized under law to preside over the Council meeting in absence of the Chairperson and, as such, he could have presided over the meeting on 5.11.2004 only if the petitioner was absent but the petitioner being present and having adjourned the meeting, there was no occasion for the Vice-Chairperson to preside over the same. The petitioner and some of the Councilors made a representation to opposite party No. 2 seeking his intervention and to make an enquiry over the mis-rule, highhanded and arbitrary action of opposite party No. 4 and to punish him suitably but no action has been taken for which opposite party No. 4 has been encouraged to act in contravention of the provisions of law and mis-manage and misappropriate the money belonging to the Municipal Council. The petitioner has given some instances as to how the opposite party No. 4 has acted contrary to the instruction given by the petitioner. It is stated that the petitioner being the Chief Executive by order dated 12.7.2004 directed opposite party No. 4 to take necessary approval of the Chairperson before passing any order or instruction with regard to municipal affairs but in gross violation of the said order, opposite party No. 4 continued to pass illegal orders including the order dated 13.7.2004. When the matter stood thus, the Councilors made a requisition for a special meeting of the Council to discuss on the highhanded action of opposite party No. 4 and accordingly the Council meetings were held on 3.8.2004 and 9.8.2004 and resolution was passed by the Councilors annulling the orders passed by opposite party No. 4 but without paying any regard to the Council Resolution, opposite party No. 4 is still continuing with his activities.
However, it has been reiterated that the resolution said to have been passed on 5.11.2004 purportedly being presided over by the Vice-Chairperson is without any authority of law inasmuch as perusal of the resolution will make it evident that the petitioner left the meeting after an adjournment and, as such, the Vice-Chairperson could not have any occasion to preside over the same. A reference has been made to the note of the Executive Officer in the Minutes Book to highlight that the Chairperson having left the meeting hall along with three Councilors, the Vice-Chairperson conducted the meeting in presence of the Councillors whereas in the proceeding it has been specifically written 'released under the signature of the Chairperson'. The resolution has been sent to the Government and the Collector of the district and circulated among the Councillors including the petitioner on 19.11.2004 in gross violation of the provision of Section 71(2) of the Orissa Municipal Act and therefore the proceedings are invalid and inoperative. Hence, the present writ petition.
4. Opposite party Nos. 3 and 4 have denied the allegations and averments made in the writ application. It is the case of the Executive Officer by designation and in person, opposite party Nos. 3 and 4, that after joining as the Executive Officer of the Jatni Municipal Council on 19.3.2004, he found mis-management in the office establishment causing loss of revenue in collection of tax and fees during his monthly Revenue Meeting and for improvement and better tax collection, he decided and made re-arrangement of duties of tax and Licence Section Staff in his office order dated 13.7.2004, copy of which is Annexure-A/3. When the writ petitioner found inconvenience in her functioning, she passed order directing the Executive Officer to keep in abeyance the office order and by such action, the collection of tax again deterioated for which the Executive Officer again made another order transferring certain person copy of which is Annexure-6 and it is claimed that by such order the tax collection improved for the period 1.4.2004 to 31.12.2004. However, the order in Annexure-6 was subsequently taken in for discussion in the Council meeting held on 9.8.2004 and the same was annulled, copy of which is annexed as Annexure-B/3. The details of his function has been given but at this moment it is not necessary nor relevant to go into such minute details. It is stated that on 5.11.2004, the date of the adjourned meeting, the Executive Officer came to the office at 10 O' Clock but he was gheraoed since the municipal staff had not received their salaries and he brought the same to the notice of the Council at the out set of the meeting. The writ petitioner pinned him down on the plea that the same was not in the agenda and, as such, cannot be discussed.
The Executive Officer has taken the stand that on 5.11.2004, the writ petitioner who is the chairperson of Jatni Municipal Council was presiding the Council Meeting and'all on a sudden she left the meeting hall without adjourning the meeting or without declaring the closure of the meeting for the day and thereafter on the demand of the Council in majority, the Vice-Chairperson of Municipality, opposite party No. 5, presided over the meeting and various resolution, such as resolutions relating to developmental work which was in the agenda of the adjourned meeting were discussed and necessary resolutions were passed. The writ petitioner all on a sudden entered into he Council hall and snatched away the Minutes Boo.k from the hands of Sri Sripati Sahoo who was deputed as temporary Council Clerk to the Council Meeting held on 5.11.2004. At about 5 p.m. on 5.11.2004, the Chairperson sent the Minutes Book to the deponent and after receipt of the same and after going through the proceedings of the day, he sought an explanation from Sri Sripati Sahoo as to why he had not recorded the discussions made and resolutions taken in the meeting. Sri Sahoo submitted his show cause on 6.11.2004. On 6.11.2004 Sri Sripati Sahoo took the minutes book from the Executive Officer to the office of the Vice Chairperson and from the office of the Vice Chairperson the deponent received the Minutes Book on 9.11.2004 and after receipt of the same he directed the staff to circulate the same to the Councillors, Collector and District Magistrate and other officials. He however says that later he came to know that the concemed peon distributed the proceedings of the Council meeting dated 5.11.2004 on 19.11.2004 and when it came to his knowledge, he sought an explanation from the peon. The Executive Officer while denying the allegations as wild, mischievous and mala fide has alleged that on 6.10.2004 when the review meeting was being conducted by the petitioner regarding progress of different developmental work undertaken and to be undertaken by the Municipality, without inviting the Works Committee, the petitioner having allowed her husband Dr. G. P. Singh (the Ex-Chairperson of Jatni Municipality) to participate in the meeting, the deponent objected his participation for which he was asked to go out of the meeting.
5. Opposite party Nos. 5, 7, 11 and 14 have filed a joint counter affidavit denying the allegations made in the writ petition. Maintainability of the writ petition has been raised in view of the provision of Section 398 of the Orissa Municipal Act under which the petitioner could have approached the State Government for appropriate remedial measures. It is stated that since the statutory remedy available under Section 398 of the Orissa Municipal Act has not been exhausted by the petitioner, she is estopped from challenging the same in the present writ petition.
6. In order to appreciate the contention of the Learned Counsel for the parties, it is necessary to consider the relevant provisions of the Orissa Municipal Act (hereinafter called 'the Act') and the Rules made thereunder with regard to conduct of business of the Municipality. Chapter VII of the Act deals with conduct of business of the Municipal Councils. Section 63 of the Act is with regard to ordinary meetings which requires the Councillors to meet for the transaction of business at their Office or at some other convenient place within the Municipal Area at least once in every month and as often as meetings is called by the Chairperson and in his absence by the Vice-Chairperson. Section 64 speaks of meeting on requisition by Councillors. The Chairperson or in his absence, the Vice-Chairperson is to call special meeting, on a requisition signed by not less than 1/3rd of the total number of Councillors and under Sub-section (2), on failure of Chairperson or Vice-Chairperson to call a special meeting to be held within 10 days from the date of receipt of such requisition, the meeting may be called on 5 days notice by the person, who signed the requisition. The Chairperson is to preside over the meeting of the Municipality and in his absence, the Vice Chair-person or in absence of both a Councillor elected at the meeting can preside in terms of Section 65 of the Act. The President of the meeting shall preserve order and shall decide all points of order arising at or in connection with the meetings and the decision of the President on any point of order shall, save as otherwise expressly provided in the Act, be final in accordance with Section 66 of the Act. However, the President is authorized, in case of grave disorder arising in the meeting to suspend its sitting for a time to be fixed by him. In view of Section 71, minutes of the proceedings of each meeting of a Municipality or a Committee is to be drawn up and recorded in Oriya language in a book to be kept for the purpose and shall be signed by the President and shall be published in such manner as the State Government may from time to time direct, and it shall be open to the inspection of any person resident within or owning or holding the land, within the jurisdiction of such Municipal area. Sub-section (2) thereof requires that copy of every resolution passed by the Municipality at a meeting shall, within three days from the date of the meeting, be forwarded to the Magistrate of the district, each of Councillors of the Municipality and the State Government or to such officer or authority appointed by the State Government for the purpose of inspecting or superintending the operation of the Municipality area. The Minute Book shall be kept in the custody of the Executive Officer. Chapter 2 of the Orissa Municipal Rules is with regard to the Rules of Business. Rule 13 provides that at a special meeting only the business for which the meeting was called is to be considered provided that the 'Councillors present' in the meeting may give their consent for any other business to be considered. Rule 38 of the Rules speaks of adjourned meeting. Under this Rule, no business shall be transacted at an adjourned meeting, except the business contemplated at the original meeting.
7. The undisputed facts are that a special meeting on the requisition of the members was convened by the Chairperson by notice dated 15.10.2004, fixing 19.10.2004 at 11.00 A.M. as the scheduled time and date of such meeting with the Agenda Item No. 1 as in Anenxure-1, to consider expediting the developmenial work. The meeting was held as per schedule and the proceeding of the meeting is Annexure-B/5. The said requisition meeting dated 19.10.2004 was adjounred to 11.00 A.M. of 5.11.2004 in view of serious disturbance and pandemonium in the meeting. The adjourned meeting of the Council as scheduled seems to have started at 11.00 A.M. on 5.11.2004 under the Presidentship of the Chairperson, the present writ petitioner. The discussion on the Agenda Item commenced and Resolutions allotting funds (NSDP and SJSRY) to different wards were made as indicated in the minutes in Anenxure-2. In the penultimate paragraph of page 2 of the minutes it has been recorded that after the discussions were over on the Agenda of the requisition meeting, the Vice-Chairperson and certain other members named therein wanted discussions of some different proposals. At that point of time, some other Councillors also raised certain other proposals and requested the Chair-persons for discussion.
However, the President of the meeting, the present writ petitioner, inviting attention of the Councillors to the provisions of Rule 38 of the Orissa Municipal Rules, informed the members that in an adjourned meting, no other matter except the matter in the agenda, can be considered and therefore no other proposal can be allowed to be considered. The Chairman, however, informed the members that they may bring such a resolution or motions in the next ordinary meeting of the Councillors and they are to give such proposals in writing. After recording after the 'X' marks that when discussions in Rule 38 were continuing, some members created disturbance, for which, the situation in the Hall became tense. The Vice-chairman referring to Rule 47, requested the Chairman to take appropriate action against such members creating disturbance, but at that point of time, she left the hall along with some other Councillors. The Minutes further reflect that one Subhendu Parija, a Councillor asked for clarification from the Executive Officer as to whether in absence of the Chairperson the Vice-Chairperson can continue with the meeting. The Executive Officer opined that since the meting was not concluded, in absence of the Chairperson, the Vice-Chairperson can continue with the meeting and then on the proposal by Sri Subhendu Parija which was seconded by Pratap Keshari Baral and Sangram Keshari Routray, the Vice-Chairperson took the seat of the President. It further appears that some new Resolutions have been taken thereafter.
8. The question for consideration is as to whether, in an adjourned requisition meeting, discussions or resolution can be taken on matters other than that scheduled urider the Agenda. The meeting dated 19.10.2004 was a meeting on a requisition made by the required number of Councillors in terms of Section 64 of the Orissa Municipal Act for discussion on a single agenda as item No. 1 mentioned earlier. The said meeting was adjounred to 5.11.2004 and, as such in view of Rule 38 read with Rule 13 of the Orissa Municipal Rules no business could be transacted at the adjourned meeting except the business contemplated at the original meeting. In such view of the matter, there cannot be any manner of doubt that in the adjourned meeting held on 5.11.2004, no business except the business in terms of the Agenda of the adjourned meeting could be transacted. It transpires from the minutes of the proceeding recorded in Pages 1 and 2 of Annexure-2, which is not disputed by any of the parties that the business as per the Agenda of the adjourned meeting was considered and necessary resolutions were taken and at that point of time, the request of some Councillors for discussion of some other matters not covered under the agenda of the meeting, was turned down by the President of the meeting and therefore, there was serious altercations and pandemonium in the meeting for which the President/Chairperson left the meeting. In view of our finding that no other business could be transacted other than the business in the Agenda adjourned from the earlier meeting held on requisition of the Councillor and that resolutions were taken on such agenda, the question of continuance of the meeting under the Presidentship of the Vice-Chairman did not arise. The minutes of the meeting after the 'X' marks in Page 3 of Annexure-2 with regard to the Proposals and Resolutions and the discussions made are thus contrary to the provisions of the Act and the Rules made thereunder and thus no exception can be taken to the decision of the Chairperson disallowing the members from raising any other proposal for discussion in the adjourned meeting of a requisition meeting dated 19.10.2004. It is interesting to note that the Executive Officer of the Municipality acted as legal advisors to the remaining members present in the meeting after the Chairperson left the hall on conclusion of the agenda of the adjourned meeting and advised for continuance of the meeting under the Presidentship of the Vice-Chairperson. The Executive Officer, an Officer of the Municipality on deputation, is required to act in accordance with the provisions of the law and ought to remember that the Municipal Council, is constituted of Councillors and is an elected body governed under the provisions of the Orissa Municipal Act and Rules made thereunder. Had the Executive Officer not given the minconceived advice that the meeting could be continued further, all these questions would not have come for consideration and disturbances and confusion would not have occurred.
In view of what has been held earlier, the resolutions taken in the adjourned meeting on matters other than those in the original agenda are all illegal being in violation of Rules 13 and 38 of the Orissa Municipal Rules and thus are non est.
The allegations and counter allegations regarding the functioning of the Executive Officer vis-a-vis the Chairperson and the Municipality as a whole also need not be gone into the present writ petition since it involves serious disputed question of facts. However, the parties are at liberty to work out their remedies in accordance with the provision of Municipal Law on which we express no opinion. We are also not inclined to enter into the question of maintainability of the writ petition at this stage in the peculiar facts and circumstances of the case.
The writ petition is allowed to the extent indicated. However, there shall be no order as to cost.
J.P. Mishra, J.
9. I agree.