A.K. Ganguly, J.
1. These two Writ Petitions were heard together as the question involved in one was connected with the other.
2. In W.P.(C) No. 1825 of 2006, the subject-matter of challenge is an order of the Collector, Dhenkanal by which the Collector, according to the petitioner, interfered with the acceptance of resignation of two councillors of the Notified Area Council, Bhuban (hereinafter called the 'said NAC').
3. The writ petition was filed by Kabita Barik who claims to be the elected Chairperson of the said NAC. Her main case is that two councillors of the NAC, namely, Prasant Kumar Maharana and Bhajaman Naik submitted their resignations to the petitioner. Prasanta Kumar Maharana gave his resignation on 23.11.2005 and Bhajamana Naik on 25.11.2005 on different grounds. The case of the petitioner is that the resignation letters of both the councillors were placed before the meeting of the said NAC on 16.12.2005 for acceptance but due to want of quorum that meeting was not held and was adjourned 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 and 7 does not arise as the resignations of the councillors have not been legally accepted. It was alleged that the acceptance of the resignations of the councillors was in violation of Section 43(1) of Orissa Municipal Act, 1900. It also appears from the said letter that there was a direction by the Collector to the Sub-Collector, Kamakhyanagar to cause an inquiry into the allegation made by the Councillors regarding acceptance of their resignations. It also appears that pursuant to the direction of the Collector, the Sub-Collector had already started holding an inquiry.
4. In this matter, pursuant to the order of this Court dated 4.5.2006, those two councillors have been impleaded as parties and they have also appeared and filed affidavits. Various counter affidavits have been filed by the opposite parties. One counter affidavit has been filed by opposite party No. 4-the Executive Officer of the concerned NAC and the other counter affidavit has been filed by those two councillors. A counter affidavit has also been filed by opposite party Nos. 2 and 3 and a separate one by opposite party No. 4.
5. In the counter affidavit filed by opposite party No. 4, a stand has been taken that due to lack of quorum on 16.12.2005 the General Body Meeting of Bhuban NAC was adjourned by the Chairperson to 21.12.2005 and in the said meeting the Chairperson along with three other councillors had allegedly accepted the resignation of the councillors in respect of Ward Nos. 1 and 7. It was also stated that opposite party No. 4 intimated the vacancies which were caused in view of the resignation of the councillors of Ward Nos. 1 and 7 to the State Election Commission. It also appears from the said counter affidavit that those two councillors filed their representations along with affidavits before opposite party No. 5 on 30.12.2005 stating, inter alia, that they had not tendered their resignations to the Chairperson of the said NAC and it was further stated that all the documents relating to their resignations were forged. Accordingly, opposite party No. 4 intimated the said fact to opposite party No. 2 on 30.12.2005 along with copies of the representation and communicated the said fact to opposite party No. 1. Thereafter opposite party No. 2 by letter dated 17.1.2006 intimated the fact that the acceptance of the resignation of those two councillors in respect of Ward Nos. 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 statutory provisions contained in Section 43 of the Orissa Municipal Act, 1950 and thereafter the District Magistrate intimated the State Election Commission not to go ahead with the revision of the electoral roll and directed not to take any steps for holding the bye-election in respect of Ward Nos. 1 and 7 of Bhuban NAC. It was also stated that the election process has not commenced and only a direction was given for revision of electoral roll. In fact, the State Election Commission supported the stand of the District Magistrate. In the counter affidavit filed by those two councillors it was also stated that the writ petitioner who claims herself to be the Chairperson has been removed from her post through No-Confidence Motion initiated by the councillors. It was stated in the said counter affidavit that the Bhuban NAC consists of 14 councillors excluding Chairperson. It was stated that the meeting which was to be held on 16.12.2005 had four items of agenda but for lack of quorum the same was adjourned to 21.12.2005. It was pointed out that four items of agenda which were put up in the said meeting did not contain any agendum for consideration of the resignation of the two councillors. As such, in the adjourned meeting dated 21.12.2005 without any agendum, the resignation was allegedly accepted. According to the stand taken in the affidavit filed by two councillors, the same was in violation of Rule 38 of the Orissa Municipal Rules. Apart from that, it was also stated that the said councillors had no knowledge about the alleged acceptance of their purported resignation. They came to know about the same for the first time when they received the letter issued to them by the Executive Officer. It was further stated that since they came to know of the alleged resignation from the aforesaid communication of the Executive Officer, they filed a petition along with affidavits stating therein that they had at no point of time tendered their resignation to the Chairperson and further stated that the Resolution No. 3 of the meeting held on 21.12.2005 was based on false and fabricated documents.
7. From the facts which have been discussed above it is clear that the councillors themselves have filed affidavit to the effect that they have never tendered their resignations to the petitioner in writing. Section 43(1) of the Orissa Municipal Act (hereinafter referred to as 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 acceptance of the resignation of opposite party Nos. 6 and 7 without any agendum is at so not contemplated. In this connection reference may be made to Rule 38 of the Orissa Municipal Rules which provides that no business shall be transacted at an adjourned meeting, except the business contemplated at the original meeting. Therefore, resolution dated 21.12.2005 in so far as it purports to accept the alleged resignation of opposite party Nos. 6 and 7 is invalid in the eye of law since there were no item of agenda to that effect. Apart from that it appears from the record that Government by its order dated 18.3.2006 cancelled the Resolution No. 3 purportedly passed in a meeting dated 21.12.2005. The said order was passed by the Government in exercise of its power under Section 398 of the Orissa Municipal Act. Such powers conferred on the State Government under Section 398 of the Orissa Municipal Act, There is no challenge to the said order dated 18.3.2006, which was passed by the State Government under Section 398 of the Orissa Municipal Act. The said order has been disclosed by opposite party Nos. 6 and 7 in the counter affidavit. For the reasons aforesaid this Court finds that the W.P. (C) No. 1825 of 2006 has no merit and there is no illegality in the order passed by the opposite parties in cancelling the acceptance of the resignation of opposite party Nos. 6 and 7 as councillors of Bhuban NAC.
8. The W.P.(C) No. 1825 of 2006, therefore, fails. All interim orders stand vacated.
9. So far as W.P.(C) No. 2090 of 2006 is concerned, this Writ Petition has been filed challenging, inter alia, the notice issued by the Collector, Dhenkanal for convening the meeting of the councillors for recording want of confidence against the Chairperson. In the prayer portion the action of the opposite parties in serving notice for convening the meeting which is scheduled to be held on 20.2.2006 under Annexure-4 has been challenged. In the instant case, no interim order was passed by thia Court.
10. The material facts are that the writ petitioner claims to have been elected as the Chairperson of Bhuban NAC. Admittedly, the said NAC has fifteen councillors. Initially five councillors sent a requisition to the Collector, Dhenkanal intending to move a resolution expressing No-Confidence Motion against the petitioner. On the basis of such requisition notice, the Sub-Collector, 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 councillors whose resignations were allegedly accepted and the meeting was fixed on 20.2.2006. Holding of the said meeting dated 20.2.2006 was challenged by the petitioner by filing this writ petition. As the petitioner failed to obtain any injunction order the said meeting was held on 20.2.2006 and in the said meeting no confidence resolution was passed against the petitioner by 2/3rd majority.
11. In the background of these facts, the learned Counsel for the petitioner challenges the entire proceeding relating to passing of No-Confidence Motion. In fact the total number of councillors who were present at the time of passing of No-Confidence Motion were 13, out of which 9 voted against the petitioner.
12. In the background of these facts the learned Counsel for the petitioner challenges the passing of the resolution of No-Confidence Motion in view of the provisions of Section 54(1 )(ii) of the said Act. Section 54 of the said Act provides for holding of a meeting specially convened by the District Magistrate about passing a resolution for want of confidence against the Chairperson or Vice-Chairperson. Section 54(1)(ii) provides that no such resolution recording want of confidence in the Chairperson or the Vice-Chairperson shall be moved more than once during a calendar year. Learned Counsel for the petitioner submits that in the instant case there is no definition of the expression 'calendar year' either in the Orissa Municipal Act or in the General Clauses Act. It has been stated that No-Confidence Motion was moved against the petitioner on 20.10.2005. In that view of the matter, the subsequent resolution of No-Confidence Motion against the petitioner on 20.2.2006 is within the period of calendar year as mentioned in Section 54(1 )(ii) of the said Act. Therefore the said resolution dated 20.2.2006 is contrary to law and therefore should be quashed by this Court.
13. In support of the said contention learned Counsel for the petitioner relied on a decision rendered in the case of Pradeep Kumar Sahu v. District Magistrate, Bolangir and Ors. reported in 90 (2000) CLT 783. This Court in the case of Pradeep Kumar Sahu (supra) explained the object, purpose and scope of Section 54. While explaining the said purpose, the Court held that the Chairperson or a Vice-Chairperson should not be again and again disturbed or harassed by repeated no-confidence motions. The 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 total membership of the Grama Panchayat, the resolution of no-confidence against the Sarapanch or Naib Sarapanch shall stand annulled. There can be no dispute with the said proposition. The learned Judges held that in Shyam Kumar Meher's case (supra), bar was imposed under Section 24(3)(b). Here, the statutory provision of Section 54(1 )(ii) of the Act is different substantially from the provision of Section 24(3)(b). Therefore, the decision in the case of Shyam Kumar Meher (supra) construing the different statutory provision cannot guide us in the present situation.
16. Now coming to the question of construing the provision of Section 54(1)(ii), this Court finds that the expression 'calendar year' as submitted by the learned Counsel for the petitioner, must mean 365 days. This Court finds that since the calendar year has not been defined in the' Act or in the Statute, the Court has to accept the dictionary meaning of the expression 'calendar year'. In this connection, learned Counsel for the petitioner has referred to 'Corpus Juris Secundum', Volume LXXXVI, pages 832 and 833, and urged that the meaning of the word 'Year' is dependant on the subject matter and the ccnhection in which it is used, and it may mean a period of twelve months or twelve calendar moths beginning on a day other than the first of January.
17. In Concise Oxford English Dictionary, Tenth Edition Revised, while explaining the meaning of the word 'Calendar Year' reference has been made to the word 'year' and it has been explained as a period of 365 days (or 366 days in leap year). The same may be from the 1st of January or the period of the same length, starting at a different point. This Court accepts the said meaning of the expression 'calendar year' in Section 54(1)(ii).
18. It goes without saying that by 'the calendar year' it obviously cannot be meant 'less than a year' otherwise the period of 'calendar year' may be over between 31st December, 2006 and 1st of January, 2007. That would obviously be an absurd interpretation of the expression 'calendar year'. Therefore, these two periods, namely, '20th October, 2005' and '20th December, 2006' fall within one calendar year. But the question which still remains to be answered is whether the resolution which stood annulled under Section 54(2)(g) of the Act can be said to be a resolution which was moved.
19. While construing 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 a hat 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 resolution shall be moved during the next calendar year. In the instant case, the three dates are important. On the first date of meeting which was called for No-Confidence Motion against the petitioner, no resolution recording want of confidence could be passed as none of the councillors turned up in the meeting on 20.10.2005 and the Presiding Officer declared that the resolution stood annulled according to Section 54(2)(g) of the Act. It may be noted that even the councillors who supported the petitioner did not turn up. Therefore, the same cannot be equated at all with a meeting contemplated under Section 54(1) Section 54(1) contemplates a meeting where the resolution recording want of confidence or otherwise was moved. Since the word used in Section 54(1)(ii) is 'moved', it means that there must be the adoption of certain resolution indicating a certain course of action. Otherwise, the word 'moved' has no meaning. There is a word of difference between a resolution which is moved and the resolution which stands annulled. Resolution which is moved produces some results and indicates some course of action in which the No-Confidence resolution may be passed, or it may be defeated but it cannot be equated with the situation where nobody turned up either to support or oppose the resolution and the resolution stands annulled. That is why the annulment of a resolution is separately dealt with under Section 54(2)(g). in the instant case, the subsequent notice which was issued by the Sub-Collector, Kamakhyanagar on 19.12.2005 was equally rendered infructuous in view of the stay granted by this Court on 22.12.2005 at the instance of the petitioner in W.P.(C) No. 15823 of 2005. Therefore, the same also cannot come within the meaning of Section 54(1)(ii) on which resolution was moved and was taken on 20.2.2006 on the basis of a requisition dated 3.2.2006. In our opinion, the resolution dated 20.2.2006 is not vitiated under Section 54(1)(ii) inasmuch as no previous resolution was moved recording about any vote of no confidence against the petitioner.
21. The expression 'annul' means a situation where there is no outcome and as no meeting was held the no-confidence proposal was neither debated nor discussed. But the resolution moved indicates a meeting where the resolution was debated and discussed and thereafter either it was carried or was defeated by a majority of votes. 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' Volume27A 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 'move' has been meant 'to introduce and move'. Therefore, where a resolution once moved for recording a vote of confidence by members would mean that some result was achieved either it is carried or defeated. That situation is totally different from the situation in which the resolution was annulled as a result of absence of the members. In such a situation, it cannot be said that a resolution was moved.
25. Going by this interpretation of the word 'move' in Section 54(1)(ii) of the said Act, this Court cannot hold that the resolution of no confidence motion was moved on 14.10.2005.
26. For the reasons aforesaid, this Court is of the opinion that the resolution dated 20.2.2006 cannot be vitiated under Section 54(1)(ii) and therefore, cannot be set aside by this Court. Accordingly, W.P.(C) No. 2090 of 2006 fails. All interim orders stand vacated.
There will be no order as to costs.
I. Mahanty, J.
27. I agree.