R.K. Patra, Acting C.J.

1. The petitioner is the Vice-Chairperson of Koraput Notified Area Council constituted under Section 8 of the Orissa Municipal Act, 1950. In this writ application she seeks to assail the validity of the notice dated 25.8.1999 at Annexure-2 issued by the Officer- on-Special Duty (L.R.), Koraput to the concerned Councillors requiring them to attend the meeting on 30.8.1999 in the Meeting1 Hall of the Notified Area Council, Koraput, for consideration of the no confidence motion against her (petitioner).

2. Referring to Section 54 of the Orissa Municipal Act, 1950 (for short, the Act), particularly Sub-section (2)(c) thereof, Shri Ray, learned counsel for the petitioner, contended that such notice can only be issued by the District Magistrate and not by the Officer-on-Special Duty (L.R.). In this connection, he placed reliance on judgment of Karnataka High Court in Basappa Ningappa Arab v. The Assistant Commissioner, Bagalkot Sub-Division AIR 1976 Kar 224 and of the Bombay High Court in Kisan Baban Rout v. Collector, Akola and Ors. (1976) M.L.J 747

3. We have heard Shri Ray for the petitioner and Shri S.K.Nayak, learned Additional Government Advocate, for opposite parties. We have perused the relevant file produced by the learned Additional Government Advocate dealing with the matter.

4. Section 54 of the Act deals with the topic "vote of no confidence against the Chairperson or Vice-Chairperson". Sub-section (1) of Section 54 provides that in a meeting of the Municipal Council specially convened by the District Magistrate if a resolution is passed supported by not less than two-thirds of the total number of Councillors recording want of confidence in the Chairperson or Vice-Chairperson, the resolution together with the records of the proceedings would be forwarded to the State Government which would publish the same in the gazette. In this case, we are concerned with Sub-section (2) of Section 54. It is, therefore, appropriate to extract the relevant portion of the said provision to extract the relevant portion of the said provision which reads as follows :

"(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 :-

(a) no such meeting shall be convened except on a requisition signed by at least one-third of the total number of Councillors along with a copy of the resolution proposed to be moved at the meeting;

(b) the requisition shall be addressed to the District Magistrate;

(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 of the proposed resolution, at least three clear days before the date so fixed;

(d) the District Magistrate or if he is unable to attend. Gazetted Officer above the rank to which the Executive Officer of the Municipal area belongs who is specially authorised by him in that behalf shall preside over, conduct and regulate the proceedings of the meeting;

(e) xx xx xx

(f) xx xx xx

(g) xx xx xx

(h) xx xx xx

(i) xx xx xx"

5. The contention of Shri Ray is that the Officer-on-SpecialDuty (L.R.), Koraput who has issued letter dated 25.8.1999 (Annexure-2) noticing the concerned Councillors to attend the meeting on 30.8.1999 is invalid inasmuch as the said officer is not competent to convene a meeting on a particular date. According to Shri Ray, the step taken by the Officer- on-Special Duty (L.R.) is in direct contravention of Section 54 (2)(c).

6. Counter affidavit has been filed on behalf of opp. party No. 2, the Officer-on-Special Duty (L.R.), Koraput. His case is that on receipt of requisition of 11 out of the 15 Councillors along with copy of the proposed resolution to be passed, the District Magistrate passed order on 20.8.1999 and directed issue of individual notices fixing the date of meeting to 30.8.1999 at .10 a.m. in the Meeting Hall of N.A.C., Koraput. The Officer-on-Special Duty (L.R.) - opp. party No. 2 merely communicated the notices as per Annexure-2. A copy of the order passed by the District Magistrate is at Annexure-A/2. It is quoted here in below :

"Smt. Minakshi Bahinipati one of the Councillors of Koraput NAC has furnished the original copy of proposed resolution. The special meeting to be convened for the no confidence motion is fixed to 30.8.1999 at, 10.00 a.m. in the meeting Hall of NAC, Koraput as per Section 54 (2)(c) of the O.M.Act. Under Section 54 (2)(d) Sri Purusottam Sahu, OAS (I) Jr., Officer on Special Duty (LR), Koraput is authorised preside over, conduct and regulate the proceeding of the meeting. He is instructed to issue individual notice to all the sitting Councillors giving at least three clear days notice. A copy of the requisition for no confidence motion as well as a copy of the proposed resolution should be served on all the Councillors holding office as on the date. These notices to the Councillors may be served through the Executive Officer of the N.A.C. Send a copy of order sheet to Shri Purusottam Sahu, OAS (I) Jr. Officer-on-Special Duty (LR), Koraput NAC. Copy of the notice of the meeting should also be affixed in the notice board of the Collectorate, Koraput and Notice Board of Koraput N.A.C. for information of all concerned.

Sd. District Magistrate, Koraput"

7. On perusal of the relevant records produced by the Additional Government Advocate, we find that in fact the District Magistrate had passed the aforesaid order. A bare reading of it would show that it was the District Magistrate who after applying his mind on receipt of requisition fixed the date, time and place of the meeting. The Officer-on-Special Duty (L.R.) has merely communicated the order of the District Magistrate as per the notice at Annexure-2. It was merely clerical job which the Special Officer did.

8. At this stage, it is relevant to examine the decisions cited by Shri Ray.

In Basappas case {supra) a vote of no confidence having been passed, he was removed from the office of Chairman, Amingad Town Panchayat. Section 32 (1) of Karnataka Village Panchayat and Local Boards Act, 1959 provided that the Chief Executive Officer of the Taluk Board shall himself convene a meeting. The vote of no confidence passed against Basappa was in the meeting convened not by the Chief Executive Officer of the Taluk Board but by the Vice-Chairman of the Town Panchay at. In the circumstances, the Court held that the resolution passed in the meeting which was convened by an unauthorised person cannot be sustained. The fact-situation of that case is quite different from the case at hand.

Kisan Baban Rout (supra) was a case in which the Block Development Officer convened the meeting. Under Section 67 (1) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1962, it was the Collector or any officer authorised by him by general or special order alone was competent to convene the meeting. The Block Development Officer who was acting under the direction of the Chief Executive Officer of Zilla Parishad had no authority, power or jurisdiction to convene the meeting. The Block Development Officer was not authorised by general or special order by the Collector to do so. In these circumstances, the Court held that the election which took place in the meeting convened by the Block Development Officer was illegal. The facts of the present case are quite different from the facts of Kisan Baban-Rout (supra).

9. For the reasons mentioned above, we do not find any merit in this writ application which is accordingly dismissed. No costs.

P.K. Patra, J.

10. I agree.