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Judgment
The petitioners are nine councillors representing different wards of the Keonjhargarh Municipal Council (KMC). They have been declared
disqualified by the State Election Commission i.e. opposite party no.2 in Complaint Case No.1 of 2016 filed by the former Chairperson of
Keonjhargarh Municipality i.e. opposite party no.5, namely, Mina Majhi under the provision of Section 46-A(1)(b) of the Odisha Municipality
Act, 1950 as amended by the Odisha Municipal Laws (Second Amendment) Act, 2015 as per order dated 19.02.2016. The election to
Keonjhargarh Municipality was held on 19.09.2013 pursuant to notification issued by the State Election Commission on 12.08.2013. The
municipal council consists of 21 wards. All these petitioners contested the municipality election under the aegis and as candidates for the ruling Biju
Janata Dal (BJD), hereinafter, referred to as the ""BJD"" for brevity. On 30.09.2013, election to the Chairperson of the Municipality was held and
opposite party no.5 was elected as the Chairperson of the Municipality as 15 votes were cast in her favour. It is stated that the opposite party no.5
started involving monopolistic activity and for her alleged arbitrary and unbearable action, the petitioners on 09.11.2015 convened a special
meeting under the Chairmanship of one Dilip Behera, the councillor of Ward No.13 of the KMC, where it was resolved that the councillors should
request the Collector-cum- District Magistrate, Keonjhar to give protection to the councillors till consideration of motion of No Confidence against
the Chairperson.
Pursuant to such resolution, all the petitioners approached the opposite party no.3-Collector-Cum-District Magistrate, Keonjhar on
12.11.2015 and served the notice ''No Confidence Motion'' along with copy of the resolution, wherein they have categorically
mentioned that the meeting may be fixed at an early date giving only three days time to avoid anticipated hazardous situation.
After receiving the notice ''No Confidence Motion'', the opposite party no.5 allegedly tried her level best to influence the petitioners
and other councillors through many ways since she belongs to an influenced political party and manage to influence local
administration including the police. The petitioners also plead that they were receiving threatening calls on their mobiles. Though the
petitioners on several occasions conveyed the same to the local administration and police, the authorities did not protect the
petitioners. Finding no way, the petitioners approached the Court by filing an application under Article 226 of the Constitution
registered as W.P.(C) No.20993/2015. This Court disposed of the aforesaid writ petition directing the District Administration to
provide adequate protection to the petitioners.
On 21.11.2015, the opposite party no.3 notified the special meeting of the council for considering ""No Confidence Motion"" fixing
date to 28.12.2015.
The petitioners plead that they have contested the election and were returned as councillors under the panel of BJD. They were
dissatisfied with the party activity and have submitted their resignations in a phased manner by sending letters to the President of the
aforesaid party. Annexure- 4 series are the resignation letters. However, in course of hearing, Mr. A.P. Bose, learned counsel for the
petitioners did not give much importance on this aspect of the case. While the No Confidence Motion was pending for consideration
by the council, the ruling party allegedly in order to get over the No Confidence Motion, brought an amendment to the Odisha
Municipal Act i.e. Odisha Municipal Laws (Second Amendment) Act, 2015 by incorporating the clause of disqualification. The Act
was notified on 18.12.2015 and came into force on 19.12.2015. The draft rules were prepared and notified on 30.12.2015. It is also
stated that the said notification containing the rules was published in the Extraordinary Gazette of the State on 09.01.2016.
Thereafter, the petitioners came to know that a compliant case No.1/2016 as well as writ petition has been filed by the opposite party no.5
stating that the President of the aforesaid party has authorized one Debasis Samantray, Member, Odisha Legislative Assembly on 23.12.2015 to
personally tender the said direction to the petitioners and other councillors of the party. But, as the said whip could not be served upon the
petitioners, a paper publication was made giving intimation to all councillors of the aforesaid party. It is claimed by the petitioners that they were
not aware of any such publication. On 28.12.2015, the No Confidence Motion was held and a resolution was passed. The opposite party no.5
was ousted from the office of the Chairperson, Keonjhargarh Municipality. Thereafter, the said opposite party no.5 filed Complaint Case No.1 of
2016 before the SEC on 05.01.2016. She also filed a writ application before this Court on 06.01.2016, bearing W.P. (C) No.311/2016.
However, the writ application was withdrawn and the complaint case was heard by the opposite party no.2. After considering the materials on
record, the opposite party no.2 allowed the complaint case and passed the impugned order, Annexure-1, thereby all these petitioners were
declared disqualified to continue as members of the aforesaid municipal council and further directed that the opposite party no.5 shall be deemed
to have vacated such office with effect from date of passing of the Resolution on 28.12.2015 in view of the notification no.841 dated 11.01.2016.
Thus, on this factual background, the petitioners in this writ application challenge the order dated 19.02.2016 passed by the opposite
party no.2 on the following grounds.
a. The election to the Keonjhargarh Municipal Council was held in the year, 2013 when the amendment has not seen the light of the
day, otherwise at the time of allotment of party symbols in election the councillors were not issued any direction nor they had
knowledge if they defy the directions issued by the party, their councillorship will be terminated.
b. The amendment Act, 2015 is prospective in nature and cannot be attracted once there is a no confidence motion already in
process.
c. the State machinery gave a very long period of time to the chairperson to face the no confidence motion, which is against the
statute, thereby allowing the ruling party to take the advantage.
d. the plea of the opposite party no.4 i.e. Ruling Political Party that it has not received the resignation letters is completely against the
law of Section 27 of the General Clauses Act.
e. The learned State Election Commission has not answered the contention raised by the nine petitioners that as the councillors
constitute 2/3rd of the ruling party, they formed a separate group by virtue of a split in the party.
f. There is no question of prior permission from the BJD that they have resigned from the BJD, no diktat of party whip can be issued
against them.
g. Without a draft rule, the proceeding of opposite party no.2 is itself vitiated in the eye of law.
h. The opposite party no.2 acted in a partisan manner to benefit the ruling front.
Therefore, the petitioners prayed that after affording reasonable opportunity of hearing to the parties, a writ/writs in nature of
certiorari/mandamus quashing Annexure-1 be passed in the interest of justice.
The opposite party no.1 through the Deputy Secretary to Government of Odisha, Housing and Urban Development Department, Secretariat,
Bhubaneswar has filed a counter affidavit. The essential contents of the counter affidavit is that for providing stability to the institution of local-self-
Government and to ensure candidates elected with party support and on the basis of its manifestoes remain loyal to the party politics, promote
party discipline and strengthening the urban local governance, it was felt necessary by the Government for carrying necessary amendments in the
Odisha Municipal Act incorporating the provisions for disqualification of elected members on the ground of defection, subject to certain exceptions
i.e. in the case of merger or split vide Odisha Amendment Act, 2015 and Rules published therein.
Further, it was considered to prescribe the modality of the disqualification on the ground of defection by amending the Odisha
Municipal Rules, 1953 and Odisha Municipal Corporation Rules, 2004. In the said Rules, it is stated that the Election Commission
has been empowered to decide the question of disqualification on the ground of defection and his decision shall be final. Thereafter,
the statement of objections and reasons have been quoted in the counter affidavit and on the basis of the same it is submitted that the
only purpose of the Odisha Municipal Laws (Second Amendment) Act, 2015 was enacted to remove mischief of defection and it has
no personal grievance against the petitioners.
The opposite party no.2 through its Secretary has filed a counter affidavit to this writ petition. The affidavit may be in the line of orders passed
by the learned State Election Commission in justifying the same. So, it is not necessary to take note of the entire pleadings raised by the State
Election Commission at this stage as reproducing the counter affidavit will not serve any purpose. Be that as it may, whatever may be the other
pleas raised in the counter affidavit, it cannot go beyond the order passed by the learned State Election Commission and the order passed by the
State Election Commissioner shall be discussed at a later stage of this judgment.
The Executive Officer, Keonjhargarh Municipality for and on behalf of the opposite party no.3-Collector-cum-District Magistrate, Keonjhar has
filed counter affidavit. From the affidavit, it is apparent that he has nothing to say in the averments made in the writ application and he asserts that
he has no role in the whole process.
The opposite party no.4 i.e. the Ruling Party through its General Secretary has filed a counter affidavit. It is borne out from the records that in
the Municipality Election, the party has fielded 21 candidates under the party symbol. After the results, the 14 of its candidates were elected and
only one from the BJP and six candidates from the Indian National Congress were elected. Thereafter, there was a discussion for the election of
the Chairperson. It is further pleaded that the President has never received any letters of resignation from the petitioners, rather the President has
received a letter i.e. Annexure-A/4 where the petitioners have alleged against the Chairperson and submitted that they have reposed faith and
confidence in the party and the leadership of the President of the BJD. Rest of the pleadings are repetition except with respect to the service of
whip on the petitioners. However, it is not disputed in this case that such a whip has been issued by the party President through a sitting MLA and
Mr. Bose did not seriously assert that the petitioners were not well aware about whip issued by the party under whose aegis they have been
elected.
The opposite party no.5, the former Chairman of Keonjhargarh Municipality has filed a detailed counter. It is stated by her that the writ
application filed by the petitioners is abuse of judicial process as the petitioners have no sustainable ground and as such the writ application should
be dismissed in limine.
The main response that comes forth from opposite party no.5 is that all the petitioners remained present in the meeting of No
Confidence Motion and voted in support of it and against the Chairperson of the Municipality on 28.12.2015, even though the
political party to which they belonged had issued a party whip through an authorized person that the councillor must remain absent
from the no confidence motion meeting and thereby they have violated the mandate of Section 46-A(1)(b) of the Odisha Municipality
Act.
The Keonjhargarh Municipality comprises of 21 wards and the election to the municipality was held on 19.09.2013 and the results
were declared on 20.09.2013 and published in the Official Gazette on 24.09.2013.
The opposite party no.5 was elected as the Chairperson of the Municipality on 30.09.2013 as fifteen votes were cast in her favour
and six votes were cast against her. Thereafter, the District Magistrate of Keonjhar District has intimated vide letter dated
21.11.2015 for holding of the special sessions of the council to consider the no confidence motion against the Chairperson of the
Municipality to be held on 28.12.2015. The President of the aforesaid political party issued directions to the BJD councillors of
Keonjhargarh Municipality that they should remain absent from the meeting of the Municipality scheduled to be held on 28.12.2015
and the President of the Party authorized a sitting member of the legislative assembly vide letter dated 23.12.2015. In compliance of
such direction from the President of the party, five persons could be communicated with the order. They are Purna Chandra Sahu,
Paresh Kumar Pradhan, Satyaprava Sahu, Krushna Chandra Rout and opposite party no.5-Mina Majhi. The representative could
not serve the whip on the petitioners as they were absent from their house. Accordingly, the representative entrusted the work to the
President of the party for the district, who also made an attempt but could not succeed. Further, the direction of the President was
brought out in the Odia Daily Newspaper ""the Samaj"" on 27.12.2015. In other words, the whip was published in the newspaper
having a wide circulation in that locality. Despite the whip issued by the political party, the petitioners went against the whip, attended
the special session of the council and voted in favour of the no confidence motion, as a result of which opposite party no.5 was
ousted from the office of the Keonjhargarh Municipality. Being aggrieved by their action, the opposite party no.5 approached the
State Election Commission and her application was registered as Complaint Case No.1/2016 and she prayed for disqualification of
the petitioners from the post of councillors as per the amended provision of the Odisha Municipal Act. The State Election
Commissioner after hearing the parties concerned, as per the order dated 19.02.2016 pleased to disqualify the petitioners as
councillors of the Keonjhargarh Municipality. It is contended by the opposite party no.5 that there is clear violation of the statute in
this regard hence the learned State Election Commission did not accept the contention raised by the learned counsel for the present
petitioners, who were opposite party before the State Election Commission and allowed the complaint petition and has passed orders
as described earlier in a preceding paragraph of this judgment. It is contended that the amended provision of the Odisha Municipal
Act will also apply to the pending motion for no confidence and thereafter the opposite party nos. 4 and 5 has gone into elaborating
on the order given by the State Election Commission and pleaded that there is no merit in the application.
In course of argument, Mr. Bose, learned counsel for the petitioners first raised a legal point. He contended that the complaint petition filed by
the opposite party no.5 before the State Election Commission is not maintainable as the Act as amended by the Amending Act, 2015 did not
provide for any member having the locus standi to file a complaint petition. Drawing attention of the Court to the Specific provisions of the Act
amending, the learned counsel for the petitioners submits that it is only ''the'' councillors appearing in Section 46-D(1)(a) of the Act can file a
complaint. It is brought to the notice of the Court that at Sub-Section (1) of Section 46-A it is provided that a councillor belonging to a party shall
be disqualified for being such councillor if he violates a party whip. Then, again in Section 46-B of the Act, it has been provided that where ''a''
councillor claims that he or other political party constitute the group So, the word ''the'' appearing in Section 46-D(1) of the Act that ''the''
councillor or the political party may file a complaint before the election commission means that the person, who has been disqualified or the political
party, whose whip is violated, can file complaint but the other councillors cannot file any such complaint before the election commission. It is also
argued by Mr. Bose that if in the statute there is no ambiguity in the language used by the legislature, then its plain grammatical meaning has to be
adopted by the court, which is the golden rule of interpretation of statute. Moreover, he argues that the very purpose of the Act will not be
frustrated even if ''the'' is not substituted and read as ''any'' as the political party has the right to file an application before the Election Commission.
Therefore, it is contended by him that the opposite party no.5-Mina Majhi does not have the locus standi to file an application.
The 2rd contention raised by the learned counsel for the petitioners is that the amending Act is prospective in nature and it has been
passed by the legislature when the no confidence motion was already in process and, therefore, amending Act will not be applicable
to the ongoing process.
The 3rd limb of argument advanced by the learned counsel for the petitioners is that though the Odisha Municipality Act itself
provided at Section 54 that on receipt of a resolution proposed and requested to hold the meeting of the councillors to consider a no
confidence motion, Collector should have issued notice giving at least three clear days and instead of doing so, the Collector-cum-
District Magistrate has issued a notice on 21.11.2015 fixing the date to 28.12.2015, thereby giving the opposite parties scope to
manipulate the no confidence motion by using the period of one month seven days approximately. Therefore, it is contended that the
very action of the District administration is questionable and it is also argued that the counter affidavit by the District Administration
did not reflect the reasons for giving such a long period for fixing a date when the statute recognizes only three clear days notice is
mandatory.
The learned counsel for the petitioners also raised the contention that, as out of 14 elected members of the party, 9 split away from
the others then the election commission should have been given findings on this aspect but the election commissioner has not
considered this aspect. On such argument, it is contended that the writ application should be allowed and the order of disqualification
should be quashed.
Having heard learned counsel and learned Senior Advocates appearing for the parties, this Court is of the considered opinion that the following
issues need to be addressed on an effective and proper adjudication of the writ petition. They are:
(i) Whether the word ""the"" appearing in Section 46-D (1) of Odisha Municipal Laws (Amendment) Act, 2015 prohibits with a
councillor from making a complaint before the Election Commission or this word should be interpreted as ''any'' councillor of the
concerned party can file complaint before the State Election Commission ?
(ii) Whether during the pendency of a no confidence motion, if an enactment is brought out by the Legislative Assembly, it affects the
vested right of any of the petitioners and whether the amending Act shall be made applicable to the pending proceedings ?
(iii) Whether there is a some malafide administration requiring the Court to intervene in the matter in view of the fact that the
Collector-cum-District Magistrate has acted contrary to reasonable procedure laid by fixing a date of holding the no confidence
motion on the requisition of the 9 councillors, after approximately, 37 days of issuance of notice by the Collector ?
(iv) Whether in this case the petitioners being 9 members of the Keonjhargarh Municipal Council belonging to the BJD party by
submitting a no confidence motion can take advantage of the saving clause or a split up a party constituting 2/3rd members of the
BJD councillors group.
The stand of the opposite party no.1 i.e. Government of Odisha in the Housing and Urban Development Department is that the essential
requirement of making such an amendment in the Municipal Laws is for providing stability to institution of local self-Government and ensure to
candidate selected with party support and on the basis of party manifesto loyal to the party discipline and strengthening urban local governance. In
this context, the opposite party no.1 relied upon the statement of objectives and reasons of the amending legislation. Though the amending
legislation, as notified, which has been in the Court, does not contain the statement of objectives and reasons as set out in the counter affidavit of
opposite party no.1, I am inclined to look into it only because no rejoinder affidavit has been filed by the petitioners to assert that the statement of
objectives and reasons as stated by the opposite party no.1 is wrong. So dealing with this aspect, it is appropriate to first take note of the exact
language used by the executive while introducing the bill in the legislative assembly, which reads as follows:.
STATEMENT OF OBJECTIONS ANDS REASONS
Parliament have passed the anti-defection of law in 1985 by the constitution (52nd Amendment) by inserting a schedule as tenth
schedule to the Constitution of India. The main intent of the law way to combat ""the evil of political defections"" and strengthen the
values of democracy.
The Elections to all the categories of Municipal Bodies like Municipal Corporations, Municipalities and N.A.Cs of the State are
being held in party lines as per Section-74 of the Odisha Municipal Corporation Act, 2003 and Section 10 of the Odisha Municipal
Act, 1950.
As per provisions of Section 54 of the Odisha Municipal Act, 1950 and Section 20 of the Odisha Municipal Corporation Act,
2003, no confidence against the Chairperson or the Vice Chairman or Mayor or Dy. Mayor can be moved after two years from the
date of his/her election respectively. Taking advantage of this provision many no confidence motions are being moved against the
Mayor or Deputy Mayor or Chair-persons or Vice Chair-persons once the wait period is over i.e. completion of two years of term
of office. This results in poor urban Governance due to lack of stability of the leadership. Many a time, the no confidence motion is
moved by Corporators/Councillors of the same party by switching over party affiliations.
It aims act providing stability to the institution of local self-Government by preventing shifts or party allegiance and ensures that
candidates were selected with party support and on the basis of party manifestoes remain loyal to the political parties and also
promote party discipline. The Municipal Bodies being third tier of Government require a better cohesion among the elected members
as they are at the cutting edge of service delivery platform. The intra party bickering affect the decision taking ability of the leader.
This results in poor urban governance due to lack of stability of the leadership.
For strengthening the urban local governance, now it is proposed to provide for necessary legal provisions for prohibition of
defection of elected members of ULBs from the political parties by which they were up as candidates. It is necessary to disqualify
such elected members subject to certain exceptions i.e. in the case of a merger or split.
Therefore, it is considered expedient and accordingly proposed to prohibit defection of elected councillors of a Municipal Council
and Corporators of Municipal Corporation from the parties by which they were set up as candidates by suitable amending the Odisha
Municipal Act, 1950 and Odisha Municipal Corporation Act, 2003 respectively.
The Bill seeks to achieve the above objectives.
It is apparent from the statement of objectives and reasons that the basis purpose of laying down such an Act of amendment in the legislature is
to enact laws to prevent defections, akin to the 10th Schedule to the Constitution (52nd Amendment). The basic purpose of the enactment of the
Act is to combat the evils of political defections. The exact provisions, which are most relevant in this case, are the amended provisions of Sections
46-A, B, C and 46-D of the Odisha Municipal Act, 1950. Section 46-A of the Odisha Municipal Act as amended provides for disqualification on
the ground of defection. It is borne out from the Clause (b) of Sub-Section (1) of Section 46-A of Chapter IV-A of the aforesaid Act that if a
councillor votes or abstains for voting in, or intentionally remain absent from, any meeting of the municipality on its election of chairperson or vice
chairperson or vote of no confidence under Section 54, contrary to any direction issued any political party to which he belongs or by any person or
authority authorised by such political party in his behalf, without obtaining, in either case, the prior permission of such party, person or authority and
such voting, abstention or absence has not been condoned by such political party, person or authority, as the case may be, within fifteen days from
the date of voting, abstention or absence shall be disqualified being such a councillor. In the explanation to such Sub-Section (1), at Clause (a), it is
provided that a person elected as a councillor shall be deemed to belong to the political party, if any, by which he was set up as a candidate for
election of such councillor. Sub-clause (b) is not relevant for the purpose of the case. Section 46-B of the aforesaid Act provides for
disqualification not to be applicable to the case of split. Section 46B also provides that where a councillor making a claim that he or any other
councillor of his political party constitute the group representing a faction, which has arisen as a result of split of political party and such group
consists two-third of the members, he shall not be disqualified under sub-Section (1) of Section 46-A on the ground that he voted or abstained for
voting contrary to any direction issued by the political party. Similarly Section 46-C provides for disqualification not to apply in case of merger.
This Section is not relevant for the purpose of case. Section 46-D is the most important Section, which needs careful examination. This Court finds
it appropriate to quote the exact words used.
46D. Decision as to disqualification on the ground of defection, (1) A complaint that a Councillor has become subject to the
disqualification under section 46A, may be made by the Councillor or political party to the Election Commission,-
(a) in a case failing under clause (a) of sub-section (1) of section 46A, within fifteen days from the date the Councillor gives up the
membership of his political party;
(b) in a case falling under clause(b) of sub-section(1) of section 46A within fifteen days after expiry of period of fifteen days as
specified therein;.
(c) in a case falling under sub-section (2) of section 46A, fifteen days after he joins the political party.
(2) Where complaint is received under sub-section (1), the Election Commission shall decide the question of disqualification within
thirty days from the date of such receipt and his decision shall be final.
Lying emphasis on the word ""the"" appearing in Section 46-D (1), as noted earlier, Mr. A.P. Bose, learned counsel for the petitioners argued
that there is the use of ''a'' councillor in the amending Act and there is also use of ''he'' in Clause (b) of Section 46-A(1) and, therefore, contents
that the statute should be given a literal interpretation and only the councillor, who has become disqualified can maintain a complaint before the
election commission of the State.
On the other hand, the learned Addl. Government Advocate, Mr. Pitambar Acharya and Mr. Milan Kanungo, Senior Advocates and
Mr. Asim Amitav Das, learned counsel appearing for the opposite party no.5 submit that if such interpretation is adopted the very
purpose for which this enactment has been brought out, introducing such an amendment will be frustrated as the petitioners, who have
themselves become disqualified will never come forward against themselves to declare them as persons disqualified. Mr. Bose, on the
other hands, submits that the purpose of the Act will not be frustrated as it is the councillor himself, who has disqualified ''or'' the
political party may file complaint before the Election Commission. The law regarding this aspect has to be considered very carefully.
The 12th edition of Maxwell on interpretation of Statute in Chapter-2 provides for general principles of interpretation. In Chapter-2,
1st paragraph itself in the locus classicus lays down the principle of the primary rule of interpretation i.e. literal construction. It is apt to
take note of the exact description by Maxwell. It reads as follows:
The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are
used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases
and sentences are to be constructed according to the rules of grammar. ""The length and detail of modern legislation,"" wrote Lord
Evershed M.R., ""has undoubtedly reinforced the claim of literal construction as the only safe rule."" If there is nothing to modify, alter
or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and
sentences. The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if
possible at their meaning without, in the first instance, reference to cases.
The rule of construction is ""to intend the Legislature to have meant what they have actually expressed."" The object of all interpretation
is to discover the intention of Parliament, ""but the intention of Parliament must be deduced from the language used,"" for ""it is well
accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.
Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. ""The decision in this
case,"" said Lord Morris or Borth-y-Gest in a revenue case, ""calls for a full and fair application of particular statutory language to
particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in
reaching a decision."" Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the
legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a
statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient: words are not
to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should
not be embraced or excluded. The duty of the court is to expound the law as it stands and to ""leave the remedy (if one be resolved
upon) to others.
However, Maxwell in the later section of the same Chapter-2 has dealt with the other main principles of interpretation. At paragraph-
40, the mischief rule has been explained. This mischief rule has also become popular as the Heydon''s Rule has been adopted by the
Hon''ble Supreme Court while discussing the so called contradictions between the Order XVIII Rule 4 and Rule 5 of the Code of
Civil Procedure, 1908, in the case of Ameer Trading Corporation Ltd., vs. Shapoorji Data Processing Ltd., AIR 2004 SC 355, in a
corum of three judges, the judgment rendered by Hon''ble Shri Justice S.B. Sinha, as His Lordship the then. In paragraph-21 of the
aforesaid judgment, the Hon''ble Supreme Court has held that in a situation of this nature, the doctrine of suppression of mischief rule
as adumbrated in Heydon''s case (3 Co. Rep. 7a, 76 ER 637) was applicable. Such an amendment was made by the Parliament
consciously and full effect thereto must be given. The Hon''ble Supreme Court has held that while considering whether there is any
contradiction between Rule 4 & Rule 5 of Order XVIII of the Code, Rule 5 refers to the evidence which is required to be taken in
cases where the appeal is allowed in contradistinction with cases where the appeal is not allowed as envisaged in Rule 13 of Order
XVIII of the Code. Rule 5, therefore, invites a situation where the Court is required to take down evidence in the manner laid down
which would mean that crossexamination or re-examination of the witness is to take place. Rule 4, on the other hand, provides that
every case in the examination-in-chief of witnesses shall be filed on an affidavit and the Rule 5 provides that evidence should be
recorded under the direct superintendence of a Judge in seisin of the matter. In order to resolve this apparent conflict, the Hon''ble
Supreme Court in the aforesaid case took into consideration the Heydon''s Rule as described above. At paragraph-22 of the said
judgment, the Hon''ble Supreme Court has quoted Halsbury''s Laws of England, volume 44 (1), fourth reissue, para 1474, PP 906-
07, which reads as follows:
Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that parliament intends that the
Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds
to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief.
The doctrine originates in Heydon''s case where the Barons of the Exchequer resolved that for the sure and true interpretation of all
statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and
considered:
(1) what was the common law before the making of the Act:
(2) what was the mischief and defect for which the common law did not provide:
(3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth: and
(4) the true reason of the remedy,
and then the office of all the judges is always to make such construction as shall:
(a) suppress the mischief and advance the remedy: and
(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and
(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good).
It is also seen from the aforesaid judgment that the Heydon''s Rule has been applied by the Hon''ble Supreme Court in large number of cases in
order to suppress the mischief which was intended to be remedied as against the literal rule which could have otherwise covered the field. For
example, Smt. Pek Kalliani Amma and others vs. K. Devi and others, (AIR 1996 SC 1963); Bengal Immunity Co. Ltd., v. State of Bihar and
others, AIR 1955 SC 661; and Goodyear India Ltd. v. State of Haryana and Another, AIR 1990 SC 78. In view of such settled principles of law,
it is the duty of the Court to examine the amending legislation, whose interpretation is before this Court. Coming to the 1st requirement, it is seen
that the common law before the amending Act i.e. Odisha Municipal Act, 1950 had no provision for any disqualification of a person, who indulge
in defections or horse trading etc. and defy the directions given by the political party though they have got elected because of principles and
policies the party follows. The common law before the making of the Act was that any elected person representing in the ward or council of
Municipal Corporation had no obligation towards the directions given by the political party, which he represents. The 2nd limb is that the legislative
assembly of the State of Odisha had resolved and appointed to cure the disease or defect, those appear from the statement of objectives and
reasons of the aforesaid Act, which is quoted earlier and from the discussions in the Assembly, the copy of which is placed during the arguments,
while passing of the Act in the legislative assembly shows that all members of the legislative assembly cutting across the party line wanted such a
prohibition of voting or acting contrary to the directions given by the party should be remedied or should be done away with. Fourthly, the true
reason of the remedy is to provide stability to the institution of local self-Government and to ensure candidate elected with party support and
manifestoes loyal to the political party, promote party discipline and strengthen local urban governance. It is common knowledge that defections,
horse trading etc among elected representative of the different institutions like the Parliament, the legislatures or the Municipal Corporations
Council etc is a modern day malady to avoid this mischief, the Parliament has already enacted by virtue of 52nd Amendment in the year, 1985 the
anti-defection law and it has been added in Schedule-10 to the Constitution. So any interpretation, which will suppress the mischief and advance
the remedy, suppress the subtle invention and evasion for continuance of the mischief for the private benefit and to add force and life to the cure
and remedy according to true intent of the makers of the Act for public good should be adopted.
If Mr. Bose''s argument is accepted, then the very objective of introducing such an amendment will be frustrated. Firstly, no councillor, who
has gone against the party directions will come forward and file an application before the Election Commission to disqualify himself. The argument
advanced by the learned counsel for the petitioners is that similar provisions of the representative having doubt about his disqualification also
appears in different provisions of the Orissa Grama Panchayat Act. However, while interpreting this provision only because the political party has
the right to maintain a complaint before the Election Commission, the right to maintain an application before the Commission by the person, who
has defied direction of the political party will frustrate very purpose of the Amending Act and it shall not be in the interest of suppression of the
mischief and advance remedy for non-continuance of the mischief for private benefit and to add force and life to remedy according to the true
intent of the makers of the Act for public good. In my considered view, the word ""the"" appearing in Section 46-D is in fact should be read as ""any
thereby giving liberty to any of the councillors of any Municipal Corporation of a council to maintain an application before the Election Commission
regarding the disqualification of certain members, who do not come within the exception for disobeying the party directions. Accordingly, I hold
that the opposite party no.5-Mina Majhi can maintain a complaint before the State Election Commission and on that ground, this Court is not
willing to quash the order impugned.
The second important aspect of the case is that admittedly while this Act came into force, the process of no confidence motion has already
been started and in this connection, it is argued at length by both the sides about the applicability of the Act to any proceedings. In this connection,
in the reported case of Zile Singh v. State of Haryana and others, (2004) 8 SCC, the Hon''ble Supreme Court having a corum of three Judges
regarding the retrospective action of Haryana Municipal Act, 1973, as amended by Haryana Municipal Act 15 of 1994, has taken note certain
portion of ""The Principles of Statutory Interpretation"" by Justice G.P. Singh (9th addition, 2004 at page-438), at paragraph-13 of the aforesaid
Judgment. In view of the approval of the Hon''ble Supreme Court all the commentaries made by Justice G.P. Singh in the locus classicus, this
Court feels it appropriate to take note of the commentary appearing in the general principles guiding the retrospective operation of statute. It
appears at the second heading i.e. appearing in Sub-heading (ii), page 474, Chapter-6 Synopsis-2 deals with statute dealing with substantive right.
It is quoted below:
(ii) Statutes dealing with substantive rights. - It is a cardinal principle of construction that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the
object of the statute is to affect vested right or to impose new burdens or to impair existing obligations. Unless there are words in the
statute sufficient to show the intention of the Legislature to affect existing rights, it is ""deemed to be prospective only ''nova constitutio
futuris formam imponere debet non praeteritis. In the words LORD BLANESBURG, ""provisions which touch a right in existence at
the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. ""Every
statute, it has been said"", observed LOPES, J.J., ""which takes away or impairs vested rights acquired under existing laws, or creates
a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be
intended not to have a retrospective effect. As a logical corollary of the general rule, that retrospective operation is not taken to be
intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a
statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In
other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity
intended by Parliament. But if the literal reading of the provision giving retrospectivity produces absurdities and anomalies, a case not
prima facie within the words may be taken to be covered, if the purpose of the provision indicates that the intention was to cover it.
The inhibition against retrospective construction is not a rigid rule and must vary secundum materium. It has been said that ""the basis
of the rule is no more than simple fairness which ought to be the basis of every legal rule.
It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may
be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of
the community as a whole.
The rule against retrospective construction is not applicable to a statute merely ""because a part of the requisites for its action is drawn
from a time antecedent to its passing"". If that were not so, every statute will be presumed to apply only to persons born and things
come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is,
therefore, not retrospective merely because it applies also to those to whom pre-amended Act was applicable if the amended Act has
operation from the date of its amendment and not from an anterior date. But this does not mean that a statute which takes away or
impairs any vested right acquired under existing laws or which creates a new obligation or imposes a new burden in respect of past
transactions will not be treated as retrospective."" Thus to apply an amending Act, which creates a new obligation to pay additional
compensation, or which reduces the rate of compensation, to pending proceedings for determination of compensation for acquisitions
already made, will be to construe it retrospective which cannot be done unless such a construction follows from express words or
necessary implication. Similarly, a new law enhancing compensation payable in respect of an accident arising out of use of motor
vehicle will not be applicable to accidents taking place before its enforcement and pending proceedings for assessment of
compensation will not be affected by such a law unless by express words or necessary implication the new law is retrospective. It
makes no difference in application of these principles that the amendment is by substitution or otherwise. The cases where the
principle, that a statute is not retrospective simply because it takes into account past events has been applied are discussed hereinafter
under titles 2(g) and 2(h).
In certain cases, a distinction is drawn between an existing right and a vested right and it is said that the rule against retrospective
construction is applied only to save vested rights and not existing rights. This distinction, however, has not been maintained in other
cases. The word ''retrospective'' has thus been used in different senses causing a certain amount of confusion. The real issue in each
case is as to the scope of particular enactment having regard to its language and the object discernible from the statute read as whole.
Thus, this commentary of Justice G.P. Singh is based on different rulings of the Hon''ble Supreme Court and some other judgments. Note of
this author appears at the last paragraph of this exposition. It is apparent from the afore-quoted paragraph-C (iii) in certain cases Hon''ble
Supreme Court as well as our Courts has held that in a situation where an Act is passed during pendency of a proceeding, it depends on the facts
of the case as to whether it would be applied to that particular pending proceeding or not. In case of vested interest, some court has held that it
should not be affect right of the parties when the proceedings are already pending.
Part IX-A of the Constitution of India provides for the Municipalities. Article 243-Q provides for constitution of Municipality. Article 243-R
provides for composition of Municipality. It is provided that save as provided in clause (2), the seats of municipality shall fulfill by the persons
chosen by district election from the territorial constituency in the municipal area and for this purpose, each municipality shall be shall be provided
territorial constituency to be known as wards. Clause (2) provides that the legislature of a State may, by law, provide for representation of the
municipality of (i) person having special knowledge or experience in Municipal administration; (ii) member of the house of the people and the
member of the State representing constituency, which comprise wholly or partly the municipal area; (iii) member of the council or State and the
member of the State Legislative Council of the State registered as elector within the municipal area; (iv) Chairman of the committee constituted
under clause (5) of Article 243-S. Article 243-S provides for constitution and composition of wards committees etc. Article 243-T provides for
reservation of seats. For the purpose of this case, Article 243-U is very important, which provides for duration of municipality. It is appropriate to
take note of the exact provision. The same is quoted hereunder.
243-U. Duration of Municipalities, etc - (1) Every Municipality, unless sooner dissolved under any law for the time being in force,
shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level,
which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed -
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution :
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it
shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the
remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved.
Thus, it is apparent from this provision of the Constitution that every municipality, unless dissolved under any law for time being in force, shall
continue for five years from the date appointed. In other words, the municipality, which constitutes of councillors, shall continue for a period of at
least 5 years unless it dissolved under any law in force at that time. Similar provisions appear in the Odisha Municipal Act, 1950. Section 41 of the
Act provides for term of office of the councillors. It is appropriate to take note of the exact provision.
Term of office of Councillors- [(1) Save as otherwise provided in this Act-
(i) a Councillor whether elected at a general election, or nominated, to a Municipality shall hold office for five years from the date
appointed for the first meeting of the Municipality as referred to in Clause (a) of Sub-section (2) of Section 47;
(ii) a Councillor elected at a bye-election or elected or nominated against a casual vacancy in a Municipality shall hold office for the
unexpired period of the term of office of the Councillor in whose place he has been so elected or, as the case may be, nominated.
(2) An outgoing Councillor, if otherwise qualified, shall be eligible for re-election.
(3) Whenever the number of Councillors of an existing Municipality is increased as a result of increase in the number of Wards
thereof, the Additional Councillor or Councillors elected for the purpose shall, save as otherwise provided, continue till the expiry of
the term of office of the other Councillors of the Municipality as provided in Sub-section (1)].
Thus, it is apparent from this constitutional scheme as well as the Act itself that every councillor has a right to continue for five years once
elected. Thus, any law that affects such right must be prospective in operation. Though it cannot be termed as vested right, it can be termed as a
right guaranteed under the Constitution. Thus, in a situation, where the councillor has a right to continue for five years and as per the provisions of
Section 54 of the said Act, he along with others claims for a vote of no confidence motion against the Chairman under Section 54 of the Odisha
Municipal Act, any provision limiting such right of the councillors shall be held only to be prospective and it cannot be held to be applicable to a
proceeding already initiated for no confidence at the time of passing of the Act in the legislature. Thus, this Court is of the opinion that in view of the
commentary of Justice G.P. Singh''s ""Interpretation of Statute"", the amending Act cannot be held to be retrospective in operation in the sense that it
shall not be applicable to any action taken under the statute, especially under Section 54 of the Odisha Municipal Act having regard to its language
and objectives discernible.
Viewing from another aspect of the case, this Court takes note of certain dates. It is recorded chronologically as follows:
On 12.08.2013, notification was issued for the elections of Municipal Corporation and notified area council elections were scheduled
to be held on 19.09.2013 i.e. after a gap of 37 days. On 30.09.2013, the Chairperson was elected. On 09.11.2015, the resolution
adopted by the petitioners to bring a no confidence motion against the opposite party no.5- Mina Majhi. The same was submitted to
the Collector-cum-District Magistrate, Keonjhar on 12.11.2015. On 21.11.2015, the Collector decided to hold the special session
of the municipal council on 28.12.2015. Thus, the meeting was scheduled to be held after a gap of 37 days. In the interregnum, on
18.12.2015, the 2nd Amendment was notified and it came into force w.e.f. 19.12.2015. On 23.12.2015, the whip was published in
paper. The Rules were published on 09.01.2016 and it was published in the Official Gazette on 14.01.2016. The complaint has been
filed on 05.01.2016 before the Election Commission by the opposite party no.5. Though the petitioners have averred at paragraphs
6, 7 and 8 that they have approached opposite party no.3 to fix an early date for holding meeting for no confidence motion, the
meeting was fixed on 28.12.2015, which is more than a month of date of notification. Clause (c) of Sub-Section (2) of Section 54 of
the Odisha Municipal Act, 1950 provides that within 10 days of receipt of such requisition, the date should be fixed and at least three
clear days notice should be given. In this case, it is noticed that though the petitioners have claimed that the ruling party in order to foil
of the bid to bring out a ''no confidence motion'' against the opposite party no.5 has brought out this amendment of the Odisha
Municipal Act, 1950. From the copy of the discussion held in the Orissa Legislative Assembly, it is apparent that all the parties have
supported the amendment. So, it cannot be said that the ruling party had only the objective of foiling the efforts of the petitioners to
bring out a no confidence motion against the opposite party no.5. However, this Court is of the opinion that the action of the opposite
party no.3 in fixing the date of the special session of the council after 39 days of the production of resolution and requisition creates a
doubt in the mind of the Court. It is noted that election commission had specified the date of election after 37 days of notification. In
such a situation, it appears to the Court that the action of the Collector in scheduling the special session of the municipal council for
considering ''no confidence motion'' against the opposite party no.5 after almost 37 days of receipt of requisition is patently
unreasonable. In this case, the opposite party no.3 though has filed a counter affidavit through Executive Officer has not denied the
allegations made in the writ application nor he has given any reasons for this unduly delayed date of the special session of the council.
If the opposite party no.3 had taken pains to follow the statute and given a reasonable date giving three clear days or would have
given notice fixing date within seven to ten days, this difficulty would not have been arisen and the issue of this anti-defection law in
the municipal law would not have been attracted to this case. So, keeping this aspect in mind i.e. right of the councillors to continue
for five years, which has a right recognized by the Constitution of India as well as the Odisha Municipal Act, 1950 as well as the
action of the opposite party no.3 in fixing the date after a considerable length of time i.e. 37 days from the date of requisition, this
Court is of the opinion that the amending Act is not applicable to the present case and the petitioners cannot be declared to be
disqualified only on the ground of defying the whip or direction given by the party. On this score alone, the writ application is bound
to succeed.
However, there is another aspect of the case which this Court considers necessary to discuss. It is apparent from the record that the amending
Act i.e. Orissa Municipal Laws (Second Amendment) Act, 2015 consists of three Chapters. Chapter-I is the preliminary Chapter. Chapter-II
relates to amendment to the Odisha Municipal Corporation Act, 2003. Chapter-III consists of two sections i.e. Sections 4 and 5. Section 4
provides for amendment of Section 17 of the Odisha Municipal Act, 1950 and Subsection (2) has been inserted in the provision that a councillor
shall cease to hold office, if he was disqualified under the provisions contained in Chapter IVA of the Act.
Section 5 of the aforesaid Act provides for insertion of Chapter- IV-A with the holding disqualification on the ground of defection.
The 1st Section to be introduced is Section 46-A, which provides for disqualification on the ground of defection. The same has been
discussed earlier. Section 46-B of the aforesaid Act has been inserted for saving disqualification in cases of split. Section 46-B needs
to be taken into consideration and it is apt for this Court to quote the same.
46B. Disqualification not to apply in case of split- Where a Councillor makes a claim that he and any other Councillors of his
political party constitute the group representing a faction which has arisen as a result of a split in his political party and such group
consists of not less than two-thirds of the members of such political party, -
(a) he shall not be disqualified under sub-section (1) of section 46A on the ground,-
(i) that he has voluntarily given up his membership of his political party; or
(ii) that he has voted or abstained from voting in, or intentionally remained absent from, any meeting of the Municipality in an election
of its Chairperson, Vice- Chairperson or a vote of no confidence under section 54, contrary to any direction issued by the political
party to which he belongs or by any person or authority authorised by such political party in this behalf, without obtaining in either
case, the prior permission of such political party, person or authority and such voting, abstention or absence has not been condoned
by such political party, person or authority as the case may be, within fifteen days from the date of voting or such abstention or
absence; and
(b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purpose of sub-
section (1) of section 46A and to be his political party for the purpose of this section.
Section 46-C of the aforesaid Act provides for disqualification shall not be applied in case of merger. It is not relevant in this case.
Section 46-D provides for decision as to disqualification on the ground of defection shall be taken by the election commission on a
complaint filed before it. Section 46-E provides for notwithstanding anything contain any Court shall have jurisdiction in respect of
matters under the Chapter. Thus, there is only provision, which is appearing regarding the split and non-applicability of disqualification
in the cases of split. Section 46-B has been newly inserted in the Act. It provides that where councillor makes a claim that he or his
political party constitute the group representing a faction which has arisen as a result of split in the political party and such group
consists of not less than two-third of the political party, (a) he shall not be disqualified under sub-section (1) of Section 46-A on the
ground that he has voluntarily given up membership of political party or that he has intentionally remained absent from any meeting of
the municipality in an election of its Chairperson or Vice-chairperson or a vote of no confidence under Section 54, contrary to any
direction issued by the political party to which he belongs. Thus, in case the councillor constitutes a group, which constitute 2/3 of the
members of such political party in the council, then the disqualification regarding defection will not be applicable. This Court takes
note of the fact that except this right of a split, no provision has been made in the amending Act regarding the procedure to be
followed in case of split. In other words, no provision is there in the Act itself as to how a councillor shall stake his claim and before
whom he shall stake his claim regarding a split in a political party in the council. The Rules framed under Section 387 of the Act also
do not have prescribed any such procedure for enforcing right of split a political party by virtue of a 2/3 split in the political party in
the council. There is no dispute that Keonjhargarh Municipality consists of 21 wards and the councillor elected with the party symbol
of the Biju Janata Dal and elected to municipal council are 14 in numbers. 2/3 of 14 comes to 9.32, by approximation it comes to 9,
because any faction which is less than 0.5 will be calculated to the next lower number and any faction of 0.5 or above will be counted
as next higher number. In other words, 9 councillors, therefore, consist 2/3 of the 14 numbers of total representatives of the B.J.D. in
the council. This Court is of the opinion that there is a split of the B.J.D. Keonjhargarh Municipal political party. This aspect was
specifically raised by these petitioners in their counter before the Election Commission but the learned Election Commission has not
given any findings on this aspect. This Court is of the opinion that since there is a split amounting to 2/3 of the total representatives of
the BJD in the council, the petitioners shall be saved by such exception as provided under Section 46-B as this is a case of split. This
Court is also conscious of the fact that the petitioners have not claimed before the Collector-cum-District Magistrate or any other
authority that there has been a split as by then the Act has not come into force. Secondly, the Act and the Rules do not provide any
procedure to claim a case of split. The Rules also do not provide any procedure for claiming split and they have in the instant case
raised this point before the State Election Commission. So, in the alternative, the action of the petitioners shall be saved under Section
46-B of the Odisha Municipal Act and their action in attending the ''no confidence motion'' contrary to the directions given by the
political party would not make them disqualified from continuing as the councillors of the Keonjhargarh Municipal Council.
In view of the aforesaid detailed discussion, this Court is of the opinion that the order passed by the learned State Election Commission i.e.
Annexure-1 dated 19.02.2016 fails the judicial scrutiny and it cannot be allowed to be stand.
Accordingly, the writ application is allowed. The order passed by the learned State Election Commission on 19.02.2016 in Complaint Case
No.1 of 2016 i.e. Annexure-1 is hereby quashed. But, the order of the learned State Election Commission, as far as it relates to the observation
that the opposite party no.5 shall be deemed to have been vacated the office of the Chairperson of Keonjhargarh Municipal Council is concerned,
shall remain unaffected. It is further declared that the petitioners are not disqualified from being the members of the Keonjhargarh Municipality
under Section 46-A (1)(b) of the Odisha Municipal Act, 1950 as amended by the Odisha Municipal Laws (Second Amendment) Act, 2015 and
they shall continue to represent their wards in the municipal council till end of their tenure. There shall be no orders as to costs.
Urgent certified copy of this order be granted as per rules.