The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No. 24866 of 2024 Mitali Mishra ..... State Of Odisha & Ors. -versus- ..... Petitioner Mr. S.K. Dalai, Advocate Opposite Parties Mr. M.K. Balabantaray, AGA Mr. P.K. Mishra, Sr. Advocate along with Mr. A. Rout, Advocate (Opp. Party No. 6) Mr. B.K. Dash, Advocate (Opp. Party No. 8) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 04.10.2024 Order No. 02 1. This matter is taken up through hybrid mode. 2. Heard Mr. S.K. Dalai, learned counsel appearing for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State, Mr. P.K. Rath, learned Sr. Counsel appearing for Opp. Party No. 6 along with Mr. A. Rout and Mr. B.K. Dash, learned counsel appearing for Opp. Party No. 8. 3. The present writ petition has been filed inter alia challenging order dtd.25.09.2024 so passed by Opp. Party No. 2 under Annexure-1.Vide the said order in exercise of the power conferred under Sec. 26 of the Odisha Gram Panchayat Act, 1964 (in short Act), Petitioner was disqualified to hold the post of Sarpanch, Amankuda Gram Panchayat under Balipatna Panchayat Samiti and with a further direction to vacate the office of the Sarpanch with immediate effect. Page 1 of 4. 4. Learned counsel for the Petitioner contended that challenging the election of the Petitioner as Sarpanch of the Gram Panchayat in question, when a petition was filed before Opp. Party No. 2 seeking her disqualification, Petitioner was issued with the show-cause by Opp. Party No. 2 on 21.08.2024 under Annexure-2. It is contended that Petitioner on receipt of the show-cause submitted her reply on 24.08.2024 under Annexure-3. But on not being satisfied with the reply and basing on the letter issued by the Chief Construction Engineer, Lower Suktel Project, Bolangir on dt.30.08.2014 a fresh show-cause was issued to the Petitioner on 11.09.2024 under Annexure-4 asking her to file the reply within seven (7) days. 4.1. It is contended that on receipt of the 2nd show-cause notice on 13.09.2024, Petitioner made a request to allow her 15 days time to give her reply vide letter dtd.14.09.2024 under Annexure-5 series, duly acknowledged by Opp. Party No. 2. It is contended that without allowing the time as prayed for and even in absence of any rejection to such prayer, the impugned order was passed by disqualifying the Petitioner to hold the post of Sarpanch. It is contended that since in terms of the 2nd show-cause notice issued on 11.09.2024 Petitioner prays for two (2) weeks time to file her reply, which was never rejected, in absence of the same, the impugned order could not have been passed. It is accordingly contended that the impugned order is not sustainable in the eye of law. 5. Mr. P.K. Rath, learned Sr. Counsel appearing for Opp. Party No. 6 on the other hand contended that since while submitting the reply to the 1st show-cause issued on 21.08.2024 Petitioner admits that she was having a B Class Contractor licence, it amounts to admission and Petitioner entails disqualification in terms of the Page 2 of 4. provisions contained under Sec. 25(1)(n) of the Act. Sec. 25(1)(n) of the Act reads as follows:- “25(1)(n) is interested in a subsisting contract made with or in any work being done for the Grama Panchayat or the Samiti, or any Government except as a shareholder other than a Director in an incorporated company or as a member of a Co-operative Society; or” 5.1. It is contended that since the Petitioner admits to have B Class contractor licence in her favour and the Chief Construction Engineer vide letter dtd.30.08.2024 clearly indicated that Petitioner has executed 4 nos. of work and has received payment, no further show-cause was required to be issued to the Petitioner. But on coming across the letter issued by the Chief Construction Engineer regarding execution of 4 nos. of work, by utilizing the licence issued in favour of the Petitioner, which amounts disqualification in terms of the provisions contained under Sec. 25(1)(n) of the Act, the impugned show-cause was issued on 11.09.2024 under Annexure-4. It is accordingly contended that no illegality has been committed by the Collector in passing the impugned order dt.25.09.2024. 6. Learned Addl. Govt. Advocate also made similar submissions as made by the learned Sr. Counsel appearing for Opp. Party No. 6. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that challenging the election of the Petitioner as Sarpanch when application was moved seeking her disqualification, Petitioner was issued with the show-cause notice on 21.08.2024 under Annexure-2. Petitioner while submitting the reply under Annexure-3 though admits to have Page 3 of 4. been issued with the licence in question, but no admission was made that she has executed any work by utilizing that licence. 7.1. However, basing on the letter issued by the Chief Construction Engineer on 30.08.2014 so reflected in the 2nd show-cause, Petitioner was issued with the fresh show-cause on 11.09.2024 under Annexure-4. Petitioner as found from the record, prays for 15 days time to give her reply under Annexure-5 on 14.09.2024, which was duly acknowledged by the office of Opp. Party No. 2. As per the considered view of this Court on the face of such a prayer made by the Petitioner, which was never rejected, Petitioner should have been allowed with the time as prayed for. Since prior to expiry of 15 days the impugned order has been passed, this Court on that ground only is inclined to quash the order dtd.25.09.2024 so issued by Opp. Party No. 2 under Annexure-1. While quashing the same, this Court directs the Petitioner to submit her reply to the 2nd show- cause issued on 11.09.2024 by 25th October, 2024. However, prior to such submission of the reply, this Court directs Opp. Party No. 2 to provide copy of letter dtd.30.08.2024 so issued by the Chief Construction Engineer, Lower Suktel Project by 09.10.2024. 7.2. On receipt of the reply within the aforesaid time period, Opp. Party No. 2 shall take a lawful decision on the issue in accordance with law within a further period of four (4) weeks. Petitioner is directed to produce a copy of this order before Opp. Party No. 2 for compliance. 8. The writ petition is disposed of accordingly. (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Oct-2024 18:50:35 Sneha Page 4 of 4.