The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 26627 of 2024 Kusum Deep Petitioner Mr. S. Palit, Senior Advocate …. -Versus- State of Odisha & another …. Opposite Parties Mr. B.K. Nayak, AGA Mr. A.P. Bose, Advocate for O.P.Nos. 7 to 14 CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 07.11.2024 02. 1. Heard Mr. Palit, learned Senior Advocate appearing for the petitioner and Mr. Nayak learned AGA for the State-opposite party Nos. 1 to 6 besides Mr. Bose, learned counsel for opposite party No. 7 to 14. 2. Instant writ petition is filed by the petitioner challenging the correctness, legality and judicial propriety of the impugned notice dated 19th October, 2024 issued by opposite party No.3 vis-à-vis a no confidence motion initiated against him scheduled to be held on 8th November, 2024 on the grounds stated therein. 3.
Legal Reasoning
submits that the observation of this Court in Debraj Mallika Vrs. The Collector reported in 1978(45) CLT 313, a subject matter of reference before the Full Bench was disapproved and it has been categorically held therein that the provision is directory in nature. It is further submitted that the minority view expressed in Sarat Padhi case with the interpretation to the expression ‘at least 15 days’ as appearing in Section 24(2)(c) of the Act though has been dealt with, the conclusion at the end is that a prejudice is shown to be caused to the petitioner as a result of short notice being received on 26th October, 2024. The sum and substance of the contention as Page 3 of 9 advanced by Mr. Bose, learned counsel is that two of the other conditions, such as, requirement of a notice and the margin of time besides service of notice to be mandatory but it shall have to be a period counted from the date of notice issued with the meeting for no-confidence motion to be held, otherwise, any such other interpretation would frustrate the very exercise which has so been held by the Full Bench of this Court in Sarat Padhi(supra). 5. Mr. Nayak, learned AGA for the State corroborates and supports the contention of Mr. Bose, learned counsel for the private opposite parties and submits that there has been no illegality committed in the issuance of notice and the same having been served on 26th October, 2024, there is due compliance of Section 24(2)(a) & (c) of the Act, hence, the writ petition at the behest of the petitioner is liable to be dismissed allowing the vote of confidence to take place on the scheduled date. 6. For better appreciation, it is profitable to quote the extract of the relevant provisions, such as, Section 24(1) &(2) of the Act and the same is reproduced herein below; “24. Vote of no confidence against Sarpanch or Naib- Sarpanch: (1) Where at a meeting of the Grama Panchayat specially convened by the Sub-divisional Officer in that behalf, a resolution is passed, supported by a majority of not less than two-thirds of the total membership of the Grama the Panchayat, regarding want of confidence Sarpanch or Naib-Sarpanch, shall forthwith be forwarded by the Sub-Divisional Officer to the Collector, who shall immediately on receipt of the resolution publish the same on his notice board and with effect from the date of such publication, the member holding the Office of Sarpanch or the Naib- resolution the in Page 4 of 9 Sarpanch, as the case may be, shall be deemed to have vacated such Office. (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 such rules, as may be prescribed, 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 membership of the Grama Panchayat along with a copy of the resolution proposed to be moved at the meeting; (b) XXX XXX (c) the Sub-Divisional Officer on receipt of such requisition shall fix the date, hour and place of such meeting and give notice of the same to all the members holding Office on the date of such notice along with a copy of the requisition and of the proposed resolution, at least fifteen clear days before the date so fixed; (d) the aforesaid notice shall be sent by post under Certificate of posting and a Copy thereof shall be published at least seven days prior to the date fixed for the meeting in the notice-board of the Samiti; (e) the proceedings of the meeting shall not be invalidated merely on the ground that the notice has not been received by any member; (f) XXX XXX (g) XXX XXX (h) no such meeting shall stand adjourned to a subsequent date and no item of business other than the resolution for recording want of confidence in the Sarpanch or Naib-Sarpanch, as the case may be, shall be taken up for consideration at the meeting; (i) if the number of members present at the meeting is less than two-thirds of the total membership of the Grama Panchayat, the resolution shall stand annulled; (j) if the resolution is passed at the meeting supported by the majority as specified in Sub-Section(1), the Page 5 of 9 Presiding Officer shall immediately forward the same in original along with the record of the proceedings to the Collector who shall forthwith publish the resolution in accordance with the provisions of Sub-Section (1); and (k) XXX XXX.” 7. In so far as the requisition is concerned as at Annexure-3, there is no denial to the fact that it has been at the instance of the Members in favour of the vote of confidence. The only grievance of the petitioner against it is that such requisition has not been accompanied with a copy of the resolution. On a bare reading of Annexure-4, the Court finds that along with the requisition, the proposed resolution was dispatched to the petitioner, which is said to have been received by him on 26th October, 2024. Mr. Palit, learned Senior Advocate for the petitioner alleges that notwithstanding any such claim with reference to the impugned notice i.e. Annexure-4, the fact remains, the petitioner was never served with a copy of the resolution being sent with the requisition i.e. Annexure-3 but the Court is not in agreement with such a plea for the fact that the same stands negatived by Annexure-4. In fact, in course of hearing, this Court had directed the State by an order dated 6th November, 2024 to file an affidavit through opposite party No.3 with regard to issuance of notice along with requisition, whether, was accompanied with a copy of the proposed resolution, which has been duly complied with. The opposite party No. 5 has filed the affidavit today stating therein that a copy of the resolution duly attested was sent along with the requisition while impugned notice was issued. Such affidavit dated 7th November, 2024 filed by opposite party No. 5 is accepted and taken on record. Along with the said affidavit, relevant documents have been furnished for perusal of the Court to show and satisfied that a copy of the Page 6 of 9 resolution was in fact sent along with the requisition and was ultimately served on the petitioner. Besides the above, the private opposite parties obtained information under the RTI Act and the same is produced in Court with an affidavit sworn by opposite party No.10 again to convince the Court that there has been due compliance with the sending of a copy of the proposed resolution with Annexure-3. As against the matters brought to the notice of the Court with the affidavits filed by opposite party No.5 and opposite party No.10, the Court, on an overall assessment and keeping in view the plea advanced from the side of the petitioner, reaches at a conclusion that there has been compliance of Section 24(2)(c) of the Act. The said fact is also verified from the impugned notice i.e. Annexure-4, hence, there is no escape from the conclusion that the petitioner was issued with the impugned notice on the basis of a requisition received along with a copy of the proposed resolution. 8. In so far as prejudice aspect is concerned, there is nothing on record to suggest that the petitioner was ever subjected to after having received the impugned notice i.e. Annexure-4 on 26th October, 2024. Of course, in Nilambar Majhi (supra), it has been held by this Court that prejudice is to be established. In the said decision, the authority of the Full Bench of this Court in Sarat Padhi has been referred to. In the facts and circumstances of the case therein, since the notice was signed on 13th May, 2005 and was issued on 16th May, 2005, in absence of clear fifteen days notice in view of Section 24(2)(c) of the Act, it was held that the exercise is invalid. A distinction sought to be made by Mr. Bose, learned counsel for the private opposite parties that in the present case, no real prejudice has been caused to the petitioner for the fact that he was made aware of the vote of confidence to be held on 8th Page 7 of 9 November, 2024 and that apart, effort was made to ensure such service of notice on 23rd October, 2024, 24th October, 2024 as well as 25th October, 2024 and at last, it could be served on 26th October, 2024. The contention is that the notice was issued on 19th October, 2024, the date on which, it was dispatched so revealed from Annexure-4, hence, the exercise having been initiated on 19th October, 2024 itself, no case of prejudice is proved and the decision in Nilambar Majhi(supra) is, therefore, clearly distinguishable. The Court is inclined to accept the contention of Mr. Bose, learned counsel for the private opposite parties since because in Nilambar Majhi (supra), there was a delay of three days in dispatching the notice, hence, was the prejudice, however, it is not the case vis-à-vis the petitioner, as the notice was signed on 19th October, 2024 and immediately dispatched on the same day. The point on prejudice as has been raised by Mr. Palit, learned Senior Advocate was also taken cognizance of by this Court in Nirakar Sethi Vrs. State of Odisha & others 2022 (I) OLR 377, wherein, it has been held that no confidence motion would stand vitiated only if the prejudice is shown to have been caused and proved. Having regard to the plea of the petitioner with respect to the shortage of notice and the exercise undertaken on the vote of confidence with the notice dated 19th October, 2024 signed and dispatched on 19th October, 2024 and the fact that the motion was well within the knowledge of the petitioner, he having received such notice on 26th October, 2024, being alive to the settled legal position discussed hereinabove, the Court is not inclined to hold that the notice as such to be invalid. Regard being had to the settled law that fifteen days notice is necessary from the date of notice being signed and dispatched irrespective of any such service of the same on the delinquent Sarpanch or Naib-Sarpanch, as the case may be, anytime within a Page 8 of 9 period of less than fifteen days from the date of meeting to be held, it shall not be vitiated, the irresistible conclusion is that impugned notice under Annexure-4 having been issued on 19th October, 2024, the statutory mandate of at least fifteen days before the motion to be held has been duly complied with. With the discussions as aforesaid, the Court is of the final view that no case is made out for interference. 9. Hence, it is ordered. 10.
Arguments
Mr. Palit, learned Senior Advocate for the petitioner submits that since the petitioner registered a complaint with the local administration so revealed from Annexure-1 alleging misappropriation of fund by the Ex-Sarpanch, the vote of confidence has, therefore, been engineered at his instance. It is Page 1 of 9 submitted that the allegation so made therein regarding the defalcation of Government fund is the cause of action for the no confidence motion initiated with the issuance of impugned notice under Annexure-4. It is again submitted that the petitioner has all along been present in the previous meetings of the GP and the duly discharged the duties and responsibility assigned to him, which is clearly revealed from Annexure-2 series, therefore, to allege that he has defaulted in respect thereof, hence, lost the confidence, thus, the the motion with the impugned notice i.e. Annexure-4 issued is unjustified and grossly erroneous. The contention of Mr. Palit, learned Senior Advocate is that the requisition as at Annexure-3 is not accompanied with a copy of the proposed resolution, hence, there is non-compliance of the provisions of the Odisha Gram Panchayat Act, 1964 (hereinafter referred to as ‘the Act’) and in particular, Section 24(2)(a)& (c) thereof. It is further contended that there is no clear fifteen days allowed for the no-confidence motion to take place since the petitioner received the impugned notice i.e. Annexure-4 on 26th October, 2024, hence, the entire exercise in that regard stands vitiated. In support of such contention, Mr. Palit, learned Senior Advocate cited a decision of a Full Bench in Sarat Padhi Vrs. State of Orissa & others AIR 1988 Orissa 116. It is further submitted that the scheme of the notice contemplated under Section 24(2)(c) of the Act demands compliance of the requirements, such as, fixing the margin of time between the date of notice and meeting to be held with such notice being issued and served on all the Members. It is fairly admitted by Mr. Mr. Palit, learned Senior Advocate that such provision, as has been held by the Full Bench in the decision (supra) with respect to issuance of fifteen days’ notice as one of the conditions contemplated in Section 24(2)(c) of the Act, to be directory in nature. It is the contention that notwithstanding Page 2 of 9 the fact that the provision to be directory since because notice was received by the petitioner on 26th October, 2024, therefore, it has caused serious prejudice to him. At the same time, a decision of this Court in Nilambar Majhi Vrs. Secretary to Government of Orissa, Panchayati Raj Department & others 2005(II) OLR 659 is referred to satisfy the Court that prejudice has really been caused to the petitioner due to shortage of notice period to be complied with as per Section 24(2)(c) of the Act. Furthermore, Mr. Mr. Palit, learned Senior Advocate would submit that in so far as notice period as provided in Section 24(2(c) of the Act is concerned, even though held to be directory but in view of the notice being received on 26th October, 2024 and as against the backdrop of facts that the petitioner had represented the local administration with allegations of misappropriation of Government fund as per Annexure-1, a case of prejudice is clearly made to reveal and established, hence, therefore, the no confidence motion with such a notice as per Annexure-4 is to be declared as invalid. 4. Mr. Bose, learned counsel for opposite party Nos. 7 to 14, on the contrary, referring to the decision of Sarat Padhi (supra)
Decision
In the result, the writ petition stands dismissed. 11. In the circumstances, however, there is no order as to costs. 12. Urgent copy of this order be issued to Mr. Bose, learned counsel for the private opposite parties as per the rules and in course of the day since requested. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication kabita Location: OHC, Cuttack Date: 07-Nov-2024 17:56:21 Page 9 of 9