The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27995 of 2024 Krushnapriya Sahu …. Petitioner Mr. R. Behera, Advocate -Versus- State of Odisha and others …. Opposite parties Mr. P.K. Ray, AGA Mr. B. Mishra, Sr. Advocate CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 11.12.2024 Order No. 04. 1.
Legal Reasoning
Panchayats Act. It is well settled law that a procedure prescribed vis- (cid:224)-vis vote of confidence is to be held and concluded according to the provision of law. Furthermore, with regard to the decision in the case of Mamata Behera, the legal position is reiterated by concluding that if a statute provides the power to do a thing in a certain manner, the same must have to be done in that way and not otherwise. In fact, Mr. Behera, learned counsel for the petitioner with the above law decided in Mamata Behera submits that as the requisition has not been sent to the petitioner though he has received the notice, there is no compliance of Section 46-B of the Act as such. In fact, Mr. Mishra, learned Senior Advocate has brought to the notice of the Court with regard to an order in W.P.(C) No.26613 of 2024 as at Annexure-B to the IA to contend that pursuant to the direction issued therein by this Court, the notice was issued since the resolution as well as requisition had already been submitted to the concerned authority. It is submitted that despite a requisition submitted before opposite party No.3, as no action was taken in accordance with the Act, so therefore, the Ward Members concerned had to approach this Court in W.P.(C) No.26613 of 2024, in consequence whereof, there is compliance of Section 46-B Page 4 of 6 of the Act, hence, it has to be held that not only the notice and copy of the resolution was sent but it was accompanied the requisition. 9. Having regard to the reply of opposite party Nos.2 and 3 and as it is claimed that such notice was issued and in confirmity with Rule 2(b) of the Odisha Panchayat Samiti (Conduct of Business) Rules 1969 and the fact that the resolution as well as requisition have been signed by the Ward Members as made to reveal from Annexure-A/2 series followed by Annexure-B/2, which is with regard to such notice dated 9th November, 2024 being sent and served on the petitioner by post and that the notice is said to have been received, it is to be held that there has been due compliance of the provisions of the Act. 10. In fact, the requisition having been received from the Ward Members, opposite party No.3 accordingly proceeded pursuant to the Court’s order in W.P.(C) No.26613 of 2024 and ultimately, fixed a date for no confidence motion and having regard to the counter affidavit of opposite party Nos.2 and 3, the fact that the petitioner never objected to having received the notice not being accompanied with a copy of the requisition while receiving it or immediately thereafter, before the concerned authority, as a logical sequitur, it has to be held that there has been substantial compliance of Section 46-B of the Act and therefore, the Court is not inclined to interfere with the impugned notice. The above decision is reached at keeping view of the settled legal position and citations referred to by both the sides. 11. Hence, it is ordered. Page 5 of 6 12.
Arguments
Heard Mr. Behera, learned counsel for the petitioner, Mr. Ray, learned AGA for the State and Mr. Mishra, learned Senior Advocate for the intervenor in I.A. No.15689 of 2024. 2. Instant writ petition is filed by the petitioner challenging the impugned notice vide letter dated 9th November, 2024 as at Annexure-1 fixing the date for the special meeting to be convened on 18th November, 2024 vis-(cid:224)-vis the no confidence motion initiated against her on the grounds stated. 3. Mr. Behera, learned counsel for the petitioner submits that there is non-compliance of Section 46-B of Odisha Panchayat Samiti Act, 1959 (herein after referred to ‘the Act’), inasmuch as, a copy of requisition has not been sent along with the notice (Annexure-1) and resolution for the vote of confidence and therefore, the entire exercise is vitiated. The further contention is that the petitioner has at no point of time received a copy of the requisition though was Page 1 of 6 served with the notice, hence, therefore, the statutory mandate as required under law has not been complied with. That apart, the submission is that one of the signatories to the alleged resolution did not match as was verified later on, hence, therefore, an element of doubt has surfaced as to the credibility of the action in respect of which the requisition is said to have been received by opposite party No.3. With the above grounds and submission, Mr. Behera, referring the following decisions, such as, Prahallad Dalei Vrs. State of Odisha AIR 2014 Orissa 179 and Mamata Behera Vrs. State of Odisha and others 2020 (II) ILR Cuttack, 98 contends that the vote of confidence having not been initiated in accordance with the provisions of the Act, the impugned notice under Annexure-1 is liable to be quashed and as a necessary corollary, the motion at the behest of the Ward Members. 4. On the other hand, Mr. Ray, learned AGA for the State refers to the counter affidavit filed through opposite party Nos.2 and 3 to submit that there has been compliance of Section 46-B of the Act and while stating so, he refers to Annexure-A/2 series with a claim that a copy of the requisition was sent with the notice so made to reveal from Annexure-B/2. It is further submitted that such notice was issued accompanied with a copy of the requisition besides resolution received by the petitioner and as such, no objection was ever raised thereafter by filling objection or approaching the authority concerned. So, therefore, the submission is that with such a plea as to having not received a copy of the requisition as has been advanced from the side of the petitioner cannot be entertained and in any case, such disputed question of fact regarding service and receipt of requisition is beyond the scope of the writ jurisdiction, Page 2 of 6 hence, in such view of the matter, the motion should be allowed to take place immediately on a rescheduled date. 5. Mr. Mishra, learned Senior Advocate appearing for the intervenor filed a short note today in Court along with annexures and citations and refers to the case laws submits that there has been compliance of Section 46-B of the Act. It is further submitted that the claim of the petitioner is defended by 12 Ward Members, whereas, the requisition was submitted by 9 of them and that apart, the counter affidavit filed by opposite party Nos.2 and 3 reveals such service of requisition and so therefore, the impugned notice under Annexure-1 is in accordance with law and thus, is not liable to be interfered with in order to facilitate the motion to be held without further delay. 6. In reply and response to the above, Mr. Behera, learned counsel for the petitioner with reference to the rejoinder affidavit submits that the petitioner has in fact never received a copy of the requisition and such affidavit filed by opposite party Nos.2 and 3 cannot justify it. That apart, the verification revealing mismatch of signature of one of the Ward Members is pending enquiry, hence, therefore, under such circumstances and when there has been no compliance of Section 46-B of the Act, any such action with a decision to go for the no confidence motion is not legally tenable, hence, therefore, the impugned notice i.e. Annexure-1 is liable to be set aside. 7. As far as, the counter affidavit of opposite party Nos.2 and 3 is concerned, it is in compliance of the Court’s order dated 27th November, 2024 and therein, it is pleaded that the notice was issued and served as per the provisions of Section 46-B of the Act. A Page 3 of 6 reference has been made to Annexure-A/2 of the counter stating that the notice was issued by post and it accompanied a copy of the requisition besides resolution of the Ward Members. 8. In so far as, the decision in Prahallad Dalei (supra) is concerned, as referred to by Mr. Behera, learned counsel for the petitioner, in the facts and circumstances of the said case, it was held and concluded that the requisition is required to be sent and served accompanied with resolution and if the same is not ensured, it shall not be in compliance of the provisions of the Odisha Grama
Decision
In the result, the writ petition stands dismissed. The interim order passed by this Court on 13th November, 2024 is vacated as a result. As a consequence, opposite party No.3 is to act upon in accordance with the provisions of the Act with the date rescheduled for the purpose of no confidence motion. 13. Urgent copy of this order be issued as per rules. (R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 12-Dec-2024 11:25:00 Page 6 of 6