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2011 DIGILAW 473 (ORI)

Jadaba Bhue v. State of Orissa

2011-09-08

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT B.N. MAHAPATRA, J. — This appeal has been directed against an order dated 21.04.2011 passed in W.P.(C) No.14642 of 2009 by a learned Single Judge of this Court dismissing the writ petition of the present appellant. 2.Bereft of unnecessary details the facts and circumstances giving rise to the present writ appeal are that the writ appellant contested the election for the post Sarpanch of Bhimtikira Grama Panchayat under Sonepur District held in the year 2007 and he was elected to the said post. While he was continuing as such, some of the ward members of the said Panchayat convened a meeting and passed a resolution for removal of the writ appellant from the post of Sarpanch on the ground that he did not discharge his duty in proper manner. On the basis of such resolution the writ appellant received notice dated 1.9.2009 issued by the Sub-Collector, Sonepur proposing to convene a special meeting on 22.9.2009 for consideration of no-confidence motion against the present writ appellant. No such meeting was held on 22.09.2009. Subsequently, another notice dated 30.9.2009 was sent to the present appellant for holding the meeting on 7.10.2009 for the aforesaid purpose. The said notices were challenged in W.P.(C) No.14642 of 2009 with a prayer to quash the same; but the said writ petition was dismissed by the learned Single Judge by the impugned order dated 21.4.2011. 3.Mr. G. Mishra, learned counsel for the writ appellant submitted that the impugned order is patently illegal and the same is liable to be set aside. Learned Single Judge has failed to appreciate that clause (c) of Sub-section (2) of Section 24 of the ORISSA GRAM PANCHAYAT ACT, 1964 (for short, ‘the Act’) provides that the date, hour and place of meeting of no-confidence motion shall be fixed at least 15 clear days before the date so fixed. In the instant case, the notice was issued on 30.9.2009 for holding such meeting of no confidence motion on 7.10.2009. Therefore, there is no clear 15 days’ notice for holding such meeting as provided u/s 24(2) (c) of the Act. Hence, the notice dated 30.09.2009 fixing the date for holding meeting to move no confidence motion on 07.10.2009 against the writ appellants suffers from procedural irregularity, illegality and is liable to be quashed. Therefore, there is no clear 15 days’ notice for holding such meeting as provided u/s 24(2) (c) of the Act. Hence, the notice dated 30.09.2009 fixing the date for holding meeting to move no confidence motion on 07.10.2009 against the writ appellants suffers from procedural irregularity, illegality and is liable to be quashed. Since pursuant to the first notice, the meeting for no confidence motion could not be held, it is the duty of the opposite parties to notify the date of the second meeting by giving 15 days’ clear notice to the persons concerned. Learned Single Judge erroneously placed reliance on the two decisions of this Court in the case of Sri Balmiki Pradhan v. State of Orissa and others, 2007 (I) OLR 8 and in the case of Rushinath Rout v. State of Orissa and others, 99 (2005) CLT 402, wherein the factual scenario was that there was a notice prior to the initial date fixed for the meeting adjourning/deferring the meeting to another future date. In the present case, the meeting was initially fixed to 22.9.2009. Subsequently, another notice was issued fixing the date to 7.10.2009. Mr. Mishra further argued that if the interpretation of learned Single Judge is accepted then Section 24 would be rendered nugatory as there can be a notice fixing a particular date and on that date if no meeting is held, then the first notice is to be kept alive and on any subsequent date the meeting can be convened all of a sudden. Concluding the argument, Mr. Mishra prayed for setting aside the impugned order and to allow the present writ appeal. 4.Per contra, learned Government Advocate submitted that the date fixed for holding meeting to move no confidence motion against the Sarpanch or Naib-Sarpanch cannot be adjourned, but prior to the date fixed it can be deferred to some other date. It was further submitted that 15 days’ clear notice is not required in the case of deferment of the date for holding such meeting. While issuing first notice for holding the meeting for no confidence 15 days clear notice was given. Therefore, the second notice cannot be said to be invalid for not giving 15 days’ clear notice. 5.Mr. It was further submitted that 15 days’ clear notice is not required in the case of deferment of the date for holding such meeting. While issuing first notice for holding the meeting for no confidence 15 days clear notice was given. Therefore, the second notice cannot be said to be invalid for not giving 15 days’ clear notice. 5.Mr. S.K. Nanda, learned counsel for respondent No.6 adopting the stand taken by the learned Government Advocate submitted that there is no illegality or irregularity in issuing the second notice without giving 15 days’ clear notice as provided under Section 24(2)(c) of the Act. So far second notice issued for convening meeting for no confidence motion is concerned, provision of Section 24(2)(c) has no application. 6.On the rival contentions raised by learned counsel for the parties, the question that falls for consideration by this Court is as to whether 15 days’ clear notice as provided under Section 24(2)(c) of the Act is necessary in respect of a second/subsequent notice issued after expiry of the date initially fixed in the first notice giving clear 15 days’ time to move no confidence motion against a Sarpanch or Naib Sarapanch? 7.To deal with the above question, it is necessary to know what is contemplated in Section 24 of the Act which deals with vote for no confidence against a Sarpanch or Naib-Sarpanch. The relevant portion of Section 24 is quoted 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 Panchayat, regarding want of confidence in the Sarpanch or Naib-Sarpanch the resolution shall forthwith be forwarded by the Subdivisional 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 Naib-Sarpanch, as the case may be, shall be deemed to have vacated such office. (2) In convening a meeting under Sub-sec. (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) ......... (b)......... (2) In convening a meeting under Sub-sec. (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) ......... (b)......... (c)the Subdivisional 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)to (k) ........” 8.This Court had occasion to interpret the above provision in the case of Sarat Padhi v. State of Orissa and others, 1988 (I) OLR 80 wherein this Court held that requirement of giving notice and fixing the margin of time between the date of notice and date of meeting are mandatory, violation of which will make the meeting invalid. Relevant portion of the said judgment is quoted hereunder. “The scheme of the notice contemplated under Sec.24 (2) (c) may be divided into three parts - (i) requirement of giving the notice, (ii) fixing the margin of time between the date of the notice and the date of the meeting, and (iii) service of notice on the members. I am of the view, which is also conceded by the learned Advocate General, that the first two parts, namely, the date of issue the notice and the margin of clear 15 days between the date of the notice and the date of the meeting, are mandatory. In other words, if there is any breach of these two conditions, then the meeting will be invalid without any question of prejudice. But the third condition, i.e., the mode of service or the failure by any member to receive the notice at all or allowing him less than 15 clear days before the date of the meeting, will not render the meeting invalid. This requirement is only directory. But the third condition, i.e., the mode of service or the failure by any member to receive the notice at all or allowing him less than 15 clear days before the date of the meeting, will not render the meeting invalid. This requirement is only directory. This is also based on a sound public policy as in that event any delinquent Sarpanch or Naib-Sarpanch can frustrate the consideration of the resolution of no confidence against him by tactfully delaying or avoiding the service of the notice on him and thus frustrate the holding of the meeting. The legislature has also accordingly taken care to provide in unequivocal terms a provision to obviate such contingencies by incorporating Clause (c) to Sub-sec. (2) of Sec.24.” 9.Now, the question arises for consideration is as to whether such mandatory provision of Sec.24(2) (c) is applicable in respect of the second/subsequent notice issued for the purpose of holding the meeting of no-confidence motion against the Sarpanch or Naib-Sarpanch when no meeting could be held pursuant to the first notice and second notice was issued after expiry of the date fixed in the first notice. In the present case, initially the meeting was fixed to move no-confidence motion against the appellant on 22.9.2009 and on the said date no such meeting took place. No further date was fixed prior to or on 22.9.2009. Therefore, for all practical purposes the first notice has lost its life. In that event, if a second/subsequent notice is issued that must be treated as a fresh notice. Once it is treated as a fresh notice, the provisions of Sec.24(2)(c) of the Act is applicable and it is mandatory on the part of the concerned authority to give clear 15 days’ notice for the purpose of convening the meeting of no-confidence against a Sarpanch or Naib-Sarpanch. In the instant case, admittedly, in the second/subsequent notice no clear 15 days’ time was given as provided in Sec.24(2)(c) of the Act for convening the meeting of no-confidence motion against the appellant as the said notice was issued on 30.9.2009 fixing the date to 7.10.2009. Therefore, the second/subsequent notice dated 30.9.2009 fixing the date of no-confidence motion meeting to 7.10.2009 is not sustainable in law. Therefore, the second/subsequent notice dated 30.9.2009 fixing the date of no-confidence motion meeting to 7.10.2009 is not sustainable in law. 10.Learned Single Judge relying upon the decisions of this Court in Rushinath Rout (supra) and Sri Balmiki Pradhan (supra) held that there is no bar for holding the second meeting on a subsequent date if the same has not been held at all on the date when it was scheduled to be held earlier. Fifteen days clear notice was not required for holding the second meeting since in the first notice time for 15 clear days was given. For the reasons stated in the preceding paragraph, we are unable to accept such view of the learned Single Judge. Moreover, in both the above cases factual scenario was different. 11.In the case of Rushinath Rout (supra) before expiry of the initial date fixed for the meeting, subsequent notice was issued adjourning/deferring the meeting to another future date. In the said case, initially the date of holding no confidence motion meeting was fixed to 12.8.2004 and the Sub-Collector, Keonjhar vide his order dated 3.8.2004 adjourned the date of meeting of the Grama Panchayat from 12.8.2004 to 23.8.2004 whereas, in the instant case, the meeting was initially fixed to 22.9.2009 and on the said date no meeting took place and subsequently another fresh notice was given on 30.9.2009 fixing the date to 7.10.2009. 12.In the case of Sri Balmiki Pradhan (supra) the question before this Court was as to whether the meeting held on 2.2.2005 in which the vote of no confidence was passed against the petitioner, is an adjourned meeting as contemplated under Section 24(2) (h) of the Act and as to whether such meeting is barred by the said provision or is contrary to the said provision of the Act. In that case, meeting for vote of no confidence against the petitioner which was originally fixed to 15.1.2005 was not held at all due to exigency beyond control of the Sub-Collector and on account of such event a fresh notice was issued fixing the said meeting to 2.2.2005 on which date the vote of no confidence was moved against the petitioner. In that case, this Court held that meeting held on 2.2.2005 on which vote of no confidence was passed against the petitioner and charge of the post of Sarpanch was taken over by the Naib Sarpanch was neither illegal nor contrary to provision of Section 24(2)(h) of the Act as the meeting was not an adjourned meeting. In that case, the question before the Court was not that no 15 days’ clear notice was given in the second notice as provided under Section 24(2)(c) of the Act. Therefore, the judgments of this Court on which the learned Single Judge has placed reliance have no application to the facts of the case at hand. 13.In view of the above, the impugned order passed by the learned Single Judge is set aside and the second notice dated 30.9.2009 fixing the date to 7.10.2009 for holding meeting to move no confidence motion against the appellant is hereby quashed. However, liberty is given to opposite party No.2-Sub-Collector, Sonepur to convene meeting in accordance with law to move the no confidence motion against the appellant. 14.In the result, the writ appeal is allowed with the above observation. V. GOPALA GOWDA, C.J.I agree. Appeal allowed.