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2014 DIGILAW 769 (ORI)

Sujata Pradhan v. Sub-Collector, Bargarh

2014-11-17

S.K.MISHRA

body2014
ORDER 17.11.2014Heard learned counsel for the petitioner and the learned Addl.Government Advocate, I have also heard the learned counsel for the caveators, who happens to be the 31 members of the Bheden Panchayat Samiti. The petitioner is duly elected Chairman of Bheden Panchayat Samiti. The members of the said Panchayat Samiti under the leadership of Vice-Chairman sent a letter on 27.06.2014 to the opposite party No.1 enclosing no confidence motion against the petitioner. The opposite party No.1 took into consideration and issued notice. The same was signed on 05.11.2014. However, the notice was sent on 10.11.2014 to the petitioner. It was delivered by hand and served on 13.11.2014. In that letter, the petitioner was noticed that no confidence motion has been initiated and the vote for no confidence shall take place on 18.11.2014 in the forenoon at 11 a.m.. Such notice, as at Annexure-1, is assailed in this writ petition. The learned counsel for the petitioner submitted that since the petitioner was received notice on 13.11.2014, clearly 7 days notice as envisaged under Section 46-B(2)(c) of the Panchayat Samiti Act, 1959 has been violated and hence, the notice of vote of no confidence should be quashed. The learned counsel for the State as well as learned counsel for the caveators submits that the date of receipt of notice is immaterial and as per the statute, it is the date of issue of notice, which is material. In this connection, the reported case of Sarat Padhi v. State of Orissa and others, 1988 (I) OLR 76 and unreported case of Smt. Padmabati Devi v. State of Orissa and others, decided on 30.10.2009 in W.P.(C) No.14539 of 2009 are relied upon. Section 46-B of the Panchayat Samiti Act,1959 provides for the vote of no confidence against the Chairman and Vice-Chairman of the Samiti. Clause (c) of Sub-Section (2) of Section 46-B of the said Act speaks about the notice. It reads as follows : “The Sub-divisional officer on receipt of such requisition shall fix the date, hour and place of such meetings and give notice of the same to all the members with a right to vote, alongwith a copy of the requisition and of the proposed resolution, at least seven clear days before the date so fixed.” Similar provision of no confidence motion appears in Orissa Grama Panchayats Act, 1964. Section 24 of the said Act provides for vote of no confidence against Sarpanch or Naib-Sarpanch. Section 24(2)(c) of the said Act reads as follows :- “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.” Thus, the provision in Panchayat Samiti 1959 is pari materia with Section 24(2)(c) of the Grama Panchayats Act, 1964. Interpreting the Section 24(2)(c) of the said Act, the full Bench of this Court in the case of Sarat Padhi v. State of Orissa and others (supra) has held as follows :- “The scheme of the notice contemplated under Section 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. This is also based on a sound pubic 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. This requirement is only directory. This is also based on a sound pubic 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 legislation has also accordingly taken care to provide in unequivocal terms a provision to obviate such contingencies by incorporating Clause (c) to Sub-Section (2) of Section 24.” Similar matter arose in the case of Smt. Padmabati Devi v. State of Orissa and others (supra), wherein a Single Bench of this Court has held that it is settled position of law that notice under Section 46-B(2)(c) of the Act stipulates three conditions, (i) requirement of giving notice (ii) fixing margin of time between the date of notice and the date of meeting; and (iii) service of notice on the members. The first two conditions are mandatory. The Single Bench further held that if there is breach of those two conditions, the meeting would be invalid even if no prejudice was caused to the affected party. The Single Bench further held that the third condition is directory. In other words, even if 3rd condition is not complied with, it cannot render the holding of meeting illegal. In the present case, it is not disputed that the notice was issued on 10.11.2014 and the meeting has been scheduled to be held on 18.11.2014. Thus, excluding 10th November, 2014 and the date of meeting 18.11.2014, there are seven clear days notice for holding of the no confidence meeting. In that view of the matter, the order passed by the learned Sub-Collector, Bargarh, as at Annexure-1, does not suffer from any illegality and the same requires no interference. Accordingly, the writ petition is dismissed being devoid of merit. Petition dismissed.