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2015 DIGILAW 448 (ORI)

Subasini Meher v. State of Odisha

2015-07-31

A.K.RATH

body2015
JUDGMENT Dr. A.K. RATH, J. - Assailing the notice dated 27.5.2015, vide Annexure-1, issued by the Sub-Collector, Padampur, opposite party no.3, fixing the meeting of the Panchayat Samiti on 24.06.2015 at 10 A.M. for consideration of the requisition regarding “no confidence motion” against the petitioner, the instant writ petition has been filed. 2.The case of the petitioner is that she was elected as a member of the Panchayat Samiti in the year 2012.Thereafter, she was elected as a Chairman of the Paikmal Panchayat Samiti in the district of Bargarh. She discharged her duties with utmost satisfaction to the general public. During three years of her tenure, there was no complaint against her .While the matter stood thus, she received the notice along with requisition as well as proposal dated 27.5.2015, vide Annexure-1, issued by the Sub-Collector, Padampur, opposite party no.3, fixing the meeting of the Panchayat Samiti on 24.06.2015 at 10 A.M. for consideration of the requisition regarding "no confidence motion" against her. It is further stated that the allegations made in the proposal are unfounded and baseless. The resolution was passed in a fraudulent manner. The signatures of the absentee members appeared in the resolution and the members intimated the same to the opposite party no.3 in writing. The opponents are determined to remove her from the post. They published motion in different oriya dailies. 3.Pursuant to issuance of notice, a counter affidavit has been filed by the opposite party nos. 2 to 4. It is stated that the meeting has been convened by the Sub-Collector, Padampur, opposite party n.3, after receipt of the requisition signed by more than two-thirds members of the Paikmal Panchayat Samiti along with a copy of the resolution proposed to be moved in that meeting. the resolution containing in the proposal was drawn up by the members of the Samiti. Opposite party no.3 verified the signatures of the members and found the same to be genuine. No member had ever complained or intimated the opposite party no.3 about the fraudulent signatures appearing in the requisition and resolution. The petitioner had not mentioned the names of such members whose signatures had been forged. 4.Heard Mr.G. Mukherjee, learned counsel for the petitioner, learned Addl. Government Advocate for the opposite parties 1 to 4, Mr. Ashok Mohanty, learned Senior Advocate along with Mr. L.N. Patel, learned counsel for the opposite parties 5 to 11, Mr. The petitioner had not mentioned the names of such members whose signatures had been forged. 4.Heard Mr.G. Mukherjee, learned counsel for the petitioner, learned Addl. Government Advocate for the opposite parties 1 to 4, Mr. Ashok Mohanty, learned Senior Advocate along with Mr. L.N. Patel, learned counsel for the opposite parties 5 to 11, Mr. H.S. Mishra and Mr.S.S.Rao, learned counsel appearing for the opposite parties 12 to 16 and Mr. M.K. Mkishra, learned counsel for the intervenor. 5.Mr. Mukherjee, learned counsel for the petitioner, submitted that the proposed resolution does not disclose the grounds for removal and, as such, the same is bad in law. The grounds mentioned in the resolution are vague and indefinite. He further submitted that on a conjoint reading of Section 40-A read with Section 46-B of the Panchayat Samiti Act, 1959 (hereinafter referred to as “the Act”), it is manifest that the resolution must be backed by reasons. Thus the entire process is vitiated. 6.Learned Addl. Government Advocate for opposite parties 1 to 4, submitted that after receipt of the requisition and resolution of the members of the Samiti, the Sub-Collector, Padampur, opposite party no.3, issued notice to the petitioner as well as the members for holding no confidence motion and by majority of two-thirds members, the motion was passed. 7.Mr. Mohanty, learned Senior Advocate for opposite parties 5 to 11, submitted that Rule 46-B of the Act does not provide for assigning reasons in the resolution to be passed by the members of the Samiti. Section 40-A of the Act cannot be pressed into while moving the vote of no confidence against the Chairman of the Panchayat Samiti. 8.Mr. H.S. Mishra and Mr. S.S. Rao, learned counsel appearing for the opposite parties 12 to 16, supported the submission of Mr. Mohanty, learned Senior Advocate. 9.Mr. M.K. Mishra, learned counsel for the intervenor in Misc. Case No.11724 of 2015 submitted that the intervenor is the M.L.A. of Padampur Assembly Constituency. No notice whatsoever has been issued to him to participate in the meeting and, as such, high right to participate and speak on the resolution as provided under Clause (f-2) of Sub-section (2) of Sub-section (2) of Section 46-B of the Act has been violated. Case No.11724 of 2015 submitted that the intervenor is the M.L.A. of Padampur Assembly Constituency. No notice whatsoever has been issued to him to participate in the meeting and, as such, high right to participate and speak on the resolution as provided under Clause (f-2) of Sub-section (2) of Sub-section (2) of Section 46-B of the Act has been violated. 10.The provisions of Section 46-B (I) and 46-B (2) of the Act, which are relevant, are quoted hereunder : “40-A. Removal of Chairman and Vice-Chairman of Samiti- (1) If in the opinion of the Government the Chairman (the Vice-Chairman or any member elected under Clause (h) of Sub-Section (1) of Section 16 or nominated under Section 45-C) of the Samiti wilfully omits or refuses to carry out or, violates the provisions of this Act or any rules, bye-laws or orders, made or issued thereunder or abuses the powers vested in him and Government are satisfied that further continuance of such person in office would be detrimental to the interest of the Samiti they may, by order, published in the prescribed manner, remove such Chairman, (Vice-Chairman or members, as the case may be) from office: Provided that no such order for removal shall be made without giving the person concerned a reasonable opportunity of being heard. (2) No person removed from the office of Chairman, (Vice-Chaiman or an elected member) under this Section shall for a period of four years from the date of the removal, be eligible to hold any of the said offices.)” “46-B. Vote of no confidence against Chairman and Vice-Chairman of Samiti- (1) Where at a meeting of the Samiti specially convened in that behalf a resolution is passed, supported by a majority of (not less than two-thirds of ) the total number of members having a right to vote, recording want of confidence in the Chairman or Vice-Chairman of such Samiti the resolution shall forthwith be published by such authority and in such manner as may be prescribed and with effect from the date of such publication the Chairman or Vice-Chairman as the case may be, shall be deemed to have vacated office. (2) In convening a meeting under Sub-Section (1) and in the conduct of business at such meeting the procedure herein specified shall be followed, namely : (a) no such meeting shall be convened except on a requisition signed by at least one-third of the members with a right to vote, along with a copy of the resolution proposed to be moved at the meeting; (b) the requisition shall be addressed to the Sub-divisional Officer;) (c) (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, along with a copy of the requisition and of the proposed resolution, ate least seven clear days before the date so fixed; (d) the Sub-divisional officer or when he is unable to attend any other Gazetted Officer not below the rank of a (Class-II Officer of the State Civil Service), authorized by him, shall preside over and conduct the proceedings of the meeting;) (e) the voting at all such meetings shall be by secret ballot; (f) 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 Chairman or the vice-Chairman shall be taken up for consideration at the meeting. (f-1) no such resolution shall be taken up for consideration (unless it has been proposed by one member and has been seconded by another member at the meeting;) (f-2) after the resolution is taken up for consideration the member proposing the resolution may open the discussion thereon and other members may speak on the resolution in the order in which they are called upon by the Presiding Officer; Provided that no member shall, unless so permitted by the Presiding Officer, have the right to speak more than once and if any member who is called upon does not speak he shall not be entitled except by the permission of the Presiding Officer, to speak at a later stage of the discussion; (f-3)where the Chairman or as the case may be, the Vice-Chairman, against whom the resolution has been tabled, is present, he shall be given an opportunity to speak by way of reply to the resolution and the discussion made at the meeting. (f-4)the Presiding Officer may fix the time within which each member, including the Chairman and Vice-Chairman, shall conclude his speech ; (g)if the number of members present at the meeting is less than (a majority of two-thirds) of members having a right to vote the resolution shall stand annulled; and (h) if the resolution is passed at the meeting supported by ( a majority of two-thirds) of members having a right to vote, (the Sub-divisional Officer) shall forward the resolution to the authority prescribed in pursuance of Sub-Section (1).]” xxxxxxxxx" 11.The submission of Mr. Mukherjee that Section 40-A of the Act has to be read conjointly with Section 47-B of the Act appears to be billabong. Section 40-A of the Act provides for removal of Chairman and Vice-Chairman of the Samiti. On a plain reading of the said Section, it is manifest that the powers vested in the Government to remove the Chairman, Vice-Chairman or Member, as the case may be, from the office, if in the opinion of the Government, the Chairman, Vice-Chairman or any members elected under clause (h) of sub-Section (1) of Section 16 or nominated under Section 45-C, wilfully omits or refuses to carry out or violates the provisions of the Act or any rules, bye-laws or orders, made or issued thereunder or abuses the powers vested in him and Government are satisfied that further continuance of such person in office would be detrimental to the interests of the Samiti. Section 46-B of the Act provides vote of no confidence against the Chairman and Vice-Chairman of the Samiti. It provides that where at a meeting of the Samiti specially convened in that behalf a resolution is passed, supported by a majority of not less than two-thirds of the total number of members having a right to vote, recording want of confidence in the Chairman or Vice-Chairman of such Samiti, the resolution shall forthwith be published by such authority and in such manner as may be prescribed and with effect from the date of such publication the Chairman or Vice-Chairman, as the case may be, shall be deemed to have vacated the office. Sub-Section (2) of Section 46-B of the Act provides the procedure to be followed in convening a meeting under sub-Section (1).Section 40-A and 46-B of the Act operate in different field. Sub-Section (2) of Section 46-B of the Act provides the procedure to be followed in convening a meeting under sub-Section (1).Section 40-A and 46-B of the Act operate in different field. The provision of Section 40-A of the Act cannot be pressed into service while interpreting Section 46-B.There is no conflict between two provisions. Further, sub-Section (2) of Section 46-B of the Act does not provide for assigning any reasons while passing the resolution. Clause (a) of sub-Section l(2) of Section 46-B only provides that no such meeting shall be convened except on a requisition signed by at least one-third of the members with a right to vote along with a copy of the resolution proposed to be moved at the meeting. Thus recording of reason is not sine qua non for passing the resolution. If the resolution is signed by one-third members with a right to vote and sent to the Sub-Divisional Officer under clause (c), the latter 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, along with a copy of the requisition and of the proposed resolution, at least seven clear days before the date so fixed. 12.Way back in the year 1936, a five Judge Bench of the Privy Council in the case of Nazir Ahmad v. King Emperor, AIR 1936 Privy Council 253 (2) held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. The said proposition of law is based on a legal maxim “Expressio unius est exchusio alterius”, which means “The express mention of one thing implies the exclusion of another”. 13Section 46-B (2) (a) of the Act does not provide for recording of reasons while passing resolution. To construe it differently will cause violence to the stature. 14.The next question arises as to whether the intervenor is a necessary or proper party to the lis? 15.The distinction between a necessary party and a proper party is well know. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue. Bihar and another. To construe it differently will cause violence to the stature. 14.The next question arises as to whether the intervenor is a necessary or proper party to the lis? 15.The distinction between a necessary party and a proper party is well know. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue. Bihar and another. AIR 1963 SC 786 , the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The petitioner challenges the action of the opposite party no. 3 in convening meeting for holding vote of no confidence against her. Thus intervenor is not a necessary party to the writ petition. 16.As regard proper parties, the question depends upon the judicial discretion of the High Court in the circumstances of each case, Either one of the parties to the proceedings may apply for impleading of such a party or such a party may suo motu approach the Court for being impleaded therein. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate v. Rama Krishna Narain and other, AIR 1953 SC 521 , the apex Court held that the eventual interest of a party in the fruits of a litigation cannot be held to the true test of impleading a person as a party. 17.The principles enunciated in the aforesaid decision apply with full force to the facts and circumstances of the present case. The eventual interest of the intervenor in the fruits of a litigation cannot be held to be the true test of impleading him as a party. 18.This Court has perused the file. Notice was sent to the M.L.A. The same was received. Otherwise also the point urged by the learned counsel for the intervenor is not germane for consideration in the instant case. The scope of the writ petition cannot be enlarged at the behest of the intervenor. Not receipt of notice or non participation in the vote of no confidence by the intervenor is altogether a different cause of action. It was open to him to challenge the action of the opposite party no. 3 in separate writ petition. The scope of the writ petition cannot be enlarged at the behest of the intervenor. Not receipt of notice or non participation in the vote of no confidence by the intervenor is altogether a different cause of action. It was open to him to challenge the action of the opposite party no. 3 in separate writ petition. 19.The logical sequitur of the analysis made above is that the writ petition, sans any merit, deserves dismissal. Accordingly, the same is dismissed. No. costs. Petition dismissed.