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2015 DIGILAW 523 (ORI)

Ajaya Kumar Sahoo v. State of Orissa

2015-09-04

BISWANATH RATH, D.H.WAGHELA

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JUDGMENT : Biswanath Rath, J. This writ appeal is filed assailing the judgment dated 28.08.2015 passed by the learned Single Judge in W.P. (C) No. 16586 of 2014. 2. In challenging the aforesaid judgment, learned counsel for the appellant contended that the decision of the learned Single Judge is not only contrary to the provisions contained in Section 24(2)(c), (d) and (e) of the Orissa Grama Panchayat Act but it also remain contra the decision rendered by a Full Bench of this Court in the case of Sarat Padhi v. State of Orissa and others and reported in I'OLR' Full Bench (1987) 495, 65(1988) C.L.T. 122. 3. In substantiating his claim, learned counsel for the appellant submits that even though the notice was dated 19.08.2014 indicating the date, hour and place of meeting, but the notice having been dispatched to the petitioner through post on 23.9.2014 fixing no-confidence motion to 5.9.2014 did not get clear 15 (fifteen) days gap, as contemplated under Section 24(2)(c) of the Orissa Grama Panchayat Act and thus claimed for reversal of the impugned judgment passed by the learned Single Judge. 4. Baring unnecessary details of the fact, the short case involved here is that the issue giving rise to the present appeal is merely boil down to the provisions contained in Section 24(2)(c) of the Orissa Grama Panchayat Act and if there has been proper application of the judgment appearing on the said subject rendered in the case of Sarat Padhi (supra). Under the circumstances, it is necessary to refer Section 24(2)(c), (d) and (e) of the Orissa Grama Panchayat Act, which are quoted herein below:- Section 24. Vote of no confidence against Sarpanch or Naib-Sarpanch :- xxx xxx xxx (2)(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; xxx xxx xxx 5. Bare reading of the aforesaid provisions, it is made clear that the statutory requirement is that there must be a notice to all members holding office on the date of such notice along with a copy of the requisition and the proposed resolution fixing the date, hour and place of such meeting and, further, there must be a clear gap of 15 (fifteen) days before the date was fixed. Looking to the provisions, contained in Section 24(2)(c) of the Orissa Grama Panchayat Act, it is amply clear that in issuing such notice fixing date, hour and place of such meeting, there must be at least 15 (fifteen) clear days before the date was fixed. As it appears from the case record and as it also otherwise goes undisputed the notice for the purpose in the present case was dated 19.08.2014, as appearing at page 34(a) of the brief fixing the date to 5.9.2014. Therefore, there, appears a clear 15 (fifteen) days gap in between the date on which notice is prepared and the date on which the No Confidence Motion was fixed. In view of the above statutory provisions, the objections raised by the petitioner do not have any leg to stand. Now coming to the decision as referred to by the learned counsel for the appellant in the case of Sarat Padhi v. State of Orissa and others, 'OLR' Full Bench (1987) 495, 65 (1988) C.L.T. 122, it appears that the Full Bench of this Court taking into consideration the provisions reflected herein above as well as some of the previous decisions rendered by this Court and the Hon'ble Apex Court, has come to the following finding vide paragraph 18 of the said judgment which is quoted as hereunder:- xxx xxx xxx "18. On a circumspection of the various authorities discussed above dealing with the analogous provisions in different statutes. On a circumspection of the various authorities discussed above dealing with the analogous provisions in different statutes. I would now proceed to record my own conclusion:- 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 duty 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 public policy as in that event any delinquent Sarpanch of Naib-Sarpanch can frustrate the consideration of the resolution of non-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 (e) to subsection (2) of section 24." Above decision makes it clear that merely the duty of issuing the notice and the margin of clear 15 days between the date of the notice and the date of the meeting are mandatory and in the event there is any breach of the above provision, then only the meeting will become invalid and further 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 and this requirement is only directory. 6. 6. In another decision in the case between Smt. Heeramani Munda v. The Collector, Keonjhar and others, 99 (2005) CLT 180, a Division Bench of this Court even though sets aside notice of no-confidence, out the said interference is only on account of no clear 15 days gap in between the date of notice and the date of no-confidence motion taking place and after observing that in paragraph-7, the Division Bench of this Court again held that this 15 days clear notice must be there by excluding the date of notice and the date of meeting. 7. We have perused the impugned judgment passed by the learned Single Judge and observe that the learned Single Judge taking into account the statutory provisions as well as the provision of law laid down by this Court referred in the case of Sarat Padhi (supra), has clearly arrived at the conclusion that there is clear 15 days gap in between the date of notice and the date of no-confidence and thus, rightly refused to interfere with the impugned order. The other decision cited by Sri Mishra, learned counsel for the appellant having no relevancy to the present case are not taken note of. This Court is in full agreement with the impugned judgment of the learned Single Judge and the same is hereby confirmed. 8. In the result, the writ appeal fails. However, there is no order as to cost. Appeal fails.