Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 558 (ORI)

BRUNDABATI PRADHAN v. STATE OF ODISHA

2015-09-23

C.R.DASH

body2015
JUDGMENT : C.R. Dash, J - The petitioner, who is the elected Sarpanch of Tinkbir Grama Panchayat in the district of Deogarh, has challenged, in this writ application, the notice dated 12.08.2014 issued by the Sub-Collector, Deogarh- opposite party No. 3 calling upon the petitioner to attend the meeting of "No Confidence Motion" to be held on 28.08.2014. 2. The present petitioner was elected as Sarpanch in the Grama Panchayat Election held in February, 2012. While she was acting as such, requisite number of Ward Members adopted a resolution on 08.08.2014 to table a "No Confidence Motion" against the petitioner. On the same day, requisition was sent to the Sub-Collector, Deogarh- Opposite Party No. 3 along with the proposed resolution by the said Ward Members for necessary action at his end. On receipt of such requisition, the Sub-Collector, after due processing, fixed the date, hour and place of the specially convened meeting and issued notice on 12.08.2014 calling upon the petitioner to attend the meeting of "No Confidence Motion" to be held on 28.08.2014. 3. It is alleged by the petitioner that the aforesaid notice dated 12.08.2014 vide Annexure- 1 was issued by the concerned Post Office on 16.08.2014 and it was received by the petitioner on 20.08.2014. It is, therefore, urged that there being no clear 15 days notice as contemplated under Section 24(2)(c) of the Orissa Grama Panchayat Act (for short, "the Act"), notice vide Annexure- 1 is to be quashed, the meeting being a nullity. 4. The opposite party No. 3 has filed counter affidavit. It is specifically averred in paragraph- 7 of the counter affidavit that vide Memo No. 3027, dated 12.08.2014 copy of the notice along with the requisition and proposed resolution have been published on the Notice Board of Panchayat Samiti. Further, from the Issue Register, Annexure- B/3 series, it would be found that the notice along with the requisition and the proposed resolution have been sent to the petitioner on 12.08.2014. Annexure- B/3 series shows that vide Memo No. 3026 (14), notice regarding "No Confidence Motion" has been sent to the Sarpanch of Tinkbir Grama Panchayat. The opposite party No. 5 vide Annexure- A/3 has also filed extract of the said Issue Register maintained in the Office of the Sub-Collector, Deogarh. Annexure- B/3 series shows that vide Memo No. 3026 (14), notice regarding "No Confidence Motion" has been sent to the Sarpanch of Tinkbir Grama Panchayat. The opposite party No. 5 vide Annexure- A/3 has also filed extract of the said Issue Register maintained in the Office of the Sub-Collector, Deogarh. The opposite party No. 5, by filing counter affidavit, has also taken the same stand as opposite party No. 3 regarding issuance of notice from the office of the Sub-Collector on 12.08.2014. 5. From the narration of facts (supra), it is clear that the "No Confidence Motion" was fixed to be held on 28.08.2014 and the notice vide Annexure- 1 is dated 12.08.2014, which might have been dispatched by the Post Office to the petitioner on 16.08.2014. This Court, in the case of Smt. Heeramani Munda Vs. The Collector and Others, (2005) 99 CLT 180 : (2004) 2 OLR 506 and in the case of Nilambar Majhi Vs. Secretary to Govt. of Orissa, Panchayat Raj Deptt. and Others, (2006) 101 CLT 473 : (2005) 2 OLR 659 , have held that there should be 15 clear days notice as contemplated under Section 24(2)(c) of the Orissa Grama Panchayat Act excluding the date of issuance of notice and the date of meeting fixed for "No Confidence Motion". 6. In view of such provision and in view of the contentions raised by learned counsel for the petitioner, it is to be decided whether the date of dispatch by the Post Office or date of issue by the Sub-Collector is to be understood as date of issue as contemplated in Section 24(2)(c) of the Orissa Grama Panchayat Act. 7. This Court, in the case of Sarat Padhi Vs. State of Orissa and Others, AIR 1988 Ori 116 : (1988) 65 CLT 122 Orissa 116 has held that "in the eye of law however 'giving' is complete in many matters where it has been offered to a 'person'. It has further been clarified that "tendering of a notice in law therefore is giving a notice even though the person to whom it is tendered refused to accept it." In the said decision of Sarat Padhi, it was further held thus:-- "......... It has further been clarified that "tendering of a notice in law therefore is giving a notice even though the person to whom it is tendered refused to accept it." In the said decision of Sarat Padhi, it was further held thus:-- "......... Therefore, all that is required is that the Sub-Divisional Officer on receipt of a requisition, after fixing the date, hour and place of the meeting, has to give notice of the same to all the members holding the office and that part is as a matter of course. But, whether the notice reaches the addressee is not of any consequence, unless of course, any prejudice on the failure of the service of the notice is writ large or established by bringing relevant facts on the record. ..........." Referring to the case of Sarbeswar Satapathy, an unreported decision and other Supreme Court judgments on the meaning of "15 clear days", this Court in Sarat Padhi's case (supra) held that "15 days must intervene between the date of the notice and the date of meeting and, therefore, the terminal dates be excluded so as to provide 15 clear days in between." 8. From the aforesaid case law, it is clear that the date of issue of notice and the date of meeting are to be excluded and there should be gap of clear 15 days in between the date of issue of notice and the date of the proposed meeting. 9. In the present case, there is positive averment by the opposite parties 3 & 5 to the effect that, requisition of requisite number of members of Tinkbir Grama Panchayat was received by the Sub-Collector on 08.08.2014 and after due processing and verification of signatures of the members, who had signed the requisition, the Sub-Collector- opposite party No. 3 fixed the date, hour and place of such meeting and issued notice to all the members on 12.08.2014. The notice might have been dispatched by the Post Office on 16.08.2014. The notice might have been dispatched by the Post Office on 16.08.2014. But I do not find any reason to disbelieve the positive averment of the opposite parties 3 & 5 so far as issue of notice on 12.08.2014 is concerned, especially in view of the entry in the Issue Register vide Annexure- A/3 to the counter affidavit filed by the opposite party No. 5 and vide Annexure- B/3 to the counter affidavit filed by the opposite party No. 3 and also for the reason that on the self-same date, the notice has also been pasted on the Notice Board of Grama Panchayat for general information of the members. It is common knowledge that in Government offices, after a letter is issued, the same is to be dispatched through ministerial process. There might have been some delay in such process and the notice might have been dispatched by the Post Office on 16.08.2014. 10. This Court, in the case of Sarat Padhi (supra) has taken into consideration the entire scheme of the notice contemplated under Section 24(2)(c) of the Act and has held thus :-- "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 of the notice and the margin of clear 15 days between the date of the notice and the date of 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, 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 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 legislation has also accordingly taken care to provide in unequivocal terms a provision to obviate such contingencies by incorporating clause (e) to sub-section (2) of Section- 24". 11. From the aforesaid observation of the Court in the aforesaid Full Bench decision, it is clear that date of notice is to be understood as date of issue of notice by the Sub-Collector. If, it is understood to be the date of issue of notice by the Post Office, then it would be like rewriting the law and such an interpretation would give chance to crafty delinquent Sarpanches and Naib-Sarpanches to obviate resolution and the proposed meeting by delaying the ministerial process in the office of the Sub-Collector, over which none has any control. 12. Taking into consideration the aforesaid discussion, I am of the firm view that the date of issue of notice is to be understood as date of issue from the office of the Sub-Collector. If there is some delay in dispatch from the office of the Sub-Collector, the same shall not invalidate the meeting of no-confidence unless prejudice is writ large or shown to have occasioned so far as the petitioner is concerned. In the present case, however, there is no pleading to the effect that any prejudice has been caused to the petitioner by delayed receipt of the notice. There is clear 15 days in between the date of the meeting and the date of issue of the notice. The petitioner has also participated in the meeting for recording confidence. In view of such fact, the contention raised by learned counsel for the petitioner must fail. 13. Secondly, it is contended by learned counsel for the petitioner that, the notice vide Annexure- 1 is not accompanied with the proposed resolution and the requisition of the requisite number of members given to the Sub-Collector. There is, however, no pleading to this effect in this writ application. 14. In view of such fact, the notice vide Annexure- 1 cannot be invalidated on such a ground, which has not at all been pleaded. 15. There is, however, no pleading to this effect in this writ application. 14. In view of such fact, the notice vide Annexure- 1 cannot be invalidated on such a ground, which has not at all been pleaded. 15. In the result, the writ application is dismissed. The result of "No Confidence Motion" kept in the sealed cover, be published forthwith and consequent action be taken in accordance with law. Final Result : Dismissed