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2016 DIGILAW 245 (ORI)

Baidhar Sethi v. State of Odisha

2016-03-30

S.K.MISHRA

body2016
JUDGMENT : S.K.Mishra, J. In this writ petition, the Sarpanch of Saraswatipur Grama Panchayat assails the notice dated 18.12.2015 issued by the Sub-Collector, Balasore (Sadar), opposite party no.2, under Annexure1, fixing 8.1.2016 to be the appointed date for moving the no confidence in the Panchayat Office at 11.00 A.M. In essence the petitioner challenges the said notice on two grounds. Firstly it is stated that the petitioner-Sarpanch having not been noticed with fifteen days time for compliance under the provisions of Section 24(2)(c) of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as “the Act” for brevity) the entire proceeding is vitiated in law and is liable to be quashed. The second ground is that the service of proposed resolution, which is one of the document mandatorily required to be served on the petitioner-Sarpanch, has not been served and is therefore violates the mandatory provisions of law. 2. The aforesaid two grounds have been taken in the writ petition. However, in course of hearing, learned counsel for the petitioner raised another point and stated that the so called proposed resolution is in fact a resolution and therefore as there is distinction between the resolution and the proposed resolution, the same should not be taken to be sufficient compliance of the requirement of law. 3. On the other hand, learned Addl. Government Advocate for the State produced the records of the proceeding and also argued in support of the contentions raised by the opposite parties 2 and 3 in their counter affidavit. Though learned counsel appearing for the caveator has not filed any counter affidavit, but he as argued at length. 4. It is apparent from the records that Annexure-1 is the notice issued in favour of the present petitioner intimating him about the special session to be held in Saraswatipur Grama Panchayat on 08.1.2016. The letter has been dispatched on 18.12.2015 and has been singed by opposite party no.2. So there is a clear more than fifteen days gap between the date of the notice and the date of holding of no confidence meeting. The letter has been dispatched on 18.12.2015 and has been singed by opposite party no.2. So there is a clear more than fifteen days gap between the date of the notice and the date of holding of no confidence meeting. Clause (c) of sub-section (2) of Section 24 of the Act provides that 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. 5. It is argued on behalf of the learned counsel for the petitioner that the notice was not issued to him and the petitioner-Sarpanch has not received the proper copy of the notice as the said notice did not have copies of the requisition and resolution as enclosures. He draws attention of the court to the document maintained by the Office of the Sub-Divisional Panchayat Office (Sadar), Balasore, wherein the petitioner has received the notice on 24.12.2015 and he after signing his name has noted that he has received notice without copy of the resolution and copy of the requisition. 6. However, on the face of record, it appears that the document has been manipulated as the date appearing on the same has been manipulated to the bare eye. Moreover, one of the staff of the office of the Grama Panchayat Extension Officer, namely Purnima Majhi, has stated that she has served notice on the petitioner-Sarpanch on 22.12.2015 along with copies of the requisition and proposed resolution. The Sarpanch has signed on the same, but without her knowledge the petitioner-Sarpanch has changed the date from 22.12.2015 to 24.12.2015 and has not made certain endorsement on it. In order to examine whether the stand taken by the learned counsel for the opposite parties is correct or not, the sealed envelope containing an unserved notice issued through registered post to the petitioner-Sarpanch, which has been refused to be accepted by him found in the records maintained by the Grama Panchayat Extension Officer, is opened in the Court and it is apparent from the aforesaid document that it contained a notice, the copy of the requisition and a copy of the proposed resolution prepared on 30.11.2015. 7. 7. This being the fact of the case. This Court take resort to the Full Bench Judgment of the High Court of Orissa in the case of Sarat Padhi V. State of Orissa and others; 65(1986) C.L.T. 122. In the said reported case the Full Bench of the Orissa High Court has held that the scheme of the notice contemplated under section 24(2)(c) of the Act may be divided into three parts; a. requirement of giving notice, b. fixing the margin of time between the date of the notice and the date of the meeting and c. service of notice on the members. 8. The first two parts, namely, the duty of issuance of 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 has been a breach of any of these two conditions, then the meeting will be invalid without any question of prejudice. But the third part, 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 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 to obviate such contingencies by incorporating clause (e) to sub-section (2) of section 24. 9. In this case fifteen days notice has been issued giving the date, time and place of holding such meeting, so there has been no breach of violation of Section 24(2)(c) of the Act in this case. 10. The second argument is regarding requirement of proposed resolution on the petitioner-Sarpanch. In the preceding paragraph, this Court has also come to the conclusion that the petitioner-Sarpanch refused a postal notice which in fact contains a copy of the requisition and a copy of the proposed resolution. Moreover, the petitioner-Sarpanch manipulated the records which he has signed after receipt of the notice. In the preceding paragraph, this Court has also come to the conclusion that the petitioner-Sarpanch refused a postal notice which in fact contains a copy of the requisition and a copy of the proposed resolution. Moreover, the petitioner-Sarpanch manipulated the records which he has signed after receipt of the notice. The Registered Post Envelope itself contains that the requisition and the copy of the proposed resolution are enclosed to the said notice. So this Court is of the opinion that the contentions raised by the learned counsel for the petitioner on this score is fallacious and is clearly incorrect and should not be accepted. 11. The 3rd contention is that the petitioner-Sarpanch challenged the very format of the resolution by reading the same and states that it is a resolution and not a proposed resolution. 12. Admittedly, the Act itself does not provide the format of the requisition or the proposed resolution. Only because a proposed resolution is not in a particular format, it cannot be held that the proposed resolution is incorrect. In fact, it is apparent from the proceeding of the meeting dated 30.11.2015 that the signatories thereto which constitute more than 1/3rd of the members of the Grama Panchayat having lost confidence in the leadership of the petitioner-Sarpanch seek his ouster through no confidence motion. It is apparent from the record that even the said document contains what are the allegations against the present petitioner and ultimately proposed that they want to bring a no confidence motion against the Sarpanch and such resolution is adopted by the members present. 13. Keeping in view the aforesaid consideration, this Court is of the opinion that a copy of the resolution is necessary to be sent to the petitioner to make him aware of the allegations made against him and the proposed resolution that may be passed against him. When the contents of the document which has stated to be the copy of the proposed resolution though may not be drafted craftily in legal terms if conveys the fact that in the proposed resolution the signatories are seeking is a no confidence against the petitioner then also the conditions laid down under Section 24(2)(c) of the Act shall be held to have been complied. 14. 14. In that view of the matter, this Court is of the opinion that the 3rd contention raised by the learned counsel for the petitioner is also not acceptable and the same is liable to be rejected. 15. Accordingly, the writ petition is dismissed. No costs. The records produced by the learned Addl. Government Advocate for the State be sent back immediately.