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2016 DIGILAW 915 (ORI)

Manikya Suna v. State of Odisha

2016-10-05

S.K.MISHRA

body2016
JUDGMENT S.K. MISHRA, J. - In this writ petition, the petitioner, who has been the elected as the Chariman of Karlamunda Panchayat Samiti in the district of Kalahandi, has prayed to quash the initiation of “No Confidence Motion” under Section 46-B of the Orissa Panchyat Samiti Act, 1959 (hereinafter referred to as the “Act” for brevity) on the ground that the procedure adopted by the Sub-Collector, Bhawanipatna, opposite party no. 2, is defective and in contravention of the statutory provisions of the Act as well as violative of the circular No. 31535 dated 30.09.2009 of the State Government in the Department of Panchyati Raj as well as the circular issued by the Central Government. 2.The petitioner is the elected Chairman of Karlamunda Panchayat Samiti in the election held in the year 2012. She submits that on 7.5.2015 in the morning hours she has gone to the Block Office and on her return to her house in the afternoon, she found photo copy of letter issued by opposite party no. 2 vide No. 1922 (27), dated 4.5.2015. On query, she was informed that one person has come allegedly from the Block Office to serve the letter on being instructed by the G.P.O. The petitioner could know from the contents of the letter that opposite party no. 2 requested her to remain present on 13.5.2015 at 11 A. M. at Karlamunda Panchayat Office to take part in the “No Confidence Motion” initiated against her at the instance of some members. 3.After coming to know contents of the document she made queries from other members like Sarpanches and some members of the Panchayat Samiti, but they expresses their ignorance regarding any such “No Confidence Motion”. The petitioner pleads that as per Government Circular while Lok Sabha or Assembly is in Session, no proceeding for no confidence motion under G.P. Act, Panchayat Samiti Act or Municipal Act can be initiated. It is further submitted that as Lok Sabha was going on, the aforesaid motion is bad in law and is liable to be set aside. She further pleaded that Lok Sabha Sessions started from 23rd February 2015 till 8th May, 2015. Subsequently, the Session extended till 13the May, 2015. The second plea raised by the petitioner is that the provisions of the Act, especially Section 46-B of the said Act, notice of “No Confidence Motion” should be appended with the proposed resolution. She further pleaded that Lok Sabha Sessions started from 23rd February 2015 till 8th May, 2015. Subsequently, the Session extended till 13the May, 2015. The second plea raised by the petitioner is that the provisions of the Act, especially Section 46-B of the said Act, notice of “No Confidence Motion” should be appended with the proposed resolution. In the instant case, opposite party no. 2 has not send the original notice along with the proposed resolution. Therefore, it is stated that the action of opposite party no. 2 is violative of the provisions of the Act, it is further stated that opposite party no. 2 is violative of the provisions of the Act. It is further stated that opposite party no. 2 has signed the notice on 2.5.2015, but the same was issued by the office of opposite party no. 2 on 4.5.2015 and was went to the house of the petitioner on 7.5.2015 directing the petitioner to remain present on 13.5.2015 to discuss and cast vote in the motion. Therefore, the petitioner is apprehending some foul play with regard to service of notice to the members to cast vote in the motion and she apprehends that every chance of tampering her signature as well as signature of other members to fulfill the ill motives of the opponents. Thus, her specific case is that initiation of the motion is based on fraud and misrepresentation of the facts at the instance of the members of the ruling party and hence the entire proceeding has been initiated by few members and the petitioner was not aware of the alleged proposed resolution. It is further claimed that at the time of “No Confidence Motion” the presence of local M.L.A. and M.P. or their representatives are required. Therefore as per circular No. 31535 dated 30.9.2009 issued by the State in P.R. Department, “No Confidence Motion” cannot be issued or initiated while assembly or parliament is in session. In the instant case, the said circular has been violated. Therefore, the petitioner has prayed that the notice by opposite party no. 2, i.e. Annexure-1, for holding of the “No Confidence Motion” against her should be quashed. 4.Counter affidavit has been filed by the Block Development Officer, Karlamunda having been authorized by Opposite party No. 2. In the instant case, the said circular has been violated. Therefore, the petitioner has prayed that the notice by opposite party no. 2, i.e. Annexure-1, for holding of the “No Confidence Motion” against her should be quashed. 4.Counter affidavit has been filed by the Block Development Officer, Karlamunda having been authorized by Opposite party No. 2. It is submitted that one Shrinibas Mishra, Vice Chariman, Karlamunda Panchayat Samiti and eleven other Panchayat Samiti Mmbers and Sarpanches of Karlmunda Panchayat Samiti filed a requisition before opposite party no. 2 on 2.5.2015 as per Section 46/B of the Act to convene the special meeting to pass and adopt the “No Confidence Motion” against the present petitioner. They had annexed a copy of the proposed resolution to be moved in the meeting signed by twelve members of the Samiti including the Vice Chairperson. The copy of the resolution and the proposed resolution to be moved in the meeting has been annexed to the counter. It is further stated that as per the provision enshrined in Section 46-B(2)(A) of the Act, the requisition and the proposed resolution for “No Confidence Motion” to be moved in the meeting was signed by twelve members, which is more than one third members having right to vote. The total members in Karlamunda Panchayat Samiti are twenty-six. 5.It is further stated that opposite party no.2 verified and compared the signatures of the Vice Chairperson, Panchayat Samiti Members and Sarpanches and found it to be correct. Opposite party no. 2 also enquired personally from the Samiti Members and Sarpanches of Karlamunda Panchayat Samiti for “No Confidence Motion” against the chairperson. Finding the same to be correct, opposite party no. 2 fixed the date and time i.e. on 13.5.2015 at 11 A.M. for the special session of the Panchayat Samti in the Meeting Hall at Karlamunda Panchayat Samiti Office. Notice was issued vide Notice No. 1922 dated 4.5.2015 in accordance with the provisions of the aforesaid Act. 6.It is further pleaded that Basudev Nayak, Tahasildar, Narla was authorized by opposite party no. 2 to conduct, regulate, preside over and record the proceedings of specially convened meeting for “No. Confidence Motion” against the present petitioner. In the mean time, interim orders were passed by this Court. hence, the Tahasildar, Narla, presided over the specially convened meeting on 13.5.2015 and kept the resolution adopted in sealed cover. 2 to conduct, regulate, preside over and record the proceedings of specially convened meeting for “No. Confidence Motion” against the present petitioner. In the mean time, interim orders were passed by this Court. hence, the Tahasildar, Narla, presided over the specially convened meeting on 13.5.2015 and kept the resolution adopted in sealed cover. Out of 26 members, 19 members attended the specially convened meeting and voted in the meeting. It is also stated that presence of 19 members fulfilled the requirement of quorum, i.e. 2/3rd of the total membership of Karlamunda Panchayat Samti. The petitioner though present in the meeting, refused to put her signature on the attendance sheet. 7.As far as the allegation of holding a meeting during the session of the parliament is concerned, it is stated by opposite party no. 2 that the last session of parliament was fixed to be held from 20.4.2015 to 8.5.2015. Keeping in view the closure of parliament session on 8.5.2015, opposite party no. 2 fixed up the date, time and venue of special meeting of Karlamunda Panchayat Samiti on 13.5.2015. Accordingly, notices were issued through Registered Post. Notices were also issued to B.D.O., Karlamunda. However, the session of the parliament was suddenly extended upto 13.5.2015. In the said circumstances, opposite party no. 2 could not defer or postpone the meeting to subsequent date as the date has already been fixed and notices were also issued. It is also stated that notices issued to the petitioner through registered post was to be served on the petitioner, but as she was absent from 11.5.2015 to 15.5.2015 the same could not be served upon her. To that effect endorsement is available to the said document. Rest of the allegations have been denied by opposite party no.2. 8.Opposite party nos. 4 to 15 also filed their counter affidavit which is similar to the stands taken by opposite party no. 2. It is not necessary to go into the details of the said counter affidavit as it would be repetition of facts already stated earlier. 9.The petitioner filed a rejoinder to the aforesaid counter affidavit on 31.1.2016. She further submits that opposite party no. 2 without comparing the signatures accepted the alleged requisition and stated to have issued notices to all members on the same day. 9.The petitioner filed a rejoinder to the aforesaid counter affidavit on 31.1.2016. She further submits that opposite party no. 2 without comparing the signatures accepted the alleged requisition and stated to have issued notices to all members on the same day. She further pleads that she has come to know that some of the members, Lok Sabha M.P., Rajya Sabha M.P. and M.L.A. had not received the notices before the date fixed for “No Confidence Motion”. Her specific case is that the document, i.e. Annexure-L/2 has been prepared by one Bikash Kumar Jain, who is a member of the Panchayat Samiti, in his house after collecting all notices which is supposed to be served by the competent authority to the individual members with due endorsement and by giving clear seven days notice. The petitioner has neither accepted any notice nor signed on the acknowledgement sheet that is, Annexure-L/2. She specifically submits that the Annexure-L/2 is a forged one. A further rejoinder affidavit has been filed by the petitioner on 21.1.2016 more or less reiterating the aforesaid pleas already discussed above. 10. The petitioner has also filed Misc. Case No. 5880/2016 purportedly to be an application under Order 26, Rule 10 of the C.P.C. praying to refer the documents, i.e. Annexure-L/2 and G/2 of the counter filed by opposite party no. 2 and Annexure-5 of the rejoinder affidavit filed by her be sent to a handwriting expert for scientific investigation to ascertain the authenticity of the document as well as her signature and signatures of the P.S. members and Sarpanches appears in Annexure-L/2. 11.Discussions of the pleadings of the parties revealed that the petitioner based her case on three grounds. Firstly, it is stated that notice dated 4.5.2015 is not accordingly to settled position of law. No. clear seven days notice has been given to the members before the scheduled date of the special meeting of the Panchayat Samiti. Secondly, notice is not accompanied by proposed resolution to be passed in the said meeting. Thirdly, it is contended that the special meeting of the Panchayat Samiti has been held during the session of the parliament and hence the aforesaid date of “No Confidence Motion” is illegal. Another point also comes to forth is that the signature of the present petitioner is allegedly forged by the parties concerned and that she has not signed the acknowledgement sheet for receipt of the notice. Another point also comes to forth is that the signature of the present petitioner is allegedly forged by the parties concerned and that she has not signed the acknowledgement sheet for receipt of the notice. 12.Learned counsel for the petitioner relied upon the cases of Akrura Nial Vrs. State of Orissa and others; 101 (2006) CLT 245 and Parbati Hembram Vrs. State of Orissa and 22 others;* 101 (2006) CLT 697. It is contended on behalf of the learned counsel appearing for the petitioner that the date of dispatch from the post office is relevant date and the date of signing of the notice by the Sub-Collector or the date of receipt of notice by the member concerned is not relevant. However, this question was the subject matter of dispute in the reported case of Sarat Padhi V. State of Orissa and others; 65(1986) C.L.T. 122 which was decided by the Full Bench of this Court. In the case of Sarat Padhi V. State of Orissa and others (supra) the question arose about the mandatory requirement of law as enshrined under Section 24(2) (c) of the Orissa Grama Panchayat Act, 1964 (hereafter referred to as the “G.P. Act”). Section 24(2) of the G.P. Act reads as follows. “24(2). In the case of Sarat Padhi V. State of Orissa and others (supra) the question arose about the mandatory requirement of law as enshrined under Section 24(2) (c) of the Orissa Grama Panchayat Act, 1964 (hereafter referred to as the “G.P. Act”). Section 24(2) of the G.P. Act reads as follows. “24(2). In convening a meeting under Sub-Section (1) and in the conduct of business at such meeting the procedure shall be in accordance with such rules, as may be prescribed, subject however to the following provisions, namely; Xxx xxx xxx xxxxxxxxxxxx (f) the Sub-Divisional Officer or if he is unable to attend, any Gazetted Officer specially authorized by him in that behalf shall preside over, conduct and regulate the proceedings of the meeting (g) the voting at all such meetings shall be secret ballot; (h) 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 Sarpanch or Naib-Sarpanch, as the case may be, shall be taken up for consideration at the meeting; (i) if the number of members present at the meeting is less than two-thirds of the total membership of the Grama Panchayat the resolution shall stand annulled; (j) if the resolution is passed at the meeting supported by the majority as specified in Sub-Section (1) the Presiding Officer shall immediately forward the same in original along with the record of the proceedings to the Collector who shall forthwith publish the resolution in accordance with the provisions of Sub-Section (1); and (k) where any Gazetted Officer presides at the meeting he shall, without prejudice to the provisions of Clause (j), also send a copy of the resolution to the Sub-divisional Officer for information and such action as may be necessary.” 13.It is profitable to refer Section 46-B of the Act which is pari materia to the corresponding Section of the G.P. Act. The main difference is that in the G.P. Act sub-Section (2)(c) of Section 24 provides fifteen days notice whereas Section 46-B (2)(c) provides the notice should be at least seven clear days before the date scheduled to hold the “No Confidence Motion”. So the interpretation of law which arises in this case of the aforesaid Section is pari materia to Section 24 of the G.P. Act. 14. So the interpretation of law which arises in this case of the aforesaid Section is pari materia to Section 24 of the G.P. Act. 14. Having interpreted the scope of Section 24(2)(c) of the G.P. Act, the Full Bench of this Court 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 public policy as in that even 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 a provision to obviate such contingencies by incorporating clause (e) to sub-Section (2) of Section 24.” 15.In this case, the requisition was received by the opposite party on 2nd May, 2015., on being satisfied about the fulfillment of the provision of Section 46-B (2)(A) of the Act, opposite party no. 2 issued notice to the respective members. He signed the said document on 2.5.2015, but it was dispatched on 4.5.2015. The said meeting was to be held on 13.5.2015. Annexure-1 itself provides that the said notice was annexed with the requisition signed by more than 1/3rd members of the Panchayat Samiti and the proposed “No Confidence Motion” be discussed in the meeting. He signed the said document on 2.5.2015, but it was dispatched on 4.5.2015. The said meeting was to be held on 13.5.2015. Annexure-1 itself provides that the said notice was annexed with the requisition signed by more than 1/3rd members of the Panchayat Samiti and the proposed “No Confidence Motion” be discussed in the meeting. So this Court is of the opinion that there is clear seven days notice to the parties concerned, i.e. the members of the Panchayat Samti, Chairman etc. and there is no violation of Section 46-B(2)(c) of the Act. 16.As far as the plea of the petitioner not receiving a copy is concerned, it is seen that the petitioner has got a copy of the notice about the meeting and it is alleged that she got the copy without Annexures. She further states that the said notice was left in her house by some messenger from the Block Development Office. Her plea in this case appears to be in correct. The reasons for this Court coming to such a conclusion is that on the prayer made by the learned counsel for the petitioner in Misc. Case No. 3634/2016, on 26.2.2016 the learned Addl. Government Advocate was directed to produce the records of “No Confidence Motion”, dispatch register etc. and the documents were placed before the Court in a sealed cover. This Court inspected the record in the Court itself. From it, the Court found that the original sealed notice (through registered post) issued in favour of the petitioner forms part of the record. This Court opened the said envelope and from the envelope found that the notice to hold the aforesaid meeting has two Annexures. The first is the requisition signed by the requisite number of members and the second is the proposed resolution. A careful examination of the envelope reveals that the postman made attempts to serve the notice on the petitioner on 11.5.2015, 12.5.2015, 13.5.2015, 15.5.2015 and finally the petitioner refused to accept the notice and it was sent to the sender. It is seen that the post man noted that the petitioner was not at home when he made an attempt to serve notice. It is seen that the post man noted that the petitioner was not at home when he made an attempt to serve notice. Now, this aspect of the case if viewed with the observations made by the Full Bench of this Court in the case of Sarat Padhi V. State of Orissa and others (supra), this Court comes to the conclusion that there is no violation of the mandatory provisions of Section 46 (2)(c) of the Act, this is because the Full Bench has very categorically held that 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 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 a suitable provision to obviate such contingencies by incorporating clause (e) to sub-Section (2) of Section 24. Though in the Panchayat Samiti under Section 46-B no such provision like Clause (e) is appearing, this Court is of the view that non the less the ratio decided by the Full Bench in the case of Sarat Padhi V. State of Orissa and others (supra) shall be applicable to the proceeding in Panchayat Samiti Act as far as no motion as against the Chairman or Vice Chariman is concerned. 17.The second contention raised by the learned counsel for the petitioner is that notice was not accompanied by the proposed resolution. As discussed earlier in the preceding paragraphs, this Court has taken a note of the fact that the notice issued to the petitioner contain the requisition signed by requisite number of members of Panchayat Samiti consisting 1/3rd number of total members having right to vote. It is also seen that such notice was enclosed with a document which in the last paragraph has given the reasons for convening such a meeting. From the contents of the said document, it is apparent that the proposed resolution was to seek “No Confidence Motion” against the present petitioner. So the second point is also answered against the present petitioner. From the contents of the said document, it is apparent that the proposed resolution was to seek “No Confidence Motion” against the present petitioner. So the second point is also answered against the present petitioner. 18.The 3rd contention is that the while the Lok Sabha is in session the meetings of Panchayat Samiti, Zila Parishad etc. would not have been called for as per the directions given by the Government of Orissa, Panchayat Raj Department. It is not disputed in the case that the Parliament was in session when the aforesaid meeting was held It was further not disputed that the Parliament was originally scheduled to be held its sessions from 20.4.2015 to 8.5.2015. Opposite party no. 2 received the notice on 2.5.2015 and keeping in view of the fact that the session of the Parliament was to end on 8.5.2015, he fixed the special meeting of the Panchayat Samiti on 13.5.2015. However, in the mean time the session of the Parliament was extended up to 13.5.2015. The action of opposite party no. 2 cannot be said to be mala fide or tainted with any ulterior motive to violate the direction given by the State Government or the Central Government. Moreover, once a meeting of “No Confidence Motion” is filed it cannot be deferred as per clause (f) of sub-Section (2) of Section 46-B of the Act. The said clause provides that 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. Hence, opposite party no. 2 had no other option but to carry on with the proceeding of the aforesaid “No Confidence Motion”. It is also trite principle of law that department circulars or Government orders be it of the State Government or the Central Government cannot override the specific provisions in an Act. So in the view of the aforesaid clause (f) of sub-Section (e) of Section 46-B of the Act, “No Confidence Motion” held on 13.5.2015 is not illegal. Hence, this Court is of the opinion that only for that reason notice issued to hold “No Confidence Motion” can be quashed. So in the view of the aforesaid clause (f) of sub-Section (e) of Section 46-B of the Act, “No Confidence Motion” held on 13.5.2015 is not illegal. Hence, this Court is of the opinion that only for that reason notice issued to hold “No Confidence Motion” can be quashed. 19.As far as the allegation of the petitioner that her signature was forged one is concerned, this Court is of the opinion that the petitioner was well aware of the “No Confidence Motion” brought against her. It is also not disputed that notice was sent through registered post and it ws not served on the petitioner because she ws absent from her home. The post man made several attempts to serve notice on her and ultimately she refused to accept the same. So there has been sufficient compliance of Section 46-B (2)(c) of the Act and even though she might not have been served with the notice through Special Messenger it would not vitiate the proceedings. So, this Court is of the opinion that it is not necessary to send the signature of the petitioner appearing in various papers and the signatures appearing in the issue register or document prepared by the Block Development Officer for comparison to a handwriting expert. It may be noted here that the Act itself does not provide for any particular mode of service of notice. It may be served either Special Messenger or Postal Document or it may be served both ways. In this case, this Court is of the opinion that the Block Development Officer has served notice in both ways and though the petitioner has received notice as apparent from her pleadings, she is making out a concocted story of the same being given at her residence. One more thing is noted here that while arguing the case, Mr. Dhananjaya Mund, learned counsel for the petitioner, submitted that she found a copy of the notice on his office table. However, in the pleading the petitioner has pleaded that notice was left at her house. So, this itself show that non-receipt of notice along with annexures is an afterthought and she has raised such a plea only to make out a case in her favour. However, in the pleading the petitioner has pleaded that notice was left at her house. So, this itself show that non-receipt of notice along with annexures is an afterthought and she has raised such a plea only to make out a case in her favour. On the basis of the aforesaid discussions above and the analogous provisions of the Orissa G.P. Act, this Court, on the basis of the discussions made in the preceding paragraphs, come the conclusion that the there is no cogent and plausible reason to quash Annexure-1, i.e. the notice issued by opposite party no. 2 as it does not suffer from any illegality and it requires no interference. Accordingly, the writ petition is dismissed being devoid of any merit and the interim order passed earlier stands vacated. No costs. Petition dismissed.