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2020 DIGILAW 28 (ORI)

Jaga Pradhan v. State of Odisha

2020-01-28

D.DASH

body2020
ORDER : D. Dash, J. 1. The Petitioner, by filing this writ application, seeks to assail the decision of the Sub-Collector, Baliguda dated 2.11.2019, Kandhamal (Opposite Party No. 3) in convening a meeting to consider the no confidence motion against him, who is the elected Sarpanch of Parigarh Grama Panchayat (for short, 'Grama Panchayat) in the district of Kandhamal. 2. The Petitioner is the elected Sarpanch of Parigarh Grama Panchayat and has been in the office and discharging him duties as such since his assumption of the charge of the office after the election. When the matter was continuing as such, the Sub-Collector, Baliguda (opposite party No. 3), by his letter No. 6019 dated 02.11.2019, convened the special meeting of the Panchayat on 19.11.2019 for consideration of the no confidence motion against the Petitioner in the Panchayat office fixing the time at 10.30 am as under Annexure-3. The challenge here is to the said decision in convening the meeting for record of the no confidence motion against the petitioner by issuance of the notice as at Annexure-3. 3. The Parigarh Grama Panchayat comprising of 11 Wards has thus 11 members including the Sarpanch as one among them. The main contention raised in this application in support of the challenge to the decision of the Opposite Party No. 3 by issuance of notice under Annexure-3 pursuant to the so- called requisition dated 11.9.2019 annexed to Annexure-3 said to have been given by 10 Ward Members including the Opposite party nos. 6 to 14 as not in consonance with the statutory requirements as provided in section 24 of the Odisha Grama Panchayat Act, 1964 (hereinafter referred to as the O.G.P. Act). Thus it is said that the decision of the Opposite Party No. 3 to convene a special meeting in issuing notice under Annexure-3 is arbitrary, illegal and as the outcome of non-application of mind. 4. Mr. S.K. Mishra, learned counsel for the Petitioner in course of hearing confines his submission on the score that the said decision of the Opposite Party No. 3 in convening the special meeting for record of no confidence motion against the Petitioner who is the elected Sarpanch of the Grama Panchayat, is in gross violation of sub-section-2 of section 24 of the O.G.P. Act and thus, it is liable to be quashed. According to him, the decision of the Opposite Party No. 3, in issuing the notice under Annexure-3 for convening the said meeting based upon the so-called signed requisition as tendered by the Opposite Party nos. 6 to 14 and another vide letter dated 19.9.2019, is in utter violation and non-compliance of the provision of sub-section (2) of Section 24 the O.G.P. Act, which clearly mandates that such requisition signed by 1/3rd members of the Grama Panchayat addressed to the authority has to accompany the resolution, which is proposed to be moved in that meeting. He submitted that this letter under Annexure-3, if is taken as the requisition, as required under section 24 (2)(a) of the O.G.P. Act, no such proposed resolution being sent with the same to the Opposite Party No. 3, no decision ought to have been taken by the Opposite Party No. 3 for issuance of the notice under Annexure-3 in convening the special meeting for said move of no confidence motion against the petitioner, the Sarpanch of the Grama Panchayat as desired. He submitted that as mandated under section 24(2)(a) of the O.G.P. Act, the members have not been served with any such copy of the proposed resolution to be moved in the said convened meeting. He submitted that the legislature in its wisdom having provided the safeguard that not only 1/3rd of the total members of the Grama Panchayat have to send the requisition to the authority but also they must enclose the resolution which they propose to move in the said specially convened meeting, it was not within the competence/domain of the Opposite Party No. 3 to dispense with the requirement of either of those two, treating one as composite serving as requisition as also the proposed resolution. He submitted that the provision of law in this regard has to be strictly construed and here in the case the so-called letter of the Opposite Party nos. 6 to 14 and another even if said to be the requisition in terms of the provision of the 24(2)(a) of the O.G.P. Act, it cannot also be taken to be the proposed resolution in terms of that provision so as to meet the twin requirements as provided thereunder. It was submitted that the letter dated 11.09.2019 said to have been sent by the Opposite Party nos. It was submitted that the letter dated 11.09.2019 said to have been sent by the Opposite Party nos. 4 to 16 and another even if is read in entirety do not satisfy the twin requirements as provided in section 24(2)(a) of the Act and it can be only said to be a request made by those Opposite Party nos. 6 to 14 and another to convene a meeting for record of no confidence motion against the petitioner without due compliance of the provision of law in that regard. With all the above, he submitted that the Opposite Party No. 3 has committed grave error both on fact and law in accepting the letter dated 11.9.2019 and by reading or construing it as the requisition as well as the proposed resolution in proceeding ahead in the matter by taking a decision to convene a meeting by issuing the notice for the purpose as at Annexure-3 without annexing the copy of the proposed resolution which is mandatory. In support of his submission, he heavily relied upon the decision of this Court in the case of "Smt. Kamala Tiriya v. State of Orissa and others; AIR 2001 Orissa 67, Muktamanjari Sahu v. State of Orissa and others, 2010 (II) O.L.R. 473 and Prahallad Dalei v. State of Odisha and others; (2014 (II) O.L.R., 574 : AIR 2014 ORI 179 ), which would be discussed hereinafter at the appropriate place. 5. Miss. S. Ratho, learned Additional Government Advocate submitted all in favour of the said decision as to issuance of the notice under Annexure-3. According to her, the requisition dated 11.9.2019 sent by the Opposite Party nos. 6 to 14 and another had been thoroughly scrutinized and ascertained to have been so given by them under their signatures and as per their own desire and volition for the reason and purpose stated therein. She, therefore, submitted that the Opposite Party No. 3 has rightly taken the decision to convene the special meeting. She submitted that the said letter dated 11.9.2019 since satisfies the twin requirements as provided in section 24(2)(a) of the O.G.P. Act, the Opposite Party No. 3 did commit no mistake in deciding to convene the special meeting by issuing the notice under Annexure-3. She submitted that the said letter dated 11.9.2019 since satisfies the twin requirements as provided in section 24(2)(a) of the O.G.P. Act, the Opposite Party No. 3 did commit no mistake in deciding to convene the special meeting by issuing the notice under Annexure-3. She further submitted that in every case, it is not so required that the requisition should accompany the proposed resolution in separate sheet/s and if in the requisition the proposed resolution also finds mention or is indicated/hinted, the decision pursuant to the same if is taken by the concerned authority in reading the requisition as also comprising the proposed resolution, is not amenable to challenge as the outcome of non-application of mind and it cannot at all be said to be arbitrary and illegal. She submitted that in such appropriate case if the authority concerned arrives at a satisfaction that the requisition also comprises of the proposed resolution and takes the decision thereof, the objection that as regards the absence of the proposed resolution falls flat and in that event, issuance of the notice with the copy of the requisition would satisfy the requirement of section 24(2)(c) of the O.G.P. Act. She, however, placed that pursuant to the interim order dated 14.11.2019 passed by this Court, the result is awaited. 6. Mrs. S. Jena learned Counsel appearing on behalf of the Opposite Party nos. 6 to 14 reiterating the submission of Miss. Ratho, the learned Additional Government Advocate, contended that there being no violation of the statutory provisions in taking the decision by the Opposite Party No. 3 in convening the special meeting for record of no confidence motion followed by the issuance of notice as provided in section 24 of the O.G.P. Act, this writ application is liable to be dismissed. In support of their submissions, they placed strong reliance upon the decisions of this Court in the following cases:- "(i) Jagadish Pradhan and others v. Kapileswar Pradhan and others; OJC No. 11288 of 1985 (decided on 27.08.2005); (ii) Padmini Nayak v. State of Orissa; W.P.(C) No. 9603 of 2004 (decided on 30.08.2005) and (ii) Binodini Das v. State of Orissa and others; 2013 (Supp-1) OLR 891." 7. In order to address the rival submissions, it would be appropriate to refer section 24 (2) of the O.M. Act. "24. In order to address the rival submissions, it would be appropriate to refer section 24 (2) of the O.M. Act. "24. Vote of no confidence against Sarpanch or Naib-Sarpanch (1) xx xx xx xx (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 the rules, made under this Act, subject however to the following provisions, namely: (a) no such meeting shall be convened except on a requisition signed by at least one-third of the total membership of the Grama Panchayat along with a copy of the resolution of 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 said 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 resolution and of the proposed resolution, at least fifteen clear days before the date so fixed; (d) xx xx xx xx (e) xx xx xx xx (f) xx xx xx xx (g) xx xx xx xx; (h) xx xx xx xx; (i) xx xx xx xx; (j) xx xx xx xx; and (k) xx xx xx xx" It provides that no such meeting shall be convened except upon receipt of a requisition signed by at least 1/3rd of the total membership of the Grama Panchayat addressed to the Sub-Divisional Officer along with the copy of the resolution proposed to be moved at the meeting. The Sub-Divisional Officer then shall fix the date, hour and place of such meeting by giving notice to all the members holding office on the date of such notice along with the copy of the requisition and the proposed resolution at least fifteen clear days before the date so fixed for the meeting. To put it more clearly, the aforesaid provision would show that the decision by the authority to convene the special meeting for recording want of confidence in the Sarpanch of the Grama Panchayat, should be upon the receipt of a requisition addressed to him being signed by at least one-third of the total membership of the Grama Panchayat and that requisition is required to be accompanied with a copy of the resolution proposed to be moved at the meeting. On receipt of such requisition along with the proposed resolution, the Sub-Divisional Officer will take a decision in the matter of convening the meeting and give notice fixing the date, hour and place of such meeting to all the members i.e. the requisitionist members as well as others holding office annexing a copy of the requisition and as also the proposed resolution for further needful action. 8. The requisition letter dated 19.9.2019 annexed to the notice given by the Opposite Party No. 3 for said meeting being, read reveals that it has been addressed to the Collector, Kandhamal, the opposite party No. 2. The Opposite Party Nos. 6 to 14 and another have not sent any such letter being addressed to the Opposite Party No. 3 for his decision in convening the meeting. It further reveals therefrom that they have expressed their lack of confidence on the petitioner for the reason that during the meeting and at other time, when they are expressing their view and resolving in any such matters to be carried out in discharge of the duties and functions of the Grama Panchayat keeping in view the rules and regulations holding the field. in greater public interest; those resolved views are being thrown to the winds by the petitioner who instead has been going ahead to do all said acts according to his own desire and whims. It is also not indicated in that letter as to if they had also enclosed the proposed resolution. They have also not expressed therein that said letter had been sent in the direction of compliance of the sending of the requisition as also the resolution meeting the twin requirements. Nor it is stated therein that said letter be read as a composite one i.e. requisition as well as resolution. It appears therefrom that they have decided to proceed for a no confidence motion and place it before the Government. They, in the greater interest of the Grama Panchayat and its development in every respect, have requested the Opposite Party No. 2 to immediately enquire and accept the proposal. In that letter, those members have not made any request to convene the meeting for the purpose of passing of a resolution expressing no confidence on the petitioner's continuance as Sarpanch of the Grama Panchayat. 9. In that letter, those members have not made any request to convene the meeting for the purpose of passing of a resolution expressing no confidence on the petitioner's continuance as Sarpanch of the Grama Panchayat. 9. In case of Kamala Tiria (Supra), the resolution passed in the specially convened meeting regarding the want of confidence in the Chairperson of the Zilla Parishad as also the notification of the Government in the Department of Panchayat Raj publishing that resolution have been quashed for the reasons of non-compliance of the provisions in that regard as contained in Odisha Zilla Parishad Act, which are in pari material with the provision of Section 54 of the O.M. Act that the proposal to be moved in the meeting had not been sent to the authority along with the requisition and thus not circulated to all the members. In case of Muktamanjari Sahoo (Supra), the notice issued by the authority for convening a special meeting of the Grama Panchayat for discussion of the no confidence motion against its Sarpanch has been quashed in the absence of the copy of the proposed resolution being enclosed by those 1/3rd of the total members of the Grama Panchayat to the authority with the requisition and obviously for the reason of its non-circulation to all the members. In Prahallad Dalei's case (Supra), the court finally quashed the resolution passed by the Grama Panchayat in which want of confidence in the Sarpanch had been recorded on the ground that the authority while issuing the notice expressing the decision to convene the specially meeting of the Panchayat for the purpose had not enclosed the copy of the proposed resolution for being served upon all the members of the Panchayat. 10. In case of Jagadish Pradhan and others (Supra), after the resolution being passed in the meeting, State Government having passed the order as required under Odisha Panchayat Samiti Act that the Chairman of the Panchayat Samiti lacks confidence of the Panchayat Samiti, a revision had been moved by the said Chairman. The Revisional Authority quashed the resolution on the ground that the requisition was not in accordance with law and in the absence of a seal in the notice given by the authority, the said Chairperson was mislead and could not attend the meeting. The Revisional Authority quashed the resolution on the ground that the requisition was not in accordance with law and in the absence of a seal in the notice given by the authority, the said Chairperson was mislead and could not attend the meeting. It had also been held by the Revisional Authority that the requisition is invalid as the required number of members had not signed therein. This Court, by taking the proposed resolution passed into consideration which contained the signatures of the required number of members of Panchayat Samiti has held that nonappearance of signatures of all those members also in the requisition is of no significance to say that the decision taken thereunder for convening the special meeting for moving the no confidence motion against the Chairman of the Panchayat Samiti is illegal and vitiated. Interpreting the relevant provision of the Odisha Panchayat Samiti Act, it has been said that the law requires that the copy of the resolution proposed to be moved at the meeting to be sent along with the requisition and in the resolution the proposal was clearly mentioned to be the absence of confidence of the signatories on the Chairman. So, it has been said that merely because the proposal is not in a separate document, the action taken thereupon does not become illegal when there is no form prescribed for such proposed resolution and the authority well understood the intention behind the resolution. In that view of the matter, the decision of the Authority to convene the meeting has been held to be right treating everything to be in non-compliance of the relevant provisions of law contained in the Panchayat Samiti Act. In Padmini Naik's case (Supra), the decision as to convene a meeting for the no confidence motion against the Sarpanch of the Grama Panchayat had been called in question. The issue raised therein that the requisition under Annexrue-2 was not the requisition as mandated in law and so also the proposed resolution under Annexure-3 of said application was not the proposed resolution in consonance with law. The court, on going through Annexure-2, found that eight out of twelve Ward Members of the Grama Panchayat had written to the authority requesting him to take further step in taking the initiative for follow up action on the no confidence motion brought by them against the Sarpanch of the Grama Panchayat. The court, on going through Annexure-2, found that eight out of twelve Ward Members of the Grama Panchayat had written to the authority requesting him to take further step in taking the initiative for follow up action on the no confidence motion brought by them against the Sarpanch of the Grama Panchayat. Upon perusal of Annexure-3, which had been enclosed that Annexure-2, the Court found that on 11.3.2004, an urgent meeting under the Chairmanship of one Ward Member had been held where eight Ward Members had attended and in that meeting, there being thorough discussion about the action and manner of functioning of the Sarpanch of the Grama Panchayat finally request had been made to the Authority by sending Annexure-2 enclosing Annexure-3. In that eventuality, the court has repelled the objections raised that Annexure-2 and Annexure-3 do not satisfy the legal requirements as that of a valid requisition and proposed respectively. 11. Adverting to the case on hand, here said letter dated 19.9.2019 given by the Opposite Parties 6 to 14 and another which is said to have triggered the action at the end of Opposite Party No. 3 in issuing notice convening the special meeting for consideration of the no confidence motion against the petitioner who happens to be the elected Sarpanch of the Grama Panchayat first of all is not addressed to the Opposite Party No. 3 as mandated under Clause (b) of sub-section 2 of Section 24 of the O.G.P. Act. That being addressed to the Opposite Party No. 2, it is not seen nor stated as to how it came to the hands of the Opposite Party No. 3. That letter's copy as indicated therein at the foot note had been sent to the opposite party No. 3 for information and necessary action. There was thus no formal request before the opposite party No. 3 for convening the meeting for the purpose of consideration of no- confidence motion against the petitioner. In fact even in that letter, there was no such request for convening the special meeting for that specific purpose. In such state of affairs as emanate from the letter dated 11.09.2019, the same, in my considered view, cannot be taken as a requisition addressed to the Opposite Party No. 3 as mandated in clause (b) of sub-section 2 of section 24 of the O.G.P. Act. 12. In such state of affairs as emanate from the letter dated 11.09.2019, the same, in my considered view, cannot be taken as a requisition addressed to the Opposite Party No. 3 as mandated in clause (b) of sub-section 2 of section 24 of the O.G.P. Act. 12. Next even assuming for a moment that this was the requisition as required under the law, the proposed resolution as required to be annexed to it, is wanting. The law does not require that the 1/3rd member of the total membership of the Grama Panchayat must pass a resolution by holding a meeting and then enclose the same with the requisition for the decision of the Authority to convene the meeting for the purpose of discussion of the no confidence motion. The very purpose of the twin requirements, in my considered view, appears to be that those required members, if feel that the Sarpanch does not carry the confidence, they may make a request to the Authority by sending the requisition expressing therein that a resolution, as enclosed therewith, would be placed for being passed in the said meeting. The purpose of due circulation of both i.e. the copy of the requisition as well as the proposed resolution to all the members with the notice for the purpose is that they must be well aware of the requisition as has been made as also its purpose and the resolution which is proposed to be moved in the said meeting for being passed so as to prepare themselves to effectively take part in the discussion by making due deliberation, if so required, on any such issue/s. The sending of the requisition being addressed to the particular Authority as well as the proposed resolution to the Authority and its onward circulation to all the members in case a decision in favour of convening said meeting by the Authority is so taken, are not empty formalities. The purpose of sending requisition with the proposed resolution to the Authority and their onward circulation to all the members in case of convening the meeting is to see that all concerned are apprised of the specific purpose behind the convening of the meeting as asked for by the members/requisitionists and the objective that those members/requisitionists seek to achieve in that meeting. The word 'resolution' as has been defined in Black's Law Dictionary (Tenth Edition) is 'A main motion that formally expresses the sense, will or action of the deliberative assembly whereas the 'requisition' has the definition as that of formal request to. So, in my considered view, the twin requirements can of course be met if in the requisition duly addressed to the Authority, the resolution as the requisitionists propose also finds mention for the Authority to so view instead of insisting upon a separate enclosure of that and for being satisfied that it can be so read as to provide satisfaction to all the members in that direction. In the instant case, as already discussed, said view that the so called requisition also satisfied the purpose of proposed resolution cannot be taken. The well recognized rule and sound principles are that when the statute gives the power to do a certain thing in a certain manner, the thing must be done in that way or not at all. Statute conferring a power for doing an act when lays down the method in which the power has to be exercised, it necessarily prohibits the doing in any other manner than that has been prescribed. Here, the opposite party No. 3 has arrived at the decision without receiving the requisition but by receiving the copy of the letter sent to the opposite party No. 2 who had also not received the proposed resolution along with that copy of the letter. The copy of said letter being sent for information and action as deemed just and proper at the end of opposite party No. 3, he could not have taken that as the requisition and even then that could not also been said to be serving the twin requirements such as the requisition as also the proposed resolution. Here, the Opposite Party No. 3 has arrived at the decision without receiving the requisition and the copy of the proposed resolution and thus as a follow up action as mandated in law that copies of the requisition as also the proposed resolution have not been circulated to all the members. 13. Here, the Opposite Party No. 3 has arrived at the decision without receiving the requisition and the copy of the proposed resolution and thus as a follow up action as mandated in law that copies of the requisition as also the proposed resolution have not been circulated to all the members. 13. In the wake of aforesaid discussion, here in the case the decision of Opposite Party No. 3 in convening the special meeting of the Grama Panchayat by issuing notice under Annexure-3 being not with the fulfilment of the statutory requirements, i.e., the receipt of the requisition and the proposed resolution for their circulation to all the members, the notice under Annexure-3 reflecting the decision of Opposite Party No. 3 to convene the special meeting for discussion on that no confidence motion cannot sustain in the eye of law. In the result, the decision of the opposite party No. 3 in convening the meeting to consider the no confidence motion against the petitioner, the elected Sarpanch of Parigarh Grama Panchayat by issuance of notice under Annexure-3 stands quashed. 14. The writ application is accordingly allowed. No costs.