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2020 DIGILAW 65 (ORI)

Khudiram Munda v. State of Odisha

2020-02-25

D.DASH

body2020
JUDGMENT : D. Dash, J. 1. The Petitioner, by filing this writ application, has assailed the decision of the Sub-Collector, Champua (Opposite Party no. 2) in convening a special meeting of the Jajaposi Grama Panchayat to consider the no confidence motion against him, who is the elected Sarpanch of said Grama Panchayat under Champua Sub-division in the district of Keonjhar followed by issuance of notice under Annexure-1 series. 2. The Petitioner is the elected Sarpanch of Jajaposi Grama Panchayat and has been in the office and discharging his duties as such since his assumption of the charge of the office after the election. When the matter stood thus, the Sub-Collector, Champua (opposite party no. 2), by notice No. 6718 dated 06.11.2019, convened the special meeting of the Grama Panchayat on 26.11.2019 for consideration of the no confidence motion against the Petitioner in the Panchayat office as under Annexure-1. The challenge here is to the said decision in convening the meeting for record of the no confidence motion against the petitioner followed by issuance of the notice as at Annexure-1. 3. The Jajaposi Grama Panchayat comprising of 11 Wards and has thus 11 members plus the Sarpanch. The two contentions raised in this application challenging the decision of the Opposite Party no. 2 by issuance of notice under Annexure-1 pursuant to the so-called requisition dated 24.10.2019 said to have been given by 10 Ward Members are that (i) the provision under section 24 of the Odisha Grama Panchayat Act, 1964 (hereinafter, referred to as 'the OGP Act') is violative of constitutional provisions as contained in Chapter IX of the Constitution of India; and (ii) the decision followed by the notice is not in conformity with the mandatory provision contained in section 24 of the O.G.P. Act. 4. Learned counsel for the petitioner submitted that the constitutional provisions do not provide that Sarpanch of a Grama Panchayat shall hold the office on the confidence of the Ward Members. He further submitted that all the seats in a Grama Panchayat are filled up by the persons chosen by election from the territorial constituency in the Panchayat area and the Sarpach is not chosen by the Ward Members nor his entry is at their pleasure when he is elected by all the voters. He further submitted that all the seats in a Grama Panchayat are filled up by the persons chosen by election from the territorial constituency in the Panchayat area and the Sarpach is not chosen by the Ward Members nor his entry is at their pleasure when he is elected by all the voters. He, therefore, submitted that the term of the Grama Panchayat being for five years and its composition being well defined, in the absence of any provision to fill up the vacancy to the office of Sarpanch, if unseated by the existing law; the provisions of the Act as contained in section 24 do not have the application on the face of Article 243-N of the Constitution. In order to derive support, reliance has been placed upon the decisions of the Hon'ble Apex Court in the case of Bhanumati and others Vs. State of U.P. and others ( AIR 2010 SC 3796 ) and Usha Bharati and others Vs. State of U.P. and others ( AIR 2014 SC 1686 ). 5. His next limb of submission was that the Sub-Collector, has failed to carry out the duty enjoined under section 24 of the Act OGP Act in verifying the genuineness of the requisition as also the enclosed copy of the requisition and the resolution as proposed to be passed in the said specially convened meeting. 6. Learned counsel for the State as well as the learned counsel for the opposite parties 3 to 13 submitted that the provisions contained in section 24 of the Act are in no way inconsistent with the constitutional provision as have been brought in by the Constitution (73rd Amendment) Act, 1992, which have given Panchayati Raj Institutions a constitutional status making it permanent in the Indian political system. They further submitted that even in the two cases cited from the side of the petitioner (supra), the respective provisions relating to no confidence motion as contained in Uttar Pradesh Ketra Panchayat and Zilla Panchayat Act have been held to be not against the constitutional provisions and it has been decided that said provisions are consistent with the fundamentals of the democracy and the State Legislature is within its power to make such provisions. 7. In response to the second limb of submission of the learned counsel for the petitioner; it was submitted that the decision taken by the Sub-Collector, opposite party no. 7. In response to the second limb of submission of the learned counsel for the petitioner; it was submitted that the decision taken by the Sub-Collector, opposite party no. 2 in convening the special meeting for discussion on the vote of no confidence against the petitioner and issuance of notice thereof are in conformity with the provisions of section 24 of the Act. According to them, the mandatory provision as contained in sub-section 2 of Section 24 of the Act have been scrupulously followed and observed in their letter and spirit. 8. In case of Bhanumati (supra), the matter before the Hon'ble Apex Court for consideration was the constitutional validity of U.P. Panchayat Laws (Amendment) Ordinance, 2007 (U.P. Ordinance 26 of 2007), which later on became U.P. Panchayat Laws (Amendment) Act, 2007 and (U.P. Act 44 of 2007) wherein the provisions relating to vote of no confidence as contained in section 28 of the (U.P. Khetra Panchayats and Zilla Panchayats Abhiniyam, 1961 (Act of 1961) as it stood after amendment vide the Amendment Act No. 44 of 2007 was under challenge. The relevant section 28 therein relates to the motion of no confidence. By amendment, the provision of the Act in the original Act as to the required number of persons to make the move, i.e, 2/3rd of the total members of the elected members was reduced to more than half and the lock-in period of two years during which no such no confidence motion can be brought was cut down to a period of one year. It had been argued that the provision of no confidence, being not in Part-IX of the Constitution is contrary to the Constitutional Scheme of things and would run contrary to the avowed purpose of Constitutional amendment which is meant to lead stability and dignity to Panchayati Institutions. It has been next said that the statutory provision of no confidence is a pre-Constitutional provision and was there much prior to 1992. The said provision of no confidence was, however, never repealed by any competent legislature as being inconsistent with any of the provisions of Part-IX and on the other hand by subsequent statutory provisions the said provision of no confidence has been confirmed with some ancillary changes but the essence of no confidence provision continued (which is also the case in the Panchayat Laws of this State of Odisha). The Hon'ble Apex Court, discussing the constitutional provisions as also the provision contained in the Act of 1961 as was amended by Amendment Act No. 44 of 2007 has finally held that the statutory provisions of no confidence are not inconsistent or contrary to the provisions contained in Part-IX to the Constitution. Taking note of similar provisions relating to no confidence motion in other State laws, it has been finally pronounced by the Apex Court the said provision relating to no confidence motion nor the changes brought in the original Act by the Amendment Act No. 44 of 2007 reducing the number of members required for bringing that motion as also the lock-in period are be constitutionally valid. The argument that the provision of no confidence motion against the Chairperson being not in the Constitution cannot be provided in the Statute has been rejected in saying that the Constitution specifically enables the State Legislature to provide the details of election of the Chairperson. In case of Usha Bharati (supra), the above decision of the Apex Court in the case of Bhanumati has been discussed at great length and ultimately the challenges to the provision relating to no confidence motion as also the amendment carried thereto which had been called in question have been negated. Particularly, coming to answer the contention raised that those, who are elected, cannot remove the elected person by expressing no confidence motion for the elected person, it has been held that said provision contained in section 28 of the Uttar Pradesh Samitis and Zilla Parishads Act is in no way inconsistent with or offends the provision contained in Article 243-N of the Constitution. It has been said that to accept the submission of inconsistency would be contrary to the fundament right of democracy that those who elect can also remove the elected person by expressing no confidence motion in the elected person. In case of a Grama Panchayat, the ward members are elected by the voters of the respective wards of the Grama Panchayat and thus they together represent all the voters of the Panchayat when the Sarpanch is also a member of the Grama Panchayat elected by the persons referred to in sub-section (1) of section 4 of the OGP Act from amongst themselves, i.e. the voters of the Gramas. In view of such composition of Grama Panchayat, the contention that the Sarpanch having not made the entry at the pleasure and desire of the ward members; in remaining in the office and discharging his duty, he need not carry the confidence of the other members of the Grama Panchayat cannot be countenanced with. In view of such authoritative pronouncements as to declaration of the position of law, the first limb of submission advanced by learned counsel for the petitioner does not merit acceptance. 9. Coming to the next limb of submission of the learned counsel for the petitioner, let us have a glance at the relevant provision of section 24 of the Act, which reads as under:- "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" The notice issued by the Sub-Collector, opposite party no. 2 to the present petitioner-Sarpanch and all Ward Members is at Annexure-1. By the said notice, the Sub-Collector has convened the special meeting to be held on 26.11.2019 at 11.00 am in the hall of Grama Panchayat Office for vote of no confidence against the petitioner-Sarpanch. 2 to the present petitioner-Sarpanch and all Ward Members is at Annexure-1. By the said notice, the Sub-Collector has convened the special meeting to be held on 26.11.2019 at 11.00 am in the hall of Grama Panchayat Office for vote of no confidence against the petitioner-Sarpanch. The petitioner-Sarpanch as also all Ward Members have received the said notice with the enclosures, i.e, the copy of the requisition given by ten Ward Members out of eleven. The copy of the resolution that they had passed in a meeting held by them which they propose to move in the specially convened meeting has also been enclosed. The notice having been issued on 06.11.2019, the date of special meeting has been fixed to 26.11.2019. The petitioner does not complain that he had not received said notice as well as the enclosures as mandated under clause (a) of sub-section (2) of section 24 of the O.G.P. Act. 10. In the aforesaid factual settings, this Court finds no reason to hold that there has not been due adherence of the provisions contained in section 24 of the Act by the Sub-Collector, opposite party no. 2 in issuing the notice under Annexure-1. That repels the second limb of submission of the learned counsel for the petitioner. 11. In the result, this writ application questioning the decision of the opposite party no. 2 in convening the meeting to consider the no confidence motion against the petitioner, the elected Sarpanch of Jajaposi Grama Panchayat by issuance of notice under Annexure-1 stands dismissed. The interim order dated 21.11.2019 stands vacated. As herein the case by interim order dated 21.11.2019 passed by this Court in I.A. No. 16021 of 2019, the notice dated 06.11.2019 for convening the special meeting by the Sub-Collector (opposite party no. 2) had been stayed and that does no more survive; now it is for the Authority to proceed in convening the special meeting for confidence for the 'No Confidence Motion' against the petitioner, the elected Sarpanch of Jajaposi Grama Panchayat in the district of Keonjhar by issuing notice to all the members of the Grama Panchayat fixing date, time and venue and proceed further in accordance with law.