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2020 DIGILAW 89 (ORI)

Pinki Beshra v. State of Odisha

2020-03-18

D.DASH

body2020
ORDER : D. Dash, J. 1. The Petitioner, by filing this writ application, seeks to assail the decision of the Sub-Collector, Keonjhar (Opposite Party No. 3) in convening the special meeting of Janardanpur Grama Panchayat followed by issuance of, notice dated 24.10.2019 under Annexure-6. 2. The petitioner is the elected Sarpanch of Janardanpur Grama Panchayat and has been in the office and discharging her duties as such since her assumption of the charge of the office after the election. When the matter stood thus, the Sub-Collector, Keonjhar (opposite party No. 3), by his letter No. 5692 dated 24.10.2019, convened the special meeting of the Panchayat on 16.11.2019 for consideration of the no confidence motion against the Petitioner in the sitting hall of the Grama Panchayat office fixing the time at 11.00 a.m. as under Annexure-6. 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-6. 3. The sole ground of challenge here to the aforesaid notice as at Annexure-6 is that in the process, there has been gross violation of mandatory provision of law as contained in clause (c) of sub-section (2) of section 24 of the Odisha Grama Panchayat Act, 1964 (hereinafter referred to as the O.G.P. Act) inasmuch as that clear fifteen days time has not been given. In the counter, it is asserted that the aforesaid provision of law have been scrupulously observed by the opposite party No. 3 in its letter and spirit. 4. Learned Senior counsel for the petitioner submitted that since the petitioner has received the notice of the opposite party No. 3 which is dated 24.10.2019 on 2.11.2019, there is violation of the mandatory provision contained in clause (c) of sub-section 2 of section 24 of the OGP Act in as much as clear fifteen days time between the date of receipt of notice and the meeting as proposed has not been given and, therefore, the notice under Annexure-6 is liable to be quashed. He further elaborated the submission in contending as per the notice that the schedule date of meeting is 16.11.2019 under Annexure-6 which is dated 24.10.2019 which is the date on which opposite party No. 3 has put his signature but it having been received by the petitioner on 02.11.2019, fifteen clear days would have to be computed from 03.11.2019 and for that, the mandatory provision contained in clause (c) of sub-section (2) of section 24 of the OGP Act stands grossly violated. He, therefore, submitted that all other consequential actions including the holding of the meeting, the resolution so passed and the voting process etc. have been vitiated. Learned Additional Standing Counsel as also the learned Senior counsel appearing on behalf of the opposite party Nos. 7 to 9 submitted that here the provision of clause (c) of sub-section (2) of section 24 of the OGP Act insofar as the fifteen clear days of time is concerned in not mandatory but is only directory in nature. In support of the same,' they have placed reliance in the Full Bench decision of this Court in the case of Sarat Padhi v. State of Orissa and others; 1988 (I) OLR 76 . 5. The dispute lies in a very narrow campus. The relevant provision of clause (c) of sub-section (2) of section 24 of the OGP Act reads as under: "24. Vote of no confidence against Sarpanch or Naib-Sarpanch:- (1) Where at a meeting of the Grama Panchayat specially convened by the Sub-divisional Officer in that behalf a resolution is passed, supported by a majority of not less than two-thirds of the total membership of the Grama Panchayat, regarding want of confidence in the Sarpanch or Naib-Sarpanch the resolution shall forthwith be forwarded by the Sub- Divisional Officer to the Collector, who shall immediately on receipt of the resolution publish the same on his notice-board and with effect from the date of such publication the member holding the office of Sarpanch or the Naib-Sarpanch, as the case may be, shall be deemed to have vacated such office. (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: (a) to (b) xx xx xx xx; (c) 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; (d) to (j) xx xx xx xx; and (k) xx xx xx xx." In the Full Bench decision of this Court in case of Sarat Padhi (supra), the question was whether the period of at least 15 clear days time fixed for convening the meeting by giving a notice for resolution of want of confidence in the Sarpanch/Naib-Sarpanch, as the case may be, as provided under section 24(2)(c) of the OGP Act is mandatory in nature. Moreover, the correctness of some of the observations made by the earlier Bench in case of Debaraj Mallika v. Collector, Puri and others, 45 (1978) CLT 313 were also in issue. The answer as per the majority has been returned as under: "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 of 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. But the third condition, i.e., the mode of service of 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 a provision to obviate such contingencies by incorporating Clause (c) to sub-section (2) of Section 24. Once I come to the above conclusion, I must record my disapproval to the observation of a general nature made in Debaraj Malika's case (45 (1978) CLT 313) to the effect that the whole of the provision under Section 24(2)(c) is directory in nature, as that is too wide." The purpose and object of giving notice of consideration of no confidence motion is only to give due intimation to the members or information of the proposed meeting. Therefore, the fact that a member has got a shorter period of notice than fifteen clear days from the date of receipt of the notice would not matter much. Such a view is in consonance with the Legislative intent can also be well cull out from what has been expressed in clause (c) of sub-section (2) of section 24 of the OGP Act that the proceeding of the meeting shall not be invalidated merely on the ground that the notice has not been received by any member. When for ordinary meeting as also the special meeting of the Grama rd Panchayat called by the Sarpanch at the requisition of minimum 1/3 of the total members of the Grama Panchayat, at least seven clear days of time is required to be given to the members; for the special meeting for discussion of no confidence motion, the said period is 15 days which shows that these are considered more important meetings and the members are expected to make it convenient to attend this meeting even at the cost of some inconvenience to themselves. In the decision of the Full Bench in the case of Sarat Padhi (supra), it has been held that if there is breach of that condition as to the clear fifteen days time between the date of notice and the date of meeting, which is mandatory, the entire process including the final meeting even if held, would be invalid notwithstanding whether any prejudice has been caused thereby. However, it has further been observed that mode of service or any failure by any member to receive the notice or allowing less than fifteen clear days before the date of meeting will not render the meeting invalid. The specific case of the petitioner here is that when the notice dated 24.10.2019 has been received by the petitioner on 2.11.2019, the commencement of the period being computed from 03.11.2019, Fifteen clear days has not been given as the date of meeting being fixed to 16.11.2019. Here, the provision says about giving of notice with the copy of the requisition and proposed resolution at least fifteen clear days before the date so fixed for the said meeting. The notice having been signed on 24.10.2019, as per the decision of the Full Bench in case of Sarat Padhi (Supra), it cannot be advanced to be the date of receipt of notice by the petitioner so as to say there has been violation of the provision of clause (c) of sub-section (2) of section 24 of the OGP Act in not fixing the meeting leaving clear fifteen clear days. Furthermore, in the given case that the authority has unnecessary delayed the despatch of the notice with an oblique motive and purpose to frustrate the provision of law in that regard. In view of the aforesaid, the ground of challenge to the notice that there has been violation of the mandatory provision contained in clause (c) of sub-section (2) of section 24 of the OGP Act falls flat on the ground. 6. In the result, this Court finds no such merit in the writ application which is dismissed accordingly. The interim order dated 13.11.2019 stands vacated. In view of the above, the opposite party No. 3 is now to proceed further in the matter in accordance with law.