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2021 DIGILAW 459 (ORI)

Mrs. Kabita Baral v. State Of Odisha

2021-11-09

A.K.MOHAPATRA, S.MURALIDHAR

body2021
JUDGMENT A.K. Mohapatra, J. - The present writ appeal is directed against the order dated 23rd February, 2021, passed by the learned Single Judge in W.P.(C) No. 5164 of 2020 whereby the Writ Petition filed by the Appellant has been dismissed. 2. The Petitioner-Appellant had filed the above writ petition challenging the Notice No. 185 dated 1st February, 2020 issued by the Sub Collector, Kendrapara, Opp. Party No.2, fixing the date and time for a special meeting of the Areikana G.P. to be held on 26th February, 2020 at 11 AM to vote on the No Confidence Motion against the petitioner u/s.24(1) of The Orissa Grama Panchayats Act, 1964 (for short 'the Act') in the Conference Hall of Aul Panchayat Samiti. 3. The Appellant-Petitioner's case, as pleaded in the writ petition, is that she was elected as a Sarpanch of Areikana Grama Panchayat in the Panchayat Election held in the year 2017. The aforesaid Areikana Grama Panchayat has 11 Wards in total. After being elected, the Appellant-Petitioner assumed the office of Sarpanch of Areikana Grama Panchayat and started discharging her duties with utmost sincerity and to the best of her ability. It was further pleaded that all on a sudden on 01.02.2020, the Appellant-Petitioner received a notice from the Sub-Collector, Kendrapara, which has been filed along with the writ petition as Annexure-1 to the writ petition. The Appellant-Petitioner has alleged that she had only received a notice dtd. 1.02.2020 under Annexure-1. It was mentioned in the said notice that some of the ward members have expressed their no confidence on the Appellant-Petitioner and she has stated that she is not sure as to how many members have expressed no trust in her. She has further alleged that she has only received a notice under Annexure-1 and other papers referred to therein in the notice has not been delivered to her, as such, she claims the notice to be a defective one. The Appellant-Petitioner has also stated that after receipt of notice under Annexure-1 on 4.2.2020, she had sent a letter to Opposite Party No.2 on 6.2.2020 stating therein that no document has come along with the notice under Annexure-1 and hence requested for supply of such copy vide her letter dtd.6.02.2020. The Appellant-Petitioner has also stated that after receipt of notice under Annexure-1 on 4.2.2020, she had sent a letter to Opposite Party No.2 on 6.2.2020 stating therein that no document has come along with the notice under Annexure-1 and hence requested for supply of such copy vide her letter dtd.6.02.2020. The further case of the Appellant-Petitioner was that till date, Opposite Party No.2 has neither replied to her letter dated 6.2.2020 under Annexure-2, nor has she been supplied with the copies of the requisition or resolution. Since the Petitioner has not received copy of the requisition and proposed resolution, which according to her violates Section 24(2) of the Act. Aggrieved by the said action of the Opposite Party No.2, the Appellant-Petitioner approached this Hon'ble Court by filing the above noted writ petition bearing W.P.(C)No.5164of2020. 4. The Sub-Collector, Kendrapara-Opposite Party No.2 has filed a counter affidavit stating therein that the writ petition is not maintainable in law and that the requisition signed by Anjan Behera, President (Naib-Sarpanch) and six other ward members of Arehikana Grama Panchayat was filed before him on 13th January, 2020 accompanied by the copy of the resolution dated 7th January, 2020 requesting him to convene a special meeting to move the no confidence motion against the Appellant-Petitioner. He has further stated that in the year 2017, election has been held in respect of 9 wards of Areikana G.P. Out of 9 Ward Members, 7 Ward Members have signed in both the requisition and the proposed resolution. The signatures in the requisition and the resolution were identified by the Panchayat Executive Officer, Arehikana Grama Panchayat and GPEO, Aul and verified by the Sub-Collector on 21st January, 2020. The Sub-Collector, Kendrapara-Opposite Party no.2 has further stated that it is only after observing all formalities he had fixed the date of meeting on 26th February, 2020 at 11.00 A.M. at Conference Hall of Aul Panchayat Samiti for vote of No Confidence Motion against the Appellant-Petitioner. Opposite Party No.2 has also stated that the notice bearing letter No. 185 dated 1st February, 2020 was issued to all the Ward Members and Sarpanchas to attend the aforesaid special meeting on 26th February, 2020 by speed post. Opposite Party No.2 has strongly disputed the contention of the Appellant-Petitioner that the copies of the resolution and requisition were not sent to the Appellant-Petitioner. Opposite Party No.2 has strongly disputed the contention of the Appellant-Petitioner that the copies of the resolution and requisition were not sent to the Appellant-Petitioner. It was stated that the requisition and resolution were signed by more than 2/3rd sitting members of the Grama Panchayat and were sent to the Appellant-Petitioner and other ward members along with the notice on 3rd February, 2020 by speed post. Further the notice, resolution and requisition were sent to the Block Development Officer, Aul for publication on the notice board of the Panchayat Samiti as per Section 24(2)(d) of the Act, vide Memo No. 185 dated 1st February, 2020 of Opposite Party No.2. 5. The Appellant-Petitioner being aggrieved by the notice dated 1st February, 2020 under Annexure-1 approached this Court by filing W.P.(C) No.5164 of 2012. By order dated 23rd February, 2021, learned Single Judge has passed the following interim order: "No Confidence Motion, meeting may held and result be published, but it shall be subject to the result of this writ application." Thus according to Opposite Party No.2 the special meeting convened under Annexure-1 took place on the schedule date and time in presence of the Tahasildar, Rajnagar. In the said special meeting total 8 ward members of the Grama Panchayat were present and participated in the No Confidence Motion. The Appellant-Petitioner though present in the special meeting hall refused to accept the ballot paper issued by the Presiding Officer and did not take part in the voting process. After the election, the ballot box was opened at the stipulated time and it was found that all the 8 Grama Panchayat members were present in the meeting had voted supporting the No Confidence Motion. Since the No Confidence Motion had been supported by 2/3rd members of the Grama Panchayat, the same was validly and lawfully passed in the aforesaid special meeting. The authorized Presiding Officer-Dibyendu Kumar Das, O.A.S.(I) (Junior), who was Tahasildar, Rajnagar submitted the original resolution passed along with connected papers of the special meeting to the Collector and thereafter the Collector forthwith published the resolution in accordance with the provision u/s.24 of the Act on the notice board. 6. That the Appellant-Petitioner had also filed a rejoinder affidavit stating therein that his main grievance in the writ petition is non-compliance of the requirement u/s.24(2)(c) of the Act. 6. That the Appellant-Petitioner had also filed a rejoinder affidavit stating therein that his main grievance in the writ petition is non-compliance of the requirement u/s.24(2)(c) of the Act. The Appellant-Petitioner in his rejoinder affidavit has repeatedly stated that copies of the requisition and resolution were never annexed to the notice under Annexure-1 and as such, were never sent to her. The Appellant-Petitioner did not dispute the fact that she has not taken part in the voting process. Further she has alleged violation of interim order passed by this learned Court in the aforementioned writ petition. 7. That the learned Single Judge after hearing the counsel for the respective parties dismissed the writ application, vide order dated 23rd February, 2021 with the following findings: I) The notice under Annexure-1 clearly reveals that under the heading N.B. (Drastabya) the requisition and the proposed resolution of the 1/3rd members of Grama Panchayat has been sent along with the notice. II) Letter No. 185 dated 1st June, 2020 and Memo No. 186 dated 1.2.2020 has been sent to the notice board of the Panchayat Samiti along with the proposed resolution and the requisition in compliance of Section 24(2)(c)(d) of the Act. III) It is not believable that the Sub-Collector is so eager to remove the petitioner that he would have committed mistake to defeat the process of "No Confidence Motion". IV) Non-response to the letter vide Anneuxre-2 written to the Petitioner cannot be viewed adversely against the Opposite Party No.2 as he was in no legal obligation to respond to such letter. V) There was no right on the part of the Petitioner to remain in the office after the result of the No Confidence Motion which went against her. VI) I do not find there is any merit in the claim of the petitioner, accordingly, the writ petition is dismissed. 8. Heard Mr. Manoj Kumar Mohanty, learned counsel for the Appellant-Petitioner and Mr. Sukant Kumar Nayak, learned counsel for the Respondent Nos.4 to 11 and Mr. S.N. Das, learned Additional Standing Counsel for the State. Perused the records. 9. Mr. Mohanty, learned counsel appearing for the Appellant-Petitioner strenuously argued that copy of the requisition and proposed resolution as required u/s.24(2)(c) of the Act had not been given along with the notice under Annexure-1 to the Appellant-Petitioner. S.N. Das, learned Additional Standing Counsel for the State. Perused the records. 9. Mr. Mohanty, learned counsel appearing for the Appellant-Petitioner strenuously argued that copy of the requisition and proposed resolution as required u/s.24(2)(c) of the Act had not been given along with the notice under Annexure-1 to the Appellant-Petitioner. He also seriously disputed Annexure-A/2 and submitted that the same is a copy of the approval of 3rd meeting of the Grama Panchayat and is not the proposed resolution of No Confidence Motion to remove the Petitioner from the post of Sarpanch. Mr. Mohanty further submitted that the No Confidence Motion dated 26th January, 2020 is illegal and is completely vitiated in the eye of law. To buttress his argument, Mr. Mohanty has relied on the judgment in the case of Prahallad Dalei v. State of Orissa 2014 (II) OLR 574 . 10. Per contra, Mr. S.N. Das appearing on behalf of the Opp. Party No.2 argued that the Opp. Party No.2 has not committed any error and that he has followed the provisions of Section 24 diligently. He has given much emphasis on paragraph 8 of the counter affidavit. Mr. S.K. Nayak appearing on behalf of the Opp. Parties No.4 to 11 supported the argument advanced by Mr. Das. 11. The procedure for convening and holding a No Confidence Motion against the Sarpanch of a Grama Panchayat has been provided u/s.24 of the Act. The relevant portion 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) 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 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 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) the aforesaid notice shall be sent by post under certificate of posting and a copy thereof shall be published at least seven days prior to the date fixed for the meeting in the notice-board of the Samiti; (e) the proceedings of the meeting shall not be invalidated merely on the ground that the notice has not been received by any member; (f) to (k).........................................................." 12. The Full Bench of this Court in Sarat Padhi v. State of Orissa AIR 1988 Orissa 116 while examining the validity of a notice of No Confidence Motion has taken into consideration the entire scheme of the notice contemplated under Section 24(2)(c) of the Act and has held thus: "18. On a circumspection of the various authorities discussed above dealing with the analogous provisions in different statutes, I would now proceed to record my own conclusions : - 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 duty to 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 event any delinquent Sarpanch or Naib-Sarpanch can frustrate the consideration of the resolution of non-confidence against him by tactfully dealing 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." 13. From the above provision regarding holding of a No Confidence Motion to remove the Sarpanch, it is very clear that no such special meeting shall be convened except a requisition signed by at least 1/3rd of the total membership of the Grama Panchayat copy of the resolution proposed to be moved at that meeting. The requisition shall be addressed to the Sub-Divisional Officer. 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 of the proposed resolution at least 15 days before the date so fixed. The aforesaid notice shall be sent by post under certificate of posting and the copy thereof shall be published at least seven days prior to the date fixed for the meeting in the notice board of the Samitee. In Clause-2(e) of Section 24 of the Act, it has been provided that the proceeding of the meeting shall not be invalidated merely on the basis of any notice not received by any member. 14. In the present case, there is no dispute that the notice dated 1st February, 2020 under Annexure-1 was sent to all Grama Panchayat members including the Appellant-Petitioner. Further the noting of the said notice clearly reveals that the copy of the requisition and the proposed resolution are attached to the said notice. 14. In the present case, there is no dispute that the notice dated 1st February, 2020 under Annexure-1 was sent to all Grama Panchayat members including the Appellant-Petitioner. Further the noting of the said notice clearly reveals that the copy of the requisition and the proposed resolution are attached to the said notice. None of the members of the Grama Panchayat have complained about noon-receipt of the notice along with copy of the requisition and proposed resolution. Moreover, from the counter affidavit filed by Opposite Party No.2, i.e. Sub-Collector, Kendrapara, it is cleared that in fact, the resolution and the requisition were signed by 2/3rd sitting members of the Grama Panchayat and was sent to the Petitioner and other ward members along with notice on 3rd February, 2020 by speed post. The postal receipts have been filed along with the counter affidavit is at Annexure-C/2. The Appellant-Petitioner has failed to bring on record any material whatsoever to establish the fact that the copies of the requisition and proposed resolution was not sent to her along with the notice under Annexure-1, although she was admitted receipt of notice under Annexure-1. In such view of the matter, there is neither any material nor any scope to disbelieve the statement of the Sub-Collector, Kendrapara in his counter affidavit. 15. Mr. Mohanty, in course of his argument has emphasized on the words "Anastha Prastaba Agata Karajayee". Thus he argued that the resolution dated 7th January, 2020 is not a proposed resolution rather the same has already been passed. The words "Anastha Prastaba Agata Karajayee" generally means to bring a 'No Confidence Motion', as such, it is very difficult to accept the submission made by Mr. Mohanty that the No Confidence Motion had already been moved and passed vide resolution dated 7th January, 2020. In such view of the matter, we have no hesitation in holding that the findings of the learned Single Judge are unassailable and valid. 16. Mr. Mohanty in course of his argument has relied upon two judgments of this Court. The judgments referred to by Mr. Mohanty have different factual backgrounds, as such, the same can be distinguished on facts and are not applicable to the facts of the present case. 17. 16. Mr. Mohanty in course of his argument has relied upon two judgments of this Court. The judgments referred to by Mr. Mohanty have different factual backgrounds, as such, the same can be distinguished on facts and are not applicable to the facts of the present case. 17. For the aforementioned reasons, we find no valid ground or reason to interfere with the impugned order dated 23.02.2021 passed by the learned Single Judge in W.P.(C) No.5164 of 2020. As such, the writ appeal stands dismissed being devoid of merit and the order passed by the learned Single Judge is hereby confirmed. There shall be no order as to costs.