Orissa High Court
Ajay Kumar Sahoo vs State Of Odisha And Others on 28 August, 2015
Equivalent citations: AIR 2016 (NOC) 59 (ORI.)
Author: C.R. Dash
Bench: C.R. Dash
ORISSA HIGH COURT: CUTTACK.
W.P.(C) No. 16586 of 2014
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
-----------
Ajay Kumar Sahoo ....... Petitioner
-Versus-
State of Odisha & Others ....... Opp. Parties
For Petitioner : M/s. Samir Kumar Mishra
J. Pradhan, D.K. Pradhan,
P.K. Mohanty.
For Opp. Parties : Additional Government Advocate.
M/s. Prafulla Kumar Rath,
R.N. Parija, A.K. Roul,
S.K. Pattnaik, A. Behera.
P.K. Sahoo.
(Intervener)
PRESENT :
THE HONOURABLE SHRI JUSTICE C.R. DASH
---------------------------------------------------------------------------------------
Date of Judgment : 28.08.2015
---------------------------------------------------------------------------------------
C.R. Dash, J.The petitioner, who is the elected Sarpanch of Padmabati Grama Panchayat in the district of Nayagarh, has challenged, in this writ application, the notice dated 19.08.2014 issued by the Sub- Collector, Nayagarh- opposite party No.3 calling upon the petitioner to attend the meeting of "No Confidence Motion" to be held on 05.09.2014 in the office of the Grama Panchayat at 11 A.M.
2. The present petitioner was elected as Sarpanch of Padmabati Grama Panchayat on 21.02.2012. While he was acting as 2 such, some of the Ward Members of the aforesaid Grama Panchayat sent requisition to the Sub-Collector, Nayagarh- opposite party No.3 on 19.03.2014 for convening a meeting to record no-confidence against the petitioner. Subsequently, the said Ward Members, vide their letter dated 28.03.2014, withdrew the requisition made by them. Again, on 10.08.2014, a fresh requisition accompanied with proposed resolution to be moved against the petitioner for no-confidence was given to the Sub-Collector, Nayagarh signed by requisite number of Ward Members as required under the law. The Sub-Collector issued notice dated 19.08.2014 vide Annexure- 4 series to the petitioner, calling upon him to attend the meeting of "No confidence Motion" to be held on 05.09.2014 in the office of the Grama Panchayat at 11 A.M.
3. It is alleged that the aforesaid notice dated 19.08.2014 vide Annexure- 4 series was issued by the concerned Post Office on 23.08.2014 and received by the petitioner on 25.08.2014. It is, therefore, urged that there being no clear 15 days notice as contemplated under Section 24 (2) (c) of the Orissa Grama Panchayat Act (for short, "the Act"), notice vide Annexure- 4 series is to be quashed.
4. The opposite party No.3 along with the Collector, Nayagarh- opposite party No.2 has filed counter affidavit. In the said counter affidavit, it is specifically averred that the notices vide Annexure- 4 series have been sent to all the Ward Members of the Grama Panchayat through Registered Post along with copy of the resolution and requisition and copy of the same has been published 3 on the Notice Board of Bhapur Panchayat Samiti vide Memo No.851, dated 19.08.2014. It is emphatically averred in the counter affidavit that the date of issuance of notice vide Annexure- 4 series is "19.08.2014". The interveners have also filed an affidavit and they support the stand of the opposite parties 2 & 3. The interveners have obtained extract of the Issue Register under the R.T.I. Act. The said extract shows that letter No.850 has been issued to the petitioner on 19.08.2014. However, the extract of the Issue Register cannot be taken into consideration inasmuch as the same is not part of the record and it has been filed subsequently along with the written note of submission.
5. From the narration of facts (supra), it is clear that the "No Confidence Motion" was fixed to be held on 05.09.2014 and the notice vide Annexure- 4 series is dated 19.08.2014, which was dispatched by the Post Office to the petitioner on 23.08.2014. This Court, in the case of Smt. Heeramani Munda vs. The Collector, Keonjhar & others, 99 (2005) CLT 180 and in the case of Nilambar Majhi vs. Secretary to Govt. of Orissa, Panchayati Raj Deptt. & Others, 2005 (II) OLR - 659, have held that there should be 15 clear days notice as contemplated under Section 24 (2) (c) of the Orissa Grama Panchayat Act excluding the date of issuance of notice and the date of meeting fixed for "No Confidence Motion".
6. In view of such provision and in view of the contentions raised by Mr. Samir Kumar Mishra, learned counsel for the petitioner, it is to be decided whether the date of dispatch by the Post Office or 4 date of issue by the Sub-Collector is to be understood as date of issue as contemplated in Section- 24 (2) (c) of the Orissa Grama Panchayat Act.
7. This Court, in the case of Sarat Padhi vs. State of Orissa and others, 65 (1988) C.L.T. 122/A.I.R. 1988 Orissa 116 has held that "in the eye of law however 'giving' is complete in many matters where it has been offered to a 'person'. It has further been clarified that "tendering of a notice in law therefore is giving a notice even though the person to whom it is tendered refused to accept it." In the said decision of Saroj Kumar Padhi, it was further held thus :-
"......... Therefore, all that is required is that the Sub- Divisional Officer on receipt of a requisition, after fixing the date, hour and place of the meeting, has to give notice of the same to all the members holding the office and that part is as a matter of course. But, whether the notice reaches the addressee is not of any consequence, unless of course, any prejudice on the failure of the service of the notice is writ large or established by bringing relevant facts on the record. ..........."
Referring to the case of Sarbeswar Satapathy, an unreported decision and other Supreme Court judgments on the meaning of "15 clear days", this Court in Sarat Padhi's case (supra) held that "15 days must intervene between the date of the notice and the date of meeting and, 5 therefore, the terminal dates be excluded so as to provide 15 clear days in between."
8. From the aforesaid case law, it is clear that the date of issue of notice and the date of meeting are to be excluded and there should be gap of clear 15 days in between the date of issue of notice and the date of the proposed meeting.
9. In the present case, there is positive averment by the opposite parties 2 & 3 to the effect that, requisition of requisite members of Padmabati Grama Panchayat was received by the Sub- Collector on 10.08.2014 and after due processing, the Sub-Collector fixed the date, hour and place of such meeting and issued notice to all the members on 19.08.2014. The notice might have been dispatched by the Post Office on 23.08.2014. But I do not find any reason to disbelieve the positive averment of the opposite parties 2 & 3 so far as issue of notice on 19.08.2014 is concerned because on the self-same date, the notice has also been pasted on the Notice Board of Bhapur Panchayat Samiti for general information of the members. It is common knowledge that in Government offices, after a letter is issued, the same is to be dispatched through ministerial process. There might have been some delay in such process and the notice might have been dispatched by the Post Office on 23.08.2014, which has been received by the petitioner on 25.08.2014.
10. This Court, in the case of Sarat Padhi (supra) has taken into consideration the entire scheme of the notice contemplated under Section 24 (2) (c) of the Act and has held thus :-
6
"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 of the notice and the margin of clear 15 days between the date of the notice and the date of 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. 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 no-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 7 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".
11. From the aforesaid observation of the Court in the aforesaid Full Bench decision, it is clear that date of notice is to be understood as date of issue of notice by the Sub-Collector. If, it is understood to be the date of issue of notice by the Post Office, then it would be like rewriting the law and such an interpretation would give chance to crafty delinquent Sarpanches and Naib-Sarpanches to obviate resolution and the proposed meeting by delaying the ministerial process in the office of the Sub-Collector, over which none has any control.
12. Taking into consideration the aforesaid discussion, I am of the firm view that the date of issue of notice is to be understood as date of issue from the office of the Sub-Collector. If there is some delay in dispatch from the office of the Sub-Collector, the same shall not invalidate the meeting of no-confidence unless prejudice is writ large or shown to have occasioned so far as the petitioner is concerned. In the present case, however, there is no pleading to the effect that any prejudice has been caused to the petitioner by delayed receipt of the notice. There is clear 15 days in between the date of the meeting and the date of issue of the notice. The petitioner has also participated in the meeting for recording 8 confidence. In view of such fact, the contention raised by Mr. Samir Kumar Mishra, learned counsel for the petitioner must fail.
13. Secondly, it is contended by learned counsel for the petitioner that, earlier on 19.03.2014, requisition for recording "No Confidence Motion" against the petitioner was sent to the Sub- Collector, Nayagarh- opposite party No.3. Subsequently, on 28.03.2014, said requisition was withdrawn by the self-same members, who had sent the said requisition. Again, after five months, on 10.08.2014, fresh requisition was issued for recording "No Confidence" against the petitioner by some of the members of the Grama Panchayat. On the basis of the subsequent requisition dated 10.08.2014, the Sub-Collector having convened the meeting, the same is vitiated as hit by Section- 24 (3) of the Act.
The opposite parties 2 & 3 in their counter have stated that the requisition dated 19.03.2014 signed by 16 Ward Members of Padmabati Grama Panchayat proposing meeting for recording "No Confidence" against the petitioner was not supported by the proposed resolution as required under the Act and the same was rejected on 28.04.2014. It is also true that the self-same members had sent letter dated 28.03.2014 for withdrawal of the requisition. But there being no provision in the Act for withdrawing of requisition, the requisition dated 19.03.2014 was rejected on 28.04.2014 after due consideration, as it was not conforming to the provision of Section- 24 of the Act.
14. Section- 24 (3) of the Act reads as thus :-
"Section- 24 9 Section- (2) xxxx xxxx xxxx (3)- When a meeting has been held in pursuance of Sub-section (2) for recording want of confidence in the Sarpanch or Naib-Sarpanch, as the case may be, no fresh requisition for a meeting shall be maintainable -
(a) in cases falling under Clauses (i) and (j) of
the said sub-section or where the
resolution is defeated after being
considered at the meeting so held, before
the expiry of one year from the date of
such meeting ; or
(b) where the notification calling for general
election to the Grama Panchayat has
already been published under or in
pursuance of Section 12."
(emphasis supplied be me)
Section- 24 (3) is applicable only when, a meeting has already been held. But it has no application, if no meeting has been held pursuant to any resolution. From the scheme of Section- 24, it is clear that any number of requisitions may be sent by the members of the Grama Panchayat, but once a meeting is convened on the basis of the proposed resolution, no further meeting can be held within a period of 10 one year from the date of such meeting. In the present case, when no meeting was ever held for recording want of confidence in the petitioner, before issuance of the impugned notice vide Annexure- 4 series, the provision of sub-section- (3) of Section- 24 would not be applicable at all.
15. Thirdly, it is contended that the requisition vide Annexure- 4 series is not accompanied with the proposed resolution. There is, however, no pleading to this effect in the writ application. In view of such fact, the notice vide Annexure- 4 series cannot be invalidated on such a ground, which has not at all been pleaded.
16. In the result, the writ application is dismissed. The result of "No Confidence Motion" kept in the sealed cover, be published forthwith and consequent action be taken in accordance with law.
........................
C.R. Dash, J.
Orissa High Court, Cuttack.
The 28th August, 2015/Subha.
11