Kalpataru Sahu vs Collector on 14 November, 2024

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Orissa High Court

Kalpataru Sahu vs Collector on 14 November, 2024

06. 1. Heard Mr. Kanungo, learned Senior Advocate and Mr. Mishra, learned counsel appearing for the petitioner, Mr. Ray, learned AGA for the State and Mr. Bose, learned counsel for opposite party No.3.

2. Instant writ petition filed by the petitioner is in relation to a proceeding under Section 26 of the Orissa Gram Panchayats Act,1964 (hereinafter referred to 'the Act'). The challenge is confined to the impugned decision of opposite party No.1, namely, Collector, Kendrapara under Annexure-4 series, whereby, the notice for no confidence motion issued by orders of opposite party No.2 has been declared void ab initio in view of the proceeding under Section 26 of the Act pending against the petitioner and other Ward Members.

3. Mr. Kanungo, learned Senior Advocate appearing for the petitioner submits that opposite party No.1 could not have passed the impugned order under Annexure-4 series stalling the no confidence motion to be held pursuant to the notice issued by Page 1 of 5 learned Sub-Collector, Kendrapara. It is further submitted that despite an interim order dated 23rd October, 2024 in I.A. No.14139 of 2024 of this Court in connection with G.P. Appeal No.02 of 2024, opposite party No.1 passed the impugned order under Annexure-4 series, as a result of which, no confidence motion was not held. It is also submitted that opposite party No.2, thereafter, recalled the notice in view of the order under Annexure-4 series. Mr. Kanungo, learned Senior Advocate, hence, submits that opposite party No.1 did not have the jurisdiction to pass any such order under Annexure-4 series, which led to a consequence of withholding the no confidence motion, inasmuch as, such a proceeding in terms of proceeding under Section 24 of the Act is independent to the one under Section 26 thereof. The contention is that the impugned decision under Annexure-4 series is not legally tenable as it was not for opposite party No.1 to stall the vote of confidence initiated against Sarpanch at the behest of the Ward Members including the petitioner, hence, therefore, it is liable to be set aside clearing the way for the motion to take place with a date fixed for the said purpose. In support of such an argument, Mr. Kanungo, learned Senior Advocate cited a decision of this Court in Ananda Pradhan Vrs. Collector, Khurda and others reported in AIR 2011 Orissa 130. It is contended that in the decision (supra), this Court has held and concluded that the proceedings under Sections 24 and 26 of the Act are independent of each other, as in the said case, the question was, whether, the Ward Members, whose memberships were under challenge are entitled to participate in the no confidence motion against the Sarpanch and it is held therein that they are entitled to participate and act as valid Ward Members till the memberships declared void in terms of Section 26(3) of the Act from the date of its publication. At last, while summing up, Mr. Kanungo, learned Senior Advocate would submit that the decision Page 2 of 5 of opposite party No.1 declaring the notice for no confidence motion as void and ab initio is not sustainable in law.

4. Mr. Bose, learned counsel for opposite party No.3 refers to Section 26(1) of the Act to claim that the petitioner cannot challenge the proceeding of disqualification on any such grounds advanced. It is submitted that the very initiation of proceeding under Section 26 of the Act cannot be challenged by the petitioner for that matter, it shall have to be disposed of as per law, considering the disqualification alleged against the Ward Members as two of them are having more than two children and the other had not attended past three consecutive meetings. In so far as the impugned order under Section-4 series is concerned, Mr. Bose, learned counsel, however, fairly admits that opposite party No.1 did not have the jurisdiction to declare a notice vis-à-vis the no confidence motion as void.

5. A Date Chart is filed by Mr. Bose, learned counsel for opposite party No.3 in Court today, which is accepted and taken on record. Besides the above, counter affidavit is filed from the side of opposite party No.3 and the same is also accepted and perused.

6. The crux of the dispute with a question, whether, learned Collector, Kendrapara, namely, opposite party No.1 did have the powers to pass the impugned order under Annexure-4 series declaring the notice for no confidence motion as invalid? As it appears, on a bare reading of Annexure-4 series, such was the decision by opposite party No.1 on the premise that the proceedings under Section 26 of the Act to be pending without being finally disposed of. In other words, according to opposite party No.1, till such time, the memberships of the petitioner and other Ward Members vis-à-vis disqualification decided, the no confidence motion pursuant to the notice issued by opposite party No.2 should Page 3 of 5 not be held. With such a conclusion, opposite party No.1 declared the notice as void ab initio. In the humble view of the Court, the impugned order under Annexure-4 series cannot be sustained in law for the fact that the proceedings under Sections 24 and 26 of the Act are independent of each other and mutually exclusive.

7. In fact, this Court in Ananda Pradhan (supra) categorically held that till the time, the memberships of the Ward Members are declared invalid on account of any such disqualification on the grounds enumerated in Sections 25(1)(c) and 2(b) of the Act, they are to act as valid members and to participate in the no confidence motion. As in the instant case, opposite party No.1 declared the notices invalid, the Court is of the further view that he has no such jurisdiction to do so while dealing with a proceeding under Section 26 of the Act. To reiterate, the proceeding under Section 24 of the Act in relation to no confidence motion is quite independent and hence, it could not have been interfered with and stalled by opposite party No.1. So, to say, the decision to recall the notice by opposite party No.2 in respect of the vote of confidence later to the order of opposite party No.1 cannot be sustained in law. That apart, opposite party No.1 was at fault and fell into serious error to pass the impugned order under Annexure-4 series in spite of the Court's order dated 23rd October, 2024 in I.A. No.14139 of 2024. As a necessary corollary, the vote of confidence should have been directed to be held on the scheduled date without being intervened vide annexure-4 series, which was followed by consequent decision of opposite party No.2 to recall the same by order dated 22nd October, 2024. The ultimate conclusion of the Court is that the impugned order under Annexure-4 series is not legally sustainable and hence, the same is to be set aside paving the way for opposite party No.2 to take steps and measures in respect of the vote of confidence, he having received the requisition for the same.

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8. Accordingly, it is ordered.

9. In the result, the writ petition stands allowed. As a logical sequitur, the impugned decision of opposite party No.1, namely, Collector, Kendrapara under Annexure-4 series and consequential order of opposite party No.2 recalling the notice of no confidence motion are hereby set aside. The Court further directs that the proceeding initiated under Section 24 of the G.P. Act shall be immediately commenced from the stage where it was left and for that, opposite party No.2 shall reschedule and fix up the date for the vote of confidence and to proceed according to law.

10. Urgent certified copy of this order be issued as per rules.




                                                                        (R.K. Pattanaik)
         Balaram                                                             Judge




Signature Not Verified
Digitally Signed
Signed by: BALARAM BEHERA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 18-Nov-2024 12:09:18




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Orissa High Court