Orissa High Court
Nilambar Majhi vs Secretary To Govt. Of Orissa, Panchayat ... on 9 September, 2005
Equivalent citations: 101(2006)CLT473, 2005(II)OLR659
Bench: P.K. Tripathy, A.K. Parichha
JUDGMENT
1. The writ petition is taken up for final disposal at the stage of admission on the consent of learned counsel for the parties.
2. Heard.
3. Petitioner was elected as Sarpanch of Machichalla Grama Panchayat in the district of Kalahandi in the Panchayat Election held in the year 2002, and assumed office accordingly. While the matter stood thus, some of the Ward Members including Naib-Sarpanch held meeting on 29.4.2005 and passed a resolution proposing vote of no confidence against the petitioner. They accordingly gave requisition Annexure-2 enclosing a copy of resolution Annexure-3 to the Sub-Collector, Dharmagarh to convene a meeting to record the vote no confidence. Basing on such requisition the Sub-Collector issued notice to the Ward Members and the petitioner fixing the date of the meeting to 30.5.2005.,The meeting was accordingly held and the no confidence, motion was carried, whereafter Collector, Kalahandi issued letter No. 54 dated 9.6.2005 removing the petitioner from the post of Sarpanch and basing of that order a letter dated 9.6.2005 was served by the Panchayat on the petitioner asking him to make over charge of the Grama Panchayat to the Naib-Sarpanch. Aggrieved by such action petitioner has filed the present writ petition under Article 226 of the Constitution of India challenging to the legality of the notice issued by the Sub-Collector, Dharmagarh, the holding of the meeting of no confidence on 30.05.2005, the order of issued by Collector dated 9.06.2005 and the letter dated 9.06.2005 in Annexure-4.
4. Mr. Jairaj Behera, learned counsel for the petitioner submits that the impugned notice and the meeting dated 30.05.2005 are illegal as clear 15 days time was not given between the date of issuance of notice and the date of meeting as contemplated in Section 24 (2)(c) of the Orissa Grama Panchayats Act, 1964 (hereinafter referred to as 'the Act'). According to him, the provision of Section 24(2)(c) of the Act being mandatory in nature, the vote of no confidence recorded in the meeting dated 30.05.2005 is illegal and must be quashed. In support of that contention he relies on ratio in the case of Smt. Heeramani Munda v. Collector, Keonjhar and Ors., 99 (2005) CUT 180 wherein a Division Bench of this Court held that 15 days clear notice must be there and that the date of issue of notice and the date of meeting fixed for no confidence motion are to be excluded in computing the notice period of 15 days.
5. Learned Additional Government Advocate in defending the action of Sub-Collector, submits that Sub-Collector had signed the notice on 13.05.2005, but 14th & 15th May, 2005 being public holidays, notices were issued on 16.05.2005. According to him, the notice having been signed on 13.05.2005 and the date of the meeting being 30.05.2005, there was clear 15 days notice. He further argued that the mode of issuance of notice contemplated under Section 24(2)(c) of the Act being directory in nature and the petitioner having attended the meeting on 20.05.2005 there the motion for no confidence passed in his presence would not be rendered illegal. In support of his submission he relies on the case of Sarat Chandra Padhi v. State of Orissa and Ors., 1988 (I) OLR 76, a Full Bench decision.
6. The factual aspects that notice was issued on 16.05.2005 and the meeting for recording the no confidence motion was held on 30.05.2005 are not in dispute. In that respect in Paragraph-6 of the counter filed by opp. party Nos. 1 to 5 they have admitted to that fact situation. Thus, the questions for consideration are :
(i) Whether clear 15 days notice as contemplated under Section 24 (2)(c) of the Act was there ?
(ii) Whether participation of the petitioner in the meeting would stop him from challenging the legality of the meeting on the plea of want of proper notice ?
7. Section 24 (2)(c) of the Act reads thus :
24. Vote of no confidence against Sarpanch or Naib-Sarpanch (1) xxx xxx xxx (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) xx xx xx (b) 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 alongwith a copy of the requisition and of the proposed resolution, at least fifteen clear days before the date so fixed.
In the above noted citation the term 'give notice' have been interpreted by this Court as issue of notice and in that respect the date of signing of the notice by the Sub-Collector and the date of receipt, of the notice by the member concerned are irrelevant. Thus the notice period would mean, clear 15 days time between the issue of notice and the date of the meeting. In the above noted two decisions it has been further clarified that in computing period of 15 days, the date of issue of notice and the date of the meeting are to be excluded. In the present case the notice was admittedly issued on 16.05.2005 and the meeting was held on 30.05.2005. Once 16th and 30th May, 2005 are excluded then the notice period becomes less than 15 days. The explanation of the opp. parties in this regard is that the Sub-Collector had signed the notice on 13.05.2005, but the notice was despatched on 16.05.2005 as the 14th and 15th May, 2005 were public holidays. Section 24 (2)(c) nowhere contemplates that signing of notice by the Sub-Collector would amount to issue of the notice. So the explanation of the opp. parties does not satisfy to the requirement of mandatory provision relating to the required period of notice.
8. Whether participation of the petitioner in the meeting would stop him from challenging the no confidence motion, even though 15 days clear notice was not there, was discussed in the case of Sarat Chandra Padhi (supra). There it was explained that the scheme of notice contemplated under Section 24 (2)(c) of the Act can be divided into three parts, i.e. (i) requirement of giving notice; (ii) fixation of margin of time in between the date of notice and the date of meeting, and (iii) service of notice on the members. The Full Bench held that the first, two parts are mandatory while the third part is directory. It was thus, held that if the margin of clear 15 days between the date of notice and the date of meeting is not there, then the notice and the resolution passed in that meeting would be illegal and invalid even if the petitioner participates in the meeting and he is not estopped from challenging the legality of the meeting on the ground of violation of the mandatory provision of law. So. the content of paragraph-20 of the judgment of the Full Bench relied by learned Addl. Government Advocate is of no help as that observation was meant for the period between date of receipt of notice by the petitioner and the date of the meeting.
9. We thus find that provision of Section 24 (2)(c) of the Act was not followed in convening and holding of the meeting on 30.05.2005. Therefore, the no confidence motion and the consequence thereof are invalid and are liable to be quashed. Accordingly, we quash the impugned no confidence motion and the result thereof.
10. Learned counsel for the petitioner states that because of the no confidence motion, the petitioner has been relieved from the office of the Sarpanch., If that be so, he may immediately be restored to his position as Sarpanch and be allowed to function as Sarpanch of the Panchayat.
11. At this stage, learned Additional Government Advocate states that liberty be given to the Ward Members and the State Government to again pursue the matter of vote of no confidence against the petitioner according to law. We do not propose to give any opinion on this submission save and except stating that it is open to the Ward Member as well as the State Government to proceed in accordance with law relating to the matter of no confidence motion, if they so desire.
12. The writ petition is accordingly allowed. The requisites for issue of writ to the opp. parties shall be filed by 12.09.2005.
A free copy of this order be given to learned Addl. Govt. Advocate.