Orissa High Court
Sulochana Sethy vs The Collector on 8 November, 2021
Author: Biswajit Mohanty
Bench: Biswajit Mohanty
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.12642 of 2021
An application under Articles 226 & 227 of the Constitution of
India.
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Sulochana Sethy ....... Petitioner
-Versus-
The Collector, Puri & others ....... Opp. Parties
For Petitioner: - M/s. A.Dash, P.Sahoo,
Advocate
For Opp. Parties: - Mr. R.P.Mohapatra,
Addl. Government Advocate
(For O.P. Nos. 1 to 4)
M/s.S.Pattanaik, B.Baivab,
P.Patnaik, Advocate
(For O.P. Nos. 5 & 6)
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JUDGMENT
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
---------------------------------------------------------------------------------- Date of Hearing: 03.11.2021 Date of Judgment: 08.11.2021
---------------------------------------------------------------------------------- B. Mohanty, J. The present writ petition has been filed with the following prayers:-
"(i) Admit/allow the writ application;
(ii) Call for the records;
(iii) issue notice by way of rule NISI calling upon the opposite parties as to why Annexure-1, the Notice issued by the Sub-Collector, Puri for brining No Confidence Motion (Anastha // 2 // Prastaba) against the petitioner (Sarpanch) fixing dated 12.4.2021 shall not be quashed and in case opposite parties are failed to counter or insufficient counter make the said rule absolute issuing any writ/writs nature of;
(iv) Issue Rule of mandamus to directing the Sub-
Collector, Puri for proceeding No Confidence Motion (Anastha Prastaba) against 2 number of Ward Members as per letter dated 8.3.2021 submitting by the petitioner against them before the B.D.O., Gop, though each Ward Members have not attended more than three (3) consecutive meetings as such Section-25 of O.G.P. Act attracted against them;
(v) To pass an order directing the Sub-Collector, Puri to issue notice of No Confidence Motion (Anastha Prastaba) against all Ward Members of Isanpur Grama Panchayat and proceed as per law for their removal;
(vi) Pass any other order/orders, direction/directions in favour of the petitioner as deem just and proper for the sake of the interest of justice and fairness;"
However at the outset, Mr.Dash, learned counsel for the petitioner made it clear that the petitioner is confining her prayer to prayer No. (iii) only.
2. Mr. Dash submitted that the petitioner is a Sarpanch of Isanpur Grama Panchayat under Gop Block of Puri district. She has discharged her duties properly not withstanding Covid-19 Pandemic. Despite this, on 28.2.2021 vide Annexure-4 series, some Ward Members including the Naib Sarpanch called a meeting and decided to end her tenure by bringing a No Confidence Motion under Section 24 of the Odisha Grama Panchayats Act, 1964, for short, "the Act". Accordingly, on 3.3.2021 a requisition was also sent under Annexure-4 series to Sub-Collector, Puri along with the decision dated 28.2.2021 requesting him to take necessary steps under Sub-Section(1) of Section 24 of "the Act", which deals with Page 2 of 9 // 3 // No Confidence Motion against Sarpanch. Accordingly, vide notice dated 24.3.2021 the Sub-Collector, Puri under Annexure-1, intimated the petitioner and others about holding of No Confidence Motion on 12.4.2021 at 11 A.M. at Kadampatna Up-graded Primary School, Isanpur. Challenging the same the present writ petition has been filed.
3. Mr.Dash submitted that the decision of some of the Ward Members on 28.2.2021 who later on submitted the requisition on 3.3.2021 to the Sub-Collector, Puri praying for bringing a No Confidence Motion against the petitioner cannot be described as a proposed resolution as envisaged in Clause(a) Sub- Section(2) of Section 24 of "the Act", as therein, purpose was not clearly indicated. Accordingly, he submitted that since the mandatory requirement has not been satisfied from the very beginning, therefore, issuance of notice dated 24.3.2021 under Annexure-1 directing holding of No Confidence Motion is bad in law and accordingly the same should be set aside. In this contest, he relied on a decision of this Court in Jaga Pradhan Vrs. State of Odisha & others reported in 2020 SCC OnLine Ori 51 and submitted that the above noted decision makes it clear that the resolution should clearly indicate its purpose and since the purpose has not been clearly indicated in the decision dated Page 3 of 9 // 4 // 28.2.2021 under Annexure-4 series therefore, the entire proceeding is vitiated, which warrants quashing of notice under Annexure-1.
4. Mr.Mohapatra, learned Addl. Government Advocate submitted that the submissions which the learned counsel for the petitioner has made are not backed by any pleadings. Secondly, he submitted that Isanpur Grama Panchayat has got 11 Wards and a perusal of meeting dated 28.2.2021 under Annexure-4 series would show that it was attended by seven persons, out of whom six were Ward Members and one was Naib Sarpanch. Thus, more than one third of the total membership of the Grama Panchayat while referring to various acts of omission and commission of the petitioner, resolved on 28.2.2021 under Annexure-4 series to bring No Confidence Motion against the petitioner. He further submitted that a perusal of the said resolution would clearly show that that purpose was to remove the present petitioner from the Office of Sarpanch. Therefore it cannot be said that the purpose of the resolution has not been indicated therein. Further he relied on a decision of this Court in the case of Prahallad Dalei Vrs. State of Odisha and others reported in 2015 SCC OnLine Ori 395 and forcefully submitted that it is well settled that no form or format has been prescribed for recording a proposed resolution and main thing that is to be seen from the resolution as to what is the intention behind the resolution. He reiterated that a perusal of the Page 4 of 9 // 5 // resolution dated 28.2.2021 would make it clear that the intention was to remove the present petitioner from the Office of Sarpanch by way of No Confidence Motion and in such background, the notice under Annexure-1 cannot be faulted. Accordingly, he submitted that the prayer of the petitioner to quash the notice under Annexure-1 is without any merit and the writ petition should be dismissed.
5. Mr.Suvashish Pattanaik, learned counsel appearing for opposite party Nos. 5 and 6 adopted the submissions made by Mr.Mohapatra, learned Additional Government Advocate and prayed for dismissal of writ petition.
6. Heard Mr.Abhishek Dash, learned counsel for the petitioner, Mr.R.P.Pattanaik, learned Additional Government Advocate and Mr.Suvashish Pattanaik, learned counsel appearing for opposite party Nos. 5 and 6.
7. In order to assess the rival contentions it would be appropriate to refer to the relevant provisions of Section 24 of "the Act".
"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 Page 5 of 9 // 6 // 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)xxx xxxx xxxx
(e)xxxx xxxxx xxxx
(f)xxxx xxxxx xxxxx
(g)xxxx xxxxx xxxxx
(h)xxxx xxxx xxxx
(i)xxxx xxxxx xxxxx
(j)xxxx xxxx xxxx
(k)xxxx xxxx xxxx
(3)xxxxx xxxx xxxx
(4)xxxx xxxx xxxx"
A reading of Sub-section (1) of Section 24 along with Clause(a) of Sub-Section(2) of Section 24 of the Act makes it clear that no meeting should be convened for the purpose of vote of No Confidence except on a requisition signed by one third members of the total membership of the Grama Panchayat along with a copy of the resolution proposed to be moved at the meeting. Here the only Page 6 of 9 // 7 // dispute relates to what is meant by the word "resolution" referred therein and whether the decision taken on 28.2.2021 by Naib Sarpanch along with six Ward Members under Annexure-4 series can be described to be a resolution proposed for the purpose of brining No Confidence Motion.
8. Mr.Dash learned counsel for the petitioner strenuously argued that it cannot be described as a proposed resolution under the law as it did not indicate clearly its purpose. However a perusal of the resolution dated 28.2.2021 shows that the seven participants therein have clearly discussed under different headings as to how the petitioner is conducting herself by allegedly violating many legal provisions and accordingly, it was resolved to bring No Confidence Motion against her with reference to Sub-Section(1) of Section 24 of the Act. Therefore, it cannot be said that the resolution dated 28.2.2021 under Annexure-4 does not clearly reveal the purpose of such resolution. In the decision cited by him i.e. Jaga Pradhann (supra) at Paragraph-21 this Court has referred to the definition of resolution as has been defined in Black's Law Dictionary (Tenth Edition) to mean a main motion that formally expresses the sense, will or action of the deliberative assembly. As has been indicated earlier, a perusal of the resolution dated 28.2.2021 under Annexure-4 series clearly reflects the will of the deliberative assembly therein i.e. to bring to an end to the tenure of petitioner Page 7 of 9 // 8 // by bringing a No Confidence Motion against her on account of her acts alleged to be prejudicial to the public interest. Besides, that case is also factually distinguishable. Unlike the present case, there the requisition was not submitted to Sub-Collector. Secondly in the said requisition no formal request was made for convening a meeting for No Confidence Motion. Thirdly such a requisition was also not accompanied by a proposed resolution as required under law. Therefore the above decision cited by Mr.Dash is of little help to the petitioner. On the contrary, the decision cited by Mr.Mohapatra, learned Additional Government Advocate i.e. Prahallad Dalei (supra) at Paragaraph-19 makes it clear that:
"(i) no form or proforma has been prescribed either for the Notice to be issued by the Sub-Collector calling upon the members including the Sarpanch or Naib-Sarpanch to attend the meeting of No Confidence, or for the requisition to be sent by 1/3rd members of the Grama Panchayat or for the proposed resolution to be moved.
(ii) If the intention of the requisite number of members is clear from the from the resolution adopted in the meeting held to prepare the requisition and the proposed resolution, then the said intention is to be accepted as indicatives of the fact that requisite number of members want to move a No Confidence Motion and that resolution adopted in such meeting is to be abstractly accepted as the proposed resolution.
(iii) The so called proposed resolution to be moved need not be on a separate sheet or document."
9. In such background, it is reiterated that a perusal of resolution dated 28.2.2021 makes it clear that the intention of the Naib Sarpanch and six Ward Members who participated therein Page 8 of 9 // 9 // was to move a No Confidence Motion against the petitioner for bringing an end to her tenure. In such background, this Court does not find any illegality in issuing the communication under Annexure-1 indicating the date, time and place for convening the No Confidence Motion. Accordingly, the writ petition is dismissed and the interim order passed on 9.4.2021 is vacated. The authorities are directed to publish the result of No Confidence Motion forthwith and take consequential action in accordance with law.
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Biswajit Mohanty, J.
Orissa High Court, Cuttack The 8th November, 2021 /Kishore Page 9 of 9