SHANTILATA BEHERA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, who is an elected Chairman of Bhapur Panchayat Samiti constituted in consonance with the provisions under Sec. 16 of the Odisha Panchayat Samiti Act, 1959, has filed this writ petition seeking to quash the no confidence notice no. 696 dtd. 30/7/2021 under Annexure-5 issued by the Sub- Collector, Nayagarh, and to issue direction to the opposite parties to allow her to continue in office as the Chairman of Bhapur Panchayat Samiti till completion of her tenure of five years and further to construe Sec. 16 and 18 of the Odisha Panchayat Samiti Act, 1959 harmoniously so as to give proper effect to both the provisions, in so far as the election of the Chairman and her ouster is concerned.

(2.) The factual matrix of the case, in brief, is that the Sub-Collector, Nayagarh issued notification no. 1050/G.P. dtd. 31/8/2016, to hold the election for the post of Chairman, Panchayat Samiti for the year 2017 for three tire system, as per the reservation applicable after inviting objection in prescribed form-19. So far as Bhapur Gram Panchayat is concerned, the seat was reserved for Schedule Tribe (Woman). Accordingly, the election to the post of Chairman of Bhapur Panchayat Samiti was conducted and said Samiti was constituted in consonance with the provisions under Sec. 16 of the Odisha Panchayat Samiti Act, 1959 (hereinafter referred to "Act, 1959"). As per the provisions contained under sub-Sec. (4) of Sec. 16 of the Act, 1959, the term of the office of the elected members of the Samiti including the Chairman and the Vice-Chairman shall be five years commencing on the date of the first meeting, as provided in Sub-sec. (3) of Sec. 16 of the Act, 1959. The first meeting of the Panchayat Samiti was held on 11/3/2017 in terms of the directive issued by the State Election Commission, Odisha and accordingly, the tenure of the petitioner, i.e., five years period would expire with effect from 10th day of March, 2022. After duly being elected, the petitioner has already completed four and half years in the office. As the elections to the panchayat bodies in the State were held in the month of March, 2017, the succeeding panchayats are to be constituted before completion of the said five years in accordance with Article 243E(3)(a) of the Constitution of India. The process of holding elections of panchayat bodies of the State has already been initiated by the State Government in its Panchayati Raj Department for undertaking delimitation of wards and reservation of seats in consonance with provisions engrafted in the Act, 1959.

(3.) Mr. S.P. Mishra, learned Senior Counsel appearing along with Mr. S.P. Sarangi, learned counsel for the petitioner argued with vehemence that the notice of no confidence issued to the petitioner, along with all the members of the panchayat samiti and sarpanchs, requesting them to participate in the special meeting to consider the requisition of no confidence motion moved against the petitioner, was received by her, without any enclosure. Though such notice clearly indicates that the requisition was sent, enclosing therewith a requisition along with proposed resolution duly signed by one-third members of the samiti. It is further contended that the petitioner is discharging her duty diligently. Therefore, the proposed no confidence motion is a result of political vengeance and collective conspiracy of the members, when hardly five months are to go to complete the tenure of five years. It is further contended that the procedure for initiating no confidence motion is provided in Sec. 46-B of the Act, 1959, which makes it clear that the minimum requirement to initiate no confidence motion against the Chairman or Vice-chairman of the Samiti should be moved by majority of members not less than two-thirds of the total number of members having a right to vote and basing on such proposed resolution a requisition may be moved before the Sub-Collector having majority of one-third members. Thereby, it is mandatory that in order to send requisition, a proposed resolution must have been passed with two-thirds majority members present for no confidence motion. The proposed resolution attached with the requisition sent by the Sarpanchs and members vide Annexure-2 clearly indicates that it contains the signature of only one-third members who have affirmed for moving the no confidence motion. As the proposed resolution was not signed by two-thirds majority of members having right to vote, the initiation of no confidence motion cannot sustain and is liable to be quashed. It is further contended that opposite party no.3-Sub-Collector had shown undue haste to the extent that if requisition was passed with due abiding of the provisions of the Act, 1959, it remains inexplicable and unresolved that entire process of submission of requisition, verification of signature and postal address, compiling of entire report again submitting it back to the Sub-Collector could be concluded within a span of two days and entire process was wound up between 14/7/2021 and 15/7/2021. It is further contended that there is no allegation of malfeasance and misfeasance committed by the petitioner during her tenure as Chairman of Panchayat Samiti and had it been done so the State Government is empowered under Sec. 40-A of the Act, 1959 for initiation of the proceeding for removal of the Chairman on the grounds specified therein. As the petitioner had lodged an FIR regarding misconduct and ill- treatments and illegal activities done by the Vice-Chairman of the Samiti and other entities, the steps have been taken against her for convening the no confidence motion in Annexure-5, which cannot sustain and the same should be quashed. A further contention was raised that the State Government in Department of Panchayati Raj issued instructions on 30/9/2009 stating therein that during the session of Parliament and Assembly meeting of either Panchayat Samiti or Zilla Parishad will not be convened in order to facilitate the Member of Parliament (MP) and Member of Legislative Assembly (MLA) to take part in the meeting.