PARBATI HEMBRAM Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner is the Chairman of Baripada Panchayat Samiti in the district of Mayurbhanj, A motion of no confidence was initiated against her under Section 46-B of the Orissa Panchayat Samiti Act, 1959 (in short 'the Act'). Challenging to that, petitioner has filed this writ petition with the following prayer: It is, therefore, prayed that Your Lordships be graciously pleased to admit this writ application, issue rule Nisi in the nature of Writ of Mandamus or any other writ(s) calling upon the Opp. Parties to show cause as to why the notice, requisition vide Annexure-1 & 2, and any resolution passed on 25.7.2004 pursuant to the said notice, requisition shall not be quashed and why the petitioner shall not be allowed to continue as Chairman of Baripada Panchayat Samiti and why an enquiry shall not be made under what circumstances such an illegal resolution is passed. In the event if the Opp. Parties fail to show cause or show insufficient cause, said Rule be made absolute; And further be pleased to pass any other order(s), directions (s), as deem fit and proper; And for which act of kindness the petitioner as in duty bound shall ever pray.

(2.) Grievance of the petitioner, inter alia, is that though the statutory requirement for service of the notice is at least seven days before the date of 'no confidence motion', but in this case she was served with notice Annexure-1 on 24.07.2004 when the meeting for no confidence was fixed to 25.07.2004. Opposite Party Nos. 2 and 3, in their counter, have not denied the aforesaid contention of the petitioner, but they have explained that the notice of no confidence was issued to the petitioner on 16.07.2004 in her permanent address and a copy of that notice was served on her on 24.07.2004 in her official residence (paragraph-7 of the counter affidavit of opp.parties 2 and 3). According to the case of the opposite party members, it is the date when the notice was issued is relevant and not the date on which it was served on the petitioner. In that context, opposite parties relied on the ratio in the case of Sarat Padhi v. State of Orissa and Ors. 1988 (I) OLR - 80 and Smt. Heeramani Munda v. The Collector, Keonjhar and Ors. 99 (2005) CLT 180. Learned Counsel for the opposite party members further state that petitioner was present at the place of meeting on 25.07.2004 and therefore she cannot take advantage of the ground which has been advanced by her as against the no confidence motion. On the other hand, petitioner relied on the case of Nilambar Majhi v. Secretary to Govt. of Orissa, Panchayat Raj Deptt. and Ors. 2005(11) CLR and argued that when the purpose for issue of a notice is to make the petitioner aware of such a proposed motion of no confidence and also to give her adequate time to prepare to face the said motion, her presence alone on 25.07.2004 does not cover the aforesaid lapses of mandatory provision of law committed by the opposite parties. In that respect he also relied on the observation of the Apex Court in the case of K. Narasimhiah v. H.C. Singri Gowda and Ors. AIR 1966 SC 330.

(3.) Section 46-B (2) (c) of the Act is the provision relating to the manner of taking steps for issue of notice. That provision reads as hereunder: the Sub-divisional Officer on receipt of such requisition shall fix the date, hour and place of such meetings and give notice of the same to all the members with a right to vote, along with a copy of the requisition and of the proposed resolution, at least seven clear days before the date so fixed. (underlined by us to put emphasis) It is clear from the aforesaid statutory provision that excluding the date of notice and the date of the meeting, there should be clear seven days' notice before the date of no confidence motion. A similar legal issue arising for a parametric dispute under the Orissa Grama Panchayat Act, 1964 was considered by the Full Bench in the case of Sarat Padhi (supra). The sequence of law and its consequence was discussed and it was held thus: 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 the notice and the margin of clear 15 days between the date of the notice and the date of the 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 or 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 and 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....