Afr vs State Of Odisha And Others
2021 Latest Caselaw 8603 Ori

              ORISSA HIGH COURT: CUTTACK

                     W.P.(C) No. 23267 OF 2021

      In the matter of an application under Articles 226 and 227
      of the Constitution of India.
                                 ----------

AFR Shantilata Behera ..... Petitioner

-Versus -

State of Odisha and others ..... Opp. Parties

For Petitioner : Mr. S.P. Mishra, Sr. Advocate along with M/s. S.P. Sarangi, A.

Patnaik & P.K. Dash, Advocates.

For Opp. Parties : Mr. A.K. Mishra, Addl. Government Advocate

Mr. G. Mishra, Sr. Advocate along with M/s. A. Dash, J.R.

Deo, S. Jena, A.K. Das & Mr. A.K. Mishra, Advocates [for Caveator)

M/s. H.S. Mishra, A.K. Mishra, and S.K. Dwibedi [for Intervenor]

M/s. S.K. Dwivedi, K. Mohanty, and K. Hota [for intervenors]

Mr. Ashis Kumar Mishra, [for Intervenor].

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

DECIDED ON 17.08.2021

DR. B.R. SARANGI, J. The petitioner, who is an elected Chairman

of Bhapur Panchayat Samiti constituted in consonance

with the provisions under Section 16 of the Odisha

Panchayat Samiti Act, 1959, has filed this writ petition

seeking to quash the no confidence notice no. 696 dated

30.07.2021 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 Section 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. dated 31.08.2016, 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 Section 16 of the Odisha

Panchayat Samiti Act, 1959 (hereinafter referred to "Act,

1959"). As per the provisions contained under sub-Section

(4) of Section 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-section (3)

of Section 16 of the Act, 1959. The first meeting of the

Panchayat Samiti was held on 11.03.2017 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.

2.1 Bhapur Panchayat Samiti consists of 42

members including M.L.A. and M.P. On 13.07.2021,

eighteen Sarpanchs and Panchayat Samiti Members of

Bhapur Panchayat Samiti submitted a requisition duly

signed by one-third members with right to vote, along with

proposed resolution, to the opposite party no.3, i.e. Sub-

Collector, Nayagarh with respect to taking steps for having

an extraordinary meeting of the Panchayat Samiti for

adopting vote of no confidence against the petitioner, who

is the Chairperson of Bhapur Panchayat Samiti. Along

with the letter addressed to the Sub-Collector, a resolution

dated 13.07.2021 was attached wherein eighteen

Sarpanchas and Samiti Members have resolved that they

have no confidence on the Chairman. On receipt of the

above mentioned requisition, along with proposed

resolution, the opposite party no.3-Sub-Collector,

Nayagarh, vide letter no. 542 dated 14.07.2021, requested

the opposite party no.4, BDO, Bhapur Block to take

necessary steps in verifying the genuineness of signatures

of members, who have moved the requisition and further

requested to provide the requisite postal address of all

members of Samiti having right to vote within three days.

After receipt of the letter sent by opposite party no.3, the

opposite party no,4- BDO, Bhapur immediately constituted

a committee consisting of himself along with ABDO, AE

and PA in order to verify the genuineness of the

signatures and providing the requisite postal address of

the members thereof. The report was prepared on

14.07.2021 and was sent to opposite party no.3, which

was received by him on 15.07.2021. In the meantime, one

Tofan Kumar Pradhan and seven others filed W.P.(C) No.

21045 of 2021 with a prayer to take steps for convening

the meeting regarding no confidence against the

Chairperson of Bhapur Panchayat Samiti on receipt of

requisition and proposed resolution from more than one-

third members of total membership of Bhapur Panchayat

Samiti, as per the provisions contained under Section 46-

B(2)(c) of the Act, 1959. This Court, vide order dated

27.07.2021, directed the Addl. Government Advocate to

obtain instructions in the matter from the Sub-Collector,

Nayagarh as to why no action has yet been taken in spite

of receipt of requisition and the copy of resolution for no

confidence motion against the Chairperson. On

30.07.2021 under Annexure-5, the Sub-Collector,

Nayagarh issued notice to all the members of the

Panchayat Samiti, Sarpanchs including the petitioner

requesting them to participate in the special meeting to

consider the requisition and proposed resolution of no

confidence motion moved against the petitioner. Hence this

application.

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 Section 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 14.07.2021 and 15.07.2021. 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 Section 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 30.09.2009 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.

To substantiate his contention, reliance has been

placed on Parbati Hembram v. State of Odisha, 2006 (I)

OLR 685.

4. Mr. A.K. Mishra, learned Addl. Government

Advocate appearing for the State contended that the

impugned notice in Annexure-5 has been issued in

consonance with the provisions contained in Section 46-B

of the Act, 1959 on receipt of requisition duly signed by

one-third members with right to vote, along with a copy of

the resolution proposed to be moved at the meeting, and

only when this Court directed to the learned Addl.

Government Advocate in W.P.(C) No. 21045 of 2021 to get

instructions with regard to the steps taken on requisition

signed by the members of the Samiti, the action has been

taken by issuing notice under Annexure-5 to convene a

special meeting, in which a resolution is to be passed

supported by a majority of not less than two-thirds of the

total number of members having right to vote, recording

regarding want of confidence in the Chairman, the

petitioner herein. Thereafter, the resolution shall forthwith

be published in accordance with the provisions contained

in Section 46-B(1) of the Act, 1959. In support of his

contention, he has relied upon Smt. Kanti Kumbhar v.

State of Orissa; 2001 (II) OLR 44; Manaswini

Baliarsingh v. State of Odisha., (2014) 118 CLT 1146;

and Sulochana Behera v. State of Odisha, AIR 2018 Ori.

17.

5. Mr. G. Mishra, learned Senior Counsel appearing

along with Mr. A. Dash, learned counsel appearing for the

caveator, resorting to the provisions contained in Section

46-B(1) and (2) of the Act, 1959, contended that in the

instant case the meeting of the Samiti has been convened

on the requisition signed by at least one-third of the

members with a right to vote, along with copy of the

resolution proposed to be moved at the meeting, and as

such, the requisition having been given by one-third

members of the Samiti, the requirement of requisition, as

provided under Sub-section (2)(a) of Section 46-B is

satisfied. It is further contended that the proposed

resolution incorporating the requisition should be

addressed to the Sub-Divisional Officer and on receipt of

such requisition the Sub-Divisional Officer shall fix the

date, hour and place of such meeting and give notice of the

same to all the members with a right to vote, along with a

copy of the requisition and of proposed resolution at least

seven clear days before the date so fixed. Therefore, for the

purpose of convening the meeting of the Samiti specially

where resolution is to be passed for no confidence, that

should be supported by majority of not less two-thirds of

total number of members having right to vote recording

want of confidence in the Chairman or Vice-chairman of

such Samiti and the said resolution shall forthwith be

published by the authority in the manner as may be

prescribed and with effect from date of such publication

the Chairman or Vice-chairman shall be deemed to have

vacated the office. Since action has been taken by the Sub-

Collector in consonance with the provisions contained in

Section 46-B, no illegality or irregularity has been

committed by him in issuing Annexure-5, the notice dated

30.07.2021, so as to warrant interference by this Court. It

is further contended that as per the provisions contained in

the Act, 1959 the petitioner can only stay in power so long

as she enjoys the support of majority of the elected

members, because at the time of election the petitioner was

the chosen one, but at the time when the motion of no

confidence against the petitioner was passed, she was not

wanted. It is further contended that the institution must

run on democratic principle. In democracy, all persons

heading public bodies can continue, provided they enjoy

the confidence of the persons who comprise such bodies,

which is essence of the democratic republicanism. When

opposite party no.3 had not acted on the basis of the

requisition signed by one-third members, the caveator,

Tofan Kumar Pradhan along with seven other members,

approached this Court by filing W.P.(C) No. 21045 of 2021

and when this Court, vide order dated 27.07.2021, directed

the Additional Government Advocate to obtain instructions

as to why no action has been taken in spite of receipt of

requisition and copy of the proposed resolution for no

confidence motion against the petitioner, the opposite party

no.3 had acted upon it in consonance with the instructions

sought by the Addl. Government Advocate to apprise the

Court in pending writ petition. Thereby, no illegality or

irregularity has been committed by issuing such notice in

Annexure-5 in order to warrant interference by this Court

at this stage. To substantiate his arguments, reliance has

been placed on Usha Bharati v. State of Uttar Pradesh,

(2014) 7 SCC 633 and Jogeswar Bhoi v. State of Odisha,

2016 (II) OLR 882.

6. Mr. H.S. Mishra, learned counsel appearing for

the intervenor raised preliminary objection with regard to

maintainability of the writ application, in view of the

provisions contained in Section 54-A of the Act, 1959 and

supported the arguments advanced by Mr. G. Mishra,

learned Senior Counsel appearing for the caveator. He

further contended that Section 46-B(2) of the Act, 1959

provides a procedure to be followed for passing a vote of no

confidence by the members of the Panchayat Samiti. No

form is required for the requisition along with the proposed

resolution to be sent to the Sub-Divisional Officer and in

absence of rules or form prescribed for the purpose, the

requirement of Section 46-B(2) of the Act, 1959 is to be

satisfied, if they are substantially complied with.

Therefore, contended that the writ petition is to be

dismissed at the threshold, as there is sufficient

compliance of the provisions contained in Section 46-B of

the Act, 1959.

7. Mr. S.K. Dwibedi and Mr. Ashis Kumar Mishra,

learned advocates, who have entered appearance for

intervenors supported the contention raised by Mr. G.

Mishra, learned Senior Advocate and Mr. H.S. Mishra,

learned advocate for the caveator as well as the intervenor,

and contended that they are appearing for 30 members,

Mr. H.S. Mishra, learned Advocate is appearing for one

member and Mr. G.Mishra, learned Senior Advocate is

appearing for one member and, thereby, they have got

majority of 32 members before the Court, out of total 42

and they comprise more than two-thirds members, which

satisfies the requirement. Consequentially, the initiation of

no confidence motion by one-third member by sending

requisition along with proposed resolution, is well justified

and pursuant to the same the Sub-Collector having issued

notice dated 30.07.2021 under Annexure-5, the same does

not warrant interference by this Court and, therefore, the

writ petition should be dismissed.

8. This Court heard Mr. S.P. Mishra, learned Senior

Counsel appearing along with Mr. S.P. Sarangi, learned

counsel for the petitioner; Mr. A.K. Mishra, learned Addl.

Government Advocate appearing for the State; Mr. G.

Mishra, learned Senior Counsel appearing along with Mr.

A. Dash, learned counsel for the caveator; Mr. H.S. Mishra,

learned counsel appearing for one of the intervenors; Mr.

S.K. Diwbedi, learned counsel appearing for 29 intervenors;

and Mr. Ashis Kumar Mishra, learned counsel appearing

for one of the intervenors. Though intervention applications

filed by respective intervenor petitioners have not been

allowed, but they have been permitted to address the Court

and to participate in the process of hearing, without filing

any reply by them, as the matter is very urgent in nature

and the date has been fixed to today (17.08.2021 at 11.00

A.M.) for no confidence motion as per the notice under

Annexure-5. Therefore, with the consent of the parties, the

matter has been heard and disposed of.

9. By the Constitution (Seventy-third Amendment)

Act, 1992, which has come into effect w.e.f. 24.04.1993,

Part-IX containing Articles 243, 243A to 243O has been

inserted. Article 243E deals with duration of panchayats,

etc., which indicates that every panchayat, unless sooner

dissolved under any law for the time being in force, shall

continue for five years from the date appointed for its first

meeting and no longer. Similarly, Article 243F deals with

disqualifications for membership of panchayats. Article

243K deals with elections to the panchayats and Article

243N deals with Continuance of existing laws and

panchayats, whereas Article 243O deals with bar to

interference by Courts in electoral matters.

10. Whereas it is expedient to provide for the

establishment of Panchayat Sanmitis in the State of

Odisha and for matters connected therewith or incidental

thereto, the State Legislature of the State of Odisha has

enacted a law, called, "The Odisha Panchayat Samiti Act,

1959". Section 3(e) defines "Panchayat Samiti", which

means the Panchayat Samiti constituted under Section 16.

Section 16 deals with constitution of the Panchayat Samiti.

Section- 40-A, which has been inserted vide Odisha Act

No. 24 of 1961, deals with removal of Chairman and Vice-

Chairman of Samiti, which reads as follows:

"40-A. Removal of Chairman and Vice- Chairman of Samiti - (1) If in the opinion of the Government the Chairman [the Vice-Chairman or any member elected under Clause (h) of Sub- section (1) of Section 16 or nominated under Section 45-C] of the [* * *] Samiti wilfully omits or refuses to carry out or, violates the provisions of this Act or any rules, bye-laws or orders, made or issued thereunder or abuses the powers vested in him and Government are satisfied that further continuance of such person in office would be detrimental to the interest of the [* * *] Samiti they may, by order, published in the prescribed manner, remove such Chairman, [Vice-Chairman or member, as the case may be,] from office :

Provided that no such order for removal shall be made without giving the person concerned a reasonable opportunity of being heard.

(2) No person removed from the office of Chairman, Vice-Chairman or an elected member under this section shall for a period of four years from the date of the removal, be eligible to hold any of the said offices."

Section 46-B deals with vote of no confidence against

Chairman and Vice-Chairman of Samiti, which reads as

follows:

"46B. Vote of no confidence against Chairman and Vice-Chairman of Samiti - (1) Where at a meeting of the [* * *] Samiti specially convened in that behalf a resolution is passed, supported by a majority of [not less than two-thirds of] the total number of members having a right to vote, recording want of confidence in the Chairman or Vice-Chairman of such [* * *] Samiti the resolution shall forthwith be published by such authority and In such manner as may be prescribed and with effect from the date of such publication the Chairman or Vice-Chairman, as the case may be, shall be deemed to have vacated office.

(2) In convening a meeting under Sub-section (1) and in the conduct of business at such meeting the procedure herein specified shall be followed, namely :

(a) no such meeting shall be convened except on a requisition signed by at least one-third of the members with a right to vote, 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 meetings and give notice of the same to all the members with a right to vote, alongwith a copy of the requisition and of the proposed resolution, at least seven clear days before the date so fixed;

[(d) the Sub-divisional Officer or when he is unable to attend any other Gazetted Officer not below the rank of a [Class-II Officer of the State Civil Service], authorised by him, shall preside over and conduct the proceedings of the meeting;]

(e) the voting at all such meetings shall be by secret ballot;

(f) no such meeting shall stand adjourned to a subsequent date and no item of business other than the resolution for recording want of confidence in the Chairman or the Vice-

Chairman shall be taken up for consideration at the meeting;

[(f-1) no such resolution shall be taken up for consideration [unless it has been proposed by one member and has been seconded by another member at the meeting;]] [(f-2) after the resolution is taken up for consideration the member proposing the resolution may open the discussion thereon and other members may speak on the resolution in the order in which they are called upon by the Presiding Officer :

Provided that no member shall, unless so permitted by the Presiding Officer, have the right to speak more then once and if any member who is called upon does not speak he shall not be entitled, except by the permission of the Presiding Officer, to speak at a later stage of the discussion;

(f-3) where the Chairman or as the case may be, the Vice-Chairman, against whom the resolution has been tabled, is present, he shall be given an opportunity to speak by way of reply to the resolution and the discussion made at the meeting;

(f-4) the Presiding Officer may fix the time within which each member, including the

Chairman and Vice-Chairman, shall conclude his speech;

(g) if the number of members present at the meeting is less than [a majority of two-

thirds] of members having a right to vote the resolution shall stand annulled ; and

(h) if the resolution is passed at the meeting supported by [a majority of two-thirds] of members having a right to vote, [the Sub-

divisional Officer] shall forward the resolution to the authority prescribed in pursuance of Sub-section (1).] [(3) When a meeting has been held in pursuance of Sub-section (2) for recording want of confidence in the Chairman or Vice-Chairman, as the case may be, no fresh requisition for a meeting shall be maintainable-

(a) in eases falling under Clauses (g) and (h) of the said Sub-section or where the resolution is defeated after being considered at the meeting so held, before the expiry of one year from the date of such meeting; or

(b) where the notification calling for general election to the Samiti has already been published under or in pursuance of Sub-

section (2) of Section 49.] [(4) Without prejudice to the provisions of Sub- section (3) no requisition under Sub-section (2) shall be maintainable in the case at a Chairman or Vice- Chairman, as the case may be, before the expiry of [two years] from the date on which such Chairman or Vice-Chairman enters office :]

[Provided that all requisitions received under Sub- section (2) prior to the date of commencement of the Orissa Panchayat Samiti (Second Amendment) Act, 1993 on which no meeting for recording want of confidence has been held by the said date, shall stand abated.]"

Section-54-A deals with Revision and Review, which reads

as follows:

"54A. Revision and review - (1) The Government may, either suo motu or on an application from any person interested, call for and examine the record of a [* * *] Samiti in respect of any proceeding [(including any proceeding under Section 46-B)] or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the Government that any such decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass orders accordingly :

Provided that the Government shall not pass any order prejudicial to any party unless such party has had an opportunity of making a representation.

(2) The Government may stay the execution of any such decision or order pending the exercise of their powers under Sub-section (1) in respect thereof. (3) The Government may, suo motu at any time or on an application received from any person interested within ninety days of the passing of any order under Sub-section (1) review any such order if it was passed by them under any mistake, whether of fact or of law, or in ignorance of any material fact. The provisions contained in the proviso to Sub-section (1) and in Subsection (2) shall apply in respect of any proceeding under this Sub-section as they apply to a proceeding under Sub-section (1).

(4) Every application preferred under Sub-section (11) or Sub-section (3) of this section shall be accompanied by a fee of fifteen rupees."

On perusal of the aforementioned provisions, it is made

clear that the Chairman and Vice-Chairman shall be

removed, if in the opinion of the Government the

Chairman of Samiti willfully omits or refuses to carry out

or, violates the provisions of the Act or any rules, bye-laws

or orders, made or issued thereunder or abuses the powers

vested in him and Government are satisfied that further

continuance of such person in office would be detrimental

to the interest of the Samiti they may, by order, published

in the prescribed manner, remove such Chairman from

office. No person removed from the office of Chairman,

under this section shall for a period of four years from the

date of the removal, be eligible to hold any of the said

offices. But the present case does not come under the

provisions contained under Section 40-A of the Act, rather,

the petitioner, being an elected Chairman, is continuing

the office. On requisition being sent along with the

proposed resolution, signed by one third members with a

right to vote, a special meeting has been convened to be

held on 17.08.2021 at 11.00 A.M. in the Conference Hall of

Bhapur Panchayat Samiti pursuant to notice dated

30.07.2021 vide Annexure-5 so as to pass a resolution

supported by majority of two third members having a right

to vote regarding want of confidence against the Chairman,

the petitioner herein.

11. The provisions as envisaged under Section 46-B

contains different parts. The procedure has been dealt with

under Section 46-B(2) of the Act, which clearly specifies in

convening a special meeting under Sub-section (1) and in

the conduct of business at such meeting the procedure

has been envisaged that no such meeting shall be

convened except requisition signed by at least one third

members with right to vote, along with copy of the

resolution proposed to be moved at the meeting. Therefore,

the provision is very clear that sending a requisition to

convene a special meeting for which Section 46-B(2), one

third member has to be signed having right to vote to send

the requisition, along with a copy of the resolution

proposed to be moved in the said meeting. The procedure

envisaged under Section 46B(1) shall be followed where at

a meeting of the Samiti specially convened in that behalf a

resolution is passed supported by a majority of two-third

of the total number of members having a right to vote,

recording want of confidence in the Chairman and the

same should be read along with the provisions contained

under Sub-sections 2(g) and 2(h), where it has been

specifically mentioned if the member present at the

meeting is less than a majority of two-thirds of members,

having a right to vote, the resolution shall stand annulled

and if the resolution passed at the meeting supported by a

majority of two-thirds of members having a right to vote,

the Sub-Divisional Officer shall forward the resolution to

the authority prescribed in pursuance of Sub-section (1),

which shall be done by such authority and in such

manner as may be prescribed with effect from the date of

such publication, the Chairman shall be deemed to have

vacated the office.

12. The sequence of events, which have been

narrated above, clearly indicate that a requisition was sent

to draw no confidence motion against the petitioner duly

signed by one-third of the members with right to vote in

Annexure-1 dated 13.07.2021, along with a copy of the

resolution proposed to be moved in the special meeting

vide Annexure-2. The same has also been signed by one-

third members, which may not be required for the purpose

of Section 46-B(2)(a) of the Act, 1959. Thereby, the

requirement of provisions contained under Section 46-B

(2)(a) has been complied with by sending a requisition

signed by at least one-third members with right to vote,

along with copy of the resolution proposed to moved at the

special meeting. On receipt of the same, the Sub-collector

has acted upon on 14.07.2021 on the same calling upon

the B.D.O., Bhapur to make verification of the genuineness

of the signatures of the members with reference to first

general meeting of the Samiti for the term in force within a

period of three days. But the B.D.O. Bhapur on the very

same day constituted a committee consisting of himself

along with ABDO, AE & PA of the Block, verified signatures

in the requisition with proposed resolution copy of no

confidence motion and also the postal address of the

members of the Samiti and communicated the same on

14.07.2021 to opposite party no.3. Since no action was

taken thereon, the caveator, namely, Tofan Kumar

Pradhan & seven others field W.P.(C) No. 21045 of 2021

seeking direction to act upon the requisition singed by

one-third members with a right to vote along with copy of

the proposed resolution. Consequentially, this Court

sought for instruction on 27.07.2021 through the learned

Addl. Government Advocate as to why no action has yet

been taken in spite of receipt of requisition and copy of the

resolution for no confidence motion against the petitioner.

In response to the same, on 30.07.2021, the Sub-Collector

issued the notice specially convening a meeting of the

Samiti to pass a resolution of no confidence under Section

46-B of the Act, 1959 to be held on 17.08.2021 at 11 a.m.

in the conference hall of the Panchayat Samiti office at

Bhapur and said notice of no-confidence has been

communicated to the petitioner as well as all the members

enclosing the requisition sent by one-third members duly

signed along with the proposed resolution.

13. In course of hearing, Mr. S.P. Misha, learned

Senior Counsel appearing for the petitioner contended that

notice under Annexure-5 dated 30.07.2021 cannot sustain

as the petitioner has not been communicated the notice

along with the requisition sent by one-third members as

per the proposed resolution, thereby, it suffers from

infirmity and seeks for quashing of the same. Since no

counter affidavit has been filed, at the stage of admission,

the matter is taken up for final disposal. This Court called

upon Mr. A.K. Mishra, learned Addl. Government Advocate

appearing for the State to obtain necessary instructions

immediately due to urgency of the matter, as the no

confidence motion has been fixed to today at 11 a.m. and

whether the Sub-Collector has communicated the copy of

the requisition duly signed by one-third members having

right to vote along with proposed resolution. Mr. Lagnajit

Rout, Sub-Collector, Nayagarh informed to the Addl.

Government Advocate to appraise the Court that notice

issued to the petitioner has been communicated with the

requisition duly signed by one-third members with a right

to vote along with proposed resolution not only to the

petitioner alone but also to all other members of the

Panchayat Samiti to participate in the specially convened

meeting to be held on 17.08.2021. Thereby, the arguments

advanced to this extent has no locus to stand, as the

requirement of Section 46-B (2)(c) has been complied with.

14. The second limb of argument, which was

advanced, that along with the requisition, the proposed

resolution has to be signed by two-third members, is

absolutely misconceived one, in view of the fact that the

procedure for convening a special meeting under Sub-

section (1) and in the conduct of business at such meeting

the procedure has been envisaged under Sub-section (2) of

Section 46-B. Sub-section 2(a) of Section 46-B clearly

indicates that meeting shall be convened on a requisition

signed by at least one-third of the members with a right to

vote, along with a copy of the resolution proposed to be

moved at the meeting. On the basis of the documents

available on record, the requisition has been signed by

one-third members i.e., 18 members and the same has

been submitted along with a copy of the resolution

proposed to be moved in the meeting. Meeting means, the

specially convened meeting as provided under Sub-section

(1) of Section 46-B of the Act. In the said meeting, the

proposed resolution, which was to be moved, be passed

supported by a majority of two-third of total members

having right to vote recording want of confidence on the

Chairman, the petitioner herein. That stage will come

today, i.e. 17.08.2021 at 11 a.m. pursuant to notice issued

under Annexure-5 dated 30.07.2021. As such, there are

32 members, who have right to vote, have appeared before

this Court either by way of filing Caveat to this writ

petition or by way of intervention raising objection to the

writ petition, which has been filed challenging the notice of

no confidence issued by the Sub-Collector in Annexure-5

dated 30.07.2021. Thereby, the arguments advanced that

the proposed resolution is required to be singed by two-

third members does not support the provisions of law as

mentioned under Section 46-B(1) of the Act, 1959.

Thereby, such argument cannot sustain.

15. Further contention was raised that the proposed

resolution, as indicated in Annexure-2, was passed at the

meeting held at Hanuman Temple of Bhapur, which was

disowned by Jitendra Kumar Ransingh, acting as Vice-

President, and Kartik Chandra Nayak, acting as president

of the Hanuman Temple Bije at Sri Ram Vihar Bhapur

Management Committee under Annexure-8 dated

30.07.2021. As such, there is no requirement of law to

have a formal meeting at a particular place.

16. In Smt. Kanti Kumbar vs. State of Orissa,

2001 II OLR 44, this Court in paragraph-6 held as follows:

"6. The petitioner in this case has asserted that the requisition along with the proposed resolution was adopted at a meeting on 3.9.2000 without observing the due procedure laid down Under Section 46-B of the Act. This contention is without any substance. For submitting a requisition for holding a specially convened meeting for discussing about no- confidence motion, no formal meeting of the Panchayat Samiti is necessary. Section 46-B (2)

(a) only requires that a special meeting for discussing about the no-confidence motion can be convened only on the basis of a requisition signed by at least one-third of the members with a right to vote and along with such requisition, a copy of the resolution proposed to be moved at such meeting is required to be sent. There is no requirement in the Act that before sending such a requisition, there has to be a formal meeting of the Panchayat Samiti. It is, of course, true that in the present case, the proposed resolution relating to no-confidence was also purported to have been adopted in a meeting held on 3.9.2000. Such a meeting of some of the members of the Panchayat Samiti does not have any statutory force and is not

required to be held in a particular manner. It can be considered to be a convenient method for preparing requisition along with proposed resolution (the no-confidence motion). Therefore, even assuming that such a meeting had been held without following any procedure contemplated Under Section 46-B, the requisition on the basis of so-called resolution adopted in such meeting does not become illegal and on the basis of such requisition the meeting contemplated Under Section 46-B (1) could be legally convened by the prescribed authority if other conditions are fulfilled. In this context, it is also contended that no reason had been given in the proposed resolution for moving the no- confidence motion against the Chairperson. The provisions contained in Section 46-B of the Act do not require any particular reason to be given for sending a requisition for the purpose of considering a no-confidence motion. It is also not necessary that in the proposed resolution, the reasons for moving the no-confidence motion against the Chairman or the Vice-Chairman, as the case may be, should be indicated.

17. In Manaswini Baliarsingh (supra), the

Division Bench of this Court in paragraph-7 held as

follows:

"7. With reference to the aforesaid contention a query was made by this Court whether in the writ petition such a plea was taken or not. On perusal of the records and considering the admission made by Mr. P. Acharya, it reveals that no such pleading was advanced before the learned Single Judge. Therefore, there was no occasion on the part of the learned Single Judge to deal with such aspect. This Court therefore refrains from given any finding on that score because such contention was neither pleaded before the learned Single Judge nor done so in the present proceeding. It is further pleaded that

the respondent-opposite party did not file any counter to the writ petition and, therefore, the learned Single Judge could not have proceeded with the matter in absence of any counter filed by the State justifying the Circular issued by the Government dated 30.09.2009. Even if no counter is filed since pure question of law was involved for interpretation and consideration, in absence of any counter filed, the learned Single Judge proceeded on the basis of the materials available on record and categorically stated that while issuing the impugned notification fixing the date of recording "No Confidence Motion" during Parliament session, the Sub- Collector had no scope to know about the date of session of the Parliament as by the said date the impugned notification vide Annexure-3 had been issued. Even otherwise, if the Parliament Session was continuing, 7th June, 2014 being the off day of the Lok Sabha, the Hon'ble Member of the Parliament, Mr. Pinaki Mishra attended the meeting and participated in the same. Therefore, no infirmity otherwise is evident in the impugned notification, Annexure- 3 and the effect of the Circular, Annexure-1 cannot stand in the way if otherwise it has not affected the procedure itself. In this background, it can be concluded that by the time Annexure-3 was issued, the Parliament Summon, Annexure-2, had not been notified. Therefore, the Circular, Annexure-1, has no relevance to the present context. Accordingly the contention to this effect is nagatived."

18. In Sulochana Behera (Supra), this Court

in paragraph-8, held as follows:

"8. Taking up the contentions raised by Mr. Acharya, learned Senior Counsel, one by one, it is seen that the first contention raised is that the meeting has to be convened on a requisition. There is no dispute that a requisition has been sent to the authority. It is

further seen that the requisition has been signed by 1/3rd members, which is also not disputed in this case. The third contention is that the requisition should be annexed with a copy of the proposed resolution and the fourth contention that the requisition shall be addressed to the District Magistrate and the proposed resolution should be based on sound reasoning. As far as issuing the requisition for convening a meeting, the matter has already been set at rest by the judgment of this Court in the case of Bhagabat Sahoo Vs. Collector, Angul and others (supra). So there is no need to answer that issue. The main question, that is the provision of Section 54 of the Act is ultra vires of Constitution. Learned Senior Counsel for the petitioner argues that Articles 243Q and 243T provide for constitution of Municipalities and Reservation of seats and, therefore, the petitioner being a candidate of the reserved category, her tenure should not be curtailed by a resolution of 2/3rd of the members. Firstly, it is noted that the vires of Section 54 of the Act has not been challenged in this writ petition.

Even if the same is challenged, the matter has to be decided by a Division Bench and it cannot be decided by a single Bench of this Court. Thirdly, it seen nowhere in Articles 243-Q and 243-T of the Constitution of India that there is embargo for removal of a person who lost the confidence of the council. Moreover in the case of Padmini Nayak Vs. State of Orissa and others (supra), a Division Bench of this Court has already decided that Section 24 of the Odisha Grama Panchayat Act is not ultra vires of the Constitution. This rulling has been given based on the ratio decided by this Court in the case of Bhagabat Sahoo Vs. Collector, Angul and others (supra). Section 24 of the Odisha Grama Panchayat Act provides for removal of Sarpanch or Naib Sarpanch on loss of confidence of the Panchayat. Section 54 of the Act provides for vote of no confidence against a Chairperson or Vice Chairperson. Even though Section 54 of the Act and Section 24 of the Odisha Grama Panchayat Act are not pari

material, they are in essence providing similar forum and provision for removal of the elected head of the institution because of no confidence motion of the members of the House, the Grama Panchayat or the Municipal Council. So this Court is of the opinion that the provision of Section 54 of the Act is not ultra vires of the Constitution."

19. In Jagadish Pradhan and Ors. V.

Kapileswar Pradhan and Others, 64 (1987) CLT 359, in

paragraph-7 this Court held that Section 46-B(2) of the

Act, 1959 provides the procedure to be followed in passing

the vote of no confidence by the members of the Panchayat

Samiti. It does not provide for any proforma and, as such,

the State Government did not consider that a form would

be necessary for the requisition to be sent to Sub-

Divisional Officer or for the proposed resolution along with

such requisition or for the notice by the Sub-Divisional

Officer in the absence of rules or form prescribed for the

purpose, the requirement of Section 46-B(2) of the Act,

1959 will be satisfied, if they are substantially complied.

20. In Usha Bharati (supra), while considering the

U.P. Kshettra Panchayats and Zilla Panchayats Act, 1961,

which is pari materia to Panchayat Samiti Act, 1959, the

apex Court clearly held that an elected representative can

only stay in power so long as such person enjoys the

support of majority of the elected members of the Zilla

Parishad and in the present case at the time of election,

the petitioner was the chosen person but at the time when

motion of no confidence in the petitioner was passed she

was not wanted.

21. The apex Court also referring to the judgment of

the apex Court in Bhanumati v. State of U.P. (2010) 12

SCC, in paragraphs 43 and 44 held as follows:

"43. Upon examination of the entire Scheme of the Seventy-third Amendment, in the context of framing of the Constitution of India, this Court in Bhanumati [(2010) 12 SCC 1] , observed as follows: (SCC p. 18, para 54) "54. The argument that as a result of the impugned amendment stability and dignity of the Panchayati Raj institutions has been undermined, is also not well founded. As a result of no- confidence motion the Chairperson of a panchayat loses his position as a Chairperson but he remains a member, and the continuance of panchayat as an institution is not affected in the least." We are in respectful agreement with the aforesaid conclusion.

44. We reiterate the view earlier expressed by this Court in Bhanumati [(2010) 12 SCC 1] , wherein this Court observed as follows: (SCC p. 19, paras 57-58) "57. It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj institutions and to

impart certainty, continuity and strength to them.

The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no-confidence motion is passed against the Chairperson of a panchayat, he/she ceases to be a Chairperson, but continues to be a member of the panchayat and the panchayat continues with a newly-elected Chairperson. Therefore, there is no institutional setback or impediment to the continuity or stability of the Panchayati Raj institutions.

58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India."

22. So far as the declaration of Bhanumati

mentioned supra, whether per incurium or not in

paragraph-56 it has held as follows:

"56. In the face of these findings, it would not be possible to accept the submission of Mr Bhushan that the judgment in Bhanumati [(2010) 12 SCC 1] is either per incuriam or requires reconsideration."

23. On the cumulative effect of the judgments cited

above, it can safely be concluded that the Samitis must

run on democratic principles. In democracy, all persons

heading public bodies can continue provided they enjoy

the confidence on the persons who comprise such bodies.

This is the essence of democratic republicanism. Thereby,

if a majority of members, who have right to vote no

confidence on present petitioner, and they have sent a

requisition duly signed by one third member with right to

vote along with the proposed resolution to the Sub-

Collector, who in response to the same cnvened a special

meeting by issuing Annexure-5 dated 30.07.2021

enclosing the requisition as well as proposed resolution to

have the meeting on 17.08.2021 at 11 a.m., no illegality or

irregularity has been committed by issuing such notice so

as to warrant interference of this Court in this present writ

petition. Even otherwise also, in view of the provisions

contained in Section 54-A of the Act, 1959, this writ

petition may not be maintainable before this Court.

24. So far as the applicability of the judgment of

this Court in Parbati Hembram (supra), relied upon by

learned Senior Counsel appearing for the petitioner, which

relates procedural irregularity committed for issuance of

notice under Section 46-B(2)(c) of the Act, which requires

seven days clear notice before the date has to be fixed and

that has got no connection with the present issue.

Thereby, the said case is distinguishable from the present

one.

25. Considering both factual and legal aspects, as

mentioned above, this Court is of the considered view that

notice dated 30.07.2011 under Annexure-5 convening a

special meeting for no confidence motion fixing 17.08.2021

at 11 a.m. in the conference hall of the Panchayat Samiti

Office of Bhapur is in accordance with the provisions

contained under Section 46B of the Act, 1959, which does

not require interference of this Court. Accordingly, the writ

petition merits no consideration and the same stands

dismissed. There shall be no order as to costs.

..............................

DR. B.R.SARANGI, JUDGE

Orissa High Court, Cuttack The 17th August, 2021., GDS/Ajaya.