Nirakar Sethi vs State Of Odisha And Others
2021 Latest Caselaw 12875 Ori

                 VVVVVVVVVVVVTHE HIGH COURT OF ORISSA AT
                               CUTTACK

                                     W.A. No.729 of 2021

              Nirakar Sethi                    ......                       Appellant

                                            -versus-
              State of Odisha and Others       ......                    Respondents



              Appearing in the case -
                       For the Appellant    : Mr. Sidheswar Mohanty, Advocate

                       For the Respondents : Mr. S.N. Das, Additional Standing
                                             Counsel (for Respondents 1,2 & 3)

                                               Mr. S.K. Nayak-2, Advocate
                                               (for Respondents 4 to 23)

                      CORAM:
                      THE CHIEF JUSTICE
                      JUSTICE A. K. MOHAPATRA

                                         ORDER

15.12.2021 Order No.

4. Dr. S.Muralidhar, CJ.

1. This writ appeal is directed against the order dated 14 th September, 2021 passed by the learned Single Judge dismissing the Writ Petition (Civil) No.27318 of 2020 filed by the Appellant.

2. By the impugned order the learned Single Judge negatived the plea of the Appellant that the "No Confidence Motion" brought against

him by the members of the Katanabania Gram Panchayat under Rajkanika Block of Kendrapara district was bad in law for not adhering to the statutory notice period in terms of Section 24(2)(c) of the Orissa Gram Panchayat Act, 1964 („the Act‟).

3. The background facts are that the Appellant was the elected Sarpanch of Katanabania GP since February, 2017. Some of the Ward Members of the said GP convened a meeting on 7th March, 2020 and passed resolution of "No Confidence" against the Appellant. Accordingly they moved the Sub-Collector, Kendrapara (Opposite Party No.3) with the proposed resolution/requisition to convene meeting for considering the "No Confidence Motion". The Collector, Kendrapara verified the signatures of the Ward Members and issued letter dated 29th September, 2020 fixing the date, time and place of the special meeting for considering the "No Confidence Motion" as 21st October, 2020 at 11 AM in the Rajkanika Panchayat Samiti Office.

4. The case of the Appellant was that, although notice was issued on 29th September, 2020, it was received by post by the Appellant only on 8th October, 2020. According to the Appellant, given that the date of the meeting was 21st October, 2020, there was no clear 15 days‟ gap between the receipt of the notice by the Appellant and the date for consideration of the "No Confidence Motion". It was accordingly contended that this was violation of Section 24(2)(c) of the Act.

5. Since the above contention was negatived by the learned Single Judge, this Court while hearing the present Appeal required the counsel appearing for the Opposite Party - State to produce the original record.

6. Mr. Das, learned Additional Standing Counsel (ASC) appearing for the Opposite Parties 1 to 3, produced the original record which showed that the Sub-Collector, Kendrapara (Opp. Party No.3) had indeed signed the notice in terms of Section 24(2)(c) of the Act on 29th September, 2020. The notice was dispatched by speed post on 7th October, 2020. There is no dispute that the Appellant and others to whom the notice was issued received it on 8th October, 2020. The gap between the date of receipt of the notice and the date of the meeting was indeed less than 15 days.

7. Mr. Das, learned ASC placed reliance on the judgment of the Full Bench of this Court in Sarat Padhi v. State of Orissa AIR 1988 Ori 116. The facts as set out in para 2 of the said judgment reveal that the Petitioner there was the Sarpanch of Chandpur GP in the district of Dhenkanal in December, 1983. On the resolution passed by the members of the GP expressing want of confidence, the Sub- Divisional Officer, Kamakshyanagar issued a notice dated 3rd September, 1985. The said notice was sent to the members under Certificate of Posting, as required by Section 24(2)(d) of the Act. The Petitioner received the notice on 12th September, 1985, whereas the meeting was scheduled to 24th September, 1985. There too the plea of the Petitioner was that there was no clear 15 day period between the date of receipt of the notice and the date of

meeting and that, therefore, it was violative of Section 24(2)(c) of the Act.

8. After analyzing Section 24 of the Act in detail, it was observed in the leading judgment for the majority that:

"...the period of 15 clear days is only intended to apply between the date of the notice and the date of the meeting so fixed and not between the date of the actual service of the notice and the date of the meeting."

9. The conclusion recorded in the leading judgment reads as under -

"The scheme of the notice contemplated under S.24(2)(c) may be divided into three parts - (1) 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 duty to 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 director. This is also based on a sound public policy as in that event any delinquent Sarpanch or Naib- Sarpanch can frustrate the consideration of the resolution of non-confidence against him by

tactfully dealing or avoiding the service of the notice on him and thus frustrate the holding of the meeting. The legislation has also accordingly taken care to provide in unequivocal terms a provision to obviate such contingencies by incorporating cl.(e) to sub-sec.(2) of S.24."

10. The concurring judgment also observed as under -

"27. Coming to the instant case, section 24(2) of the Act prescribes the procedure for holding the meeting of the Grama Panchayat specially convened to consider no-confidence motion against the Sarpanch and conduct of business at such meeting. Clause (c) of sub-section (2) of section 24 requires the Sub-divisional Officer, on receipt of the requisition, to fix the date, hour and place of the meeting and give notice of the same to all 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. In clause (d) of sub- section (2) it is provided that the aforesaid notice shall be sent by post under certificate of posting and a copy thereof shall be published at least seven days prior to the date fixed for the meeting in the notice board of the Samiti. Clause (e) of sub-section (2) which is important for the present purpose, lays down that the proceedings of the meeting shall not be invalidated merely on the ground that the notice has not been received by any member. From these provisions it is manifest that non-receipt of notice by any member shall not invalidate the meeting and the decision taken therein and further that fifteen clear days‟ notice is not an inflexible requirement. Under clause (d) the notice is required to be published in the notice

board of the Samiti leaving at least seven clear days prior to the date fixed. If a member who has not received notice of the meeting at all is not entitled to challenge its validity on that ground it does not appeal to reason that one who has received notice but less than fifteen days before the meeting is entitled to do so. The notice of the meeting is given with a view to enable the members to deliberate about the proposed no- confidence motion and to make necessary arrangements to attend the meeting on the date fixed. Therefore, non-receipt of notice or receipt of notice short of the prescribed period will be a matter of prejudice to be considered on the facts and circumstances of each case. Keeping in view the intent and purpose of the provision as discussed above, it will not be reasonable to say that the legislative intent was that shortage of the prescribed period for notice will automatically render the meeting invalid irrespective of the fact that the member concerned otherwise had knowledge of the date of the meeting and had adequate opportunity to attend the meeting on the date fixed."

11. The concurring judgment expressly held that -

"...the provisions in section 24(2)(c) of the Act are directory..."

That is not to say that the provisions of the Section 24(2)(c) need not be followed or that a meeting held in contravention of Section 24(2)(c) can never be challenged at all. It only means that the proceeding of the meeting will not stand vitiated automatically for any infringement of the Section. The party challenging the validity of the

meeting relying on the provision has to establish that he has been prejudiced."

12. On the facts of that case, therefore, it was held that the no- confidence motion would not stand invalidated.

13. The present case is more or less on the same lines. Here again although the notice was dated 29th September, 2020 it was in fact despatched by Speed Post only on 7th October, 2020. It was thereafter received by the Appellant and others on 8th October, 2020, thus leaving a gap of only 13 days between the date of receipt of the notice and the date of the meeting.

14. Learned counsel for the Appellant sought to highlight the wording of Section 24(2)(d) of the Act, which states that "aforesaid notice shall be sent by post under Certificate of Posting" and that, unless such notice is „sent‟, it cannot be said to have been „given‟ in terms of Section 24(2)(c) of the Act. He also sought to suggest that, in Sarat Padhi‟s case (supra) the Court had held that the date of „issuance‟ of notice was in fact the date of its dispatch by post, and not the date on which the notice was signed.

15. The Court is unable to agree with the above submissions. In Sarat Padhi‟s case (supra) the date on which the notice was dispatched by Under Certificate of Posting was later than the date on which it was signed by the Sub-divisional Officer, thereby narrowing the time period between the date of the meeting and the date of receipt of the notice to less than 15 clear days. Those facts are identical to the facts of the present case. Therefore, it would be wrong to

contend that the 15 days‟ gap between issuance of the notice and the date of the meeting is a must. That requirement in terms of Section 24(2)(c) of the Act has been held to be „directory‟ and not „mandatory‟ by the Full Bench of this Court. This Court is bound by the Full Bench decision in Sarat Padhi‟s case (supra). Even otherwise, this Court is not inclined to doubt the correctness of the said decision.

16. The writ appeal is accordingly dismissed, but with no order as to costs.

(Dr. S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

S.K.Parida