Orissa High Court
Jayaram Nayak vs State Of Odisha And Others .... Opposite ... on 19 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26726 of 2024
Jayaram Nayak .... Petitioner
Mr. K.K. Mishra, Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Mr. P.K. Mohanty, ASC
Mr. U.K. Samal, Advocate for O.P. No.5
Mr. A.P. Bose, Advocate for O.P. Nos.8, 11 & 15
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:19.02.2025
1.
Instant writ petition is filed by the petitioner challenging
the initiation of the proceeding under Section 24 of the
Odisha Grama Panchayats Act, 1964 (hereinafter referred to
as „the Act‟) on the basis of the requisition as at Annexure-1
on the grounds inter alia that the statutory requirement of
Section 24(2)(c) of the Act has not been complied with,
hence, liable to be quashed.
2. In fact, notice dated 14th October, 2024 was issued by
opposite party No.3 to convene a special meeting vis-a-vis
vote of no confidence against the petitioner after receiving
the requisition from opposite party Nos.5 to 17. The pleading
of the petitioner is that such notice is contrary to law and
without due compliance of Section 24(2)(c) of the Act,
inasmuch as, it was signed just 15 days prior to the date fixed
for the meeting and the same was received by him on 18th
October, 2024, as a result of which, there was no sufficient
time to convince the Ward Members against the proposed
resolution. The contention is that the prescribed period of 15
days as prescribed under Section 24(2)(c) of the Act should
be reckoned from the date of receipt of the same by the
petitioner. It is alleged by the petitioner that immediately
after the recent general election, opposite party No.5, who is
the Naib Sarpanch connived with the dissenting Ward
Members of the GP and moved for the vote of no confidence
despite the fact that since last three years, he has been
discharging his official duties in accordance with law without
a single allegation levelled against him during the tenure. It is
further pleaded that on 22nd August, 2024, opposite party
Nos.5 to 17, out of 19 Ward Members, sent the requisition to
opposite party No.3 with a request to the latter to convene a
meeting and the same was signed by them. The requisition
and resolution, as per the petitioner, alleged that he is
involved in corrupt practices, hence, the no confidence
motion when the notice reveals that an enquiry against him
for misappropriation of Govt. fund received under
MGNREGA is still on. It is claimed by the petitioner that no
such meeting was held before sending the requisition to
opposite party No.3 as required under law, hence, the same in
not valid. It is further claimed that an earlier action for no
confidence motion was challenged by the petitioner in
W.P.(C) No.23054 of 2024 and this Court intervened on the
ground that period as contemplated in Section 24(4) of the
Act was not over. It is alleged that opposite party No.5, a
politically influential person, managed to put pressure on
opposite party No.3 and convinced the latter to once again
call for the no confidence motion against him under Section
24 of the Act and followed by issuance of notice on 14th
October, 2024 with the meeting to be held on 30th October,
2024. It is lastly pleaded by the petitioner that there has been
non-compliance of the mandatory requirement of law for a
clear 15 days fixed before such meeting is held.
3. Heard Mr. Mishra, learned counsel for the petitioner, Mr.
Mohanty, learned ASC for the State, Mr. Samal, learned
counsel for opposite party No.5 and Mr. Bose, learned
counsel for opposite party Nos.8, 11 and 15.
4. In course of hearing, Mr. Mishra, learned counsel for the
petitioner submits that the notice was issued though signed
on 14th October, 2024 and dispatched on 15th October, 2024
and was received by the petitioner on 18th October, 2024,
hence, Section 24(2)(c) of the Act is failed to be complied
with. Referring to the decision in Nilambar Majhi Vrs.
Secretary to Govt. of Orissa, Panchayat Raj Department
and others 2005(II) OLR 659, Mr. Mishra, learned counsel
submits that there is less than 15 days‟ time for the special
meeting to be convened as it was received on 18 th October,
2024. It is contended that requirement of the mandatory
provision relating to the period of notice has to be complied
with and in the instant case, since, the petitioner received the
notice with the requisition on 18th October, 2024, the action
initiated under Section 24 of the Act stands vitiated.
5. Mr. Samal, learned counsel for opposite party No.5 would
submit that as per the notice, there is clear 15 days‟ time
period fixed prior to the meeting to be held, hence, the
contention of the petitioner is misconceived. According to
Mr. Bose, learned counsel for opposite party Nos.8, 11 and
15, the submission is that the notice under challenge was
signed on 14th October, 2024 and on 15th October, 2024, it
was dispatched and the same was received by the petitioner
on 18th October, 2024 but since the date of meeting of no
confidence motion was fixed to 30th October, 2024, there has
been full compliance of Section 24 of the Act. The contention
of Mr. Bose, learned counsel is that the date of dispatch and
receipt of notice is immaterial and there is clear 15 days
period between 14th October, 2024 and 30th October, 2024.
6. It is apposite to make a mention of the relevant provision
with regard to vote of no confidence for better appreciation
and the same is extracted herein below:
"Section 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 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"
7. The requirement under law is that no meeting to be held
unless the requisition is pressed into service by the required
quorum. It is further stipulated in the above provision that
with a clear 15 days period, the special meeting is to be fixed
for the vote of no confidence. In fact, as per Section 24(2)(c)
of the Act, the Sub-Divisional Officer on receipt of such
requisition shall fix the date, hour and place of such meeting
and give notice to all the Members holding office on the date
such notice. In Nilambar Majhi (supra), this Court held that
if the margin of clear 15 days between the date of notice and
the date of meeting is not there, then notice and resolution
passed in the meeting is illegal and invalid. In the said case, it
is held that the date of notice and the date of meeting are not
to be counted while computing 15 days and therein, with both
days being excluded, it was found that the notice period was
less than the prescribed, hence, the conclusion was that the
requirement of mandatory provision relating to period of
notice has not been followed. In the instant case, the notice
was signed on 14th October, 2024 and was dispatched on 15th
October, 2024 and it was received by the petitioner with the
requisition on 18th October, 2024, the fact which is not in
dispute and if both the dates of notice and meeting are
excluded, there remains clear 15 days and therefore, it is to
be held that Section 24 (2)(c) of the Act was fully complied.
8. In a recent judgment of this Court in Nirakar Sethi Vrs.
State of Odisha and others 2022(I) OLR 377, it has been
held and concluded that the provision of Section 24(2) (c) of
the Act is directory and not mandatory and no confidence
motion would not be vitiated for any such infringement of the
statutory requirement unless the party challenging the
validity of such notice is shown to have been prejudiced.
Referring to a decision in Sarat Padhi Vrs. State of Orissa
and others AIR 1988 Orissa 116, such a conclusion was
reached at.
9. it is equally profitable to quote the relevant extracts of the
decision in Sarat Padhi (supra) and the same is as
hereunder:
"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 subsection (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."
10.Upon reading the case laws referred to herein before, the
conclusion of the Court is that issuance of notice with clear
15 days is mandatory. It is at the same time, a statutory
requirement to serve the requisition and resolution along with
the notice. The manner in which, the notice shall be sent and
to be served has been prescribed in Section 24(2)(d) of the
Act. Furthermore, Clause (b) of Sub-Section (2) of Section
22 of the Act lays down that the proceeding shall not be
invalidated merely on the ground that notice has not been
received by a Member. It is therefore, clearly manifest that
non-receipt of notice by a Ward Member is not to invalidate
the meeting and any such decision taken therein. The purpose
of the notice of the meeting as discussed in Sarat Padhi case
is to enable the Members to deliberate upon the proposed no
confidence motion and non-receipt of any such notice or
receipt of notice short of the period would be a matter of
prejudice to be considered vis-à-vis facts and circumstances
of each particular case and hence, it would not be right to
claim that any such shortage in the prescribed notice time is
to automatically render the meeting invalid. In such view of
the matter, considering the decisions (supra) with reference to
Section 24(2)(c) of the Act, the Court is not inclined to
accept the contention of Mr. Mishra, learned counsel for the
petitioner that such 15 days notice is to be counted on and
from the date of receipt of the same by the petitioner. It is not
a case of any serious laches on the part of the Sub-Collector
in the issuance of notice signed on 14th October, 2024 when
dispatched immediately on the next day i.e. 15th October,
2024 and even though, the same was received on 18th
October, 2024 by the petitioner, it cannot be claimed that the
statutory period prescribed in Section 24 (2)(c) of the Act is
not complied with.
11.As per the scheme of the Act, the requirements for a no
confidence motion are that a notice is to be issued fixing a
margin of time between the date of such notice and the
meeting and to serve it on the Ward Members, who are to
participate therein. So far as such issuance of notice and clear
15 days before the date of meeting to be held, both are
mandatory and in case, there is any breach of such
compliance, the meeting shall have to be held as invalid
without any question of prejudice as has been held in Sarat
Padhi (supra). The mode of service or failure of any Member
to receive the notice or less than 15 days before the date of
meeting available would not render the meeting invalid and
rightly, therefore, this Court in Sarat Padhi case held the
provision to be directory. Having said that and considering
the submissions of learned counsel for respective parties, the
inevitable conclusion of the Court is that there has been
issuance of notice for the vote of no confidence and the
requisition was signed by the Ward Members, namely,
opposite party Nos.5 to 17 with the required quorum and the
same was received by the Sub-Collector, namely, opposite
party No.3, who, thereafter, in accordance with the
provisions of the Act issued the notice fixing clear 15 days
for the special meeting to be held and served the requisition
with a copy of the resolution and as such, there is full
compliance of Section 24(2)(c) of the Act and any such
receipt of notice on 18th October, 2024 by the petitioner in
absence of any serious prejudice being caused to him, cannot
be a ground to challenge the motion. In other words, the final
view of the Court is that the impugned requisition as at
Annexure-1 received by opposite party No.3 followed by
issuance of notice for the no confidence motion against the
petitioner is as per the Act and hence, the entire exercise does
not suffer from any legal infirmity.
12.Hence, it is ordered.
13.In the result, the writ petition stands dismissed. As a
necessary corollary, the interim order dated 19th November,
2024 in I.A. No. 14217 of 2024 is hereby vacated as a result.
(R.K. Pattanaik)
Judge
TUDU
