w w w . L a w y e r S e r v i c e s . i n



Shantilata Behera v/s State of Odisha & Others


    W.P. (C) No. 23267 of 2021

    Decided On, 17 August 2021

    At, High Court of Orissa

    By, THE HONOURABLE DR. JUSTICE B.R. SARANGI

    For the Petitioner: S.P. Mishra, Sr. Advocate, M/s. S.P. Sarangi, A. Patnaik, P.K. Dash, Advocates. For the Respondent: A.K. Mishra, Addl. Government Advocate, G. Mishra, Sr. Advocate, M/s. A. Dash, J.R. Deo, S. Jena, A.K. Das, A.K. Mishra, M/s. H.S. Mishra, A.K. Mishra, S.K. Dwibedi, M/s. S.K. Dwivedi, K. Mohanty, K. Hota, Ashis Kumar Mishra, Advocates.



Judgment Text

1. 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 suppor

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t 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.
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