Sri Duryodhan Pradhan vs State of Orissa and Another

A.K. Parichha, J.—Petitioner, the elected Sarpanch of Gadadhar Grama Panchayat, has filed this application under Articles 226 & 227 of the Constitution of India challenging the notice of Sub-Collector, Nayagarh to record vote of no-confidence against him and the order of removal issued by the Collector, Nayagarh removing him (petitioner) from the post of Sarpanch.

Short of details, the facts leading to the present application are as follows :

Gadadhar Grama Panchayat (hereinafter to be called as ''the Grama Panchayat'', in short) in the district of Nayagarh has 12 Wards and accordingly it has 12 Ward Members and one Sarpanch. In the last election held in the year 2002, the petitioner was elected as the Sarpanch of the said Gram Panchayat for a period of 5 years and he assumed the office as Sarpanch. When the matter stood thus, 9 of the Ward Members submitted requisition accompanied by a proposed resolution dated 10.9.2004 to the Sub-Collector, Nayagarh to convene a meeting for recording vote of no confidence against the petitioner and basing on the said requisition, the Sub-Collector, Nayagarh issued notice bearing No. 1058 dated 1.10.2004 to the members to record the proposed vote of no confidence. In the meeting held on 20.10.2004, 10 of the 13 members including the petitioner were present. 9 of these 10 members cast their votes in favour of no confidence motion and one cast against the motion. Basing on this result, the Collector, Nayagarh issued order bearing No. 1181 dated 20.10.2004, inter alia, removing the petitioner from the post of Sarpanch of the Gram Panchayat. Aggrieved, the petitioner has filed the present application to quash the notice bearing No. 1058 dated 1.10.2004 issued by the Sub-Collector, Annexure-2 and the order dated 20.10.2004 issued by the Collector. Nayagarh, Annexure-3 basically on the plea that the required number of members to sign on the requisition and to pass the no confidence motion was 10 and not 9 as has been accepted by the Sub-Collector and Collector, Nayagarh in the instant case.

Mr. P. Acharya, learned counsel appearing for the petitioner submitted that in a Panchayat having 13 members, the required 2/3rd majority would be 10 and not 9 as has been taken in the instant case. His specific argument is that the total number of membership of the Gram Panchayat is 13, which is not divisible by 3 and so, the next higher number, which is divisible by 3 should have been taken into account to compute the 2/3rd majority. According to him, the next higher number is 15, which is even divisible by 3 and 2/3rd of the same is 10 and not 9 as has been taken by the Sub-Collector and Collector, Nayagarh. In support of this submission, Mr. Acharya relies on the pari materia provisions of Orissa Panchayat Samiti Act, The Orissa Zilla Parishad Act, 1991, Orissa Zilla Parishad (Conduct of Business) Rules, 1996, Orissa Municipal Act, 1950. Mr. Acharya suggested that when no specific provision is there in the Orissa Gram Panchayat Act for computing the required 2/3rd majority, the pari materia provisions in the aforesaid Act and Rules should be adopted.

Learned Counsel for the State supported the decision of the Collector, Nayagarh with a simple submission that 9 members out of 13 constitute 2/3rd majority.

Mr. D. P. Dhal, learned counsel for the intervenor-opp.parties submitted that Section 24 of the O.G.P. Act simply requires a majority not less than 2/3rd of the total members to pass a no-confidence motion and it does not contemplate that this 2/3rd majority is to be computed from the total number divisible by 3 only. According to him, the provision of Section24 of the Orissa Gram Panchayat Act being clear and unambiguous, there is no scope of applying the para materia provision of Orissa Zilla Parishad Act, 1991, Orissa Zilla Parishad (Conduct of Business) Rules, 1996, Orissa Municipal Act, 1950 and Orissa Panchayat Samiti Act or incorporating any hypothetical formula of calculation into the same. In this regard, he relies on the cases reported in P.K. Unni Vs. Nirmala Industries and others [OVERRULED], ; State of Jharkhand v. Govind Singh .

In view of the submissions of the learned counsel for the parties noted above, the only point for consideration is whether 9 members out of 13 of the Grama Panchayat would constitute the 2/3rd majority as per requirement of Section24 the OGP Act.

The relevant portion of Section 24 of the OGP Act reads as follows :

"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) xxx xxx xxx"

So, in order to convene a meeting under Sub-section (1) of Section 24 of the OGP Act, the 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 must be presented to the Sub-Divisional Officer and if such a resolution is supported by a majority of not less than two-third of the total membership of the Grama Panchayat, then the no confidence motion of Sarpanch or the Naib Sarpanch shall be passed and steps would be taken for their removal. Section 39 of the Zilla Parishad Act contains provision relating to the vote of no confidence against the President or Vice-President. The relevant portion of the said Section reads as follows :

"39. Vote of no confidence against President and Vice-President - (1) Where at a meeting of the Parishad specially convened in that behalf a solution is passed, supported by a majority of not less than two-third of the total members having a right to vote, recording want of confidence in the President or Vice-President of such Parishad, the resolution shall forth with be published by such authority and in such manner as may be prescribed and with effect from the date of such publication the President or Vice-President, 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 following, 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) xxx xxx xxx"

Similarly Section 54 of the Orissa Municipal Act contemplates the provision for vote of no confidence against the Chairperson or Vice-Chairperson. The relevant portion of the said section reads thus :

"54. Vote of no confidence against Chairperson or Vice-Chairperson-(l) Where a meeting of the Municipality specially convened by the District Magistrate in that behalf a resolution is passed, supported by not less than two-third of the total number of Councillors recording want of confidence in the Chairperson or Vice-Chairperson the resolution along with the records of the proceedings at such meetings shall forthwith be forwarded to the State Government shall publish the same in the Gazette and with effect from the date of passing of the resolution the person holding the office of Chairperson or Vice-Chairperson, as the case may be, shall be deemed to have vacated such office. In the event of both Chairperson and Vice-Chairperson vacating office the District Magistrate or his nominee shall discharge the responsibilities of the Chairperson till a new Chairperson is elected.

(Provided that no such resolution recording wants of confidence in the Chairperson or the Vice-Chairperson

(i) shall be passed within two years from the date of his election or nomination, as the cases may be; and

(ii) shall be moved more than once during a calendar year.)

(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 the rules, made under this Act, 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 number of Councillors along with a copy of the resolution proposed to be moved at the meetings;

(b) xxx xxx xxx"

All the above noted provisions uniformly propose that for carrying out a vote of no confidence against the Chairperson, at least one-third of the total member shall sign the requisition and at least two-third of the total member should vote in favour of the motion of no confidence. In those provisions there is no indication that the required two-third majority is to be computed from a number, which is next higher than the total membership and is divisible by 3. Such process of computation is provided in Rule 13 of the Orissa Zilla Parishad (Conduct of Business) Rules and Section 70 of the Orissa Municipal Act for computing the number of one-third member for the purpose of quorum. In those provisions it has been explained that where the total number of councillors is not evenly divisible by 3, the one-third shall be ascertained by taking the number of next above of the whole number which is evenly divisible by 3 as the number to be divided. It is worthwhile to note that Rule 230 of the Grama Panchayat Act simply says that a quorum for any meeting shall be one-third of the total number of members of the Grama Panchayat. There is no explanation in this rule for taking any hypothetical number above the total number of membership even divisible by 3 like Section 70 of the Orissa Municipal Act or Rule 13 of the Zilla Parishad (Conduct of Business) Rules. Be that as it may, this process of computation of one-third of the total membership relates to the issue of quorum and not to the issue of no confidence motion.

In the present case, 9 out of 13 members had signed the requisition for the no confidence motion. So clearly more than one-third of the total members of the Panchayat have signed the requisition for passing the no confidence resolution against the Sarpanch. In none of the Acts or Rules noted above including the Orissa Gram Panchayat Act, there is any indication that the two-third of the total membership required for carrying a no confidence motion against the Chairperson is to be computed by taking hypothetical number evenly divisible by 3 only. These provisions simply speak of not less than two-third majority of the total membership. Moreover, when the wordings of Section24 are clear and unambiguous, there is no scope for the Court to add something or read something else according to its own interpretation. This view finds support from the ratio laid down in the cases of P.K. Unni v. Nirmala Industries and Ors. (supra) and State of Jharkhand v. Govind Singh ; where the apex Court has clearly observed that the legislative casus omissus cannot be supplied by judicial interpretative process and external and beyond the words of the Section cannot be taken. So, the two-third majority prescribed in Section 24 means two-third in arithmetical terms. Two-third of 13 comes to 8.66 which is to be rounded up to 9. So, 9 members out of 13 would constitute two-third majority for the purpose of no confidence motion. In the instant case, out of the total 13 members, 10 cast their votes in the no confidence motion, 9 in favour of the motion and one against it. Thus, two-third of the total numbers of members supported the motion of no confidence and accordingly the demand of Section 24 of the OGP Act was satisfied.

For the above said reasons, we do not find any illegality in the notice of Sub-Collector, Nayagarh bearing No. 1058 dated 1.10.2004 convening the meeting to record the vote of no confidence motion against the petitioner or the order of the Collector bearing No. 1181 dated 20.10.2004 removing the petitioner from the post of Sarpanch of the Grama Panchayat and hence, we find no justification to quash the same.

The writ petition is accordingly found to be without any merit and is dismissed. No cost.

P.K. Tripathy, J.

I agree.