HIGH COURT OF ORISSA: CUTTACK Writ Appeal No.233 of 2010 From a judgment dated 08.07.2010 passed by a learned Single Judge in W.P.(C) No.19065 of 2009 -------- Ananda Pradhan … Appellant Village: Aranya (Deulipatna) PO: Olasingh, PS: Jankia Dist: Khurda -Versus- Collector, Khurda & Others … Respondents For Appellant : M/s. K.P. Mishra, S. Mahapatra, T.P. Tripathy, L.P. Dwivedy. For Respondents : M/s. D.R. Pattnaik, N.Biswal, N.S. Panda, Miss L. Pattnaik, Addl. Government Advocate (For Respondents 1 & 2) M/s. Samir K. Mishra, K.R. Mohanty, J. Pradhan, P. Prusty, B. Rath & D.K. Pradhan (For Respondent No.3) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Heard and disposed of on 22.11.2010 B.N.MAHAPATRA, J In this Writ Appeal, the appellant assails the judgment dated 08.07.2010 passed in W.P.(C) No.19065 of 2009 whereby the learned Single Judge quashed the notice No.4950 dated 03.12.2009 issued by respondent No.2-Sub-Collector, Khurda fixing a date for no confidence meeting against respondent No.3-Muktamanjari Sahoo @ Muktabala, the Sarpanch of Chhanagiri Grama Panchayat at Chhanagiri, P.S. Jankia, Dist: Khurda. 2. Bereft of unnecessary details, the facts and circumstances leading to the present appeal are that the appellant is a Ward Member of Ward No.2 of Chhanagiri Grama Panchayat. There were 15 Ward Members in total under the said G.P. Out of 15 Ward Members, 10 Ward Members have signed the requisition and proposed resolution dated 21.11.2009 (Annexure-1) for the purpose of initiating no confidence motion against respondent No.3-Sarpanch. After receiving the requisition along with the proposed resolution, the Sub-Collector, Khurda vide notice No.4950 dated 03.12.2009 (Annexure-2) fixed the date of meeting of no confidence motion to 21.12.2009 against respondent No.3- Sarpanch. Accordingly, the said meeting for no confidence motion against the Sarpanch was held on 21.12.2009. The Sarpanch after receipt of notice from the Sub-Collector, Khurda approached this Court in W.P.(C) No.19065 of 2009 with a prayer to quash the notice dated 03.12.2009 fixing the meeting of no confidence motion in respect of Chhanagiri G.P. as well as the resolution dated 21.11.2009 along with the requisition or in the alternative to defer the no confidence motion till the eligibility of Ward Members of Ward Nos.2,4, and 6 is decided. Learned Single Judge vide order dated 08.07.2010 quashed the notice No.4950 dated 03.12.2009 issued by the Sub-Collector, Khurda fixing 2 the date for no confidence meeting against respondent No.3-Sarpanch. Hence, the present writ appeal. 3. Mr. K.P. Mishra, learned counsel appearing for the appellant submits that the learned Single Judge travelled beyond the pleadings and held that Section 24(2)(a) of the Orissa Grama Panchayat Act, 1964 (for short, “G.P.Act”) has not been adhered to. The challenge in the writ petition was regarding validity of the membership of three Ward Members who were signatories to the requisition and proposed resolution to move no confidence motion against respondent No.3-Sarpanch and accordingly, prayer was made to defer the date of no confidence motion till the eligibility of three Ward Members is decided. There was no challenge to the procedure adopted for passing the resolution and requisition as required under Section 24 of the G.P. Act by the petitioner in the writ petition. Therefore, the conclusion of the learned Single Judge that as per Section 24(2) of the G.P. Act, the requisition singed by at least 1/3rd of the total membership of the Grama Panchayat along with the proposed resolution has not been sent to the Sub-Collector, Khurda is not supported by any material on record. The aforesaid observation of the learned Single Judge did not arise either from the pleadings of the writ petition or any contention to that effect. Thus, the impugned judgment suffers from an incurable infirmity. The observation made by the learned Single Judge is contrary to the pleadings and the same is liable to be quashed. A valid requisition along with proposed resolution 3 has been sent to the Sub-Collector, Khurda. No reasonable opportunity was afforded either to file their counter affidavit or to produce relevant record for just decision of the case. The decision of this Court in Smt. Kamala Tiria Vs. State of Orissa & Others, 91 (2001) C.L.T. 151 on which respondent No.1 placed reliance has no application to the case of the appellant. Concluding his argument he has submitted that the judgment of the learned Single Judge is liable to be set aside and the present writ appeal may be allowed. 4. Mr. Samir K. Mishra, learned counsel appearing for respondent No.3 supports the order of the learned Single Judge and vehemently argued that even assuming for the sake of argument that the learned Single Judge is not justified to quash notice No.4950 dated 03.12.2009 issued by the Sub-Collector, Khurda on the ground that no resolution as required under Section 24(2) of the G.P. Act has been sent to the Sub-Collector, Khurda, the order of the learned Single Judge is valid as membership of three Ward Members of Ward Nos.4,6 and 2, who were signatories to the resolution of no confidence motion, is under challenge and the same is pending. Since the validity of membership of three Ward Members was under challenge on the very date when no confidence motion against respondent No.3-Sarpanch was moved, those three Ward Members could not have participated in such proceedings until the validity of their membership is decided. 4 5. In the present appeal, the following points would fall for consideration by this Court: (i) Whether the learned Single Judge is justified in quashing the notice No.4950 dated 03.12.2009 issued by the Sub-Collector, Khurda fixing the date for no confidence motion meeting against respondent No.3- Sarpanch on the ground that no resolution as required under Section 24(2)(a) of the G.P. Act has been sent to the Sub-Collector along with the requisition, particularly when no such ground was taken by the writ petitioner in the writ petition? (ii) Whether the three ward members, whose membership is under challenge, are entitled to participate in the no confidence motion against respondent No.3-Sarpanch? 6. So far as issue no.(i) is concerned, undisputedly in the present case the writ petitioner has not taken any ground in the writ petition challenging the procedure adopted for passing resolution and requisition as required under Section 24 of the G.P. Act by minimum 1/3rd members of the Grama Panchayat to initiate no confidence motion against respondent No.3-Sarpanch as well as non-submission of those before the Sub-Collector, Khurda. In the absence of such pleading in the writ petition, the learned Single Judge should not have quashed the notice No.4950 dated 03.12.2009 issued by the Sub-Collector, Khurda fixing the date for no confidence motion against respondent No.3- Sarpanch on the ground that no resolution as required under Section 24 5 of the G.P. Act has been sent to the Sub-Collector along with requisition relying on the decision of this Court in Smt. Kamala Tiria (supra). 7. Law is well settled that a party has to plead the case and produce/adduce sufficient evidence to substantiate his stand taken in the petition and, in case the pleadings are not complete, the Court is under no obligation to entertain the plea. In Bharat Singh & Ors. Vs. State of Haryana & Ors, AIR 1988 S.C. 2181, the Supreme Court has observed as under:- “In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard, there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.” (Also see Naresh Agarwala Vs. City Bank, 2010 (4) Supreme 750) As stated above since there is no pleading in the writ petition that no resolution as required under Section 24(2)(a) of the G.P. Act has been sent to the Sub-Collector, Khurda along with the requisition, quashing of the notice No.4950 dated 03.12.2009 issued by the Sub- 6 Collector, Khurda fixing the date for no confidence motion against respondent No.3-Sarpanch is not sustainable. 8. So far as the question no.(ii) is concerned, admittedly in the present case out of total 15 Ward Members of the Grama Panchayat, 10 Ward Members have signed the requisition and proposed resolution to initiate no confidence motion against respondent No.3-Sarpanch. It is also not in dispute that the challenge of respondent No.3-Sarpanch in the writ petition is confined to the disqualification of three Ward Members of Ward Nos. 4, 6 and 2, who have signed the said requisition and resolution. Now the question that would arise is whether these three Ward Members can participate in the meeting convened for no confidence motion against respondent No.3-Sarpanch. Sub-section (3) of Section 26 of the said Act, provides that where the Collector decides that the Sarpanch, Naib-Sarpanch or any other member is or has become disqualified such decision shall be published by him in his notice-board and only from the date of the publication by the Collector on his notice- board, the member of the G.P. shall be deemed to have vacated the office and till the date of such publication he shall be entitled to act as if he was not disqualified. For better appreciation, Section 26(3) of the G.P. Act is quoted below: “Where the Collector decides that the Sarpanch, Naib- Sarpanch or any other member is or has become disqualified such decision shall be forthwith published by him on his notice-board and with effect from the date of such publication the 7 Sarpanch, Naib-Sarpanch or such other members, as the case may be, shall be deemed to have vacated office, and till the date of such publication he shall be entitled to act, as if he was not disqualified.” (Underlined for emphasis) 9. In view of the provision of Section 26(3) of the G.P. Act, we are of the view that three Ward Members of Ward Nos.2,4, and 6 of Chhanagiri Grama Panchayat are entitled to act as valid Ward Members till their membership is declared invalid in terms of Section 26(3) of the G.P. Act and publication of the same by the Collector. 10. In the fact situation, the learned Single Judge is not justified in quashing notice No.4950 dated 03.12.2009 issued by the Sub- Collector, Khurda fixing the date for no confidence meeting against respondent No.3-Sarpanch. Hence, the impugned judgment of the learned Single Judge is set aside. 11. It is open to the respondent No.2-Sub Collector, Khurda to proceed with the notice No.4950 dated 03.12.2009 forthwith. 12. The appeal is accordingly allowed. No order as to costs. ……………………... B.N.Mahapatra, J. …....……………….. Chief Justice 8 Orissa High Court, Cuttack Dated 22nd November, 2010/sss/skj