Allahabad High Court
Noorbano vs State Of U.P. And 3 Others on 7 February, 2019
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 30 Case :- WRIT - C No. - 3846 of 2019 Petitioner :- Noorbano Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Sajiwan Mishra Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J.
1. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
2. Present writ petition has been filed seeking quashing of the impugned notice/order dated 24.1.2019 issued by the respondent no. 2 filed as Annexure-2 to the writ petition. A further prayer in the nature of mandamus restraining the respondents no. 2 and 3 not to proceed with the motion of no-confidence against the petitioner in pursuance of the notice dated 24.1.2019 has also been made.
3. The impugned notice of holding meeting for consideration of no confidence motion has been issued under Rule 33-B of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as the Rules), which provides for procedure for removal of Pradhan.
4. Challenging the same, submission of learned counsel for the petitioner is that even as per impugned notice allegedly no confidence motion was signed by 1154 members out of 1969 members of Gaon Sabha and signatures and thumb impression of only 401 members could be verified out of which 341 are are worked out to be correct. Submission therefore, is that as per Rule 33-B of the Rules the signatures have not been verified and therefore, the notice for no confidence motion is not in accordance with the Rules and is liable to be set aside. It was next submitted that 15 days notice was not given and previously fixed date for 3rd February, 2018 was subsequently changed to 9th February, 2018 by cutting and overwriting.
5. On 5.2.2019, following order was passed:
"On the request of learned counsel for the petitioner, put up this case as fresh on 7.2.2019 so as to enable him to file a supplementary affidavit annexing therewith no confidence motion, affidavit filed in support thereof and other relevant documents on record."
6. In pursuance of the aforesaid order learned counsel for the petitioner has filed a supplementary affidavit annexing therewith only an application allegedly moved before the District Panchayat Raj Officer for supplying the copy of no confidence motion and other documents. It is stated that copies were not supplied to him. Clearly, the petitioner has failed to annex the documents which he was directed to file by the abovenoted order. Drawing attention to Rule 33-B of the Rules, submission of learned counsel for the petitioner is that even as per impugned notice the signatures and thumb impressions have not been verified by the District Panchayat Raj Officer and only 341 out of 401 signatures/thumb impressions were verified and as such the impugned notice is bad in the eyes of law.
7. Per-contra, learned Standing Counsel has submitted that admittedly no meeting was held on 3.2.2018 and the only date fixed was 9.2.2018 and only for this date notice for consideration of no confidence motion was issued. On the basis of information received he submitted that the preparation for the meeting was made only for 9.2.2018 as provided in the notice and in the original notice there is no cutting or overwriting on the date.
8. I have considered the rival submissions and have perused the record.
9. Before proceeding further it would be appropriate to take note of Section 14 of U.P. Panchayat Raj Act, 1947 and amended Rule 33-B of the U.P. Panchayat Raj Rules, 1947, as amended in 2005 vide notification dated 4.3.2005, which is quoted as under:-
"14. Removal of Pradhan.- (1) The Gram Sabha may at a meeting specially convened for the purpose and of which at least 15 days previous notice shall be given, remove the Pradhan by a majority of two-thirds of the members of the Gram Sabha present and voting.
(1-A) Notwithstanding anything contained in Section 11, one-third of the members of the Gram Sabha shall form the quorum for a meeting under sub-section (1).
(2) A meeting for the removal of a Pradhan shall not be convened within two years of his election.
(3) If the motion is not taken up for want of quorum or fails for lack of requisite majority at the meeting, no subsequent meeting for the removal of the same Pradhan shall be convened within one year of the date of the previous meeting.
(4) Subject to the provisions of this section, the procedure for the removal of a Pradhan including that to be followed at such meeting, shall be such as may be prescribed.
33-B. Procedure for removal of Pradhan- (1) A written notice of the intention to move a motion for removal of the Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one-half of the total number of members of the Gram Sabha and shall state the reasons for moving the motion and it shall be delivered in persons by at least five members signing the notice to the District Panchayat Raj Officer. It shall also be necessary to certify the signatures of the other members signing the notice by all five members presenting the notice by furnishing their affidavit to this effect. Before proceeding further on the notice the District Panchayat Raj Officer shall satisfy himself regarding genuineness of the signatures of the members signing the notice.
(2) The District Panchayat Raj Officer shall convene a meeting of the Gram Sabha, under provisions of Section 14 of the Act, on a date and time of commencement of meeting to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting shall be presided over by the District Panchayat Raj Officer or by the person authorised by him in writing in this behalf. If any other person is authorised to preside the meeting, he shall be supplied a copy of the electoral rolls of the Gram Sabha and all other papers relating to the motion by the District Panchayat Raj Officer. The Presiding Officer may take such clerical assistance for conducting the proceedings of the meeting for the consideration of the motion as he may deem necessary.
(3) The Presiding Officer shall read in the meeting, the notice received by him. He shall then allow the motion to be moved and discussed. The Presiding Officer shall not speak on the merit of the motion. Such discussion shall terminate on the expiry of two hours appointed for the commencement of the meeting unless it is concluded earlier. Then the motion shall be put to vote according to provisions of Rules 33-D."
(emphasis supplied)
10. Rule 33-B (1) and (2) of the Rules prior to amendment of the year 2005 is as under:-
"33-B. Procedure for removal of Pradhan or Up-Pradhan.- (1) A written notice of the intention to move a motiion for removal of the Pradhan or Up-Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one-half of the total number of members of the Gram Panchayat and shall state the reasons for moving the motion and it shall be delivered in persons by at least three members signing the notice to the District Panchayat Raj Officer shall satisfy himself regarding genuineness of signatures of the members signing the notice.
(2) The District Panchayat Raj Officer shall convene a meeting of the Gram Panchayat, under provisions of Section 14 of the Act, on a date to be fixed by him which shall not be later than thirty days fro the date of the receipt of the notice. The meeting so convened, shall be presided over by the District Panchayat Raj Officer or the person authorized by him in writing in this behalf. The Presiding Officer may take such clerical assistance for conducting the proceedings of the meeting for the consideration of the motion, as he may deem necessary.
(3) .....
(4) .....
(5) .....
(6) .....
(7) .....
(8) ....."
(emphasis supplied)
11. A perusal of the aforesaid rules would clearly indicate that a provision regarding verification of the signatures has been added by amendment of the year 2005.
12. In Smt. Sheela Devi and others vs. State of U.P. and others 2015 (2) ADJ 325 (FB) following question was referred to the Hon'ble Full Bench:-
"Whether the District Magistrate or the competent authority under the U P Kshetra Panchayat and Zila Panchayat Act, 1961 while proceeding to entertain a notice for tabling a no confidence motion under Section 15 thereof against the Block Pramukh, can exercise his discretion for examining the genuineness or veracity of the signatures endorsed by the members, and as to whether there is a direct conflict on principles in the judgments of this Court on the issue."
13. Dealing with the aforesaid question Hon'ble Full Bench noted the relevant provision of Section 15 of the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961. Relevant paragraph nos. 3, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23 and 24 of Smt. Sheela Devi (supra) are quoted as under:-
"3.Sub-sections (1), (2) and (3) of Section 15 have a bearing on the controversy which is in issue and are extracted herein below for convenience of reference:
"15. Motion of no-confidence in Pramukh - (1) A motion expressing want of confidence in the Pramukh of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat.
(3) The Collector shall thereupon :-
(i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and
(ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed.
Explanation.- In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notices of the meeting to the members, shall be excluded."
11. Consistent with the provisions of sub-section (3) of Section 15, it is equally clear to our mind that the Collector in order to meet the time lines which have been specified therein would not be justified in launching upon a detailed evidentiary enquiry. The Collector under Section 15 has not been constituted as a civil court. The legislature has not contemplated vesting in the Collector the power of a civil court for summoning and enforcing the attendance of witnesses and for making a detailed factual enquiry or for receiving evidence for that purpose. The Collector has to abide by the time schedule indicated in sub-section (3) of convening a meeting within thirty days of the date of the delivery of notice and of furnishing at least fifteen days' notice to the elected members of the Kshettra Panchayat. Time is of the essence in convening a meeting as well as in furnishing a notice of a meeting to every elected member. Evidently, the Collector would neither have the time nor the power to hold a detailed evidentiary enquiry in which disputed questions of fact can be resolved. Hence, questions such as whether the signatures on the written notice have been obtained by fraud, duress or coercion and which would require an evidentiary hearing cannot be gone into by the Collector. The role of the Collector has to be balanced between two extremes. At one end of the spectrum is a situation where the Collector merely plays the role of a post office in which he would only verify whether the notice purports to have been signed by half of the elected members of the Kshettra Panchayat and whether the signatories to the notice were alive. At the other end of the spectrum would be a situation where a detailed enquiry involving evidence and judicial findings would have to be made. In our view, neither of these extremes can be accepted as representing the true role of the Collector. The first would destroy the sanctity of and destablise the working of an elected body. Motions of no confidence are serious business - not a game or sport or a forum for horse trading. The Collector is not merely a post office between the time when a notice is delivered to him under sub-section (2) and a meeting is convened under sub-section (3). To reduce the role of the Collector to a mere post office or a facilitator for holding and convening the meeting would be to efface and obliterate the requirements which have been spelt out in sub-section (2). If the legislature were not to regard those requirements as matters of moment, there was no reason to introduce a specific requirement that the notice be signed by at least half of the total number of elected members of the Kshettra Panchayat. A requirement that the notice be signed by a member of the Kshettra Panchayat would have sufficed but the legislature in its wisdom has imposed a specific requirement under sub-section (2) in regard to the number of members signing the motion. Sub-section (3) of Section 15 stipulates that the Collector "shall thereupon" convene a meeting, meaning thereby that after fulfillment of the requirements of sub-section (2), the Collector shall proceed to act in the manner indicated therein. The second extreme must also be eschewed. The Collector has not been constituted as a civil court. His powers for this purpose are not akin to those of a civil court. He is bound to comply with the time schedule laid down by the legislature in convening a meeting and furnishing individual notices to members. The correct view in regard to the powers of the Collector is to interpret sub-sections (2) and (3) of Section 15 so as to leave it to the discretion of the Collector to determine whether the notice which has been furnished to him meets the requirement of sub-section (2). Undoubtedly, the Collector, as we have already noted above, cannot conduct a detailed evidentiary hearing and the proceedings before him would be of a summary nature. The Collector would, in this line of enquiry, be within his discretion to verify whether there are circumstances which are indicative of the fact that the requirements of sub-section (2) have not been fulfilled. If the Collector finds in a given case that it would not be possible for him to resolve the issue except after a full-fledged enquiry akin to a judicial proceeding, he would be justified in directing the holding of a meeting at which the motion of no confidence can be resolved. But, on the other hand, if there are circumstances before him which are indicative of the fact that provisions of sub-section (2) have not been fulfilled, it would not be appropriate to denude the Collector of the power to make a limited verification or enquiry for the purpose of ensuring that the motion of no confidence meets the requirement as spelt out in sub-section (2).
12. This view which we are inclined to take finds support in an earlier judgment of a Full Bench of this Court in Mathura Prasad Tewari Vs Assistant District Panchayat Officer, Faizabad. The Full Bench in that case considered the provisions of Rule 33-B of the U P Panchayat Raj Rules, 1947 which, at the material time, provided as follows:
"33-B (1) A written notice of the intention to move a motion for removal of the Pradhan ... under Sec. 14 ... shall be necessary. It shall be signed by not less than one half of the total number of members of the Gaon Sabha and shall state the reasons for moving the motion and ... shall be delivered in person by at least five members signing the notice to the prescribed authority.
(2) The prescribed authority shall, as soon as may be after the receipt of the notice convene a meeting of the Gaon Sabha... The meeting so convened shall be presided over by the prescribed authority or the person authorised by him in writing in this behalf."
13. Under Rule 33-B (2), the prescribed authority was required to convene a meeting of the Gaon Sabha as soon as may be after the receipt of a notice under sub-rule (1) signed by not less than one half of the total number of members. Chief Justice M C Desai in the judgment of the majority, held that having due regard particularly to the need to convene the meeting as soon as possible and the large number of members of the Gaon Sabha, it could never have been intention of the State Government while making the rule that issues such as whether the signatures on the notice were forged or were obtained by fraud or coercion be resolved where a long drawn enquiry would become necessary. In that context, the learned Chief Justice observed as follows:
"...If a prescribed authority finds that some signatures are not of members of the Gaon Sabha or are forged or otherwise invalid and the remaining signatures are insufficient it would be bound to desist from convening a meeting but the question before us is different, it being whether it is required by any rule to make an enquiry. There may be no provision forbidding an enquiry but that also is immaterial because the law does not require everything not forbidden to be done. The most that can be said is that the matter is at the discretion of the prescribed authority; if a complaint is made to it that a material number of signatures is invalid it may in its discretion make an enquiry or refuse to make it. If it is a small enquiry it is justified in making it and if it is likely to turn out into a long drawn enquiry or if it thinks that the complaint is not bona fide or is made with the ulterior object of delaying the convening of the meeting it is fully justified in not undertaking an enquiry..."
The Full Bench also held as follows:
"...There is nothing to suggest that he may spend days and even months in enquiring whether the signatures on the requisition are genuine or not or are obtained without resort to fraud or coercion or not. If it cannot be said that he is bound to make an enquiry it cannot be said that the prescribed authority is bound to make an enquiry on receipt of a notice under Rule 33-B. Injustice and anomalies can be imagined but what is certain is that an enquiry may take a long time and may be followed by applications for certiorari, mandamus and prohibition, in turn followed by appeals from orders on the applications. Then the prescribed authority has no power to summon witnesses and documents and it is not understood how it can hold an enquiry.
...Whether a meeting should be convened or not is a matter only between the prescribed authority and the signatories delivering the notice to it. The prescribed authority has to act on its finding that the notice has been signed by at least half the members and has been presented by at least five of the signatories. As nobody has a right to file any objection the question of his holding an enquiry simply does not arise. Whatever enquiry is made by it is made entirely at its own discretion and nobody has a right to compel it to make it. Obviously there cannot be a right in any person to compel it to make it when he has not been given a right to file an objection."
14. The dissenting judgment, it must be noted, also observes that it was not necessary for the prescribed authority to enter upon a detailed enquiry and the authority would not go into difficult question of fraud and duress. However, in the view of the dissenting judge, the prescribed authority would have to make a general enquiry if there was a specific allegation that a particular signature of a living person is forged or is a signature of a person who is dead. The dissenting judge held that he was not in agreement with the principle of the majority that the prescribed authority is not required to make any enquiry on the receipt of a notice of intention to move a motion for the removal of a Pradhan.
15. In our view, both the decisions of the majority as well as the minority essentially follow the same line and the area of dissent is rather narrow. Both the judgments of the majority as well as the minority postulate that the Collector ought not to make a detailed enquiry where serious allegations of fraud, coercion and duress are required to be resolved particularly having regard to the fact that a meeting had to be convened as soon as possible. The area of divergence is only this that whereas the majority left it open to the Collector to determine whether and if so what enquiry should be held, the view of the dissenting judge was that the Collector should hold an enquiry so long as a detailed enquiry into serious questions of coercion or fraud was not involved. In either view of the matter and since we are bound by the judgment of the Full Bench, the law on the subject is thus clear. The Collector, in the course of exercising the power which is conferred upon him, ought not to enquire into seriously disputed questions of fact involving issues of fraud, coercion and duress. Moreover, the Collector must have the discretion in each case of determining on the basis of a summary proceeding whether the essential requirements of a valid notice of an intention to move a motion of no confidence have been fulfilled. Where in the course of the summary enquiry, it appears to the Collector that the written notice does not comply with the requirements of law, the Collector would be within his power in determining as to whether all the required conditions have been fulfilled, as enunciated in sub-section (2) of Section 15. Whether the Collector in a given case has transgressed his power is separate issue on which judicial review under Article 226 of the Constitution would be available. However, we expressly clarify that we are not laying down a detailed and exhaustive enumeration of the circumstances in which the Collector can determine the validity of a notice furnished under Section (2) or those in which he can make a limited enquiry which, as we have held, he is entitled and competent to make. Ultimately, each case depends upon its own facts and it for the Collector to determine as to whether the objections raised before him are outside the scope of the limited inquiry which he can make upon notice of an intent to move a motion of no confidence if it is submitted to him together with a notice of no confidence.
16. In a later decision of a Division Bench of this Court in Banshoo Vs District Panchayat Raj Officer, Jaunpur4, a similar view was taken of the power of the Collector under Rule 33-B of the U P Panchayat Raj Rules in the following observations:
"We are of the opinion that where the result of the electoral process was sought to be set at naught and notice signed by not less than half of the members of the Gaon Sabha was given to the Prescribed Authority to convene a meeting to consider it, in his discretion he would be justified to hold an enquiry to satisfy himself about the genuineness of the signatures, but the enquiry should not be long drawn and date for consideration should not be fixed beyond the statutory period of thirty days. We deem it proper to refer to a Latin Maxim "Ut Res Magis Valeat Quam Pereat" which obviously means that a statute or any enacting provision must be so construed as to make it more effective and operative."
17. Rule 33-B of the U P Panchayat Raj Rules 1947 was subsequently amended by a notification dated 4 March 2005 so as to specifically incorporate the requirement that before proceeding further on the notice, the District Panchayat Raj Officer shall satisfy himself regarding genuineness of the signatures of the members signing the notice. Hence, in cases falling within the ambit of Rule 33-B, the jurisdiction of the prescribed authority is now in terms of the amendment which we have taken note of, for the sake of completeness. However, that amendment to the Panchayat Raj Rules has no bearing on the issue which has been raised in the present case.
19. In taking this view, the Division Bench relied on an earlier decision in Chhatrapal Singh Vs State of U P6 and in Meera Azad Vs State of U P7. The decision in Chhatrapal Singh's case followed the earlier decisions which took a view that the duty of the Collector to convene a meeting not later than within thirty days from the date of delivery of the notice under sub-section (2) is mandatory. The contention before the Division Bench was that the notice was furnished to the District Collector of a motion of no confidence on 30 June 2003. Though a notice was issued to all members for holding a meeting on 21 July 2003, the meeting was not held and was scheduled on 22 September 2003. This was challenged on the ground that it was mandatory for the Collector to hold the meeting within thirty days of the receipt of notice and as the notice had lapsed, the meeting for no confidence could not be held. In the concluding part of the judgment, the Division Bench also held that the District Collector had overreached himself by holding an enquiry regarding the genuineness of the signatures of the members on the notice and proposal for the no confidence motion which was not warranted as the statute did not envisage such an eqnuiry. In the decision in Meera Azad, the Division Bench had observed that it was not necessary for the Collector to verify the signatures or the thumb impressions of the members who had signed the notice and in case a member had not signed the notice, he could always vote against the motion. These decisions of the Division Benches have, it is evident, not taken cognizance of the earlier decision of the Full Bench in Mathura Prasad Tewari as well as the decision of the Division Bench following it in Banshoo (supra). The Full Bench in Mathura Prasad Tewari has taken the view that while a detailed enquiry akin to a judicial enquiry into allegations of fraud, coercion and duress cannot be conducted by the Collector under Section 15, the Collector has the discretion, in an appropriate case, to consider whether the requirements of sub-section (2) of Section 15 have been fulfilled. However, the enquiry before the Collector is of a summary nature. The Collector while carrying out a verification of compliance with the requirements of sub-section (2) would be at liberty to consider, in those cases which do not warrant a detailed factual enquiry particularly of evidentiary material, whether the requirements of law of a valid notice have been fulfilled. Since the judgments of the Division Benches, noted above, have proceeded to take a view at variance with the view in Mathura Prasad Tewari, they would not, to that extent, be reflective of the correct position in law. We may also refer at this stage to a judgment of a Division Bench of this Court in Utma Devi Vv State of U P8. In that case, af the 82 elected members of the Kshettra Panchayat, a notice of no confidence was presented with the signatures of forty nine members. Thirty six appeared before the District Magistrate and their signatures/thumbs impressions were verified. Nineteen persons had filed affidavits supporting the motion but subsequently respondent no 5 therein filed affidavits of the same persons denying their earlier signatures. Accordingly, a notice was issued to those members to appear before the District Magistrate, of whom seven appeared and supported their affidavits filed in support of the motion of no confidence. The District Magistrate held that since the remaining ten members who had filed their affidavits in support of the motion for no confidence did not appear and notice on two members could not be served, the motion was not supported by the required number of half of the elected representatives. Holding that this was an improper exercise of jurisdiction, the Division Bench observed as follows:
"There cannot be a presumption about the signatures being forged or not being that of the members. Contention raised on behalf of the petitioner appears to be correct. Under the Act, 1961 and the Rules prescribed, there is no requirement of any actual physical presence of the members before the District Magistrate in support of the motion. What is only required is that the motion should be signed by more than half of the members, and if there are affidavits on record in support of the motion and further if there are affidavits to the contrary submitted by the Block Pramukh, it is the duty of the District Magistrate to satisfy himself from the records of the Kshetra Panchayat as to whether prima facie the motion bears the signatures of members or not. He is not required to act as the Civil Court and enter into the necessities of evidence for coming to the conclusion that the signatures on the motion are genuine or not."
Here again, the Division Bench has clearly laid down that the District Magistrate is not required to act as a civil court and to enquire into matters of evidence for coming to the conclusion as to whether the signatures on the motion are genuine or otherwise.
21. As a matter of statutory interpretation, the duty of the Court while interpreting legislation, first and foremost is to give effect to the plain and ordinary meaning of the language contained in the statute. The legislative intent is best reflected in the words used by the legislature in enacting legislation. Hence, the Court will not readily supply a casus omissus except when there is a clear necessity to do so and that too within the four corners of a statute. At the same time, where a literal construction of the words which have been used by the legislature give rise to an absurdity or a manifestly erroneous result, it is open to the Court to adopt a purposive interpretation which will give true effect to the legislative object and scheme. In Padmasundara Rao (Dead) Vs State of Tamil Nadu10, the Supreme Court observed as follows:
"Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou11, "is not to be imputed to a statute if there is some other construction available."
22. In Ramesh Mehta Vs Sanwal Chand Singhvi12, the Supreme Court emphasized that if two constructions are possible, a meaning which renders a statutory provision workable should be adopted:
"A subordinate or delegated legislation must also be read in a meaningful manner so as to give effect to the provisions of the statute. In selecting the true meaning of a word regard must be had to the consequences leading thereto. If two constructions are possible to adopt, a meaning which would make the provision workable and in consonance with the statutory scheme should be preferred."
23. The same principle has been enunciated in the judgment of a Bench of two learned Judges of the Supreme Court in Shanker Raju Vs Union of India13 where it has been held that a statute is designed to be workable, and the interpretation thereof by the Court should be to secure that object unless a crucial omission or clear statutory direction makes that end unattainable.
24. For these reasons, we have come to the conclusion that where a notice is delivered to the Collector under sub-section (2) of Section 15, the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2). However, consistent with the stipulation of time enunciated in sub-section (3) of Section 15 of convening a meeting no later than thirty days from the date of delivery of the notice and of issuing at least a fifteen days' notice to all the elected members of the Kshettra Panchayat, it is not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice. Where a finding in regard to the validity of the signatures can only be arrived at in an enquiry on the basis of evidence adduced in the course of an evidentiary hearing at a full-fledged trial, such an enquiry would be outside the purview of Section 15. The Collector does not exercise the powers of a court upon receipt of a notice and when he transmits the notice for consideration at a meeting of the elected members of the Kshettra Panchayat. Hence, it would not be open to the Collector to resolve or enter findings of fact on seriously disputed questions such as forgery, fraud and coercion. However, consistent with the law which has been laid down by the Full Bench in Mathura Prasad Tewari's case, it is open to the Collector, having due regard to the nature and ambit of his jurisdiction under sub-section (3) to determine as to whether the requirements of a valid notice under sub-section (2) of Section 15 have been fulfilled. The proceeding before the Collector under sub-section (2) of Section 15 of the Act of 1961 is more in the nature of a summary proceeding. The Collector for the purpose of Section 15, does not have the trappings of a court exercising jurisdiction on the basis of evidence adduced at a trial of a judicial proceeding. Whether in a given case, the Collector has transgressed the limits of his own jurisdiction is a matter which can be addressed in a challenge under Article 226 of the Constitution. We clarify that we have not provided an exhaustive enumeration or list of circumstances in which the Collector can determine the validity of the notice furnished under sub-section (2) in each case and it is for the Collector in the first instance and for the Court in the exercise of its power of judicial review, if it is moved, to determine as to whether the limits on the power of the Collector have been duly observed."
(emphasis supplied)
14. It is noticeable that Smt. Sheela Devi (FB) (supra) is on the interpretation of Section 15 of the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961 which does not contain any provision regarding verification of signatures of the members. Whereas, such provision was added by amendment of 2005 in Rule 33-B of the U.P. Panchayat Raj Rules, 1947. However, in Smt. Sheela Devi (FB) (supra) it was held that the Collector has this power to find as to whether requirement of sub-section (2) of Section 15 of the Act (U.P. Kshetra Panchayat and Zila Panchayat Act, 1961) have been fulfilled. Rule 33-B of the Rules was noticed but was not interpreted. Further, in view of the sound principle of interpretation that a purposive interpretation should be given to give them effect of to the legislative object and scheme, in substance, it was held that Collector can make limited inquiry and is not required to act as the civil court and enter into the necessities of evidence for coming to the conclusion that the signatures on the motion are genuine or not.
15. It would also be beneficial to take note of the judgment of Hon'ble Single Judge in Smt. Kalawati Devi vs. State of U.P. and others 2003 (3) AWC 1997 which deals with Rule 33-B of the Rules as it existed prior to amendment of the year 2005. In Smt. Kalawati Devi (supra) Hon'ble Court while recognizing that right of recall is a statutory right and that insofar as Section 14 of the Act empowers the members of the Gram Panchayat to remove the Pradhan of a Gram Sabha by moving a motion of no confidence, is neither unconstitutional nor void being violative of the concept of democracy or is arbitrary and unreasonable so as to be hit by Article 14 of the Constitution of India as laid down by Hon'ble Apex Court in the case of Ram Beti vs. District Panchayat Raj Adhikari 1998 (1) SCC 680. Relevant paragraphs 11 and 15 of the aforesaid judgment are quoted as under:-
"11. Ordinarily, the State Legislature should have amended the rules providing for procedure. The Court was informed by the learned standing counsel that such rules are proposed. The Court, however, cannot await for the State Legislature to realise the need of the amendment of rules providing for procedure for removal of Pradhan and Up-Pradhan. The right of recall is a statutory right and it can be fulfilled only by a fair and reasonable procedure provided under the Act and Rules. This right is a essence of democracy. Members of Gram Sabha elect Pradhans and Up-Pradhans for various purpose enabling the Panchayats to function as institution of self-Government. Article 243G of the Constitution provides that the panchayats shall be endowed with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such law may contain provisions for the devolution of powers and responsibilities upon panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to :
(a) the preparation of plans for economic development and social justice ;
(b) the implementation of schemes for economic development and social justice, as may be entrusted to them including those in relation to the matter listed in the Eleventh Schedule.
15. Following the aforesaid principles of law, the Court finds that although a procedure has been provided for removal of Pradhan and Up-Pradhan in Rule 33B the said rule has not been amended to give meaning to the provisions of Section 14 and 14B. Whereas now the right to remove has been reinvested in members of Gram Sabha, Sub-rule (1) of Rule 33B provides that notice shall be signed by not less than one-half of the total number of members of the Gram Panchayat. The Rule may, as it is, apply without violating the provisions of Section 14B in respect of Up-Pradhan, but in respect of Pradhan, the words 'Gram Panchayat' have to be read as 'Gram Sabha' wherever these words are used in Rule 33B. Such interpretation brings life to the amended Section 14 and will carry the purpose for which it has been amended. This Court, therefore, holds that in respect of removal of Pradhan, wherever the words 'Gram Panchayat' occur in Rule 33B, these are read to be 'Gram Sabha'."
(emphasis supplied)
16. Rule 33-B of the Rules nowhere requires extensive enquiry like a civil court of the signatures/thumb impression of the members of the Gaon Sabha who have signed or put their thumb impression in support of the no confidence motion at this stage. In the opinion of this Court, only this much is to be verified at this stage that the members who have filed their affidavits in support of the no confidence motion have verified the signatures/thumb impressions of the members of Gaon Sabha. There is no challenge to the same in this writ petition. The petitioner has failed to produce the required documents in this regard although directed to be filed by this Court. An extensive enquiry of signatures/thumb impression at this stage is not required as literal construction of words in Rule 33-B would give rise to absurdity or manifestly erroneous result and would nullify the object of procedural rule and notice given for consideration of no confidence motion.
17. The law as discussed by Hon'ble Full Bench in Smt. Sheela Devi (supra) it is very much clear that it has been laid down down that the Collector under Section 15 of the U.P. Kshetra Panchayat Act has not been constituted as a civil court. The legislature has not contemplated vesting in the Collector the power of a civil court for summoning and enforcing the attendance of witnesses and for making a detailed factual enquiry or for receiving evidence for that purpose. The Collector has to abide by the time schedule. Time is essence in convening a meeting as well as in furnishing a notice of a meeting to every elected member. Evidently, the Collector would neither have the time nor the power to hold a detailed evidentiary enquiry in which disputed questions of fact can be resolved. Hence, questions such as whether the signatures on the written notice have been obtained by fraud, duress or coercion and which would require an evidentiary hearing cannot be gone into by the Collector. Observing that on one hand the Collector cannot be reduced to play role of post office and on the other hand the Collector cannot be constituted as a civil court as already observed. It was held that neither of these extremes can be accepted. Hon'ble Full Bench of this Court Mathura Prasad Tiwari vs. Assistant District Panchayat Raj Officer, Faizabad 1966 ALJ 612 (FB) was obviously on the unamended provision. In paragraph 17 Hon'ble Full Bench in Smt. Sheela Devi (supra) specifically noted the amended provision of Rule 33-B of the Rules and observed that the amendment to the Panchayat Raj Rules has no bearing on the issue which has been raised before the Hon'ble Full Bench dealing with provision and U.P. Kshetra Panchayat and Zila Panchayat Act. However, Hon'ble Full Bench in Paragraphs 21, 22 and 23 clearly noticed the sound principle of law that if two constructions are possible to adopt, a meaning which would make the provision workable and in consonance with the statutory scheme should be preferred and that a statute is designed to be workable, and the interpretation thereof by the court should be to secure that object unless a crucial omission or clear statutory direction makes that end unattainable. Thus, in reference to Section 15 of the Kshetra Panchayat and Zila Panchayat Act, 1961 conclusion was drawn that where a notice is delivered to Collector under sub-section (2) of Section 15, the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2) and also held that it is not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice; where a finding in regard to the validity of the signatures can only be arrived at in enquiry on the basis of evidence adduced in the course of an evidentiary hearing at a full-fledged trial, such an enquiry would be outside the purview of Section 15.
18. Undisputedly, the provision of Rule 33-B of the Rules as amended in the year 2005 w.e.f. 4.3.2005 clearly provides that it shall also be necessary to certify the signatures of other members signing the notice by all the five members presenting the notice by furnishing their affidavit to this effect and that before proceeding further on the notice the District Panchayat Raj Officer shall satisfy himself regarding genuineness of signatures of the members signing the notice. The words "to certify the signatures of the other members signing the notice by all five members presenting the notice by furnishing their affidavit to this effect" are important as clearly, if interpreted in the light of judgment of Hon'ble Apex Court in the case of Ramesh Mehta vs. Sanwal Chand Singhvi 2004 (5) SCC 409, they would mean that the requirement is of verification of signatures of only five members presenting the notice on their affidavit. The words "District Panchayat Raj Officer himself shall satisfy himself regarding genuineness of signatures of the members signing the notice" in the light of aforesaid judgments and golden rule of interpretation, to serve the scheme of the Act, refer to the signatures of only five members signing the notice and not of each and every member of Gram Sabha, whose signatures stood certified by those five members, who have filed their affidavit to that effect. Any other interpretation, in my opinion, would frustrate the entire scheme of the Act as it would lead to mean that the District Panchayat Raj Officer will have to act as a civil court taking detailed evidentiary inquiry into the validity of the signatures as he would have to verify the signatures of about 1200 members in the present case, whereas the meeting is to be convened within a time bound period of minimum 30 days, as held by Honb'ble Full Bench in the case of Smt Sheela Devi (supra). Any other literal construction or interpretation of Rule 33-B of the Rules, would lead to absurd or anomalous result which could not have been intended by the legislature.
19. However, it is also necessary to clarify that the abovenoted interpretation of Rule 33-B of the Rules does not mean that if any objection is received by the District Panchayat Raj Officer with affidavit of a person / persons to the effect that he / they have not signed no confidence motion or it is brought to the notice that some of the members of the Gaon Sabha have died but they are shown to have signed or if any other such reason is indicated due to which they could not have signed no confidence motion, the District Panchayat Raj Officer definitely has a power to make inquiry in such allegations to satisfy himself that no confidence motion is signed by not less than one-half total number of members of the Gaon Sabha. Such inquiry would obviously be of the nature or could have been held to the extend as held by Hon'ble Full Bench in Smt. Sheela Devi (FB) (supra). The ratio of the said case applies with full force in this respect.
20. In the present case, the petitioner has not produced before this Court the documents as directed by this Court and even there is no challenge to the fact that signatures of all the other members of the Gaon Sabha were not certified by the five members presenting the notice, who have filed their affidavit in support of the notice of no confidence and thus, adverse inference has to be drawn against the petitioner.
21. In view of the observation of this Court that the affidavit filed by members presenting the notice in support of no confidence motion has to certify the signatures of other members of the Gram Sabha, which in the present case were about 1154 out of 1969. To give a purposive interpretation, which will give effect to the legislative object and to the scheme of the Act, it must be held that requirement of Rule 33-B of the Rules is that the District Panchayat Raj Officer shall satisfy himself regarding genuineness of the signatures of the five members presenting the notice and that they have certified the signatures of the other members signing the notice by furnishing their affidavits. However, any other further inquiry shall be of limited nature as already discussed above.
22. The extend of signature verified by the District Panchayat Raj Officer in the present case was 341 out of 401, which indicates that the same were more than one-half of the number of members of the Gaon Sabha [i.e. 1154 (signed) - 60 (not found genuine in inquiry) = 1094, which is more than half of 1969 members of Gaon Sabha] and was, therefore, justified in calling a meeting for holding consideration of no confidence motion as also held by Hon'ble Full Bench in the case of Smt. Sheela Devi (supra), which says that if it is a small enquiry it is justified in making it and if it is likely to turn out into a long drawn enquiry or if it thinks that the complaint is not bona fide or is made with the ulterior object of delaying the convening of the meeting it is fully justified in not undertaking an enquiry.
23. There is yet another reason to hold this. It is the settled law that once the elected representative / Pradhan is voted out in meeting held for consideration of no confidence motion, challenge to any defect in notice looses its importance and cannot be raised. Reason is simple. The elected representative / Pradhan has been removed in exercise of statutory right of recall by a majority and any such defect in notice fades away in background. In other words, if any defect in notice, if left open to challenge the majority votes by which Pradhan has been removed, would lead to absurdity and to give statutory right of recall, a meaning not intended by the legislature and will be contrary to meaningfull reading of scheme of the Act.
24. In the opinion of the Court, if the words in last line of sub-Rule 33-B(1) of the Rules is read as members "presenting the notice" in place of "signing the notice" then it will fulfill the purpose of the Act. However, of course, this interpretation is with a clear observation that as already discussed, power to make inquiry to ascertain the fulfillment of requirement of sub-Rule (1) exist and District Panchayat Raj Officer would be justified in exercising this power in the sense and extent as discussed above.
25. Any other interpretation would defeat the scheme of the Act and also of the Rules, which is procedural in nature and would also frustrate the statutory time frame fixed for exercise of the statutory right of Gaon Sabha members to recall the elected Pradhan. Moreso, when time is of the essence in such matter as observed in Smt. Sheela Devi (FB) (supra).
26. For the discussions made hereinabove, I do not find any merit in the petition.
27. This writ petition is, accordingly, dismissed. No order as to costs.
Order Date :- 7.2.2019 p.s./Lalit Shukla