Allahabad High Court
Kunwar Hari Raj Singh vs District Magistrate, Bijnor And Others on 9 May, 1991
Equivalent citations: AIR1992ALL203, (1991)2UPLBEC1061, AIR 1992 ALLAHABAD 203, 1992 ALL. L. J. 413, 1991 (2) ALL CJ 842, 1991 (2) UPLBEC 1061, 1991 ALL CJ 2 842, (1991) 2 ALL WC 1403
ORDER K.P. Singh, J.
1. By means of this writ petition, the petitioner has prayed for quashing the notice of the meeting proposed to be held on 31-1-1991 (Annexure '6' to the writ petition) regarding vote of no confidence against the petitioner. Another prayer has also been made seeking writ of mandamus commanding opposite party No. 1 to cancel the meeting proposed to be held on 31-1-1991.
2. The petitioner is elected Chairman of Nagar Palika, Haldaur, District Bijnor. It appears that on 31-12-1990 allegedly 13 members of the Nagar Palika moved a motion of no-confidence against the petitioner as is evident from Annexure '1' to the writ petition, and prayed for calling the meeting according to law for the aforesaid purpose. On 3-1-1991 an application has been moved on behalf of one Smt. Yashoda Devi/alleging that her signature was forged as she had not signed. Therefore, further proceedings on the charges against the petitioner should be proceeded with according to the rules. The application of aforesaid Yashoda Devi was supported by an affidavit. Sri Chandda Bhushan Singh, Executive Officer, Nagar Palika was deputed to make inquiry into the genuineness of the signatures on annexure' 1' attached to the writ petition. The aforesaid Inquiry Officer made a report that only four signatures of Sarvasri Subhod Kumar Sharma, Dinesh Kumar Sharma, Rampal Singh and Chandra Pal Singh were true signatures of the persons concerned and about other signatures he opined that they were either different from the signatures available on the record or some of them were farzi and not genuine.
3. The learned counsel for the petitioner in the above circumstances has contended before us that the notice contained in annexure '6' regarding the vote of no-confidence against the petitioner is bad in law in so far as it does not provide seven clear days notice to the petitioner and other members as contemplated by the relevant provisions of law. It has also been suggested that the requisite number of members had not signed the proposal of no-confidence motion against the petitioner; hence the meeting scheduled to be held on 31-1-1991 is illegal and invalid. It has also been emphasised that really only four members had signed the notice for motion of no-confidence against the petitioner therefore, the District Magistrate could not call the meeting.
4. The learned counsel for the opposite parties has tried to refute the contentions raised on behalf of the petitioner. According to him, the requisite number of members of the Nagar Palika had signed annexure '1' attached with the writ petition and that the District Magistrate was fully justified, in the circumstances of the case, to call the meeting and that the meeting has not been held on 31-1-1991 due to the order of this court dated 30-1-1991. Therefore, a direction be issued to opposite party No. 1 to proceed with the motion by fixing another date for the same. During the course of argument it was sug-
gested that in the facts and circumstances of this case, it is not necessary that fresh motion of no-confidence should be moved and thereafter the relevant proceeding may ensue.
5. We have heard learned counsel for the parties at great length and we have examined the relevant provisions of Section 87-A of the U. P. Municipalities Act, which reads as below :
"87-A. Motion of no-confidence against President -
(1) Subject to the provisions of this section a motion expressing no-confidence in the President shall be made only in accordance with the procedure laid down below.
(2) Written notice of intention to make a motion of no-confidence in its President signed by such number of members of the Board as constitute not less than one half of the total number of members of the Board together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate.
(3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty-five days from the date on which the notice under sub-section (2) was delivered to him. He shall send by registered post not less than seven clear days before the date of the meeting, a notice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice."
The other sub-sections of the aforesaid section are not relevant for the purpose of this case.
6. According to the aforesaid provision of Section 87-A (3) it is necessary for the District Magistrate to send a notice of the meeting to every member of the Board at his place of residence giving seven clear days before the date of the meeting.
7. In paragraph 9 of the writ petition, the petitioner has said that no notice has been served upon him. Notice issued by the District Magistrate regarding the meeting of vote of no-confidence against the petitioner is dated 24-1-1991 and the date of the meeting indicated therein is 31-1-1991. In paragraph 20 of the counter affidavit, it has not been indicated when the notice was really served upon the members. The only plea is to the effect that the members were present at the meeting and had been served. The law requires that the service upon the members should be by registered post giving not less than seven clear days' notice before the date of the meeting. In view of the evasive reply in paragraph 20 of the counter-affidavit, we think that the District Magistrate has not complied with the provisions of Section 87-A (3) of the Act while giving notice contained in annexure '6' attached with the writ petition. To our mind, the scheduled meeting to be held on 31-1-1991 could not legally take place on that date due to the illegal and defective nature of the notice issued by the District Magistrate. The learned counsel for the opposite parties has not been able to give any satisfactory answer to the contention raised on behalf of the petitioner in this regard. This writ petition deserves to be allowed on this ground alone as seven days's clear notice was not given to the members as contemplated by the provisions of Section 87-A (3) of the Act. The notice contained in annexure '6' attached with the writ petition deserves to be quashed being defective and illegal.
8. It would be proper to mention a ruling of this Court, reported in 1986 All LJ 1456, Yadu Nath Pandey v. District Panchayat Raj Officer district Ballia, wherein a Division Bench of this Court has observed in para 5 of the aforesaid ruling as below :--
"In Maxwell on Interpretation of Statutes, Eleventh Edition, page 340, the significance of the words "at least" was considered and it was said :--
"again, when so many "clear days", or so many days "at least", are given to do an act, or "not less than" so many days are to intervene, both the terminal days are excluded from the computation."
9. In paragraph 8 of the aforesaid ruling the following observations have been made.
"In Rambharose Lal Gahoi v. State of M.P., AIR 1955 Nag. 35, a Division Bench was required to consider about similar controversy. It said :
"The Rule of law is that some words such as, so many "clear days" or so many days "at least" are used, the two terminal days must be excluded. The pertinent rule framed underthe Act says that notice of such a motion shall be given to the President "at least" ten days before moving it and hence under the rule ten clear days should elapse between the notice of a resolution of no-confidence and the motion of no confidence."
10. In the present case in section 87-A (3) it is contemplated that seven clear days' notice should be given to the members before the date of meeting to be held. Therefore, we are of the opinion that the notice contained in Annexure '6' does not give clear seven days' notice. Therefore, it is bad and illegal.
11. As regards the suggestion of the ' learned counsel for the opposite parties that the proceeding for vote of no-confidence against the petitioner should proceed without any further motion of no confidence against the petitioner we do not think it proper to make any direction in this regard specially when there is a dispute as to whether the requisite number of members had signed the proposed vote of no-confidence against the petitioner. In this regard the learned counsel for the opposite parties has emphasised that the District Magistrate has recorded a categorical finding that all the 13 persons had signed annexure '1', therefore, he should be asked to proceed further in the matter without any further motion of no-confidence against the petitioner. It appears that the District Magistrate has not considered the report of the Executive Officer, Nagar Palika, Haldaur who had made inquiry into the allegation about the genuineness of the signatures on annexure '1' and his report was against the stand taken by the opposite parties. In the facts and circumstances of this case, we think that ends of justice would be fairly met only by quashing the notice contained in annexure '6' attached with this writ petition. It would be open to the District Magistrate to decide the claim of the parties strictly in accordance with law. At present, we are not inclined to accept the suggestion of the learned counsel for the opposite parties to make a direction that the District Magistrate should fix a date for the meeting to be held regarding vote of no-confidence against the petitioner and decide the claims of the parties on the date so fixed. The parties should approach the District Magistrate in this regard with their claims which we believe that the District Magistrate would decide strictly in accordance with law.
12. Learned counsel for the petitioner has cited the rulings reported in Daya Kishan Pande v. District Magistrate of Nainital 1958 ALJ 208; Krishna Chandra Gupta v. Prayag Narain (1961 ALJ 226) Jai Charan Lal v. State of U. P. (AIR 1968 SC 5 : (1967 All LJ 936) and Banshool v. District Panchayat Raj Officer, Jaunpur 1986 UPLBEC 429 ; (1986 All LJ 1143) in support of his contention but in view of our above conclusion it is not necessary to refer and discuss them in this case.
13. For the foregoing discussion, this writ petition succeeds and the impugned notice for the meeting to be held on 31 -1-1991 regarding vote of no-confidence against the petitioner is hereby quashed. The District Magistrate shall decide the claims of the parties hereafter strictly in accordance with law. Parties are directed to bear their own costs.
14. Pronounced by Hon. K. P. Singh, J. today under Chapter VII Rule 2 of the Rules of the Court.
15. Petition allowed.