Allahabad High Court
Pushpa Devi vs State Of Up And 7 Others on 8 February, 2018
Bench: Krishna Murari, Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 21 Case :- WRIT - C No. - 5473 of 2018 Petitioner :- Pushpa Devi Respondent :- State Of Up And 7 Others Counsel for Petitioner :- Ashok Pandey,Kamal Singh Counsel for Respondent :- C.S.C. Hon'ble Krishna Murari,J.
Hon'ble Ajay Bhanot,J.
The petitioner is the Pramukh of Kshettra Panchayat Kuthond, District-Jalaun. The total number of elected members of the aforesaid Kshettra Panchayat is 69. 49 elected members of the aforesaid Kshettra Panchayat formed the intention to bring a motion of no confidence against the petitioner. The aforesaid members reduced their intention to writing by creating a written notice of intention dated 17.1.2018 to make the motion of no confidence. The aforesaid motion signed by the 49 members was submitted to the Collector. The Collector upon receipt of the said notice called a meeting of the Kshettra Panchayat for consideration of the motion. A notice dated 23.1.2018 issued by the Collector called the meeting to consider the motion of no confidence against the petitioner on 13.2.2018.
The petitioner has assailed the order dated 23.1.2018 passed by the Collector calling the meeting of no confidence on 13.2.2018.
The first submission of the learned counsel for the petitioner that the written notice of intention dated 17.01.2018 was not in the form contemplated under Section 15(2) of The Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as the 'Act') The facts of the case established beyond doubt are as follows:
The intention of the members of making the motion of no confidence was reduced to writing in the form of notice dated 17.1.2018. The said notice manifests the clear intention of the members to make the motion in explicit terms. The notice was signed by 49 members. The total strength of elected members of the Kshetra Panchayat Kuthond, District-Jaulaun is 69. Thus, more than half of the total number of the members for the time being have signed the notice of intention to make the motion, which is the requisite statutory strength for a valid notice. The substantial requirements of a notice required to be submitted by the members desirous of making the motion of no confidence under Section 15(2) of the U.P. Kshetra and Zila Panchayat Act have been duly complied with. This Court in the case of Shashi Yadav Vs. State of U.P. and others, reported at 2018 (4) ADJ 1 while considering Section 15(2) of the Act and the challenge to a notice submitted thereunder held thus:
"38. We hold the provision regarding the form of written notice of intention to make the motion required to be submitted to the Collector on behalf of the members signing the notice under Section 15(2) is to be directory in nature. A substantial compliance of the provisions would implement the requirements of law. A substantial compliance is done when the purpose of the notice is achieved. The purpose of the notice of intent to make the motion, is to furnish to the Collector the material on which he has to found his satisfaction before convening the meeting. Such material should demonstrate full compliance of mandatory provisions of 15(2) of the Act.In particular, the notice should be in writing. It should manifest the clear intention of the members to make a motion expressing want of confidence in the Pramukh. It should be signed by at least half of the elected members. The copy of the no confidence motion should be attached thereto.
39. In fact, if a strict compliance of the said mandatory parts of Section 15(2) is done, then the substantial compliance of directory provisions of the aforesaid of Section 15(2) would be automatically deemed to have been done.
40. If such facts or material can be distilled from the notice to make a motion expressing want of confidence irrespective of its form, it substantially complies with the mandate of law. As has been held, these prerequisites are fulfilled in the instant case."
The notice dated 17.01.2018 complies with the mandate of Section 15(2) of the Act, and is in conformity with the law laid down in the case of Shashi Yadav (supra). The first submission on behalf of the petitioner is thus rejected.
The second submission of the learned counsel for the petitioner is that 40 members have given an affidavits to the Collector sworn on 3.2.2018 denying their signatures on the notice of intention to make the motion of no confidence submitted against the petitioner before the Collector. The motion cannot tabled in the light of the said affidavits and the Collector erred in law by calling the meeting by order dated 23.01.2018.
It is noticeable that the said affidavits were sworn on 3.2.2018. The written notice to make the motion of no confidence was signed by the members on 17.01.2018. The Collector issued the notice calling the meeting to consider the motion of no confidence on 23.1.2018. The time gap between the affidavits allegedly submitted and the written notice and the order of the Collector calling the meeting of no confidence is more than 10 days. This clearly reflects that the affidavits are an afterthought. Further, in the affidavits there is a bald denial of the earlier notice of intent to make the motion of no confidence. The affidavits assert a case of fraud. However, the averments lack material particulars of the alleged fraud and are vague and open ended. Admittedly, no FIR or criminal proceedings were launched for forging the documents.
In such circumstances, these affidavits are a case of bald denial and are an afterthought. The use of affidavits to stall proceedings of no confidence was considered by a Division Bench of this Court in the case of Shashi Yadav Vs. State of U.P. and others, reported at 2018 (4) ADJ 1 and in the case of Naima Khatoon Vs. State of U.P. in Writ-C No.3450 of 2018. This judgement in the case of Naima Khatoon (supra) was rendered on 23.3.2018.
The employment of such affidavits to abort a no confidence meeting was considered in the case of Naima Khatoon (supra) of this Court. The relevant parts of the judgement are extracted hereunder:
"It is being noticed that affidavits are being increasingly used by members to abort the notice expressing want of confidence or to rush the motion of no confidence. This onrush of affidavits commences prior to submission of the notice expressing want of confidence or even subsequent thereto. The affidavits are being employed to project political support or consolidate the political support base. This may be an ingenious political device but has uncertain legal value. Such affidavits may be a tool for political mobilization but not a test for legitimacy in office.
The worth of affidavits to impeach a notice by members expressing want of confidence was considered by this Court in the case of Smt. Shashi Yadav (supra). This Court held thus........................................"
While considering the efficacy of such affidavits in forestalling of meeting of no confidence, the while considering the notice calling a meeting this Court in the case of Shashi Yadav (supra) held thus:
"54. The import and consequence of such affidavits, requires some thought.
55. A written notice to make a motion of no confidence signed by elected members has a certain sanctity. This is an official act which draws a presumption of correctness in its favour. The presumption is rebuttable, but the burden lies upon the person denying its correctness. The burden cannot be discharged lightly.
56. Reducing the burden, would devalue the sanctity of the notice and the no confidence proceedings. Expression of no confidence is often a political action. The process of no confidence culminating in the vote is politically surcharged. Members face divergent pulls from different persuasions. The incumbent Pramukh is desirous of stalling the motion, while initiators of the meeting are anxious to force the vote.
57. In such circumstances, members of the Kshetra Panchayat, signing the written notice of intent are often prone to change of mind. Elected members can resile from their earlier stand of supporting the written notice of intent. In various instances plain denials can be issued.
58. However, affidavits of bald denials or vague refutal of the written notice by members, cannot become the basis of impeaching the credibility of the written notice or cause the Collector to recall the order convening the meeting of no confidence or to interdict the meeting itself.
59. If such standards are to be accepted, then the Collector, would not be able to convene the meeting. The cycle of affidavits would be endless. The Collector would become a prisoner of the stands of the members oscillating between support and denial.
60. The legitimacy of a Pramukh in office rests on the confidence of the majority. Loss of confidence means loss of legitimacy, loss of legitimacy entails loss of office. The confidence of the majority in the Pramukh has to be tested in a meeting where the motion is put to vote. It cannot be determined in the office of the Collector on the basis of affidavits affirming or denying support. The arbiter of confidence is the vote of the majority and not the will of the Collector.
61. However, a meeting cannot be called on the strength of an illegitimate written notice of intent. When objections are taken by members to the written notice of intent, the Collector does not lack the authority to investigate the complaints. An enquiry can be initiated, by the Collector, if such complaints satisfy the minimum benchmark of credibility. Once such enquiry is undertaken, its scope and limit will be as defined by the law laid down by a Full Bench of this Hon'ble Court in the case of Sheela Devi Vs. State of U.P., reported at (2015) 2 UPLBEC 1176. The Full Bench in the case of Sheela Devi (supra) in turn relied upon an earlier Full Bench of this Court in Mathura Prasad Tewari Vs. Assistant District Panchayat Officer, Faizabad, reported at 1966 ALJ 612. The Full Bench in Mathura Prasad Tewari (supra) was considering similar provisions to requisition a no confidence meeting in the U.P. Panchayat Raj Act, 1947 read with U.P. Panchayat Raj Rules, 1947. The scope of an enquiry by a Collector into the validity or otherwise of the signatures on complaints made in that regard was circumscribed by the following observations:
"12..................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."
The affidavits in issue do not satisfy a minimum credibility bench mark and do not warrant any further enquiry by the Collector in view of the law laid down in the case of Shashi Yadav (supra) and in the case of Naima Khatoon (supra). The argument of the learned counsel for the petitioner thus stands rejected.
The third submission of the learned counsel for the petitioner is that a number of members of the Khestra Panchayat had not subscribed to the oath of office and hence ceased to be members. In such situation, the aforesaid members, who had not subscribed to the oath of the office, could not move the written notice of intention to make the motion of no confidence.
This issue was decided by the Division Bench of this Court (of which one of us namely, Hon'ble Krishna Murari, J. was a member) in the case of Smt. Kamla Devi Vs. State of U.P. and others, reported at (2014)8 ADJ 525. In the case of Shashi Yadav(supra), this Court as paras 47 and 48, followed the law laid down in Kamla Devi (supra) and held thus:
"47. This Court after due consideration resolved the controversy by holding that failure to subscribe to the oath of office or make the affirmation prescribed by law, is not an impediment in the discharge of duties of the respective members of the Kshetra Panchayat. Such members do not incur any disqualification to sign a written notice to make a no confidence motion and cannot be prevented from participating in ensuing the vote of no confidence. The ruling of this Court, reinforced the said statement of law, by reliance on judgments of the Hon'ble Calcutta High Court and the Hon'ble Supreme Court. The relevant paragraphs of the aforesaid judgment are quoted hereunder:
"17. In the absence of any provision in the Adhiniyam of 1961 or the Rules prescribing any consequence for omission to subscribe to oath or affirmation, it cannot be held that such a member ipso facto looses his membership or in any manner becomes disqualified to either participate or vote in the meeting of No Confidence. His status, despite having failed to subscribe to oath or affirmation, continues to be that of an elected member and he continues to be a member of the electoral college. Participation of such member would neither render the meeting of No Confidence illegal nor vote cast by such member/members is liable to be excluded.
18. The view taken by me finds support by decision of Calcutta High Court in the case of Bhupindra Nath Basil v. Ranjit Singh MANU/WB/0039/1913 : AIR 1914 Cal 152. The facts of the said case were as under:
An election was held in 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. One of the candidates being unsuccessful filed a suit before the High Court questioning the validity of the election with a prayer to recount the vote after excluding the votes cast by two members, who had not taken the oath of allegiance. Regulation VII of the Bengal Council Regulations provided that every person elected or nominated under the Regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown. Consequences of such an omission are contained in Regulation VIII providing that where such a person fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local official Gazette, declare the election or nomination to be void or his seat to be vacant.
Hon'ble Calcutta High Court finding that such a declaration had not been made on the date of the election, rejected the claim of the plaintiff to exclude the votes of two members, who had not taken oath of allegiance. The High Court held as under:
"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn and King v. Swyer have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these regulations. These regulations constitute an electoral college of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative functions conferred by the regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the rule fails and must be discharged, and discharged with costs."
19. Provision contained in Rule 3 prescribing for oath by a member/elected member of a Zila Panchayat or Kshettra Panchayat is pari materia with Article 188 of the Constitution of India prescribing for an oath to be taken or affirmation to be made by every member of a Legislative assembly or a Legislative Council. Article 188 reads as under:
"188. Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."
20. The issue whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer or a valid nomination for election to Rajya Sabha came up for consideration before the Hon'ble Apex Court in the case of Pashupati Nath Sukul v. Nem Chandra Jain and others MANU/SC/0216/1983 : (1984) 2 SCC 404.
21. The Hon'ble Apex Court while approving the ratio laid down in the case of Bhupindra Nath Basu (supra), in paragraph 20 of the said report, held as under:
"We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of the Act (Representation of the People Act, 1951) can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are, therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous."
48. In this view of the matter, the second argument also of the learned counsel for the petitioner also fails. The members of the Kshetra Panchayat, who have not subscribed to the oath of office or made any affirmation prescribed in law cannot be prevented due to this reason from signing the written notice to requisition the meeting for no confidence or to participate in the aforesaid meeting of no confidence. The action of such members in signing the written notice of intent is uphold as lawful and valid."
For the aforesaid reasons, the last submission on behalf of the petitioner also fails. Moreover, the petitioners have not established the service of the aforesaid affidavits upon the Collector. No pleadings or proof of service of the aforesaid affidavits upon the Collector are in the record.
In such situation, we hold that the aforesaid affidavits were not duly served upon the Collector and the Collector could not have taken any action on such affidavits.
In view of the above facts, the writ petition is dismissed.
Order Date :- 8.2.2018 Ashish Tripathi