Allahabad High Court
Smt. Omvati Yadav vs State Of U.P. And 17 Others on 17 June, 2019
Equivalent citations: 2019 (6) ALJ 299, AIRONLINE 2019 ALL 1068, (2019) 137 ALL LR 507, (2019) 4 ALL WC 3621, (2019) 4 ESC 1687, (2019) 9 ADJ 225 (ALL)
Bench: Surya Prakash Kesarwani, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 05 Case :- WRIT - C No. - 20179 of 2019 Petitioner :- Smt. Omvati Yadav Respondent :- State Of U.P. And 17 Others Counsel for Petitioner :- Vibhu Rai,Sri Anoop Trivedi (Senior Advocate) Counsel for Respondent :- C.S.C.,Pankaj Kumar Shukla,Pradeep Kumar Singh Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Pankaj Bhatia,J.
"Whether a composite written notice of intent to make a motion and the motion of no confidence moved by members of Zila Panchayat would be substantial compliance of the provisions of sub-Section (2) of Section 28 of the Uttar Pradesh Kshettra Panchayat Act, 1961 (hereinafter referred to as 'the Act')"?, is the question involved in the present petition."
1. Heard Sri Anoop Trivedi, learned senior advocate assisted by Sri Vibhu Rai, learned counsel for the petitioner, Sri Pradeep Kumar Tripathi, learned standing counsel for the State-respondents, Sri R.K. Ojha, learned senior advocate assisted by Sri Pankaj Kumar Shukla, learned counsel for the respondent No.3 and Sri P.K. Singh, learned counsel for the respondent No.5.
2. Briefly stated facts of the present case are that the petitioner is the elected Chair-person of Zila Panchayat, Hathras which consists of 25 members. A composite notice-cum-no confidence motion dated 01.06.2019 signed by 16 members of the aforesaid Zila Panchayat was presented by them before the second respondent, i.e. Collector/ District Magistrate, Hathras expressing no confidence in the petitioner and asking to convene meeting for no confidence by division of votes. The aforesaid notice-cum-no confidence motion was filed in terms of the provisions of Section 28(2) of the Act, which is reproduced below:
"28. Motion of no-confidence in Adhyaksha or Up-Adhyaksha. -
(2) A written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of elected members of the Zila 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 Zila Panchayat."
3. On receipt of the aforesaid no confidence motion, the respondent No.2 issued notices to all the members of the Zila Panchayat, Hathras in terms of the provisions of Section 28(3) of the Act. He also sent a request letter dated 13.06.2019 to the learned District Judge, Hathras in terms of sub-section (4) of Section 28 of the Act. The date of meeting for no confidence motion has been fixed for 22.06.2019 in the afternoon at 12.00 hours in Zila Panchayat, Hathras for considering the no confidence motion. Aggrieved with the aforesaid no confidence motion, the petitioner has filed the present petition praying to quash the aforesaid letter No.69 dated 03.06.2019 sent by the Collector/ District Magistrate, Hathras to the learned District Judge, Hathras under Section 28(4) of the Act. The petitioner has further prayed for a direction to the respondents not to interfere in the functioning of the petitioner as Chair-person of Zila Panchayat, Hathras.
SUBMISSIONS:-
4. Learned counsel for the petitioner submits that separate notice and no confidence motion is mandatory requirement of Section 28(2) of the Act, which has not been complied with by the members moving the motion and, therefore, no confidence motion cannot be proceeded with. In support of his submissions, he relied upon paragraph-35 of the Division Bench judgment of this court dated 22.02.2018 in Writ-C No.1994 of 2018 (Smt. Shashi Yadav vs. State of U.P. and 5 others).
5. Learned counsels for the respondents jointly submit that a composite notice and no confidence motion as given by members of the Zila Panchayat, substantially satisfies the mandatory requirement of Section 28(2) of the Act and as such, the no confidence motion moved by the 16 members of the Zila Panchayat against the petitioner does not suffer from any infirmity or invalidity. In support of their submissions, they relied upon a Full Bench judgment of this Court in Vikas Trivedi and others vs. State of U.P. and others, [2013 (8) ADJ 523 (FB) (Paras-2, 74, 75, 78 and 81], and a Division Bench judgment in Awadhesh Singh vs. State of U.P. and others, [2017 (5) ADJ 1 (DB) (LB) (Paras-14, 28 and 30)].
6. We have carefully considered the submissions of learned counsels for the parties and perused the record.
7. Undisputedly, a notice-cum-no confidence motion dated 01.06.2019 was moved by 16 members of the Zila Panchayat, Hathras against the petitioner before the Collector/ District Magistrate, Hathras. It is not disputed before us that the aforesaid notice-cum-no confidence motion contains all the necessary ingredients/ requirements of a notice and no confidence motion under Section 28(2) of the Act read with "Rules regarding motion of non-confidence of Zila Parishad", notified by Notification No. 5202-A/XXXIII-23-R-64, dated December, 14, 1962. Thus, the only question that requires consideration in this writ petition is as under:-
"Whether a composite notice-cum-no confidence motion given by the members of the Zila Panchayat dated 01.06.2019 is valid or the notice and the no confidence motion by them should have been moved separately".
8. Similar controversy as involved in the present case, was raised before a Division Bench of this court in the case of Awadhesh Singh (supra). Relevant facts and submission and the findings of the judgment in Awadhesh Singh's case (supra) (Paras-8, 10, 30) are reproduced below :-
"8.The controversy raised in this petition revolves around the allegation of the petitioner to the effect that the provisions of Section 28 of the 1961 Act read with the Rules regarding Motion of No Confidence in Zila Parishads (Zila Parishads) as notified on 14.12.1962 have not been followed. In order to appreciate the controversy in the light of the arguments raised, it would be appropriate to extract Section 28 of the Act which is as follows:-
"28. Motion of no-confidence of Adhyaksha or (1) A motion expressing want of confidence in the Adhyaksha or of a Zila Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-section.
(2) A written notice of intent on to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of elected members of the Zila 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 Zila Panchayat.
(3) The collector shall thereupon-
(i) convene a meeting of the Zila Panchayat for the consideration of the motion at the office of the Zila 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 members 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 notice of the meeting to the elected members shall be excluded.
(4) The collector shall arrange with the District Judge of the district to preside at such meeting.
Provided that the District Judge may instead of presiding himself direct a Civil Judicial Officer not below the rank of a Civil Judge subordinate to him to preside at the meeting.
(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).
(4-B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not less than 25 days from the date of appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the elected members at least ten days notice of the next meeting in the manner prescribed under sub-section (3).
(5) Save as provided in sub-section (4-A) and (4-B) a meeting convened for the purpose of considering a motion under this section shall not be adjourned.
(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Zila Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.
(7) No debate on the motion under this section shall be adjourned.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.
(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(10) A copy of the minutes of the meeting together with a copy of the motion and the result of voting thereon shall be forwarded on the termination of the meeting by the Presiding Officer to the State Government and to the Collector.
(11) If the motion is carried with the support of more than half of the total number of elected members of the Zila Panchayat for the time being-
(a) the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette; and
(b) the Adhyaksha shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha as the case may be shall be received until after the expiration of one year from the date of such meeting.
(13) No notice of a motion under this section shall be received within two years of the assumption of office by an Adhyaksha."
10.Sri Prashant Chandra advancing his submissions has urged that the first requirement is the intention of the Members to move a ''No Confidence Motion' that has to be through a written notice in the Form as may be prescribed and signed by not less than one-half of the total number of elected members of Zila Panchayat. The said notice has to be accompanied by the proposed Motion to be delivered in person by any one of the members signing the notice to the Collector of the district concerned whereupon the Collector has been enjoined with the duty to convene a meeting within 30 days from the date on which the notice under the provisions is delivered to him. The Form in which the notice has to be tendered is provided for in the Rules referred to and extracted here-in-above.
30.Applying the ratio of the aforesaid decisions and as again reiterated in the judgment of Brijendra Bahadur Singh (supra), we are clearly of the opinion that on the facts of the present case, the District Magistrate had clearly received the notice of the intention to move ''No Confidence Motion' signed by the requisite number of members on 27.3.2017 for which preparations were made in accordance with the procedure prescribed. We have also examined the contents of the notice signed and delivered by the members which also recites the intention to move the ''No Confidence Motion'. Thus, the notice is complete and composite in nature and also bears the signatures of the members as per the requirement of law. The date of delivery of the notice can be clearly gathered as 27.3.2017 from the letter of the District Magistrate dated 28.3.2017 extracted here-in-above."
(Emphasis supplied by us)
9. Section 28(2) of the Act has used two phrases as under :
(i) A written notice of intention to make motion, in such form and manner as may be prescribed.
(ii) together with a copy of the proposed motion.
10. The form and manner of giving notice has been prescribed in 'The Rules Regarding Motion of Non-Confidence' vide notification No.5202-A/XXXIII-23-R-64 dated December 14,1962, as under :
"RULES REGARDING MOTION OF NON-CONFIDENCE Zila Parishad Notification No. 5202-A/XXXIII-23-R-64, dated December, 14, 1962 In exercise of the powers under Section 237 of the U.P. Kshettra Samiti and Zila Parishads Adhiniyam, 1961 (Uttar Pradesh Act No. XXXIII of 1961), read with sub-section (2) of Section 28 and clause (ii) of sub-section (3) of Section 28 of the said Adhiniyam, the Governor of Uttar Pradesh is pleased to make the following rules relating to the form in which a written notice of intention to make the motion of non-confidence in Adhyaksha will be given by members of a Zila Parishad and for prescribing the manner in which the Collector shall give notice of the said motion to the members of Zila Parishad, after previous publication with Notification No. 4568-A/XXXIII-23-R-61, dated November 9, 1962 :
Rules
1. A written notice of intention to make a motion expressing want of confidence in the Adhyaksha of a Zila Parishad shall be in Form I of the Schedule given below.
2. The notice under clause (ii) of sub-section (3) of Section 28 of the U. P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961, shall be in Form II of the Schedule given below and shall be sent by registered post to every member of the Zila Parishad at his ordinary place of residence. It shall also be published by affixation of a copy thereof on the notice board of the office of the Zila Parishad.
4020 UTTAR PRADESH LOCAL ACTS [App. III(3) SCHEDULE FORM I (Form of the written notice of intention to make a motion expressing want of confidence in the Adhyaksha of a Zila Parishad) To, The Collector, . . . . . . . . . . . . . .
Notice Sir, We, the undersigned members of the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Zila Parishad hereby give this notice to you of our intention to make the motion of non-confidence in Sri . . . . . . . . . . . . . . . . . . . . . . . . , the Adhyaksha of our Zila Parishad and also annex hereto a copy of the proposed motion of non-confidence.
2. The total number of members who for the time being constitute the Zila Parishad . . . . . . . . . . . . . . . . . . . . . . . . .is . . . . . . . . . . . . . . . . . . . . . .
Your faithfully,
1.
2.
3.
4. Place . . . . . . . . . . . .
Dated . . . . . . . . . . . .
FORM II (Form of the notice of a meeting of the Zila Parishad to be held for the considera-
tion of the non-confidence motion against the Adhyaksha) To Sri . . . . . . . . . . . .
Member of . . . . . . . . . . . Zila Parishad.
Notice This notice is hereby given to you of the meeting of . . . . . . . . . . . . Zila Parishad which shall be held at the office of the said Zila Parishad on . . . . . . . . . . . . . . (date) at . . . . . . . . . . . . . . . . . . . . . . .(time) for con- sideration of the motion of non-confidence which has been made against Sri . . . . . . . . . . . . . . . . . , the Adhyaksha of the said Zila Parishad.
A copy of the motion is annexed hereto.
Place . . . . . . . . . . . . . . . . . .
Dated . . . . . . . . . . . . . . . . . . Collector . . . . . . . .
Copy forwarded for information."
11. A conjoint reading of Section 28(2) of the Act and Rule of the Rules reveals that a written notice of intention to make motion together with a copy of proposed motion expressing want of confidence in the Adhyaksha of a Zila Panchayat shall be given, signed by not less than one-half of the total number of elected members of the Zila Panchayat for the time being, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Zila Panchayat.
12. The only submission of the petitioner before us is that separate notice and 'no confidence motion' is the mandatory requirement of Section 28(2) of the Act and the Rules. We find no substance in this submission.
13. Section 28(2) uses the word 'Together'.
14. The meaning of the word 'Together' has been explained by a Full Bench of this court while dealing with a similar provision of Section 87A(11) of the Municipalities Act, 1916, in Mahesh Chandra vs. Tar Chand, AIR 1958 (All) 374 at 386 (FB) (Paras-76, 79 and 80), as under:
"76. The provisions of Section 87A can be broadly divided into two portions, one, dealing with the provisions which relate to the calling of the meeting and the actual holding of the meeting as also the conduct of the meeting itself; and the other, dealing with what is to follow the termination of the meeting.
In my view, the first portion of this section is mandatory in its scope, but not the second portion. The words "a motion expressing non-confidence in the President shall be made only in accordance with the procedure laid down below" in Section 87A (1) can and do refer only to the calling of the meeting and the holding of the meeting and not to acts which have to be performed subsequent to the meeting.
The act of sending a copy of the minutes of the meeting along with a copy of the motion and the result of the voting thereon after the termination of the meeting is not part of the making of "a motion expressing non-confidence in the President.'' The legislature could not be deemed to have ever intended that ministerial acts necessary upon the passing of the motion at a properly constituted meeting should be viewed with the same strictness as steps leading up to the meeting & the transaction of the business at the meeting, because the latter affected the rights of a party while the former did not.
A motion of non-confidence is a potent weapon in the hands of an elected body, whereby that body keeps under check its officers. It also is a matter of great significance and vital importance to the officers that such motions are not lightly made or carried through without due regard being had to the prescribed form for their passing, but after a motion has been properly made and passed by a body competent to pass it, it becomes of vital importance thereafter that effect should be given to the motion and mere procedural errors, such as errors in its communication, etc., should not have the effect of setting at naught the duly recorded view of the statutory majority.
79. A motion means a proposal and nothing more. The statute does not provide for any specific words in which the motion of non-confidence has to be made, nor does it prescribe that the motion which is to be put for consideration of the meeting by the Presiding officer under Subsection (7) has to be in the words -- the very words -- in which the motion or proposal was made in the requisition under Sub-section (2).
It is enough compliance with the provisions of Sub-section (3) for the District Magistrate while convening the meeting to say that a meeting is being convened for consideration of a motion of non-confidence signed by more than half the members of the Board against the President and it is also sufficient compliance with the provisions of Sub-section (7) to read the motion as contained in the notice issued by the District Magistrate under the provisions of Sub-section (3).
The notice which was issued by the District Magistrate in this case actually said that the meeting was being called to consider the above motion: the above motion could only refer to the non-confidence motion referred to earlier in that notice.
80. It has been contended on behalf of the petitioners that after the passing of the motion of non-confidence and the communication of it by the judicial officer to the President along with a copy of the minutes and the result off the voting was sufficient compliance with the provisions of Sub-section (11), while on behalf of Sri Tara Chand Modi it was contended that there could be no sufficient compliance with the provisions of Sub-section (11) unless the judicial officer sent to the President a copy of the minutes of the meeting together with a copy of the motion and the result of the voting.
The contention was that three documents had to be sent to the President. Support for this contention was found in the observations of Desai and Beg JJ., in Special Appeal No. 195 of 1957 (A11) (C). In that case the learned Judges held at follows:
"The President became liable to be removed only if he did not resign or make a representation within three days of the receipt of the three documents mentioned in Section 87A (11); if he did not receive even one of them he was not bound to resign or make a representation and he could not be removed on the ground of his not resigning or making the representation.
Section 47A requires that a motion of non-confidence after it has been passed must be communicated to the president in accordance with the provisions of Section 87A; merely communicating to him the motion of non-confidence will not be enough; he must be told that it has been passed, that is, he must be told of the result of voting.
It is only when the three documents mentioned in Section 87A (11) are sent by the Judicial officer to him that he could be said to have communicated to him the motion of non-confidence in accordance with the provisions of Section 87A. If he does not send to him any of the documents he cannot be deemed to have communicated to him the motion of the non-confidence in accordance with the provisions of Section 87A."
With the greatest respect to my learned brothers I have been unable to agree that on the words of Sub-section (11) there have to be three separate documents. The Sub-section does not in terms refer to any such documents; the sub-section, in my opinion, refers only to the matter in respect of which a communication has to be forwarded by the judicial officer to the President.
A single document may contain a copy of the minutes of the meeting, a copy of the motion and the result of the voting thereon. I must, however, concede that the use of the word 'together' after the words 'a copy of the minutes of the meeting' in Sub-section (11) does create the impression that two separate documents have to be sent.
The word 'together' however, not only means 'in company' but it also means in conjunction. or 'united'. The word 'together' is made out of the word 'gather' which means 'to bring together'; to sum up'. If the intention of the legislature was that the presiding officer was to send three separate documents containing the three things mentioned in Sub-section (11), then, in my view, the legislature would have used the words 'accompanied by' or some like phrase and not the word 'together', for the legislature must be deemed to know that the word 'together' also means 'incorporated' because the word 'gather' means 'to bring together' and 'to sum up' as I have already pointed out above.
On the plain meaning of the sub-section, therefore, it cannot, in my view, be said that three separate documents have to be sent to the President by the Presiding officer at the termination of the meeting. On the facts it has to be held that the presiding officer did send to the President the Minutes of the meeting, the result of the voting and a copy of the notice, or notification as it has been called, which contained the motion which was in fact put to the Board and passed by the Board.
There was, in my view, therefore, full compliance with the provisions of Sub-section (11) of Section 87A and there was nothing wrong in the communication which was made to the President."
15. As per P. Ramanatha Aiyar's book "The Law Lexicon 3rd Edition 2012" the word 'together' means in 'company'; 'into or in union of each other as wholes or parts, so as to be combined or joined with each other; conjointly; in the same place or at the same spot with each other locally, as in company; at the same moment of time; simultaneously; contemporaneously; mutually; reciprocally".
16. Thus, the word 'together' used in the aforesaid two phrases in Section 28(2) of the Act means that a written notice of intention to make motion combined with or jointly with the proposed motion shall be given in the prescribed form and manner. Therefore, the notice and the proposed motion may either be on separate sheets of paper to be submitted or it may be in one sheet of paper. The mandatory requirement of Section 28(2) is that there should be a notice together with the proposed motion. It has not been disputed before us by learned counsel for the petitioner that the notice-cum proposed motion dated 01.06.2019 fully satisfies the requirement of Section 28(2) of the Act. Therefore, merely because both are not on separate sheets, shall neither invalidate the notice nor invalidate the proposed motion dated 01.06.2019. A composite notice-cum-no confidence motion has also been held to be valid by a division bench of this court in the case of Awadhesh Singh (supra).
17. Thus, we find that notice-cum-no confidence motion filed by 16 members of Zila Panchayat dated 01.06.2019 is neither invalid nor it suffers from any infirmity. Consequently, the consequential letter dated 03.06.2019 sent by the District Magistrate, Hathras to the learned District Judge, Hathras under Section 28(4) of the Act, cannot be said to suffer from any infirmity or illegality.
18. For all the reasons afore-stated, we do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed. However, there shall be no order as to cost.
Order Date :- 17.06.2019 NLY