Allahabad High Court
Haji Mohammad Hanif vs State Of U.P. And Ors. on 19 December, 1997
Equivalent citations: (1998)2UPLBEC841, 1998 ALL. L. J. 912, 1998 A I H C 3655, (1998) REVDEC 304, 1998 ALL CJ 1 579, (1998) 2 UPLBEC 841
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. The order contained in notice dated 26.8.1997, issued by the Collector, Moradabad, under Section 15(3) of U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961 (The title of this Adhiniyam has been substituted by U.P. Act No. 9 of 1994 as "U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961.") (hereinafter referred to as 1961 Adhiniyam), convening the meeting of no confidence motion was originally challenged by means of this writ petition. By an order dated 19.9.1997 the no confidence motion was permitted to be considered as scheduled, but the declaration of result was restrained by this Court. Subsequently, the meeting having been held and the same has also been assailed, since the same was the subject matter of decision of this writ petition.
2. Sri Ravi Kiran Jain, learned Senior Counsel, assisted by Sri R.K. Awasthi, learned Counsel for the petitioner, has challenged the same on three grounds; (1) The provision of Section 15(3) of 1961 Act being mandatory and the notice having not been accompanied by a copy of proposal of motion the meeting was void, (2) The provision relating to the conduct of such election, as provided in Section 15(3) read with the relevant rules having not been followed and complied with, with regard to. the conduct of the election, the result of the meeting can not be sustained, and (3) That the manner in which the election was conducted did not maintain the secrecy, which is the life blood of democratic process and, as such, the result is liable to be cancelled.
3. In support of his contention he has elaborated his arguments with reference to the relevant facts namely that admittedly, the notice did not accompany the proposal of no. confidence. The presiding officer did not read over the notice and the proposals. He had kept Ballot boxes at the open place and had kept two Ballot boxes and ballot papers were not signed by him and that the Ballot papers were casted in two boxes, one with green paper and the other with red paper signifying against or for the motion and thus the secrecy was violated.
4. Sri Murlidhar, learned Senior Counsel, appearing on behalf of respondents, on the other hand opposes the said contention of Sri Jain and contended that if there is substantial compliance of provision even though the mandatory, the same would not render the out come invalid. Secondly, he contended that there was no infraction of the procedure for carrying out of no confidence motion in terms of Section 15 read with the relevant Rules. Thirdly, he contended that the Secrecy code was not violated. While elaborating his argument Sri Murlidhar, pointed out that the notice itself contained the name of the persons who had signed the proposal for no confidence motion and the exact proposal which was submitted by them was quoted in the notice itself. There being no other information for the purposes of no confidence motion, the petitioner had never been deproved of any information. Therefore, technical violation can not be said to be non-compliance of the said provision. He also contended that it is apparent. from the minutes of the meeting translation whereof, has been furnished by Sri Jain, the entire procedure has been followed step by step and there has been no infraction. He also contended that the ballot papers were signed and the boxes were kept at the separate secret enclosures invisible by others while on had casted their votes. Even if it is taken into two boxes it has not violated the secrecy code.
5. Sri Virendra Kumar, Learned Standing Counsel, had adopted the submission of Sri Murlidhar and contended that the minutes having been carried out by the Judicial Officer, the presumption should be drawn that all formalities have been properly complied with when it is so apparent from the minutes itself.
6. Drawing inspiration from the case of Ram Nath Tripathi v. Commissioner, Lucknow and Ors., (1992) 2 UPLBEC 1181 (DB) (LB), Sri Jain submits that the provision of Section 14(3) has been held to be mandatory. But the fact remains that in the said case in Paras 17, 18 and 19 it has been observed :
"17.The original record produced before us indicates that a notice dated 27.2.1992 of an intention to move a motion of no confidence was given to the Collector by 65 members of the Kshettra Samiti, Shahabad, Janpad Hardou This notice is accompanied by a motion of no confidence which is also signed by the same number of members below the words "Sadasyagan. Kshettra Samiti, Shahabad Janpad, Hardoi". The names of all the members who have signed the notice as also the motion of no confidence, are clearly discernible. Two of the members have placed their thumb marks on the notice but their names have been indicated immediately below or on the side of the thumb marks.
18. The original record also contains the copies of the notice of the motion which have been sent to various members alongwith the notice dated 2.2.1992 issued by the Collector, Hardoi by which it was indicated that a meeting of the Kshettra Samiti, Shahabad had been convened for 23.3.1992 at 11.00 A.M. for consideration of the no confidence motion but neither the copy of the motion nor the copy of the notice contains the names of the members who had signed the notice of the motion. A copy of the notice served on the petitioner has already been filed alongwith the writ petition. The names of the members, who had given notice of no confidence and who and also signed the motion, have not been indicated in the said notice. This is also borne out by the original record produced before us as the copies of the notice of intention to move the motion of no confidence as also the motion issued to the members available on the original record do not contain the names of the members who had signed the motion as also the notice.
19. The contention of the learned Counsel for the petitioner is that since the names of the members of Kshettra Samit, who had signed the notice of intention to move the motion of no confidence against the petitioner or also the motion itself had not been indicated on the copy of the notice sent to him, there was a violation of the provisions of Section 15(3) read with Rule 2 of the Rules made under the Act for the consideration of motion of no confidence. It is also contended that the requirement indicated in Form II that "a copy of the motion is annexed hereto" was also not complied with as the notice sent to the petitioner cannot be said to be a copy of the original motion, as the names of the persons signing the motion had not been indicated in the copy."
7. Thus we see that in the said case though the name of the persons who had signed the intention were discernible but their names were not mentioned in the notice itself and neither the intention had accompanied the notice. The contention that was raised in the said case was that the name of the persons signing the intention was not indicated in the notice and copy of motion having not been annexed there was infraction of Section 15(3) read with Rule 2 of the Rules framed under the Act, for consideration of motion of no confidence.
8. Rule 2 of the said Rule provides for service of notice in Form-II of the schedule in terms of Clause (ii) of Section 15(3) of the said Act. The form prescribed is re-produced below:
"Form-II (Form of the notice of a meeting of the Kshettra Samiti to be held for the consideration of the non-confidence motion against the Pramukh/ UP Pramukh) To, Sri Members of..............Kshettra Samiti, District.
Notice This notice is hereby given to you of the meeting of............Kshettra Samiti which shall be held at the office of the said Kshettra Samiti on.......(date) at.......(time) for consideration of the motion of non-confidence which has been made against Sri.....the Pramukh/UP-Pramukh of the said Kshettra Samiti.
A copy of the motion is annexed hereto.
Place......
Date.......
Collector........"
9. A perusal of the said Form shows that the notice is given in respect of a particular Kshettra Samiti to be held on the place, date and time for consideration of no confidence motion against a particular person of the said Samiti. A copy of the said motion was annexed to the said notice. This indicates that information with regard to the intention is also to be communicated alongwith the notice. In the present case notice, which is Annexure-T to the petition shows that the same discloses the names of the persons who had signed the intention and as well as the intention itself. Instead of annexing copy of the intention separately the intention itself has been quoted alongwith the name of the persons signing the intention. This, in fact furnishes an information which was intended to be furnished by annexing a copy of the motion. It can not thus be said that there has been any infraction or that the spirit behind the procedure prescribed by Section 15(3) read with Rule 2 of the said Rules has not been obeyed. The object and purpose of furnishing a copy of motion was aimed at furnishing of information with regard to the persons signing the intention of no confidence. The said object and purpose is fully conveyed and therefore, simple non-annexation of the copy of motion would not being in any invalidity in the procedure. Infact, what may have been contained in two leaves of paper, have been condensed into one.
10. Section 15 provides in Sub-section (1) that "a motion expressing want of confidence" has to be carried in accordance with the procedure laid down in Sub-section following Sub-section (1). Sub-section (2) requires notice of intention of no confidence is to be delivered to the Collector in the prescribed form, signed by atleast half of the total number of members of Kshettra Samiti, for the time being, together with a copy of proposed motion by any one of the members signing the said notice. In the present case admittedly, '34' members, who had signed the intention had presented themselves before the Collector for delivering the same. Thus on the facts there was no infraction with regard to Sub-section (2). However, it has also not been so argued by Sri Jain that there was any infraction of this Sub-section.
11. Sub-section (3) provides that after receipt of such proposal/intention, the Collector shall :
"(i) convene a meeting of Kshettra Samiti for the consideration of the motion at the office of the Kshettra Samiti 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 members of the Kshettra Samiti of not less than fifteen days of such meeting in such manner as may be prescribed."
12. So far as the time factor provided in the said Sub-section is concerned the same has not been assailed. The only contention that was ought to be raised was that this notice requires accompanying of the said proposal. Sub-section(3) as such does not speak of the form of notice nor does it spell out that such notice has to accompany a copy of the intention. But by virtue of Rule 2 framed therefor specifically provides a form for the said purpose. The said form requires annexation of a copy of the motion. Reading the said provisionstogether in the case of Ram Nath Tripathy (supra), it was held that the provisions contained in Sub-section (i) and (ii) of Sub-section (3) are mandatory. It is mandatory in the sense that the same has to be complied with. It has not been spelt out in the said decision that annexation of a copy of motion is mandatory. The very observation of the Court in Para 18 itself points out that in the said case nothing was disclosed in the notice itself and as such there was infraction of the said mandatory provision . A plain reading of the reasoning given in the said decision does not lead us to infer that the Court had held that annexation of a copy of the motion alognwith notice issued by the Collector is mandatory. Inasmuch as neither Section 15(3) nor Rule 2 provides that copy of motion is to accompany with such notice whereas it has prescribed a particular form. If instead of annexing a copy of the motion the contents of motion is quoted in the notice itself and in that event it can not said that the same is not in conformity with the provision of Section 15(3) read with Rule 2. When the section or the Rule has not mentioned anything about annexation of copy of the motion itself the reference in the form can not be said mandatory as to render the notice invalid, simply because it is not annexed with the copy of motion. While it had conveyed the entire information with regard to the motion.
13. In order to appreciate the extent of the ratio decided with regard to the aspect to which it is mandatory it is necessary to refer to papers 20 and 21 of the said decision :
"20. Section 15(3) is in mandatory form; It consists of two parts. The first part says that the Collector shall convene a meeting of Kshettra Samiti for consideration of the motion. It further provides that the meeting shall be convened at the office of the Kshettra Samiti on a date appointed by the Collector. This date cannot be later than 30 days from the date on which the notice is delivered to the Collector under Sub-section (2) of Section 15.
21. The second part provides that the Collector shall give notice of the meeting to all the members of the Kshettra Samiti in such manner as may be prescribed. Both the parts are mandatory in character. Since the form in which the notice is to be issued to the members of the Kshettra Samiti has been prescribed by the Rules made by the State Government, the requirement that the notice shall be in that form, is also, therefore, mandatory."
14. Thus it is apparent that the form is mandatory to the extent it requires conveyance of information, not with regard to its literal formation. The very information, which could have been furnished by annexing a copy of motion, i! is incorporated in the notice itself, it satisfies the requirement of annexing a copy of motion in the body of the notice itself. The aim and object is to furnish whole information to the person concerned and the same having been so conveyed substantially" by the notice impugned . In the present case, there is no reason to hold that the mandatory requirement as held in the case of Ram Nath Tripathi (supra), has not been complied with. Infact from a reading of the notice, as contained in Annexure-1 we are satisfied that there has been substantial compliance of Section 15(3) read with Rule 2 of the said Rule.
15. From the copy of translation of the minutes of the meeting in which motion was carried on, it appears that all formalities which are required to be adhered to have been followed. The meeting was presided over by a Judicial Officer. He had recorded details of the procedure that has been followed. The same has been disputed by Sri Jain. On the other hand the same has been supported by Sri Murlidhar. Affidavits have been filed in support of respective contentions. There is nothing in the affidavit to enable us to hold that the minute that has been recorded could be disbelieved. No material is available to us to disbelieve the Judicial Officer who had record the minutes. Then again on the basis of contention and counter contentions it is not possible for this Court to enter into such disputed questions of fact. We do not find any reason to disbelieve the correctness of the minutes recorded by Judicial Officer, which has been supported by an affidavit filed on behalf of the respondents.
16. Now so far as the question of secrecy is concerned, two versions are available before us. While Mr. Jain contends that the ballot boxes were kept at an open place, Sri Murlidhar contends that it was in the closed enclosure. This is also a disputed question of fact in which we do not propose to enter. If the two ballot boxes are used that does not mean that secrecy code is violated. This point also does not appeal to us. In the case of Pandit Vinod Raj Saran Dubey v. State of U.P. and Ors., (1994) 3 UPLBEC 2024 (DB), the case of Ramnath Tripathi (supra), was considered and distinguished. In the said case time factor provided in Section 15(3) was not adhered to in respect of certain nominated members who were given notice of less than 15 days under Section 28 of U.P. Kshettra Samiti and Zila Parished Adhiniyam, 1961, Section 28 of the said Act contains indentical provision as are contained in Section 15. Inas- much as Section 15 deals with the motion of no confidence against Pramukh and UP Pramukh, wheareas Section 28 deals with that of Adhyaksh and Upadhyaksh. While interpreting the indentical provision in the case of Pandit Vinod Raj (supra), it was held :
".... In our opinion though provisions with regard to the notice required under Section 28(3) (ii) are mandatory but, in the situation like in the present case and in view of the provisions of Sub-section (5) of Section 28 of the Act only substantial compliance could be legitimately expected from respondent No. 3. In such circumstances a right balance may be struck to avoid inconvenience of vitiating the entire proceedings by rigidly adhering to the provisions and convenience may be opted by departing from its tenor. In other words, the provisions of law have to be interpreted in a manner to bring a workable harmony. Law never contemplates or expects to do something impossible. In the present case as the new members were given oath after fixing of the date of meeting, naturally they could be given 15 days notice and only a substantial compliance may be reasonably held sufficient. The question may be considered from a different angle too. What was the object of the notice and whether it has been achieved or not. In our opinion, it intimates the date fixed to the members of Zila Parishad to participate in meeting and as this notice is accompanied by copy of the motion, members become aware of the allegations made therein and get themselves equipped to participate in the debate. In our opinion the notice served on respondents 20 to 24 achieved all the aforesaid purposes and even the substantial compliance was sufficient and this view may be taken in the special facts and circumstances of the present case, without reducing the mandatory requirement of notice under Section 28(3)(ii) of the Act. The result of proceeding of no confidence motion should not be allowed to vitiate merely on technical formality which may not have even a trival impact on the merits of the result. Thus the submission of the learned Counsel for the petitioner that the proceedings vitiated for want of clear 15 days notice, cannot be accepted."
17. The said decision relied on Section 98(2) of the said Act and has pointed out that by reason thereof even if there is any technical defect the same stood cured because of the two reasons; (1) that majority of members were not disqualified and that notifications could have been issued even subsequently. In the said case it was further held that the notice which was the subject matter contained all those facts, which could be necessary to be convened. Therefore decision in the case of Ram Nath Tripathy (supra), was distinguishable, on the facts and were not applicable thereto. In the said case it was further observed that majority of the members had voted for no confidence motion. In the present case as well the same is the situation.
18. For all these reasons we have not been able to persuade ourselves to interfere with the writ petition. The writ petition, therefore, fails and it is accordingly dismissed. There will, however, be no order as to costs. As prayed certified copy may be furnished within 2 weeks on usual terms.