Allahabad High Court
Adesh Singh Yadav vs Collector/ District Magistrate ... on 16 October, 2019
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 1 Case :- WRIT - C No. - 21 of 2019 Petitioner :- Adesh Singh Yadav Respondent :- Collector/ District Magistrate Bareilly And 5 Others Counsel for Petitioner :- Rajesh Kumar Yadav,Indra Raj Singh,Mangla Prasad Rai Counsel for Respondent :- C.S.C.,Ashok Kumar Rai,Krishna Dutt Awasthi Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
1. Heard Sri Indra Raj Singh, learned counsel for the petitioner, Sri Ashok Kumar Rai, learned counsel for the respondent No.6 and learned Standing Counsel for the State-respondents and perused the record.
2. The controversy in the present case centres around the legality of the notice of no confidence motion issued by the District Magistrate, Barielly in purported exercise of power under Section 15 of the U.P. Kshettra Panchayat & Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 'Adhiniyam, 1961') on 21st December, 2018. By the said notice the District Magistrate, Barielly fixed meeting of the Kshettra Panchayat, Alampur, Jafarabad, District Barielly on 6th January, 2019 to discuss the motion notice which was mooted by more than half members of the Kshettra Panchayat.
3. Learned counsel for the petitioner has drawn our attention to the notice itself which is in the form of an order dated 21st December, 2018 directing for meeting of the Kshettra Panchayat to consider the motion of no confidence. He points out that in the order itself after it has been signed, it has been forwarded for information and necessary action to the Block Development Officer and the necessary action contemplated in the order is that the notice of no confidence motion is to be pasted on the notice board on 22nd December 2018 and further directed the District Panchayat Raj Officer to issue notice by registered letter to all the members of Kshettra Panchayat.
4. Learned counsel for the petitioner has also drawn our attention to page 16 of the writ petition and also the photo copy of the envelop that contained the notice to demonstrate that notice in fact was issued by the registered post on 22nd December, 2018 only.
5. The argument, therefore, advanced by the learned counsel for the petitioner is that in the light of the provisions as contained under the relevant provision of the Adhiniyam, 1961, there has to be a clear 15 days notice for the scheduled meeting of the members of the Kshettra Panchayat. He argues that the notice as contemplated in the provisions of the Adhiniyam, 1961, uses the words 'not less than' and, therefore, in computing the period of 15 days, one has to keep in mind that there has to be a clear 15 days notice. He argues that 15 clear days notice means the date of issuance of the notice and the date on which the meeting scheduled, has to be excluded. He has relied upon the Division Bench judgment of this Court in the case of Kamal Sharma v. State of U.P. and others decided on 5th October, 2013 in Writ- C No.- 9763 of 2013. He has further placed reliance upon another Division Bench judgment of this Court in the case of Kamla Devi v. State of U.P and others, decided on 14th February, 2014 in Civil Misc. Writ petition No.- 41077 of 2012, in which it has been held that if a clear 15 days notice is not there then the notice per se is illegal and is not sustainable and, therefore, even if during pendency of the writ petition, scheduled meeting was permitted to be held and the motion is alleged to have been carried out, it would amount to a nullity. He submits that if the notice itself is bad, the consequential action to the notice is also turned out to be bad.
6. Per contra, the argument advanced by the learned counsel for the contesting respondents is that a form of notice is mere formality and is not mandatory in nature. He argued that intendment of the Legislature as is reflected from the relevant provisions of the Adhiniyam, 1961 is that a person against whom the notice is slated, should have the knowledge of the notice and then those who have participated in the meeting should have also the knowledge of the notice. Whether the notice is pasted on the notice board of the Kshettra Panchayat or sent by the registered post hardly makes a difference. He argues that even otherwise, this Court while entertaining this writ petition had permitted the meeting to be held on the scheduled date and the motion has been carried out as has been stated in the counter affidavit and the petitioner has virtually lost the confidence of the House and, therefore, this Court should not go into the technicality involved in the case and should dismiss the writ petition out-rightly.
7. Having heard learned counsel for the parties and having perused the record, we find that the core issue is the period that has to be provided by the District Magistrate under the provisions of the Adhiniyam, 1961 for scheduling a meeting to consider the no confidence motion as far as the intimation to the person is concerned. In order to appreciate the argument advanced by the learned counsel for the petitioner it is necessary to reproduce Section 15 of the Adhiniyam, 1961 in its entirety. Section 15 of the Adhiniyam, 1961 is runs as under:-
"15. Motion of non-confidence in Pramukh or Up-Pramukh- (1) A motion expressing want of confidence in the Pramukh or any Up-Pramukh of a Kshetra 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 Kshetra 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 Kshetra 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.
(4) ........."
(emphasis supplied)
8. From the bare reading of the aforesaid provision it is clearly revealed that the Legislature intends that there has to be a notice of not less than 15 days, in any case, to the elected members of the Kshettra Panchayat to consider the no confidence motion and such notice has to be sent in a manner as may be prescribed. The rules that govern the field regarding procedure to be followed in the prescribed form for the purposes of the notice as meant under relevant rules are also reproduced hereunder:-
RULES
1. A written notice of intention to make a motion expressing want of confidence in the Pramukh or the Up-Pramukh of a Kshettra Samiti shall be in Form I of the Schedule given below.
2. The notice under clause (ii) of sub-section (3) of Section 15 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 Kshettra Samiti 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 Kshettra Samiti.
SCHEDULE FORM I (Form of the written notice of intention to make a motion expressing want of confidence in the Pramukh/Up-Pramukh of a Kshettra Samiti) To The Collector, .................................
NOTICE Sir, We the undersigned members of the ................. Kshettra Samiti hereby give this notice to you of our intention to make the motion of non-confidence in Sri ............................... the Pramukh/Up-Pramukh of our Kshettra Samiti 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 Kshettra Samiti ........................... is.............
Yours faithfully,
1.
2.
3.
4. Place ........................
Dated ...................196 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 Member 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 .....................
Dated.................,196 Collector ..................
9. From the rules as quoted hereinabove it is clear that the notice has to be sent in the form as prescribed for under the schedule and has to be sent by registered post. Apart from its publication and affixation of a copy thereof on the notice board of the office of the Kshettra Panchayat, the Division Bench of this Court in the case of Kamal Sharma (supra) had the occasion to consider the legal aspect involved in the matter and has compared this provision with the provision as contained under Section 87(A) of the U.P. Municipality Act, 1960 holding it to be pari materia. After detailed deliberation over the subject matter and discussing various authorities relating to the same, the Division Bench vide paragraph 26 of the judgment (supra) has held thus:-
"26. There is no difference in the words "at least" and "not less than". Admittedly, the notice dated 13.2.2013 was dispatched to the elected members on 14.2.2013 by speed post for convening the meeting which was scheduled to be held on 1.3.2013. While computing 15 days period the two terminal dates have to be excluded. Thus 15 days clear notice was not given to the elected members."
10. We notice in this case that the District Magistrate while passed the order on 21st December, 2018 but directed the notices to be issued with the copy thereof being pasted on the notice board on 22nd December, 2018. The question, therefore, is that what is the date of issuance of the notice as contemplated under the relevant provisions of the Adhiniyam, 1961.
11. In our considered opinion, the first date of notice which makes the notice public including the members of the Kshettra Panchayat scheduling a meeting to consider the motion of no confidence is 22nd December, 2018. The date fixed for the meeting is 6th January, 2018. Thus, if we follow the Division Bench judgment (supra) it is clearly borne out that there was only 13 days notice of the scheduled meeting. Thus, the requirement of not less than 15 days notice as contemplated under the provision of Adhiniyam, 1961 has not been fulfilled.
12. The argument advanced by learned counsel for the respondents that the provision of notice is mandatory but the manner in which notice is sent is directory even if so accepted then there has to be not less than 15 days notice. In any event notice is published on 22nd December, 2018. Now, excluding the date of issuance of notice, the date on which the meeting is slated is also excluded, it comes out only 14 days notice. So even if it is accepted that there was an effective notice issued on 22nd December, 2018 with its affixation on notice board, the mandatory requirement of the period for the notice is not fulfilled.
13. Learned counsel for the respondent has, in a submission though relied upon a Division Bench judgment in the case of Praveen Siddiqui v. State of U.P. and others, decided on 6th November, 2017 in Writ- C No. 41600 2017, does not help him either, because in the said case the Court was dealing with the issue of the manner of service of notice. The Division Bench did not discuss about the notice being not less than 15 days. Moreover the Division Bench has not considered another judgment of the concurrent Bench of this Court in the case Kamal Sharma (supra) and also Kamla Devi (supra) and, therefore, in the light of the law a concurrent Bench could not have taken view different from another concurrent Bench and thus, the judgment of the Division Bench does not have a binding force. In the case of Kamla Devi (supra), the Division Bench considered this aspect of the matter and has held that if the notice itself was not as per the mandatory requirement of law, even if the motion is carried out, it will not be held to be legal one. The Division Bench has observed as under:-
"We have considered the ratio of the decisions that have been cited at the bar and we do not find any good reason to defer from the view already taken by several division benches as referred to hereinabove. One of the decisions, namely, Satya Prakash Mani (supra), has also taken into consideration the full bench decision of 1975 in the case of Gyan Singh (supra) as relied upon by Sri Tripathi counsel for the respondent. The decision in the case of Phula Devi (supra) has already held that the provisions are mandatory except for the manner in which the notice has to be sent. Thereafter in Paragraph 30 of the aforesaid judgment in the case of Satya Prakash Mani (supra) also holds that the requirement of 15 days notice is mandatory.
In the instant case, the dispute is not with regard to the proforma of the notice but the period of 15 days clear notice. The respondents have not been able to establish the dispatch of notice prior to 13.8.2012. The pasting of the notice has been clearly denied by the petitioner. In the circumstances, the contention raised that the requirement of 15 days clear notice had not been complied with deserves to be accepted on the facts of the present case."
14. It has further observed by the Division Bench that it is settled principle that parties to a litigation have to be allowed to contest the matter, and determined, on the date when the lis began. If one of the parties succeeds, then he or she has to be put back in the same position that was existing on the date when the lis began. Once it is found that the meeting on 25.8.2012 was convened in violation of the mandatory provision of Section 15(3)(ii), then the resolution passed on the said date has to fall through. The no confidence motion therefore could not have been passed in an invalidly convened meeting and consequently there would be no removal of the petitioner. If the petitioner is not removed then there is no vacancy and as such any notification for subsequent elections and the election of the respondent no. 4, being directly dependent on this contingency has also to fall through.
To our mind such a contingency as involved in the present case, which is peculiar in its nature, arising out of the pendency of the writ petition and the facts aforesaid cannot be subject matter of an election petition as urged by Sri Tripathi. The bar of the constitutional provisions as urged therefore is not at all attracted.
The decision of the apex court in the case of K. Venkatachalam (supra), in the aforesaid circumstances therefore comes to the aid of this Court for exercise of jurisdiction under Article 226 of the Constitution of India and not to the contrary as suggested by Sri Tripathi.
The question of a majority having already voted against the petitioner has to be considered in the background of a valid meeting. As already held hereinabove since the meeting was itself invalid, then the submission of Sri Tripathi that a vast majority having voted against the petitioner, can be of no consequence. In our opinion, the reliefs prayed for by the petitioner are very much entertainable and the petition deserves to be allowed.
15. In view of the above, the writ petition succeeds and is allowed. The order/ notice of no confidence motion scheduling the meeting under the order of District Magistrate dated 21st December, 2018 is hereby quashed and so also any consequential action if it is taken place pursuant to such order/ notice stand quashed.
16. We may clarify that since we have held that notice itself was bad, the provisions as contained under sub-section 12 of Section 15 shall not come in the way of members if they so desire to move another notice of no confidence motion.
17. With the aforesaid observations, the writ petition stands allowed.
Order Date :- 16.10.2019 Atmesh (Ajit Kumar,J.) (Ramesh Sinha,J.)