Allahabad High Court
Awadhesh Singh vs State Of U.P. Thru. Prin. Secy. ... on 12 April, 2017
Author: Sanjay Harkauli
Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 1 Case :- MISC. BENCH No. - 7171 of 2017 Petitioner :- Awadhesh Singh Respondent :- State Of U.P. Thru. Prin. Secy. Panchayat Raj Deptt. & Ors. Counsel for Petitioner :- Mahendra Bahadur Singh,Rakesh Kumar Counsel for Respondent :- C.S.C.,Hemant Kumar Mishra,P,S.Vajpayee Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
This petition brings forth the grievance on behalf of the petitioner impeaching the action of the District Magistrate, Rae Bareilly for convening the meeting for consideration of the No Confidence Motion on 15.4.2017 under the impugned notice dated 30.3.2017 in terms of Section 28 of the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961. The petitioner is the elected Chairman of the Zila Panchayat, Rae Bareilly.
The petition was entertained by us and on hearing the preliminary arguments, the following order was passed on 6.4.2017:-
"A supplementary affidavit has been filed today, which is taken on record.
We have heard Sri Prashant Chandra, learned Senior Counsel for the petitioner, learned Additional Chief Standing Counsel for the respondents no. 1 and 2 and Sri Hemant Kumar Mishra, learned counsel for the respondent no.3.
An impleadment application has been filed by one Prabhat Kumar @ Prabhat Kumar Gupta, a Member of the Zila Panchayat, Rae Bareli and we have heard Sri Anil Tiwari, learned Senior Counsel on his behalf as well. The said application has been entertained in terms of Chapter XXII Rule 5-A of the Allahabad High Court Rules, 1952.
A preliminary objection has been raised with regard to the maintainability of the writ petition without impleading any of the persons who have proposed the No Confidence Motion, which is the subject matter of dispute in the present writ petition and reliance has been placed on the Full Bench Judgment of this Court in the case of Mathura Prasad Tiwari vs. Assistant District Panchayat Officer, Faizabad; 1967 RD Pg. 17.
This petition pertains to an allegation of non-compliance of the procedure of moving a 'No Confidence Motion' against the Chairman of the Zila Panchayat, the petitioner herein, in terms of Section 28 of the U.P. Kshetra Panchayat and Zila Panchayats Adhiniyam, 1961 read with Zila Parishad Rules regarding Motion of No Confidence as notified on 14.12.1962.
Sri Prashant Chandra, learned Senior Counsel has urged that the said 'No Confidence Motion', which is alleged to have been notified to the District Magistrate is not in accordance with the aforesaid Rules inasmuch as it mentions the district of Bareily instead of Rae-Bareily, and it does not indicate any date of the moving of the said intention. He submits that this could not have been otherwise also possible, as, such an issue had been raised at item no.16 in the meeting dated 25.03.2017 itself and, therefore, there cannot be any presumption of moving of such an intention on the same date. He submits that the District Magistrate hurriedly without taking notice of the aforesaid facts and without even examining the objections relating to the moving of the affidavits, which according to the petitioner demonstrated that the signatures on the 'No Confidence Motion' notice were fake, renders the notice for consideration of the 'No Confidence Motion' on 15.04.2017 as invalid. The contention, therefore, is that the meeting convened for the said purpose on 15.04.2017 cannot be held as the entire procedure prescribed and which is mandatory having not been followed, the holding of the very meeting of the 'No Confidence Motion' is unlawful.
Sri Prashant Chandra, learned Senior Counsel has urged that the District Magistrate is under a mandate to scrutinize such infirmities as he is not mere a post office as has been held in the Full Bench decision of this Court in the case of Smt. Sheela Devi vs. State of U.P. and others; 2015 (2) UPLBEC 1176. He further submits that the non-mentioning of the date on the alleged 'No Confidence Motion' notice also vitiates the entire process adopted inasmuch as, in the absence of any date, the calculation of the period of thirty days as prescribed under sub-section (3) of section 28 for holding of such a meeting, cannot be made and, therefore, it would be reasonable to presume and construe that the aforesaid condition does not stand fulfilled. Hence, the issuance of the notice for holding of the meeting on 15.04.2017 would stand vitiated in the absence of any such period available to count the aforesaid intervening period of thirty days. He submits that this is not a mere formality and such a requirement assumes importance and is a mandate of law for the said purpose, which aspect has not been dealt with in the other Full Bench judgment in the case of Vikas Trivedi vs. State of U.P. and others; reported in (2013) 2 UPLBEC 1193.
Replying to the aforesaid contentions, Sri Abdul Moin, learned Additional Chief Standing Counsel for the State and Sri Anil Tiwari, learned Senior Counsel for the intervenor have urged that the petitioner himself has in paragraph 16, 17, 18 of the writ petition as well as in paragraph 7 of the supplementary affidavit admitted the date of the intention and notice of 'No Confidence Motion' as 25.03.2017. In view of such an admission, the contention on behalf of the petitioner that the notice is undated is of no avail. They further contend that the period of thirty days can be very conveniently counted, which has to be done in view of the provisions of Section 28(3)(i), which requires that the convening of the meeting for consideration of 'No Confidence Motion' has to be not later than thirty days from the date on which such a notice of 'No Confidence Motion' under sub-section (2) is delivered to him. They, therefore, submit that once it is established that the notice was delivered to the District Magistrate and the period of thirty days has not yet expired then in that event, the holding of the meeting on 15.04.2017 cannot be said to be vitiated on the basis of a fictional argument, as has been advanced on behalf of the petitioner.
We have considered the submissions raised and what we find is that the date on which the notice has been delivered to the District Magistrate will assume importance to construe as to whether the meeting can be convened on 15.04.2017 or not. For this, we direct the learned Additional Chief Standing Counsel to summon the records from the District Magistrate and place it before us in order to enable us to locate the said date.
Sri Prashant Chandra, learned Senior Counsel prays that the matter be taken up on Monday i.e. 10.04.2017.
Put up on 10.04.2017.
Copy of the order to the learned Additional Chief Standing Counsel for compliance."
The arguments proceeded thereafter on 10.4.2017 and in order to ascertain the correctness of the facts asserted and alleged in the writ petition, the supplementary affidavit filed on behalf of the petitioner as also the contentions raised on behalf of the intervenor as well as the respondent-State, we had also summoned the original records. The following order was passed on 10.4.2017:-
"Heard Shri Prashant Chandra, learned Senior Counsel for the petitioner, Shri Anil Tiwari, learned Senior Advocate alongwith Shri P.S. Bajpai, learned counsel for the caveator, Shri Abdul Moin, learned Addl. Chief Standing counsel for the respondent nos. 1 & 2 & Shri Hemant Mishra, learned counsel for the respondent no.3/Zila Panchayat.
An impleadment application has been filed that has been taken on record.
A supplementary affidavit has been filed today stating therein that the dispatch of notice for the 'No Confidence Motion' has not been made by the proper authority and even otherwise the availability of 15 days clear notice is not established. It is also urged that as per the requirement of Section - 15(3)(ii), the procedure as prescribed for service of notice for holding of a No Confidence Motion is contained in the notification dated 14th December, 1962. Clause - 2 of the said notification specifically provides two modes of service of notice; firstly by Registered Post and secondly by publication and affixation of a copy of the said notice on the notice board of the Zila Parishad (Zila Panchayat).
Shri Hemant Mishra, learned counsel for the Zila Panchayat may file an affidavit by tomorrow clearly stating therein as to whether the notice was pasted and affixed as per the notification dated 14th December, 1962 or not?
The submissions that have been advanced and had been urged were with regard to the date of receipt by the District Magistrate of the intention of the members to move a No Confidence Motion. It is for this reason that we had summoned the records which has been produced by Shri Abdul Moin, learned Addl. Chief Standing Counsel today before us. The said records do indicate that there is no date in the notice which was moved before the District Magistrate but according to the letter dated 28th March, 2017 addressed to the District Judge, a mention has been made of having received the said intention on 27th March, 2017 and therefore, fixing of the date on 15th April, 2017, according to the learned Addl. Chief Standing Counsel, is well within the period as prescribed under Section - 28(3) of the 1961 Act.
It is during the course of arguments and after having perused the supplementary affidavit filed today, the submission relating to affixation of notice has to be considered and for which the affidavit of the respondent - Zila Panchayat is necessary.
Put up tomorrow i.e., 11.04.2017.
The records be retained by the learned Addl. Chief Standing Counsel and shall be produced tomorrow again."
In response to the aforesaid order, the Zila Panchayat has filed an affidavit sworn by Ramphal, the Head Clerk of the Zila Panchayat that has been taken on record.
An application for impleadment has also been filed by the petitioner for impleading five of the members of the Zila Panchayat for the purpose of maintaining the writ petition as the petitioner had not impleaded any of the members of the Zila Panchayat who had proposed and initiated the ''No Confidence Motion' against the petitioner.
An application for impleadment and intervention has been filed by Sri Prabhat Kumar @ Prabhat Kumar Gupta praying that he should be heard as he is one of the signatories to the notice intending to bring about the ''No Confidence Motion' against the petitioner.
Both the impleadment applications, one filed by the petitioner and the other by the intervenor, have been disposed off by us today by separate orders.
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."
The Rules on which reliance has been placed contained in the Notification dated 14.12.1962 are extracted herein 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."
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.
Sri Prashant Chandra submits that the very initiation and presentation of the notice is highly doubtful, inasmuch as, the two notices which are the basis of the information to the petitioner to file this petition, appear to be signed by adopting two different methods of signatures, one singular and the other in duplicate. The first notice is Annexure - 3 to the writ petition addressed to the District Magistrate but the name of the District has been mentioned as ''Bareilly' instead of ''Rai Bareli'. Secondly, the said notice is undated and bears 33 names that are typed out of whom the member mentioned at Sl. No.5 Gita Giri and the member mentioned at Sl. No. 32 Vinay Kumar have not signed the said notice. Single signatures are endorsed against 31 names. Thus the notice is addressed to the District Magistrate of a different district but it does not bear any date and is not signed by two of the persons named in the notice. Consequently, the said notice was purportedly moved under the signatures of 31 members.
He has then invited the attention of the Court to Annexure - 5 to the writ petition which is a copy of the same notice having the same defect of mentioning the district of Bareilly and is undated, but the same contains double signatures of 33 persons, scores out one of the signatures with the addition of two other names. He therefore submits that such a notice was neither in the Form as prescribed, the signatures are doubtful and not only this, according to him, 11 of the members had also denied their intention to move the ''No Confidence Motion' even prior to the issuance of the impugned notice for convening the meeting. This according to Sri Prashant Chandra had been through affidavits that were dispatched by registered post as the said affidavits were not received by the District Magistrate. The allegation is that the affidavits were dispatched on 29.3.2017 prior to the issuance of the impugned notice. This fact has however been denied by the learned Counsel for the State as per the record available. As would be unfolded later on, the contention of the petitioners also is that the Collector on a preliminary enquiry had found himself that four of such members had filed their affidavits to the said effect but the Collector had erroneously not proceeded to examine the allegations about the other seven members.
The aforesaid defects in the Form and the manner of presentation of the notice according to Sri Prashant Chandra vitiates the notice for convening the meeting as it is in non-compliance and in violation of 1962 Rules referred to here-in-above.
Referring to Form - I of the Schedule appended to the 1962 Rules quoted here-in-above, Sri Prashant Chandra submits that since the notice is addressed to the District Magistrate of Bareilly and not Rae Bareilly, the same is not addressed to the appropriate authority and additionally, the date not being mentioned in the notice, the computing of the period for convening the meeting not later than 30 days from the receipt of such notice would be impossible, inasmuch as if the date of the notice is not known then the counting of the period of 30 days cannot be attempted at all.
To further substantiate his submissions, Sri Chandra has invited the attention of the Court to the arguments that had been advanced and which have been noted in the order dated 6.4.2017 passed by us quoted here-in-above. He has referred to that if a resolution had been passed on 25.3.2017 then there was no reason for the dispatch of a notice of ''No Confidence Motion' which appears to have been manipulated by addressing it to an incorrect authority and being undated. He asserts that this hurried form of preparation of notice clearly reflects that the requirement of moving an intention for ''No Confidence Motion' is not established and the ingredients of a valid notice are not borne out from the record. He therefore contends that the procedure for moving the ''No Confidence Motion' notice has been completely violated and in view of the aforesaid discrepancies the convening of the meeting is vitiated. He has relied on the judgment of a Division Bench of the Bombay High Court in the case of State Bank of India, Bombay and another v. Sohanlal Babulal Jain [1996 (2) Maharashtra Law Journal page 647 para 10]. The submission is that the defect being material and not a formal defect, the notice is invalid.
The notice is not accompanied by a copy of the Motion intended to be moved.
His next submission is that the District Magistrate even if he has received such a notice, he has failed to carryout the enquiry to satisfy himself about the fulfillment of the requirements of a valid notice when 11 members had also complained of not having moved the intention to convene the meeting of a ''No Confidence Motion' against the petitioner. For this, reliance has been placed on the Full Bench judgment in the case of Smt. Sheela Devi vs. State of U.P. and others [2015 (2) UPLBEC 1176 paragraphs 9, 10, 11, 13, 14, 15, 19, 20 and 24].
Sri Prashant Chandra submits that the District Magistrate is obliged to conduct the enquiry even in a summary manner and which according to the allegations had been initiated but the same was limited to the extent of enquiring into the affidavits of four persons and not the other seven about whom the same assertions had been made. According to Sri Chandra, this would have made a clear difference, inasmuch had 11 persons who had expressed their non-involvement in the moving of the notice if excluded from the total number of persons, the same would fall short of the minimum majority as required under Section 28 of the 1961 Act.
He submits that the undisputed facts are that there are 51 elected members and therefore a minimum of 26 members have to sign the notice for moving the ''No Confidence Motion'. For this, he urges that even assuming that the notice bearing 35 names was there before the District Magistrate, then the two names which have been added later on by hand, namely, Chhotey Lal and Savita at Sl. Nos.34 and 35 have to be excluded as they were not part of the original notice tendered and this appears to be a manipulation. Two of the members, namely, Gita Giri and Vinay Kumar had not signed the first or the second notice and therefore this brings down the number to 31. The District Magistrate himself found that four of the signatories had resiled and denied their intention to associate with the ''No Confidence Motion' or having put their signatures thereon. Thus, the figure further reduces to 27 members. The District Magistrate having failed to make any enquiry into the rest of the 7 members out of 11 who had denied their association with the notice, has materially affected the proceedings, inasmuch as the District Magistrate has mala fidely with a pre-meditate and deliberate move not examined the status of the other 7 members as that would have brought down the figure of the members moving the notice to 20 only. Thus, by this simple calculation, the notice could not have been entertained for the purpose of convening the meeting by the District Magistrate. The District Magistrate therefore deliberately did not invoke his discretion in making this summary enquiry about all the 11 members for arriving at the satisfaction of the fulfilment of the requirement of the presentation of a valid notice of a ''No Confidence Motion'. This according to him is clearly in teeth of the Full Bench judgment of Smt. Sheela Devi (supra) and which is mandatory for the purpose of convening the meeting.
The third argument raised by Sri Prashant Chandra is that after having decided to convene the meeting, the District Magistrate was required to mention the date on which he had received the notice from the members which is nowhere indicated in the notice which has been dispatched for convening the meeting. The notice of intention of the members does not bear the date on which it was moved. Accordingly, the notice issued by the District Magistrate on 30.3.2017 which is supposed to be in Form - II as extracted here-in-above does not comply with the mandatory provisions of the 1962 Rules. In addition to this, Sri Chandra further submits that the notices were not dispatched by the competent authorized person as the authorized person was not available and the officer who has dispatched the notice could not have done so as per the Rules. The dispatch by registered post is therefore invalid and secondly, there is a total non-compliance of the notices dispatched by the District Magistrate having not been affixed by publication on the notice board of the office of the Zila Panchayat. Thus, not only the Form but also a total non-compliance of the procedure is established. He submits that he is fortified now in his submissions by the affidavit filed by Sri Ramphal, the Head Clerk of the Zila Panchayat, who has clearly stated that the notice had not been affixed or pasted on the notice board of the Zila Panchayat as directed by the District Magistrate.
Sri Chandra submits that the circumstances in which this took place are also evident from the fact that the Collector had initially issued the notice on 30.3.2017 directing the Executive Officer of the Zila Panchyat, Rae Bareilly (Upper Mukhya Adhikari) to dispatch the notice to the members by registered post and also to post it on the notice board. The aforesaid order was received on 30.3.2017 at 5 P.M. as endorsed on the said notice (Annexure - 1 to the writ petition), but the said officer to whom it was addressed was already on leave since 24.3.2017 and is still on leave on account of his ailment. The said Officer therefore did not issue any notice in compliance thereof. On coming to know of the aforesaid fact, the Collector dispatched another Order by way of a Memo on 30.3.2017 itself addressed to the Assistant District Election Officer (Panchayat and Municipalities), Rae Bareilly authorizing him to dispatch the notices by registered post as also by posting it on the notice board.
It was therefore the duty of such Officer to have got pasted the notice on the notice board, but now the admitted position is that the said notice was not posted at all and affixed as per the Rules, as is established from the averments contained in the affidavit of Sri Ramphal filed on behalf of the Zila Panchayat. The contention is that not only is there a non-compliance of the Rules but is also non-compliance of the directions issued by the Collector. The same being mandatory as per the Rules, convening of the meeting on 15.4.2017 is thus vitiated and should be forestalled.
He has also submitted that so far as the presence of 11 members disputing their association with the intention is concerned, a videography was also conducted on 28.3.2017 and the Press has also widely reported the same, but the District Magistrate has conveniently avoided any such examination thereby violating the procedure prescribed in law and in view of the Full Bench decision in the case of Sheela Devi (supra). He has also relied on an interim order dated 21.11.2012 in the case of Smt. Usha Bharti v. State of U.P. and others, Writ Petition No.9654 (MB) of 2012 to support his submissions.
Sri Prashant Chandra has also urged that the mentioning of the date of notice and also in accordance with the Forms prescribed is mandatory, inasmuch as 15 days clear notice to the members is required from the date of the dispatch of notice. He submits that once the notice has not been affixed and there is no clinching evidence about the receipt of the notice by the members there cannot be any presumption of dispatch in accordance with law, hence it is not possible to count 15 days clear notice to the members for the meeting. For this, he has relied on the Division Bench judgment in the case of Kamla Devi v. State of U.P. and others, Civil Misc. Writ Petition No.41077 of 2012 decided on 14.2.2014 to support his submissions. The argument is that if there is no material to calculate 15 days of intervention between the date of dispatch and the date of meeting, then such non-fulfilment also vitiates the holding of the meeting.
Sri Abdul Moin, learned Additional Chief Standing Counsel in response for the State submits that in view of the decisions which have been cited at the Bar, it is evident that the mandatory requirements of Section 28 are already fulfilled and the District Magistrate has satisfied himself to the genuineness of the notice of intention to move the ''No Confidence Motion' whereafter he has issued the notices for convening the Meeting of the House. He has placed before the Court the records to urge that firstly there is no doubt about the date on which the said notice of intention was delivered to the District Magistrate, inasmuch as the notice by the members duly signed which incorporates the intention of no confidence as well, was received by him on 27.3.2017 and he immediately on 28.3.2017 had dispatched a letter to the District Judge as per Section 28 (4) that is as follows:-
"isz"kd] dysDVj jk;cjsyhA lsok esa] ek0 ftyk U;k;k/kh'k jk;cjsyhA i=kad% 370@vfo'okl izLrko&v/;{k ftyk iapk;r@2017 fnukad 28 ekpZ]2017 fo"k;% v/;{k] ftyk iapk;r esa vfo'okl izdV djus lEcU/kh izLrko ij fopkj djus gsrq cSBd ds lEcU/k esaA egksn;] d`i;k i= ds lkFk layXu lnL;] ftyk iapk;r Jh izHkkr dqekj vkfn ds vfo'okl izLrko dk lUnHkZ xzg.k djus dk d"V djsa] ftlds vUrxZr dqy 33 ftyk iapk;r lnL;ksa }kjk orZeku v/;{k] ftyk iapk;r Jh vo/ks'k flag ds fo:) vfo'okl izLrko fnukad 27-03-2017 dks v/kksgLrk{kjh ds le{k izLrqr fd;k x;k gSA bl lEcU/k esa lknj voxr djkuk gS fd m0iz0 {ks= iapk;r rFkk ftyk iapk;r vf/kfu;e] 1961 dh /kkjk&28 mi/kkjk&3¼,d½ esa ftyk iapk;r v/;{k ds fo:) vfo'okl izLrko dh cSBd ftyk iapk;r dk;kZy; esa vkgwr fd;s tkus dk izkfo/kku gSA bl vf/kfu;e dh /kkjk&28 dh mi/kkjk&4 esa vfo'okl lEcU/kh cSBd dh v/;{krk fd;s tkus ds lEcU/k esa fuEufyf[kr izkfo/kku fn;s x;s gS%& **dysDVj] ftys ds ftyk U;k;k/kh'k ls ,slh cSBd dh v/;{krk dh O;oLFkk djsaxsA izfrcU/k ;g fd ftyk U;k;k/kh'k Lo;a v/;{krk djus ds ctk; vius v/khuLFk fdlh nhokuh U;k;kf/kdkjh ¼flfoy tqfMf'k;y vkQhlj½ dks] tks nhokuh U;k;k/kh'k ¼flfoy tt½ ls fuEu Js.kh dk u gks] ,slh cSBd dh v/;{krk djus dk vkns'k ns ldrk gSA** blh rjg vfo'okl izLrko ds fo:) cSBd dh frfFk fu/kkZfjr djus ds fy, mDr vf/kfu;e dh /kkjk 28 dh mi/kkjk ¼3½ esa fuEufyf[kr izkfo/kku fn;s x;s gS%& 1- rn~ijkUr dysDVj ftyk iapk;r dh ,d cSBd mDr izLrko ij fopkj djus ds fy, fy, ftyk iapk;r ds d;kZy; esa vius }kjk fuf'pr fnukad dks cqyk;sxk vkSj ;g sfnukad mi/kkjk ¼1½ ds v/khu mls uksfVl fn;s tkus ds fnukad ls 30 fnu ds ckn dk u gksxk rFkk 2- fuokZfpr lnL;ksa dks ,slh cSBd dh de ls de 15 fnu dh uksfVl ,slh jhfr ls nsxk] tks fu;r dh tk;A rn~dze esa vuqjks/k gS fd v/;{k ftyk iapk;r jk;cjsyh ds fo:) vfo'okl izLrko ij fopkj djus ds fy, ftyk iapk;r lnL;ksa dh cSBd fnukad 15-04-2017 dks iwokZUg 11%00 cts ftyk iapk;r dk;kZy; esa vkgwr dh x;h gSA d`i;k cSBd dh v/;{krk djus gsrq lgefr nsus dk d"V djsaA layXud&;FkksifjA g0 28-3-17 ¼vuqt dqekj >k½ dysDVj jk;cjsyh"
This notice had been dispatched after having satisfied himself on 27.3.2017 when the notice which also incorporates the intention was presented to him in his office and a videography was also conducted on 27.3.2017. At this stage, it may be pointed out that Sri Abdul Moin on the basis of instructions has categorically stated that no Videography had been conducted on 28.3.2017 apart from what had been done on 27.3.2017 as alleged by the petitioner about the 11 members. He therefore contends that the date on which the notice was delivered is undoubtedly 27.3.2017 and it was delivered to the District Magistrate of Rae Bareilly and not to the District Magistrate of Bareilly. Thus, any such error in the description of the name of the district is not correct and even otherwise, the notice which was received on 27.3.2017 contains a correction of the name of Bareilly as Rae Bareilly as per the original records. Not only this, the petitioner himself has raised his objections before the District Magistrate of Rae Bareilly with regard to the same ''No Confidence Motion' and therefore any such argument on the strength of the incorrect description of the district is of no avail.
He submits that the notice moved by the members for the ''No Confidence Motion' was therefore perfectly in order and the District Magistrate exercised his discretion for his satisfaction of the notice being presented by more than half of the elected members which according to him are not less than 33 and which is much above the halfway mark of 51 as prescribed under Section 28 of the 1961 Act. The same notice was signed again and therefore it contains two signatures of the same person.
He then submits that the petitioner-Awadhesh Singh on 28.3.2017 moved an application before the District Magistrate stating therein that many of the members have accompanied him to the office of the District Magistrate with affidavits alleging that they have resiled back and that they never intended to give any support to the ''No Confidence Motion'. The said affidavits also declare that any affidavit or notice of ''No Confidence Motion' should be treated to be a nullity and no action should be taken on the strength thereof. Sri Moin submits that these affidavits controverting the earlier affidavits filed were ''4' in number and not ''11'. He further submits that there is no evidence to indicate that 11 members had arrived to dispute the moving of the notice and the allegation on behalf of the petitioner that a videography was conducted on 28.3.2017 also is absolutely false and is not supported by any material on record except bald allegations. He has further pointed out from the record that the letter dated 28.3.2017 addressed to the petitioner originally indicated accompanying 10 affidavits but the figure ''10' has been scored out and substituted by ''4'. The said 4 affidavits alongwith the letter were considered, and even assuming for the sake of arguments that these 4 affidavits ought to be believed, then too also more than half of the elected members have signed on the notice of the intention to move the ''No Confidence Motion' which according to the learned Additional Chief Standing Counsel comes to 29 out of 33 signatories. He further submits that the allegation that 2 signatories have been added later on at the time of enquiry can be of no avail to the petitioner, inasmuch as the notice at the time of presentation can also be signed by any more of the members who intend to join in the said proceedings.
Sri Abdul Moin also contends that once the date of the deliverance of the notice is established as 27.3.2017 as indicated above, then there is clear 15 days notice prior to the date of holding of the meeting. He has further clarified that the notices were dispatched on 30.3.2017 by registered post by the Assistant District Election Officer who was duly authorized by the District Magistrate to do the needful in absence of the Upper Mukhya Adhikari. He submits that the said letter was received by the Assistant District Election Officer on the same date who is available in the office of the District Magistrate himself. He submits that so far as the endorsement of the date 31.3.2017 at 1 P.M. on the top of the memo of 30.3.2017 (Annexure - 1 to the supplementary affidavit dated 6.4.2017) is concerned, the said endorsement is of the office of Upper Mukhya Adhikari and not of the Assistant District Election Officer. The said memo dated 30.3.2017 was received in the office of the Zila Panchayat on 31.3.2017 and not in the office of the Assistant District Election Officer.
As stated earlier, the said memo was received on 30.3.2017 by the Assistant District Election Officer itself and on receipt thereof, the Assistant District Election Officer dispatched the notices by registered post at 6 P.M. onwards on the same day for which he has relied on the receipts of the post office that are in the record placed before the Court. He also submits that the videography of 27.3.2017 contained in a Compact Disc (CD) is also available on record.
He further submits that so far as the District Magistrate is concerned, he had completed all formalities to ensure that the notices were dispatched and received by the members for the holding of the meeting and is made known to them. Apart from this, he has urged that it is a matter of fact that the said proceedings were also made known to the public at large through newspaper reports and at the same time, there is no error in the procedure having been followed and any lapse on the part of the Zila Panchayat official in not pasting the notice would not invalidate the convening of the meeting. He has also adopted the legal submissions advanced by Sri Anil Tiwari, learned Senior Counsel for the intervenor and has relied on the same decisions.
Sri Anil Tiwari, learned Senior Counsel appearing for the intervenor Sri Prabhat Kumar @ Prabhat Kumar Gupta has urged that the Full Bench decision in the case of Smt. Sheela Devi (supra) also spells out that the District Magistrate is not required to conduct any detailed enquiry or investigation to assess the evidentiary value of any incident in an elaborate manner. He has simply to satisfy as to whether the requirements of Section 28 are fulfilled or not and to comply with the mandatory part of the procedure prescribed to ensure that there is substantial compliance of the procedure prescribed in law either with regard to receiving of the notice of ''No Confidence Motion' or the dispatch of the notice for convening of the meeting. He submits that both these conditions are satisfied in the present case and he with the aid of the Full Bench decision in the case of Vikas Trivedi v. State of U.P. and others [(2013) 2 UPLBEC 1193] urges that even if some of the procedural conditions under the Notification of 1962 have not been adhered to strictly, the same would not invalidate the meeting as the said provisions are directory. To substantiate his submissions he has relied on the 5-Judges Full Bench decision in the case of Sardar Gyan Singh v. District Magistrate, Gonda and others [AIR 1975 Allahabad page 315] followed by the Division Bench judgment in the case of Jivendra Nath Kaul v. State of U.P. and others [1991 (9) LCD page 186] and Brijendra Bahadur Singh v. District Magistrate, Gonda and others [1991 (9) LCD 606]. He submits that affixation and posting of notice is not mandatory and even if the notice was not posted on the notice board, all the members have been duly notified and are under a valid notice to attend the meeting, hence the same would not vitiate the convening of the meeting. He submits that no member has come forward complaining of not having been informed of the date, time and place of the holding of the meeting and in such a situation, the dispatch of notice on 30.3.2017 fulfills the requirement of 15 days clear notice excluding the date of dispatch and the date of holding of the meeting.
Sri Tiwari has urged that the petitioner has tried his best to create a dent and fluctuate the number of the members intending to move the motion by placing documents in the writ petition and the supplementary affidavit that are not in accordance with the Rules available and the pleadings of mala fide against the District Magistrate have been framed so as to set-up a defence on the ground of a pre-meditated and deliberate move to oust the petitioner on account of the recent change in Government. Sri Tiwari submits that these allegations are unfounded and majority of the members having lost confidence in the petitioner on account of his malfunctioning were compelled to move the ''No Confidence Motion' the proceedings whereof have to be tested on the floor of the House on 15.4.2017 that cannot be interfered with on any of the grounds that have been raised in this writ petition. He contends that if a Head Clerk of the Zila Panchayat has filed an affidavit the same should not be treated to be an affidavit on behalf of the Zila Panchayat as no Officer has authorized the Head Clerk to file the affidavit. Apart from this, he submits that there appears to be a manipulation as the petitioner happens to be the Chairman of the Zila Panchayat and the Head Clerk has filed an absolutely incorrect affidavit. It is urged that even assuming for the sake of arguments that the notice had not been actually posted, there is no valid explanation as to why it was not done, inasmuch as if the Executive Officer was not available then there are other officials who could have been contacted or the District Magistrate could have been informed about the same. This conspicuous and deliberate default in performing duty by the Head Clerk should not be read as an advantage in favour of the petitioner so as to treat the convening of the meeting to be not based on the correct procedure of law.
He has further relied on whatever has been submitted by Sri Abdul Moin, learned Additional Chief Standing Counsel on the strength of the records that have been produced before the Court to urge that there is a substantial compliance of the procedure prescribed in law and in the absence of any miscarriage of the procedure, the proceedings cannot be said to be vitiated so as to forestall the ''No Confidence' meeting. The District Magistrate has satisfied himself about the veracity and contents of the notice of ''No-Confidence' and has then convened the meeting after complying with the due procedure of law.
Having heard learned Counsel for the parties, we may at the very outset clarify the position of law on the strength of the decisions cited at the Bar to the effect that the Full Bench decision in the case of Sardar Gyan Singh (supra) has categorically explained the distinction between a mandatory provision and a directory provision. The aforesaid decision was in relation to the provisions of U.P. Municipalities Act, 1916 in respect of a ''No Confidence Motion' which provisions are almost para-materia with the procedure prescribed under the 1961 Act. Paragraphs 9 and 10 of the said judgment are extracted hereunder:-
"9. A careful analysis of Sub-section (3) would make it clear that the first part which requires the District Magistrate to convene meeting of the Board for considering the motion of no-confidence against the President is mandatory. The District Magistrate is required to perform a public- duty in convening a meeting of the Board for consideration of the motion at the office of the Board on the date and time as fixed by him, he has no choice in the matter. He has to convene a meeting on a date within 30 and 35 days from the date of presentation of the motion to him. The District Magistrate is further enjoined to perform a public duty of se ling notice of the meeting to the members; this again is a mandatory requirement of law which must be strictly complied with. The second part of the sub-section lays down the manner required to be followed in sending notices to the members. It lays down that notice of the meeting shall be sent by registered post to every member of the Board at his place of residence. The essence of this provision is to give information to the members to enable them to avail opportunity of participating in the meeting convened for the purpose of considering the no-confidence motion. The first part of the section requiring the District Magistrate to convene meeting and to send notices to the members is mandatory, any disregard of that provision would defeat the very purpose of the meeting, but the manner of service of notice and publication of the same is directory in nature, therefore a substantial compliance of the same would meet the requirement of law.
10. The purpose of service of notice by registered post and publication of the notice otherwise is to ensure that members should get adequate notice, of the meeting to enable them to participate in the debate over the no-confidence motion at the meeting. That purpose is not defeated if the notice is sent to the members not by registered post but by other methods and seven clear days are given to the members. The legislature never intended that unless notice is sent by registered post to the members the proceedings of the meeting would be vitiated. The legislature, no doubt, stressed that if the two steps as laid down in the sub-section are taken by the District Magistrate, i.e., notice of the meeting is sent to members by registered post at their place of residence and further if it is published in the manner directed by the District Magistrate, a presumption would arise and every member shall be deemed to have received the notice of the meeting. In that case it will not be open to any member to contend that he did not receive notice of the meeting or that the meeting was illegally constituted for want of notice. The purpose of sending notice can be achieved even without sending the same by registered post. There may be a case where the postal system may be disorganised and it may not be possible to send, notice by registered post. In that situation the District Magistrate may send notice to members of the Board by special messenger giving them seven clear days before the date of the meeting. In that event the legislative intent and purpose requiring sending of notice would be fully achieved, although in that event the rule of presumption as laid down in the sub-section would not be available and if a challenge was made by a member that no notice was received by him, the deeming provision will not be applicable and it would require proof that the notice even though sent by ordinary post or by special messenger was actually served on the member. The emphasis on sending notice to members by registered post and for publication of the same in the manner directed by the District Magistrate, is directed to invoke the presumption as contemplated in the last sentence of the sub-section. In the absence of presumption, it is always open to a party to prove that notice though sent in a different manner was served on the members. In view of the above discussion. I am of the opinion that even if the notice is not sent to the members by registered post the meeting cannot be held to have been illegally convened provided it is proved that the notice was received by the members and they had knowledge of the meeting."
In our considered opinion, the said ratio was again appropriately reiterated while applying it to the office of Chairman of a Zila Panchayat under the 1961 Act as held in the case of Jivendra Nath Kaul (supra). The Division Bench in that case was directly considering the impact of non-fixation of notices by posting on the notice board which is evident from the recitals contained in paragraphs 2, 12, 18, 27, 28, 29, 31 and 32 of the said decision. We are not reproducing the said paragraphs to unnecessarily burden this judgment, but the crux of the ratio is, that mere fact that the notice was not pasted on the notice board of the Zila Panchayat would not invalidate the convening of the meeting as the purpose of issuing notice is to intimate the members of the date, time and place of the meeting well in time so that they may come prepared to take part in the meeting. The judgment clearly states that a man can have knowledge of a meeting even if he reads a notice which was served upon one of his colleagues. In such circumstances, the person cannot even come and say that he was not served a notice individually, inasmuch the intention of giving notice is to inform the members of the Panchayat of the date, time and place in which a motion of no confidence is to be considered. The decision cited by Sri Prashant Chandra in the case of State Bank of India (supra) of the Bombay High Court would not be attracted as the said decision was not concerned with any such requirement as involved in the present case relating to the compliance of procedure under the 1961 Act. The direct decisions which are closer to the controversy have already been indicated above and hence no benefit can be availed of by the petitioner on the strength of the judgment of the Bombay High Court. Apart from this, the distinction between form and content being mandatory or directory has again been explained in the Full Bench decision of Vikas Trivedi (supra) which also relies on the earlier Full Bench decision of Sardar Gyan Singh (supra). Accordingly, the tendering of the notice, it's deliverance to the District Magistrate and the issuance of the notice for convening the meeting which are mandatory have all been complied with substantially on the facts of the present case as would be evident from the findings recorded by us here-in-after.
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.
The absence of the date on the notice signed by the members therefore does not in any way establish a doubt about the date of the notice as urged by the learned Counsel for the petitioners. To the contrary, there is clinching material on record to indicate that the notices duly signed by the members containing the recital of the intention to move the motion had been delivered to the District Magistrate on 27.3.2017 whereafter he also enquired into the allegations of the petitioner on 28.3.2017 itself and then dispatched the notices on 30.3.2017. The District Magistrate has also looked into the objections raised by the petitioner on 28.3.2017. The objections were clearly with regard to the notice of the intention of ''No Confidence Motion' that had been received by the District Magistrate on 27.3.2017 extracted here-in-above as disclosed in the letter dated 28.3.2017 dispatched to the learned District Judge. The contention on behalf of the petitioner that on one hand the notice which was delivered contained single signatures, whereas the same notice is stated to contain two signatures of the Members who have allegedly signed it. In this regard, the contention of the learned Additional Chief Standing Counsel is clearly to the effect that when the Members had appeared before the authority they were made to countersign once again to ensure that they had in fact moved the Motion. The existence of double signatures therefore does not in any way improve the case of the petitioner. The increase of two of the signatures at Sl. Nos.34 and 35 also does not in any way vitiate the process, inasmuch as if two more Members had moved to put their signatures on the said notice and were in existence when the District Magistrate satisfied himself about the correctness of the same, then no doubt can be expressed about their intention, more so when none of the members who have signed the notice have come forward before this Court to contest the moving of the Motion or holding of the meeting on 15.4.2017.
As per the decisions on the issue of Form and contents of the notice, the judgments referred to here-in-above therefore support the stand taken by the respondents as well as the intervenor that there is a substantial compliance of the dispatch of notice as also the contents of the intention of ''No Confidence Motion' to be brought about for consideration in the meeting to be held on 15.4.2017. The dispatch of the notices for holding the meeting had to be made through the Assistant District Election Officer who can be authorized by the District Magistrate as there is no such bar under the 1962 Rules. Any defects as alleged are in relation to the directory conditions and not to the mandatory conditions under the procedure prescribed. Once the fact that the notices were delivered on 27.3.2017 is established as found here-in-above, then the holding of the meeting on 15.4.2017 is clearly within 30 days of the date of deliverance of the notices to the District Magistrate. The notice by the District Magistrate to convene the meeting has been clearly dispatched on 30.3.2017. Thus on a simple calculation there is 15 days clear notice from the date of dispatch to all the members. The decision as relied on by the petitioner in the case of Kamla Devi (supra) therefore would not at all be attracted as the said procedure of at least 15 days clear notice has been observed by the District Magistrate.
Sri Prashant Chandra vehemently urged that the 1962 Rules were not under consideration in the decisions that have been cited and the words used in Clause 2 of the 1962 Notification are that the notices shall be dispatched by registered post which shall also be affixed by publication on the notice board. The use of such words being mandatory and having not been considered in the decisions aforesaid would vitiate the procedure. As noted above, we cannot accept this argument and it has to be rejected, inasmuch as the judgment in the case of Jivendra Nath Kaul (supra) which was an issue relating to the ''No Confidence Motion' against the Chairman of a Zila Parishad (Panchayat) had directly and substantially considered the same 1962 notification Rules in relation to a ''No Confidence Motion'. We do not find any reason to differ from the view so taken which in turn relies on the logic and the reason given in the decision in the case of Sardar Gyan Singh (supra) which is a 5-Judges Full Bench decision. The petitioner on the strength of the affidavit of Ramphal, the Head Clerk of the Zila Panchayat has tried to establish that there was no compliance of the procedure. This affidavit is of no consequence in view of the ratio of the decision in the case of Jivendra Nath Kaul (supra). Even otherwise, the affidavit is by the Head Clerk without any authorization by any responsible officer of the Zila Panchayat and he appears to have failed in his duty to have informed the District Magistrate or the Assistant District Election Officer as to why he was unable to post the notice on the notice board by affixation at the Zila Panchayat Office. His failure in duty on the excuse of an absence of the ordering authority cannot be accepted, inasmuch as the posting of the notice was clearly a ministerial act and the Head Clerk after having received the orders from the office of the District Magistrate and the Assistant District Election Officer was duty bound to affix it on the notice board of the Zila Panchayat.
On facts as has been disclosed by the learned Additional Chief Standing Counsel, we do not find that the allegations made by the petitioner about 11 members having paraded to express their disassociation with the moving of the ''No Confidence Motion' are established and supported by any evidence but even assuming for the sake of arguments that such 11 members had expressed any such intention, the same would have required an extensive and elaborate enquiry of evidence by either side which was not a permissible procedure for the District Magistrate to enter upon in view of the Full Bench decision in the case of Sheela Devi (supra). The satisfaction of the District Magistrate of receipt of a valid intention of the Motion was available on 27.3.2017 itself. The District Magistrate on being satisfied had informed the District Judge the very next day about the proposed meeting and then had proceeded to issue the notice on 30.3.2017. All this comprises of the satisfaction on the part of the District Magistrate which cannot be said to be perverse or tainted by any mala fides. The satisfaction had been arrived at and stood supported by the fact that the four affidavits which were later on tendered by the petitioner on 28.3.2017 also did not in any way establish the fact of having reduced the number of members below than that of the requisite majority. Thus, there is substantial compliance of the mandatory provisions that could not be faulted with by the submissions that have been advanced on behalf of the petitioner.
Apart from this, the matter would be placed before the House on 15.4.2017 where the Motion would be tested on the strength of the members who would vote either for or against the Motion about which adequate notice has already been given.
Consequently, for all the reasons given here-in-above, we are satisfied that the District Magistrate has not committed any error in convening the meeting on 15.4.2017.
The petition lacks merit and is accordingly rejected.
The original records that were handed over by the learned Additional Chief Standing Counsel have been returned to him.
Order Date :- 12.4.2017 lakshman [Sanjay Harkauli, J.] [Amreshwar Pratap Sahi, J.] Court No. - 1 C. M. Application No. Nil of 2017 in re:
Case :- MISC. BENCH No. - 7171 of 2017 Petitioner :- Awadhesh Singh Respondent :- State Of U.P. Thru. Prin. Secy. Panchayat Raj Deptt. & Ors.
Counsel for Petitioner :- Mahendra Bahadur Singh,Rakesh Kumar Counsel for Respondent :- C.S.C.,Hemant Kumar Mishra,P,S.Vajpayee Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
This application has been filed praying for an impleadment as the applicant is a proper and necessary party in the present writ petition. The applicant claims himself to be a Member of the Zila Panchayat and is also one of the signatories to the notice moved for bringing about the ''No Confidence Motion' against the petitioner.
Having heard Sri Anil Tiwari, learned Senior Counsel for the applicant, Sri Prashant Chandra, learned Senior Counsel for the petitioner, learned Standing Counsel for the State and Sri Hemant Kumar Mishra for the Zila Panchayat, we find that the applicant is a proper and necessary party and therefore he is entitled to oppose this petition. This application is therefore being entertained in view of provisions of Chapter XXII Rule 5-A of the Allahabad High Court Rules, 1952.
The application accordingly stands disposed off.
Order Date :- 12.4.2017 lakshman [Sanjay Harkauli, J.] [Amreshwar Pratap Sahi, J.] Court No. - 1 C. M. Application No. Nil of 2017 in re:
Case :- MISC. BENCH No. - 7171 of 2017 Petitioner :- Awadhesh Singh Respondent :- State Of U.P. Thru. Prin. Secy. Panchayat Raj Deptt. & Ors.
Counsel for Petitioner :- Mahendra Bahadur Singh,Rakesh Kumar Counsel for Respondent :- C.S.C.,Hemant Kumar Mishra,P,S.Vajpayee Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
This application has been moved by the petitioner after a preliminary objection was taken on behalf of the respondents that proper and necessary parties have not been impleaded including those who are signatories to the ''No Confidence Motion'.
The said preliminary objection is recorded in our order dated 6.4.2017 passed in the writ petition.
Having heard learned Counsel for the parties, we find that this impleadment application only proposes to implead 5 persons out of the alleged 33 persons who had signed the notice of the intention to move the ''No Confidence Motion' presented before the District Magistrate. This impleadment application therefore does not fully comply with the view expressed by the Full Bench in the case of Mathura Prasad Tiwari vs. Assistant District Panchayat Officer, Faizabad [1967 RD page 17].
Nonetheless no further orders are required to be passed for issuing notices to the proposed respondents, inasmuch as firstly the petition has been opposed by one of the signatories to the ''No Confidence Motion', namely, Sri Prabhat Kumar @ Prabhat Kumar Gupta whose impleadment application we have allowed and we have heard Sri Anil Tiwari, learned Senior Counsel on his behalf, and secondly the writ petition itself has been dismissed by us today by a separate judgment.
The application accordingly stands disposed off.
Order Date :- 12.4.2017 lakshman [Sanjay Harkauli, J.] [Amreshwar Pratap Sahi, J.]