Allahabad High Court
Smt. Shashi Yadav vs State Of U.P. And 5 Others on 22 February, 2018
Bench: Krishna Murari, Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 21 Case :- WRIT - C No. - 1994 of 2018 Petitioner :- Smt. Shashi Yadav Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Arvind Kumar Singh,Shri Ashok Khare Counsel for Respondent :- C.S.C.,Digvijay Singh,Mr Mahesh Chand Hon'ble Krishna Murari,J.
Hon'ble Ajay Bhanot,J.
[Per: Hon'ble Ajay Bhanot, J.]
1. The petitioner was elected Pramukh of Kshetra Panchayat Jalesar, Tehsil Jalesar, Etah, in the year 2015. The Kshetra Panchayat is a local body constituted and governed by the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 'the Act'). The Act in turn has been promulgated and the local body has been constituted in adherence to the mandate of Part IX of the Constitution of India.
2. Some members of Kshetra Panchayat, District-Etah, resolved amongst themselves to table a motion of no confidence against the petitioner. The said intent to move a vote of no confidence was reduced to writing, in the shape of a written notice of intention dated 01.01.2018. The said written notice of intent to make the motion of no confidence dated 1.1.2018 was caused to be delivered to the Collector, Etah to requisition the meeting to consider the motion. The Collector upon receipt of the written notice of intent convened a meeting to consider the motion of no confidence on 22.1.2018. In this regard, the Collector issued a notice dated 4.1.2018 to the members of the Kshetra Panchayat, intimating the date, time and place of the meeting.
3. The petitioner has laid a challenge to the said written notice of intent to make the motion of no confidence dated 1.1.2018 and the notice of the Collector dated 4.1.2018 convening the meeting to consider the vote of no confidence, in the instant writ petition.
4. Heard Sri Arvind Kumar Singh, learned counsel for the petitioner, Shri I.S. Tomar, learned Standing Counsel for the State-respondents and Shri M.C. Singh appearing for the respondent No.6.
5. Learned counsel for the petitioner Sri Arvind Kumar Singh opened his challenge to the orders impugned in the writ petition, by initially raising two submissions. Firstly it was contended that out of 75 elected members of the Kshetra Panchayat Jalesar, District Etah, only 59 members had taken the oath of office prescribed by law. The remaining 16 members of the Kshetra Panchayat Jalesar, District Etah had not taken any oath or affirmation of office as prescribed by law. Consequently, the said 16 members of the Kshetra Panchayat Jalesar were not entitled to requisition the meeting of no confidence and nor can they lawfully vote in the proposed motion of no confidence.
6. The second submission of learned counsel for the petitioner was that the written notice of intention to make the motion dated 01.01.2018, was signed by only one member namely, respondent No.6. A valid written notice to make the motion, requires the signatures of at least half of the total elected members of the Kshetra Panchayat. The notice is illegal being violative of Section 15(2) of the Act. The Collector Etah could not have convened a meeting of Kshetra Panchayat to consider the vote of no confidence on the foot of the said written notice of intent. Hence, the notice dated 4.1.2018 issued by the Collector convening the meeting is illegal.
7. In opposition, learned counsel for the respondent no.6 contended that the petitioner has not brought material documents on the record of the writ petition. Learned counsel for the respondent No.6 drew our attention to the endorsement in the written notice of intention dated 01.01.2018 that the affidavits of 46 members in support of the proposal for no confidence are attached to the notice. The said affidavits of the 46 members in support of the motion of no confidence are not a part of the writ petition. Learned counsel for the respondent No.6 thereafter produced the said affidavits.
8. Undoubtedly, the failure on part of the petitioner to bring the said affidavits sworn by the 46 members, in the record of the writ petition warranted a dismissal of the writ petition. It is the duty of every petitioner/litigant to come with clean hands making a fair, complete and truthful disclosure of all facts and documents, before he can invoke the extraordinary jurisdiction of this Court.
9. Confronted with such facts and affidavits, Sri Arvind Singh, learned counsel for the petitioner, submitted that the said affidavits were not available with the petitioner at the time of filing of the writ petition. The explanation was not convincing. But in the interest of justice, we decided to hear the matter on merits.
10. The record necessary for a decision is now complete once the counsel for respondent No.6, produced the affidavits of the 46 members, which were annexed to the written notice of intent to move the motion. The matter is being decided finally with the consent of parties.
11. Sri Arvind Singh, learned counsel for the petitioner was provided with the said affidavits. Upon perusal of the said affidavits, Sri Arvind Singh, learned counsel for the petitioner, admitted to the factum of the said affidavits of 46 members being annexed to the written notice of intention to make the no confidence dated 1.1.2018. Sri Arvind Singh, learned counsel, however, caveated the admission by submitting that some of the members denied making signatures on any written notice of intent. Such members have sworn affidavits to this effect, which are part of the writ petition.
12. Learned counsel for the petitioner lastly contended that the impugned notice of intention to make the motion taken on its face, is not in the prescribed form. He showed the discrepancies between the notified form of the notice and impugned written notice of intention dated 1.1.2018. According to the learned counsel counsel for the petitioner, the form of notice is mandatory and any deviation thereof would invalidate the said written notice. He relied on a judgment of this Hon'ble Court rendered in the case of Arti Vs. State of U.P. And others, reported at AIR 2017 All 157.
13. Per contra, the learned counsel for the respondent No.6 as well as learned Standing Counsel refuted the arguments of the learned counsel for the petitioner and submitted that there was compliance of Section 15(2) of the Act. In their submission, more than half number of elected members, which is the requisite statutory strength to requisition a meeting of no confidence, had signed the written notice of intention. There was reliable material in the record before the Collector to ascertain the intention in writing of more than half of the elected members to requisition the meeting. The form of notice is directory. The Collector had lawfully convened the meeting to consider the vote of no confidence. The learned counsel for the respondent No.6, also relied on the judgment of this Court in the case of Arti (supra).
14. We have heard learned counsel for the parties. We propose to structure the judgment in the following manner:
A) Consideration of written notice of intention submitted by the members to the Collector to requisition the meeting of no confidence and the order convening the meeting, in the light of the facts, the statutory provisions and the case law in point, followed by a composite summing up.
(B) The legal consequences of members not having subscribed to the oath of office or any affirmation in regard thereof in accordance with law.
(C) The legal consequences of the affidavits submitted by three members of Kshetra Panchayat denying support to any written notice to make a motion of no confidence.
15. The no confidence motion in a Pramukh moved by members of such Kshetra Panchayat is governed and regulated by Section 15 of the Act. The Act provides for the procedure of no confidence in meticulous detail, from the point of formation of intention by members to express no confidence to reducing the same to writing. This is followed by the requisition by the members for a meeting of no confidence to the Collector, who in turn convenes the meeting. Thereafter, the procedure provides for various steps till the tabling of the motion and the vote thereon. The final steps pursuant to a motion having been carried successfully against a sitting Pradhan are also detailed therein. However, the following provisions of the Act would be relevant for the controversy at hand.
"15(1) A motion expressing want of confidence in the Pramukh or any of a Kshetra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
15(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.
15(3) The Collector shall thereupon:-
(i) convene a meeting of the Kshetra Panchayat for the consideration of the motion at the office of the Kshetra 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 Kshetra 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."
"2(19) Prescribed" means prescribed by the Act or by any rule made thereunder."
16. The written notice of intention by the members to make the motion contemplated under Section 15(2) was moved on 1.1.2018. One of the signatories to the motion namely, respondent No.6 delivered it to the Collector. The notice dated 1.1.2018 along with the annexures thereto constituted the material on the basis of which the Collector convened the meeting to consider the vote of no confidence.
17. The impugned notice dated 1.1.2018 being a central issue in the controversy is reproduced hereunder:
vuwlwph izi=&1 2¼{ks= iapk;r½ ds izeq[k ;k mi izeq[k esa vfo'okl dk izLrko izdV djus ds izLrko ds vfHkizk; ds fyf[kr dk izi=A lsok esa] dysDVj] tuin ,VkA uksfVl egksn;] ge tyslj 2¼{ks= iapk;r½ ds v/kksgLrk{kjh lnL;] ,rn~ }kjk viuh 2¼{ks= iapk;r½ ds izeq[k ;k ;k mi izeq[k Jherh 'k'kh esa vfo'okl dk izLrko izdV djus ds vius vfHkizk; dk ;g fyf[kr uksfVl vkidks nsrs gS vkSj blds lkFk izLrkfor vfo'okl ds izLrko dh ,d izfr Hkh layXu djrs gSA 2& 2¼{ks= iapk;r½ ds rLrkef;d lnL;ksa dh dqy la[;k 75 gSA LFkku&tyslj fnukad 1-1-2016 Hkonh;
g0 viBuh;
1& dqynhi lu vkQ Jh jktsUnz flag] okMZ u0 32 lnL; {ks= iapk;rA
fuoklh& jke jk;iqj csjuh@,VkA
uksV& 46 {ks= iapk;r lnL;ksa
ds vfo'okl izLrko ¼gsrq 'kiFk i= layXu½
lR;izfrfyfi
18. The said notice contains a written recital of the intent of the members to bring the vote of no confidence against the petitioner and annexed thereto is a copy of the proposal of the no confidence. Signature of one member, namely, respondent No.6, Kuldeep, is affixed below the aforesaid recital (on the same page). In the opposite margin to the aforesaid signature, on the same page, is a written endorsement that the affidavits of 46 members to make the no confidence motion are annexed to the said written notice.
19. The said assertion in the notice dated 1.1.2018 regarding the affidavits of 46 members to make the motion of no confidence is not traversed in the writ petition. There are no pleadings in the writ petition denying the fact of the aforesaid endorsement in the notice dated 1.1.2018. Neither have the contents of the said affidavits of 46 members been denied specifically in the writ petition.
20. The failure to deny the said assertions in the notice dated 1.1.2018 in the writ petition is reinforced by the admission of the learned counsel for the petitioner. As stated earlier, learned counsel for the petitioner admitted to the aforesaid affidavits being annexed to the written notice dated 1.1.2018. Both these facts would admit to the correctness of the said recitals in the notice dated 1.1.2018. Further, the affidavits which form on part of the notice of intention to move the no confidence motion and duly annexed to the aforesaid written notice of intention to make the no confidence motion, were admittedly in the knowledge of the petitioner.
21. We accordingly hold the duly sworn and signed affidavits of the 46 members, form an integral part of the written notice of intention to move the no confidence. The said document is a composite one and has to be read as a whole along with the aforesaid annexures.
22. Thus considered, the following facts are established. The written notice of intention to make the motion of no confidence dated 1.1.2018 discloses the explicit intent of 47 members of Kshetra Panchayat Jalesar to table the vote of no confidence against the petitioner. The said written notice of intention to make the motion of no confidence is found to be signed by 47 members of Kshetra Panchayat, Jalesar, Etah.
23. The next issue is whether the said written notice of intention to make the motion of no confidence submitted by members is vitiated since it is not in the prescribed form and whether the prescribed proforma for such notice is mandatory.
24. In exercise of powers under Section 237 of the Act read with Section 15(2) and Section 15(3)(ii) of the Act, the following rules relating to the form in which a written notice of intention to make the motion of no confidence in Pramukh or Up-Pramukh will be given by the members of a Kshetra Samiti and for prescribing the manner in which the Collector shall give notice of the said motion to the members of Kshetra Samiti:
"1. A written notice of intention to make a motion expressing want of confidence in the Pramukh or the Up-Pramukh of a Kshetra 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. Kshetra 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 Kshetra Samiti at his ordinary place of residences. It shall also be published by affixation of a copy thereof on the notice board of the office of the Kshetra Samiti."
25. In the schedule there are two forms, Form I and Form II. Form II was under consideration in Vikas Trivedi (supra). Form I is relevant to the present case. For facility of reference Form I of the Schedule, i.e., the notified form of written notice of intent to requisition the meeting of no confidence is reproduced hereunder:
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 Kshetra Samiti) To, The Collector, .....................
Sir, We the undersigned members of the.............Kshetra Samiti hereby give this notice to you of our intention to make the motion of no-confidence in Sri............................., the Pramukh/Up-Pramukh of our Kshetra Samiti and also annex hereto a copy of the proposed motion of no-confidence.
2. The total number of members, who for the time being constituted the Kshetra Samiti.................................is...................................
Yours faithfully,
1.
2.
3.
4. Place.................
Date..................20
26. A perusal of the prescribed form of the notice, shows that in literal terms such notice would cater for signatures of only four members in the written notice of intention to make the motion of no confidence. The prescribed form of the notice does not provide for signatures of the rest of the members, nor does it contain any advisory for such contingency. A literal adherence to the prescribed form of notice would produce an absurdity as no more than four members can make their signatures to such notice. This is incompatible with the statutory requirement of at least half of the elected members signing the notice.
27. This argument can be considered from various other aspects. The case where the written recital of intent to bring the motion of no confidence is reflected on the first page. However, the number of members subscribing to the notice are so large that the signatures spill over into a number of pages. Another case of a notice, where the names along with the respective signatures of members cause the notice to extend into multiple pages. Such notices cannot be invalidated merely because they run into several pages, each of which does not contain the written intent to make the no confidence motion.
28. The prescribed form of written notice to bring the motion of no confidence under Section 15(2) of the Act is not capable of literal compliance. In fact, a literal compliance of the prescribed form of the notice would cause a breach of substantive provisions of Section 15(2) of the Act. The prescribed form of notice in schedule gives general guidance as to form while the statute provides the specific mandate as to substance.
29. There was divergence of judicial opinion in regard to interpretation of similar provisions of no confidence in other municipal statutes, which occasioned the constitution of a five judges Full Bench in the case of Gyan Singh Vs. District Magistrate, Bijnor, reported at AIR 1975 All. 315 (FB) (Five Judges). The issue in consideration in the case of Gyan Singh (supra) was the interpretation of Section 87A (3) of the Municipalities Act, 1916. While considering the import of Section 87-A (3) of the said Municipalities Act, the Full Bench considered the two parts of Section 87-A(3) independently. The first part which required the District Magistrate to convene the meeting was held to be mandatory whereas the second part which lays down the manner required to be followed in sending the notice was held to be directory. The paragraphs 7, 8, 9 and 18 of the judgment in the case of Gyan Singh (supra) can be quoted with profit as under:
""7. Sub-section (1) of Section 87-A ensures that a motion expressing no-confidence against the President shall be made only in accordance with the procedure laid down in the sub-sections. The procedure for presenting the motion of no-confidence is contained in Sub-section (2). Sub-section (3) makes provision for convening meeting and for giving notice of the meeting to the members of the Board. Sub-section (3) is in two parts. The first Part lays down that after a notice of intention to move a motion of no-confidence as required by Sub-section (2) is presented to the District Magistrate together with a copy of the proposed motion, he shall convene a meeting for consideration of the motion to be held in the office of the Board and for that purpose he has to fix a date and time which should not be earlier than 30 days and not later than 35 days from the date on which the notice may have been delivered to him. After the District Magistrate has fixed the time, date and place for the meeting, he is required to give notice to members of the Board about the time, date, place and purpose of the meeting to enable them to be present at the meeting convened for considering the motion of no-confidence. The second part of the sub-section lays down the manner of sending notices to the members, it requires the District Magistrate to send notice to the members by registered post at their place of residence containing information about the date, time and place of the meeting at least seven clear days before the date of the meeting. The District Magistrate is further required to cause publication of the notice in such other manner as he may deem fit. He may direct the publication of notice by pasting the same an the Notice Board of the Municipal Board or by publication in the discretion of the District Magistrate but whatever manner he may adopt for publication of the notice the procedure must be complied with. If both these steps are taken, that is, the notices are sent to members by registered post to their place of residence and publication is done in the manner as directed by the District Magistrate, then a presumption would arise as contemplated by the last part of the sub-section that every member shall be deemed to have received the notice.
8. 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 sending 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.
9. 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. I (sic) 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."
Referring to earlier judgments of this Court, following was laid down in paragraph 18:
"18. The above discussion shows that the preponderance of the Judicial opinion is that the second part of Sub-section (3) of Section 87-A is directory, its literal compliance is not necessary. A substantial compliance in regard to service of notice of the meeting for consideration of the motion of no-confidence on the members will be sufficient and any literal non-compliance of the said provision will not invalidate the meeting or the motion of no-confidence which may be adopted at the said meeting. In view of the above discussion I am of the opinion that the second part of Sub-section (3), of Section 87-A of the Act laying down manner for sending the notice to the members of the Board is directory, while the first part of the said sub-section requiring the District Magistrate to convene a meeting and to send notices to the members is mandatory. It would be sufficient compliance of the directory provision of this sub-section if notice is served on the members not by registered post but by any other mode and in that situation the notion of no-confidence which may be carried at the said meeting cannot be nullified on the ground of any literal non-compliance of service of notice by registered post."
30. On the issue of interpretation of Section 15 of the Act too the judicial opinion was divided. The issues in contention were whether provisions of Section 15 of the Act were directory or mandatory or whether certain parts of the said section were mandatory while remaining parts were directory. The conflict of opinion came to a head, when in the case of Ram Nath Tripathi Vs. Commissioner Lucknow Division, Lucknow and others (1992) 2 UPLBEC 1181, it was held that requirement of notice in prescribed form along with its enclosures in complete format is mandatory, while in Krishna Jaiswal Vs. State of U.P. (2005) 2 AWC 1732, this Hon'ble Court opined that the same was directory. The divide of opinion was clear enough to cause a reference to a Full Bench in the case of Vikas Trivedi Vs. State of U.P. and others, reported at (2013) 2 UPLBEC 1193. Approving and relying upon the law laid down by the Full Bench of this Court in the case of Gyan Singh (supra), this Court interpreted the provisions of Section 15 (3) of the Act read with Rule (2) Form II. After exhaustive consideration of the provisions of the statute, intention of legislature, principles of interpretation of statutes and judicial authorities in point, the Full Bench in the case of Vikas Trivedi (supra) held as under:
"74.........................In the present case, Section 15(3) provides issue of notice in the manner as prescribed. The manner of sending notice is prescribed in Rule 2 and form-2. The judgment of the Apex Court in Raza Buland Sugar Company's case (supra) is applicable in full force and in view of clear ratio of the above judgment, it cannot be said that manner of sending notice in prescribed proforma along with annexures is mandatory, breach of which shall vitiate the entire proceeding. The proceeding of no confidence motion shall be proceeded with if there is substantial compliance of the provisions of Rule-2 read with Form-2.
75. At this juncture a note of caution is required to be given. All provisions of the statute are required to be complied with. It is useful to quote paragraph 5-052 of De-Smith Judicial Review 6th Edition in which while dealing with mandatory and directory statutes, following was observed:-
"5-052. A second reason for the tangle in this area is the use of the terms "mandatory" and "directory"; the latter term is especially misleading. All statutory requirements are prima facie mandatory. However, in some situations the violation of a provision will, in the context of the statute as a whole and the circumstances of the particular decision, not violate the objects and purpose of the statute. Condoning such a breach does not, however, render the statutory provision directory or discretionary. The breach of the particular provision is treated in the circumstances as not involving a breach of the statute taken as a whole. Furthermore, logically, a provision cannot be mandatory if a court has discretion not to enforce it."
76. The provisions of Rule 2 read with Form-2 are also statutory provisions which are required to be complied with and there is no discretion in the authorities or they are not free to disregard the same at their whims. If the notice, which is sent by the Collector does not substantially comply with the requirements, the proceeding may be vitiated, similarly when the notice substantially comply with the provisions, the action may survive. This can be explained by giving illustration. Take an example where Collector after receiving notice for no confidence motion along with proposal convenes a meeting and issue a notice to the members which does not indicate that meeting is fixed for consideration of no confidence motion against which office bearers, obviously the said notice cannot be said to be substantial compliance. Another example of non compliance shall be when notice does not mention even the date of meeting. The Court has to look into as to whether there is substantial compliance, and the proceeding will be allowed not to be vitiated only when the Court is satisfied that there is sufficient compliance of the manner in which notice has been sent.
70. As noted above, Section 15 of the 1961 Act is a statutory provision recognising the right of elected members to bring motion of no confidence against the Pramukh. The Collector is entrusted with public duty to issue notice. As noted above, the Apex Court in Dattaraya Moreshwar vs. the State of Bombay and others case (supra) had laid down that provisions of statute creating public duty are directory and those conferring private rights imperative. If the contention is accepted that while sending notice by the Collector although relevant information regarding date, time and place of meeting has been given and notice also mentions that no confidence motion has been proposed against such and such officer bearers but the copy of the motion of no confidence is not annexed, whether the same shall frustrate the very object of the Act or shall advance the object and purpose of the statutory provision, is the question to be answered. Obviously, if the members are given notice and information which is primary object and purpose of giving notice by the Collector of the meeting and the motion of no confidence is read as soon as the meeting is convened, we are of the view that to hold that not sending of copy of no confidence motion shall vitiate the entire proceeding, shall be defeating the very purposes and object of Section 15 of the 1961 Act.
71. Whether there has been substantial compliance of the second part of Clause (ii) of Section 15(3) read with Rule 2 of the Rules and Form II contained in the Schedule to the Rules, depends on the facts and circumstances of each case.
72. Where copy of proposed Motion is not enclosed with the notice under Clause (ii) of sub-section (3) of Section 15, it will depend on the facts and circumstances of each case whether there has been substantial compliance of the above provisions or not.
73.............The ratio of Full Bench judgment in Gyan Singh's case (supra), as noted above, are fully applicable while interpreting the provisions of Section 15(3)(ii) read with Rule 2 and Form-2. The Full Bench in Gyan Singh's case held that second part of sub-section (3) of Section 87 requiring sending of notice by registered post lays down the manner required to be followed in sending the notice to the members which is directory. The same has been specifically laid down by the Full Bench in paragraphs 8 and 18 which have already been quoted above. We are of the view that ratio of the Full Bench in Gyan Singh's case (supra) is fully applicable for interpreting the provisions of Section 15(3) read with Rule 2 and Form-2.
74. The ratio of the judgment of the Apex Court in Raza Buland Sugar Company Ltd. vs. Municipal Board, Rampur (supra) is also applicable for interpretation of Section 15 of the 1961 Act. As noted above, Section 131(3) of the U.P. Municipaities Act, 1916 required the Board to publish the proposal framed under sub-section (1) in the manner prescribed in Section 94. How the proposal was to be published was provided in Section 94 which required that every resolution passed by the Board be published in the local Hindi newspaper. The Apex Court held that requirement of Section 131(3) regarding publication of resolution is mandatory, however, the manner of publication as prescribed in Section 94(3) cannot be held to be mandatory and sufficient compliance of provisions shall suffice."
31. Finally, the Full Bench laid down the law by an answering the reference as follows:
"79.....................(i)The requirement of giving notice by the Collector under Section 15(3)(ii) in the prescribed form as required by Rule 2 and Form-2 is held not to be mandatory and on substantial compliance of the provisions the proceeding shall not be vitiated. Whether there has been substantial compliance of the said provisions, depends on the facts and circumstances of each case.
(ii)The observation of the Division Bench in Ram Nath Tripathi's case (supra) that notice in prescribed form along with its annexures in complete formate is mandatory does not lay down the correct law. The judgment in Smt. Krishna Jaiswal's case (supra) lays down the correct law and is approved.
(iii)The notice sent by the Collector convening the meeting to consider the motion of no confidence cannot be invalidated on the ground that copy of the notice with the name of the person who had signed the written notice of intention, was not sent along with the notice. When proposed motion of no confidence is signed by the requisite members, the notice convening the meeting cannot be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were sent along with the notice."
32. The Full Bench thus answered the reference and put the controversy to rest. The above said extracts from the judgment of the Full Bench would guide us to a decision on the controversy at hand.
33. The Full Bench was followed by a Division Bench of this Hon'ble Court in the case of Arti Vs. State of U.P. and others, reported at AIR 2017 Alld. 157. In the case of Arti (supra) notice under Form I was under consideration. Incidentally, the case of Arti (supra), was relied by both parties in this writ petition. Relevant paras of the said judgment are reproduced hereunder:
"17. Having regard to the law laid down by the Supreme Court in various decisions cited by the Full Bench, as also the principles laid down by the Full Bench itself in Vikas Trivedi (supra), we proceed to consider the issue regarding the mandatory or directory nature of giving notice in Form-I. On a perusal of Form-I in which notice of intention to make the motion is to be given, we find that it contains the following information:-
(a) Name of the Kshetra Panchayat by whose member the notice is given.
(b) Name and office held by the person against whom the motion has been moved.
(c) The intention on part of the members to make the motion.
(d) The total strength of the members of the Kshetra Panchayat.
(e). It should be signed by all the members making the motion.
(f) Copy of the proposed motion should be annexed.
18. Indisputably, notice in Form-I was given by only one member namely Sukhram. However, it was accompanied by another document which is of a composite nature, in the shape of notice of intention to bring forth the no confidence motion, as also containing the proposed motion itself. It discloses the name of the Kshetra Panchayat and the name and designation of the person against which the motion is made. It is duly signed by more than half of the total number of the elected members. It also contains an unequivocal intention to bring forth the motion of no confidence against the petitioner. It also clearly discloses the total number of elected members and further states that more than 51% of the members have signed the same; the motion is thus, intended to be brought by more than half of the total members. The ground on which the proposed motion is sought to be brought is contained in the document itself. Thus, all the ingredients which are stipulated in the notice in Form-I are contained in the document.
19. The object of giving a written notice of the intention to make the motion of no confidence is to make possible for the Collector to ascertain as to whether the motion is backed by at least half of the elected members or not. The said requirement is of a mandatory character. If the written notice of intention to make the motion is not signed by at least half of the total number of the elected members, the Collector would not get jurisdiction to take cognizance of the same, nor to issue notice under sub-section (3) of section 15. However, at the same time, even if notice of the intention to make the motion is not given in the prescribed format but it contains all the ingredients of Form-I, it is always open to the Collector to cull out the intention of the members giving the notice and to act upon it. The object of prescribing Form-I is only of a procedural nature to enable the Collector to understand its import and to act without delay. Where a written notice of intention to make the motion is given in prescribed format, it becomes easy for the Collector to decipher intention of those giving the notice and to act accordingly. The copy of the written notice of intention to make the motion is thus for the convenience of the Collector. A person giving notice to the Collector which is not in prescribed format is always at the risk of Collector not taking due cognizance of the same. However, in a case where the Collector acts on a notice of intention to bring forth motion of no-confidence, though not contained in prescribed format, the person against whom the motion is brought cannot complain of the same. He is in no manner prejudiced thereby as the notice is not meant for him but for the Collector. Even its copy is not required to be sent to the members or the person against whom the motion is brought. Only the copy of the proposed no confidence motion is to be annexed alongwith the notice of the Collector.
34. The judgment in the case of Arti (supra), does not support the case of the petitioner, in fact it negates the same. The case of Arti (supra) fortifies the stand of the respondents.
35. It would be appropriate at this stage to conclude the controversy regarding the notice dated 1.1.2018 under Section 15(2) of the Act in the light of the judicial authorities discussed earlier. The following requirements of Section 15(2) are held to be mandatory:
1(a) The intention to move the vote of no confidence by the members has to be reduced to writing, in the form a written notice of intention;
(b) The written notice of intention so created has to be signed by at least half of the total number of members of Kshetra Panchayat for the time being;
(c) A copy of the proposed no confidence motion should be annexed to the written notice of intention.
(d) The copy of the motion and the said written notice of intention to make the motion (bearing the signatures) of the requisite number of the members should be delivered in person by anyone of the signatory to the notice to the Collector having jurisdiction over the Kshetra Panchayat.
36. The facts of the case established beyond doubt are as follows. The intention of the members of making the motion of no confidence was reduced to writing in the form of notice dated 1.1.2018. The notice manifests the clear intention of members to make the motion in explicit terms. The notice was duly signed by 47 members. The total strength of elected members of Kshetra Panchayat Jalesar, District Etah is 75. Thus more than half of the total number of the members for the time being have signed the notice of intention to make the motion, which is the requisite statutory strength for a valid notice. The copy of the no confidence motion is annexed to the notice. The petitioner himself admits to the fact that the notice was personally delivered by the respondent No.6 a signatory to the said written notice to the Collector Etah. Based on this material in the record, the Collector convened the meeting by order dated 4.1.2018.
37. The Collector, Etah has jurisdiction over the Kshetra Panchayat. In this manner, all the mandatory requirements of Section 15(2) have been duly complied with.
38. We hold the provision regarding the form of written notice of intention to make the motion required to be submitted to the Collector on behalf of the members signing the notice under Section 15(2) is to be directory in nature. A substantial compliance of the provisions would implement the requirements of law. A substantial compliance is done when the purpose of the notice is achieved. The purpose of the notice of intent to make the motion, is to furnish to the Collector the material on which he has to found his satisfaction before convening the meeting. Such material should demonstrate full compliance of mandatory provisions of 15(2) of the Act.In particular, the notice should be in writing. It should manifest the clear intention of the members to make a motion expressing want of confidence in the Pramukh. It should be signed by at least half of the elected members. The copy of the no confidence motion should be attached thereto.
39. In fact, if a strict compliance of the said mandatory parts of Section 15(2) is done, then the substantial compliance of directory provisions of the aforesaid of Section 15(2) would be automatically deemed to have been done.
40. If such facts or material can be distilled from the notice to make a motion expressing want of confidence irrespective of its form, it substantially complies with the mandate of law. As has been held, these prerequisites are fulfilled in the instant case.
41. Accordingly, we hold that there is substantial compliance of the directory requirements of Section 15(2) of the Act.
42. The written notice of intention of making the motion dated 1.1.2018 is held to be lawful and valid.
43. The provision for convening a meeting within 30 days from the date of the receipt of the notice sub-section 2 of section 15 by the Collector is also held to be mandatory. In the facts of the instant case, the written notice of intention to make the motion under Section 15(2) of the Act was moved on 1.2.2018. The Collector convened the meeting for consideration of no confidence motion vide notice dated 4.1.2018. The meeting for no confidence was proposed to be held on 22.1.2018.
44. The Collector having received the said written notice of intent dated 1.1.2018 with the above said material, was under a legal obligation to convene the meeting to consider the vote of no confidence. The Collector Etah had no option in law to do otherwise. The notice dated 4.1.2018 issued by the Collector convening the meeting of no confidence on 22.1.2018 is in full conformity with the provisions of Section 15(3) of the Act.
45. In this manner, the mandatory provisions of Section 15(3) (1) have been duly complied with. The notice dated 4.1.2018 convening the meeting is upheld as legal and valid.
46. The second submission, on behalf of the petitioner, is that 16 members of Kshetra Panchayat Etah have not subscribed to the oath of office or affirmation as per law and hence cannot be permitted to discharge their functions and carry out their obligations as members of the Kshetra Panchayat. Consequently, they cannot be signatories to written notice of intention to make the motion of no confidence nor can they be permitted to participate in the meeting to consider the motion. The controversy has been decided by a Division Bench of this Court (of which one of us namely, Hon'ble Krishna Murari, J. was a part), in the case of Smt. Kamla Devi Vs. State of U.P. and others, reported at (2014) 8 ADJ 525.
47. This Court after due consideration resolved the controversy by holding that failure to subscribe to the oath of office or make the affirmation prescribed by law, is not an impediment in the discharge of duties of the respective members of the Kshetra Panchayat. Such members do not incur any disqualification to sign a written notice to make a no confidence motion and cannot be prevented from participating in ensuing the vote of no confidence. The ruling of this Court, reinforced the said statement of law, by reliance on judgments of the Hon'ble Calcutta High Court and the Hon'ble Supreme Court. The relevant paragraphs of the aforesaid judgment are quoted hereunder:
"17. In the absence of any provision in the Adhiniyam of 1961 or the Rules prescribing any consequence for omission to subscribe to oath or affirmation, it cannot be held that such a member ipso facto looses his membership or in any manner becomes disqualified to either participate or vote in the meeting of No Confidence. His status, despite having failed to subscribe to oath or affirmation, continues to be that of an elected member and he continues to be a member of the electoral college. Participation of such member would neither render the meeting of No Confidence illegal nor vote cast by such member/members is liable to be excluded.
18. The view taken by me finds support by decision of Calcutta High Court in the case of Bhupindra Nath Basil v. Ranjit Singh MANU/WB/0039/1913 : AIR 1914 Cal 152. The facts of the said case were as under:
An election was held in 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. One of the candidates being unsuccessful filed a suit before the High Court questioning the validity of the election with a prayer to recount the vote after excluding the votes cast by two members, who had not taken the oath of allegiance. Regulation VII of the Bengal Council Regulations provided that every person elected or nominated under the Regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown. Consequences of such an omission are contained in Regulation VIII providing that where such a person fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local official Gazette, declare the election or nomination to be void or his seat to be vacant.
Hon'ble Calcutta High Court finding that such a declaration had not been made on the date of the election, rejected the claim of the plaintiff to exclude the votes of two members, who had not taken oath of allegiance. The High Court held as under:
"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn and King v. Swyer have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these regulations. These regulations constitute an electoral college of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative functions conferred by the regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the rule fails and must be discharged, and discharged with costs."
19. Provision contained in Rule 3 prescribing for oath by a member/elected member of a Zila Panchayat or Kshettra Panchayat is pari materia with Article 188 of the Constitution of India prescribing for an oath to be taken or affirmation to be made by every member of a Legislative assembly or a Legislative Council. Article 188 reads as under:
"188. Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."
20. The issue whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer or a valid nomination for election to Rajya Sabha came up for consideration before the Hon'ble Apex Court in the case of Pashupati Nath Sukul v. Nem Chandra Jain and others MANU/SC/0216/1983 : (1984) 2 SCC 404.
21. The Hon'ble Apex Court while approving the ratio laid down in the case of Bhupindra Nath Basu (supra), in paragraph 20 of the said report, held as under:
"We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of the Act (Representation of the People Act, 1951) can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are, therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous."
48. In this view of the matter, the second argument also of the learned counsel for the petitioner also fails. The members of the Kshetra Panchayat, who have not subscribed to the oath of office or made any affirmation prescribed in law cannot be prevented due to this reason from signing the written notice to requisition the meeting for no confidence or to participate in the aforesaid meeting of no confidence. The action of such members in signing the written notice of intent is uphold as lawful and valid.
49. Further, there is another infirmity in the said argument of the learned counsel for the petitioner. The members, who allegedly have not subscribed to the oath of office or made an affirmation prescribed by law, will be adversely affected in case the said argument is accepted. However, neither names of such members have been disclosed, nor have they been impleaded as parties in the writ petition. The writ petition is liable to be dismissed on the ground of non joinder of necessary parties. In any case no adverse orders can be passed, without affording them an opportunity of hearing.
50. The last argument of the learned counsel for the petitioner in support of the writ petition raised by the learned counsel for the petitioner is that some of the members, who had purportedly signed the notice to requisition the meeting to consider the vote of no confidence, had denied the same. The meeting of no confidence should not be proceeded with, in the wake of such affidavits.
51. Reliance has been placed on affidavits purportedly signed by three of such members and annexed as Annexure 9 to the writ petition. It is noteworthy that the aforesaid affidavits were sworn on 5.1.2018 while the meeting had been convened by the Collector by notice dated 4.1.2018. There are no averments in the writ petition of service of the aforesaid affidavits upon the Collector. Nor any proof of such service has been brought in the record. During the course of the arguments, learned counsel for the petitioner also could not substantiate the fact of service of the aforesaid affidavits upon the Collector.
52. We hold that the aforesaid affidavits sworn by the members on 5.1.2018 were not served upon the Collector Etah. As such, the same could not have been considered by the Collector before the date of convening the meeting to consider the vote of no confidence, or even subsequent to that date.
53. In the alternative, learned counsel for the petitioner submits that the affidavits of the members denying the support to the motion of no confidence have to be considered by the Collector for determining the validity of the order convening the meeting. He submitted that directions in this regard may accordingly be issued to the Collector.
54. The import and consequence of such affidavits, requires some thought.
55. A written notice to make a motion of no confidence signed by elected members has a certain sanctity. This is an official act which draws a presumption of correctness in its favour. The presumption is rebuttable, but the burden lies upon the person denying its correctness. The burden cannot be discharged lightly.
56. Reducing the burden, would devalue the sanctity of the notice and the no confidence proceedings. Expression of no confidence is often a political action. The process of no confidence culminating in the vote is politically surcharged. Members face divergent pulls from different persuasions. The incumbent Pramukh is desirous of stalling the motion, while initiators of the meeting are anxious to force the vote.
57. In such circumstances, members of the Kshetra Panchayat, signing the written notice of intent are often prone to change of mind. Elected members can resile from their earlier stand of supporting the written notice of intent. In various instances plain denials can be issued.
58. However, affidavits of bald denials or vague refutal of the written notice by members, cannot become the basis of impeaching the credibility of the written notice or cause the Collector to recall the order convening the meeting of no confidence or to interdict the meeting itself.
59. If such standards are to be accepted, then the Collector, would not be able to convene the meeting. The cycle of affidavits would be endless. The Collector would become a prisoner of the stands of the members oscillating between support and denial.
60. The legitimacy of a Pramukh in office rests on the confidence of the majority. Loss of confidence means loss of legitimacy, loss of legitimacy entails loss of office. The confidence of the majority in the Pramukh has to be tested in a meeting where the motion is put to vote. It cannot be determined in the office of the Collector on the basis of affidavits affirming or denying support. The arbiter of confidence is the vote of the majority and not the will of the Collector.
61. However, a meeting cannot be called on the strength of an illegitimate written notice of intent. When objections are taken by members to the written notice of intent, the Collector does not lack the authority to investigate the complaints. An enquiry can be initiated, by the Collector, if such complaints satisfy the minimum benchmark of credibility. Once such enquiry is undertaken, its scope and limit will be as defined by the law laid down by a Full Bench of this Hon'ble Court in the case of Sheela Devi Vs. State of U.P., reported at (2015) 2 UPLBEC 1176. The Full Bench in the case of Sheela Devi (supra) in turn relied upon an earlier Full Bench of this Court in Mathura Prasad Tewari Vs. Assistant District Panchayat Officer, Faizabad, reported at 1966 ALJ 612. The Full Bench in Mathura Prasad Tewari (supra) was considering similar provisions to requisition a no confidence meeting in the U.P. Panchayat Raj Act, 1947 read with U.P. Panchayat Raj Rules, 1947. The scope of an enquiry by a Collector into the validity or otherwise of the signatures on complaints made in that regard was circumscribed by the following observations:
"12..................If a prescribed authority finds that some signatures are not of members of the Gaon Sabha or are forged or otherwise invalid and the remaining signatures are insufficient it would be bound to desist from convening a meeting but the question before us is different, it being whether it is required by any rule to make an enquiry. There may be no provision forbidding an enquiry but that also is immaterial because the law does not require everything not forbidden to be done. The most that can be said is that the matter is at the discretion of the prescribed authority; if a complaint is made to it that a material number of signatures is invalid it may in its discretion make an enquiry or refuse to make it. If it is a small enquiry it is justified in making it and if it is likely to turn out into a long drawn enquiry or if it thinks that the complaint is not bona fide or is made with the ulterior object of delaying the convening of the meeting it is fully justified in not undertaking an enquiry..."
The Full Bench also held as follows:
"...There is nothing to suggest that he may spend days and even months in enquiring whether the signatures on the requisition are genuine or not or are obtained without resort to fraud or coercion or not. If it cannot be said that he is bound to make an enquiry it cannot be said that the prescribed authority is bound to make an enquiry on receipt of a notice under Rule 33-B. Injustice and anomalies can be imagined but what is certain is that an enquiry may take a long time and may be followed by applications for certiorari, mandamus and prohibition, in turn followed by appeals from orders on the applications. Then the prescribed authority has no power to summon witnesses and documents and it is not understood how it can hold an enquiry."
Whether a meeting should be convened or not is a matter only between the prescribed authority and the signatories delivering the notice to it. The prescribed authority has to act on its finding that the notice has been signed by at least half the members and has been presented by at least five of the signatories. As nobody has a right to file any objection the question of his holding an enquiry simply does not arise. Whatever enquiry is made by it is made entirely at its own discretion and nobody has a right to compel it to make it. Obviously there cannot be a right in any person to compel it to make it when he has not been given a right to file an objection."
62. The Full Bench in the case of Sheela Devi (supra) balanced the two extremes of expanding the scope of an enquiry by the Collector akin to a trial by a civil court, on the one end to highly constricted role as a mere post office on the other end. The Full Bench traversed the middle path by holding as under:
"10. Consistent with the provisions of sub-section (3) of Section , it is equally clear to our mind that the Collector in order to meet the time lines which have been specified therein would not be justified in launching upon a detailed evidentiary enquiry. The Collector under Section has not been constituted as a Civil Court. The legislature has not contemplated vesting in the Collector the power of a Civil Court for summoning and enforcing the attendance of witnesses and for making a detailed factual enquiry or for receiving evidence for that purpose. The Collector has to abide by the time schedule indicated in sub-section (3) of convening a meeting within thirty days of the date of the delivery of notice and of furnishing at least fifteen days' notice to the elected members of the Kshettra Panchayat. Time is of the essence in convening a meeting as well as in furnishing a notice of a meeting to every elected member. Evidently, the Collector would neither have the time nor the power to hold a detailed evidentiary enquiry in which disputed questions of fact can be resolved. Hence, questions such as whether the signatures on the written notice have been obtained by fraud, duress or coercion and which would require an evidentiary hearing cannot be gone into by the Collector. The role of the Collector has to be balanced between two extremes. At one end of the spectrum is a situation where the Collector merely plays the role of a post office in which he would only verify whether the notice purports to have been signed by half of the elected members of the Kshettra Panchayat and whether the signatories to the notice were alive. At the other end of the spectrum would be a situation where a detailed enquiry involving evidence and judicial findings would have to be made. In our view, neither of these extremes can be accepted as representing the true role of the Collector. The first would destroy the sanctity of and destablise the working of an elected body. Motions of no confidence are serious business - not a game or sport or a forum for horse trading. The Collector is not merely a post office between the time when a notice is delivered to him under sub-section (2) and a meeting is convened under sub-section (3). To reduce the role of the Collector to a mere post office or a facilitator for holding and convening the meeting would be to efface and obliterate the requirements which have been spelt out in sub-section (2). If the legislature were not to regard those requirements as matters of moment, there was no reason to introduce a specific requirement that the notice be signed by at least half of the total number of elected members of the Kshettra Panchayat. A requirement that the notice be signed by a member of the Kshettra Panchayat would have sufficed but the legislature in its wisdom has imposed a specific requirement under subsection (2) in regard to the number of members signing the motion. Sub-section (3) of Section stipulates that the Collector "shall thereupon" convene a meeting, meaning thereby that after fulfillment of the requirements of sub-section (2), the Collector shall proceed to act in the manner indicated therein. The second extreme must also be eschewed. The Collector has not been constituted as a Civil Court. His powers for this purpose are not akin to those of a Civil Court. He is bound to comply with the time schedule laid down by the legislature in convening a meeting and furnishing individual notices to members. The correct view in regard to the powers of the Collector is to interpret sub-sections (2) and (3) of Section so as to leave it to the discretion of the Collector to determine whether the notice which has been furnished to him meets the requirement of sub-section (2). Undoubtedly, the Collector, as we have already noted above, cannot conduct a detailed evidentiary hearing and the proceedings before him would be of a summary nature. The Collector would, in this line of enquiry, be within his discretion to verify whether there are circumstances which are indicative of the fact that the requirements of sub-section (2) have not been fulfilled. If the Collector finds in a given case that it would not be possible for him to resolve the issue except after a full-fledged enquiry akin to a judicial proceeding, he would be justified in directing the holding of a meeting at which the motion of no confidence can be resolved. But, on the other hand, if there are circumstances before him which are indicative of the fact that provisions of sub-section (2) have not been fulfilled, it would not be appropriate to denude the Collector of the power to make a limited verification or enquiry for the purpose of ensuring that the motion of no confidence meets the requirement as spelt out in sub-section (2).
14.....................In either view of the matter and since we are bound by the judgment of the Full Bench, the law on the subject is thus clear. The Collector, in the course of exercising the power which is conferred upon him, ought not to enquire into seriously disputed questions of fact involving issues of fraud, coercion and duress. Moreover, the Collector must have the discretion in each case of determining on the basis of a summary proceeding whether the essential requirements of a valid notice of an intention to move a motion of no confidence have been fulfilled. Where in the course of the summary enquiry, it appears to the Collector that the written notice does not comply with the requirements of law, the Collector would be within his power in determining as to whether all the required conditions have been fulfilled, as enunciated in sub-section (2) of Section . Whether the Collector in a given case has transgressed his power is separate issue on which judicial review under Article 226 of the Constitution would be available. However, we expressly clarify that we are not laying down a detailed and exhaustive enumeration of the circumstances in which the Collector can determine the validity of a notice furnished under Section (2) or those in which he can make a limited enquiry which, as we have held, he is entitled and competent to make. Ultimately, each case depends upon its own facts and it for the Collector to determine as to whether the objections raised before him are outside the scope of the limited inquiry which he can make upon notice of an intent to move a motion of no confidence if it is submitted to him together with a notice of no confidence.
23. For these reasons, we have come to the conclusion that where a notice is delivered to the Collector under sub-section (2) of Section , the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2). However, consistent with the stipulation of time enunciated in sub-section (3) of Section of convening a meeting no later than thirty days from the date of delivery of the notice and of issuing at least a fifteen days' notice to all the elected members of the Kshettra Panchayat, it is not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice. Where a finding in regard to the validity of the signatures can only be arrived at in an enquiry on the basis of evidence adduced in the course of an evidentiary hearing at a full-fledged trial, such an enquiry would be outside the purview of Section . The Collector does not exercise the powers of a Court upon receipt of a notice and when he transmits the notice for consideration at a meeting of the elected members of the Kshettra Panchayat. Hence, it would not be open to the Collector to resolve or enter findings of fact on seriously disputed questions such as forgery, fraud and coercion. However, consistent with the law which has been laid down by the Full Bench in Mathura Prasad Tewari's case, it is open to the Collector, having due regard to the nature and ambit of his jurisdiction under sub-section (3) to determine as to whether the requirements of a valid notice under sub-section (2) of Section have been fulfilled. The proceeding before the Collector under sub-section (2) of Section of the Act of 1961 is more in the nature of a summary proceeding. The Collector for the purpose of Section , does not have the trappings of a Court exercising jurisdiction on the basis of evidence adduced at a trial of a judicial proceeding. Whether in a given case, the Collector has transgressed the limits of his own jurisdiction is a matter which can be addressed in a challenge under Article 226 of the Constitution. We clarify that we have not provided an exhaustive enumeration or list of circumstances in which the Collector can determine the validity of the notice furnished under sub-section (2) in each case and it is for the Collector in the first instance and for the Court in the exercise of its power of judicial review, if it is moved, to determine as to whether the limits on the power of the Collector have been duly observed. The reference to the Full Bench is answered in the aforesaid terms. All the writ petitions shall now be placed before the regular Bench according to the roster of work for disposal in the light of this judgment."
63. Complaints by members against the notice of intent fall into various genres, like threats and temptation, coercion or fraud.
64. Take the case of allegations of fraud (which is relevant to the instant case). This is distinguishable from a case of mere denial. Such allegations on affidavits approach the minimum benchmark of credibility, when the act of fraud is set forth in material particulars. As far as possible it should be supported by responsible evidence which makes a compelling case on its face. But if the affidavits are self serving, reflect an afterthought, or do not inspire confidence, or the numbers do not add up to materially affect the result, the Collector may decline to take cognizance of the same and drop the matter.
65. The aforesaid affidavits annexed as Annexure 9 to the writ petition admit to an affidavit purportedly submitted on behalf of the deponent, in support of notice of no confidence. The affidavits in Annexure 9, then go on to deny the aforesaid affidavits annexed to the notice of no confidence in general terms. Such denials are not specific and lack material particulars.
66. The aforesaid affidavits do not assert a case of fraud. Morever, even in the writ petition, the pleadings do not contain any material particulars of the alleged fraud and are vague and open ended.
67. Further no FIR or criminal proceedings have been launched for forging of such documents. The affidavits appear to be a case of plain or simple denial as an afterthought.
68. The cumulative effect of the aforesaid circumstances is that the affidavits lack credibility and do not inspire any confidence. These are the post facto attempts to stall the proceedings initiated to put the motion to vote. Further number of the members giving the affidavits do not add up, to materially affect the validity of the written notice of 1.1.2018. Even if the affidavits had been served upon the Collector no enquiry would be warranted. Any further enquiry in this regard would be in excess of the jurisdiction conferred by law upon the Collector. Hence, no direction can be issued to the Collector to consider the aforesaid affidavits.
69. In the light of the above discussion, the third argument of the petitioner also fails. The writ petition is dismissed. There is no legal impediment to table the vote of no confidence.
Order Date :- 22.02.2018 Ashish Tripathi