Punjab-Haryana High Court
Parmila Yadav vs State Of Haryana & Others on 16 April, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No. 1632 of 2012 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
CWP No. 1632 of 2012
Date of Decision: 16.04.2012
Parmila Yadav
......... Petitioner
Versus
State of Haryana & others
............ Respondents
*****
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Puneet Bali, Advocate
for the petitioner.
Mr. Satyavir Singh Yadav, Addl. A.G., Haryana.
for respondents No.1 to 3.
Mr. Arun Jain, Sr. Advocate with
Mr. Amit Jain, Advocate
for respondents No. 4 to 15.
****
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
RAJIV NARAIN RAINA, J.
1. The election of Members of Zila Parishad, Rewari was held on 6.7.2010. The result was declared on 13.7.2010 by the Returning Officer, Zila Parishad, Rewari. The petitioner was elected on 2.8.2010 as a President, Zila Parishad by the elected members of the Zila Parishad. She was administered oath and sworn in as President of Zila Parishad, Rewari on 30.8.2010. After about two years in office on 16.9.2011, 12 members of the 16 elected members of the Zila Parishad submitted affidavits to the Deputy Commissioner, Rewari expressing no- confidence in the petitioner requesting that a meeting be convened for considering the no-confidence motion. On receipt of affidavits the Deputy Commissioner called all the members in separately to ascertain their minds and whether they stand by their affidavits. On such satisfaction a notice dated CWP No. 1632 of 2012 -2- 14.10.2011 was issued fixing 21.10.2011 as the date of meeting to consider the motion. The notice, however, was short of the mandatory period of seven days prescribed under Rule 10 of the Haryana Panchayati Raj Rules, 1995 (for short 'the Rules'). Aggrieved by the notice, the petitioner approached this Court by filing CWP No. 19725 of 2011 challenging the notice. This Court issued notice of motion on the petition. Realizing the mistake committed the learned Addl. Advocate General, Haryana made a statement that the impugned notice be treated as withdrawn. On the basis of this statement the petition was dismissed as having been rendered infructuous by order dated 10.1.2012.
2. On 17.1.2012, a fresh notice was issued for considering the no- confidence motion on the basis of the requisition already received and the Deputy Commissioner fixed 30.1.2012 as the date of meeting to consider the no- confidence motion against the petitioner. The defect of the first notice stood cured and there was compliance of Rule 10 of the Rules with regard to the duration of the notice. Apprehending that she would be ousted, the petitioner approached this Court again on 27.1.2012 by way of mention for urgent listing of the case. On taking up the matter on "fix today" this Court issued notice to the respondents after hearing the caveator-respondents. The State also accepted notice of the petition through its Law Officer in Court. An interim order was passed to the following effect:-
"Meanwhile, meeting may be conducted but secret ballots shall be obtained from the voters and kept in a sealed cover till the next date of hearing."
3. On 14.2.2012, separate written statements were filed by the Deputy Commissioner, Rewari respondent No.3 on behalf of respondents No. 1 to 3 and on behalf of caveator-respondents No. 4 to 15, all elected members of Zila Parishad. A direction was issued to the State Government to produce the original record in Court, on the next date of hearing i.e. 23.2.2012. The original record of no-confidence motion against the petitioner was produced in Court on 24.2.2012 CWP No. 1632 of 2012 -3- in a sealed cover. The same was opened and perused in open Court, which disclosed that 12 members of the Zila Parishad had voted for the motion. There were three abstentions. The petitioner had participated in the motion of no- confidence. Her vote was at Sr. No. 1. It contained her hand written note "Mai vote dalna nahi chahti Sd/- Parmila Yadav, 30.01.2012." The record was returned and the matter was posted for 25.2.2012, on which date, by consent of the parties the matter was posted for final disposal on 29.2.2012. The matter was taken up for hearing and exhaustive arguments were heard and judgment was reserved on 6.3.2012 after hearing Mr. Puneet Bali, learned counsel for the petitioner, Mr. Satyavir Singh Yadav, Addl. A.G., Haryana for respondents No.1 to 3 and Mr. Arun Jain, Sr. Advocate assisted by Mr. Amit Jain, learned counsel appearing on behalf of caveators- respondents No. 4 to 15, Members of the Zila Parishad.
4. The sole controversy involved in the petition revolves around the interpretation of Rule 10 of the Rules and its compliance. Before going into the arguments addressed by the respective counsel it would be appropriate to reproduce Rule 10 of the Rules:-
"10. No confidence motion against Chairman, Vice Chairman, President, Vice President.-(1) For purposes of Section 123 Deputy Commissioner shall be the prescribed authority. (2) The notice of meeting for considering motion of no confidence shall be issued at least seven days before the date fixed for the meeting, intimating the date, time and place of meeting by proclamation by beat of drum, in the Sabha are as concerned and affixing a copy of same on the notice boards of the offices of concerned Gram Panchayats, Panchayat Samiti(s) and Zila Parishad and at other conspicuous places in the village. The notice shall also be issued to all members by registered (A.D.) Post at their ordinary place of residence and also by affixing a copy of the same at the notice board of Office of Block Development and Panchayat Officer, Additional Deputy Commissioner and Deputy Commissioner and through CWP No. 1632 of 2012 -4- any other expedient manner deemed proper..........."
5. At the outset Mr. Puneet Bali learned counsel for the petitioner admits that notice of no-confidence was issued on 17.1.2012; the meeting was fixed for 30.1.2012; that there was 2/3rd majority present that carried out the motion as witnessed from the opening of the secret ballots in Court. He admits that his client was present at the meeting but denies participation. He admits that his client wrote the words "Mai vote dalna nahi chahti". He, however submits that the petitioner was not present in station on 17.1.2012 or immediately thereafter and received the notice of no-confidence on 24.1.2012. He, therefore, argues that the material date under Rule 10 of the Rules is not from the date of issue of notice but from receipt of notice. That this purposive interpretation ought to be placed on the words issue and receipt. By taking 24.1.2012 as the truly effective date of notice and upon its receipt the meeting runs short of seven clear days notice prescribed in Rule 10. He further submits that Rule 10 requires notice to be served by 'registered AD post' but the notice was sent by the Deputy Commissioner, Rewari by Speed Post. Thus, he submits there is non-compliance of laid down statutory procedure. That if a thing is required to be done in a particular manner it should be done in that manner or not at all. He argues that the word 'issue' of notice should be construed as 'received' otherwise the very purpose of holding a meeting would be lost. He refers to the provisions of Section 138 of the Negotiable Instruments Act and Section 100 of the Transfer of Property Act to contend that law requires receipt of notice as the material or vital date which informs a person of things to follow; prepare him to meet its fallout and to take steps to protect his rights. He further submits that the words "issue" and "service" are interchangeable words. He would contend that after issuing notice there should be a compulsory wait of 30 days for presumption of service to operate. He recites the provisions of CPC, 1908 to contend that there is no presumption of service on the date of issue and that time should start running from actual physical receipt of the notice. He goes on to say that mere CWP No. 1632 of 2012 -5- acceptance of notice on 24.1.2012 would not amount to waiver of service through the mode prescribed i.e. through registered (A.D.) post. He prays that the no-confidence motion should be nullified by this Court as being violative of the procedural safeguards afforded by Rule 10 of the Rules. In support of his arguments he relies on the following judgments:-
6. In CWP No. 16834 of 2011, titled Ram Rati and another vs. State of Haryana and others decided on 10.01.2012, learned Single Judge of this Court was dealing with a case of short notice in the context of Rule 10 of the Rules. This Court took cognizance of the distinction between "issuance" and "service" and that Rule 10 spoke of "issued" in the context of notice. Full Bench decision of this Court in The Northern India Caterers Private Ltd. v. The State of Punjab and another, AIR 1963 P&H 290 was relied upon and specifically para 34 thereof. The Full Bench dealt with the provisions of Section 4 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959. Section 4 also used for the purpose of notice the words 'date of issue thereof'. Para 34 of the judgment is reproduced :-
"34. I am inclined to hold that the notice served in this case upon petitioner no.1 is bad as it was short by one day. The intention of the Legislature appears to be to give notice of at least ten clear days which has not been done. But this error is of inconsequential nature for purposes of this petition. NO rule of justice has been violated and in consequence of short notice no injury has resulted. I would in the circumstances overlook the short notice."
7. The word 'served' was employed by their Lordship of the Full Bench to hold that the notice served was bad as it was short by one day but that no rule of justice had been violated and no injury caused. The learned Single Judge distinguished the judgment on the ground that the petitioner therein had got stay of proceedings and, therefore, no injury was occasioned. I do not see how either the Full Bench or the judgment rendered by the learned Single Judge would help the petitioner.
CWP No. 1632 of 2012 -6-
8. Mr. Bali has relied on the judgment of the Hon'ble Supreme Court in the case of Subodh S. Salaskar v. Jayprakash M. Shah and another; (2008) 13 SCC 689. This was a decision under the Negotiable Instruments Act, 1881. The question before the Court was as to the date the offence became cognizable. Mr. Bali relies on paras 20, 22 & 23 of the judgment and the meaning of service by post under Section 27 of the General Clauses Act, 1897. The legal notice in the said case was issued on 17.1.2001 by speed post. It was supposed to be served within a couple of days. The actual date of service of notice was allegedly not known and the complainant proceeded on the basis that same was served within a reasonable period and in absence of service of notice or deemed service thereof, the question of non-compliance of clause (c) of the proviso appended to Section 138 of the Negotiable Instruments Act would not arise and, therefore, the complaint petition would not be maintainable. I also do not see how this judgment helps the petitioner. The presumption of service under Order 5 Rule 9 (5) of the Code of Civil Procedure, 1908 on summons is presumed if it is not received back within 30 days. There is a qualitative difference of purpose of Order 5 Rule 9(5) of the Code of Civil Procedure, 1908 and Rule 10 of the Rules. In similar vein Mr. Bali would enlarge this aspect by relying on a Single Bench decision of the Andhra Pradesh High Court reported in Andhra Pradesh Carbides Ltd. and Anr. v. Andhra Pradesh State Electricity Board, Hyderabad and Ors.; AIR 1986 AP 37 a decision rendered under the Electricity Act, 1910. The issue before the Court was disconnection of electric connection and it was held that 15 days notice of payment should not be counted from the date of demand notice but from the date of service. Reliance is placed on para 14 of the judgment, which reads as follows:-
"14. It is, however, contended by the learned counsel for the respondents, firstly that the notice of demand for the month of June, 1985 is dated 28-6-1985 and that the said demand itself specified that the amount was payable on or before 13-7-1985 and that any offer to pay the bill amount on 16-7-1985 cannot be CWP No. 1632 of 2012 -7- treated as a valid tender inasmuch as the same is beyond the time. The second contention for the respondents is that even though S. 24 of the Electricity Act, 1910 prescribes that a further notice of not less than 7 clear days is to be given after the consumer's neglect to pay the charges, the said provision is not applicable inasmuch as the Regulation 32.3 made by the Board in exercise of powers conferred on it by S. 49 of the Electricity (Supply) Act, 1948 in B.P.M.S. No. 690 dated 17-9-1975, permits disconnection:-
"without further notice under S. 24 of the Electricity Act, 1910."
This decision is clearly distinguishable on law and facts and has no connection whatsoever with a notice of no confidence motion when both the Acts have different jurisdictional and legislative purpose.
9. Mr. Bali further relies on Banarsi Debi v. The Income-tax Officer, District IV, Calcutta and other; AIR 1964 Supreme Court 1742. In which the Court was dealing with a charging Section under the Income-tax Act, which requires stringent construction. The issue before the Court appears to have arisen out of Section 34(1)(a) of the Income-tax Act, 1922 and meaning to be ascribed to the words "issued", "sent" and "served". Section 34 of the Act required that a notice could be served only within 8 years from the relevant assessment year. Section did not provide any period for sending of notice. In these circumstances the expression "issued" was not used in the narrow sense of the word "sent". The issue was that a notice issued within 8 years, though served beyond 8 years was in compliance with the Section. Mr. Bali on the strength of the judgment contends that the expression "issued" and "served" are used as interchangeable terms both in dictionaries and in other statutes. The dictionary meaning of the word "issued" is "the Act of sending out put into circulation, deliver the authority or delivery". The Court found that the words "served", "gave" and "sent" in the context of Sections 553, 554 & 555 of the Calcutta Municipal Act, 1951 are similar. The two expressions "issued to" or "served upon" are used as equivalent expressions. The Court found that giving a narrow meaning would introduce anomalies in the Section: while the notices, CWP No. 1632 of 2012 -8- assessment or reassessment was saved, the intermediate stage of service would be avoided. To put it in other words, if the proceedings were only at the stage of issue of notice, the notice could not be questioned, but if it was served, it could be questioned. In my view the legislative purpose of the Income-tax Act and Rule 10 of the Rules is different. There is no genetic connection between Section 34(1)(a) of the Income-tax Act and Rule 10 of the Haryana Panchayati Rules, 1995.
10. Mr. Bali relies on a Division Bench judgment of this Court reported in Budho Devi v. Deputy Commissioner, Gurgaon, 1998(4) RCR (Civil) 80 a decision rendered under the Haryana Municipal Act on a notice of "no confidence motion' against President or Vice President. This is also a matter of short notice. The fallacy of the argument of Mr. Bali is that he takes service of notice as the date for counting days of clear notice amended under Rule 10 and, therefore, this decision too is distinguishable.
11. On the next issue of procedure not followed, Mr. Bali relies on a decision of a learned Single Judge of this Court rendered in CWP No. 17943 of 2010 titled Mohinder Khan v. Director, Rural Development and Panchayats, Punjab and others decided on 15.11.2010. In this case the notice of "no confidence motion" was short. It was found that no notice had been received by the petitioner in person. There was a report that the Sarpanch sought to be removed had allegedly refused to accept notice and that no affixation of notice was done on some conspicuous part of his residence. In the conspectus of the facts presented this Court held that the motion was not valid. The facts of the present case are entirely different, where there has been substantial compliance of due procedure laid down under Rule 10.
12. Mr. Bali lastly submits that the petitioner's presence in the meeting does not operate as waiver.
13. Mr. Arun Jain, learned senior counsel appearing on behalf of caveator-respondents No. 4 to 15 on the other hand has marshaled his facts CWP No. 1632 of 2012 -9- primarily regarding statutory compliances with regard to the notice issued on 17.1.2012. On facts he states that the proclamation of the notice was effected on 19.1.2012 through Annexures R-3 & R-5. Two notices were sent to the petitioner through official messenger at her two different known addresses at Rewari. The members of the family were present at the residence when the special messenger went forth to serve the notice but they refused to accept notice (R/4). This in law amounts to effecting due and valid service. He says that yet another attempt to serve was made on 20.1.2012 but the houses were found locked. The family members were then, however, not present. Service was deliberately avoided. Consequently, the Deputy Commissioner, Rewari ordered newspaper publication, one in Dainik Bhaskar and another in Punjab Kesari on 20.1.2012 (R/7 to R/10). On 23.1.2012 publication of notice of meeting was inserted in the print media in newspapers,namely, Dainik Jagran and Hari Bhumi. These advertisements/ public notices were issued by the Chief Executive Officer, Zila Parishad, Rewari. These newspapers are said to have wide circulation in Rewari. On 27.1.2012 the present writ petition was filed. He submits that acceptance of notice on 24.1.2012 being an admitted fact would result in waiver of condition of service by registered post (acknowledgment due). Speed post is a Government post and is faster and more effective way of service than registered AD post and at any rate service by speed post and not registered (AD) post can at the worst be an trifling procedural irregularity but not an illegality especially when there has been scrupulous compliance of other modes of disseminating information of the meeting of no confidence. Still further, he contends that there has been substantial compliance of notice requirement and that no prejudice can be said to have been caused to the petitioner by this minor departure warranting nullification of the will of two thirds of the members to vote in a particular way. Procedure, he reminds is only a handmaiden of justice.
14. Mr. Satyavir Singh Yadav, Addl. A.G., Haryana has taken me through the preliminary submissions in the written statement filed by the State, CWP No. 1632 of 2012 -10- from which Mr. Jain learned senior counsel has largely drawn his facts to hammer his case. The preliminary submissions are self explicit and are, therefore, reproduced:-
"That consequent upon no confidence motion moved against the petitioner, the petitioner had filed Civil Writ Petition No. 19825 of 2011 in this Hon'ble High Court which was disposed off vide order dated 10-01-2012. In view of the observation made by Hon'ble High Court in the order, previous notice dated 14-10-2011 for consideration of no confidence motion against the petitioner was withdrawn and a fresh notice dated 17-01-2012 was issued for consideration of no confidence motion in the meeting fixed for 30-01-2012. The notices were served upon all the members of Zila Parishad, Rewari including the petitioner. The notices were sent through speed post to all the members (including the petitioner at her both residences Village Ladhuwas Ahir and Nangal Mundi vide receipt No. 90/EH 271939352 In Village Ladhuwas Ahir and receipt No. 92/EH 271939335 IN village Mundi). Copies of receipts are attached herewith as Annexures R- 1 and R-2. The notices were also sent to the petitioner at her both residences Village Ladhuwas Ahir and Village Nangal Mundi through the Block Development and Panchayat Officer, Khol and Rewari respectively. As per report dated 19th and 20th January, 2012 of Block Development and Panchayat Officer, Khol and Rewari respectively, the petitioner was not found present at her both residences. However,m the family members of petitioner were found present at her house in Village Nangal Mundi, but they refused to receive the notice. Thereafter, a copy of notice was affixed at conspicuous places of the houses of petitioner and also on the notice board off concerned Gram Panchayat and offices of Block Development and Panchayat Officer. Copies of reports to this effect dated 19-01-2012 and 20-01-2012 of Block Development and Panchayat Officer, Khol and Rewari and Gram Sachiv attached herewith Annexure R-3 to R-6.CWP No. 1632 of 2012 -11-
When the service officer after using all due and reasonable diligence not find the petitioner, the copies of notices were affixed at her house, where she ordinary resides. The photography and videographer of the place was also conducted and C.D. was also prepared i.e. Dainik Bhashkar and Punjab Kesri and on dated 23-01- 2012 in the two news papers i.e. Dainik Jagran and Haribhoomi. Copies of news papers are attached herewith as Annexure R-7 to R-10. It is clear from the circumstances mentioned above that the notices have been duly served upon the petitioner in due time. It is also submitted that the petitioner also participated in the meeting conducted on 30-01-2012 to consider the no confidence motion, but the petitioner refused to cast her vote and gave in writing to this effect on ballot paper No.6. However, as per order dated 27-01-2012 of Hon'ble High Court the secret ballots were obtained from all the voters and the same has been kept in sealed cover (sealed ballot box). The sealed ballot box have been kept in the Treasury Office, Rewari under double lock."
15. Mr. Bali has not chosen to file a replication either to the written statement filed by the State or by the added respondents. Therefore, on the principle of non-traverse the averments made in both the written statements would be deemed to be admitted and of reliable value to render judgment on those facts. In other words, it is trite to say that that which is not specifically denied stands admitted.
16. Mr. Jain would also point out from Annexure R-3 dated 19.1.2012 that the notices of Ward No. 7, 8, 10 & 11 of Zila Parishad, Rewari were delivered through special messenger. In Ward No.7 the petitioner was not present at her residence at Mundi and her family members refused to accept the notice. A copy of the notice was affixed at her residence and photographs were taken. Not only that the munadi was done at the village it was videographed. These facts have been stated by the Block Development and Panchayat Officer, CWP No. 1632 of 2012 -12- Khol at Rewari in writing to the Deputy Commissioner, Rewari. R-4 is the report of Mahaveer Singh, Gram Sachiv dated 19.1.2012 recording refusal of family members to accept notice.
17. To start with Mr. Jain learned senior counsel for respondents No. 4 to 15 relies on several judgments to contend that the petition deserves to be dismissed.
18. In the first place, he relies on a Full Bench judgment of the Andhra Pradesh High Court in Smt. K. Sujatha v. The Government of A.P. And another; AIR 2004 AP 400 and paras 22, 23, 27 & 28 thereof, which are reproduced.
"22. Having analysed the rules we find that the scheme of issuing notice of meeting to every member provided when notice of motion of no confidence is submitted, c an be divided into separate parts. After the notice of intention to move motion has been submitted in the requisite form to the concerned authority under Rule 2, the said Officer thereafter under Rule 3 is required to convene and preside over a meeting for consideration of the motion. He is required to convene and preside over the meeting which shall not be later than thirty days from the date on which the motion of notice was delivered to him. We are not concerned with this part of Rule 3 of the Rules, which enjoins upon him to give to every member notice of not less than fifteen clear days and about the consequences of non-compliance of this provision. First requirement of this part of Rule 3 is of giving notice to every member. The second requirement is the period of notice of not less than fifteen clear days excluding the date of notice and the date of proposed meeting. The third portion of the rule is about the different mods of delivery or effecting of service of notice. In so far as the first portion is concerned, there is no dispute and it must be held that the Officer concerned must give and is bound to give notice of motion to every member in requisite form annexed to the Rules, which requirement is mandatory. There is also no dispute as regards the second portion that there should be fifteen clear days available between the two relevant dates i.e. the date of notice and the date of proposed meeting. This portion of Rule 3 is also mandatory CWP No. 1632 of 2012 -13- inasmuch as the concerned officer cannot act in a manner of even issuing notice of a period of less than fifteen clear days. Both the portions being mandatory in nature, breach of these two conditions would make the meeting as well as the proceedings taken therein invalid.
23. The crucial question to be answered is about the delivery of the notice. The concerned Officer as per Rule 3 is required to give notice in the prescribed form and "shall be delivered to the member", as specified in the said rule namely, (a) by giving or tendering such notice to such member, or (b) if such member is not found, by leaving such notice at his last known place of residence or business or by giving or tendering the same to some adult member or servant of his family; or (c) if such member does not reside in the Gram Panchayat area or Mandal Parishad area, or within the District and if his address is known to the District Panchayat Officer/Chief Executive Authority/Collector or the Sarpanch of the Gram Panchayat to be elsewhere, by sending the same to him through registered post with acknowledgment due; or
(d) if none of the means aforesaid is available or if the persons referred to clauses (a) and (b) refuse to receive the notice, by affixing the same at some conspicuous part of his place of residence or business.
xx xx xx xx xx
27. The ordinary meaning of the word 'notice' is knowledge information or announcement. Therefore, the purpose and object of issuing the notice is to give due intimation of this proposed meeting of no confidence motion to all the members of the Panchayat or Mandal Parishad or Zilla Parishad and to make it possible for the members to adjust their work in such a manner so as to enable them to attend the proposed meeting of no confidence motion.
Once the number receives intimation, he is not required to make any further preparation for the purpose of meeting except by making himself available in the meeting. Rule 8 says that the proposed motion will be put to vote without any debate and voting would be by show of hands. In case no preparation is required to be made by the member for the meeting except by presenting himself in the meeting, whether the member gets shorter period of time than fifteen days or not is irrelevant and meaningless. Had CWP No. 1632 of 2012 -14- some discussion to take place or debate to follow, the matter would have been slightly different. Even the submission that holding the rule to be mandatory might lead to a situation of certain members interested to scuttle the motion, the purpose can be served differently. Mere causing delay in accepting the notice within the requisite period of fifteen days is not the only mode of scuttling the meeting. Such section of the members can conveniently avoid attending the meeting so as to ensure that quorum is not complete when meeting is called to order, because as per Rule 7 of the rules if within two hours there is no quorum, the notice shall stand lapsed.
28. The purpose and object of giving notice of consideration of no confidence motion is only to give due intimation to the members or information of the proposed meeting. Therefore, the fact that a member has got a shorter period of notice then fifteen clear days from the date of receipt of the notice would not matter. When notice is sent by post and the law permits the date of sending of notice to be treated as the date of delivery in that case obviously the period available to the member will be shorter than fifteen clear days from delivery to meeting, therefore, there is no reason why the Rule 3 be held to be mandatory as regards the service of notice. Unless, it is shown that the shortfall in the period of notice of the meeting has caused some prejudice to the member, neither the meeting nor the proceedings take thereunder would be said to be invalid. It is only in the eventuality of prejudice being shown that the meeting or the proceedings taken thereunder can said to be invalid. The Legislature has rightly not provided in the rule that non-compliance of any shortfall in the notice would render the meeting or the proceedings taken thereunder to be invalid. Hat that been the intention, the Legislature, obviously, would have provided since the law had been clearly settled by the time the Act was enacted and the Rules were framed by the judgment in Narasimaih's case (AIR 1966 SC 330). In that view of the matter, we are of the opinion that the ratio of the judgment of the Division Bench of this Court laid down in Anandareddy's case that non-service of notice of fifteen clear days would make the meeting and the proceedings taken thereunder null and void cannot be said to be correct law." This judgment appears to me to be pat on the question of compliances of CWP No. 1632 of 2012 -15- procedural and substantive aspects of the case.
19. Mr. Jain would next rely on a decision of the Aurangabad Bench of the Bombay High Court in the case of Nimba Rajaram Mali v. The Collector, Jalgaon and others,AIR 1999 Bombay 335. In this case notice of 'no confidence motion' was sought to be served against the Sarpanch Shri Vikram Ukhardu Bobade but he was found to have gone out of station, notice was tried to be served on his family members, who refused to accept notice. A report that Panchnama was drawn of the same day, signed by two witnesses in addition to the Talahti was made. Pasting was done on the house of the Sarpanch. In these circumstances the argument of improper service of notice on Shri Vikram Ukhardu Bobade was negatived by the Court that there was any failure to serve notice or that there was violation of Rules. In this judgment reliance has been placed on a earlier Division Bench judgment of that Court, which has been relied upon to hold that even if there is a technical flaw in the proceedings of a meeting of 'no confidence' or transmission of the results of the meeting to the Panchayat Samiti, that did not entitle the petitioner to continue as Sarpanch of the Gram Panchayat. It would best serve to quote the relevant part of para 12, which was read in fine tune by Mr. Jain:
"12. In the case of Smt. Annapurnabai Ajabrao v. Annapurnabai Anandrao, 1967 Mah LJ NOC 36, validity of the No Confidence Motion passed against the Sarpanch was challenged on the ground that :
(a) allegations with regards to the alleged mismanagement were too vague and did not furnish any particulars;
(b) no evidence was placed before the meeting to support the resolution;
(c) resolution was passed without sufficient discussion and inspite of explanation given by the petitioner and
(d) names of the persons voting in favour of the resolution and their signatures were not appended to the proceedings.
The Division Bench of this Court, while rejecting the petitioner's claim, observed as under :-
CWP No. 1632 of 2012 -16-
"Even if it were to be assumed that there was some technical flaw in the proceedings of the meeting or in transmission of the results of the meeting to the Panchayat Samiti, we do not see how that could entitle the petitioner to claim to continue as Sarpanch of the Gram Panchayat. A Gram Panchayat is essentially a democratic institution which must be run on democratic principles. When the majority of the members have clearly expressed that they do not desire the petitioner to be their leader and Sarpanch, appropriate attitude of the petitioner as a person working for democracy whatever have been to tender her resignation straightway. At any rate, it does not behave of democratic spirit to challenge the decision of the majority who unmistakably declared their want of confidence in their erstwhile leader. Democratic principles as has also a sense of self respect should have been impleaded the petitioner and persons situated in similar circumstances to graciously submit to the decision of the majority and to walk out of the Gram Panchayat. Notice raising frivolous contention and forcing herself on the democratic institution it does not want her to hold that position."
20. Since Mr. Bali has relied on a judgment rendered under the Income-tax Act, Mr. Jain has countered the same with another judgment of a Division Bench of this Court rendered in a tax matter itself in CWP No. 18193 of 2011 titled V.R.A. Cotton Mills(P) Ltd. v. Union of India and others, decided on 27.9.2011. Another judgment in the same context relied on by him is a Division Bench judgment of this Court in ITA No. 875 of 2010, titled Commissioner of Income Tax-I, Jalandhar v. Sh. K.G. Singhania, decided on 12.12.2011, rendered in the context of proviso to Section 143(2) of the Income Tax Act, 1961 and the interpretation placed on the expression "served" appearing in the said Section and that that expression means date of issue of notice. Mr. Jain has read the concluding para of the judgment in his favour :
"In view of the said judgment, the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression serve means the date of issue of notice. The date of CWP No. 1632 of 2012 -17- receipt of notice cannot be left to be undetermined upon the will of the addressee. Therefore, to bring certainly and to avoid attempts of the addressee to evade the process of receipt of notice, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to Section 143(2) of the Act. In fact that is the only conclusion that can be arrived at to the expression "serve" appearing in Section 143(2) of the Act."
On service upon servants and members of the family Mr. Jain has cited in his support a judgment of this Court reported in M/s. Prem Singh Devi Ditta Mal v. Municipal Committee, Kaithal etc., 1982 Current Law Journal 115.
21. Mr. Jain has pressed into service a decision of the Hon'ble Supreme Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and Anr., 2007(3) Recent Apex Judgments (R.A.J.) 177 rendered in the context of Negotiable Instruments Act, 1988.
22. Lastly, Mr. Jain has relied upon two recent Division Bench decisions of this Court rendered in LPA No. 179 of 2011 titled Harpal Singh v. Paramjit Kaur & others, decided on 29.8.2011 and LPA No. 1387 of 2011 titled Sarpanch, Gram Panchayat Phalerha, Block Sunam District Sangrur v. State of Punjab & others, decided on 15.12.2011, to contend that since the petitioner participated in the meeting of 'No Confidence' she would be deemed to have waived the condition of Rule 10.
23. I find force in the arguments of Mr. Jain and agree with him that this petition merits dismissal. There was compliance of the procedure laid down under Rule 10 of the Rules. Merely because the notice was served through speed post and not through the statutory mode of registered (AD) post would not itself furnish ground for upsetting the proceedings. Speed post is as good as AD registered post. In fact, to my mind, registered AD post in 1995 Rules may be anachronistic and may deserve inclusion as well as other modes of service including electronic modes to bring the procedural rule in sync with times. This is, CWP No. 1632 of 2012 -18- however, a matter for the legislature to contemplate. I would reject Mr. Bali's argument on this extremely technical attack. Further, that the word 'issue' employed in Rule 10 is clear, unambiguous and purposive and cannot be twisted out of context to mean "serve".
24. For the reasons recorded above, I find no merit in this petition, which is ordered to be dismissed. The result of no-confidence motion be declared forthwith and all such further steps be taken to give effect to the motion as are warranted in law.
16.04.2012 (RAJIV NARAIN RAINA) 'sp' JUDGE