Akhilesh Kumar Katiyar vs State Of U.P. And Others
2012 Latest Caselaw 2517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - C No. - 30679 of 2012
 

 
Petitioner :- Akhilesh Kumar Katiyar
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- K.M. Asthana
 
Respondent Counsel :- C.S.C.,Brij Raj
 

 
Hon'ble Sunil Ambwani,J.

Hon'ble Mrs. Sunita Agarwal,J.

We have heard Shri K.M. Asthana, learned counsel for the petitioner. Learned Standing Counsel appears for respondent nos.1 to 4. Shri M.D. Singh Sekhar, Sr. Advocate assisted by Shri Brij Raj appears for the respondent no.5.

The petitioner was elected as Pramukh Kshetra Panchayat, Barhpur, Distt. Farrukhabad on 22.11.2010 and was administered oath of office on 18.3.2012. A no confidence motion has been moved against him by more than 1/2 the members, on which the District Magistrate had called a meeting to consider the motion against the petitioner in a meeting on 1.6.2012. The petitioner challenged the validity of the notice in Writ Petition No.27808 of 2012, on the grounds that the notice has not been signed by the requisite number of members. Some of the members had given their affidavits that they have not signed the affidavit reducing the actual number of members, who had signed the notice to less than 1/2 of the elected members. The writ petition was dismissed on 31.5.2012.

On 29.5.2012 the Sub Divisional Magistrate, Sadar, who was nominated by the Collector to preside over the meeting sent a letter no.879 dated 29.5.2012 to the Collector, Farrukhabad stating that he has been nominated/ authorised to preside over the meeting to consider the no confidence motion convened on 11.00 a.m. on 1.6.2012. He has also been nominated as Election Officer in the general elections to the Local Bodies, 2012, of which the date of nomination have been notified on same day from 10.00 a.m. to 3.00 p.m.; in the circumstances, considering the important function of the nomination, he will be unable to preside over the meeting to consider the no confidence motion on 1.6.2012. The Sub Divisional Magistrate requested the District Magistrate to fix any other date for the meeting.

By the impugned order the District Magistrate has considering the reasons given by the Sub Divisional Magistrate in his letter dated 29.5.2012 accepted his request and adjourned the meeting, and while adjourning the meeting he has fixed the adjourned date for considering the notice of motion on 25.6.2012 at 11.00 a.m.

The order of adjournment of the meeting passed by the Collector on 29.5.2012 has been challenged on the grounds that under Section 15 (4-B) date and the time of the adjourned meeting could not be fixed by the Collector.

Section 15 (1) to (4-B) of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 is quoted as below:-

"15. Motion of no-confidence in Pramukh or-- (1) A motion expressing want of confidence in the Pramukh or any [x x x] of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.

(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra 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 Kshettra Panchayat.

(3) The Collector shall thereupon:--

(i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and

(ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed.

Explanation--In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notices of the meeting to the members, shall be excluded.

(4) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting;

Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division of the sub-divisional officer cannot for any reason preside, any stipendiary additional or assistant Collector named by the Collector shall preside at the meeting.

[(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).

(4-B) If the officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the members at least ten days' notice of the next meeting in the manner prescribed under sub-section 3.]"

Shri M.D. Singh Sekhar, learned counsel for the respondent no.5 states that the meeting may be adjourned for two reasons namely under sub-section (4-A), if within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B); in other event under sub-section (4-B) if the officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reason, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). In both the cases the SDM has to inform the Collector in writing of the adjournment of the meeting, the Collector shall give opportunity atleast ten day's notice of the next meeting in the manner prescribed under sub-section (3).

Section 15 of the Act provides for considering the notice of motion by the Collector. It is the Collector on the delivery of the notice of motion signed by more than 1/2 members of the Kshetra Panchayat, convene a meeting for consideration of the motion. The Collector has to fix a date appointed by him, which is not later than 30 days. It is Collector, who authorises SDO of the sub-division in which Kshetra Panchayt is situate to preside over the meeting. If the meeting is adjourned, it is Collector who has to give information to the members with atleast ten days of next date of the meeting in the manner prescribed under sub-section (3).

Though sub-section (4-A) and sub-section (4-B) provide that the Sub Divisional Magistrate, who has been authorised, if he is unable to attend the meeting within a hour of the time appointed for the meeting or is unable to preside for any reason, appoint a date and time, which shall not be 25 days, the words 'he may appoint' in sub-section (4-B), would not mean that the Collector ceases to have control over the proceedings.

The reliance upon the observations made by the Supreme Court in para 33 in Sharda Devi v. State of Bihar & Anr., (2003) 3 SCC 128 is not well placed. It is true that where the statute gives a power to a particular officer to exercise his discretion and to pass the orders, the power should be exercised by the same officer in the same manner. In the present case the powers to adjourn the meeting in the circumstances given in sub-section (A) and sub-section (B) are given by the Statute to the Sub Divisional Magistrate. The fixing of the date and time, which shall not be 25 days beyond the date fixed for the meeting, is ministerial action, which may in the given circumstances require the approval of Collector.

It is not denied that the Sub Divisional Magistrate has adjourned the meeting. The petitoner has also not challenged the validity of the reasons for which the meeting has been adjourned. The Sub Divisional Magistrate has after adjourning the meeting requested the Collector to fix a date. The discretion to fix a date within 25 days of the meeting, exercised by the Collector will not invalidate the action.

The Collector has accepted the reasons given in the letter of the Sub Divisional Magistrate and has fixed the meeting within 25 days of the adjourned meeting. It is the Collector, under sub-section (4-B), who has to give the notice to the members of the date of the adjourned meeting.

The Collector has accepted reasons given in the letter of the SDM, and has fixed the date within 25 days of the date of the meeting fixed by him. Since he retains control over the entire proceedings, fixation of date and time by him does not vitiate the proceedings in any manner.

The writ petition is dismissed.

Order Date :- 22.6.2012

SP/