Ajeet Gaur vs State Of U.P. And 5 Others
2017 Latest Caselaw 6885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- WRIT - C No. - 39775 of 2017
 
Petitioner :- Ajeet Gaur
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Nipun Singh,Anurag Khanna
 
Counsel for Respondent :- C.S.C.,Anoop Trivedi
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble Jayant Banerji, J)

The petitioner who is an elected Member of Zila Panchayat, Aligarh has filed this petition seeking the following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order being Paper No. 1432/S.T. Dated 25.8.2017 passed by the respondent no. 3/ 4 (Annexure no.1 to the writ petition) and order No. 3079/33-2-2017-100 (33)/17 dated 25.8.2017 passed by the respondent no.2 (Annexure no.2 to the writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Aligarh/respondent no.3/ 4 to fix the date for convening the meeting of No Confidence Motion against the respondent n o.5 forthwith by sending a clear cut 15 days notice to all the Members of Zila Panchayat;

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.6 to monitor the working and conduct of the District Magistrate, Aligarh/ respondent no. 3/ 4 in dealing with the No Confidence Motion proposed against the respondent n o. 5 and ensure that the District Magistrate, Aligarh must act strictly in accordance with statutory provision and as well as strictly in accordance with the direction of this Hon'ble Court in writ petition No. 31329 of 2017 and 35221 of 2017 or in alternative this Hon'ble court may be pleased to direct some independent body/person to conclude the proceedings of No Confidence motion proposed against the respondent no.5;

(iv) Issue a writ, order or direction in the nature of mandamus directing the respondent no.1 to conduct a high level enquiry against the respondent no.3, as to why he is protecting and safeguarding the interest of the respondent no.5 in utter violation and defiance of the orders passed by this Hon'ble court and the enquiry report may be submitted before this Hon'ble court for taking necessary action against the respondent no.3;

(v) Issue a writ, order or direction in the nature of mandamus directing the respondent no. ¾ to exclude the days, during which the notice and No Confidence Motion lying rejected in terms of the impugned order in calculating the period of 30 days as contemplated under Section 28(3) of Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961;

(vi) Issue an order or direction, drawing the suo-moto contempt proceedings against the respondent no.4, by this Hon'ble court, while exercising the powers, conferred under Article 215 of the Constitution of India and to punish him accordingly for willfully and deliberately flouting the directions of this Hon'ble Court, or as this Hon'ble court may otherwise deem fit and proper under the facts and circumstances of the case."

When this matter came up before the Court on 4 September 2017, after hearing the learned counsel for the parties including the learned Additional Advocate General appearing for the State, the Court observed as follows:

"It transpires from the records that earlier Writ-C No.31329 of 20171 was filed by Upendra Singh, the elected Adhyksha of the Zila Panchayat, to assail the notice dated 12 July 2017 that had been issued by the District Magistrate, Aligarh for convening a meeting of the members of the Zila Panchayat, Aligarh for consideration of the 'No Confidence Motion' moved against him. Number of submissions were raised on his behalf to assail the notice that was issued, but learned counsel appearing for the member who had moved the motion of no confidence, submitted that the members who had moved the motion will withdraw it but liberty may be granted to move a fresh motion as was also provided by a Division Bench of this Court in Chhatrapal Singh Vs. State of U.P. & Ors.2 It is for this reason that the Court disposed of the writ petition with the following observations :

"On behalf of the writ petitioner various issues have been raised with regards to the legality of the notice issued.

Shri Anurag Khanna, Senior Advocate appearing on behalf of respondent no. 4 submits that the members who had moved the motion shall withdraw the same but liberty may be granted to move a fresh motion as has been provided by the Division Bench of this Court in the case of Chhatrapal Singh vs. State of U.P. & Others reported in 2003 (6) AWCJ, 5635.

Shri Shashi Nandan, Senior Advocate appearing on behalf of the petitioner has no objection. However he submits that right of the petitioner to object to the fresh motion be left intact.

Since the person who had moved the No Confidence Motion want to withdraw the same with liberty as aforesaid, we see no reason to enter into the correctness or otherwise of the notice issued by the District Magistrate, Aligarh now. In view of the law laid down by the Division Bench of this Court in the case of Chhatrapal Singh (Supra), liberty is granted to the members to move a fresh motion before the District Magistrate, Aligarh. The District Magistrate, Aligarh in turn examine the same strictly in accordance with the law laid down by the Full Bench of this Court in the case of Smt. Sheela Devi & Others vs. State of U.P. & Others reported in 2015 (2) ADJ 325 within the time frame permitted. There should be no complaint to this Court that the action required under the statutory provision has not been taken by the District Magistrate, Aligarh.

All the rights of the petitioner to oppose the new motion are left intact. Nothing more remains to be examined in this petition.

With the aforesaid observation/ direction the present writ petition is disposed of."

It is stated that 29 members of the Zila Panchayat including the petitioner again submitted a No Confidence Motion on 28 July 2017 before the District Magistrate on 29 July 2017 but the District Magistrate did not accept the motion of no confidence. Ultimately, the petitioner had to file Writ-C No.35221 of 20173 to seek a direction that the District Magistrate should receive the No Confidence Motion and convene a meeting for bringing the No Confidence Motion. This petition was disposed of on 11 August 2017 with a direction to the District Magistrate to receive the notice and deal with the same in accordance with law. The relevant portion of the judgment is reproduced below :

"The only prayer made in the instant writ petition reads thus:

"i. Issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Aligarh/respondent on.2 to receive the notice and as well as copy of the proposed motion of No Confidence brought against the respondent no.3 and accordingly convene a meeting for bringing No Confidence Motion against the respondent no.3."

Counsel for respondent no.2, submits that respondent no.2 shall receive the notice to be tendered by the petitioner or any other person for that matter, with a copy of proposed motion of no confidence against respondent no.3 and, shall take further steps in accordance with law. His statement is recorded and accepted.

In view thereof, the District Magistrate, is directed to receive the notice, as aforementioned, and deal with the same in accordance with law. The writ petition is, accordingly, disposed of."

It is stated that the District Magistrate then accepted the No Confidence Motion on 17 August 2017 but sought a query from the State Government as to whether, in view of the provisions of section 28(12) of the U.P. Kshettra Panchayats & Zila Panchayats Adhiniyam, 1961,4 there would be a bar in receiving a fresh motion of no confidence until after the expiration of one year from the date the earlier meeting was scheduled to take place.

The Special Secretary in the State Government sent a communication dated 25 August 2017 informing the District Magistrate, Aligarh on the basis of the legal opinion received from the State Government, that the bar contemplated under sub-section (12) of section 28 of the Act would operate and, therefore, the District Magistrate was directed to act in accordance with the opinion rendered. The District Magistrate then sent a communication dated 25 August 2017 to the petitioner informing him that because of the aforesaid opinion given by the State Government regarding the bar contained in sub-section (12) of section 28 of the Act, the motion of no confidence has been rejected."

With regard to the communication dated 25 August 2017 sent by the Special Secretary, Government of Uttar Pradesh, Lucknow to the District Magistrate, Aligarh on the basis of a legal opinion regarding the bar contemplated under sub-section (12) of Section 28 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 19614 the Court observed as follows:

"Prima facie, on a plain reading of sub-section (12) of section 28 of the Act, the bar contained in sub-section (12) of section 28 of the Act may not operate in a case where the motion is withdrawn. This is clear from the use of the word "if the motion is not carried as aforesaid" in sub-section (12). This indicates that the procedure set out in the earlier sub-sections (1) to (11) have been undertaken. Sub-section (11) deals with a case where the motion is carried after the debate and sub-section (12) would, therefore, deal with a case where the motion is not carried after the debate.

This apart, it has also been submitted by learned Senior Counsel for the petitioner that liberty had been granted to the petitioners in the earlier writ petition filed by Upendra Singh to move a fresh motion before the District Magistrate who was also directed to examine the said motion strictly in accordance with the law laid down by the Full Bench of this Court in Sheela Devi within the time frame permitted. The District Magistrate was also reminded that there should be no complaint to this Court that the action required under the statutory provisions was not taken by the District Magistrate.

We, therefore, call upon the District Magistrate, Aligarh who passed the order dated 25 August 2017 to file his personal affidavit to explain why the impugned order was passed, particularly when the Division Bench of this Court in Writ-C No.31229 of 2017 filed by Upendra Singh had issued clear directions. The District Magistrate must also state in his personal affidavit as to whether the petitioners actually went to his office to serve the No Confidence Motion on various dates mentioned in the writ petition and if so, then whey he had not received the motion.

The Joint Secretary in the State Government who sent the communication dated 25 August 2017 shall also file his personal affidavit to explain why the communication was sent to the District Magistrate and shall also enclose the copy of the legal opinion referred to in the said communication."

The Court went on to observe that even if the Court were to quash the order passed by the District Magistrate, Aligarh, it would not be possible for the District Magistrate to hold a fresh meeting within 30 days from the date of submission of the no-confidence motion because the District Magistrate has to give to the elected members a notice in the manner prescribed of not less than 15 days of such meeting. Therefore, the Court left it open to the members of the Zila Panchayat to move a fresh motion before the district Magistrate which was directed to be dealt with strictly in accordance with law.

The record of the State Government and that of the District Magistrate, Aligarh were required to be produced by the learned Additional Advocate General before the Court.

We have heard Sri Anurag Khanna, learned Senior Counsel assisted by Sri Nipun Singh for the petitioner, learned Additional Advocate General, appearing for respondent nos. 1,2,3, 4 and 6 and Sri Anoop Trivedi, learned counsel appearing for respondent no.5-Adhyaksha of the Zila Panchayat5.

On 19 September 2017, pursuant to the order dated 4 September 2017 passed by the Court, the Special Secretary (Panchayati Raj) in the State Government as also the District Magistrate/Collector, Aligarh filed their personal affidavits. A supplementary affidavit was also filed by the petitioner. Learned Standing Counsel was also directed to seek instructions from the District Magistrate, Aligarh regarding the averments made in the supplementary affidavit filed by the petitioner.

Sri Sushil Kumar Maurya, the Special Secretary (Panchayati Raj), Government of U.P. in his personal affidavit has stated that the District Magistrate/Collector, Aligarh vide his letter dated 21 August 2017 sought instructions/ opinion from the Principal Secretary ( Panchayati Raj) in the light of Section 28 (12) of the Act, wherein, it has been provided that if the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha shall be received until after the expiration of one year from the date of such meeting. It was also stated that the legal opinion was sought from the Law Department, Government of U.P. The opinion of Sri Vipin Kumar, Special Secretary (Judicial and Additional Legal Remembrancer)6, Government of U.P. has been enclosed as annexure CA-2 to the personal affidavit filed on behalf of Special Secretary (Panchayati Raj), Government of U.P. The Addl. L.R. has opined that since the motion for no-confidence was withdrawn before the High Court , the meeting could not be held, and the effect of which is as if the motion of no-confidence was not passed, or that the meeting could not be held for want of quorum. Thus from the date of meeting which was 29 July 2017, a fresh motion of no-confidence against the Adhyaksha of the Zila Panchayat cannot be accepted till one year elapses. This opinion of the Addl. L.R has also been endorsed by the Officiating Principal Secretary, Judicial and Legal Remembrancer, Government of U.P. on 24 August 2017. This personal affidavit of the Special Secretary goes on to state that the aforesaid opinion of the Principal Secretary (Law) was communicated to the District Magistrate, Aligarh by means of a letter dated 25 August 2017.

In the personal affidavit filed by Sri Hrishikesh Bhaskar Yashod, the District Magistrate, Aligarh, it is stated that in compliance of the order dated 26 July 2017 passed in Writ-C No. 31329 of 2017, the duly signed no-confidence motion was presented by the petitioner on 17 August 2017 which was received by him on the same day. It was submitted that while receiving the no-confidence motion, the signatories were not present and that no-confidence motion was signed on 27 July 2017. It has been further stated that against the proposal of no-confidence motion, Sri Upendra Singh, respondent no.5 filed his written objection on 18 August 2017 regarding applicability of Section 28(12) of the Act. The deponent then sought instructions/legal opinion from the Principal Secretary (Panchayati Raj), Government of U.P. and in pursuance thereof, the legal opinion of Law Department of the Government of U.P. was communicated to the deponent vide letter dated 25 August 2017 and agreeing with the clarification, the District Magistrate passed the impugned order dated 25 August 2017 rejecting the proposal of no-confidence motion. The affidavit further state as follows:

"17.That the deponent has never denied an opportunity to the petitioner to present the Non confidence motion at this office.

18. That even in the instance of first Non Confidence Motion which was withdrawn without any reason by the petitioner the process of accepting the Non Confidence Motion and giving date for floor test was completed by deponent between 1.7.2017 to 12.7.2017 which was well within the time frame specified in the Act.

19. That the petitioner claims that his request to submit Non Confidence Motion on 13, 14, 15 and 16.8.2017 was rejected is incorrect. The fact is that 13.8.2017 and 15.8.2017 were a public holiday. On 14, 16 and 17th August 2017 the deponent was occupied in organizing and coordination the visit of senior officers deputed by State Government to carry out inspections in the District and preparations for peaceful conduct of Independence Day celebrations in the district. The deponent duly received the Non Confidence Motion on 17.8.2017.

20. That in compliance of order dated 4.9.2017 the deponent has accepted the fresh no confidence motion on 11.9.2017. The date for floor test in the House has not been decided in anticipation of upcoming hearing before the Hon'ble Court on 19.9.2017, which is within the time limits prescribed by the Act.".

In reply to the aforesaid personal affidavit of District Magistrate/Collector, Aligarh filed on 19 September 2017, the petitioner filed a counter affidavit in which the allegations made by the District Magistrate were denied. In the supplementary affidavit filed by the petitioner on 19 September 2017, the following allegations have been levelled against the District Magistrate, Aligarh:

"11. That the District Magistrate from his actions has proved that he is biased and colluded with the respondent no.5 and his uncle, which is apparent from the fact that the District Magistrate has set up an enquiry through the District Inspector of Schools and Regional Higher Education and Tehsildar Khair, Aligarh against the petitioner in respect to his educational institutions.

12. That on the behest of the District Magistrate, the medical store of one of the member namely Anil Rana has been raided by the team constituted by the District Magistrate.

13. That another member of Zila Panchayat namely Sulekha Singh, whose husband is a qualified Doctor, is also facing the enquiry, set up on the behest of the District Magistrate regarding the qualification of her husband.

14. That indirectly the district Magistrate is pressurizing not only to the petitioner but as well as other members, so that No Confidence Motion brought against the respondent no.5 may fail and because of this reason only the District Magistrate is killing the time for giving advantage and benefit to the respondent no.5 to win over the members, who have signed the proposed motion of no confidence and notice. A copy of the notice given to the husband of Sulekha singh is being filed herewith and marked as Annexure no. S.A. 4 to this affidavit.

15. That unfortunately because of this ordinate delay one of the member namely Mamta Devi, who had earlier signed the No Confidence Motion and notice twice, has withdrawn herself in signing the fresh motion of No Confidence and notice, as her husband, who is the government servant in the nearby district has been suspended by the State Government, just because Mamta signed the notice of no confidence."

Despite time being granted on 19 September 2017 to the learned Standing Counsel to seek instructions from the District Magistrate to the averments made in the Supplementary Affidavit filed on 19 September 2017, no instructions/ affidavit rebutting the averments have been filed.

On 4 October 2017, when the matter again came up before the Court, the Court was informed that no-confidence meeting has been scheduled for 6 October 2017. Accordingly, the Court directed the matter to be placed on the board on 9 October 2017.

On 9 October 2017 a supplementary affidavit was filed by the petitioner pointing out that on 2 October 2017, a First Information Report was lodged against Sudhir Kumar and Suman Diwakar under Section 364 of Indian Penal Code and they were arrested on 6 October 2017 before the meeting for consideration of no-confidence motion fixed on 6 October 2017. It was stated that on account of heavy pressure of the District Administration and because of arrest of two members, the remaining members who had signed the notice of no-confidence could not attend the meeting.

This Court directed the Collector, Aligarh to file his personal affidavit whether the FIR was lodged on 2 October 2017 and whether the said two members namely Sudhir Kumar and Suman Diwakar were arrested in the morning of 6 October 2017 when the meeting for holding of no-confidence motion was called for in the office of Zila Panchayat at 11.00 a.m.

On 23 October 2017 a personal affidavit of the Collector, Aligarh was filed in compliance of the Court's order dated 9 October 2017. The allegations of the supplementary affidavit filed by the petitioner on 9 October 2017 were denied and it was stated that a Senior Judicial Officer was deputed by the District Judge, Aligarh to function as Presiding Officer to conduct the meeting for consideration of the no-confidence motion on 6 October 2017 and all the arrangements were made under the supervision of the Presiding Officer. It was stated that the FIR was lodged on 2 October 2017 on the complaint of one Gaurav Kumar alleging that his mother Suneeta Devi who is also a member of Zila Panchayat was abducted against her wishes by Shri Sudhir Chaudhary and one unknown female. It was stated that Sudhir Kumar and Suman Diwakar were not arrrested on 6 October 2017 to prevent them from voting. The report submitted by the Senior Superintendent of Police, Aligarh dated 14 October 2017 was enclosed with the affidavit.

On 27 October 2017, a counter affidavit to the personal affidavit of District Magistrate/Collector, Aligarh filed on 23 October 2017 was filed on behalf of the petitioner in which the avermenets made by the District Magistrate/Collector were denied and it was stated that 27 members of the Zila Panchayat were present at Allahabad on 23 October 2017 in order to demonstrate that all of them are still in favour of no-confidence motion brought against the respondent no.5 and there could not be any reason for them not to participate in the meeting of no-confidence motion on 6 October 2017. It was further stated in the affidavit as follows:

"5. That in fact when initially No Confidence Motion was sought against the respondent no.5, there were 29 members, who were in favour of passing the No Confidence Motion against the respondent no.5 but due to heavy political and administrative pressure, one of the member namely Mamta withdrew herself from the Group of 29 members, resulting into remaining 28 members. The reason of Smt. Mamta's had withdrawal was that her husband was suspended by the State Government on account of some frivolous charges, which compelled her to withdrew herself from No Confidence Motion.

6.That it is further submitted that on 6.10. 2017, the leader of the Group namely Sri Sudhir and Suman Diwakar were arrested by the police of police station Banna devi on account of one frivolous and false F.I.R got lodged under the pressure of District Administration, respondent no.5 and his uncle Jaiveer Singh ( ex-minister) and on account of the heavy deployment of police force and pressure of district administration none of the member after arresting of main leader of the group and another member Suman Diwakar could not dare to appear in the meeting of No Confidence Motion.

7.That it is further submitted that unfortunately after the episode of 6 October 2017 one of the member namely Meghraj has also left the Group, just because of heavy political and administrative pressure, resulting into remaining 27 members. The 27 members are still sufficient to pass the meeting of No Confidence Motion against the respondent no.5, as the house is having 52 members.

8.That it is further submitted that in case this Hon'ble court may be pleased to direct the remaining 27 members to cast their votes in respect to the No Confidence Motion brought against the respondent no.5, 27 members who are present today at Allahabad, shall undertake that all of them, shall appear before this Hon'ble court and will certainly cast their votes of No Confidence Motion against the respondent no.5. The District Magistrate is very cleverly trying to escape from his liability and his involvement in safeguarding the interest of respondent no.5 by filing false and incorrect affidavit, in order to mislead this Hon'ble court. The District Magistrate has very cleverly sought the report of Senior Superintendent of Police, Aligarh, who had also given an absolutely vague report stating therein that "iqfyl }kjk mDr iathd`r vfHk;ksx ds flyflys esa fdlh Hkh O;fDr dks fgjklr esa ugha fy;k x;kA

9. That it is further submitted that the report of Senior Superintendent of Police, Aligarh further reveals that even the Senior Superintendent of Police, Aligarh was aware about the video of alleged Sunita Devi, who got her video viral saying therein that no body has kidnapped her and infact her son namely Gaurav was forcefully taken by police under the pressure of the uncle of the respondent no.5 namely Jaiveer Singh ( ex-minister).

10. That it is further submitted that once the Senior Superintendent of Police, Aligarh and the entire district administration including the police of the police station Atrauli were aware that there was no kidnapping of Sunita Devi (Member of Zila Panchayat), but yet the police arrested two members of the Zila Panchayat, Aligarh namely Sudhir and Suman Diwakar, who were allegedly involved in the alleged kidnapping case.

11. That it is further submitted that the police/District Magistrate/Senior Superintendent of Police can never accept that they arrested two members of Zila Panchayat on the fateful day.".

On 27 October 2017 itself, another affidavit was filed by the petitioner enclosing bio-metric photographs of 27 members of the Zila Panchayat, Aligarh including the petitioner in order to show that they were present at Allahabad on 23 October 2017 to demonstrate that they are still in favour of no-confidence motion moved against the Adhyaksha. Along with this affidavit, identical affidavits of 27 members of the Zila Panchayat were also filed. In each of these 27 affidavits, it was stated that the deponents have no-confidence in Upendra Singh, Adhyaksha of the Zila Panchayat, Aligarh and that the District Magistrate/Collector, Aligarh was openly biased to the extent that members of Zila Panchayat were prevented from going to the place of voting in respect of their no- confidence motion, the voting of which was to be held on 6 October 2017.

On 27 October 2017, an affidavit on behalf of respondent no.5-Upendra Singh (Adhyaksha of the Zila Panchayat) was also filed. In the counter affidavit dated 29 October 2017 filed by the petitioner in reply to the affidavit of Upendra Singh it was reiterated that two members of Zila Panchayat, Aligarh of the petitioner's group, namely Sudhir Kumar and Suman Diwakar were arrested by the police. It was stated that Smt. Sunita Devi was not kidnapped and in fact her son was forcefully taken away by the police under the pressure of Adhyaksha for lodging a false case. It was stated that in the early hours of 6 October 2017, the entire Group of 28 members of Zila Panchayat, Aligarh who wanted to cast their votes in favour of no-confidence motion brought against respondent no. 5 assembled, so that they may move in a group for reaching the meeting point but on the way to the meeting point, two of the members of the Group were arrested and on account of heavy political and administrative pressure including the deployment of heavy police force, no member of the Group, and the other members of Zila Panchayat, Aligarh, who were in support of the Adhyaksha had attended the meeting and the newspaper reports show the presence of all the members in the early hours of 6 October 2017 and therefore, no meeting was held on 6 October 2017.

The learned Additional Advocate General appearing for the State has submitted that in the aforesaid counter affidavit dated 29 October 2017 filed by the petitioner, no where it has been stated that the two persons namely Sudhir Kumar and Suman Diwakar were restrained or detained by the police. As a matter of fact, it has been categorically reasserted that they were arrested. Further, it is argued, that the petitioner has not given any reason why the remaining members did not proceed to the venue of the meeting.

In view of the facts and circumstances, the Court would proceed to examine the case on the following aspects:

A. What are the requirements of Section 28 of the Act with regard to Motion of No Confidence in Adhyaksha and the role of the Collector therein?

B. Whether the Collector has acted in accordance with the provisions of Section 28 of the Act in consonance with the orders passed by the Court in the previous writ petitions?

C. Whether the petitioner is entitled to any relief?

We now proceed to examine these questions serially.

A. What are the Requirements of Section 28 of the Act with regard to Motion of No Confidence in Adhyaksha and the role of the Collector therein?.

At the outset, it would be important to state the contents of Section 28 of the Act.

"28. Motion of no-confidence in Adhyaksha-

(1) A motion expressing want of confidence in the Adhyaksha or ( x x x ) of a Zila 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 not less than one-half of the total number of elected members of the Zila Panchayat for the time being, together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the collector having jurisdiction over the Zila Panchayat.

(3) The Collector shall thereupon-

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

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

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

(4) The Collector shall arrange with the District Judge of the district to preside at such meeting.

Provided that the District Judge may instead of presiding himself direct a Civil Judicial Officer not below the rank of a Civil Judge subordinate to him to preside at the meeting.

(4A) 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).

(4B) 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 4. Substituted by U.P. Act No. 9 of 1994.[elected members] at least ten days notice of the next meeting in the manner prescribed under sub-section (3).]

(5) Save as provided in sub-sections (4-A) and (4-B) a meeting convened for the purpose of considering a motion under this section shall not be adjourned.

(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Zila Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.

(7) No debate on the motion under this section shall be adjourned.

(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.

(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.

(10) A copy of the minutes of the meeting together with a copy of the motion and the result of voting thereon shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Collector.

(11) If the motion is carried with the support of more than half of the total number of elected members of the Zila Panchayat for the time being -

(a) the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette; and

(b) the Adhyaksha [or the [x x x] ], as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat.

(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha [or the [x x x] ], as the case may be, shall be received until after the expiration of one year from the date of such meeting.

(13) No notice of a motion under this section shall be received within one year of the assumption of office by an Adhyaksha, [or the [x x x] ], as the case may be."

In this regard, the role of the Collector in upholding the rule of law and of ensuring compliance of every provisions of Section 28 of the Act is of utmost importance. His objective supervision and judicious intervention are sine qua non. The Collector is enjoined to take delivery of written notice of intention to make no-confidence motion in the prescribed form signed by not less than half of the total number of the elected members of the Zila Panchayat together with a copy of the proposed motion from any one of the members signing the notice. Thereupon, the Collector has to convene a meeting of the Zila Panchayat for consideration of the motion at the office of Zila Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him and give to the elected members notice of not less than fifteen days of such meeting in the prescribed manner. The Collector is required to arrange with the District Judge to preside at such meeting of no-confidence.

Sub-section (4-A) and (4-B) provide for adjournment of the meeting in view of the specified inabilities of the Presiding Officer of the meeting. Sub-section (5) imposes a prohibition on the adjournment of the meeting convened for the purpose of considering of motion of no-confidence save as provided in sub-sections (4-A) and (4-B). After following the procedure for the meeting convened for consideration of motion of no-confidence as provided under sub-sections (6),(7),(8) and (9), the Presiding Officer under sub-section (10) is enjoined to forward a copy of the minutes of the meeting together with a copy of the motion and the result of voting thereon forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Collector.

Sub-section (11) of Section 28 of the Act provides that if the motion is carried with the support of more than half of the total number of elected members of the Zila Panchayat for the time being, the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette and, the Adhyaksha of the Zila Panchayat shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat.

Sub-section (12) of Section 28 of the Act provides that if the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha, shall be received until after the expiration of one year from the date of such meeting.

Sub-section (13) provides that no notice of a motion under this section shall be received within one year of the assumption of office by an Adhyaksha.

Under sub-section (12) of Section 28 of the Act, where motion is not carried " as aforesaid" or if the meeting could not be held for want of quorum, the Collector is barred from receiving the notice of any subsequent motion expressing want of confidence in the Adhyaksha until after the expiration of one year from the date of such meeting. The word "such" occurring in sub-section 12 of Section 28 of the Act is of prime importance for the purpose of interpretation of this sub-section. The Collector has to satisfy himself that the specified precondition of such meeting exists which would bar him from receiving the notice of a motion of no-confidence.

The Collector has to ensure that the meeting for consideration of motion of no- confidence has been convened and held in accordance with the procedure prescribed in each sub-section of Section 28 and only after he is satisfied that motion of no-confidence has not been carried therein or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha shall be received until after the expiration of one year from the date of such meeting.

(B) Whether the Collector has acted in accordance with the provisions of Section 28 of the Act in consonance with the orders passed by the Court in the previous writ petitions?.

As stated above, the earlier Writ-C No. 31329 of 2017 was filed by Adhyaksha of the Zila Panchayat, the elected Adhyaksha of the Zila Panchayat challenging the notice dated 12 July 2017 issued by the District Magistrate/Collector, Aligarh for convening a meeting of members of Zila Panchayat for consideration of motion of no-confidence moved against him. The writ petition was disposed of on 26 July 2017 in view of the submissions of the learned Senior Counsel, appearing on behalf of one of the respondents that the members who had moved the motion shall withdraw the same but liberty may be given to move a fresh motion as has been provided by the Division Bench of this Court in the case of Chhatrapal Singh Vs. State of U.P and Ors. (supra). The learned Senior Counsel appearing on behalf of the petitioner in that writ petition had stated that he had no objection but he had submitted that the right of the petitioner to object to a fresh motion be left intact. The Court granted liberty to the members to move a fresh motion before the District Magistrate in view of the law laid down by the Division Bench of this Court in Chhatrapal Singh who was enjoined to examine the same strictly in accordance with the law laid down by the Full Bench of this Court in Smt. Sheela Devi within the time frame permitted. It was clarified by the Court that there should be no complaint to this Court that the action required under the statutory provision has not been taken by the District Magistrate, Aligarh.

Thereafter, 29 members of Zila Panchayat including the petitioner again submitted a no-confidence motion against the Adhyaksha of the Zila Panchayat on 28 July 2017 before the District Magistrate/Collector, Aligarh in pursuance of the order of the Court in Writ-C No. 31329 of 2017. However, it is stated that the District Magistrate/Collector did not accept the motion of no-confidence and after obtaining the certified copy of the order dated 26 July 2017, the petitioner again appeared before the District Magistrate/Collector, Aligarh on 31 July 2017 for delivering the copy of notice as well as proposed motion of no-confidence against the Adhyaksha but the Collector asked the petitioner to come on 1 August 2017 but the Collector did not accept the notice of motion also on 1 August 2017 nor on 2 August 2017. However, it has been stated in the writ petition that a copy of the representation dated 2 August 2017 submitted by the petitioner ventilating his grievance for delivering a copy of notice and no-confidence motion was received by the Collector. Since the Collector failed to fix a date for convening the meeting of no-confidence motion against the Adhyaksha of the Zila Panchayat, Aligarh, the petitioner again filed a Writ-C No. 35221 of 2017 which petition came to be disposed of on the statement made on behalf of the District Magistrate/Collector, Aligarh that he would receive the notice to be tendered by the petitioner or any other person with a copy of proposed motion of no-confidence against the Adhyaksha and shall take further steps in accordance with law. The District Magistrate was directed to receive the notice and deal with the same in accordance with law. This order was passed by the Court on 11 August 2017.

It is stated that the petitioner repeatedly approached the District Magistrate/Collector, Aligarh on 13,14,15 and 16 August 2017 and on 16 August 2017, the Collector again refused to accept the notice on the ground that the petitioner would have to appear along with all the members who had signed the notice for convening the meeting of no-confidence. The writ petition refers to the newspaper reports regarding callous attitude of District Magistrate/Collector, Aligarh and the representations sent by the petitioner to the Human Right Commission, Chief Minister of Uttar Pradesh, Hon'ble the Chief Justice, Allahabad High Court and the Commissioner of Aligarh. On 17 August 2017, the District Magistrate, after asking the petitioner to write an application, received the same along with the copy of notice as well as proposed motion of no- confidence duly signed by the 29 members of the Zila Panchayat, Aligarh. It has been stated in the writ petition that the petitioner came to know that the proposed no-confidence motion was rejected by the Collector, Aligarh.

In the personal affidavit filed on 19 September 2017 by the District Magistrate/Collector, Aligarh, it has been stated that in compliance of the order of this Court dated 26 July 2017 passed in Writ-C No. 31329 of 2017, duly signed no-confidence motion was presented by the petitioner on 17 August 2017 which was duly received by the Collector on the same day. It has been further stated therein that the written objection dated 18 August 2017 was filed by Sri Upendra Singh, respondent no.5 against the proposal of no- confidence regarding applicability of Section 28(12) of the Act to the no-confidence motion. The District Magistrate/Collector then proceeded to seek instructions/legal opinion from the Principal Secretary (Panchayati Raj), Government of U.P and acting on the legal opinion of the Law Department which was communicated to the Collector by means of letter dated 25 August 2017, the Collector rejected the proposal of no-confidence moved by the petitioner and other members of the Zila Panchayat against the Adhyaksha. It is clear that the District Magistrate/Collector has overlooked the observations made by the Court in the order dated 26 July 2017 in Writ-C No. 31329 of 2017 that withdrawal of the motion was permitted by the Court with the liberty to move a fresh motion. As such, there was no valid reason for the District Magistrate to overlook this aspect of the matter and proceed blindly on the opinion rendered by the Addl. L.R. Thus, the conduct of the District Magistrate/Collector in rejecting the motion appears to be tainted with malfides.

The provisions of the Act, as has been specified above, impose a legal obligation on the Collector to carry out the intention of the legislature according to the procedure specified in Section 28 of the Act. In view of the clear directions passed by this Court dated 26 July 2017 in Writ-C No. 31329 of 2017, there was no occasion or reason for the District Magistrate/Collector to delay the acceptance of notice of no- confidence as well as motion signed by the more than half of the elected members of the Zila Panchayat. It is apparent that the necessary action required under the statutory provisions was not taken by the Collector. This deliberate inaction on the part of the Collector, Aligarh led to filing of the second Writ Petition No. 35221 of 2017 which was disposed of on 11 August 2017 with a clear direction to the District Magistrate/Collector to receive the notice of no-confidence and to deal with the same in accordance with law.

From perusal of the personal affidavit of the District Magistrate/Collector, it transpires that an objection was filed by the Adhyaksha of Zila Panchayat, Aligarh raising an issue about applicability of sub-sections (12) of Section 28 of the Act. A reading of sub-section (12) of Section 28 of the Act leaves no room for doubt that the sub-section would come into operation only if the motion of no-confidence considered at a previous meeting is not carried "as aforesaid" or if the meeting "could not be held for want of a quorum". From the record, it is clear and evident that no meeting of the Zila Panchayat, Aligarh was held prior to passing of the order of the Court dated 11 August 2017 in Writ-C No. 35221 of 2017. As such the conduct of the District Magistrate/Collector, Aligarh in rejecting the written notice of intention to make the motion on 25 August 2017 is based on specious considerations and contrary to the provisions of Section 28 of the Act. As a matter of fact, a duty is cast on the Collector to ensure strict compliance of the provisions of Section 28 of the Act. The conduct of the District Magistrate/Collector in referring the matter to the State Government for instructions on an issue that could very well have been enquired by himself is nothing short of an attempt to shift or share his responsibility under the Act. Even the opinion of the Special Secretary and Legal Remembrancer, Government of U.P which has been filed along with the personal affidavit of the Special Secretary (Panchayati Raj) on 19 September 2017 shows that the opinion has been tendered mechanically, without proper application of mind and overlooking the orders of the Court passed in the previous two writ petitions. The District Magistrate/Collector, in turn, has proceeded mechanically on the opinion so forwarded by the State Government. The aforesaid facts and circumstances leads the Court to infer that the provisions of Section 28 of the Act have been subverted by the District Magistrate/Collector, Aligarh.

C. Whether the petitioner is entitled to any relief?.

In the present writ petition, subsequent to the order dated 4 September 2017 passed by the Court, steps were taken by the District Magistrate/Collector for convening the meeting of Zila Panchayat for consideration of motion at the office of Zila Panchayat on 6 October 2017. As stated in the supplementary affidavit filed by the petitioner on 9 October 2017 an FIR was lodged on 2 October 2017 against the two members of the Zila Panchayat namely Sudhir Kumar and Suman Diwakar under Section 364 of Indian Penal Code and Sudhir Kumar was the leader of the group under whose leadership the no-confidence motion was brought against the Adhyakshya. It has been stated that the aforesaid Sudhir Kumar and Suman Diwakar were arrested by the police while they were going to participate in the meeting to be held on 6 October 2017 resulting in remaining 26 members whereas 27 votes were required to pass the motion of no-confidence. In the affidavit filed in reply to this supplementary affidavit, it has been denied that the aforesaid Sudhir Kumar and Suman Diwakar were arrested. In the rejoinder affidavit filed to this counter affidavit, it has been reiterated by the petitioner that the aforesaid Sudhir Kumar and Suman Diwakar were arrested. Nowhere has it been stated by the petitioner that the Sudhir Kumar and Suman Diwakar were detained or apprehended or restrained by the police from proceeding to the venue of the meeting of the no- confidence motion on 6 October 2017. Further, there is no averment by the petitioner as to what prevented the remaining 26 members to proceed to the venue of the meeting. Nowhere has it been stated by the petitioner that the aforesaid Sudhir Kumar and Suman Diwakar were granted bail after being arrested by the police. Learned Standing Counsel has produced before the Court a copy of the letter dated 6 October 2017 addressed respectively to the Additional Chief Secretary (Panchayati Raj), Government of U.P and to the District Magistrate, Aligarh informing them that in absence of the every members of the Zila Panchayat, Aligarh, the meeting/voting could not be done.

In view of the aforesaid, the Court cannot but infer that the elected members were not restrained from attending the meeting convened by the Collector for consideration of no-confidence motion against the Adhyaksha on 6 October 2017. As such the petitioner is not entitled to any relief from this Court.

In view of the facts and circumstances stated above, this writ petition fails and is, accordingly, dismissed.

Order Date :- 15.11.2017

sfa/

(Dilip Gupta, J)

(Jayant Banerji, J)