Smt. Sarita Devi vs State Of U.P. And 2 Others
2017 Latest Caselaw 4176 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- WRIT - C No. - 39772 of 2017
 

 
Petitioner :- Smt. Sarita Devi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rahul Agarwal
 
Counsel for Respondent :- C.S.C.,Arun Kumar Sharma
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Dinesh Kumar Singh-I,J.

An elected Block Pramukh of Block Ghiror, District Mainpuri has filed this petition to challenge the notice issued by the Collector for holding of the meeting of the members of Ghiror Kshettra Panchayat on 4 September 2017 for consideration of the motion of no cofidence against her.

It is stated that the total number of members of the Kshettra Panchayat is 86 out of which 63 members had signed the motion expressing want of confidence in the Pramukh that was submitted to the Collector, Mainpuri on 9 August 2017. It is also stated that on 16 August 2017 the Collector issued a notice to 86 members under Section 15(3)(i) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 19611 that the meeting of the members in the Office of Kshettra Panchayat Samiti will take place on 4 September 2017 at 11:00 a.m. for considering the motion of no confidence made against the petitioner Sarita Devi.

According to the petitioner out of the 86 members, notice on 50 members was personally served by the Office of the Block Development Officer, Ghiror. Regarding this personal service, it has been stated that five members were served on 17 August 2017, three on 18 August 2017, two on 19 August 2017, one on 22 August 2017, thirty one on 23 August 2017 and four on 24 August 2017. The petitioner has further stated that no date has been mentioned regarding service of notice on four members. Petitioner has also stated that for the remaining 36 members, notices were sent by registered post on 24 August 2017 and 25 August 2017.

The petitioner contends that Section 15(3)(ii) of the Act requires the Collector to give to the elected Members of the Kshettra Panchayat notice of not less than 15 days of the meeting in the prescribed manner. Thus, if the meeting was to be held on 4 September 2017, notice had to be served on the members on or before 19 August 2017 and since notice had been served only on 10 members before 19 August 2017, the provisions of Section 15(3)(ii) of the Act have not been complied with and, therefore, no meeting could have been held for consideration of the no confidence motion on 4 September 2017.

When the matter was taken up on 31 August 2017, a short counter affidavit was filed by respondent no.3-Satya Pal Singh who had submitted the motion of no confidence before the Collector on 9 August 2017. In the short counter affidavit it has been stated that the notice was also published in newspapers on 17 August 2017 and, therefore, there has been a substantial compliance of the provisions of Section 15(3)(ii) of the Act.

The Court, therefore, directed that the records relating to the no confidence motion shall be produced before the Court on 11 September 2017. The Court also directed that the meeting proposed to be held on 4 September 2017 could take place but the result was not to be declared till the next date of listing.

Sri Shashi Nandan, learned Senior Counsel appearing for the petitioner has referred to the provisions of Section 15 of the Act which relate to "motion of no confidence" and has submitted that since the Collector has not given to the elected Members of the Kshettra Panchayat notice of not less than 15 days of such meeting, the holding of the meeting on 4 September 2017 was clearly vitiated. In this connection learned counsel has submitted that the three newspaper publications on which reliance has been placed by the respondents merely give information about the meeting and cannot be described as "notice" contemplated under Section 15(3)(ii) of the Act and in any case the information was not given by the Collector but by the District Panchayat Raj Officer who had no jurisdiction to give the notice.

Ms. Meenakshi Singh, learned Standing Counsel appearing for the State respondents has, however, placed reliance upon the records and has submitted that the notice was published in the newspapers on the basis of a communication dated 16 August 2017 sent by the District Magistrate to the Sub-Divisional Magistrate, Ghiror, a copy of which was endorsed to the District Panchayat Raj Officer. The Disctrict Panchayat Raj Officer then sent a communication dated 16 August 2017 to the Block Development Officer with the following endorsement to the Disctrict Information Officer, Mainpuri containing:

"1& ftyk lwpuk vf/kdkjh eSuiqjh dks bl vuqjks/k ds lkFk fd Jherh lfjrk nsoh] {ks= iapk;r izeq[k f?kjksj ds fo:) izkIr vfo'okl izLrko ds lEcU/k esa ftyk eftLVsªV egksn; }kjk fu/kkZfjr fnukad 04-09-2017 le; 11-00 cts iwokZUg ls vk;ksftr [email protected] gsrq lHkh {ks= iapk;r f?kjksj ds 86 {ks= iapk;r lnL;ksa dks {ks= iapk;r f?kjksj ds dk;kZy; ij mifLFkr gksus gsrq nSfud lekpkj i=ksa esa fu%'kqYd izdk'ku djkus dh dk;Zokgh djus dk d"V djsaA"

It is the submission of the learned Standing Counsel that the notice of the meeting was thereafter published in three newspapers on 17 August 2017 and, therefore, there has been substantial compliance of the provisions of Section 15(3)(ii) of the Act as the newspaper publication clearly gives indication of all the relevant factors namely;

"(i) meeting of no confidence against Sarita Devi, Kshettra Panchayat Pramukh would be held on 4 September 2017 at 11:00 a.m. in the Office of Kshettra Panchayat, Ghiror in view of the order passed by the Collector; and

(ii) that the Sub-Divisional Magistrate, Ghiror has been appointed as the Officer to preside over the meeting in which all the 86 members can participate."

Learned Standing Counsel has also stated on the basis of instructions that 61 members had submitted an affidavit sworn on 3 September 2017 before the Collector that they had acquired knowledge of the proposed no confidence motion to be held on 4 September 2017 through the newspapers and that all the 86 members participated in the meeting held on 4 September 2017.

Sri M.D. Singh learned Senior Counsel has submitted that the petitioner, as Pramukh of the Kshettra Panchayat, cannot raise issues about any fault in the notice served on the members of the Kshettra Panchayat and in any case once there has been substantial compliance of the provisions of Section 15(3)(ii) of the Act, no illegality can be attached to the meeting held on 4 September 2017 in view of the Full Bench decisions of this Court in Gyan Singh Vs. District Magistrate, Bijnor2 and Vikas Trivedi and others Vs. State of U.P. and others3.

We have considered the submissions advanced by the learned counsel for the parties.

In order to appreciate the contentions it would be appropriate to reproduce the provisions of Section 15 of the Act and the same are as follows:

"15 Motion of non-confidence in Pramukh - (1) A motion expressing want of confidence in the Pramukh or any 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."

A perusal of Section 15(1) of the Act indicates that a motion expressing want of confidence in the Pramukh may be made and proceeded with in accordance with the procedure laid down in the sub-sections. Sub-Section (2) of Section 15 provides that a written notice of intention to make the motion signed by at least half of the total number of elected Members of the Kshettra Panchayat 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. Sub-Section (3) of Section 15 provides that the Collector shall thereupon 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. It also requires the Collector 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. The manner is prescribed in Form 2.

The notice dated 16 August 2017 sent by the District Magistrate to the members is as follows:

"This notice is hereby given to you of the meeting of Ghiror kshettra samiti which shall be held at the office of the said kshettra samiti on 04.09.2017 (Date) at 11.00 am (time) for consideration of the motion of non-confidence which has been made against Smt. Sarita Devi the pamukh/up-pramukh of the said kshettra samiti.

A copy of the motion is annexed here to."

As noted above, Section 15(3)(ii) requires the Collector to give to the elected Members of Kshettra Panchayat notice of not less than 15 days of such meeting. According to the petitioner such notice should have been served on or before 19 August 2017 because then only the requirement contained in Section 15(3)(ii) would have been complied with but only 10 members had been served notices in person on or before 19 August 2017. The stand of the respondents, however, is that the notice was also published in three newspapers on 17 August 2017 and, therefore, there was substantial compliance of the provisions of Section 15(3)(ii) of the Act.

At this stage, it would be appropriate for the Court to refer to the two Full Bench decisions of this Court in Gyan Singh and Vikas Trivedi.

Gyan Singh is a Full Bench decesion of five Hon'ble Judges and the Section 87-A(3) of the U.P. Municipalities Act 19164 relating to motion of no-confidence against the President came up for interpretation. The Full Bench noticed that though Section 87-A contains 15 sub-sections, only the first three sub-sections were material. They are as follows:-

"87-A: (1) Subject to the provisions of this section, a motion expressing non-confidence in the President shall be made only in accordance with the procedure laid down below.

(2) Written notice of intention to make a motion of non-confidence on its president signed by such number of members of the board as constituted not less than one-half of the total number of members of the Board, together with a copy of the motion which it is proposed to make, shall be delivered in person together by any two of the members signing the notice to the District Magistrate.

(3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall not be earlier than thirty and not later, than thirty five days from the date on which the notice under Sub-section (2) was delivered to him. He shall send by registered post not less than seven clear days before the date of the meeting, a notice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice."

The issue that arose before the Full Bench was as to whether the provisions of Section 83-A(3) are madatory or directory. The Full Bench held that the first part of the section requiring the District Magistrate to convene a meeting and to send notices to the members is mandatory but the manner of service of notice and publication of the same is directory in nature and substancial compliance of the same would meet the requirement of law. The relevant paragraphs are as follows:-

"8. A careful analysis of Sub-section (3) would make it clear that the first part which requires the District Magistrate to convene meeting of the Board for considering the motion of no-confidence against the President is mandatary. The District Magistrate is required to perform a public- duty in convening a meeting of the Board for consideration of the motion at the office of the Board on the date and time as fixed by him, he has no choice in the matter. He has to convene a meeting on a date within 30 and 35 days from the date of presentation of the motion to him. The District Magistrate is further enjoined to perform a public duty of se ling notice of the meeting to the members; this again is a mandatory requirement of law which must be strictly complied with. The second part of the sub-section lays down the manner required to be followed in sending notices to the members. It lays down that notice of the meeting shall be sent by registered post to every member of the Board at his place of residence. The essence of this provision is to give information to the members to enable them to avail opportunity of participating in the meeting convened for the purpose of considering the no-confidence motion. The first part of the section requiring the District Magistrate to convene meeting and to send notices to the members is mandatory, any disregard of that provision would defeat the very purpose of the meeting, but the manner of service of notice and publication of the same is directory in nature, therefore a substantial compliance of the same would meet the requirement of law.

9. The purpose of service of notice by registered post and publication of the notice otherwise is to ensure that members should get adequate notice, of the meeting to enable them to participate in the debate over the no-confidence motion at the meeting. That purpose is not defeated if the notice is sent to the members not by registered post but by other methods and seven clear days are given to the members. The legislature never intended that unless notice is sent by registered post to the members the proceedings of the meeting would be vitiated. The legislature, no doubt, stressed that if the two steps as laid down in the sub-section are taken by the District Magistrate, i.e., notice of the meeting is sent to members by registered post at their place of residence and further if it is published in the manner directed by the District Magistrate, a presumption would arise and every member shall be deemed to have received the notice of the meeting. In that case it will not be open to any member to contend that he did not receive notice of the meeting or that the meeting was illegally constituted for want of notice. The purpose of sending notice can be achieved even without sending the same by registered post. There may be a case where the postal system may be disorganised and it may not be possible to send, notice by registered post. I (sic) that situation the District Magistrate may send notice to members of the Board by special messenger giving them seven clear days before the date of the meeting. In that event the legislative intent and purpose requiring sending of notice would be fully achieved, although in that event the rule of presumption as laid down in the sub-section would not be available and if a challenge was made by a member that no notice was received by him, the deeming provision will not be applicable and it would require proof that the notice even though sent by ordinary post or by special messenger was actually served on the member. The emphasis on sending notice to members by registered post and for publication of the same in the manner directed by the District Magistrate, is directed to invoke the presumption as contemplated in the last sentence of the sub-section. In the absence of presumption, it is always open to a party to prove that notice though sent in a different manner was served on the members. In view of the above discussion. I am of the opinion that even if the notice is not sent to the members by registered post the meeting cannot be held to have been illegally convened provided it is proved that the notice was received by the members and they had knowledge of the meeting.

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18. The above discussion shows that the preponderance of the Judicial opinion is that the second part of Sub-section (3) of Section 87-A is directory, its literal compliance is not necessary. A substantial compliance in regard to service of notice of the meeting for consideration of the motion of no-confidence on the members will be sufficient and any literal non-compliance of the said provision will not invalidate the meeting or the motion of no-confidence which may be adopted at the said meeting. In view of the above discussion I am of the opinion that the second part of Sub-section (3), of Section 87-A of the Act laying down manner for sending the notice to the members of the Board is directory, while the first part of the said sub-section requiring the District Magistrate to convene a meeting and to send notices to the members is mandatory. It would be sufficient compliance of the directory provision of this sub-section if notice is served on the members not by registered post but by any other mode and in that situation the notion of no-confidence which may be carried at the said meeting cannot be nullified on the ground of any literal non-compliance of service of notice by registered post."

(emphasis supplied)

Vikas Trivedi is a Full Bench decision of three Hon'ble Judges. The issue that arose before the Full Bench was with regard to the motition of no-confidence contemplated under Section 15 (2)(3) as also Section 28(2)(3) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961. The Full Bench held that the requirment of giving notice by the Collector under Section 15(3)(ii) in the prescribed proforma as required by Rule-2 and Form F-2 was not mandatory and the proceedings would not be initiated if there was substantial compliance of the provisions. However, whether there was substantial compliance of the provisions would depend on the facts and circumstances of each case. The observations are as follows:-

"63. Now after having noticed the relevant statutory provisions, the principles of statutory interpretation and the various judgments of this Court interpreting Section 15 and Section 28 of the 1961 Act, which are up for consideration in this writ petitions, we have to look into the statutory provisions under consideration and find out as to whether the requirement of sending the notice in accordance with the prescribed proforma with annexures is mandatory and non compliance of the same shall vitiate entire proceeding.

64. A perusal of sub-section (2) of Section 15 indicates that it is specifically provided that written notice of intention to make the motion in such form as maybe prescribed together with a copy of proposed motion shall be delivered in person to the Collector. After receiving the written notice of intention to make the motion along with proposed motion, it is enjoined on the Collector to convene a meeting of the Kshetra Samiti for consideration of the motion 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. Sub-section (3)(ii) of Section 15 requires the Collector to give notice to the members of not less than fifteen days of such meeting in such manner as may be prescribed. The manner in which the notice is to be given has been prescribed in the rules. As noted above, the manner of sending notice is prescribed in Rule 2. Rule 2 contains three requirements i.e. (a) shall be in Form-2 of the schedule given below, (b) shall be sent by registered post to the Kshetra Samiti at its ordinary place and (c) shall also be published by affixation of copy thereto on the Notice Board of the office of the Kshetra Samiti. Form-2 of the Schedule is the formate of the notice. The notice is required to contain information regarding following:-

(a) Name of Kshettra Samiti whose meeting is to be held;

(b) Date of meeting;

(c) Time of meeting; and

(d) The name of Pramukh/Up-Pramukh against whom motion of no confidence has been brought.

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72. Whether there has been substantial compliance of the second part of Clause (ii) of Section 15(3) read with Rule 2 of the Rules and Form II contained in the Schedule to the Rules, depends on the facts and circumstances of each case.

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74. The judgment of 5-Judge Full Bench in Gyan Singh's case (supra) had considered Section 87-A of the U.P. Municipalities Act, 1916, which is also similar provision for bringing no confidence motion against the President of the Municipal Board. As noted above, Section 87-A sub-clause (3) of the Municipalities Act, 1916 requires the District Magistrate to send the notice by registered post not less than seven clear days before the date of meeting ......... at his place of residence. The words used in Section 87(3) were "he shall send registered post". Sending of the notice by registered post was thus preceded by word "shall". The Full Bench held that second part of Section 87(3) which requires sending of the notice by registered post is not mandatory and substantial compliance of the said provision was sufficient and shall not invalidate the proceeding. Sending the notice in prescribed proforma as required by Rule 2 read with Form-2 is also procedural requirement substantial compliance of which shall serve the purpose. Insisting on compliance of each and every part of formate of the notice shall be giving undue weight to the procedure and formate ignoring the purpose and object of whole statutory provision and scheme. The ratio of Full Bench judgment in Gyan Singh's case (supra), as noted above, are fully applicable while interpreting the provisions of Section 15(3)(ii) read with Rule 2 and Form-2. The Full Bench in Gyan Singh's case held that second part of sub-section (3) of Section 87 requiring sending of notice by registered post lays down the manner required to be followed in sending the notice to the members which is directory. The same has been specifically laid down by the Full Bench in paragraphs 8 and 18 which have already been quoted above. We are of the view that ratio of the Full Bench in Gyan Singh's case (supra) is fully applicable for interpreting the provisions ofSection 15(3) read with Rule 2 and Form-2.

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77. The provisions of Rule 2 read with Form-2 are also statutory provisions which are required to be complied with and there is no discretion in the authorities or they are not free to disregard the same at their whims. If the notice, which is sent by the Collector does not substantially comply with the requirements, the proceeding may be vitiated, similarly when the notice substantially comply with the provisions, the action may survive. This can be explained by giving illustration. Take an example where Collector after receiving notice for no confidence motion along with proposal convenes a meeting and issue a notice to the members which does not indicate that meeting is fixed for consideration of no confidence motion against which office bearers, obviously the said notice cannot be said to be substantial compliance. Another example of non compliance shall be when notice does not mention even the date of meeting. The Court has to look into as to whether there is substantial compliance, and the proceeding will be allowed not to be vitiated only when the Court is satisfied that there is sufficient compliance of the manner in which notice has been sent. ............ "

It is clear from the aforesaid Full Bench decision the notice contemplated under Section 15 (3) (ii) requires information regarding the following :-

"(a) Name of Kshetra Samiti whose meeting is to be held;

(b) Date of meeting;

(c) Time of meeting; and

(d) The name of Pramukh/Up-Pramukh against whom motion of no confidence has been brought."

Thus, it is clear from the aforesaid decisions rendered in the two Full Benches that the requirement of giving notice by the Collector under Section 15(3)(ii) in the prescribed proforma as required by Rule-2 and Form-2 is not mandatory and substantial compliance of the same will not vitiate the proceedings. It is, therefore, to be seen in the facts and circumstances of the present case as to whether there has been substantial compliance. The respondent primarily placed reliance upon the three newspaper publications.

The respondents rely upon the newspaper publications to contend that all the four requirements stood satisfied and, therfore, there was substantial compliance.

The newspaper namely Hindustan published on 17 August 2017 does give information about the name of the Kshettra Samiti whose meeting was to be held as also the date of meeting. It also gives the time of meeting and tne name of the Pramukh against whom motion of no-confidence had been brought. Thus, there was substantial compliance of the provisions of Section 15(3)(ii) of the Act.

What also needs to be noticed is that affidavits had been filed by 61 members before the Collector that they had acquired knowledge of the proposed no-confidence motion to be held on 4 September 2017 through the newspapers and in fact all the 86 members participated in the meeting held on 4 September 2017.

The information regarding the meeting was contained in the newspapers that were published on 17 August 2017. The members, therefore, had more than 15 days notice.

It is, therefore, not possible to accept the contention of learned Senior Counsel for the petitioner that the Collector had failed to give notice to the elected memebers of the Kshettra Panchayat, notice of not less than 15 days of the meeting proposed to be held on 4 September 2017.

Thus, for all the reasons stated above, it is not possible to accept the contentions advanced by the learned Senior Counsel for the petitioner.

The writ petition deserves to be dismissed and is, accordingly, dismissed. The result of the no confidence motion shall now be declared.

Order Date :- 11.9.2017

Shahroz

(Dilip Gupta,J.)

(Dinesh Kumar Singh-I,J.)