Kiran Singh vs State Of U.P. And 4 Others
2017 Latest Caselaw 4457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40								   A.F.R.
 

 
Case :- WRIT - C No. - 42237 of 2017
 

 
Petitioner :- Kiran Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Abhishek Srivastava,Arvind Srivastava
 
Counsel for Respondent :- C.S.C.,Kamla Singh
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Shailendra Kumar Agrawal,J.

1. Heard Sri Arvind Srivastava, Advocate assisted by Sri Abhishek Srivastava, learned counsel for the petitioner, learned Standing Counsel for the respondents no.1, 2, 3 & 4 and Sri M.D. Singh 'Shekhar', learned Senior Advocate assisted by Smt. Kamla Singh, learned counsel for the respondent no.5.

2. The petitioner by means of this writ petition has made a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 02.09.2017 issued by the respondent no.2 to the Members of Kshetra Panchayat Paali, Tehsil Sahjanwa, District Gorakhpur (hereinafter referred to as the 'Kshetra Panchayat') informing them about the meeting of the Kshetra Panchayat scheduled to be held on 16.09.2017 to consider the motion of no confidence against the petitioner (Annexure no.14 to the writ petition).

3. The facts leading to this writ petition, which are not disputed, are that the petitioner was elected as Pramukh of Kshetra Panchayat in the year 2015. A motion of no confidence was mooted against the petitioner allegedly by 44 members of the Kshetra Panchayat. The respondent no.2 by his order dated 02.09.2017 convened meeting of the Kshetra Panchayat on 18.09.2017 to consider the motion of no confidence against the petitioner. Simultaneously, the Collector issued a notice dated 02.09.2017 to the members as mandated by clause (ii) of sub-Section (3) of Section 15 of the Adhiniyam. The notice dated 02.09.2017 under clause (ii) of sub-Section (3) of Section 15 of the Adhiniyam was, however, dispatched on 04.09.2017 by registered post from Rithua Khor. The notice was also affixed on the notice board on 02.09.2017.

4. It has been submitted by the learned counsel for the petitioner that 1st part of clause (ii) of sub-Section (3) of Section 15 of the Adhiniyam is mandatory. He has submitted that the words "not less than" used in the said clause indicate that 15 days' clear notice has to be given to the elected members before a motion of no confidence can be taken up for consideration and for calculating the 15 days' period, both the first and the last dates have to be excluded from consideration. It was further submitted that the notice was dispatched on 04.09.2017 informing the elected members of the Kshetra Panchayat about the meeting convened for considering the no confidence motion against the petitioner on 16.09.2017 and, thus, the interval between the date of dispatch of the notice and the date of holding of meeting was less than 15 days. He lastly submitted that the impugned notice dated 02.09.2017 issued by the respondent no.2 and dispatched to the elected members of the Kshetra Panchayat by registered post on 04.09.2017 informing them about the date of the meeting convened by him for considering the no confidence motion is per-se illegal being violative of the mandate of Section 15(3)(ii) of the Adhiniyam, hence liable to be quashed.

5. Per contra learned Standing Counsel appearing for the respondents no.1 to 4 and Sri M.D. Singh 'Shekhar', learned Senior Advocate assisted by Smt. Kamla Singh for the respondent no.5 submitted that though the 1st part of the clause (ii) of sub-Section (3) of Section 15 of the Adhiniyam regarding giving of notice was mandatory, the provision in regard to the time occurring therein is directory and not mandatory. Alternatively, Sri M.D. Singh 'Shekhar', learned Senior Counsel appearing for the respondent no.5 has submitted that in case this Court holds that clear 15 days' notice is required to be given to the elected members of the Kshetra Panchayat of the date of meeting convened for considering of motion of no confidence against the Block Pramukh is mandatory, in that case the impugned notice may be quashed with liberty to the members of the Kshetra Panchayat to bring a fresh motion of no confidence against the petitioner.

6. We have considered the rival submissions made by the learned counsel for the parties and perused the original record pertaining to the impugned notice dated 02.09.2017, which was produced before us by the learned Standing Counsel.

7. Section 15 of the Adhiniyam deals with motion of no confidence in Pramukh or Up-Pramukh. The relevant portion is as under :

15. Motion of non-confidence in Pramukh or Up-Pramukh-(1) A motion expressing want of confidence in the Pramukh or any Up-Pramukh of a Kshetra 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 Kshetra Panchayat] for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshetra Panchayat.

(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) ........."

8. In exercise of powers under clause (ii) of sub section (3) of section 15 of the Adhiniyam, by a Notification dated 14.12.1962 rules have been framed relating to the Form in which the written notice of intention to make the motion of non-confidence of Pramukh or Up-Pramukh will be given by the members of a Kshettra Samiti and for prescribing the manner in which the Collector gives notice of the said motion to the members of the Kshetra Samiti after previous publication. The said Rules are being quoted below :-

RULES

1. A written notice of intention to make a motion expressing want of confidence in the Pramukh or the Up-Pramukh of a Kshettra Samiti shall be in Form I of the Schedule given below.

2. The notice under clause (ii) of sub-section (3) of Section 15 of the U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961, shall be in Form II of the Schedule given below and shall be sent by registered post to every member of the Kshettra Samiti at his ordinary place of residence. It shall also be published by affixation of a copy thereof on the notice board of the office of the Kshettra Samiti.

SCHEDULE

FORM I

(Form of the written notice of intention to make a motion expressing want of confidence in the Pramukh/Up-Pramukh of a Kshettra Samiti)

To

The Collector,

.................................

NOTICE

Sir,

We the undersigned members of the ................. Kshettra Samiti hereby give this notice to you of our intention to make the motion of non-confidence in Sri ............................... the Pramukh/Up-Pramukh of our Kshettra Samiti and also annex hereto a copy of the proposed motion of non-confidence.

2. The total number of members, who for the time being constitute the Kshettra Samiti ........................... is.............

Yours faithfully,

1.

2.

3.

4.

Place ........................

Dated ...................196

FORM II

(Form of the notice of a meeting of the Kshettra Samiti to be held for the consideration of the non-confidence motion against the Pramukh / Up-Pramukh)

To,

Sri

Member of ................... Kshettra Samiti, district.....................

Notice

This notice is hereby given to you of the meeting of .............. Kshettra Samiti which shall be held at the office of the said Kshettra Samiti on ....................(date) at ...........(time) for consideration of the motion of non-confidence which has been made against Sri ........................... the Pramukh/Up-Pramukh of the said Kshettra Samiti. A copy of the motion is annexed hereto.

Place .....................

Dated .................,196 Collector ..................

9. A perusal of Section 15 quoted above, shows that a motion expressing want of confidence in the Pramukh or Up-Pramukh of Kshetra Panchayat has to be made and proceeded with in accordance with the procedure laid down in the said section.

10. A plain and simple reading of clause (ii) of sub section (3) of section 15 of the Adhiniyam would show that the Collector after receiving a notice under section 15(2) of the Adhiniyam, is obliged to convene a meeting of the Kshetra Panchayat for consideration of the motion and is further obliged to give to the affected members of the Kshetra Panchayat notice of not less than 15 days of such meeting in the prescribed manner.

11. In the case of Yadunath Pandey vs. The District Panchayat Raj Officer, District Ballia reported in 1986 UPLBEC page 632, while dealing with the words "at least" occurring in sub-section (1) of Section 14 of the Panchayat Raj Act, this Court in paragraphs 8, 9 and 10 of the report held as here-under:

"8. The intention of the Legislature by using the words "at least" in subsection (1) of Section 14 was that 14 days' clear, notice should be given. The phrase 'clear words' means that the time to be reckoned exclusive of both the first and the last days.

9. In Rambharose Lal Ghaoi v. State of M.P., AIR , 1955, Nagpur page 35, a division bench was required to consider about similar controversy. It said:

"The Rule of Law is that some words such as so many "clear days" or so many days "at least" are used, the two terminal days must be excluded. The pertinent rules framed under the Act says that notice of such a motion shall be given to the President "at least" ten days before moving it" and hence under the rule ten clear days should elapse between the notice of a resolution of no-confidence and the motion of no-confidence."

10. In our opinion, an act is required by the Statute to be done so many days "at least" before a given event, the time must be reckoned excluding both the day of the act and that of the event. If 15 days' notice has not been given, the resolution passed before the expiry of the period of 15 days, notice would be void. We have already held above that in computing 15 days both the first and the last days have to be excluded. In the instant case, notice was given on 3rd June 1986 for holding the no-confidence meeting on the 18th June, 1986. If both the days the initial and the last are excluded, that would not give 15 clear days. That would mean that only 14 day's time was given to the members of the Gaon Sabha. Giving of 14 days, when the law requires 15 days would be in contravention of sub-section (1) of Section 14 and the business transacted would be null and void."

12. As per clause (ii) of sub section (3) of section 15 of the Adhiniyam the Collector after convening the meeting to consider the motion of non confidence, is obliged to give to the elected members notice of the said meeting. Rule 2 of the Rules enjoins upon the Collector to send notices to the elected members by registered post. The question which, thus, arises for our consideration is that what then would be the date of giving notice to the elected members - the date on which the Collector signs the notice or the date on which the notice is actually dispatched to the member is the question to be answered.

13. The Division Bench of this Court in Writ - C No.9763 of 2013 (Kamal Sharma Vs. State of U.P. and others) examined the same controversy, which is involved in this writ petition and in paragraphs no.36 & 37 of its judgment rendered in the aforesaid writ petition on 05.10.2013 held as herein-below:-

"36.The language of clause (ii) of sub section (3) of section 15 is unambiguous. 15 days clear notice to the elected members of the Kshetra Panchayat of the meeting convened to consider a motion of non-confidence is mandatory necessitating strict adherence thereto and calls for no other interpretation.

37.In view of the discussions made above, we are of the firm opinion that in the instant case the impugned notice issued by the Collector, Gautam Budh Nagar under sub clause (ii) of sub section 3 of section 15 of the Adhiniyam is wholly illegal, invalid. Consequently the entire proceedings in pursuance of the said notice are null and void and cannot be allowed to stand."

14. Thus in view of the forgoing discussion and admitted factual scenario that the notice dated 02.09.2017 for holding meeting of the elected members of the Kshetra Panchayat on 18.09.2017 was issued by the respondent no.2 to the elected members of the Kshetra Panchayat by registered post on 04.09.2017 after affixing it on the Notice Board on 02.09.2017, it cannot be said that 15 days clear notice as required by Section 15(3)(ii) of the Adhiniyam, which was held to be mandatory by the Division Bench of this Court in the case of Kamal Sharma (supra) of the meeting for considering no confidence motion against the petitioner to the elected members of the Kshetra Panchayat having not been given to them, we have no hesitation in holding that there has no adherence by the respondent no.2 to the mandatory provisions of Section 15(3)(ii) of the Adhiniyam. Consequently, the notice which is apparently null and void, cannot be allowed to stand.

15. In the result, this writ petition succeeds and is allowed. The impugned notice dated 02.09.2017 issued by the respondent no.2 is quashed.

16. However, in the facts and circumstances of the case, it is left open to the members of the Kshetra Panchayat to give a fresh intention to bring the motion expressing no confidence, if the law so permits and if such notice is given, the authority shall proceed in accordance with law.

Order Date :- 15.9.2017

Anoop