Gulaferun vs State Of U.P. And 87 Ors.
2018 Latest Caselaw 853 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on 09.05.2018
 
Delivered on 24.05.2018
 

 
Case :- WRIT - C No. - 9961 of 2018
 

 
Petitioner :- Gulaferun
 
Respondent :- State Of U.P. And 87 Ors.
 
Counsel for Petitioner :- Atiqur Rahman Siddiqui,Rakesh Pande
 
Counsel for Respondent :- C.S.C.,Mahendra Singh
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Rakesh Pande, learned counsel for the petitioner, Sri Nimai Dass, learned Standing Counsel for the respondent-State and Sri Shashi Nandan, learned Senior Counsel assisted by Sri Mahendra Singh, advocate for the respondent no. 7.

2. The petitioner has challenged the notice dated 5/7.03.2018 issued by the District Magistrate/ Collector, Moradabad calling for a meeting of the members of the Kshettra Panchayat to consider the "No Confidence Motion" against the petitioner.

3. The facts, in short, are that the petitioner was elected as Pramukh, Kshettra Panchayat, Block Dingarpur Kundarki, District Moradabad and assumed the office in March 2015.

4. There are 126 elected members of the Kshettra Panchayat, Block Dingarpur Kundarki, District Moradabad. The members of Kshettra Panchayat intended to propose "No Confidence Motion" against the petitioner, and, accordingly, one Mahendra Singh, member of Kshettra Panchayat Ward No. 75 along with some other members proposed motion of no confidence supported by 82 members of Kshettra Panchayat.

5. The District Magistrate, Moradabad acting upon the proposed motion of no confidence issued an order on 05.03.2018 for holding a meeting of the members of the Kshettra Panchayat on 24.03.2018 at 11.00 A.M. in the office of Kshettra Panchayat, Block Dingarpur Kundarki, District Moradabad to consider the motion of no confidence against the petitioner and appointed the Sub-Divisional Magistrate, Moradabad to preside the meeting.

6. The District Magistrate, thereafter, issued a notice dated 05.03.2018 to the members of the Kshettra Panchayat with regard to the meeting of members of the Kshettra Panchayat scheduled on 24.03.2018 at 11.00 A.M. to consider the proposed motion of no confidence against the petitioner.

7. The challenge in the present petition has been made to the notice dated 05.03.2018 issued by the District Magistrate/ Collector, Moradabad two grounds; namely that the members of Kshettra Panchayat have not been given clear 15 days notice of the meeting dated 24.03.2018 for consideration of No Confidence Motion against the petitioner. The second ground of challenge is that the mode of service of notice as provided in the Rules was not followed as the notices were not sent by the registered post.

8. Considering the submission of learned counsel for the petitioner, this Court on 19.03.2018 directed the learned Standing Counsel to produce the entire record pertaining to the convening of the meeting for consideration of the No Confidence Motion against the petitioner. The Court further directed that the motion of no confidence shall be considered in the meeting which has been convened on 24.03.2018, but the result of the voting shall not be declared till the next date of listing.

9. In compliance of the order of this Court, the learned Standing Counsel placed the original record on 03.04.2018. Learned counsel for the petitioner was permitted to see the record. The petitioner, thereafter, filed supplementary affidavit dated 19.03.2018 stating therein that the service of notice of the writ petition was made to the State on 15.03.2018 and the District Magistrate after getting knowledge of the filing of the writ petition affixed the notice of the meeting on the notice board on 17.03.2018. It is further stated that the notice affixed on the notice board did not contain the signature of the District Magistrate, Moradabad. Thus, if 17.03.2018 is taken as a date of notice, the notice is in violation of mandatory provision of Section 15 (3)(ii) of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 'Adhiniyam,1961').

10. Learned counsel for the petitioner, thereafter, filed another supplementary affidavit dated 09.04.2018 contending therein that the original notices addressed to 120 members are lying un-served in the records of the District Magistrate, Moradabad. It is further stated that the respondents have allegedly served notices personally on the members between 7 and 8 March, 2018 without adopting the prescribed mode provided for service of notice under the rules. It is further averred that the notices had been delivered to the members between 9 and 10 March, 2018, and one of the original copy of the notice has been handed over to the petitioner, whereas, other original copies had been retained by the Process Server, ADO (Panchayat) after obtaining alleged signature or thumb impression of the member. As per record, notices on 33 members are alleged to have been delivered through affixation on 07.03.2018 which is false and incorrect.

11. The respondent-State has filed counter affidavit to both supplementary affidavits. In the counter affidavit in reply to the supplementary affidavit dated 19.03.2018 , the respondent stated that the letter No. 3218/Paravi/ Kshettra Panchayat/Avishwas Prastav Patra/2017-18 issued from the office of the District Magistrate, Moradabad was pasted on the notice board, Block Dingarpur (Kundarki) on 08.03.2018, and the photograph of the same was also taken by the Block Development Officer, Block Dingarpur Kundarki, Moradabad. Along with the supplementary counter affidavit, the respondent has enclosed the copy of the letter dated 10.03.2018 written by Block Development Officer, Block Dingarpur Kundarki, Moradabad to the District Magistrate, Moradabad informing him that the notice of "No Confidence" was pasted on the notice board in the office of Block Development Officer, Block Dingarpur Kundarki, Moradabad on 08.03.2018 and it was photographed. It is further stated that the messenger from the office of Block Dingarpur Kundarki, went to serve a notice to the petitioner on 08.03.2018, but the petitioner did not receive the same, thereafter, the same was sent to the petitioner by registered post on 08.03.2018, but the same was returned back un-served. The respondent further averred that the Assistant Development Officer (Panchayat Kundarki) on 10.03.2018 himself served the copy of the notice to the petitioner.

12. It is also averred in the counter affidavit that the notice of Agenda was served to the petitioner and other 120 elected members by 08.03.2018. In the counter affidavit to the supplementary affidavit dated 17.04.2018, the respondent-State while reiterating the same facts as averred in the earlier supplementary affidavit further averred that the proceeding of No Confidence Motion had taken place and the result of No Confidence Motion has been declared.

12. We have heard the rival submissions of the parties and perused the original record of the proceedings.

13. Learned counsel for the petitioner submitted that in the instant case, the meeting of "No Confidence" was scheduled on 24.03.2018 and the notice of information as provided under Section 15(3)(ii) of the Adhiniyam, 1961, was served upon the members on 9 and 10 March, 2018, and the records have been manipulated to demonstrate that in fact notices have been served upon the members on 7 and 8 March, 2018. The further submission is that though it has been stated that the notice of "No Confidence" was affixed in the Office of Kshettra Panchayat on 7/8.3.2018, but in fact, it was affixed on 17.03.2018 after the District Magistrate, Moradabad came to know about the filing of the present writ petition. The further submission is that it is mandatory that 15 days clear notice should be given to all the members of the Kshettra Panchayat, but all the members of the Kshettra Panchayat have not been served notice of such meeting. Thus, in a nutshell, the submission is that since there is non-compliance of the Section 15(3)(ii) of the Adhiniyam, 1961, therefore the notice of motion of no confidence and no confidence proceeding held on 24.03.2018 are bad in law. Learned counsel for the petitioner in support of the aforesaid submission has relied upon the following judgments:

(i) Yadhunath Pandey Vs. D.P.R.O. 1986, UPLBEC 632 (ii) Amir Khalid Vs. State of U.P. and others 1994 (I) UPLBEC 45 (iii) Satya Prakash Mishra and others Vs. State of U.P. and others) 2005 Vol. III UPLBEC 1883 (iv) Vikas Trivedi and others Vs. State of U.P. and others 2013 Vol. VIII ADJ 523.

14. Learned counsel for the petitioner has also submitted that the rules framed under Section 237 of the Adhiniyam, 1961 provide only two modes for service of notice, namely affixation of notice on the notice board and through registered post, but in the instant case, admittedly, the mode prescribed under the rules for sending the notice was not followed.

15. Refuting the submission of learned counsel for the petitioner, learned counsel for the respondents submitted that there is compliance of Section Section 15(3)(ii) of the Adhiniyam, 1961. It is submitted that the notice of meeting was affixed on the notice board on 08.03.2018 and a photograph was taken by the concerned officer.

16. Learned counsel for the respondent further submitted that the notice of motion was served upon all the members on 7/8.03.2018. The messenger went to serve the notice of motion to the petitioner on 08.03.2018, but the petitioner refused to take the notice and thereafter, the notice was sent to the petitioner on 08.03.2018 by registered post which also returned back un-served. Thereafter, the messenger on 10.03.2018 again went to serve the notice of motion to the petitioner, on which date the petitioner received the said notice. He submits that no member of the Kshettra Panchayat has submitted any objection or grievance with regard to non-service of notice. He submits that the copy of notice containing receiving by all the members of Kshettra Panchayat is on record. Thus, the submission of the counsel for the respondent is that there is substantial compliance of Section Section 15(3)(ii) of the Adhiniyam, 1961, as 15 days clear notice have been given to all the members of the Kshettra Panchayat, therefore, the mode of service of notice is not relevant.

17. We have perused the original record of the proceeding and we find that the copies of notice containing the receiving by the members of Kshettra Panchayat are on record. No members of Kshettra Panchayat except the petitioner has come-forward to raise objection that 15 days clear notice as contemplated under Section 15(3)(ii) of the Adhiniyam, 1961 has not been given to him/her.

18. The petitioner is not denying the fact that the notice was sent to him by registered post on 08.03.2018, but what he contends is that the notice was sent on a wrong address as in the address written on envelop, the word Transport Nagar was inserted before Azad Nagar. The petitioner has not annexed any document on record to show his correct address nor there is anything on record to indicate as to how the Postman had put an endorsement of incomplete address on the envelop. Further, it is relevant to notice that the notice of meeting of "No Confidence" was affixed on the notice board 08.03.2018, the photograph of which was also taken and the fact of affixation of notice on 08.03.2018 also reflects from the letter of the Block Development Officer written to the District Magistrate, Moradabad. Therefore, the submission of the petitioner is that the notice was pasted on notice board on 17.03.2018 is not correct. It is evident from the record as detailed above, there was substantial compliance of Section 15(3)(ii) of the Adhiniyam, 1961.

19. The argument of the respondent is that there is substantial compliance of service of notice; the mode of service of notice is not relevant has substance. In this regard, it would be useful to notice Paragraph Nos. 28 and 30 of the Devendra Singh Vs. State of U.P. and others (2018) 1 UPLBEC 515 which are reproduced herein below:

"28. Thus, it is clear from the aforesaid decisions rendered by 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-II is not mandatory and the proceedings will not be vitiated if there has been substantial compliance of the provisions. What is necessary is that the elected members should have information regarding the name of the Kshettra Samiti whose meeting is to be held; the date of the meeting; the time of the meeting and the name of the Pramukh against whom the motion has been brought.

30. The two modes prescribed under the Rule had been adopted. There is nothing in the Rule which prohibits the Collector from publishing the notice in the newspaper or serving it personally. These would be additional modes. It is, therefore, not possible to accept the contention of learned Senior Counsel for the petitioner."

20. There is no quarrel with the proposition of law laid down in the judgment relied upon by the learned counsel for the petitioner that it is mandatory on the part of the District Magistrate, Moradabad to give 15 days clear notice to the members of Kshettra Panchayat for holding a meeting to consider motion of no confidence, and if there is no 15 days clear notice, there is no compliance of Section 15(3)(ii) of the Adhiniyam, 1961, and the notice of motion and the proceeding of motion in pursuance of the said notice are bad in law. The said judgment did not come in aid to the petitioner, inasmuch as, it is established from the record that the members of Khettra Panchayat have been given fifteen days clear notice. Further, there is substantial compliance of the provision with regard to the mode of service of notice upon members of Khetra Panchayat.

21. Thus, we do not find force in the aforesaid submissions of learned counsel for the petitioner, and consequently, we reject the same.

22. For the reasons given above, the writ petition lacks merit, and is, accordingly, dismissed. The interim order, if any, stands vacated. There shall be no order as to costs.

Order Date :- 24.05.2018

Ishan