Smt. Geeta Patel vs State Of U.P. And 2 Others
2018 Latest Caselaw 858 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on 09.05.2018
 
Delivered on 24.05.2018
 
                           
 
Case :- WRIT - C No. - 54098 of 2017
 

 
Petitioner :- Smt. Geeta Patel
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Awadhesh Kumar Malviya,H.N. Singh,Sanjeev Singh,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Anand Priya Singh,Anil Kumar Singh
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Saral Srivastava,J.

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

1. Heard Sri M.D. Singh, Shekhar, learned Senior Counsel for the petitioner, Sri Nimai Dass, learned Standing Counsel for the respondent-State and Sri Chandra Kumar Rai, learned counsel for the respondent no. 4.

2. The petitioner has preferred the present writ petition challenging the order dated 08.11.2017 passed by the Presiding Officer/Sub-Divisional Magistrate, Ghosi, District Mau whereby, he declared that the motion of "No Confidence" was passed against the petitioner.

3. The petitioner was Pramukh of Kshettra Panchayat Badraon, District Mau. There were 91 members of the Kshettra Panchayat in Kshettra Panchayat, Badraon.

4. It appears that "No Confidence Motion" was moved against the petitioner by the members of the Kshettra Panchayat. Accordingly, the District Magistrate Mau under Section 15 (2) of the Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 'Adhiniyam,1961') issued notice dated 16.10.2017 to the members of the Kshettra Panchayat for holding a meeting on 08.11.2017 for the purpose of considering "No Confidence Motion".

5. It transpires from the record that 46 Out of 91 members participated in the said meeting and voted in favour of the motion. The Sub-Divisional Magistrate Ghosi, District Mau vide order dt. 08.11.2017 declared that the motion was passed against the petitioner. The petitioner has assailed the legality of the said order in the present writ petition.

6. Learned counsel for the petitioner contended that there were 91 members in the Panchayat, and according to Section 15(11) of the Adhiniyam, 1961, the motion is to be carried with the support of more-than half of the total elected members of Kshettra Panchayat , but only 46 members have participated, therefore, the motion was not carried with more-than half of the total elected members of Kshettra Panchayat. The submission is that half of 91 is 45.5%, therefore, 46 should be treated to be 50% of 91 as there cannot be any vote in fraction, and thus, one more member was required for the motion to be validly carried through. Thus, in another words, if the motion had been passed by 47 members, it could be said to have been passed by more-than half of the members of the Panchayat as required under Section 15(11) of the Adhiniyam, 1961.

7. The second submission of the learned counsel for the petitioner is that the proper procedure for holding the meeting of no confidence as provided under Section 15 (6), (7), (8) and (9) of the Adhiniyam, 1961 was not followed. He submits that a perusal of the order of Sub-Divisional Magistrate, Ghosi, District Mau shows that the motion was read before the members, but there was no discussion on the motion and the same was put to vote; this action of the Sub-Divisional Magistrate Ghosi, District Mau has denied the valuable right of the petitioner to apprise the members that the motion against her was not justified and based on incorrect facts.

8. Per contra, learned Standing Counsel submitted that the motion was carried with more-than half of the members of the Panchayat. He submits that 50% of the 91 comes to 45.5 and 46 members of the Kshettra Panchayat were present and had voted in favour of the motion. Thus, the requirement of Section 15(11) of the Adhiniyam, 1961 is fulfilled.

9. He further submits that the procedure provided under Section 15 (6), (7), (8) and (9) of the Adhiniyam, 1961 was followed. He submits that the Sub-Divisional Magistrate, Ghosi, District Mau had invited the members to participate in the debate of the motion, but all the members stated that they did not want the debate and demanded for voting on the motion. Thus, the submission is that the procedure contemplated under Section 15 of the Adhiniyam, 1961 for carrying the motion was followed. There is no illegality in the order impugned in the writ petition.

10. Learned counsel for the respondent no. 4 has adopted the submission of the learned Standing Counsel, however, he further submits that the No Confidence Motion was passed against the petitioner, as a result whereof a vacancy of Panchyat Pramukh was declared, and the election was held on 09.03.2018 in which respondent no. 4 was declared elected. He submits that in the said election, the petitioner had also contested but has lost, therefore, the present petition has became infructuous, and no relief can be granted as the petitioner has acquiesced to the order of the Sub-Divisional Magistrate, Ghosi, District Mau by his conduct by participating in the election held on 09.03.2018.

11. We have heard counsel for the parties and perused the record.

12. It is admitted on record that there were 91 members in the Panchayat, out of which 46 members had participated in the meeting on 08.11.2017. As per Section 15(11) of the Adhiniyam, 1961, if the motion is carried with the support of more-than half of the total members of the elected members of the Kshettra Panchayat, the motion is carried through.

13. In the instant case, 50% of the 91 is 45.5%, whereas 46 members had voted in the meeting, thus, 46 is more-than 50% of 91. The requirement of Section 15(11) of the Adhiniyam, 1961 is that it should be carried through with the support of more-than half of the elected members of Khetra Panchayat, as 46 members had participated and had voted in favour of motion which is more than half of 91, therefore, the requirement of per Section 15(11) of the Adhiniyam, 1961, is satisfied. Thus, we do not find any merit in the submission of the learned counsel for the petitioner that motion was not carried through by more-than half of the elected members of the Panchayat.

14. Now, coming to the second submission with regard to non-compliance of Section 15 (6), (7), (8) and (9) of the Adhiniyam, 1961.

15. A perusal of the order impugned indicates that the Sub Divisional Magistrate had invited the members for debate on the motion, but the members stated that the debate was not required on the motion and demanded for voting on the motion.

16. There is nothing on the record which seems to suggest that the recitation of the aforesaid fact in the impugned order was wrong and, therefore, in our opinion, there is substantial compliance of the procedure prescribed in Adhiniyam, 1961, consequently, we reject the aforesaid submission of the learned counsel for the petitioner.

17. Since, we have rejected the submission of the learned counsel for the petitioner; therefore, we do not deem it necessary to examine the submission of the learned counsel for the respondent no. 4 that the relief prayed in the writ petition has become infructuous as the petitioner had participated in the subsequent election and had lost.

18. For the reasons indicated above, the writ petition lacks merit and is hereby dismissed. There shall be no order as to costs.

Order Date :- 24.05.2018

Ishan