Lakhan Singh vs State Of U.P. And 2 Others
2018 Latest Caselaw 3285 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 

 
						 reserved on 04.10.2018
 
						 delivered on 24.10.2018
 

 

 
Case :- WRIT - C No. - 8996 of 2018
 

 
Petitioner :- Lakhan Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shiv Kumar Pal,Sushil Kumar Pal
 
Counsel for Respondent :- C.S.C.,Amitabh Tripathi,Vikas Budhwar,Vivek Mishra
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Rajiv Joshi,J.

The petitioner is an elected Pramukh of the Kshettra Panchayat, Rajpur District Kanpur Dehat. He was declared elected on 06.12.2016 for a period of 5 years.

The aforesaid Kshettra Panchayat has 72 members, 42 of them allegedly submitted a written notice of intention of the proposed no confidence motion in him to the Collector.

The Collector acting on the said written notice on 23.02.2018 notified that he has been presented with the written intention of motion of no confidence against the petitioner on 14.02.2018. Therefore, in accordance with Sub-Section (3) of Section 15 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam) a meeting of the Kshettra Panchayat shall be held at 11.00 a.m. on 10.03.2018 in the office of the Kshettra Panchayat and the Sub-Divisional Officer/Up Ziladhikari of the area will preside the meeting.

Accordingly, a notice of the meeting was also given to the elected members of the Kshettra Panchayat on 23.02.2018.

The aforesaid order of the Collector dated 23.02.2018 convening the meeting of the Kshettra Panchayat and the consequent notice dated 23.02.2018 given to the elected members of the Kshettra Panchayat have been challenged by the petitioner by invoking the extraordinary jurisdiction of the court under Article 226 of the Constitution of India.

The meeting of the Kshettra Panchayat so fixed was rescheduled for 24.03.2018 due to the interim order dated 09.03.2018 passed in the present petition as communicated to the Collector by the office of the Standing Counsel.

The meeting of the Kshettra Panchayat was held on the rescheduled date i.e. 24.03.2018 but its result has not been been declared in view of the interim order.

The petitioner moved an application for amending the writ petition so as to add a paragraph, a ground and a prayer for the quashing of the proceedings of the meeting dated 24.03.2018 on the ground that the meeting could not have been adjourned otherwise than on the grounds mentioned in Sub-Section (4-A) and (4-B) of the Section 15 of the Adhiniyam.

The aforesaid application has not been opposed either by the Standing Counsel representing the respondents No. 1 to 3 or the counsel appearing for private respondent No.4. Moreover, as it proposes to challenge the action which is subsequent to the filing of the writ petition and is connected to the cause of action of the writ petition, with the consent of the parties, we allow the same.

The Standing Counsel on behalf of the respondents No. 1, 2 and 3 has filed a short counter affidavit whereas another short counter affidavit has been filed on behalf of the private respondent No.4. A rejoinder affidavit has also been filed by the petitioner.

We have heard Sri Ashok Mehta, Senior Counsel assisted by Sri Shiv Kumar Pal, learned counsel for the petitioner, learned Standing Counsel appearing for the respondents No.1,2 & 3 and Sri Ravi Kiran Jain, Senior Counsel, assisted by Sri Amitabh Tripathi, learned counsel for the respondent No.4. All of them agreed for the final disposal of the petition on the basis of the pleadings already exchanged between the parties and as referred to above.

Sri Mehta accepts that the notice of intention for the motion of no confidence was signed by more than half of the total elected members of the Kshettra Panchayat and therefore, the ground on which the writ petition was entertained vide interim order dated 09.03.2018 may not exist but there are other grounds on which the entire proceedings would stand vitiated.

He submits that the notice of intention to move the motion of no confidence as submitted to the Collector was not accompanied by a copy of the proposed motion. The meeting for consideration of the proposed no confidence motion was convened by the Collector on 10.03.2018 and could not have been adjourned beyond the period of 30 days from the date the notice of intention was delivered to the Collector.

The meeting could be adjourned only on the ground mentioned in Sub-Section (4-A) and (4-B) of the Section 15 of the Adhiniyam and on no other ground and that too by the Sub-Divisional Officer. The adjournment of the meeting by the Collector is without jurisdiction and that no meeting could have taken place beyond 30 days of the delivery of written notice of the intention of the proposed motion to the Collector.

Learned Standing Counsel in defence submits that on account of the interim order passed by this court the office of the Standing Counsel has written to the Collector on 09.03.2018 itself that a stay order has been passed and therefore, immediate steps be taken for its compliance. It is in view of the aforesaid communication that the Collector rescheduled the meeting of the Kshettra Panchayat from 10.03.2018 to 24.03.2018.

Sri Ravi Kiran Jain, Senior Counsel has also defended the adjournment of the meeting and its reschedulement due to the communication from the office of the Standing Counsel. He submits that as the Court had passed an interim order in the matter, the period of the stay order stands excluded in-computing the period of 30 days for convening the meeting.

It is not mandatory to enclose copy of the proposed motion with the notice of intention of no confidence motion to be delivered to the Collector and the proceedings would not stand vitiated on any of the above scores. Moreover, the court in exercise of discretionary jurisdiction is not supposed to interfere in the matter when proper procedure has been followed in holding the meeting of the Kshettra Panchayat on the adjourned or rescheduled date.

Section 15 of the Adhiniyam lays down and prescribes the entire procedure for moving a motion of no confidence in the Pramukh. The relevant Subsections of Section 15 of the Adhiniyam are reproduced hereinbelow for the sake of convenience.

"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.

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) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting.

Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division of the sub-divisional officer cannot for any reason preside, any stipendiary additional or assistant Collector named by the Collector shall preside at the meeting.

(4-A) If within an hour from the time appointed for the meeting such officer is not present to prescribe at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).

(4-B) If the Officer mentioned in the 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 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."

A bare reading of the above provisions specifically Sub-Section (2) of the Adhiniyam makes it clear that a written notice of intention to move a motion of no confidence in the Pramukh has to be signed by at least half of total number of elected members of the Kshettra Panchayat and shall be delivered to the Collector with a copy of the proposed motion.

The aforesaid provision requires written notice to be signed by more than half of the total members of the Kshettra Panchayat and delivered to the Collector together with a copy of the proposed motion. The delivery of the notice is mandatory but annexing the copy of the proposed motion appears to be directory in nature.

In Shyam Singh Vs. State of U.P. 2010 (109) RD 464 it has been held that a written notice is mandatory in nature but a copy of a motion in reference in the form prescribed under the Rules is not mandatory.

A Full Bench of this court in Vikas Trivedi and others Vs.State of U.P. and others 2013 (8) ADJ 523 FB has also taken a similar view and has held that annexing of the proposed motion as required by Rule 2 and Form 2 is not mandatory and the substantial compliance of the provision is sufficient which will depend upon the facts and circumstances of each case.

The Collector in his order dated 23.02.2018 has categorically stated that more than half of the members of the Kshettra Panchayat have submitted before him a notice in writing on 14.02.2018 expressing intention to move a motion of no confidence against the Pramukh. A copy of the notice dated 23.02.2018 sent to the members of the Kshettra Panchayat clearly states that the copy of the proposed motion is annexed with it.

The notice as signed and submitted on behalf of more than half of the members of the Kshettra Panchayat to the Collector also clearly states that the notice is being submitted duly signed by more than half of the members of the Kshettra Panchayat in the prescribed form for the motion of no confidence against the Pramukh.

The above notice of intention for moving a motion of no confidence for convening a meeting of the members of the Kshettra Panchayat in unequivocal terms expresses intention of bringing about a no confidence motion against the Pramukh of the Kshettra Panchayat i.e. the petitioner. The said intention is clear from the following recitals of the notice of the members.

Þfuosnu gS fd ge lHkh {ks= iapk;r lnL; x.k {ks= iapk;r jktiqj ds Cykd izeq[k Jh yk[ku flag ds fo:) fuEu dkj.kksa ds vk/kkj ij vfo'okl izLrko izLrqr dj jgs gSaA

1 ....................

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

4 ......................................vrSo ge vk/ks ls vf/kd lnL; bl vfo'okl izLrko dks Jheku th ds le{k viuh bPNk ds vuqlkj izLrqr dj jgs gSaA

5 ;g /kkjk 15¼2½ ds ftl fyf[kr uksfVl dks nsuk Li"V fd;k x;k gS bls fu/kkZfjr izk:i&1 ij Hkh vkids le{k izLrqr fd;k tk jgk gSAß

In view of the above notice and its contents, the allegation of the petitioner that the written notice dated 23.02.2018 was not in prescribed form and no other document relating to the resolution for no confidence motion was annexed with it has no material bearing upon the notice so as to invalidate it.

In a recent case of Kiran Pal Singh Vs. State of U.P. and others (2018) 7 SCC 521 it has been opined that in such matters the jurisdiction of the Collector is only to scan the notice of intention given by the members to ensure it fulfills the essential requirements of a valid notice i.e. it is signed by more than half of the members and is delivered to him in person by anyone of those signing it or that it expresses clear intention of the proposed motion of no confidence.

Admittedly, on the written intention of the members of the Kshettra Panchayat of the proposed motion of no confidence which was delivered to the Collector on 14.02.2018, the Collector had convened the meeting as required under Sub-Section (3) of Section 15 of the Adhiniyam within a period of 30 days i.e. on 10.03.2018 for which due notice was given to the members of the Kshettra Panchayat. The said meeting was rescheduled to 24.03.2018 in view of the interim order of the High Court.

The aforesaid interim order of the High Court dated 09.03.2018 is quoted below:-

"The petitioner who is the elected Block Pramukh of Chhetra Panchyat Rajpur, District-Kanpur Dehat, has approached this Court challenging the notice which is alleged to be undated issued by respondent No.3 fixing a meeting on 10.03.2018 to consider the proposal of No Confidence Motion.

Learned counsel for the petitioner submits that from the documents received along with the notice, it appears that it has not been signed by more than half of the member. Therefore, the proposal itself is illegal as it is in violation of Section 15(1) which is mandatory.

The matter may be posted as fresh on 27th March, 2018 on which the original record shall be produced by learned Standing Counsel.

In the meantime, the meeting Scheduled to consider the proposal of No Confidence Motion to take place on 10th March, 2018 may go on, but the result of the same shall not be declared till the next date of listing."

The said interim order clearly reveals that the court had not stayed the proceedings or the convening of the meeting for consideration of the no confidence motion as fixed on 10.03.2018 rather it specifically permits the meeting to take place as scheduled with the direction to keep in abeyance the declaration of the result only. Thus, there was no occasion for the Collector to have rescheduled the meeting.

Even if it is assumed that there was some incorrect communication by the office of the Standing Counsel that the proceedings have been stayed, the letter of the office of the Standing Counsel clearly stated that the order can be down loaded from the official website of the High Court. Therefore, the Collector was enjoined to make an effort to down load the order and to verify the same before taking a decision for rescheduling the meeting.

The Collector, who is authorised to convene such a meeting is obviously has the power to reschedule it and fix a different date as may have been notified earlier or previously but the question would be if a date of rescheduled meeting could be fixed on a date beyond 30 days of the receipt of the notice.

The meeting was rescheduled for 24.03.2018 i.e. to a date beyond the mandatory period of 30 days provided under Sub-Section (3) (i) of Section 15 of the Act.

The said reschedulement of the date of the meeting is not an adjournment of the meeting as envisaged under Sub-Section (4-A) or (4-B) of Section 15 of the Act. On the plain and simple reading of the above provisions it is apparent that they speak about the adjournment of the meeting by the officer presiding the meeting on the date fixed for the meeting. The said adjournment can not be prior to the date of the meeting already fixed.

The adjournment or the reschedulement of the meeting in the present case is not by the Presiding Officer and not even on the date of the meeting as originally fixed but a date prior to it which is not actually adjournment of the meeting rather reschedulement.

Thus, the argument that in view of Sub-Section (5) of Section 15 of the Adhiniyam the adjournment could only be on the grounds specified under Sub-Section (4-A) or (4-B) of Section 15 of the Adhiniyam is misconceived and is not acceptable.

It may be clarified that the meeting for consideration of the no confidence motion in accordance with the Sub-Section (3) of Section 15 of the Act has to be convened by the Collector. Therefore, as stated earlier, he has the inherent power to reschedule the meeting. The Collector has accordingly, a day prior to the schedule date of meeting has rescheduled the date by postponing it to 24.03.2018.

In view of above, we are of the opinion that the Collector has not exceeded its jurisdiction in rescheduling the meeting. Nonetheless, the issue is whether a meeting for consideration of no confidence motion could have been called and fixed on a date later than 30 days from the date when the notice under Sub-Section (2) was delivered to the Collector.

The notice expressing intention of the proposed no confidence motion was delivered to him on 14.02.2018. Therefore, as per the mandatory requirement of Sub-Section (3) of Section 15 a meeting for the purpose could be convened before the expiry of the 30 days i.e. on or before 14.03.2018 and not thereafter.

Since the said requirement is mandatory in nature the Collector could not have rescheduled or adjourned the meeting to a date beyond it. The reconvening or rescheduling of the meeting by fixing 24.03.2018 is clearly in violation of Sub-Section (3) of Section 15 of the Adhiniyam.

It is settled law that the thing which is to be done in a particular form or manner under the statute has to be done in that particular manner or not at all.

The aforesaid proposition of law is based upon a legal maxim "Expressio unius est exclusio alterlus", which means that if a statutes provide for a thing to be done in a particular fashion it has to be done in that manner alone and no other course is open.

Ample number of authorities in respect of the above principle can be cited beginning from Taylor Vs. Taylor (1876) 1 Ch. D.426 but we do not consider it necessary to burden our opinion with such authorities which are well known.

A Division Bench of this Court in Khursheed Hussain Vs. District Magistrate and Collector, Bareilly, 1992 AWC 208, considered the provisions of Section 15(3) of Adhiniyam, 1961 and held that the provisions are mandatory and if the meeting is not held within the period of 30 days stipulated therein, the notice would lapse.

In Chhatrapal Singh Vs. State of U.P. 2003 (6) AWC 5635 another Division Bench of this court while considering the nature of the provisions of Section 15(3) of the Adhiniyam held that the aforesaid provision is mandatory and requires strict adherence thereto. In case it is not followed the proceeding would stand vitiated.

In one another decision of this court dated 06.07.2012 passed in Writ-C No.31489 of 2012, Smt. Prema Devi Vs. State of U.P. through Principal Secretary and others their Lordships while considering the requirement of Section 15(3) of the Adhiniyam laid down that there is no manner of doubt that the provision of Section 15(3) of the Adhiniyam is mandatory as has been held in a series of decisions by this court.

Thus, from the aforesaid judgments, it is clear that the provisions requiring holding the meeting within the stipulated period is mandatory.

Therefore, when a meeting for consideration of no confidence motion in the Pramukh is not convened or held within a period of 30 days from the date of delivery of the notice of no confidence under Sub-Section (2) of Section 15 of the Adhiniyam to the Collector, the notice would lapse and there would not be a valid meeting.

In view of the aforesaid facts and circumstances, as Sub-Section (3) of Section 15 of the Adhiniyam mandates the Collector to convene a meeting for consideration of motion of no confidence in the Pramukh within a period of 30 days of the delivery of notice to him under Sub-Section (2) of Section 15 of the Adhiniyam, the Collector though had the power to convene a meeting and to reschedule it but could not have rescheduled it or refixed it beyond the period of 30 days from the date of receipt of the notice. Since the meeting was rescheduled to a date beyond the period of 30 days, its proceedings stands vitiated for want of non-compliance of the mandatory provision of Sub-Section (3) of Section 15 of the Adhiniyam.

Accordingly, the writ petition is allowed and the proceedings of the meeting held on 24.03.2018 are quashed with liberty to the members of the Kshettra Panchayat to submit a fresh notice of intention for a motion of no confidence in the Pramukh if they so desire and consider it necessary.

Order Date :- 24.10.2018

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