Smt Jayantra Devi vs State Of U.P. And 5 Others
2023 Latest Caselaw 4118 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 20.1.2023
 
Delivered on 9.2.2023
 
AFR
 

 
Court No. - 39
 
Case :- WRIT - C No. - 32101 of 2022
 
Petitioner :- Smt Jayantra Devi
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ashok Kumar Tripathi,Rahul Agarwal
 
Counsel for Respondent :- C.S.C.,Aditiya Kumar Singh,Amit Kumar Singh,Tarun Agrawal
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vipin Chandra Dixit,J.

1. Heard Sri Rahul Agarwal and Sri Ashok Kumar Tripathi learned counsel for the petitioner, Sri Ajit Kumar Singh learned Additional Advocate General assisted by Sri Sudhanshu Srivastava learned Additional Chief Standing Counsel for State-respondents and Sri Ashok Khare learned Senior Counsel assisted by Sri Aditya Kumar Singh learned Counsel for respondent No. 6.

2. This writ petitioner is challenging the 'No-confidence motion' carried out against her in the meeting held on 30.9.2022 as also the resultant notification issued by the Election Commission of India notifying the vacancy of the post of Block Pramukh/Pramukh, Kshettra Panchayat Haisar Bazar, District Sant Kabir Nagar.

3. The relevant facts to determine the controversy at hands are that a notice to bring 'No-confidence' motion against the petitioner herein, signed by 76 members out of total 99 members of the constituency namely Kshettra Panchayat Haisar Bazar was received by the District Magistrate, Sant Kabir Nagar. The District Magistrate by a notice dated 23.8.2022 called a meeting to consider 'No-confidence motion' on 8.9.2022. It is submitted by the learned counsel for the petitioner that the said notices were dispatched on 24.8.2022 by registered post. The period between the date of dispatch and the schedule date of meeting being less than 15 days, 'No-confidence motion' could not have been carried out on the date fixed, i.e. 8.9.2022 in view of mandatory provisions of Section 15(3)(ii) of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as "the Act, 1961").

4. It is an admitted fact of the matter that the meeting could not be convened on 8.9.2022. It was adjourned on account of an emergency leave applied by the Sub-Divisional Officer, Dhanghata, District Sant Kabir Nagar who was to preside over the meeting. The emergency leave application dated 6.9.2022 was moved by the Presiding Officer due to ill health of his mother with the prayer that he may be permitted to leave the station to go to District Meerut. Another leave application dated 7.9.2022 was moved by the Presiding Officer for extension of leave till 11.9.2022 due to prolonged illness of his mother. The leave was duly granted to the Sub-Divisional Officer, Dhanghata, Sant Kabir Nagar namely the Presiding Officer as per the service rules, by the competent Authority.

The District Magistrate, Sant Kabir Nagar has issued an office order dated 7.9.2022 intimating that the meeting of 'No-confidence' scheduled on 8.9.2022 could not be held due to unavoidable circumstances and had been postponed. Further, the Sub-Divisional Officer, Dhanghata/the Presiding Officer intimated the District Magistrate, Sant Kabir Nagar by the letter dated 15.9.2022 that the next date of the meeting was fixed on 30th September, 2022 to be held at 11:30 AM in the meeting hall in the office of Kshettra Panchayat, Haisar Bazar. The intimation of the date fixed of the meeting had been given to all the members, Kshettra Panchayat and the minutes of the meeting dated 30.9.2022, the result of the voting, shows that out of total 99 members, 95 had participated in the meeting and exercised their franchise. Out of 95 votes, 72 were in favour of ''No-confidence motion' and hence it was passed with the strength of more than 50% of the members present and voting.

There is no dispute about the above noted facts. Sri Rahul Agarwal learned Advocate appearing for the petitioner, however, argued that the initial notice dated 23.8.2022 fixing 8.9.2022 for the meeting was dispatched on 24.8.2022 and hence the mandatory requirement of 15 days of intimation of the date fixed for meeting had not been fulfilled. Two terminal days, i.e. the first and the last date, i.e. the date of dispatch of notice and the date fixed for meeting have to be excluded from the time to be reckoned for compliance of Sub-Section (3) of clause (ii) of Section 15 of the Act, 1961.

Reliance is placed on the decisions of this Court in Yadu Nath Pandey vs. District Panchayat Raj Officer1; Kamla Devi vs. State of U.P. and others2; Kamal Sharma vs. State of U.P. and other3; Kiran Singh vs. State of U.P. and others4; Surendra Kumar Yadav vs. State of U.P. and others5; Adesh Singh Yadav vs. Collector Bareilly6 and Niyazuddin vs. State of U.P. and others7 to assert that 15 days clear notice is mandatory in terms of Section 15(3)(ii) and non-compliance of the said provision would vitiate the proceeding.

5. The contention is that since the initial notice dated 23.8.2022 (dispatched on 24.8.2022) was bad in law, the subsequent adjournment of meeting and the motion carried out on 30.9.2022 within the extended time provided under Sub-Section (4-B) of Section 15 would have to be held bad in law. The entire proceeding being in contravention of the provisions of Section 15 of the Act, 1961. It is argued that the provisions of Section 15(3)(ii) are mandatory in nature and any violation thereof is not curable defect and cannot be rectified by adjournment of the meeting scheduled on 8.9.2022.

Moreover, as per Sub-Section (4-B), the Officer who is to preside at such meeting is to record his reasons for adjournment of the meeting, if he is unable to preside at such meeting. While adjourning such meeting, he has to fix the date and time which shall not be later than 25 days for the date appointed for such meeting. The requirement of Sub-Section (4-B), thus, is that only the Presiding Officer himself can adjourn the scheduled meeting by fixing date and time of the adjourned meeting recording reasons for his inability to preside at such meeting. The intimation by the Collector of the next meeting as per Sub-Section (4-B) of Section 15 is, thus, followed by the intimation given by the Presiding Officer of the date and time of the adjourned meeting. The recording of reasons and fixing date and time of the adjourned meeting are simultaneous acts to be performed by the Presiding Officer. The deferment of meeting on 7.9.2022 with the office order issued by the District Magistrate, thus, is in contravention of the provisions of Section 4-B of the Act, 1961. Further the meeting dated 30.9.2022 has been held under the directions issued by this Court in the order dated 13.9.2022. The Presiding Officer himself failed to follow the mandatory procedure of adjournment. The contention is that the Executive Authorities namely the Presiding Officer and the Collector had given the provisions of Section 15 to a toss to buy time to hold the meeting as an adjourned meeting. The result of such an illegally convened meeting cannot be sustained in the eyes of law.

6. The submission, thus, is that since the entire process of carrying out 'No-confidence motion' in the meeting held on 30.9.2022 was per se illegal. The consequent vacancy and the notification issued by the State Election Commission, U.P., Lucknow dated 14.10.2022 for the post of Pramukh Kshettra Panchayat are also liable to be set aside. The submission is that the vacancy cannot be presumed to be validly existing if the meeting itself was invalid and the consequential 'No-confidence motion' is illegal, as any consequential election is dependent upon the result of the 'No-confidence motion'.

7. Sri Ashok Khare learned Senior Counsel assisted by Sri Aditya Kumar Singh learned Advocate for respondent No. 6 has challenged the maintainability of the writ petition with the assertion that in view of the second prayer made in the present writ petition, challenging the notification issued by the State Election Commission with the election of respondent no. 6, the only remedy before the petitioner is to file an election petition as issue of validity of the election can be raised only by way of an election petition in view of the bar under Article 243-O read with Article 243ZG of the Constitution of India. The writ petition is, thus, liable to be dismissed as not maintainable.

Reliance is placed on the decisions of the Apex Court in Hari Shankar Jain vs. Sonia Gandhi8; Amar Nath Jaiswal vs. State of U.P. and others9 and of this Court in Aijaz Ahmad vs. Niyaz Ahmad and others10; Sardar Gyan Singh vs. District Magistrate Bijnore and others11 and Akhilesh Kumar Katiyar vs. State of U.P. and others12 to substantiate the said assertion.

8. Learned Standing Counsel for the State respondents, however, has relied upon the averments in the personal affidavit of the District Magistrate, Sant Kabir Nagar to assert that there is no infirmity in the process of carrying out 'No-confidence motion'. The meeting was validly held on 30.9.2022 and the fact that 95 out of 99 members had participated in the meeting prove that information giving adequate time had been given to all the members. With regard to the meeting scheduled on 8.9.2022, it is submitted that the District Magistrate, Sant Kabir Nagar on receipt of the notice of intention to move the motion of 'No-confidence' against the petitioner, signed by 76 members of Kshettra Panchayat along with the notary affidavit on 22.8.2022, had formed a Committee comprising of three officers for scrutiny/verification of signatures/thumb impressions on the said written notice. All 76 members of Kshettra Panchayat Haisar Bazar who signed the written notice of intent dated 22.8.2022 were asked to present their credible and attested identity cards for verification of their signatures on the notice as also the affidavits filed by them, on 23.8.2022 at about 3:00 PM. On prima facie satisfaction of the signatures/thumb impressions of 76 members, three Member Committee recorded satisfaction of matching of signatures on the written notice of intent dated 22.8.2022 and the notary affidavits. The District Magistrate then directed the Sub-Divisional Officer, Dhanghata, Sant Kabir Nagar to preside at the meeting scheduled on 8.9.2020 at 11:30 AM at the designated place mentioned therein by issuing a letter dated 23rd August, 2022.

Simultaneously, notices were issued to 99 members on 23rd August, 2022 giving them intimation of the date fixed for motion of 'No confidence' on 8.9.2022 at 11:00 AM and the designated place of the meeting. The Block Development Officer was directed to serve notice to all 99 members and submit a report. Vide letter dated 24.8.2022, the Block Development Authority had submitted a report that out of 99 members, 78 had received the notice and out of remaining 21, the notice was pasted at the conspicuous places of the house of 15 members. The remaining members had assured to receive notice within one or two days. It is submitted by the learned Standing Counsel that adjournment of the meeting scheduled on 8.9.2022 was on account of unavoidable circumstances faced by the Presiding Officer and on the intimation given by the Presiding Officer, the District Magistrate had issued the Office Order dated 7.9.2022 intimating the reason for adjournment of the date fixed. The intimation about the date and time fixed for the meeting as 30.9.2022 at 11:30 AM was sent by the Presiding Officer to the District Magistrate pursuant to which the notices were sent and received by the members. No infirmity, therefore, can be attached to the 'No-confidence motion' carried out on 30.9.2022.

9. Dealing with the above submissions of the learned counsels for the parties, we are required to first deal with the submissions of Sri Ashok Khare learned Senior Advocate for the respondent no. 6 about the maintainability of the writ petition, on the plea that the writ petition challenging the no confidence motion cannot be entertained as after election as against the vacancy, the only remedy before the petitioner is to challenge the election petition.

10. Dealing with this submission, suffice it to note that the issue raised in the present writ petition is about the validity of the 'No-confidence motion' carried out in the meeting held on 30.9.2022 against the petitioner herein. As regards the validity of the same being in contravention of the provisions of Section 15 of the Act, 1961, the issue of resultant vacancy being dependent upon the 'No-confidence motion', cannot be subject matter of election petition. Suffice it to note that the vacancy cannot be presumed to be existing if the meeting itself was invalid and the consequent 'No-confidence motion' is illegal. The consequential election against the resultant vacancy if found illegal, would itself fall. The vacancy in the present case undoubtedly occurred on account of the motion having been passed on the strength of a meeting, validity of which is subject matter of challenge herein. The filling up of such a vacancy is dependent upon the availability of the vacancy itself, which arises out of the 'No-confidence motion'. In our opinion, the question of validity of 'No-confidence motion' or the consequent vacancy occurring after the meeting held on 30.9.2022 cannot be subject matter of an election petition. Further on the date when the present writ petition has been filed, only the notification dated 14.10.2022 was issued by the State Election Commission and the date fixed for voting was 21st October, 2022. The lis before the Court was about the validity of the 'No-confidence motion' and notification of the consequent vacancy by the State Election Commission. In case, the challenge raised by the petitioner to the validity of meeting convened on 30.8.2022 is sustained being in violation of the mandatory provisions of Section 15(3)(ii) of the Act, the resolution passed on said date has to be quashed. The result is that there would be no removal of the petitioner and, thus, no vacancy. The subsequent notification dated 14.10.2022 has to fall on its own. The view taken by us is supported with the decision of the Division Bench of this Court in Kamla Devi (supra).

The objection as to the maintainability of the writ petition, for invoking jurisdiction under Article 226 of the Constitution of India, thus, is liable to be turned down.

11. Coming on the merits of the instant case, in order to deal with the contentions of the learned counsel for the petitioner, we are required to look to the scheme of the Act. The procedure for carrying out 'No-confidence motion' provided under Section 15 of the Act, 1961.

12. Before adverting to the provisions of the Act, we may note that to decide the question as to whether the statutory provisions are mandatory or directory in nature, no universal rule can be laid down. The use of the word "shall" or "may" is also not a decisive factor in determining this question. In considering the question, the purpose and the object of the provision as contained in the statute, the setting and the context in which the provisions occur and the purpose which is sought to be achieved by the provisions and the legislative intent in making the provision are necessary to be considered. [Reference State of U.P. vs. Manbodhan Lal Srivastava13]

In Raza Buland Sugar Co. Ltd. Rampur vs. the Municipal Board, Rampur14, while considering this question at length, certain principles were laid down which are relevant to be noted as under:-

"Para 7 The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the word "shall" as in the present case-is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the; provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."

13. Before a Full Bench of this Court in Gyan Singh vs. the District Magistrate, Bijnor and others15, the question was referred as to whether the second part of sub-Section (3) of Section 87A of the U.P. Municipalities Act, 1916 which provides the procedure for sending notice of meeting for consideration of ''No-confidence motion' by the District Magistrate is mandatory or directory.

Considering the principles laid down in Raza Buland Sugar Co. Ltd. Rampur (supra), having gone through the scheme of the said statute, the setting and the context in which the provisions occur and the purpose which is sought to be achieved by the provisions, it was held therein that though the first part of Sub-Section (3) of Section 87-A which requires the District Magistrate to convene meeting of the Board for considering the motion of No-confidence against a President is mandatory. 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 sending notice of the meeting to the members, this again is a mandatory requirement of law which must be strictly complied with. But the second part of the Sub-Section (3) of Section 87-A which lays down the manner required to be followed in sending notices to the members and lays down that notice of the meeting shall be sent by registered post to every member of the Board at his place of residence, is directory. It was observed that 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'. It was held that the first part of Sub-Section (3) of Section 87-A requiring the District Magistrate to convene meeting and to send notices to the members being mandatory, any disregard of that provision would defeat the very purpose of the meeting. However, the manner of service of notice and publication of the same being directory in nature, a substantial compliance of the same would meet the requirement of law. It is held therein that 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.

14. In Sharif-Ud-Din vs. Abdul Gani Lone16, it was held that the difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. The broad propositions regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory have been summarised as under:-

"Para 9. ...xxxxxxxx...The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

15. A Full Bench of this Court in Vikas Trivedi vs. State of U.P. & others17 has considered the questions about the validity of the notice sent by the Collector under Section 15(2) and (3) of the Act, 1961 as follows:- (i) whether the notice can be held invalid because the copy of the notice with the names of persons who had signed the written notice of their intention to bring motion of No-confidence was not sent along with the same; (ii) whether the notices convening the meeting can be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were not included in the copy of the proposed motion of no confidence sent along with the said notice.

As regards the earlier decision of the Full Bench in Gyan Singh (supra), an issue was raised with regard to the relevance of the said decision after insertion of Part IX-A of the Constitution of India by 74th Amendment Act, 1992. Considering the constitutional scheme in Articles 243P to 243ZG regarding the Municipalities, it was held by the Full Bench in Vikas Trivedi (supra) that the interpretation of Section 87-A of the U.P. Municipalities Act, 1916 by the Full Bench in Gyan singh (supra) is very much relevant and in no manner its precedencial value can be ignored after 74th Amendment of the Constitution.

16. Further having gone through the relevant statutory provisions, the principles of statutory interpretation, it was considered 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 would vitiate the entire proceeding.

It was further held that "As noted above, Section 15 of the 1961 Act is a statutory provision recognising the right of elected members to bring motion of no confidence against the Pramukh. The Collector is entrusted with public duty to issue notice. As noted above, the Apex Court in Dattaraya Moreshwar vs. the State of Bombay and others case (supra) had laid down that provisions of statute creating public duty are directory and those conferring private rights imperative. If the contention is accepted that while sending notice by the Collector although relevant information regarding date, time and place of meeting has been given and notice also mentions that no confidence motion has been proposed against such and such officer bearers but the copy of the motion of no confidence is not annexed, whether the same shall frustrate the very object of the Act or shall advance the object and purpose of the statutory provision, is the question to be answered. Obviously, if the members are given notice and information which is primary object and purpose of giving notice by the Collector of the meeting and the motion of no confidence is read as soon as the meeting is convened, we are of the view that to hold that not sending of copy of no confidence motion shall vitiate the entire proceeding, shall be defeating the very purposes and object of Section 15 of the 1961 Act. "

The ratio of the judgment of the Apex court in Raza Buland Sugar Co. Ltd. Rampur (supra) has been held to be applicable for interpretation of Section 15 of the Act, 1961 and considering the provisions of Section 15(3) of the 1961 Act, it was held that the manner of sending notice in the prescribed proforma as per the rules framed under the Act, 1961 cannot be said to be mandatory, breach of which shall vitiate the entire proceeding. It was held that the proceeding of ''No-confidence motion' shall be carried out if there is a substantial compliance of the provisions of Rule 2 read with Form-2, the prescribed format of sending notice under the rules. The substantial compliance of the said provision shall not vitiate the proceeding of No-confidence.

17. It was, thus, held that:- (1) The requirement of giving notice by the Collector under Section 15(3)(ii) in the prescribed form as required by Rule 2 and Form-2 is not mandatory and on substantial compliance of the provisions, the proceedings shall not be vitiated. However, the question whether there has been substantial compliance of the said provision would depend on the facts and circumstances of each case. It was, thus, concluded that when proposed motion of No-confidence is signed by the requisite members, the notice convening the meeting cannot be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only, were sent along with the notice.

18. In Kiran Pal Singh vs. State of Uttar Pradesh and others18, the Apex Court was considering a challenge to the second notice of No-confidence motion, at the instance of an elected Pramukh Kshettra Panchayat. In the facts of that case, an application under Section 15(2) of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 intimating intention to bring No-confidence motion against a Pramukh was received by the District Magistrate/Collector of the District concerned. As no action was taken by the District Magistrate/Collector, one of the applicants moved the High Court at Allahabad seeking a direction to the Collector to accept the notice under Section 15(2) of the Act and to take appropriate steps for bringing the proceeding of the No-confidence motion to its logical end. During pendency of the said writ petition, another written notice of intention to make the motion of No-confidence was delivered to the District Magistrate/Collector concerned. The Collector issued notice to convene a meeting of Kshettra Panchayat for consideration of the motion of No-confidence at the date and time fixed therein in the office of Kshettra Panchayat. The No-confidence motion was carried out after casting of votes. The elected Pramukh Kshettra Panchayat against whom No-confidence motion was carried out assailed the second notice on the foundation of statutory impermissibility during pendency of the first notice. It was contended therein that during pendency of first notice, second notice could not have been issued and the meeting could not be carried out as per the provisions of sub-Section (2) of Section 15.

19. Having considered the scheme of sub-Section (2) of Section 15, it was held by the Apex Court therein that on receipt of a written notice of intention to make the No-confidence motion in such form as may be prescribed, signed by at least half of the total number of elected members of Kshettra Panchayat for the time being together with a copy of the proposed motion, to be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat, the requirement under sub-Section (3) to convene the meeting by the Collector is fulfilled. At this stage, the jurisdiction that the Collector is only to scan the notice to find out whether it fulfills the essential requirements of a valid notice. The exercise of the said discretion, is summary in nature and there cannot be a detail inquiry with regard to the validity of the notice. Sub-Section (3) of Section 15 mandates that a meeting has to be convened not later than 30 days from the date of delivery of the notice and further there should be at least 15 days' notice to be given to all the elected members of the Kshettra Panchayat. The Collector, therefore, has no power to enter into an arena to record a finding on seriously disputed questions of facts relating to fraud, undue influence or coercion. His only duty is to determine whether there has been a valid notice as contemplated under Sub-Section (2) of Section 15. His delving deep to conduct a regular inquiry would frustrate the provision. He must function within his own limits and leave the rest to be determined in the meeting. The submission that once a notice was given under Section 15(2), another notice of no confidence should not be received until after expiration of one year, was turned down being without any substance, inasmuch as, the prohibition under Section 15(12) would come into play only when there is a meeting and the motion is "not carried out" as per the provisions of Section 15 or meeting could not be held for want of quorum.

20. Taking note of the above decisions laying down principles for determination of the nature of the statutory provisions being mandatory or directory, the scheme of the Articles 243 to 243-O in Part IX of the Constitution which require for Constitution of Panchayats in every State at the village and district level in accordance with the provisions of Part IX, it was observed therein that Article 243(d) defines ''Panchayat' to mean an institution (by whatever name called) of self-government (constituted under Article 243B) for the rural areas. The said articles ignited the spirit of self-governance in the pyramidical structure of local self-government. The purpose as envisioned in conferring power of governance in the democratically organized units is to instill a sense of satisfaction in the people at the grass root level.

The observation of the Apex Court in Bhanumati and others vs. State of Uttar Pradesh Through Its Principal Secretary and others19 while considering the 73rd Constitutional Amendment in paragraph '26' has been noted therein as under:-

"26. What was in a nebulous state as one of Directive Principles under Article 40, through 73rd Constitutional Amendment metamorphosed to a distinct part of Constitutional dispensation with detailed provision for functioning of Panchayat. The main purpose behind this is to ensure democratic decentralization on the Gandhian principle of participatory democracy so that the Panchayat may become viable and responsive people's bodies as an institution of governance and thus it may acquire the necessary status and function with dignity by inspiring respect of common man. In our judgment, this 73rd Amendment of the Constitution was introduced for strengthening the perambular vision of democratic republicanism which is inherent in the constitutional framework."

21. Considering the purpose of the statutory scheme framed under U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, the Apex Court in Kiran Pal Singh (supra) delve into the scheme of Article 243-243O. It was noted that the source of power on the States to frame law, thus, has been incorporated in the Constitution. The legislations made by the State legislatures, inter alia, have fixed the tenure of the panchayats and also grant protection for continuance of the elected members subject to the disqualifications and further the method for vote of No-confidence. The provisions of Sub-Section (13) of Section 15 which provides that no notice of a motion under Section 15 shall be received within the time prescribed therein, from the assumption of office by a Pramukh is in consonance with the principle of stability of rural governance. There are provisions for removal in case of misconduct by an elected person. The statutory scheme, thus, has been framed to bring stability in the governance at the grass root level in furtherance of the principles of democratic decentralisation of Governmental functions. It also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of No-confidence is passed against him and once the No-confidence motion fails, it cannot be brought again for one year.

22. Considering the above principles of construction of statute as mandatory or directory and the statutory scheme as envisaged by the State Legislature as discussed in Kiran Pal Singh (supra), we are required to note the procedure for carrying out No-confidence motion as laid down in Section 15 of the Act, 1961 which reads as under:-

"15. Motion of non-confidence in Pramukh or [***] (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, singed 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 members 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 or 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 preside 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 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.

(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.

(7) No debate on the motion under this section shall be adjourned.

(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.

(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.

(10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and the Zila Panchayat having jurisdiction.

(11) If the motion is carried with the support of [more than half] of the total number of elected members of the Kshettra Panchayat for the time being-

(a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette; and

(b) the Pramukh or [***], as the case may be, shall cease to hold office as such vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat.

(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or [***] shall be received until after the expiration of [one year] from the date of such meeting.

(13) No notice of a motion under this section shall be received within [one year] of the assumption of office by a Pramukh or [***], as the case may be."

The sub-Section (1) of Section 15 of the Act, 1961 provides that a motion expressing want of confidence in the Pramukh of a Kshettra Panchayat can be made and proceeded with in accordance with the procedure laid down in sub-Sections (2) to (13) of Section 15. Sub-Section (2) of Section 15 requires the manner in which a written notice of intention to make motion can be moved to the Collector having jurisdiction over the Kshettra Panchayat. Sub-Section (3) mandates the Collector to 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, not later than thirty days from the date of delivery of notice under sub-Section (2) to him. It also mandates the Collector to give notice to the elected members of Kshettra Panchayat of such meeting in not less than fifteen days, in the manner as prescribed (under the Rules). Sub Section (4) further states that the Sub-Divisional Officer of the concerned sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting. The procedure for adjournment of meeting fixed by the Collector in accordance with the provisions of Sub-Section (3)(i), has been provided in Sub-Sections (4-A) and (4-B) of the Act, 1961. Sub-Section (5) further provides that a meeting convened for the purpose of considering a motion under Section 15 cannot be adjourned save as provided in Sub-Sections (4-A) and (4-B). The procedure as to how the motion shall be carried out in a meeting convened under Section 15 has been provided in Sub-Section (6) to Sub-Section (11). The consequence, in case the motion is not carried out or the meeting could not be held for want of quorum has been provided in Sub-Section (12). Sub-Section (13) puts the embargo on receiving a notice of motion of No-confidence within one year of the assumption of office by a Pramukh.

We may note that the provisions of Sub-Section (13) have been amended to change the period of one year to two years by amendments brought on 4.10.2022. But we are not concerned with the said amendment as motion of No-confidence, in this case, has been carried out prior to the said amendment.

23. The question before us in the facts of the instant case are as to whether the notice dated 23.8.2022 fixing 8.9.2022 would be the mandatory valid notice of fifteen days as per clause (ii) of Sub-Section (3) of Section 15 of the Act, 1961 intimating the elected members of Kshettra Pahchayat of the date and time fixed for convening a meeting by the Collector. We are further required to consider in view of the arguments of the counsel for the petitioner that in case, the notice under Sub-Section (3)(ii) of Section 15 was given fixing a date of meeting in a period of less than 15 days as against the requirement of the said provision, whether the No-confidence motion carried out in the adjourned meeting held on 30.9.2022 would fall being in violation of the statutory requirement.

As per the stand of the District Magistrate, Sant Kabir Nagar, the meeting of No-confidence motion was initially fixed on 8.9.2022 at 11:00 AM in the meeting hall of the office of the Kshettra Panchayat, Haisar Bazar and a notice in that regard was issued on 23.8.2022. The report dated 24.8.2022 of the Block Development Officer, Sant Kabir Nagar who was deputed to serve the notice has been brought on record wherein it is indicated that out of 99 members, 78 members of Kshettra Panchayat had been served with the notice on 23.8.2022 itself. Fifteen members out of remaining 21 had refused to receive the notice and hence it was pasted at the conspicuous places of their house. For the remaining 6 members, who had refused to receive notice by saying that they will receive it within one or two days, the directions have been issued to the Gram Panchayat Secretary and Assistant Development Officer (Panchayat). Further the notice through post had been sent on 24.8.2022 to 99 members of Kshettra Panchayat.

24. In reply to the said assertion of the District Magistrate in his personal affidavit dated 31.10.2022, it is asserted in the rejoinder affidavit that it was not possible for the petitioner to able to collect the proof of the averments made in the paragraph under reply. The contention is that no other procedure had been given in the Act for service of notice of no confidence motion except the dispatch of notice through registered post. The averments with regard to the personal service of notice is an afterthought and it could not be proved in any manner which is known to the proceedings under the Act, 1961. As such, in computing the period of 15 days as per Sub-Section (3)(ii) of Section 15, the date of dispatch of notice, i.e. 24.8.2022 and the date fixed for meeting i.e. 8.9.2022 are to be excluded. As the said period would fall short of fifteen days as against the mandatory requirement of the aforesaid provision, the initial notice dated 23.8.2022 fixing the date of meeting as 8.9.2022 would fall being in violation of the mandatory provisions of the statute.

25. In support of this submission, reliance has been placed by the learned counsel for the petitioner on the decisions noted above wherein the motion of No-confidence was carried out in violation of the mandatory provision which requires fifteen days clear notice, have been held to be invalid.

26. We may note that the position in this case is different, inasmuch as, the meeting for No-confidence motion could not be held on the date fixed by the Collector i.e. 8.9.2022, because of emergency situation faced by the Presiding Officer, the Sub-Divisional Officer of the sub-division concerned, on account of illness of his mother.

27. The reliance placed by the learned counsel for the petitioner on the above noted decisions to challenge the validity of the No-confidence motion which has been carried out on 30.9.2022 in the instant case, therefore, is of no benefit. Even if it is accepted for a moment that the notice of No-confidence motion was not served personally on the elected members of the Kshettra Panchayat on 23.8.2022 as per the report of the Block Development Officer dated 24.8.2022 and the period of clear fifteen days was not given to the elected members to discuss on the motion of No-confidence in accordance with the provisions of Sub-Section (3)(ii) of Section 15, the same will not have any bearing on the validity of the subsequent meeting held on 30.9.2022, inasmuch as, motion of No-confidence had not been carried out on the date fixed by the Collector on 8.9.2022.

28. As regards the non-adherence to the requirement of Sub-Section (4-B) by the Presiding Officer at the time of adjournment of the meeting, it may be noted that Sub-Section (4-B) is in two parts. The first part mandates the Presiding Officer to record his reasons for adjournment of the meeting fixed by the Collector in the notice given under Sub-Section (3) of Section 15. While adjourning the meeting, on account of his inability to preside at such meeting, he is required to fix a date and time which shall not be later than 25 days from the date appointed for the meeting under Sub-Section (3). He is further required to intimate the Collector in writing without delay of the adjournment of the meeting. The

recording of reasons for adjourning the meeting fixed by the Collector at the end of the Presiding Officer is mandatory. It is also mandatory that the adjourned meeting is held within the period prescribed under clause (4-B) which is not later than 25 days from the date of meeting fixed by the Collector. The intimation of the adjournment of meeting to the Collector by the Presiding Officer is also mandatory. The mandatory procedure prescribed by the legislature is to restrict the power of the Presiding Officer/Sub-Divisional Officer to adjourn the meeting fixed by the Collector under Sub-Section (3) of Section 15 at his own whims and fancies and to adhare the timeline provided in the meeting to carry out the No-confidence motion. Under sub-Section (4-B), the Collector is required to give notice to the members with clear 10 days of the next meeting fixed by the Presiding Officer in the manner prescribed under sub-Section (3). The intimation by the Collector to the members of the adjourned meeting with 10 clear days of notice is also mandatory, being in the spirit of the provision, but the requirement of fixing the date and time of the adjourned meeting by the Presiding Officer, i.e. Sub-Divisional Officer of the sub-division concerned at the time of adjournment itself is directory. The setting and the context in which the Sub-Section (4-B) occur and the purpose which is sought to be achieved by the said provision and the legislative intent in making the provision can be found as:-

(i) The Presiding Officer shall unless there are reasons recorded in writing showing his inability, not adjourn the meeting fixed by the Collector under Sub-Section (3) of Section 15;

(ii). The notice of intention to make the motion moved by the elected members in accordance with Sub-Section (2) of Section 15, the motion of confidence, shall be considered within the period of thirty days prescribed in Sub-Section (3)(i) of Section 15;

(iii) However, in a case of adjournment of meeting fixed under Sub-Section (3), the date of the adjourned meeting has to be fixed in not later than twenty five days from the date appointed for the meeting under sub-Section (3).

(iv) The purpose and the legislative intent for providing the period of adjourned meeting and requirement to record reasons by the Sub-Divisional Officer to adjourn the meeting is to ensure that the motion of No-confidence moved by the elected members is considered in the spirit of the democratic principles on the foundation of which the provision of Section 15 has been construed and it shall not be delayed on account of any slackness on the part of the administrative authorities such as the Collector or the Presiding Officer, who are mandated to receive the motion and preside over the meeting; respectively.

The phrase "adjourn the meeting to such other date and time as he may appoint" occurring in Sub-Section (4-B) of Section 15 cannot be held to be mandatory so as to affect the validity of the meeting held within 25 days from the date appointed for the meeting under Sub-Section (3), as required under Sub-Section (4-B) of Section 15.

29. In the instant case, the Sub-Divisional Officer who was required to preside at the meeting in accordance with Sub-Section (4) could not hold the meeting on 8.9.2022 because of having proceeded on leave due to emergent situation of sudden illness of his mother. The leave application was duly submitted by the Sub-Divisional Officer giving intimation of the reason of his inability to preside at the meeting. The leave application moved by the said officer on 7.9.2022, a day prior to the meeting was allowed and the leave was granted as per the leave rules. The intimation of the adjournment of meeting was given to the members by issuing an office order dated 7th September, 2022 by the Collector/District Magistrate, Sant Kabir Nagar. The date and time of the adjourned meeting fixed by Sub-Divisional Officer/Presiding Officer as on 30.9.2022 at 11:30 AM had been intimated to the Collector, Sant Kabir Nagar soon after he returned from leave. Clear ten days notice had been given to the elected members of Kshettra Panchayat and the motion of No-confidence was carried out by majority votes on 30.9.2022, at the date and time fixed by the Sub-Divisional Officer. On account of the unprecedented adverse situation faced by the Presiding Officer to preside at the meeting fixed by the Collector on 8.9.2022, the mere fact that he himself did not adjourn the meeting or did not fix the date and time of the meeting at the time of adjournment itself but intimated it later on assumption of his office after leave, would not invalidate the motion carried out in the meeting held on 30.9.2022. The defect in adjournment of the meeting fixed on 8.9.2022, if any, in not fixing the date and time of the adjourned meeting, is curable for the fact that the date of the adjourned meeting had been fixed by the Presiding Officer at the earliest opportunity, within the period of twenty five days prescribed in Sub-Section (4-B) and intimation of the adjourned meeting had been duly given by the Collector to the elected members within the time prescribed under the said provision.

30. The contention of the learned counsel for the petitioner that the adjournment of meeting by the Presiding Officer on 7.9.2022 by giving intimation to the District Magistrate, Sant Kabir Nagar was a device to get over the provisions of Sub-Section (3)(ii) of Section 15 as clear notice of fifteen days initially was not given to the elected members does not impress us, inasmuch as, nothing could be brought before us to contend that the Presiding Officer did not apply for leave or leave was not duly granted to him. The truth of the circumstance faced by the Presiding Officer, the reason for adjourning the meeting, cannot be examined by us.

For the above discussion, we find that there is no violation of the mandatory provisions of Sub-Section (4-B) of Section 15 of the Act, 1961 on the part of the Presiding Officer. There is no error in the decision making process. The challenge to the resolution dated 30.9.2022, therefore, cannot be sustained.

The writ petition is dismissed being devoid of merits.

(Vipin Chandra Dixit,J.) (Sunita Agarwal,J.)

Order Date :- 9.2.2023/Brijesh