Back
2005 Supreme(All) 163
IN THE HIGH COURT OF ALLAHABAD
Honble Yatindra Singh, J Honble VS Bajpai, J
KRISHNA JAISWAL - Appellant
Versus
STATE OF UP - Respondents
Civil Misc. Writ Petition 436 Of 2005
Decided On : 02/02/2005
The main legal point established in the judgment is that Section 28 of the UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 is constitutional, and the prescribed manner for holding a meeting is directory, not mandatory.
Headnote:
Section 28 - Constitutionality and Interpretation - UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 - 28(3)(ii), 28(3)(i)
Fact of the Case:
The case involved the constitutionality and interpretation of Section 28 of the UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, which provides for a motion of no confidence against the Adhyaksha or Up-Adhyaksha of a Zila Panchayat. The dispute arose from the convening of a meeting to consider a no-confidence motion against Smt. Krishna Jaiswal, the Adhyaksha of Zila Panchayat Deoria.
Finding of the Court:
The court found that Section 28 of the Act is constitutional and that the prescribed manner for holding a meeting is directory, not mandatory. It also held that the notice given for the motion of no confidence was valid, as it contained the necessary information, and that the requirement of fifteen days' notice was met. The court disposed of the writ petitions, suggesting that the Collector consider issuing notices in the prescribed proforma and reconvene the meeting.
Issues: The issues before the court included the constitutionality of Section 28, the legality of the notice for the no-confidence motion, the requirement of fifteen days' notice, the validity of a second notice for the motion, and the mandatory nature of convening the meeting within thirty days.
Ratio Decidendi: The court held that Section 28 of the Act is constitutional, the prescribed manner for holding a meeting is directory, the notice for the motion of no confidence was valid, the requirement of fifteen days' notice was met, and the second notice for the motion was permissible. The court did not conclusively decide on the mandatory nature of convening the meeting within thirty days.
Final Decision: The court disposed of the writ petitions, suggesting that the Collector consider issuing notices in the prescribed proforma and reconvene the meeting to consider the no confidence motion in pursuance of the notice dated 29. 11. 2004.
( 2 ) THE election to the post of Adhyaksha of Zila Panchayat Deoria (the Zila Panchayat) was held in the year 2000. In this election Smt. Krishna Jaiswal (Smt. Jaiswal) was elected as the Adhyaksha of the Zila Panchayat. The Zila Panchayat consists of 40 elected members. Twenty eight elected members gave notice to the Collector under section 28 of the Act to bring the motion of no confidence against her on 29th November 2004. The collector passed an order on 30. 11. 2004 convening the meeting on 20. 12. 2004 at 12. 00 am in the hall of the Zila Parishad to consider the no confidence motion against her. He also passed an order that the Appar Mukhya Adhikari, Deoria (the AMA) to serve notice on the members by registered post as well as personally by 4th December 2004. The notices were sent and the AMA submitted a report to the Collector on 4. 12. 2004 that the notices have been sent by the registered post and personal service has been affected.
( 3 ) SMT. Jaiswal filed writ petition no. 52945 of 2004 on 9th December 2004 challenging the meeting of no confidence motion in pursuance of the order passed by the Collector. In this writ petition an interim order was passed on 16. 12. 2004 keeping the meeting to consider the no confidence motion in abeyance.
( 4 ) DURING pendency of the aforesaid writ petition, thirty-two elected members gave another notice of their intention to bring no confidence motion against Smt. Jaiswal on 20th December 2004. On this notice, the Collector sent a letter to the Chief Standing Counsel seeking his guidance if meeting could be convened as the earlier meeting of no confidence motion was kept in abeyance by this court. Sri CB Yadav CSE-II informed the court that in pursuance of letter he had telephonic talk with the Collector and he in view of the developments in the court had advised the Collector not to convene any meeting. The thirty elected members have filed WP 436 of 2005 before this court for a direction to the Collector to convene meeting of the Zila Panchayat for no confidence motion in pursuance of the notice dated 20th December 2004. POINTS FOR DETERMINATION
( 5 ) WE have heard Sri Ravi Kiran Jain, Senior advocate, Sri HR Misra, and Sri SK Mishra counsels for Smt. Jaiswal; Sri Sanjiv Singh, counsel for the elected members of the Zila Panchayat who had given notice for bringing no confidence motion; Sri JN Tiwari, Senior Advocate and Sri CB Gupta counsels for the AMA. Sri Sudhir Agrawal, Additional Advocate General, Sri CB Yadav CSC-II and the Standing counsel for the State of UP and the State officials; The following points arise for determination.
(i)Whether section 28 of the Act is ultravires the Constitution. (ii)Whether the part of section 28 (3) (ii) providing for holding of the meeting in such manner as may be prescribed and the manner prescribed mandatory. Is a meeting convened in pursuance of the notice--not in the prescribed proforma--illegal? (iii)Whether fifteen days should elapse between the meeting and the giving of notice or receipt of notice by every member. (iv)Whether in the circumstances of the case, the second notice to bring the motion of no confidence could be given on 20th December 2004. (v)Whether the part of section 28 (3) (i) of the Act, which provides that the meeting of no confidence is to be convened within thirty days is mandatory. POINT NO. 1: SECTION 28 IS NOT ULTRA VIRES THE CONSTITUTION.
( 6 ) THE counsels supporting the constitutionality of section 28 of the Act submitted that Section 87-A of the UP Municipalities Act provided for no confidence motion against the President of the Municipal Councils and Nagar Panchayats. Similarly section 14 of the UP Panchayat Raj Act provides
