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2005 Supreme(All) 178
ALLAHABAD HIGH COURT
Honble Yatindra Singh, J Honble VS Bajpai, J
Krishna Jaiswal
Versus
State of UP
Civil Misc.Writ Petition 52945 of 2004
Decided On : 02 February 2005
Civil Misc. Writ Petition 436 Of 2005
The main legal point established in the judgment is the constitutionality of Section 28 of the UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, and the determination of the prescribed procedures as directory rather than mandatory.
Headnote:
Section 28 - Constitutionality and Interpretation - UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 - Summary of Acts and Sections: The court discussed the constitutionality and interpretation of Section 28 of the UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. It upheld the constitutionality of Section 28 and determined that the prescribed manner for holding a meeting for a no-confidence motion is directory, and substantial compliance is sufficient. The court also clarified the requirement of a 15-day notice for the meeting and the permissibility of giving a second notice for a no-confidence motion.
Fact of the Case:
The election to the post of Adhyaksha of Zila Panchayat Deoria was held in 2000, and a no-confidence motion was brought against Smt. Krishna Jaiswal, the elected Adhyaksha. Multiple legal challenges and notices for the motion of no confidence were filed, leading to a dispute over the validity of the notices and the constitutionality of Section 28 of the Act.
Finding of the Court:
The court found that Section 28 of the Act is constitutional and that the prescribed manner for holding a meeting for a no-confidence motion is directory, not mandatory. It also clarified the requirement of a 15-day notice for the meeting and the permissibility of giving a second notice for a no-confidence motion. The court emphasized the importance of substantial compliance with the prescribed procedures.
Issues: The issues before the court included the constitutionality of Section 28, the validity of the notices for the motion of no confidence, the requirement of a 15-day notice for the meeting, and the permissibility of giving a second notice for a no-confidence motion.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant legal provisions, including Section 28 of the Act, and the determination of whether the prescribed procedures were mandatory or directory. The court emphasized the importance of substantial compliance with the prescribed procedures and clarified the requirements for giving notice for a no-confidence motion.
Final Decision: The court upheld the constitutionality of Section 28, determined that the prescribed manner for holding a meeting for a no-confidence motion is directory, and clarified the requirement of a 15-day notice for the meeting. The court also allowed the permissibility of giving a second notice for a no-confidence motion.
( 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 f
