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1994 Supreme(All) 367
High Court Of Allahabad
B.L.Yadav, R.R.K.Trivedi, JJ.
Vinod Raj Saran Dubey Alias Seth
Vs.
State Of Uttar Pradesh
Civil Misc. Writ Petition No. 12263 of 1992
Decided on: Apr 23, 1994
A.K.Srivastava, P.K.Srivastava
Substantial compliance with mandatory notice requirement, curing of defects in nomination of members, effect of interim order, form of notice, adjournment of meeting, incitement of religious and communal feelings, and majority vote against petitioner.
Headnote:
UP KSHETRA SAMITIES AND ZILA PARISHADS ADHINIYAM, 1961 - SECTION 28 - Notice of no confidence motion - Interpretation and application - Substantial compliance with mandatory notice requirement - Curing of defects in nomination of members - Effect of interim order - Form of notice - Adjournment of meeting - Incitement of religious and communal feelings - Majority vote against petitioner - Rejection of writ petition.
Fact of the Case:
A no-confidence motion was moved against the petitioner, the Zila Parishad Adhyaksh, under section 28 of the Uttar Pradesh Kshetra Samities and Zila Parishads Adhiniyam, 1961 (Act of 1961). The petitioner challenged the validity of the notice of no-confidence motion and the result of the proceedings held on 7th April, 1992, on various grounds, including the lack of a clear 15 days' notice to certain members, the non-publication of the notification nominating certain members in the official gazette, the violation of an interim order passed by the Lucknow Bench of the High Court, the non-service of the notice of no-confidence motion in the prescribed form, the adjournment of the meeting, and the incitement of religious and communal feelings.
Finding of the Court:
The High Court held that: * Substantial compliance with the mandatory notice requirement under section 28(3)(ii) of the Act was sufficient in the circumstances of the case, where new members were nominated after the date of the meeting was fixed and it was not possible to give them 15 days' notice. * The defect of non-publication of the notification nominating certain members in the official gazette was cured by the provisions of section 98(2) of the Act, which provides that no disqualification or defect in the election, co-option, or appointment of a member shall vitiate any act or proceedings of the Zila Parishad if the majority of the members present were without any such disqualification or defect. * The interim order passed by the Lucknow Bench of the High Court, which stayed the operation of the order directing certain members to take oath, did not help the members who had already ceased to be members of the Zila Parishad and were rightly not allowed to participate in the meeting. * The notice of no-confidence motion was served on the petitioner and other members in the prescribed form and contained all necessary information. * There was no occasion to adjourn the meeting to allow certain members to obtain permission to participate, as they were not entitled to participate in the meeting. * The issue of incitement of religious and communal feelings was not a matter that could be gone into and enquired into in proceedings under Article 226 of the Constitution.
Issues: 1. Whether the mandatory notice requirement under section 28(3)(ii) of the Act was complied with in the circumstances of the case? 2. Whether the defect of non-publication of the notification nominating certain members in the official gazette vitiated the proceedings? 3. Whether the interim order passed by the Lucknow Bench of the High Court prevented the participation of certain members in the meeting? 4. Whether the notice of no-confidence motion was served in the prescribed form? 5. Whether the meeting was required to be adjourned to allow certain members to obtain permission to participate? 6. Whether the incitement of religious and communal feelings vitiated the proceedings?
Ratio Decidendi: 1. The mandatory notice requirement under section 28(3)(ii) of the Act is to be interpreted in a manner that brings a workable harmony between the need for substantial compliance and the avoidance of inconvenience. In the circumstances of the case, where new members were nominated after the date of the meeting was fixed and it was not possible to give them 15 days' notice, substantial compliance with the notice requirement was sufficient. 2. The defect of non-publication of the notification nominating certain members in the official gazette was cured by the provisions of section 98(2) of the Act, which provides that no disqualification or defect in the election, co-option, or appointment of a member shall vitiate any act or proceedings of the Zila Parishad if the majority of the members present were without any such disqualification or defect. 3. The interim order passed by the Lucknow Bench of the High Court, which stayed the operation of the order directing certain members to take oath, did not help the members who had already ceased to be members of the Zila Parishad and were rightly not allowed to participate in the meeting. 4. The notice of no-confidence motion was served on the petitioner and other members in the prescribed form and contained all necessary information. 5. There was no occasion to adjourn the meeting to allow certain members to obtain permission to participate, as they were not entitled to participate in the meeting. 6. The issue of incitement of religious and communal feelings was not a matter that could be gone into and enquired into in proceedings under Article 226 of the Constitution.
Final Decision: The writ petition was dismissed.
R. R. K. Trivedi, J.
1. IN this writ petition, counter and rejoinder affidavits have been exchanged and the learned counsel are agreed that the writ petition may be disposed of finally at this stage.
2. BY means of this writ petition, petitioner has questioned the validity of the notice of no confidence motion and also the result of the proceedings of no confidence motion held on 7th April, 1992. The facts giving rise to this writ petition are that on 9/10th March, 1992 a notice of no confidence motion against petitioner was given to respondent no. 3 as contemplated under section 28 of Uttar Pradesh Kshetra Samities and Zila Parishads Adhiniyam, 1961 (U. P, Act No. 3 of 1961), hereinafter referred to as 'Act of 1961'. On the basis of the aforesaid notice the respondent no. 3 fixed 7th April, 1992 as the date of meeting of the members of Zila Parishad for consideration of no confidence motion. The notices were issued to the members of the Zila Parishad as required under section 28 of the Act of 12th March, 1992. However, controversy arose with regard to five those members who were chosen and nominated by the State Government under section 18 of the Act. Such nominated members have been arrayed as respondents no. 10 to 24 in three different sets according to the period they continued as nominated members of the Zila Parishad. It appears that initially respondents no, 10 to 14 were nominated as members. However by the Government Order dated 16th January, 1990 they were removed and in their place respondents no. 15 to 19 were nominated as members. The State Government by order dated 25th January, 1992 nominated respondents no. 20 to 24 as members replacing respondent no. 15 to 19. However the Government Order dated 25th January, 1992 appointing respondents no. 20 to 24 as members could be communicated to respondent no. 3 on 25th March, 1992 and the oath was administered to them on 28th March, 1992. The effect of this delay in communication was that respondent II set continued to be members of the Zila Parishad upto 27the March* 1992 as provided in clause (c) of section 20 sub-section (4) of tha Act as inserted by U. P. Act No. 20 of 1990. It shall be appropriate at this stage to reproduce cl. (c) to section 20 of sub-section (4) of the Act which runs as under :
"Section 20 (4) (a) ...................... (b) ...................... (c) Subject to the other provisions of this Act, the term of office of a person chosen to be a member under clause (v) of sub-section (1) of section 18, whether before or after January 20, 1990. shall be one year, but he shall continue to hold office till another person is chosen to be a member in his place. Explanation-For removal of doubts; it is hereby declared that the choice of a person to be a member under clause (v) of sub-section (1) of section 18 may be cancelled by the State Government at any time before the constitution or reconstitution of the Zila Parishad under section 17."
The effect of the aforesaid change was that on the date the notice of intention to move motion of no confidence was moved and on the date when the notices were issued by respondent no, 3 fixing 7th April, 1992 as date for consideration of no confidence motion, the members shown as respondents second set cere continuing the members, as the Government Order dated 25th January. 1992 nominating respondents III set was not communicated. However, on 28th March, 1992, when respondents mentioned as III set were administered oath of office, they replaced respondents II set and became members eligible to participate in the meeting of the members of the Zila Parishad Scheduled for 7th April, 1992 for consideration of no confidence motion. Consequently, respondent no. 3 issued notices for members known as respondents no 20 to 24 after 28th March, 1992, Section 28 (3) (ii) of the Act says that the notice to the members for attending the meeting of the Zila Parishad for consideration of the no confidence motion should not be
