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2018 Supreme(All) 2402
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SHASHI KANT GUPTA, AJIT KUMAR, JJ.
Poonam – Appellant
Versus
State of U.P. and Ors. – Respondents
Writ-C No. 44612 of 2017
Decided On : 05-09-2018
For the Appellant : Arun K. Singh Deshwal
For the Respondents: C.S.C., Aseem Kr. Rai and Bhuvnesh Kumar Singh
Headnote:
NO CONFIDENCE MOTION - U.P. KSHETRA PANCHAYATS AND ZILA PANCHAYATS ADHINIYAM, 1961 - SECTION 15(2), 15(3)(II) - [Shashi Kant Gupta, J.] - In a petition challenging the order of the District Magistrate fixing a date for convening a meeting of the Kshetra Panchayat to consider a no-confidence motion against the petitioner, the Court held that the requirement of giving notice by the Collector under Section 15(3)(ii) of the Act in the prescribed proforma as required by Rule 2 and Form II is not mandatory and the proceedings will not be vitiated if there has been substantial compliance of the provision.
Fact of the Case:
The petitioner, Smt. Poonam, was elected as Pramukh of Kshetra Panchayat, Kotwali, Bijnor on 7.2.2016. On 8.9.2017, some of her rivals prepared forged affidavits and a notice of no-confidence against her and submitted them to the District Magistrate, Respondent No. 2. The impugned notice dated 11.9.2017 fixed the date of the meeting as 28.9.2017. The petitioner filed a writ petition challenging the order.
Finding of the Court:
The Court found that the notice of the meeting was pasted on the notice board of the Kshetra Panchayat on 11.9.2017 and that the members had knowledge of the meeting. It also found that 123 members attended the meeting on 28.9.2017 and that 114 members participated in the voting. The Court held that there was substantial compliance of the relevant provisions and that the proceedings would not be vitiated.
Issues: 1. Whether the requirement of giving notice by the Collector under Section 15(3)(ii) of the Act in the prescribed proforma as required by Rule 2 and Form II is mandatory? 2. Whether the proceedings will be vitiated if there has been substantial compliance of the provision?
Ratio Decidendi: The Court held that the requirement of giving notice by the Collector under Section 15(3)(ii) of the Act in the prescribed proforma as required by Rule 2 and Form II is not mandatory and the proceedings will not be vitiated if there has been substantial compliance of the provision.
Final Decision: The Court dismissed the writ petition and vacated the interim order dated 21.9.2017 passed by the Court. The Collector, Bijnor was directed to declare forthwith the result of the voting which took place on 28.9.2017 in the meeting of Kshetra Panchayat Kotwali Bijnor for consideration of motion expressing want of confidence in the petitioner.
JUDGMENT :
Shashi Kant Gupta, J.
1. This writ petition has been filed, inter alia, for the following reliefs;
"(i) Issue appropriate writ, order or direction quashing the order/notice dated 11.09.2017 of respondent No. 2 fixing the date as 28.09.2017 for convening the meeting of Kshetra Panchayat Kotwali, Bijnor to consider 'No Confidence Motion' against the petitioner."
2. Brief facts of the case as set out in the writ petition are as follows;
3. An election of Kshetra Panchayat, Kotwali, Bijnor (in short "Kshetra Panchayat") was held on 29.10.2015, petitioner, Smt. Poonam was declared elected as member of Kshetra Panchayat, Kotwali, Bijnor. Later on, she was elected as Pramukh of Kshetra Panchayat on 7.2.2016; total elected members of Kshetra Panchayat were 187 but after the death of two members of Kshetra Panchayat, total strength of Kshetra Panchayat was reduced from 187 to 185. After the change of State Government in Uttar Pradesh, some of the rivals of the petitioner prepared the forged affidavits as well as notice of no-confidence against the petitioner and submitted them before the District Magistrate, Bijnor, Respondent No. 2 on 8.9.2017; Petitioner and the other members of the Kshetra Panchayat received the impugned notices of Respondent No. 2 dated 11.9.2017 on 14.9.2017; along with the said notice dated 11.9.2017, a copy of the motion expressing want of confidence in the Pramukh was also annexed.
4. As per the impugned notice dated 11.9.2017, the meeting of Kshetra Panchayat was scheduled to be held on 28.9.2017, for considering no-confidence motion against the petitioner. Envelop containing the notice dated 11.9.2017 reveals that the same was dispatched on 13.9.2017.
5. It was further averred in the writ petition that as soon as, the members came to know about the alleged "No Confidence Motion" issued on the basis of forged signatures, 115 members filed their objections before the District Magistrate, Bijnor through application dated 14.09.2017.
6. It was further averred in the writ petition that the envelope containing the impugned notice dated 11.9.2017 fixing the date of meeting for 28.9.2017 for carrying on a motion of No-Confidence against the petitioner shows that the same was dispatched on 13.9.2017. Therefore, if both the days, the initial and the last date are excluded (date of dispatch and date of meeting) that would not give 15 clear days, meaning thereby that only 14 days time were given to the members. As per Section 15(3)(ii) of The U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (in short Act 1961), there must be 15 days clear notice of meeting, as such, the impugned notice dated 11.9.2017 is illegal being in contravention of Section 15(3)(ii) of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961.
7. It was next pleaded that as the present total member of Kshetra Panchayat, Kotwali, Bijnor is 185, therefore, 93 members are required to sign the valid notice of no-confidence motion. Though notice of no-confidence motion allegedly contains the names and signatures of 106 members but 40 of those members have already filed their affidavits denied having signed the same, therefore, figure comes down to 66 which is not sufficient for initiating the proposed 'No Confidence Motion' as per Section 15(2) of U.P. Kshettra Panchayat and Zila Panchayat Act.
8. It has been further pleaded that out of total members, 26 members have not taken oath as member of Kshettra Panchayat but their names and alleged signatures appear in the notice of no-confidence motion dated 8.9.2017, as such, if the members to any elected body do not subscribe to oath, then they cannot enter upon their office. Therefore, figure of 106 members mentioned in notice of intention for no-confidence motion dated 8.9.2017. comes down further to 38. after excluding those members who had given their affidavits denying their signatures on the notice of motion as well as the members who did not subscribe to oath.
9. It was further pleaded
