Point of Law: If a prescribed authority finds that some signatures are not of members of the Gaon Sabha or are forged or otherwise invalid and the remaining signatures are insufficient it would be bound to desist from convening a meeting but the question before us is different, it being whether it is required by any rule to make an enquiry. There may be no provision forbidding an enquiry but that also is immaterial because the law does not require everything not forbidden to be done. The most that can be said is that the matter is at the discretion of the prescribed authority; if a complaint is made to it that a material number of signatures is invalid it may in its discretion make an enquiry or refuse to make it. If it is a small enquiry it is justified in making it and if it is likely to turn out into a long drawn enquiry or if it thinks that the complaint is not bona fide or is made with the ulterior object of delaying the convening of the meeting it is fully justified in not undertaking an enquiry

JUDGMENT :

Sinha, J.

1. Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri Mahendra Singh, learned counsel for the petitioners, Sri Sanjeev Singh along with Sri Purushottam Mani Tripathi, learned counsel for the respondent No.3, learned Standing Counsel for the State-respondents and perused the record.

2. By means of present writ petition under Article 226 of the Constitution, as it came to be filed, a writ of mandamus was initially sought for commanding respondent No.2, namely, the District Magistrate, Kushinagar to pass appropriate orders exercising power vested with him under Section 15(2) of the U.P. Kshettra Panchayat & Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 'Adhiniyam, 1961') qua the notice of “No Confidence Motion” already delivered to him on 9th September, 2019 by the members of the Kshettra Panchayat, Dudahi, District- Kushinagar.

3. The grievance raised by the petitioners is that though a statutory duty is cast upon the District Magistrate to take a decision to convene a meeting of Kshettra Panchayat for consideration of motion of no confidence moved against the Chairman/Pramukh within 30 days of the delivery of the notice, the District Magistrate-respondent No.2 was only borrowing time by holding some roving inquiry in respect of the signatories of the notice. It had been argued initially that in view of the settled legal position emerging out from the Full Bench Judgment of this Court in the case of Smt. Sheela Devi and others v. State of U.P. and others, 2015 (2) ADJ 325 (FB) followed by the subsequent Division Benches of this Court, it was not open for the District Magistrate to conduct a roving inquiry calling for evidence to arrive at satisfaction regarding genuineness of the signatures of the members on the notice of no confidence motion.

4. Having found prima facie arguments advanced by the learned counsel for the petitioners, to be appealing, we passed an order on 1st October, 2019 to the following effect:-

“It is contended by Sri Shashi Nandan, learned Senior Advocate assisted by Sri Mahendra Singh, learned counsel for the petitioners that though the notice for no confidence motion has been moved before the District Magistrate, Kushinagar on 09.09.2019 but he has sit tight over the matter and has not passed any order till date, resultantly, the notice is getting frustrated as not only the 15 days clear time has to be given to the person concerned against whom the no confidence motion is sought to be stated, but even the meeting has to be convened within 30 days of the notice.

In such view of the matter, he submits that it is something like frustrating the provisions contained in the U.P. Kshettra Panchayats and Zila Panchayat Adhiniyam, 1961.

Let, District Magistrate, Kushinagar file his personal affidavit on 17.10.2019 to disclose the reasons for not passing any order on the notice of no confidence motion submitted before him on 09.09.2019, failing which, the District Magistrate, Kushinagar shall appear in person before this Court.

Put up on 17.10.2019.”

5. On the date so fixed above, a personal affidavit was filed by the District Magistrate, Kushinagar annexing therewith a copy of an order dated 20th September, 2019 holding that in a fact finding enquiry conducted by him since he has found signatures of 27 members to be valid out of 83 signatories to the notice and the total members of the House being 149, the notice thus being found genuinely signed only by members less than 50%, it was not lawful to convene meeting of the Kshettra Panchayat under subsection (3) of Section 15 read with sub-section (2) of Section 15 of Adhiniyam, 1961 and thus, notice of motion was held to be incompetent.

6. In such view of the matter, learned counsel for the petitioners sought time to challenge the order of District Magistrate and for that we granted time fixing 21st October, 2019.

7. Having heard learned counsel for the respective parties, two legal questions arise for our consideration in the pre