Jitendra Kumar v. District Magistrate, Aligarh — 1992 DIGILAW 811 (ALL)

JUDGMENT : R.A. Sharma, J. Petitioner, who is Chairman of Town Area Committee, Jalali, District Aligarh (here-in-after referred to as the Committee), has filed this petition for writ of certiorari for quashing the notice of no-confidence dated 21-2-1992 and for writ of mandamus commanding the Respondents not to bold adjourned meeting of the Committee, for consideration of no-confidence motion against him, on 11-3-1992. When this writ petition was presented before this Court for admission, this Court passed an interim order to the effect that any decision taken against the Petitioner in the said meeting shall not be implemented for a period of six weeks. A supplementary affidavit has been filed by the Petitioner at the time of admission hearing of the writ petition mentioning therein that on 11-3-1992 the motion expressing no-confidence in the Petitioner has been passed by the Committee by a majority of 10 to 1, i.e., ten members voted in favour of motion while only one member voted against it. By an amendment application Petitioner has prayed for quashing the order of presiding officer declaring the motion expressing no-confidence in him as passed. 2. The State and the private members have filed counter affidavits. We have heard the learned Counsel for the parties. 3. Learned Counsel for the Petitioner has made five submissions in support of the writ petition, namely, (i) notice of intention to make a motion of no-confidence in the president was not delivered to the District Magistrate and what was delivered was merely a copy of the motion, (ii) there was no publication of the notice of the meeting in the news paper, (iii) Smt. Ram Beti, who was a nominated member of the Committee was not given any notice of the meeting for consideration of the motion of no-confidence, (iv) no notice of the meeting was given to the President of the Town Area Committee, namely, the Petitioner and (v) notice of seven clear days before the date of the meeting was not given. 4. 4. Before dealing with the submissions made by the learned Counsel for the parties, it may be mentioned that Section 87-A of Uttar Pradesh Municipalities Act (here-in-after referred to as the Act), which provides for procedure for consideration of motion of no-confidence, has been extended to the Town Areas by the Government of Uttar Pradesh in exercise of powers conferred on it by Section 38 of the Town Areas Act. Sub-sections (1), (2) and (3) of the said Section, being relevant, are reproduced below: 87-A Motion of no-confidence against president-(1) Subject to the provisions of this section, a motion expressing no-confidence in the president shall be made only in accordance with the procedure laid down below. (2) Written notice of intention to make a motion of no-confidence in its president signed by such number of members of the Beard as constitute not less than two-thirds of the total number of members of the Board together with a copy of the motion which it proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate. (3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the Board, on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty-five days from the date on which the notice under Sub-section (2) was delivered to him. He shall send by registered post not less than seven clear days before the date of the meeting, a notice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice. 5. Regarding the first submission, the Petitioners allegations have been denied in paragraph 10 of the counter affidavit, where in it has been stated that the notice of the intention to make a motion of no-confidence in the Petitioner was delivered to the District Magistrate in accordance with Section 87-A of the Act. Members of the Committee have also filed counter affidavit, wherein the assertions made by the Petitioner on the point have been seriously denied. Members of the Committee have also filed counter affidavit, wherein the assertions made by the Petitioner on the point have been seriously denied. This plea as such, cannot be accepted. 6. The second point raised by the Petitioner about the non-publication of the notice of the meeting is also liable to be rejected. In the counter affidavit filed on behalf of the State. It has been stated that notice of the meeting was notified to the members both by means of registered post and by publication in the news paper 'AMAR UJALA'. It has further been asserted in the counter affidavit that the meeting, which was initially fixed for 28-2-1992 was adjourned by the learned Civil Judge for 11-3-1992 and the notice of the adjourned meeting was also published in the news paper 'AMAR UJALA', extract of which has also been reproduced in the said counter affidavit There has been, as such, due publication of the notice of the meeting of Committee for consideration of motion of no-confidence. That apart, the Petitioner has himself stated in a supplementary affidavit that the members of the Committee including be himself had the knowledge of the meeting. If the Petitioner and the members had the knowledge of the meeting, the technical objection of want of publication loses weight. 7. Third and fourth points, which relate to want of notice to Smt. Ram Beti and to the Petitioner himself, are also devoid of merit. It has been stated that two members of the Committee, namely, Smt. Ram Beti and Sri Ram Chandra, who were nominated by the State Government in 1989, were removed by the State Government by its notification dated 19-2-1990 and new members were nominated in their places. It is also asserted that the later notification dated 19-2-1990 was quashed by this Court. With the result that the membership of the aforesaid two members stands revived on account of which the old two members were entitled to the notice of the meeting, which was not done. It is also asserted that the later notification dated 19-2-1990 was quashed by this Court. With the result that the membership of the aforesaid two members stands revived on account of which the old two members were entitled to the notice of the meeting, which was not done. It has further been stated that notice was not given to the Petitioner also In the counter affidavit of Naimuddin, it has been averred that although Smt. Ram Beti became a member but Sri Ram Chandra cannot be treated a member, as he was not given the oath Be that as it may, the admitted position is that the members of the Committee including the Petitioner were fully aware of the meeting convened for consideration of the motion of no-confidence. The Petitioner himself in paragraph 4 of the supplementary affidavit has admitted that the members and he himself had the knowledge of the said meeting. If the members of the Committee and the Petitioner knew about the meeting, the plea of want of formal notice to them carries no weight, and this Court will not interfere at their instance under Article 226 of the Constitution of India, even if notice was not given to them. Full Bench of five Hon'ble Judges of this Court in the case of Gyan Singh Vs. The District Magistrate, Bijnor and Others, AIR 1975 All 315 . has laid down that this Court under Article 226 of the Constitution should not interfere if the members and President of the Board had the knowledge of the meeting convened for consideration of the motion of no-confidence even though they have not been given the notice Relevant extracts from paragraphs 16 & 17 of this decision are reproduced below: In my opinion even if a member or the president of the Board may not be under a duty to attend the meeting convened for considering the motion of no confidence in the president, in the absence of service of notice on him but in that event such a member or president will not be entitled to discretionary relief from this Court under Article 226 of the Constitution. It is well settled principle that a Petitioner is not entitled to issue of writ as of right under Article 226 of the Constitution. It is well settled principle that a Petitioner is not entitled to issue of writ as of right under Article 226 of the Constitution. The conduct of a Petitioner is a relevant consideration in exercising the discretionary power of this Court under the said Article. In a case where the Petitioner is found to have acquired knowledge of the meeting and if he voluntarily has abstained from participating in that meeting it would not be sound exercise of jurisdiction under Article 226 of the Constitution to grant relief to the Petitioner for nullifying the resolution of no-confidence which may have been passed by the majority of the members of the Board. XX XX XX In Dr. B.N. Sarin Vs. State of Uttar Pradesh and Others, AIR 1967 All 465 . S.N. Dwivedi, J. held that the president of the Board to whom notice of the meeting convened for consideration of the no-confidence motion in the president was not sent due to mistake of the office of the District Magistrate, was not entitled to any relief under Article 226 of the Constitution because it was established before the Court that the president had full knowledge of the date, time place and purpose of the meeting. The learned Judge held that the president could not be suffered to impeach the majority resolution for want of notice. I am in respectful agreement with the proposition of law laid down by Dwivedi, J., that the conduct of a Petitioner is relevant consideration in granting discretionary relief under Article 226 of the Constitution and for that reason this Court may refuse relief to a Petitioner having regard to the facts and circumstances available in the case. Learned Counsel for the Petitioner has, however, submitted that if the notice has not been given to the president or the members, this Court is bound to set aside the proceedings even if the president and the members were fully aware of the meeting convened for consideration of motion of no-confidence. In this connection reliance has been placed on the decision of the Supreme Court in the case of Gajanan Narayan Patil and others Vs. Dattatraya Waman Patil and others, (1990) 3 SCC 634 . In this connection reliance has been placed on the decision of the Supreme Court in the case of Gajanan Narayan Patil and others Vs. Dattatraya Waman Patil and others, (1990) 3 SCC 634 . In the above case before the Supreme Court nominees of Financial Institutions and experts co-opted by the Committee were neither treated as members of the Committee nor were they issued any notice of the special meeting convened pursuant to the requisition notice for consideration of motion of no-confidence against the Chairman. The High Court before which requisition notice was challenged held the nominees and the co-opted members as Committee members, who are entitled to sit and vote at the meeting of the Committee. With the above finding the High Court disposed of the writ petition by directing the Registrar to issue fresh notice to the elected members as well as nominees of the Financial Institutions before holding the meeting. However, it granted certificate for appeal to Supreme Court on the following question, which has been reproduced in para 5 of the judgment of the Supreme Court: Whether the nominees of the Financial Institutions and the expert co-opted by the Committee under Bye-laws 29 are included within the expression "Committee members," who are for the time being entitled to sit and vote at any meeting of the Committee? By majority the Supreme Court answered the above question in affirmative and accordingly allowed the writ petition declaring the impugned requisition notice convening special meeting for consideration of no-confidence against Chairman as illegal. The position in the instant case is different as neither their membership or their right to sit and vote at the meeting convened for consideration of no-confidence is disputed. When the membership of the Committee of a person and his right to sit and vote at the meeting is not disputed and v hat is complained of is the want of formal notice of the meeting, although he had full knowledge of it, the ratio of the decision of the Supreme Court in Gajanan Narayan Patil (supra) is not applicable. In the present case there is dispute between the parties on the question of giving of formal notice to the Petitioner and Smt. Ram Beti. In the present case there is dispute between the parties on the question of giving of formal notice to the Petitioner and Smt. Ram Beti. But it is not necessary to go into this controversy as the Petitioner has admitted in the supplementary affidavit that the members and he himself had the knowledge of the meeting in which the motion of no-confidence was considered. There was, as such, no prejudice caused to them due to want of formal notice. 8. The jurisdiction of this Court under Article 226 of the Constitution being supervisory in nature, equitable principles are enshrined in it and as such, it is not bound to interfere merely because the order suffers from infirmity unless prejudice is established In this connection reference may be made to the decision of the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 . wherein it was laid down as under: That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned, into Courts of appeal or revision to set right mere errors of law which do not occasion injustice. Similarly in Shiv Shankar Dal Mills and Others Vs. State of Haryana and Others, (1980) 2 SCC 437 . the Supreme Court has laid down as follows: Article 226 grants an extraordinary remedy which is essentially discretionary. Although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects. In view of the facts and circumstances of the case, we are of the opinion that it is not a fit case to interfere in exercise of our jurisdiction under Article 226 of the Constitution. 9. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects. In view of the facts and circumstances of the case, we are of the opinion that it is not a fit case to interfere in exercise of our jurisdiction under Article 226 of the Constitution. 9. As regards the last submission, the grievance of the Petitioner is that seven clear days notice before the date of the first meeting (28-2-1992) was not given. It is true that Sub-section (3) of Section 87-A of the Act requires giving of notice of seven clear days before the date of meeting. Presuming that the above provision is mandatory, we are of the opinion that this Court in exercise of its equitable jurisdiction under Article 226 of the Constitution should not interfere at the instance of the Petitioner, who had full knowledge of the meeting We have already referred to herein before the decision of five Judges Full Bench of this Court in the case of Gyan Singh v. District Magistrate (supra), wherein it has been laid down that this Court should not interfere if the Petitioner has knowledge of the meeting even though no notice was issued to him. That apart, the meeting of 28-2-1992 was adjourned for 11-3-1992 on which date the motion was considered. For adjourned meeting the rule of seven clear days notice does not apply and what is required by Sub-section (5) of Section 87-A is that the adjourned meeting should be held on a date which is not later than 15 days from the date of the first meeting. This submission also lacks merit and is rejected. 10. After we have heard the learned Counsel for the parties and reserved the judgment. Learned Counsel for the Petitioner has submitted a written argument in support of the submissions made by him at the time of the hearing of the writ petition. From the perusal of the written argument, however, it appears that the Petitioner has raised a new plea that the notice of intention to move no-confidence motion was not presented to the District Magistrate but was delivered to the Additional District Magistrate and the meeting for consideration of the motion of no confidence was convened by Mukhya Vikas Adhikari and not by the District Magistrate. These are the factual questions, which ought to have been raised by the Petitioner in his writ petition. In the written arguments, which are not supported by any affidavit, any new pleas pertaining to factual controversies cannot be entertained unless the factual foundation has been laid down in the writ petition itself. There are no such averments in the writ petition and under the circumstances such a plea cannot be entertained. 11. For the reasons given above, this writ petition is dismissed In view of the facts and circumstances of the case, there shall be no order as to costs.