Paras Nath Pandey v. Zilla Panchayat Raj Adhikari — 1993 DIGILAW 416 (ALL)

JUDGMENT : S.R. Singh, J. By means of this petition under Article 226 of the Constitution the Petitioner-Paras Nath Pandey has prayed for issuance of a writ of certiorari quashing the order dated 26-8-1992 (Annexure-4 to the Writ Petition). 2. The impugned order dated 26-8-1992 was passed by the District Panchayat Raj officer, Ballia on a written notice dated 14-8-1992 of the intention to move a motion for removal of the Petitioner who happens to be the Pradhan of the concerned Gaon Sabha. The said written notice dated 14-8-1992 was presented before the District Panchayat Raj Officer, Ballia personally by five members of the Gaon Sabha, viz. Sarv Sri Baijnath Yadav, Jawahar Verma, Jewdhan Yadav, Rajpati Harigan and Gulla Hajjam and it purports to have been signed by 369 out of total strength of 536 members of the Gaon Sabha. The prescribed Authority/District Panchayat Raj Officer, Ballia fixed 11-9-1992 vide order impugned in the Writ Petition as the date for consideration on the motion of no-confidence and authorised the Assistant Development Officer (Panchayat) Vikas Khand Chilkahar, Ballia to preside over the said meeting on his behalf. It may be observed that an order fixing date for discussion on the no-confidence motion moved against the Pradhan or UP/Pradhan of a Gaon Sabha under the provisions of the U.P. Panchayat Raj Act 1947 (in short the Act) read with U.P. Panchayat Raj Rules (in short the 'Rules') being, only a step towards the no-confidence motion, is ordinarily not amenable to writ jurisdiction under Article 226 of the constitution until the no-confidence meeting is held and the result of the meeting declared, but in the instant case the Court entertained the Writ Petition and granted time on 8-9-1992 to the parties' learned Counsel to exchange affidavits and also passed an interim order to the effect that the no-confidence meeting might be held as scheduled in accordance with law but the result would not be declared until further orders of this Court. The interim order at the initial stage was made operative till 30th September, 1992 but it was extended from time to time. The specially convened meeting for consideration on the no-confidence motion moved against the Petitioner has already taken place as scheduled but its result has not been declared thus far due to the interim order passed by this Court. The interim order at the initial stage was made operative till 30th September, 1992 but it was extended from time to time. The specially convened meeting for consideration on the no-confidence motion moved against the Petitioner has already taken place as scheduled but its result has not been declared thus far due to the interim order passed by this Court. Under the circumstances, I think it proper not to dismiss the Writ Petition as premature. Further it is true that the Petitioner has not made any prayer for quashing the minutes of the meeting held on 11-9-1992-is fact he could not have done so in view of the, fact that the Writ Petition was filed before the meeting could be held. But since the question regarding the validity of the meeting was argued at the Bar without any demur from the side of the Respondents and by interim order the Court has stayed the declaration of the result of the meeting dated 11-9-1992, I have gone into the question even in absence of any specific prayer and the ground in this regard in the Writ Petition. The parties' learned Counsel were accordingly heard. 3. It may be observed that despite several opportunities being given, the Standing Counsel could not file counter-affidavit although he participated in the argument advanced on behalf of the Petitioner on one hand and the fifth Respondent on the other on the basis of the affidavits exchanged between them. 4. The learned Counsel for the Petitioner has not been able to point out any infirmity in the impugned order and, in my opinion, the prayer for quashing the impugned order dated 26-8-1992 is devoid of merits The written notice of the intention to move a motion for removal of the Petitioner u/s 14 of the Act was presented before the prescribed Authority personally by five members of the Gaon Sabha who were the signatories and the said notice purports to have been signed/thumb marked by not less than one-half of the total' number of the members of the Gaon Sabha as required by Rule 33B(1) of the Rules and the date fixed for meeting i.e., 11-9-1992 was not later than 30 days from the date of receipt of the notice as required by Sub-rule (2) of Rule 33B of the Rules. The impugned order was thus passed in due compliance of Rule 33B of the Rules and is, therefore, not assailable under Article 226 of the Constitution. 5. Now coming to the question regarding the validity of the meeting it may be mentioned here that before passing the impugned order dated 26-8-1992 the Prescribed Authority District Panchayat Raj Officer, Ballia had called for a report from the Khand Vikas Adhikari as to the genuineness of the signatures/thumb impressions made by the members of the Gaon Sabha on the written notice dated 14-8-1992. Such an exercise was although not expressly required to be undertaken by any provision in the Act or in the Rules but, in my opinion, such was the implicit requirement of Rule 33-B of the Rules which lays down the procedure for removal of Pradhan. It is evident that the rule lays down certain conditions to be fulfilled as conditions precedent to convening a meeting of the Gaon Sabha u/s 14 of the Act and it may be assailed on the ground of being arbitrary or on the ground that the Prescribed Authority has acted without conditions precedent being fulfilled. It is now well settled that an Authority vested with certain power must exercise the power for lawful purpose and must, in exercise of its power, act reasonably and not arbitrarily. An attempt to ascertain the existence of the conditions precedent as comprehended by Rule 33-B of the Rules would save the order convening a meeting for the purpose of Section 14 of the Act from being assailed on the ground of arbitrariness or on the ground that it has been passed even without the conditions precedent laid down for the purpose being satisfied. In my opinion, the District Panchayat Raj Officer, has, in the” instant case acted reasonably in exercise of his power to convene the meeting of the Gaon Sabha u/s 14 of the Act and the conditions precedent being satisfied, the order impugned in the Writ Petition does not suffer from any infirmity warranting interference under Article 226 of the Constitution. 6. Learned Counsel for the Petitioner then urged that the meeting held on 11-9-1992 is vitiated for the reason that 15 days previous notice as comprehended by Section 14 of the Act had not been given. 6. Learned Counsel for the Petitioner then urged that the meeting held on 11-9-1992 is vitiated for the reason that 15 days previous notice as comprehended by Section 14 of the Act had not been given. The first limb of this submission was that the Petitioner was not personally served with any notice of the meeting held on 11-9-1992 and in the second limb it was urged that 15 clear days from the date of notice by beat of drum had not expired on 11-9-1992. 7. The first limb of the above submission made by the Petitioner's learned Counsel has no substance. It may be observed that although the Writ Petition as framed does not contain any prayer for quashing the minutes of the meeting held on 11-9-1992 nor does it contain any ground challenging the validity of the said meeting. But, on the facts as they emerge from the affidavits it is clear that notice of the meeting was given in village by beat of drum on 27-8-1992 as would be clear from the averments made in paragraph 3 of the supplementary counter-affidavit dated 12-5-1993 alongwith which is annexed 'Suchna Rasid' executed by Ram Dahin who is said to have given the notice of the meeting to the members of the Gaon Sabha by beat of drum. Although the Petitioner has denied the service of the notice of the meeting upon him but in paragraph 10 of the rejoinder affidavit dated 29-5-1992 he has stated, “by beat of drum on 27-8-1992 the Respondents have informed the members of the Gaon Sabha that meeting of no-confidence motion is going to be held on 11-9-1992.” The receipt dated 27-8-1992 annexed as Annexure R.A.1 to the rejoinder affidavit no doubt purports to have been executed by one Ram Autar, son of Ram Ashish, who according to the Petitioner, gave the notice of the meeting to the members of the Gaon Sabha by beat of drum on 27-8-1992. It is true that the notice of the meeting by beat of drum, according to fifth Respondent, was given to the members of the Gaon Sabha by Ram Dahin whereas according to the Petitioner it was given by Ram Autar but the fact of giving notice by beat of drum on 27-8-1992 is admitted to the Petitioner. It is true that the notice of the meeting by beat of drum, according to fifth Respondent, was given to the members of the Gaon Sabha by Ram Dahin whereas according to the Petitioner it was given by Ram Autar but the fact of giving notice by beat of drum on 27-8-1992 is admitted to the Petitioner. It may be observed that 'suchna rasid' filed along with the supplementary counter-affidavit has been counter signed by the concerned 'Khand, Vikas Adhikari' and thus in view of the admitted position it stands proved that the notice of the specially convened meeting was given by beat, of drum on 27-8-1992. The meeting held on 11-9-1992 would not be rendered invalid merely because it was not served upon the Petitioner personally. 8. In this connection the provisions contained in Rules 32 and 37 of the Rules may be referred to According to Rule 32 as also according to Section 14 of the Act, notice to attend the meeting of the Gaon Sabha has to be given “at least 15 days” before the date of the meeting. But neither Section 14 nor Rule 32 expressly state as to whom and how the notice is to be given. It is however implicit in these provisions that the notice of the meeting has to be given to the concerned members including the Pradhan The mode of service of notice may be the one prescribed by Rule 37 of the Rules, which, is so far as it is relevant, reads as thus: 37. Meeting to-be notified:(1) A notice to attend a meeting of the Gaon Sabha shall state the date, time and place of the meeting and shall be published by affixing it at conspicuous places in the area of Gaon Sabha The announcement of the date, time and place of the meeting shall also be made by beat of drum. 9. Meeting to-be notified:(1) A notice to attend a meeting of the Gaon Sabha shall state the date, time and place of the meeting and shall be published by affixing it at conspicuous places in the area of Gaon Sabha The announcement of the date, time and place of the meeting shall also be made by beat of drum. 9. A conspectus of the provisions contained in Section 14 of the Act and in rules 32 and 27 of the Rules make it abundantly dear that the notice of the meeting convened u/s 14 of the Act need not be served personally upon the Pradhan or the members of the Gaon Sabha and it is evident from Rule 37 of the Rules that the announcement of the date, time and place of the meeting by beat of drum would tantamount to be a sufficient notice to the members including the concerned Pradhan. In the instant case the provisions of Rule 37 of the Rules stand substantially complied with in view of the averments made in paragraph 3 of the counter-affidavit and paragraph 10 to the rejoinder affidavit. In opinion, therefore, the meeting held on 11-9-1992 is not vitiated by reason of the absence of personal-service of the notice of the meeting upon the Petitioner. 10. The only other question that remains to be considered is whether the requirement of “at least 15 days” previous notice” stands complied with vis-a-vis the meeting held on 11-9-1992? I was inclined to take the view that 15 days' notice period comprehended by Section 14 of the Act would begin to run from the date the notice of the no-confidence meeting convened by the District Panchayat Raj Officer u/s 14 of the Act read with Rule 33-B of the Rules is given to the members including Pradhan of the concerned Gaon Sabha in accordance with Rule 37 of the Rules, but upon consideration of the Division Bench decision of this Court rendered in Yadunath Pandey v. District panchayat Raj Officer, Ballia 1986 UPLBEC 632, I am of the view that the date on which the notice is given in accordance with Rule 37 of the Rules and the date on which the meeting is held, have to be excluded while computing the 15 days' period of notice comprehended by Section 14 of the Act. The Division Bench in the above noted case of Yadunath Pandey has ruled that “the time must be reckoned excluding both the days of the act and that of the convening of the meeting”. The principle to support the said proposition has been succinctly stated by a Division Bench of Madhya Pradesh High Court (Nagpur Bench) in AIR 1955 35 (Nagpur) in the following words. The rule of law is that (where) some words such as so many “clear days” or so many days “at least” are used, the two terminal days must be excluded. The pertinent rule framed under the Act says that notice of such motion shall be given to the president “at least ten days before moving it” and hence under the rule ten clear days should elapse between the notice of a resolution of no-confidence and the motion of no-confidence. Maxwell states the principle in the following words: Where something has to be done so many days or weeks “before” a particular date, another rule is applied, namely that both the days on which the thing is to be done and the day by which it has to be done are excluded from the computation, so that there is a “clear” period of so many days or weeks intervening. So a provision that a notice should be given three days before a trial means that there must be three clear days between the giving of the notice and the trial.” X X X X X In Re Hector Whaling Ltd., Bennet J. had to, consider the wording of Section 117(2) of the Companies Act, 1929 which referred to a general meeting of which not less that twenty-one days' notice has been duly given”. In giving judgment, he said ; In the interest of every body it is of importance that there should be no doubt as to the meaning of a phrase in a section of almost daily use. I do not think there is any doubt about its meaning, and I propose to found ray decision on R.V. Turner and Chambers V. Smith and to decide that phrase means twenty- one clear days exclusive of the day of service and exclusive of the day on which the meeting is to be held. See R.V. Long case (1960) IQB 681, In Re: Hector Whaling Ltd. (1936) Ch. See R.V. Long case (1960) IQB 681, In Re: Hector Whaling Ltd. (1936) Ch. 208, R.V. Turner case (1910) 1 KB 346 and Chambers v. Smith case (1843) 12 M.&W. 2 vide Maxvvel on the Interpretation of statutes Twelfth Edition by P. St. J. Langan p 310-311. 11. Accordingly in the instant case the date of notice i.e., 27-8-1992 and the date of meeting i.e. 11-9-1992 have to be excluded while computing 15 days' notice period required to be given for the purpose of a meeting comprehended by Section 14 of the Act. The expression “at least” used by the Legislature qualifies and modifies the meaning of the expression 15 days' previous notice” used in Section 14 of the Act. Being in respectful agreement with the view expressed in the aforementioned authorities I am of the view that the expression “at least 15 days' previous notice” used in Section 14 leads to irresistible conclusion that the date on which the notice is given according to Rule 37 of the Rules, and the date on which the meeting is held have to be excluded while computing the 15 days' notice-period comprehended by Section 14 of the Act and so computing the notice period it would be clear that in the instant case “at least 15 days' previous notice” of the no-confidence meeting was not given. As such the no-confidence meeting held on 11-9-1992 was illegal and void it being a meeting held contrary to the inhibition impliedly contained in Section 14 of the Act. The meeting held on 11-9-1992 shall be taken to be non-est. 12. Before I part, it may be observed that the. Division Bench in the above noted case of Yaduuath Pandey seems to have counted 15 days' notice period for the purpose of Section 14 of the Act with effect from the date on which the Prescribed Authority/District Panchayat Raj Officer had convened the no-confidence meeting possibly under the impression that an order passed by the District Panchayat Raj Officer convening the no-confidence meeting u/s 14 of the Act lead with Rule 23B of the Rules acts as notice to the members of the Gaon Sabha. The attention of the Division Bench was not invited to Rule 37 of the Rules which prescribes the mode of service of notice. The attention of the Division Bench was not invited to Rule 37 of the Rules which prescribes the mode of service of notice. In my opinion the relevant date for the purpose of commencement of the date for the 15 days' period of notice is the date on which the notice is given to the members of the Gaon Sabha in accordance with Rule 37 of the Rules. It is, however, clearly discernible and deducible from the Division Bench decision referred to above that the date on which the notice is given and the date on which no-confidence meeting is held have to be excluded while computing the 15 days' notice-period' comprehended by Section 14 of the Act. 13. In view of the above discussion the Writ Petition is disposed of with the observation that the no confidence meeting held on 11-9-1992 shall for all practical purposes be taken to be illegal, invalid, void and non use but it shall not prejudice the rights of the members of the Gaon Sabha to bring motion of no-confidence afresh against the Petitioner and it any written notice in this regard is given to the District Panchayat Raj Officer in accordance with Rule 33B of the Rules, he shall convene a meeting for the purpose and give notice to, the members of the Gaon Sabha in accordance with Section 111 of the Act read with rules 33B and 27 of the Rules in the manner explained in this judgment. 14. Parties to bear their own costs.