Bheem Singh Rana v. District Magistrate, District Udham Singh Nagar
2007-07-25
J.C.S.RAWAT, RAJEEV GUPTA
body2007
DigiLaw.ai
JUDGMENT J.C.S. Rawat, J. By means of this Writ Petition, moved under Article 226 of the Constitution of India, the petitioner has sought the following reliefs :- "I. Issue a writ order or direction in the nature of certiorari quashing the Resolution dated 21-12-2006 and order dated 21-12-2006 passed by Respondent No.1 (Annexure 7 & 8) to this writ petition. II. Issue a writ order or direction in the nature of mandamus directing and commanding the respondents not to interfere in the peaceful working of the petitioner as Block Pramukh till the completion of his terms. III. Issue a suitable writ, order or direction, which this Hon'ble Court may be deem fit and proper in the circumstances of the case. IV. Award the cost of the petition." 2. Brief facts for the disposal of this writ petition are that the petitioner is an Elected Chairman (Block Pramukh) of Block Development Division, Sitarganj and he took charge on 2605-2003. Due to political animosity, the rival group was interfering in the peaceful working of the petitioner and also trying to pressurize him to do illegal works which the petitioner refused to do so. Due to this, the rival group has decided to harass the petitioner. On 30-11-2006 a meeting of members was called in which the intimation to 40 BDC members and 55 Village Pradhans were given who were the nominated members but the meeting was adjourned for want of quorum. On 30-11-2006 the rival group of BDC members held the meeting in which 21 members had allegedly made signature which were not genuine. They submitted the said proposed no-confidence motion to respondent No.1 District Magistrate. On 01-12-2006, the respondent No.1 District Magistrate, Udham Singh Nagar has directed the officer concerned to take necessary action about the meeting to be held on 21-12-2006. A notice was served upon the BDC members about the meeting dated 21-12-2006. The petitioner on 14-12-2006 received notice No. 741 dated 01-12-2006 stating therein that a meeting for consideration of motion of no-confidence is to be held on 21-12-2006. The petitioner has not received any proper notice in the prescribed form but prior to 7 days' of the meeting he was served a photocopy of the notice on 14-12-2006 which cannot be said to be the legal notice of the meeting.
The petitioner has not received any proper notice in the prescribed form but prior to 7 days' of the meeting he was served a photocopy of the notice on 14-12-2006 which cannot be said to be the legal notice of the meeting. The respondents have not served the copy of the notice to the elected members of the Kshettra Panchayat before 15 days' of the meeting and the same was in violation of the provision of Section 15(3)(ii) of the U.P. Kshettra and Zila Panchayat Act, 1961 (hereinafter referred as Act). The respondent No.1 on 21-12-2006 passed an order removing the petitioner from the post of Block Pramukh without following the procedure prescribed under the Act. Hence, this petition has been filed by the petitioner. 3. The respondents have filed counter affidavit alleging therein that a written notice dated 01-12-2006 expressing want of confidence in the petitioner was delivered in person by the members signing the notice to the Collector / District Magistrate. The Collector / District Magistrate got the signatures verified through the BOO Sitarganj and the signatures were found to be genuine. It was pleaded that total number of members of the Kshettra Samiti, Sitarganj is 40 and as per Section 15(2) of the Act, the notice is to be given by at least half of the total number of the members of the concerned Kshettra Samitis. It was further pleaded that notice expressing no-confidence upon the petitioner was given in the prescribed manner to the respondent No.1. It was further pleaded that the respondent No.1 had directed to convene the meeting of Kshettra Samiti for the consideration of the motion on 21-12-2006 at the office of the Kshettra Samiti and the notice of the meeting dated 21-12-2006was given by him in accordance with the provisions of Section 15(3)(ii) of the Act to all the eligible members. According to Section 15(3)(i)(ii) of the Act, the date for the consideration of the motion is to be fixed not later than 30 days from the date of the receipt of notice. The Collector / District Magistrate received the notice on 01-12-2006 and he fixed the date for the consideration of the motion on 21-12-2006 which is not later than 30 days.
The Collector / District Magistrate received the notice on 01-12-2006 and he fixed the date for the consideration of the motion on 21-12-2006 which is not later than 30 days. It was further pleaded that notice to the members for the date of the consideration of the motion is to be not less than 15 days as per Section 15(3)(ii) of the Act. It was further pleaded that notice was served within 15 days to each members of the Kshettra Samiti, Sitarganj and all 40 members of the Kshettra Samiti were present in the meeting on 21-12-2006. 33 members voted for the motion of no confidence against the petitioner; 4 voted against the motion and 3 votes were found invalid. Thus, the motion of no-confidence against the petitioner was carried out by majority. It was further pleaded the copies of the proceedings dated 21-12-2006 were supplied to all the members and the respondent No. 1 asked the respondent No.3 to preside over the meeting and in this respect authorization letter was given to him. At last, it was pleaded that the petitioner is not entitled to any relief sought in the writ petition. 4. The petitioner has also filed the rejoinder affidavit reiterating the same averments which he has made in the writ petition. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the petitioner vehemently argued that it is obligatory upon the Collector/District Magistrate to send the copy of motion alongwith the notices issued for holding the meeting. The copy of the motion was not annexed to the notices, therefore, the entire proceedings of the meeting held on 21-12-2006 were invalid and illegal. It was further contended that the notice contemplated u/s 15(3)(ii) of the Act was served upon the BDC members on 13-12-2006 about the meeting dated 21-12-2006 and the date of the notice mentioned on the notice was as 01-12-2006. It was further contended that no such notice was delivered upon the petitioner alongwith copy of the proposed motion to be tabled in the meeting on 21-12-2006. Mr. Subhash Upadhyay, Brief Holder and Mr. S.S. Chauhan, Advocate appearing for the contesting respondents and intervener respectively, on the other hand, supported the validity of the notice issued by the Collector/District Magistrate as well as the proceedings of the meeting held on 21-12-2006.
Mr. Subhash Upadhyay, Brief Holder and Mr. S.S. Chauhan, Advocate appearing for the contesting respondents and intervener respectively, on the other hand, supported the validity of the notice issued by the Collector/District Magistrate as well as the proceedings of the meeting held on 21-12-2006. It was urged that all the 40 members of Kshettra Samitis attended the meeting on 21-12-2006 and out of 40 members; 33 members voted for the motion of the no-confidence against the petitioner; 4 members voted against the motion and three votes were found invalid. Thus, the motion of no-confidence against the petitioner was carried out by the overwhelming majority. 7. Procedure for motion expressing want of confidence in Pramukh or Up-Pramukh has been provided under Section 15 of the Act. In the case in hand, we will have to see as to whether procedure prescribed for motion of no-confidence was followed or not, and if not whether it has vitiated the proceedings of the meeting held on 21-12-2006. It is now well settled position of law that the first part of Section 15 relating to sub-section (1) to sub-section (3) which requires the Collector to convene the meeting of the Board within thirty days for considering the motion of no-confidence against the Pramukh/Up-Pramukh is mandatory. The Collector is required to perform the public duty in convening a meeting of the Board for consideration of the motion on the date and time as fixed by him. The Collector has no choice in respect of the above matters. The provisions dealing with what is to follow the termination of the meeting are directory. The Collector has to convene the meeting within 30 days of the notice of the motion. The said provision is mandatory. In case, he did not convene the meeting within 30 days, the no-confidence motion presented to the Collector would lapse ipso facto. However, the members would have a choice to present another no-confidence motion to the Collector as provided u/s 15(3) (i) of the Act. The Collector has further to perform the obligatory duty provided under the Act by giving the notice of the meeting to the members. This provision upto that extent is also mandatory. The second part of sub-section 15(3)(ii) provides the manner required to be followed in giving the notice to the members.
The Collector has further to perform the obligatory duty provided under the Act by giving the notice of the meeting to the members. This provision upto that extent is also mandatory. The second part of sub-section 15(3)(ii) provides the manner required to be followed in giving the notice to the members. It is provided under the Rules that the notice should be sent by registered post to every member of the Kshettra Samiti at his place of residence. Giving notice to the members by the Collector is only to enable them to have the knowledge of the meeting and the no-confidence motion and further to participate in the meeting convened for the purposes of considering the no-confidence motion. If the notices are not sent by the Collector to the members, it would vitiate the entire proceedings of the meeting but in case the notices were sent and the manner of the services of the notice was not adopted as provided under the Act or the Rules, thus substantial compliance of the same would meet the requirement of the law. If the notices were not sent by registered post to the members and the Collector sent the notices through the messenger before 15 days from the date of the meeting, it would not vitiate the meeting. The intention of the Legislature is clearly evident requiring to send the notices by registered post that it should reach the members so that a presumption of the service would be available to the Collector. Sending the notices by the special messenger meant that the substantial compliance of the same had been made and the requirement of the law has been completed. The provisions of Section 15 of the Act are pari materia with the provisions of Section 87AofU.P. Municipalities Act. While considering the provisions of Section 87Aofthe U.P. Municipalities Act, 1961, the Full Bench of Allahabad High Court in the case of Mahesh Chandra and another Vs. Tara Chand Modi reported in AIR 1958 Alld. P/374 has held as under:- "the provisions of Section 87 A can be broadly divided into two portions, one dealing with the provisions which relate to the calling of the meeting and the actual holding of the meeting as also the conduct of the meeting itself; and the other dealing with what is to follow the termination of the meeting.
P/374 has held as under:- "the provisions of Section 87 A can be broadly divided into two portions, one dealing with the provisions which relate to the calling of the meeting and the actual holding of the meeting as also the conduct of the meeting itself; and the other dealing with what is to follow the termination of the meeting. The first portion of this section is mandatory in the scope, but not the second portion. The word 'a motion expressing no-confidence in the President shall be made only in accordance with the procedure laid down below' in Section 87 A(1) can and do refer only to the calling of the meeting and not to acts which have to be performed subsequent to the meeting." 8. Thereafter, the matter again came up for consideration before the Full Bench of the 5 Judges of the Allahabad High Court in Gyan Singh Vs. The District Magistrate, Bijnor and others reported in AIR 1975 p/315 and the Full Bench has held as under: "8. A careful analysis of sub-section (3) would make ft clear that the first part which requires the District Magistrate to convene meeting of the Board for considering the motion of no-confidence against the President is mandatory. The District Magistrate is required to perform a public duty in convening a meeting of the Board for consideration of the motion at the office of the Board on the date and time as fixed by him, he has no choice in the matter. He has to convene a meeting on a date within 30 and 35 days from the date of presentation of the motion to him. The District Magistrate is further enjoined to perform a public duty of sending notice of the meeting to the members; this again is a mandatory requirement of law which must be strictly complied with. The second part of the sub-section lays down the manner required to be followed in sending notices to the members. It lays down that notice of the meeting shall be sent by registered post to every member of the Board at his place of residence. The essence of this provision is to give information to the members to enable them to avail opportunity of participating in the meeting convened for the purpose of considering the no-confidence motion.
It lays down that notice of the meeting shall be sent by registered post to every member of the Board at his place of residence. The essence of this provision is to give information to the members to enable them to avail opportunity of participating in the meeting convened for the purpose of considering the no-confidence motion. The first part of the section requiring the District Magistrate to convene meeting and to send notices to the members is mandatory, any disregard of that provision would defeat the very purpose of the meeting, but the manner of service of notice and publication of the same is directory in nature, therefore a substantial compliance of the same would meet the requirement of law. 9. The purpose of service of notice by registered post and publication of the notice otherwise is to ensure that members should get adequate notice of the meeting to enable them to participate in the debate over the no-confidence motion at the meeting. That purpose is not defeated if the notice is sent to the members not by registered post but by other methods and seven clear days are given to the members. The legislature never intended that unless notice is sent by registered post to the members the proceedings of the meeting would be vitiated. The Legislature, no doubt, stressed that if the two steps as laid down in the sub-section are taken by the District Magistrate, i.e., notice of the meeting is sent to members by registered post at their place of residence and further if it is published in the manner directed by the District Magistrate, a presumption would arise and every member shall be deemed to have received the notice of the meeting. In that case it will not be open to any member to contend that he did not receive notice of the meeting or that the meeting was illegally constituted for want of notice. The purpose of sending notice can be achieved even without sending the same by registered post. There may be a case where the postal system may be disorganized and it may not be possible to send notice by registered post. In that situation the District Magistrate may send notice to members of the Board by special messenger giving them seven clear days before the date of the meeting.
There may be a case where the postal system may be disorganized and it may not be possible to send notice by registered post. In that situation the District Magistrate may send notice to members of the Board by special messenger giving them seven clear days before the date of the meeting. In that event the legislative intent and purpose requiring sending of notice would be fully achieved although in that event the rule of presumption as laid down in the sub-section would not be available and if a challenge was made by a member that no notice was received by him, the deeming provision will not be applicable and it would require proof that the notice even though sent by ordinary post or by special messenger was actually served on the member. The emphasis on sending notice to members by registered post and for publication of the same in the manner directed by the District Magistrate, is directed to invoke the presumption as contemplated in the last sentence of sub-section. In the absence of presumption, it is always open to a party to prove that notice though sent in a different manner was served on the members. In view of the above discussion, I am of the opinion that even if the notice is not sent to the members by registered post the meeting cannot be held to have been illegally convened provided it is proved that the notice was received by the members and they had knowledge of the meeting. " 9. Section 15 of the Act provides as under: "15. Motion of non-confidence in Pramukh or Up-Pramukh - (1 )A motion expressing want of confidence in the Pramukh or any Up-Pramukh (sic) of procedure laid in the following sections(2) A written notice of intention to make the motion, in such form as may be prescribed, signed by at least half of the total numbers of members of Kshettra Samiti for the time being together with a copy of the proposed motion; shall be delivered in person, by anyone of the members signing the notice, to the Collector having jurisdiction over the Kshettra Samiti.
(3) The Collector shall thereupon(i) convene a meeting of Kshettra Samiti for the consideration of the motion at the office of the Kshettra Samiti on the date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him, and (ii) give the members of the Kshettra Samiti notice of not less than fifteen days of such meeting in such manner as may be prescribed." 10. In view of sub-section (3) of Section 15 quoted above, notice is to be issued by the Collector, to convene meeting of Kshettra Samiti for consideration of motion of no confidence, against Pramukh on the date, time and place, appointed by him. Notice is to be issued in such manner as may be prescribed. The term 'prescribed' has been defined under sub-section (19) of Section-2 of the Act as under : '2( 19) 'Prescribed' means prescribed by the Act or by any rule made thereunder. ' 11. In exercise of power under Section 235 of the Act, Rules have been framed by the State Government. Rule-2 of the aforesaid Rules provides as under: "2. Notice under clause (ii) of sub-section (3) of Section 15 of the U.P. Kshettra Samiti and Zila Parishad Adhiniyam, 1961 shall be in form II of the Schedule given below and shall be sent by registered post to every member of the Kshettra Samiti at his ordinary place of residence. It shall also be published by affixation of a copy thereof on the notice board of the office of the Kshettra Samiti.” 12. Form II prescribed under the Rules referred to above, is quoted below: FORM II (Form of the notice of a meeting of the Kshettra Samiti to be held for the consideration of the no confidence motion against the Pramukh / Up-Pramukh.) Member of. ......... ................ .....Kshettra Samiti, District..... .. . .. . .. . .. . .. . .. . .,. . . . .. . .. . .. NOTICE This notice is hereby given to you for the meeting of............. Kshettra Samiti which shall be held at the office of the said Kshettra Samiti on................. (date) .............. At................ (time) for consideration of the motion of no-confidence which has been made against Sri................, the Pramukh I Up-Pramukh of the said Kshettra Samiti. A copy of the motion is annexed hereto. Place Date.............. ...Collector.......................
Kshettra Samiti which shall be held at the office of the said Kshettra Samiti on................. (date) .............. At................ (time) for consideration of the motion of no-confidence which has been made against Sri................, the Pramukh I Up-Pramukh of the said Kshettra Samiti. A copy of the motion is annexed hereto. Place Date.............. ...Collector....................... (Underlined to add emphasis - Her in italics) It is evident from the aforesaid proforma of notice to the members that alongwith the notice, a copy of the motion is to be annexed. 13. It is evident from the record that a written notice dated 01-12-2006 expressing want of confidence in the petitioner (Block Pramukh) alongwith copy of the motion signed by 21 members of the Kshttra Samitis, Sitarganj, Udham Singh Nagar was delivered in person by the persons signing the notice to the Collector / District Magistrate. The petitioner has also annexed the copy of the notice alongwith the writ petition by which the service has been affected on the petitioner on 14-12-2006 and the signature has been obtained for the receipt of the said notice and the copy of the proposed no-confidence motion. The said notice (Annexure-5) is quoted below:- 14. It is apparent that the petitioner has received the notice which clearly indicates that the copy of the motion was supplied alongwith the notice to each members of the Kshettra Samitis including the petitioner and the respondent No.1 specifically deputed respondent No.2 B.D.O., Sitarganj on 08-12-2006 to serve the notice alongwith copy of the motion to each of the members of the Kshettra Samitis, Sitarganj. It is revealed from the record that the copies of the notice were sent and were delivered upon the members. It is pertinent to mention here that if the petitioner or any member of the BDC would not have received the copy of the proposed no-confidence motion attached with the notice, they could have very well made an endorsement that they have not received the copy of the proposed no-confidence motion alongwith the notice. The respondents in their counter affidavit had categorically stated that copy of the notice and the copy of the motion as provided u/s 15(2)(ii) of the Act was supplied to each member of the Kshettra Samitis. It is also evident that when the meeting was convened on 21-12-2006 all 40 members of the Kshettra Samitis were present in the meeting.
The respondents in their counter affidavit had categorically stated that copy of the notice and the copy of the motion as provided u/s 15(2)(ii) of the Act was supplied to each member of the Kshettra Samitis. It is also evident that when the meeting was convened on 21-12-2006 all 40 members of the Kshettra Samitis were present in the meeting. This it is apparent from the presence of all the members that they got sufficient notice of the meeting on 21-12-2006 and thereafter they deliberated upon the no-confidence motion in the meeting. It is apparent from the record that the copy of the no-confidence motion had been served upon the members. Thus, we do not find any force in the contention raised by the learned counsel for the petitioner. 15. It was further contended that Section 15(3)(ii) of the Act provides that the Collector after receipt of the no-confidence motion shall give notice of the meeting of not less than 15 days in such manner as may be prescribed. It was further contended that it was obligatory on the part of Collector to serve the notice upon the members for the date of the consideration of the motion of not less than 15 days as per the provision of the Act. The notices dated 01-12-2006 issued by respondent No. 1 to the members of the BDC dearly reveal that the notices were served on 13-12-2006 about the meeting. It was further contended that after the receipt of the notice to the members there was no clear notice of 15 days from the service of the notice to the date of the meeting. It is not disputed that a written notice in pursuance of the proposed no-confidence motion was issued on 01-12-2006 to the petitioner as well as other members of the Kshettra Samitis. The District Magistrate I Collector sent the requisite number of notices and the copy of the motion to respondent No.4 BDO on 01-12-2006 to serve the copy of the notice to each of the members of the Kshettra Samitis. It is also revealed from the record that the notices were served upon the members either on 14th or 13th December, 2006. The notices were served personally upon the members and in pursuance of said notices they have attended the meeting.
It is also revealed from the record that the notices were served upon the members either on 14th or 13th December, 2006. The notices were served personally upon the members and in pursuance of said notices they have attended the meeting. It is not the case of the petitioner that the service was not affected due to which the members of the BDC could not appear on the date, i.e., 21-12-2006 when the meeting was convened. Contra to this, all 40 members including the petitioner attended the meeting. The attendance of all the members on 21-12-2006 reveals that all the members had knowledge about the date of meeting. Section 15(3 )(ii) provides that the Collector will give the notice of the meeting to the members at their place of residence. Section 15(3) read with Rule quoted above reveals that the purpose of giving the notice can be achieved even without sending the same by registered post. The Collector may send the notice to the members of the Samiti by peon giving them notice about the date of the meeting. In such situation the intention of Legislature and the purpose of sending the notice would be achieved. However, in such situation the rule of presumptive service would not be available to the Collector if the notice has not been served upon the members. The provision of Section 15(3)(ii) if the notice has been sent by the registered post at the place of the residence of the members, instead a notice was given to the members by peon giving him information of the meeting convened for the consideration of the motion of no-confidence motion in that situation it cannot be contended that the proceedings of the meeting were illegal because it does not make any difference whether a notice was sent through the peon or it was sent through registered post. The requirement of law was sufficiently complied with provided the members received the notice. All the members in fact attended the meeting. As we have pointed out earlier that Section 87 A of the U.P. Municipalities Act, 1916 is pari materia with the provision of Section 15 of the Act (sic). Section 87Aof U.P. Municipalities Act which is pari materia to section 15(3)(ii) came up for consideration before the Full Bench in the case of Gyan Singh (Supra). 16.
As we have pointed out earlier that Section 87 A of the U.P. Municipalities Act, 1916 is pari materia with the provision of Section 15 of the Act (sic). Section 87Aof U.P. Municipalities Act which is pari materia to section 15(3)(ii) came up for consideration before the Full Bench in the case of Gyan Singh (Supra). 16. Perusal of the provision of Section 15(3)(ii) clearly reveals that the respondent No.1 has to send the notice to the members and a clear notice of 15 days from the date of dispatch of the notice must be there. In the instant case all the 40 members have attended the meeting on 21-12-2006. Thus we do not find any force in the contention raised by the learned counsel for the petitioner. Para 15 of Gyan Singh (Supra) is quoted hereunder : "15. We, however, do not agree with the observations of the learned Judge that the actual service of the notice of the meeting should be proved. It would be sufficient compliance with the provisions of Section 87-A (3) if notice is sent to the members and the members acquire knowledge about the time, date and place of the meeting. The facts involved in Vishwanath Tripathi's case 1968 AII WR 114 are different than those available in the present case. The observations of R.S. Pathak, J., that Section 87-A (3) was mandatory in its entirety does not represent correct view for the reasons stated earlier. If notice is sent by registered post and publication of the notice is done, the legal fiction enacted by the legislature would at once come into play and thereupon every member shall be deemed to have received notice even though a member may not have actually received the same. On the material on record of that case, R.S. Pathak, J., held that neither the notice of the meeting was actually served upon one of the petitioners nor the notice was published in any other manner as directed by the District Magistrate, therefore the meeting was not validly constituted. The learned Judge further held that even if the member had knowledge of the meeting he was under no obligation to take notice and for that reason he was not disentitled to relief under Article 226 of the Constitution. We are not in agreement with this view of the learned Judge.
The learned Judge further held that even if the member had knowledge of the meeting he was under no obligation to take notice and for that reason he was not disentitled to relief under Article 226 of the Constitution. We are not in agreement with this view of the learned Judge. As already stated the purpose of sending notice is to given information to the members to attend the meeting convened for the purpose of considering the motion of no-confidence, and once it is established that the member concerned had notice and had acquired knowledge of the date and time of the meeting convened for considering the motion of no-confidence, the purpose for which notice is required to be sent would be fulfilled and the member concerned will not be entitled to any relief from this Court under Article 226 of the Constitution for nullifying the proceedings of the meeting." 17. Learned counsel for the petitioner further contended that perusal of no-confidence motion reveals that no such no-confidence motion was placed before the members in the convened meeting on 21-12-2006 and no no-confidence motion was passed against the petitioner. Learned counsel for the respondents refuted the contention. The resolution by which the no-confidence motion was carried out is as under : 18. Perusal of the above resolution clearly reveals that in pursuance of the notice sent by the Collector meeting was convened and the 'no-confidence motion' was carried out. Thus we do not find any force in the contention of the learned counsel for the petitioner. 19. In accordance with Section 15 a written notice dated 01-12-2006 expressing the no-confidence upon the petitioner alongwith the copy of the proposed motion signed by 21 members of the Kshettra Samitis, Udham Singh Nagar was delivered in person by the members signing the notice to the Collector/District Magistrate, Udham Singh Nagar on 01-12-2006. It is also revealed from the perusal of the resolution that the Collector/District Magistrate got signature verified through BDO, Sitarganj and the BDO had endorsed upon the said resolution that the signatures contained in the no-confidence motion are genuine. Thus thereafter a notice dated 01-12-2006 convening the meeting regarding no-confidence motion on 21-12-2006 was sent to the petitioner as well as members of the Samitis.
Thus thereafter a notice dated 01-12-2006 convening the meeting regarding no-confidence motion on 21-12-2006 was sent to the petitioner as well as members of the Samitis. Thereafter meeting was held within 30 days from the date of the presentation of the proposed motion signed by 21 members of the Kshettra Samitis, Sitarganj. 20. It was further contended that the proposed no-confidence motion signed by 21 members of the Kshettra Samitis, Sitarganj was submitted to Shri G.K. Diwedi, D.M., Udham Singh Nagar and it was not submitted to the Collector, Udham Singh Nagar. It was further contended that the Act contemplates that the notice and the proposed no-confidence motion should be given to the Collector and not to the District Magistrate. The learned counsel for the petitioner further relied upon the definition of Collector. Mr. Subhash Upadhyay, Brief Holder refuted the contention and contended that Mr. G.K. Diwedi who happened to be the Collector was also D.M. of District Udham Singh Nagar. Mr. G.K. Diwedi was the Collector of the District as well as the D.M. The definition of the Collector given in the Act is as under : "Collector includes an Additional Collector to whom the Collector may have by order in writing delegated any of his functions under this Act;" The definition of D.M. has also been provided under the said Section. The definition of the Collector did not define the Collector but only gives inclusive definition of the Collector. It is not disputed that Mr. G.K. Diwedi is the Collector as well as D.M. of Udham Singh Nagar. The proposed no-confidence motion was handed over to Mr. G.K. Diwedi, D.M. who happened to be the Collector also. If the officer was holding the duel charge of Collector and District Magistrate, the proposed no-confidence motion was handed over to the same officer, it would be immaterial how he had been addressed to receive the said notice. The petitioner has only stated in para 14 of the writ petition that the notice of no-confidence motion is without jurisdiction and the entire proceedings initiated by the respondent No.1 are null and void. The petitioner has not taken this plea in his petition.
The petitioner has only stated in para 14 of the writ petition that the notice of no-confidence motion is without jurisdiction and the entire proceedings initiated by the respondent No.1 are null and void. The petitioner has not taken this plea in his petition. It is well settled position of law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise. The parties thus themselves know what are matters left in dispute and what facts they have to prove at the proceeding and are thus given an opportunity to bring forward such documents as may be appropriate. The main object of pleadings is to find out and narrow down the controversy between the parties. Contentions which are not based on the pleadings cannot be permitted to be raised either at the time of arguments or at the appellate stage. The Hon'ble Apex Court in the case of V.K. Majotra Vs. Union of India and others reported in (2003) 8 SCC p/40 has observed at para 8 as under :"....... . .... With respect to the learned Judges of the High Court, we would say that the learned Judges have overstepped their jurisdiction in giving a direction beyond the pleadings or the points raised by the parties during the course or the arguments. The writ courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise. We have the discussion here.” We, therefore, do not find any merit in the contentions raised by the learned counsel for the petitioner. 21. For the forgoing reasons, the writ petition devoids of merits & is liable to be dismissed and is dismissed accordingly.
Parties cannot be taken by surprise. We have the discussion here.” We, therefore, do not find any merit in the contentions raised by the learned counsel for the petitioner. 21. For the forgoing reasons, the writ petition devoids of merits & is liable to be dismissed and is dismissed accordingly. 22. Consequently the interim orders dated 10-01-2007 and 31-01-2007 stand vacated automatically. 23. No order as to costs.