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2008 DIGILAW 1522 (ALL)

LOK SINGH. v. STATE OF UTTAR PRADESH

2008-08-05

ABHINAVA UPADHYA, PRADEEP KANT

body2008
JUDGMENT By the Court.—Lok Singh has filed two writ petitions, namely, Writ Petition No. 451 (MB) of 2008 alongwith seven petitioners and Writ Petition No. 5880 (MB) of 2008 by himself alone. 2. This writ petition challenges the motion of no confidence, which is said to have been carried through on 16.6.08. 3. The main challenge is based on the argument that no notice was issued or served upon the petitioner before the date of meeting or even thereafter and, therefore, the entire proceedings are vitiated. 4. The next argument is that even the notice of proposed no confidence motion was not properly presented before the Collector and the motion was not signed by ten members, though, it should be signed by more than half of the members of the Zila Panchayat. 5. The last argument is that the meeting was conducted in the Meeting Hall of the Collectorate, whereas under the rules, it was to be conducted in the Committee Hall of the Zila Panchayat. 6. Sri Anuj Kudesia, Counsel for the State, has produced the record, which shows that the motion of no confidence with due notice was presented before the Collector on 23rd May, 2008, which was duly signed by the adequate number of persons. The record also shows that the notice was signed by ten members as against the total membership of fifteen. The motion of no confidence was signed by two members and it was presented by one Sri Jitendra, one of the members in person, who was the signatory to the notice. 7. The District Magistrate/Collector has passed an order on 24th May, 2008 for issuance of the notices by registered post to all the members and fixed 16.6.08, as the date of meeting at 11 O’clock in the Meeting Hall of the Collectorate of Gautam Budh Nagar. 8. The record also shows the postal receipts, as an evidence that the notices were actually dispatched through the Post Office and there is a presumption that the same has been received by the addressee, unless returned undelivered. These postal receipts show that the notices were sent by speed post, which according to the respondents, is also a registered post. 9. The record also shows the postal receipts, as an evidence that the notices were actually dispatched through the Post Office and there is a presumption that the same has been received by the addressee, unless returned undelivered. These postal receipts show that the notices were sent by speed post, which according to the respondents, is also a registered post. 9. The presentation of the no confidence motion alongwith the notice before the Collector under Section 28 requires that a written notice of intent on to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of elected members of the Zila Panchayat for the time being, together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Zila Panchayat. 10. The requirement thus, is that the notice is to be signed by not less than half of the elected members of Zila Panchayat, which is to be presented in person by any one of the members signing the notice, before the Collector alongwith the copy of the proposed motion. 11. The aforesaid provision does not require anywhere that the proposed motion of no confidence should also be signed by more than half of the elected members of Zila Panchayat. The requirement thus under Section 28 having been fulfilled, we do not find any illegality in the acceptance of notice by the Collector. The Collector on his turn immediately took cognizance of the said notice and fixed a date of meeting with the Civil Judge, as Presiding Officer and also directed to issue notices to all the members, which were actually issued in time. 12. The next plea is that the petitioner did not receive the notice and he has made an enquiry from the Post Office concerned, who had given a certificate that no registered letter in the name of the petitioner has been received right from 20th May, 2008 till 16th June, 2008 and, therefore, in the absence of any notice to the petitioner, the meeting so held is vitiated and the proceedings thereof, cannot have any legal sanctity nor the declaration that the motion stands passed, can have any legal binding. 13. 13. Submission is that, since the meeting itself was not convened after due notice, which is the mandatory provision, therefore, the entire proceedings are null and void. 14. Another argument in support of the aforesaid plea that the meeting was itself void and non est, has been raised saying that the meeting was to be conducted in the Committee Hall of the office of Zila Panchayat in terms of Section 28(3), but in the instant case, it was held in the Meeting Hall of the Collectorate and this also vitiates the entire proceedings. 15. Orders/directions to issue notice to all the elected member of the Zila Panchayat by the Collector is not in dispute. This order/direction was issued on 24th May, 2008 itself. The dispatch of these notices by speed post/registered post from the Post Office, also cannot be disputed, in view of the fact that primary proof of postal receipt being on record and have been placed before the Court, and shown to the petitioner’s Counsel also. 16. The question, therefore, arises that if the notices have been duly dispatched, and if they have not been received by the petitioner or any of the elected members, will it make the entire proceedings vitiated and whether it would affect the proceedings where the motion has been carried through by the requisite majority of members. In the instant case, 12 out of 15 members have attended the meeting where 11 members have voted in favour of the motion, but for the petitioner himself. 17. For the facts aforesaid, where the notices were dispatched in terms of requirement of law and 12 out of 15 members have attended the meeting where 11 members have voted in favour of the motion but for the petitioner himself, we do not find that any of the pleas raised by the Counsel for the petitioner will have any effect upon the proceedings nor will make the motion invalid. 18. So far the plea of not holding the meeting in the office of Zila Panchayat but in the Collectorate is concerned, Sri K.K. Singh, District Panchayat Raj Officer, who is present in person, says that since in the office of Zila Panchayat, there is no Hall of sufficient dimensions, where any such meeting could have been held, therefore, the Collector was having no option but to hold the meeting in the Meeting Hall of the Collectorate. 19. 19. He further says that even the oath of the elected members was also conducted in the same Meeting Hall and monthly meetings of the Zila Panchayat are also held in the same Meeting Hall. 20. Sri Upendra Nath Misra, however, intends to dispute the aforesaid fact that the Zila Panchayat is not having a Committee Hall, but we do not find it necessary to delve on this question for the reason that we do not have any reason to believe that the District Magistrate as well as Officer present will make a misstatement of fact. 21. The record aforesaid shows that the meeting was held in the Meeting Hall of the Collectorate and the motion has been passed in the presence of adequate number of persons. On consideration of the arguments of both the sides and the pleas raised by the petitioner, we are of the view that motion of no confidence having been passed by such a large number of persons and that too after a period of two years, the petition has no force, which is hereby dismissed. ———— 40. This was reiterated by the Supreme Court in Saleem Bhai and others v. State of Maharashtra and others, (2003) 1 SCC 557 and the observations are : “A perusal of Order 7 Rule 11, CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order 7 Rule 11, CPC at any stage of the suit—before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under clauses (a) and (d) of Rule 11, of Order 7, CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11, CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. ..............” 41. ..............” 41. In I.T.C. Limited v. Debts Recovery Appellate Tribunal and others, 1998(2) SCC 70 , the Supreme Court sounded a note of caution in this regard and observed: “The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11, CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint." 42. In Liverpool & London S.P. & I Asson Ltd. v. M.V. Sea Success I and another, JT 2003 (9) SC 218, the Supreme Court pointed out what ‘cause of action’ is : “A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence. ........................................... In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown. ................ ..................................... The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter.” 43. In Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, the Supreme Court held that an election petition can be dismissed under O. VII R. 11, CPC if the petition does not disclose essential facts to clothe it with complete cause of action. Failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a) of the Act and the election petition must be dismissed if it suffers from any such vice. Failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a) of the Act and the election petition must be dismissed if it suffers from any such vice. The Court repelled the submission that the power to reject an election petition summarily under the Code of Civil Procedure should not be exercised at the threshold. The observations are as under : “In substance the argument is that the Court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. ............... The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same in regard to matters pertaining the elections.” (emphasis supplied) 44. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same in regard to matters pertaining the elections.” (emphasis supplied) 44. In Bhagwati Prasad Dixit ‘Ghorawala’ v. Rajiv Gandhi, AIR 1986 SC 1534 , the Supreme Court also pointed out : “.........In an election pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it should be rejected in limine. These authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not conform to the requirement of Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII Rule 11. .............” (emphasis supplied) 45. The Supreme Court in Azhar Hussain rejected the contention that even if the Election Petition is liable to be dismissed ultimately, it should be dismissed only after recording evidence as in its opinion the powers under Order VII Rule 11 CPC are meant to be exercised to serve the purpose for which the same have been conferred so that the litigation comes to an end at the earliest. In Bhagwati Prasad Dixit the Supreme Court also pointed out that the Election Petition should be dismissed in limine at the initial stage if it does not disclose any cause of action. In Saleem Bhai, the Supreme Court also pointed out that the Court can exercise powers under Order VII Rule 11, CPC at any stage of the suit. In Bhagwati Prasad Dixit the Supreme Court also pointed out that the Election Petition should be dismissed in limine at the initial stage if it does not disclose any cause of action. In Saleem Bhai, the Supreme Court also pointed out that the Court can exercise powers under Order VII Rule 11, CPC at any stage of the suit. A reading of the Election Petition in the manner suggested in Hardesh Ores Pvt. Ltd. disclose that the alleged cause of action is that certain areas outside the territory of 381 Meerut Assembly constituency were illegally included in the said Assembly constituency and the voters of such area were allowed to vote and this has materially affected the result of the election in so far as it concerns the returned candidate as the votes cast by such voters were void votes and could not be received and counted as valid votes. This contention has not been accepted. The Election Petition, therefore, does not disclose any cause of action. 46. It is, therefore, not necessary to examine the other objections raised by Sri Ravi Kiran Jain, learned Senior Counsel for the applicant/returned candidate. 47. In view of the aforesaid decisions of the Supreme Court, the Election Petition is liable to be dismissed under Order VII Rule11(a), CPC. 48. Thus, for all the reasons stated above, application (A-10) filed by the returned candidate is allowed and the Election Petition is dismissed under Order VII Rule 11, CPC as it does not disclose any cause of action. ————