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2009 DIGILAW 3683 (ALL)

SHYAM SINGH v. STATE OF U. P.

2009-12-08

AMITAVA LALA, ASHOK SRIVASTAVA

body2009
JUDGMENT Honble Amitava Lala, J.— This writ petition has been filed by a member of the Kshettra Panchayat challenging the validity of the notice issued to him in connection with the no-confidence motion against the then Block Pramukh of Kshettra Panchayat. The petitioner has categorically stated in the writ petition that on 11th June, 2008 the concerned District Magistrate, Moradabad issued notice to the petitioner for a meeting of Kshettra Panchayat on 30th June, 2008 to consider the motion of no confidence against the then Block Pramukh. Petitioner has received the notice on 14th June, 2008. On the same day he has submitted an application to the respondent No. 2 specially mentioning therein that except one page’s notice no other paper has been received. He has further said that no copy of the motion of no-confidence has been made available to him. The writ petition has been filed by the petitioner on the ground that when provisions of Section 15(3) of U.P. Kshettra Panchayat Evam Zila Panchayat Adhiniyam, 1961 (hereinafter referred as the Act) has not been followed by the authority the entire no-confidence motion is liable to be quashed. A notice under Section 15(3) of the Act is mandatory in nature. So far as clear 15 days’ notice in between the date of receipt of notice and the date of meeting as per the Statute is concerned Mr. Subodh Kumar, learned Counsel appearing for the petitioner has relied upon a judgment reported in AIR 1968 SC 5 (Jai Charan Lal Anal v. State of U.P. and others). However, since factually we find that the petitioner admittedly received notice on 14th June, 2008 i.e. beyond the period of 15 days of holding the meeting on 30th June, 2008, principle laid down by the Supreme Court in this regard can not be made factually applicable herein. 2. Coming back to the original issue we find that Mr. Subodh Kumar very much relied upon the various judgments of this Court to establish that notice under Section 15 (3) of the Act is mandatory. Such judgments are reported in Ram Nath Tripathi v. Commissioner Lucknow Division, Lucknow and other, 1992 (2) UPLBEC 1181; Dr. Mahendra Pal v. Collector, Hardoi and others, 1999 (3) AWC 2398 (LB) and Chhatrapal Singh v. State of U.P. and others, 2003 (6) AWC 5635. 3. On the other hand Mr. Such judgments are reported in Ram Nath Tripathi v. Commissioner Lucknow Division, Lucknow and other, 1992 (2) UPLBEC 1181; Dr. Mahendra Pal v. Collector, Hardoi and others, 1999 (3) AWC 2398 (LB) and Chhatrapal Singh v. State of U.P. and others, 2003 (6) AWC 5635. 3. On the other hand Mr. Ramanand Pandey, learned Standing Counsel appearing for the respondents has relied upon a judgment in Haji Mohammad Hanif v. State of U.P. and others, 1997 A.W.C. (Supp.) 828 also with regard to mandatory provision of Section 15 (3) of the Act. 4. We have no doubt and dispute with regard to mandatory application of the notice in question under Section 15(3) of the Act. The only dispute relates to extension of meaning of mandatory provision as given in the case of Ram Nath Tripathi (supra) viz. a viz. Haji Mohammad Hanif (supra). 5. According to Mr. Subodh Kumar in the case of Ram Nath Tripathi (supra) the Division Bench of this High Court has held that the notice under Section 15(3) of the Act consists of two parts. The first part says that the Collector shall convene the meeting for consideration of the motion following the prescription under the Act and second part is that the Collector shall give such notice to all the members in such a manner as may be prescribed meaning thereby requirement of law is not to issue notice only but it will be annexed with all the necessary papers and if it is not done the same will be a departure from the mandate of law. On the other hand Mr. Ramanand Pandey has contended before this Court that in the case of Haji Mohammad Hanif (supra) this issue has been categorically considered by the Division Bench of this Court and held that it is true that the notice under Section 15(3) of the Act is mandatory in nature which has to be complied with but it can not be spelt out that the annexation of copy of the motion is mandatory. When the Sections or the Rules have not mentioned anything about annexation of the copy of motion itself, reference in the form can not be so mandatory as to render notice invalid, simply because it is not annexed with the copy of notice. When the Sections or the Rules have not mentioned anything about annexation of the copy of motion itself, reference in the form can not be so mandatory as to render notice invalid, simply because it is not annexed with the copy of notice. The petitioner wanted to establish his case on the basis of Annexure-1 to the writ petition being the notice dated 11th June, 2008. In the notice we find there is a sentence in Hindi and if is translated it will be meaning that the proposal of no confidence motion is annexed with the same. In the rejoinder the petitioner wanted to establish his case in paragraph 13 of the same by saying that on perusal of envelop sent by the District Magistrate to all the members, it would be very much clear that in case the entire papers enclosed as Annexure-CA-1 and CA-2 to the counter affidavit are sent by registered post, it would be very difficult to put them in the envelop. Stamp on each envelop is affixed of Rs. 22/- only. As per tariff fixed by the postal department, Government of India, minimum charge of a registered letter upto 20 grams is Rs. 22/- (letter post per 20 grams is Rs. 5/- registration fee is Rs. 17/- total Rs. 22/-), for every additional 20 grams or fraction thereof is Rs. 5/- each. Had it been the voluminous papers as required alongwith the notice the same could not have been put in such envelop nor it would have been weighed as per the postal department. 6. Respondents’ plea to that extent is that no confidence motion was served upon all the members by registered post for a meeting to be held for consideration of no confidence motion against the Block Pramukh on 30th June, 2008. Such notice of no confidence motion was circulated to all the members by registered post on a prescribed format and as such a detailed notice was served upon all the members of the Kshettra Panchayat to participate in the meeting to be held on 30th June, 2008 against the Block Pramukh and in this regard each and every relevant provisions of law have been followed. Tthere is no illegality in issuing the notice and as such the contention of the petitioner in this regard is totally wrong and liable to be ignored. So far as the judgment of Dr. Tthere is no illegality in issuing the notice and as such the contention of the petitioner in this regard is totally wrong and liable to be ignored. So far as the judgment of Dr. Mahendra Pal is concerned we find that neither it has been dealt with the judgment of Ram Nath Tripathi (supra) nor it has been dealt with the judgment of Haji Mohammad Hanif (supra). He has given an independent outlook by saying that although a copy of motion was sent to the members but the names of the members are not mentioned in the copies sent to them, therefore, there is no difficulty in holding that the proceeding of the meeting was invalid and illegal on the basis of the motion of no confidence although passed by the majority of the members. 7. According to us, what is required in the law the same is to be done as per the prescription. Although the judgments referred above discussed about the scope and ambit of service of contents of the notice but not with regard to notice. Nowhere it has been decided accept Ram Nath Tripathi (supra). The only question is with regard to service of the contents in the notice. Therefore, in the present scenario it is to be taken care of. In the present scenario no- confidence motion has not been issued against the petitioner but against the Block Pramukh of the Kshettra Panchayat. Therefore, fulfilment of the principle of audi alteram partem is required to be followed against such a person who is directly affected by the action. Nobody should be left unheard. Such decision was already taken during the pendency of the writ petition and the petitioner being one of the member has already participated in the meeting for considering no-confidence motion against some other person i.e. Block Pramukh of the Kshettra Panchayat. Requirement of notice is to inform a person substantially as per requirement of the law so that he may get opportunity of participation. Therefore, at this stage whether the writ petition has become infructuous or not is a question for consideration before this Court. The cases cited before us have been decided in respect of a person who is directly affected by no-confidence motion. Therefore, at this stage whether the writ petition has become infructuous or not is a question for consideration before this Court. The cases cited before us have been decided in respect of a person who is directly affected by no-confidence motion. In all the cases, irrespective of the face value of the decision, it was held at the instance of a party whose right is tried to be infringed before floor of the house before notice. This is the sole case where such Block Pramukh, whose right has been infringed, has not come forward before us but some other member whose intention is to participate in casting of vote either in favour or against. 8. It has been contended by the learned Counsel appearing for the respondents that the Block Pramukh has initiated a writ petition before this Court challenging the no-confidence motion but the same was withdrawn and filed a second writ petition in the Lucknow Bench of this High Court and no interim order was obtained. Therefore, against this background we have to look into the facts of the case to come to an appropriate conclusion. Moreover, the format of the notice is under Schedule of the Rules, which only incorporates the para “also annexed hereto a copy of the proposed motion of no-confidence” and another format of notice is also there, where it has been mentioned, under the schedule, as “a copy of the motion is annexed hereto” and since the notice says so, we can not hold and say, at the instance of a person not being aggrieved, that appropriate notice has not been served factually, apart from the fact whether it is mandatory or directory in nature. Even if we come to that extent whether such type of notice is mandatory or directory, it is to be decided at the instance of such person directly affected by such action meaning thereby against whom proceeding was initiated. However, it does not mean such notice can not be sustained at the instance of a person not being directly affected in the facts and circumstances as above. 9. The writ petition is, accordingly, dismissed. 10. No order is passed as to costs. Honble Ashok Srivastava, J.—I agree.