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2012 DIGILAW 313 (UTT)

VIJAYA DEVI v. STATE OF UTTARAKHAND

2012-06-22

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] (Amendment Application No. 6190/2012) (Stay Application No. 5939 of 2012) Sri Rajendra Dobhal, Senior Advocate, assisted by Sri G.D. Joshi, Advocate for the petitioner. Sri Paresh Tripathi, Addl. C.S.C. on behalf of the respondents. Heard on amendment application. In the interest of justice the amendment application is allowed. The petitioner is directed to incorporate the amendment in the petition and the amended memo of petition be filed during the course of the day. Also heard on admission and stay application. 2. By means of this petition the petitioner has sought a writ, order or direction in the nature of certiorari quashing the notice dated 8-6-2012 issued by the District Magistrate Chamoli. It is further prayed that a writ in the nature of mandamus be issued directing the respondent No.2 not to proceed further in pursuance of the notice dated 8-6-2012 for consideration of the no confidence motion, the meeting of which is going to be held on 25-6-2012 at Zila Panchayat Chamoli. 3. The ground of challenge in the present writ petition is that all the members of the Zila Panchayat Chamoli have not signed the notice of intention for non confidence motion on the prescribed proforma, rather they have signed second page of the notice of intention on separate sheet. The provision of no confidence motion has been provided in Section 28 of U.P. Kshettra Panchayat and Zila Panchayat Act, 1961 (hereinafter referred as the Act), wherein it is mandatory that a written notice of intention to make the motion in such form as may be prescribed, signed by not less than half of the total members (elected members) of 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 and in accordance with sub-section (3) of Section 28 of the Act, the Collector will convene the meeting on a date appointed by him, of the Zila Panchayat for the consideration of the motion at the office of Zila Panchayat, which shall not be less than 30 days of which a notice under sub-section (2) of Section 28 was delivered to him. 4. 4. This fact is not disputed that this meeting of no confidence motion has been fixed within 30 days and the meeting will be convened in accordance with the provision mentioned in Section 28 of the Act. 5. This writ petition has been filed mainly on the ground that the notice of intention has not been presented before the Collector on a prescribed proforma as performa-I of the Schedule of the Act, copy of which has been filed along with the amendment application as Annexure No.3-A. I have perused the photocopy of the notice of intention. The first page of the intention notice has been signed by Sri Bhuwan Nautiyal and Sri Bhagwati Prasad Chamoli and on second page the other members have signed the notice of intention. 6. Learned Senior Advocate appearing on behalf of the petitioner has contended that in the proforma of notice of intention, which has been prescribed under the Act, the names of the members, who are presenting the notice of intention for no confidence motion should be in serial number and in the case at hand names of two members are at first page and serial number has been given to the names of other members at second page without including the serial number of the names of members at first page and all the members have not put their signatures serial-wise like 1,2,3,4…… The fact emerges out by perusal of these two papers that on first page two members have signed without serial number and on second page the members have put their signatures which start from serial 3 No.1 to 19 and above the signatures of members at second page one line has been added to the effect that for the reasons above we the following members are presenting the no confidence motion against the Adhyaksha Zila Panchayat Chamoli, to the Collector Chamoli. This is an addition in the prescribed proforma. So far as the proforma of no confidence motion is concerned, intention of the language of the proforma which has been mentioned in Proforma-I of the Schedule is a simple language to show intention of no confidence motion and the copy of proposal of no confidence motion has to be annexed. In the case at hand copy of proposal has been annexed along with no confidence motion, copy of which is at page 14 of the amendment application. In the case at hand copy of proposal has been annexed along with no confidence motion, copy of which is at page 14 of the amendment application. That has also been signed by 11 members. As per provision of the Act legal requirement is that no confidence motion may be presented by not less than half of the members and may be presented by one member only, who had signed the intention notice. 8. Learned Senior Advocate has placed reliance upon the judgment of Commissioner of Income Tax, Mumbai versus Anjum M.H. Ghaswala and others, reported in (2002) 1 Supreme Court Cases 633, wherein it has been held that it is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to be exercise it only in the manner provided in the statute itself. 9. Learned Senior Advocate also placed reliance on the judgment of Ram Phal Kundu versus Kamal Sharma, reported in AIR 2004 Supreme Court 1657, wherein it has been held that it is well settled principle of interpretation that the legislature is deemed not to waste its words or to say anything in vain. The Courts always presume that the legislature inserted every of the statute for a purpose and the legislative intention is that every part of the statute should have effect. 10. After having heard learned counsel for the parties and after perusal of the proforma on first page the language of notice has been typed as per prescribed proforma and two members have signed on the first page without serial number and on first page it is mentioned continued to page-2 and on page 2 other members have signed. This fact is not disputed that two members at page No.1 and other members at page No.2 have not signed. So far as the addition of one line to the effect that for the reasons above we the following members are presenting the no confidence motion against the Adhyaksha Zila Panchayat Chamoli, to the Collector Chamoli, and there is no reason mentioned in the proforma for making intention notice and it is not required also. So far as the addition of one line to the effect that for the reasons above we the following members are presenting the no confidence motion against the Adhyaksha Zila Panchayat Chamoli, to the Collector Chamoli, and there is no reason mentioned in the proforma for making intention notice and it is not required also. If anything is added which is not required can not effect the proceedings of no confidence motion, if anything is required and that has not been mentioned then in that situation the notice can be said to be defective. 11. So far as the requirement of sub section (2) of section 28 of the Act is concerned, the interpretation is that the members have to show their intention of no confidence motion. None of the members who have signed the proforma came before the Collector to say that they have not signed the notice of intention. Therefore by mere addition of above one line, the notice cannot be said to be defective. So far as the ratio of above cited judgments is concerned, the same do not apply to the facts of the instant case. The writ petition being devoid of merit is dismissed in limine. Accordingly the stay application also stands dismissed. Let a certified copy of this order be supplied to learned counsel for the parties by tomorrow, on payment of requisite fee.