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2014 DIGILAW 107 (ALL)

SHEELA DEVI v. STATE OF U. P.

2014-01-10

A.P.SAHI, ANIL KUMAR AGARWAL

body2014
JUDGMENT By the Court.—Heard Shri Brij Raj, learned counsel for the petitioner, learned standing counsel for respondent Nos. 1, 2 and 3 and Shri K.N. Tripathi, learned senior counsel assisted by Shri N.D.Shukla and Shri Sanjay Upadhyaya, Advocates for the respondent No. 4. 2. A no confidence motion under Section 15 of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 was initiated against the respondent No. 4, who is the Block Pramukh of Chiraigaon district Varanasi. This attempt was made earlier when a challenge was raised and the matter came up in writ petition No. 54587 of 2012. After hearing the learned counsel for the parties, the Court vide order dated 20.11.2013 came to the conclusion that since the statutory period of 30 days had already expired on the date when the petition came to be heard, the petition deserves to be, and was accordingly, disposed of without adverting to the issues raised, including the issue of verification of the signatures and affidavits have not been filed by the members in opposition thereto. It was left open to the aggrieved members to move a fresh notice against the respondent No. 4. 3. It appears that a notice in writing was again given on 26.11.2013 and the respondent No. 4 appears to have moved an objection that the signatures, as contained in the notice to move the no confidence motion are forged that were 18 in number. Affidavits were filed in support of the objections denying the signatures on the notice. On this objection, an enquiry was conducted and it was found that the signatures of those 18 persons are forged. Consequently, the District Magistrate vide order dated 20.12.2013, impugned herein, cancelled the meeting that was proposed to be held for consideration of the said no confidence motion. 4. Aggrieved by the said order, the petitioner has approached this Court questioning the procedure adopted by the District Magistrate on the ground that this power was not available under the relevant rules to the District Magistrate to stage an enquiry to cancel the meeting. 5. 4. Aggrieved by the said order, the petitioner has approached this Court questioning the procedure adopted by the District Magistrate on the ground that this power was not available under the relevant rules to the District Magistrate to stage an enquiry to cancel the meeting. 5. Learned counsel for the petitioner has relied on four Division Bench judgements of this Court to substantiate his submissions, the first decision being in the case of Chhatrapal Singh v. State of U.P., 2003 (3) UPLBEC 2634 , the second decision relied on follows the aforesaid decision in the case of Smt. Savita Bharat v. State of U.P. and others, passed in Civil Misc. Writ Petition No. 28725 of 2012 decided on 7.6.2012 and the third decision was to the same effect as in the case of Meera Azad and another v. State of U.P. and others, passed in Civil Misc. Writ Petition No. 22330 of 2012 decided on 10.5.2012. The fourth decision relied on is that of Smt. Kiran Verma v. State of U.P., passed in Writ Petition No. 19583 of 2012 dated 20.4.1012. On the strength of these decisions, learned counsel for the petitioner submitted that the District Magistrate ought to have allowed the meeting to have been tabled, and since the notice was proper, the same could not be a subject-matter of pre-scrutiny by the District Magistrate. 6. Shri Keshri Nath Tripathi, learned senior counsel appearing for the respondent No. 4 on the strength of full Bench decision of this Court in the case of Mathura Prasad Tewari v. Assistant. District Panchayat Officer, Faizabad and another, 1967 RD 17, as followed by another Division Bench of this Court in the case of Bansu v. District Panchayat Raj Officer and another, 1986 RD 412, urges that discretion is available with the District Magistrate as per the principles laid down in the aforesaid judgements, and consequently no error much less a legal error was committed by the District Magistrate while passing the order. 7. 7. Relevant provisions of Section 15 of the Adhiniyam, 1961, read as under: “(2) A written notice of intention to make the motion in the such form as may be prescribed, signed by at least half of the total number of (Elected members of Kshetra Panchayat) for the time being together with a copy of proposed motion, shall be delivered in person by any one of the member signing the notice to the Collector having jurisdiction over the (Kshetra Panchayat). (3) The Collector shall thereupon-(i) Convene a meeting on (Kshetra Panchayat) for consideration of Motion at the office of the (Kshetra Panchayat) on a 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 to the (Elected Members of Kshetra Panchayat) notice of not less than fifteen days of such meeting in such manner as may be prescribed.” 8. In the instant case, it is undisputed that there are a total 117 members. The notice to the District Magistrate to move the motion of no-confidence is alleged to bear the signatures of 67 members, which is more than half of the required quorum. The respondent No. 4 Block Pramukh raised the same objection, that had been pointed out earlier, that the signatures of the members are forged and some of them have been transcribed by one person. The District Panchayat Raj Officer called upon the members to certify their signatures personally at the given time and place on 14.12.2013. This was objected by the petitioner before the District Magistrate that such an exercise was without jurisdiction. 9. The verification was done in spite of the objection of the petitioner and 18 members, whose signatures appeared on the notice to move the motion, filed their own affidavits with photographs and submitted the same in person denying their signatures. 10. The District Magistrate, after examining the said facts and upon a legal opinion, passed the impugned order holding that if the eighteen signatures stand reduced, then the notice has only 49 signatures which falls 10 short of the half-way mark of 59 members, hence the notice to move the motion being not as per the required rules, the meeting cannot be convened. Accordingly the notice issued by him for calling the meeting has been cancelled. 11. Accordingly the notice issued by him for calling the meeting has been cancelled. 11. The petitioner contends, that whether the signatures on the notice are genuine or otherwise, is beyond the competence of the District Panchayat Raj Officer or the District Magistrate as they are neither obliged nor empowered under any provision of the 1961 Act or the rules framed thereunder to undertake the exercise of examining or verifying the signatures on the notice at this stage of convening the meeting. For this the submissions are sought to be supported by the judgements referred to herein above. 12. The other argument is on the broader principles of governance through democratic norms for which reliance has been placed on other judgements referred to in the body of the petition. It is urged that in an institution where the continuance of the chairperson who is democratically elected, is dependant on the confidence of the electorate of that institution, and if there is a mechanism for removal through an elected body by a majority of votes, then the executive stands excluded from participation or control over any such proceedings. The power of recall therefore exclusively vests in the body of persons who have been conferred the right to move a no confidence motion. 13. The submission appears to be that whether the intention to remove is genuine or not has to be ultimately governed by the votes cast on the floor of the house, and this test cannot be pre-empted by the District Magistrate or any other officer at any intermediate stage of convening the meeting. It is the actual voters themselves who are to, by their physical participation in the voting process, entitled to decide the fate of continuance or otherwise of the Chairperson. Whether the signatures on the notice are genuine or fake, pales into insignificance when the voting actually takes place to decide the fate of the motion. Thus if the voters are to decide, then a predecision on such intention by the District Magistrate is not contemplated by the legislature. To provide for any discretion to any officer would be negating the authority of the member voters themselves who are yet to exercise their franchise only on which, is the decision dependant. Thus if the voters are to decide, then a predecision on such intention by the District Magistrate is not contemplated by the legislature. To provide for any discretion to any officer would be negating the authority of the member voters themselves who are yet to exercise their franchise only on which, is the decision dependant. The officer, therefore, cannot impede by any intervention, the decision making process at his level as it would be subverting the due process democratically conferred exclusively in favour of the members. 14. The actual existence of the confidence in the ultimate analysis is to be ascertained by the members by voting and not by a pre-mature effort by the officer who has no right to participate in the actual process of denying or affirming confidence. The officer has only to make the necessary arrangements for the meeting as per rules which do not authorize him for determination at any stage. Thus, no such power is attributable in the name of discretion to the District Magistrate or any other authority. 15. Reliance on the other hand is placed on the two decisions cited by Shri Tripathi for the respondent No. 4 to contend, that even accepting for the sake of argument that the procedure prescribed in law above has to be followed, where no specific authority to verify the genuineness of signatures by the authority is provided for, yet the due process of law requires that the notice should be endorsed with genuine and not forged or fake signatures. A notice with fake signatures to somehow complete the numbers requisite is fraud, and it is settled principle that fraud vitiates all solemn proceedings. It is here that discretion has to be read in the hands of the District Magistrate on whom the responsibility is cast to convene a meeting. The officer therefore is statutorily obliged to entertain a genuine notice and not one that contains fake signatures. The procedure prescribed cannot be converted into an engine of fraud to usher in a notice with forged signatures. 16. The purity of the procedure if maligned vitiates such notice and the District Magistrate should be vested with such discretion and not an authority as if discharging the duties of a post office. A complete compliance can be said to have accomplished with the minimum number of genuine signatures as per the requirement under law. 16. The purity of the procedure if maligned vitiates such notice and the District Magistrate should be vested with such discretion and not an authority as if discharging the duties of a post office. A complete compliance can be said to have accomplished with the minimum number of genuine signatures as per the requirement under law. The discovery of fake or forged signatures, thereby reducing the numbers by less than half as required, cannot be avoided and should be treated as part of the procedure prescribed by law by necessary implication. A procedure, if not specially provided, should be available unless it contravenes the statute or is otherwise arbitrary. A notice with the intention to move the motion therefore cannot be allowed as valid, if the numbers fall short of the requisite on account of such fake practice or forgery. The District Magistrate therefore who has no mala fide interest, and is only performing his statutory duty, can enquire into the genuineness of alleged fake and forged signatures, to satisfy himself before actually convening the meeting, that the requisite numbers are supported by genuine signatures on the notice. 17. On a conspectus of the arguments so raised, the issue is not of the assessment of any intention which obviously has to be done on the floor of the house. The present issue is at the stage of the foremost preliminary step of the notice in writing by the requisite number of members to convene a meeting alongwith the proposal to move a no confidence motion. Such an intent has to be expressed in writing by the members in requisite numbers. It is obvious that the numbers can be gathered only if the notice expresses this intent through the individuals who have to put their signatures to testify the said intent. Can it be said at this stage that the signatures if not genuine, invalidate the very notice which is a request to convene a meeting ? The discretion or the authority to do so by the District Magistrate is not specifically contained in the statute. The question therefore is whether the authority is prohibited and completely debarred from doing so even if such material, as in the present case, is available to establish fake and forged signatures. 18. It is here that we are faced with the competing judgements cited at the bar in order to resolve the issue. The question therefore is whether the authority is prohibited and completely debarred from doing so even if such material, as in the present case, is available to establish fake and forged signatures. 18. It is here that we are faced with the competing judgements cited at the bar in order to resolve the issue. A democratic process, where the members alone have to decide the fate of an elected representative, has to be carried out in the manner prescribed. The discretion involved in the present controversy is as to whether such discretion exercised by the District Magistrate will impede the authority of the members to do so by cancellation on the discovery of fake signatures. A democratic process of election or no confidence is a game of members as presently involved. Such numbers can increase or decrease even if the motion is actually tabled by the requisite signatories on the notice. It is quite possible that after a meeting is convened, there can be a change of heart or otherwise not to intend removal, which motion can be defeated even if initiated by a majority. The members putting their signatures can still turn around and vote against the motion and therefore the initiation itself does not prejudice the Chairperson facing the motion. 19. A democratically elected Chairperson has a secured tenure through expression of the free will of his voters. He therefore has to be removed only if he acts contrary to his duties that he is obliged to discharge under the Statute or he is otherwise capable of being disqualified. The confidence reposed in an elected office bearer, if sought to be withdrawn, should be a fair and cautious exercise, and not a casual or domestic exercise. In essence his unseating should not be an outcome of casuistry in procedure. A notice or a requisition that may be an outcome of fraud and not a genuine document should not be a non-serious wayside humour like a mischievous fake telephone call. 20. Nonetheless the decisions cited on behalf of the petitioner rest more on compliance of strict procedure where no discretion is said to be available to the authority. It is here that the conflict comes into play which is to be resolved in view of the decisions relied on by the respondent No. 4. It is well said that conflict generates creativity. It is here that the conflict comes into play which is to be resolved in view of the decisions relied on by the respondent No. 4. It is well said that conflict generates creativity. The earlier decisions in the case of Mathura Prasad Tewari (supra) and Bansu (supra), which are of a full bench and coordinate division bench, have not been expressly noticed and considered in the decisions relied on by the petitioner’s counsel. 21. The issue therefore is not only academic as it has already arisen twice in the present case and has been subject-matter of debate in several decisions noted above. A large number of similar disputes engage the attention of this Court and therefore an authoritative pronouncement is necessary in our opinion. After all there is a larger of issue of faith, belief, dependency as against unscrupulous trickery and chicanery on which the Court has to be firm even if it involves a pronouncement on a democratic process as per the Statute. 22. On a perusal of the judgements cited at bar, we find that the ratio of the judgment of the aforesaid decisions involve the consideration of the same principles in the present case. We also find that the four judgements referred to by the learned counsel for the petitioner do not refer to the ratio of either the full bench judgment aforesaid or the Division Bench judgement which appears to have escaped their notice. 23. In the circumstances, we find that there is a direct conflict on principles similarly involved in the ratio of the judgements aforesaid. The exercise of discretion by the District Magistrate under the relevant rules for conducting an enquiry into such complaints of forged signatures on the notice is the issue raised and therefore, we find it necessary to refer the matter to a larger Bench for resolution of the notice raised hereinabove. 24. The exercise of discretion by the District Magistrate under the relevant rules for conducting an enquiry into such complaints of forged signatures on the notice is the issue raised and therefore, we find it necessary to refer the matter to a larger Bench for resolution of the notice raised hereinabove. 24. We accordingly refer the matter to Hon’ble the Chief Justice under Chapter V Rule 6 of the High Court Rules for constituting a larger Bench to answer the following questions : Whether the District Magistrate or the competent authority under the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961 while proceeding to entertain a notice for tabling a no confidence motion under Section 15 thereof against the Block Pramukh, can exercise his discretion for examining the genuineness or veracity of the signatures endorsed by the members, and as to whether there is a direct conflict on principles in the judgements noted above on this issue. 25. Let the papers be placed before Hon’ble the Chief Justice for constituting a larger bench. Order on Stay Application 26. We have heard learned counsel for the petitioner on the prayer made for stay. 27. We have already passed an order in the writ petition today that a legal issue deserves to be resolved that arises in this case as pointed out therein. We are however not inclined to grant any interim relief to the petitioner in view of the preliminary objection raised by Shri K.N. Tripathi, learned Senior Counsel appearing for the respondent No. 4 to the effect, that even if the order impugned is quashed, the statutory period of 30 days has already lapsed, and consequently the initiation of no confidence motion by the petitioner or several members now cannot be tabled upon the expiry of said statutory period. This is supported by the ratio of the order dated 20.11.2013 in writ petition No. 54587 of 2012 between the same parties. Thus an interim relief which cannot be granted finally cannot be extended. 28. We are entirely in agreement with the said objection raised by Shri K.N. Tripathi, learned senior counsel and accordingly, the stay application is rejected.