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2014 DIGILAW 520 (ALL)

KAMLA DEVI v. STATE OF U. P.

2014-02-14

A.P.SAHI, VIVEK KUMAR BIRLA

body2014
JUDGMENT By the Court.—The dispute in the present writ petition arises out of the tabling of a no confidence motion against the petitioner who was elected in 2010 as a Block Pramukh of Block - Kalan, Tehsil Jalalabad, District - Shahjahanpur. A no confidence motion was initiated against the petitioner under a written notice said to have been moved by the respondent private parties in 2012. On the said written notice the District Magistrate proceeded to put all the members to notice as required under Section 15 of the U.P. Kshettra Panchayat & Zila Panchayat Adhiniyam, 1961. The provision, as it exists, requires that the Collector shall convene the meeting on a date appointed by him to consider the said motion which shall not be later than 30 days from the date on which the notice was delivered to him by the members. 2. The next step to be undertaken by the Collector is to give notice of not less than 15 days of such meeting in such manner as may be prescribed, to the elected members of the Kshettra Panchayat. The meeting has to be presided over by the Sub-Divisional Officer of the division concerned. 3. The present writ petition was filed alleging that the notice sent by the District Magistrate to the elected members of the Kshettra Panchayat was dispatched on 13.8.2012 by registered post, even though the date mentioned in the notice is 9.8.2012. Thus the allegation is that if the notice was dispatched on 13.8.2012 then the meeting which was scheduled to be held on 25.8.2012 falls on the 13th day and consequently 15 days clear notice was not given to the members. The petitioner therefore contends that there is a clear violation of the said mandatory statutory provision, that has been quoted extensively in the writ petition. 4. The petition was allowed to be amended on a prayer made by the petitioner vide order dated 10.9.2013 taking these grounds in the writ petition and also praying for a relief of certiorari to quash the outcome of the meeting that was proposed to be held on 25.8.2012. 5. The following interim order was passed on 24.8.2012 : “Heard counsel for the petitioner, learned standing counsel appearing for respondent No. 1 to 3 and Sri Shivam Yadav appearing for caveator respondent No. 4. 5. The following interim order was passed on 24.8.2012 : “Heard counsel for the petitioner, learned standing counsel appearing for respondent No. 1 to 3 and Sri Shivam Yadav appearing for caveator respondent No. 4. The standing counsel on the basis of instructions received, submits that notices were dispatched by the Collector in the period with effect from 13.8.2012 to 16.8.2012. Sri Shashi Nandan, senior counsel appearing for the petitioner states that notices have also been dispatched upto 21.8.2012. Admittedly, since the meeting for consideration of no confidence motion is scheduled to be held on 25.8.2012 in the office of Kshetra Panchayat Kalan and 15 days clear notice does not appear to have been given, prima facie a case for grant of interim order is made out. Issue notice to respondent No. 5 to 54. As prayed, two weeks time is granted to the respondents to file counter-affidavit. Rejoinder-affidavit may be filed within two weeks thereafter. List thereafter. In the meantime, the meeting for consideration of no confidence motion, may be held, but its result shall not be declared till next date of listing.” The writ petition was dismissed in default on 4.2.2013. 6. A restoration application was filed by the petitioner immediately after two days on 6.2.2013. No order could be passed on the restoration application so filed, and in the meantime the results of the no confidence meeting dated 25.8.2012 was declared on 20.2.2013. As a consequence whereof, the petitioner, according to the respondent, stood removed from office. 7. A casual vacancy therefore arose which came to be filled up in terms of Section 12 of the 1961 Act after the vacancy was notified on 2nd March, 2013 in the elections that were held on 9.3.2013. The respondent No. 4 came to be accordingly elected to the office of Block Pramukh in the aforesaid vacancy caused. 8. The dispute took a different turn when the restoration application filed by the petitioner came to be finally allowed on 18.3.2013 by this Court and the writ petition was restored to its original number after setting aside the order of dismissal dated 4.2.2013. 9. It is thereafter that the amendment application came to be filed earlier which was allowed by the Court on 10.9.2013. 9. It is thereafter that the amendment application came to be filed earlier which was allowed by the Court on 10.9.2013. Another amendment application has been filed now praying for setting aside the election of the respondent No. 4 which application was allowed by us on 7.2.2014 when the matter was being finally heard. 10. Sri Shashi Nandan, learned Senior Counsel for the petitioner submits that a casual vacancy by way of a fresh election can be filled up only if the vacancy occurs in terms of Section 12 of the 1961 Act. In the present case the contention is that since the notice as contemplated under Section 15(3)(ii) did not give 15 days clear notice as envisaged under the statute, and since it is mandatory, the no confidence meeting dated 25.8.2012 was invalid and any resolution passed for no confidence falls through. 11. As a consequence thereof, he further contends that any subsequent election in terms of Section 12 of the respondent No. 4 also cannot survive and has to be set aside. He has also invited the attention of the Court to the Uttar Pradesh, Kshettra Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 to contend that the writ petition was very much maintainable for the reliefs claimed and the same deserves to be allowed. 12. Opposing the petition, Sri K.N. Tripathi, learned Senior Counsel submits that no relief can now be granted in the present petition because of the intervening events, namely, the holding of fresh election of the respondent No. 4, when there was no stay order operating in the present petition that had already been dismissed in default on 4.2.2013. His contention is that the restoration order dated 18.3.2013 does not in any way revive the petition so as to grant the reliefs prayed for, inasmuch as, the subsequent election of the respondent No. 4 cannot be now questioned through a writ petition on account of the bar as contained in Article 243-O readwith Article 243-ZG of the Constitution of India. 13. The submission is that the challenge in the background above could have been raised only through a election petition, which now also cannot be availed of as the period for filing an election petition has also expired. 13. The submission is that the challenge in the background above could have been raised only through a election petition, which now also cannot be availed of as the period for filing an election petition has also expired. He has relied on the 1961 Act aforesaid as well as the 1994 Rules and has invited the attention of the Court to the rules contained in Chapter - III and Chapter - IV of the 1994 Rules. 14. On merits also Sri Tripathi has urged that the notice dated 9.8.2012 was pasted in the office and if the Act provides for two modes of notice, namely, by pasting it on the notice board and by registered post, then in that event 15 days clear notice will be deemed to have been complied with and as such this Court need not interfere on that issue. 15. He has further contended that even assuming for the sake of arguments that some infirmity can be pointed out by the petitioner, the same cannot be a ground to question the election of the respondent No. 4 which could have been gone into only through an election petition. 16. Sri Tripathi further submits that apart from this, a vast majority of the members have voted against the petitioner exercising no confidence in her and he has invited the attention of the Court to two decisions of this Court to contend that once the majority has voted out the petitioner, then this Court need not exercise its discretion in favour of such a person. The decisions relied on the said issue are Om Prakash Yadav v. Collector, Etah and others, 1991 (1) UPLBEC 238 and the full bench decision in the case of Gyan Singh v. The District Magistrate, Bijnor and others, AIR 1975 All 315 . 17. On the issue of the petition not being maintainable for the reliefs claimed, to set aside the election of the respondent No. 4, Sri Tripathi submits that the discretion under Article 226 cannot be exercised on the facts of the present case keeping in view the ratio of the decision in the case of K. Venkatachalam v. A. Swamickan and another, AIR 1999 SC 1723 . 18. 18. His submission therefore is that since the question of vacancy is directly related to the fresh election of the respondent No. 4 which is an independent exercise under the statute, then the election of the answering respondent cannot now be questioned at all, for the reasons aforesaid. 19. Sri Shashi Nandan in rejoinder has urged that so far as the service of notice is concerned it is evident on record that the registered notices were dispatched on 13.8.2012 and therefore the same itself establishes that 15 days clear notice was absent as the meeting was held on 25.8.2012. He has further invited the attention of the Court to Paragraph 9 of the rejoinder-affidavit to contend that neither any notice was pasted, nor the petitioner or any other members had knowledge of the pasting of the said notice on 9.8.2012. The information given was only through the registered notice which was clearly dispatched on 13.8.2012 and as such 15 days clear notice was not available. 20. Sri Shashi Nandan has relied on the following decisions to contend that 15 days clear notice is a mandatory provision and any meeting transacted without there being such notice is a void meeting and any resolution passed thereunder is also invalid. The decisions are : 1. Yadu Nath Pandey v. The District Panchayat Raj Officer, District Ballia, 1986 AWC 1004. 2. Smt. Krishna Jaiswal v. State of U.P. and others, 2005 (2) AWC 1732. 3. Satya Prakash Mani and others v. State of U.P. and others, 2005 (2) UPLBEC 1883 . 4. Phula Devi v. State of U.P. and others, 2004 (4) ESC 2385. 5. Gyan Singh v. The District Magistrate, Bijnor and others, AIR 1975 All 315 . 21. He has further drawn support from the full bench decision in the case of Vikas Trivedi v. State of U.P. and others, Writ Petition No. 29907 of 2012 decided on 23.4.2013 and reported in 2013 (2) UPLBEC 1193. 22. It is further submitted that the writ petition is very much maintainable as a vacancy cannot be presumed to be existing if the meeting was invalid and the consequential no confidence motion is illegal. He therefore submits that once there is no vacancy, there cannot be any consequential election, and the issue of vacancy being dependent upon the no confidence motion, cannot be subject-matter of an election petition. He therefore submits that once there is no vacancy, there cannot be any consequential election, and the issue of vacancy being dependent upon the no confidence motion, cannot be subject-matter of an election petition. He therefore submits that the bar of Article 243-O read with Article 243-ZG of the Constitution of India does not get attracted at all. 23. He has further invited the attention of the Court to the office memorandum of the respondents authorities themselves dated 20.2.2013 whereby the Sub-Divisional Officer, Jalalabad who had presided over the said meeting, clearly indicated that any further action as a consequence of this casual vacancy shall be subject to the final decision of the High Court. He therefore contends that this additionally makes the writ petition very much maintainable and the objection raised by Sri Tripathi therefore cannot be entertained. 24. He further contends that the respondent No. 4 is a beneficiary of the misfortune of the petitioner on account of the petition remaining dismissed in default from 4.2.2013 to 18.3.2013 which cannot be a legal impediment in the present case after the petition has been restored. 25. The respondent No. 4 and his election are therefore directly dependent on the outcome of the present writ petition and it is not necessary at all for the petitioner to file an election petition. 26. It is also undisputed between the parties that the respondent No. 4 inspite of having been elected has not been administered oath of office till date. 27. Coming to the issues relating to the compliance of the provisions of Section 15(3)(ii), the string of authorities as relied upon by the learned counsel for the petitioner and referred to hereinabove leave no room for doubt that a meeting held or proposed to be held in violation of a mandatory provision which requires 15 days clear notice would be invalid. 28. We have considered the ratio of the decisions that have been cited at the bar and we do not find any good reason to defer from the view already taken by several division benches as referred to hereinabove. One of the decisions, namely, Satya Prakash Mani (supra), has also taken into consideration the full bench decision of 1975 in the case of Gyan Singh (supra) as relied upon by Sri Tripathi counsel for the respondent. One of the decisions, namely, Satya Prakash Mani (supra), has also taken into consideration the full bench decision of 1975 in the case of Gyan Singh (supra) as relied upon by Sri Tripathi counsel for the respondent. The decision in the case of Phula Devi (supra) has already held that the provisions are mandatory except for the manner in which the notice has to be sent. Thereafter in Paragraph 30 of the aforesaid judgment in the case of Satya Prakash Mani (supra) also holds that the requirement of 15 days notice is mandatory. 29. In the instant case, the dispute is not with regard to the proforma of the notice but the period of 15 days clear notice. The respondents have not been able to establish the dispatch of notice prior to 13.8.2012. The pasting of the notice has been clearly denied by the petitioner. In the circumstances, the contention raised that the requirement of 15 days clear notice had not been complied with deserves to be accepted on the facts of the present case. 30. Coming to the question of the writ petition having been dismissed in default and being restored after the elections, it would be appropriate to extract Section 12 hereinunder : “[12. Filling of casual vacancies.—If a vacancy occurs by reason of death or otherwise in the office of a Pramukh, or an elected member of the Kshettra Panchayat, it [shall be filled before the expiration of a period of six months from the date of such vacancy], in the manner provided for in Section 6 and 7, as the case may be, for the residue of the term of his predecessor: Provided that if on the date of occurrence of such vacancy the residue of the term of the Kshettra Panchayat is less than six months, the vacancy shall not be filled.]” 31. The vacancy in the present case undoubtedly occurred on account of the motion having been passed on the strength of a meeting which according to us, as held hereinabove, was invalid. Apart from this, the election could have been held only if in law there was a vacancy occurring as per Section 12 aforesaid. The filling up of such a vacancy is also dependent on the availability of a vacancy. Apart from this, the election could have been held only if in law there was a vacancy occurring as per Section 12 aforesaid. The filling up of such a vacancy is also dependent on the availability of a vacancy. This question, in our opinion, arising out of a no confidence motion, cannot be subject-matter of an election petition on the facts of the present case. The writ petition had already been filed and inspite of having been dismissed in default, the same was restored on 18.3.2013. It is for this reason that the office memorandum dated 20.2.2013, issued by the Sub-Divisional Officer, clearly recites that the carrying out of the no confidence motion and any further action shall be subject to the outcome of the writ petition. It is settled principle that parties to a litigation have to be allowed to contest the matter, and determined, on the date when the lis began. If one of the parties succeeds, then he or she has to be put back in the same position that was existing on the date when the lis began. Once it is found that the meeting on 25.8.2012 was convened in violation of the mandatory provision of Section 15(3)(ii), then the resolution passed on the said date has to fall through. The no confidence motion therefore could not have been passed in an invalidly convened meeting and consequently there would be no removal of the petitioner. If the petitioner is not removed then there is no vacancy and as such any notification for subsequent elections and the election of the respondent No. 4, being directly dependent on this contingency has also to fall through. 32. To our mind such a contingency as involved in the present case, which is peculiar in its nature, arising out of the pendency of the writ petition and the facts aforesaid cannot be subject-matter of an election petition as urged by Sri Tripathi. The bar of the constitutional provisions as urged therefore is not at all attracted. 33. The decision of the Apex Court in the case of K. Venkatachalam (supra), in the aforesaid circumstances therefore comes to the aid of this Court for exercise of jurisdiction under Article 226 of the Constitution of India and not to the contrary as suggested by Sri Tripathi. 34. 33. The decision of the Apex Court in the case of K. Venkatachalam (supra), in the aforesaid circumstances therefore comes to the aid of this Court for exercise of jurisdiction under Article 226 of the Constitution of India and not to the contrary as suggested by Sri Tripathi. 34. The question of a majority having already voted against the petitioner has to be considered in the background of a valid meeting. As already held hereinabove since the meeting was itself invalid, then the submission of Sri Tripathi that a vast majority having voted against the petitioner, can be of no consequence. In our opinion, the reliefs prayed for by the petitioner are very much entertainable and the petition deserves to be allowed. 35. Consequently, we allow the writ petition and set aside all the proceedings of the meeting held on 25.8.2012 including the no confidence motion passed against the petitioner. As a consequence thereof, we also set aside the election of the respondent No. 4 in the resultant vacancy in the office of Block Pramukh, Block - Kalan, Tehsil Jalalabad, District - Shahjahanpur.