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2014 DIGILAW 783 (ALL)

RAM AUTAR v. STATE OF U. P.

2014-03-05

A.P.SAHI, VIVEK KUMAR BIRLA

body2014
JUDGMENT By the Court.—Heard Sri Vinod Kumar Singh, learned counsel for the petitioners. 2. The two petitioners, who claim to be the members of Sadhan Sahkari Samiti Limited, Sakarpura, Development Block Bansdeeh, District Ballia, pray for quashing of the no confidence motion proceedings that had been tabled against the respondent No. 4 so as to remove him from the post of President of the said Samiti. A no confidence motion in such matters is undisputedly governed by the Uttar Pradesh Co-operative Societies Rules, 1961 and the relevant Rule is Rule 458 (1) quoted hereunder: 458(1) On receipt of the notice of no confidence as provided in Rules 456 and 457, the specified authority shall fix such time, date and place as, he may consider suitable for holding a meeting for the purpose of consideration of the proposed no confidence motion: Provided that such meeting shall be held within thirty-five days of the receipt of the notice of no confidence: Provided further that at least twenty-one day’s notice shall be given for holding such meeting. 3. The writ petition was filed categorically stating that notices were sought to be served without giving 21 days clear notice as envisaged under Rule 458(1) of the 1968 rules. 4. Consequently, framing the said question be answered by this Court an order was passed on 25.2.2014 calling upon the learned Standing Counsel to furnish the original records before the Court for the purpose of consideration of the issue so raised with a direction that the no confidence motion which was scheduled for 26.2.2014 may be held but the results shall not be declared. 5. The members, who had tabled the no confidence motion, had been made party respondents in the writ petition and they were also directed to be served. An affidavit of service has been filed indicating service of notice on the respondent Nos. 8 to 10 and refusal by the respondent Nos. 5 to 7. 6. Sri Shamasul Eslam, learned advocate, has filed vakalatnama on behalf of the respondent Nos. 7, Indra Dev (Yadav) and he submits that the interest of the other respondents are also being looked after by the said respondent in the present proceeding. 7. We have examined the records that have been produced in original by Sri C.K. Rai, learned Standing Counsel, containing the notice issued by Sri Sunil Kumar Srivastava, the District Magistrate, Ballia. 7, Indra Dev (Yadav) and he submits that the interest of the other respondents are also being looked after by the said respondent in the present proceeding. 7. We have examined the records that have been produced in original by Sri C.K. Rai, learned Standing Counsel, containing the notice issued by Sri Sunil Kumar Srivastava, the District Magistrate, Ballia. The receipts on the said notice indicate the date of service from 6.2.2014 to 10.2.2014. 8. Sri Shamasul Eslam submits that there appears to be an overwriting in at least 3 of the dates mentioned, where the digit six has been converted into eight. He further submits that on instructions, the members had not put any date after their signatures. He further submits that he does not propose to file a counter-affidavit and the matter be decided on the basis of the records itself. 9. On a perusal of the record, even if it is assumed that the digit six has been tampered and made eight, the same would not make any difference inasmuch as the date fixed for no confidence of motion namely 26.2.2014, clearly indicates that it is only 19 days which intervene even if the date of service is 6.2.2014, and not 21 days as required under Rule 458(1). 10. The service of notice in the manner aforesaid is mandatory and the law in this regard in relation to similar provisions of notice in other enactments namely Section 15 of U.P. Kshetra Panchayat and Z.P. Adhiniyam, 1961 have been elaborately dealt with by this Court in a large number of decisions clearly holding that the provision for notice has been strictly construed by excluding the date of issuance of the notice and the date of no confidence Motion. The period has to be counted from effective service to the date before the day of tabling of the motion. 11. In the instant case, admittedly on record, the notice is dated 3.2.2014 which was sent to the co-operative society for being circulated through the concerned official namely ADO Cooperative. The same was received on 5.2.2014 and was directed to be placed before the Sanchalak Mandal. It is therefore evident that the notice itself was received on 5.2.2014 whereafter it was circulated amongst the members who have endorsed there signatures. The same was received on 5.2.2014 and was directed to be placed before the Sanchalak Mandal. It is therefore evident that the notice itself was received on 5.2.2014 whereafter it was circulated amongst the members who have endorsed there signatures. The dates mentioned, even though is sought to be disputed by the learned counsel for the respondent No. 7, but on a perusal of the original record, we are unable to accept the said contention as the dates appear to be endorsed below the signatures separately against the names of all persons. Such notices have been received from 6.2.2014 to 10.2.2014. 12. In these circumstances, it is evident that 21 clear days notice was not available prior to the tabling of the no confidence motion to the members. The petitioners, who are also members, have raised this plea and, therefore, in view of the aforesaid position that emerges from the original records, the contention deserves to be accepted. 13. Consequently, the writ petition is allowed and the proceedings that have been held subject to the order passed by this Court namely the no confidence motion is hereby quashed without prejudice to the rights of the contesting respondents to proceed with any such intention in accordance with the Rules by serving a fresh notice. 14. The original records have been returned to Sri Rai, learned Standing Counsel. ————