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2017 DIGILAW 2834 (ALL)

Rishi Ram Singh v. State of U. P.

2017-12-05

DILIP GUPTA, JAYANT BANERJI

body2017
JUDGMENT : The petitioner, who was elected as Pramukh of Kshettra Panchayat Budhanpur Sheohara in district Bijnor has filed this petition for quashing the notice dated 9 June 2017 issued by the Collector for convening a meeting of the members of the Kshettra Panchayat on 29 June 2017 at 11:00 am in the office of the Kshettra Panchayat for consideration of the proposed motion of no confidence against the petitioner. 2. It is stated that the petitioner was elected as a member of the Kshettra Panchayat on 29 October 2015 and thereafter was elected as Pramukh on 18 March 2016. Out of the 93 members of the Kshettra Panchayat one member died in May 2017 and three members subsequently resigned. Thus, the total strength of the members of the Kshettra Panchayat is 89. On 1 June 2017, 73 members submitted a written notice of intention to make a motion of no confidence against the petitioner before the Collector with a copy of the proposed motion. The Collector, thereafter, issued a notice dated 9 June 2017 to convene a meeting of the members of the Kshettra Panchayat for consideration of the motion of no confidence in the office of Kshettra Panchayat on 29 June 2017 at 11:00 am. This petition has been filed to assail the said notice. 3. The Collector, thereafter, issued a notice dated 9 June 2017 to convene a meeting of the members of the Kshettra Panchayat for consideration of the motion of no confidence in the office of Kshettra Panchayat on 29 June 2017 at 11:00 am. This petition has been filed to assail the said notice. 3. Sri Arun K Singh Deshwal, learned counsel appearing for the petitioner has submitted that (i) the written notice of intention to make the motion was not accompanied by the proposed motion and, therefore, the Collector could not have issued the notice for convening a meeting of the members of the Kshettra Panchayat on 29 June 2017; (ii) the documents which have been enclosed with the counter affidavit cannot be termed as a copy of the proposed motion; (iii) on 3 June 2017, an application supported by fifty two affidavits sworn on 29 May 2017 by the elected members was submitted before the Collector with a prayer that the affidavits may be considered before issuing the notice, but the Collector failed to take into consideration the application and the affidavits before issuing the notice; (iv) the names of three members, namely Kaushalya wife of Rajesh, Smt. Dharmwati wife of Sheo Singh, and Kewal Singh son of Ram Swaroop Singh were repeated twice in the application dated 1 June 2017 submitted to the Collector only to increase the number of members; and (v) the name of Avanish Kumar son of Suresh Kumar is mentioned at Serial No.66, even though there is no member by this name and there are no signatures or thumb impression of Ashwani Kumar and Rizwan Masood in the said written notice. 4. Learned Standing Counsel appearing for the respondents has, however, submitted that: (i) the proposed motion of no confidence moved against the petitioner was enclosed with the written notice dated 1 June 2017; (ii) the written notice of intention to make the motion was signed by atleast half of the elected members of the Kshettra Panchayat and the allegations that the names of some of the members were repeated in the notice is incorrect as they signed at one place only; and (iii) the affidavits with the application that was submitted on 3 June 2017 neither denied the signatures of the members on the written notice nor did they deny the signatures of the members on the proposed motion. 5. 5. Sri G.K. Singh, learned Senior Counsel, who has appeared on behalf of 68 persons who had filed an Impleadment Application and who had participated in the voting that took place on 29 June 2017, submitted that: (i) the notice issued by the Collector does not suffer from any infirmity which may call for any interference by the Court under Article 226 of the Constitution; (ii) the written notice was signed by at least half the elected members of the Kshettra Panchayat; and (iii) the application that was submitted on 3 June 2017 enclosed affidavits which neither denied the signatures of the members on the written notice nor did they deny the signatures of the members on the proposed motion. 6. We have carefully considered the submissions advanced by learned counsel for the parties. 7. In order to appreciate the contentions, it would be appropriate for the Court at this stage to refer to the provisions of Section 15 of the U.P. Kshettra Panchayat and Zila Panchayat Act, 1961 ['the Act'] and they are as follows:- "15 Motion of non-confidence in Pramukh- (1) A motion expressing want of confidence in the Pramukh or any of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections. (2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra 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 Kshettra Panchayat. (3) The Collector shall thereupon:- (i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra 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 member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed." 8. The English version of the Rules framed under Section 237 of the Act regarding making of a motion of no confidence against the Pramukh or Up-Pramukh of the Kshettra Panchayat, as amended in 1994, would read as follows: "1. A written notice of intention to make a motion expressing want of confidence in the Pramukh or the Uppramukh of a Kshettra Panchayat shall be in Form I of the Schedule given below. 2. The notice under clause (ii) of sub-section (3) of Section 15 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, shall be in Form II of the Schedule given below and shall be sent by registered post to every member of the Zila Panchayat at his ordinary place of residence. It shall also be published by affixation of a copy thereof on the notice board of the office of the Kshettra Panchayat. SCHEDULE FORM I (Form of the written notice of intention to make a motion expressing want of confidence in the Pramukh/Up-pramukh of a Kshettra Panchayat) To, The Collector, . . . . . . . . . . . . . . Notice Sir, We the undersigned members of the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kshettra Panchayat hereby give this notice to you of our intention to make the motion of non-confidence in Sri . . . . . . . . . . . . . . . .... . . . . . , the Pramukh/Up-Pramukh of our Kshettra Panchayat and also annex hereto a copy of the proposed motion of non-confidence. 2. The total number of members, who for the time being constitute the Kshettra Panchayat. . . . . . . . . . . . . . . . . . . . . . is . . . . . . . . . . . . . . . . . . . . . . Your faithfully, 1. 2. 3. 4. Place . . . . . . . . . . . . Dated . . . . . . . . . . . . . . . . . is . . . . . . . . . . . . . . . . . . . . . . Your faithfully, 1. 2. 3. 4. Place . . . . . . . . . . . . Dated . . . . . . . . . . . . FORM II (Form of the notice of a meeting of the Kshettra Panchayat to be held for the consideration of the nonconfidence motion against the Pramukh/Up-Pramukh ) To Sri . . . . . . . . . . . . Member of . . . . . . . . . . . Kshettra Panchayat, District . .. . .. . .. . . . Notice This notice is hereby given to you of the meeting of . . . . . . . . . . . . Kshettra Panchayat which shall be held at the office of the said Kshettra Panchayat on . . . . . . . . . . . . . .(date) at . . . . . . . . . . . . . . . . . . . . . . .(time)for consideration of the motion of non-confidence which has been made against Sri . . . . . . . . . . . . . . . . ., the Pramukh/Up-Pramukh of the said Kshettra Panchayat. A copy of the motion is annexed hereto. Collector . . . . . . . . Place . . . . . . . . . . . . . . . . . . Dated . . . . . . . . . . . . . . . . . ." 9. A careful perusal of the averments made in the counter affidavit filed by the State and the original records does indicate that the written notice of intention to make the motion of no confidence against the petitioner was accompanied by the proposed motion of no confidence against the petitioner and it is not possible to accept the contention of learned counsel for the petitioner that this proposed motion was subsequently inserted in the records. The Court has carefully perused the original records and finds that the pages have been numbered and the written notice to make the motion of no confidence is from page 169 to 173, while the proposed motion of no confidence with the affidavits is from page 90 to page 168. The original records had earlier been directed to be produced for perusal of the Court by order dated 13 November 2017. Prior to that on 19 June 2017 the learned Standing Counsel was only granted two days time to seek instructions in the matter. It transpires that on 28 June 2017, when the matter was taken up by the Court, instructions were perused by the Court and only the records that were made available to the Chief Standing Counsel on that date were placed before the Court. The entire original records were not placed before the Court and that is why the records that were produced may not have been contained the proposed motion of no confidence. 10. It is also not possible to accept the contention of learned counsel for the petitioner that the document that was submitted to the Collector on 1 June 2017 with the written notice cannot be termed as “proposed motion of no confidence”. A careful perusal of the document clearly shows that the members have expressed to propose the no confidence against the Pramukh. 11. It is true, as has been contended by learned counsel for the petitioner, that the names of Kaushalya wife of Rajesh (Serial No.14), Dharmwati wife of Sheo Singh (Serial No.36), and Kewal Singh son of Ram Swaroop Singh (Serial No.11) have been repeated twice but they have signed at one place only. It is also true that the name of Sri Ashwani Kumar son of Suresh Kumar is at Serial No.58, and this name has again been repeated at Serial No.66, but this time as 'Avanish Kumar' son of Suresh Kumar. Ashwani Kumar has not signed at Serial No.58 and only Avanish Kumar has signed at Serial No.66. Learned Standing Counsel states that the correct name of the member is Avanish Kumar and it has wrongly been recorded as Ashwani Kumar in the voters list. Ashwani Kumar has also not come forward to state that Avanish Kumar has signed on his behalf. Learned Standing Counsel states that the correct name of the member is Avanish Kumar and it has wrongly been recorded as Ashwani Kumar in the voters list. Ashwani Kumar has also not come forward to state that Avanish Kumar has signed on his behalf. It also needs to be noted that the affidavit at page No.76 of the counter affidavit which accompanied the written notice is sworn by Avanish Kumar son of Suresh Kumar. 12. Even otherwise, if these names are excluded then too the written notice of intention to make the motion has been signed by at least half the members of the Kshettra Panchayat. It cannot, therefore, be accepted that at least half the members of the Kshettra Panchayat had not signed the motion. 13. Such being the position, we do not find any illegality in the notice issued by the Collector. 14. The writ petition is, accordingly, dismissed. 15. Interim order granted earlier stands vacated and the respondents are directed to forthwith declare the result of the election.