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2018 DIGILAW 1467 (ALL)

Seema Gupta v. State of U. P.

2018-07-03

RAJESH SINGH CHAUHAN, VIKRAM NATH

body2018
JUDGMENT : 1. Counter-affidavit and rejoinder affidavit filed today in the Court, are taken on record. 2. Heard Sri U.K. Srivastava, Sri Sharad Pathak and Sri Abhinav Singh, learned counsels appearing for the petitioner, Ms. Anupama Singh, learned Standing Counsel representing for the State-respondents, Dr. L.P. Mishra assisted by Sri R.B.S. Rathaur, Advocate and Sri Amit Kumar Singh Bhadauriya, learned counsels representing for the opposite party No. 4. 3. For convening the meeting of 'No Confidence Motion' brought against the President of Zila Panchayat, District-Sitapur (opposite party No. 4), atleast three petitions were filed before this Court praying for appropriate direction be issued. In writ petition bearing Writ Petition No. 15255 (M/B) of 2018 a detailed order was passed on 24.05.2018 and Officer-on-Special Duty posted at Lucknow Bench of Allahabad High Court was appointed as Presiding Officer to convene the meeting on 31.05.2018. 4. On 31.05.2018, the meeting was convened and the Presiding Officer appointed by this Court gave his report dated 31.05.2018, which is annexed as Annexure No. 1 to the writ petition. According to the contents of the said report on the date, time and place of meeting fixed only 30 members were present in the meeting. Presiding Officer noted that the strength of elected members were 79 and, as such, though quorum was not complete but nevertheless as the members present were insisting for discussion to take place and also for voting, he allowed the discussion to take place and also conducted the voting. After following due procedure, the voting was conducted in the presence of the President of Zila Panchayat (opposite party No. 4) and also the petitioner. The report further mentions that casted votes were counted, in which 25 votes were found in favour of the 'No Confidence Motion', 2 votes were found against it and 3 votes were found invalid. The Presiding Officer further recorded that since 25 votes were casted in favour of 'No Confidence Motion', it did not reach the number required for success of the 'No Confidence Motion', as such, the same failed. It is thus report of the Presiding Officer which is under challenge in the present writ petition. 5. The Presiding Officer further recorded that since 25 votes were casted in favour of 'No Confidence Motion', it did not reach the number required for success of the 'No Confidence Motion', as such, the same failed. It is thus report of the Presiding Officer which is under challenge in the present writ petition. 5. The submission advanced by learned counsels for the petitioner is to the effect that 30 elected members were present and casted votes, out of which, 25 votes were casted in favour of 'No Confidence Motion' and such motion has been declared to have been successfully carried out and the Presiding Officer erred in having declared the motion to be failed. In order to press into service the submission made by learned counsels for the petitioner, the relevant provisions contained in (i) U.P. Kshetra Panchayat and Zila Panchayat Act, 1961, (ii) Uttar Pradesh Zila Parishads (Voting on Motions of Non Confidence) Rules 1966 and (iii) U.P. Zila Panchayat (Karyawahiyon Ka Sanchalan) Niyamawali 1962 have been referred. 6. Section 28 of Act, 1961 deals with motion of no confidence of the President and Vice-President. Section 28 is being reproduced here-in-below:- "Motion of no-confidence in Adhyaksha. (1) A motion expressing want of confidence in the Adhyaksha of a Zila Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections. (2) A written notice of intent on to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of [elected members] of the 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. (3) The Collector shall thereupon -- (i) convene a meeting of the Zila Panchayat for the consideration of the motion at the office of the Zila 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] notice of not less than fifteen days of such meeting in such manner as may be prescribed. Explanation. Explanation. - In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notice of the meeting to the [elected members] shall be excluded. (4) The Collector shall arrange with the District Judge of the district to preside at such meeting : Provided that the District Judge may instead of presiding himself direct a Civil Judicial Officer not below the rank of a Civil Judge subordinate to him to preside at the meeting. [(4A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B). (4B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the 4. Substituted by U.P. Act No. 9 of 1994.[elected members] at least ten days notice of the next meeting in the manner prescribed under sub-section (3).] (5) [Save as provided in sub-sections (4-A) and (4-B) a meeting] convened for the purpose of considering a motion under this section shall not be adjourned. (6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Zila Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate. (7) No debate on the motion under this section shall be adjourned. (8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. (7) No debate on the motion under this section shall be adjourned. (8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote [which shall be held in the prescribed manner by secret ballot.] (9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon. (10) A copy of the minutes of the meeting together with a copy of the motion and the result of voting thereon shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Collector. (11) If the motion is carried with the support of [more than half] of the total number of [elected members] of the Zila Panchayat for the time being - (a) the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette; and (b) the Adhyaksha [or the [x x x]], as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat. (12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha [or the [x x x]], as the case may be, shall be received until after the expiration of [one year] from the date of such meeting. (13) No notice of a motion under this section shall be received within [two years] of the assumption of, office by an Adhyaksha, [or the [x x x]], as the case may be." 7. (13) No notice of a motion under this section shall be received within [two years] of the assumption of, office by an Adhyaksha, [or the [x x x]], as the case may be." 7. The requirement of sub-Section (2) of Section 28 of the Act, 1961 is that motion in such form as may be prescribed is to be signed by not less than one-half of the total number of elected members of the 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. Thereafter, the sub-sections deal with the procedure to be followed before convening the meeting. Further sub-section (11) states that motion if carried with the support of more than half of the total number of elected members of Zila Panchayat for the time being, under clause (a), the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette and under sub clause (b), the Adhyaksha or Up-Adhyaksha, as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat. 8. Sub-section (12) of Section 28 provides that if the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha or Up-Adhyaksha, as the case may, would be received until after expiration of one year from the date of such meeting. The aforesaid provision of the Act 1961 make it amply and distinctly clear that it is only by a strength of more than one-half of the elected members of the Zila Panchayat that a 'Motion of No Confidence' can be presented and further can be successfully carried out. 9. The aforesaid provision of the Act 1961 make it amply and distinctly clear that it is only by a strength of more than one-half of the elected members of the Zila Panchayat that a 'Motion of No Confidence' can be presented and further can be successfully carried out. 9. Learned counsels for the petitioner have referred to Rules, 1966, particularly Rule 11 in support of their submission that it is only the majority of more than one-half of elected members of Zila Panchayat present and voting in the meeting of 'No Confidence', which is relevant for consideration. Rule 11 of Rules 1966 is reproduced here-in-below:- "11. Counting of votes and declaration of results-The Presiding Officer shall immediately after the voting is over- (a) count the votes before such members as may be present and declared the number of votes cast in favour of the motion and those cast against it. Provided that in the event of these being an equality of votes cast in favour of or against the motion, the result shall be determined by the drawing of lost; (b) declare the result." 10. The above rule only provides that the Presiding Officer immediately after voting is over would count the votes before such members, as may be present, and declare the number of votes cast in favour of the motion and those cast against it. It does not anywhere or even by implication contemplates that it is only the majority of the members present and voting. The only requirement is that the counting is to take place in the presence of such members present there and thereafter declare the number of votes cast. The proviso is not relevant here inasmuch as it deals with the situation where the equality of votes in favour or against has arisen. Thus, Rule 11 of 1966 Rules is of no help to the petitioner. 11. The next submission advanced is referring to quorum as provided in the Rules 1962. Rule 9(1) provides that for meeting of Zila Panchayat presence of 1/3 of the total number of members would make a quorum. Rule 9(2) provides that the quorum would be half of total number of members for matters to be dealt with as Special Resolution. Rule 9(3) has no application at present. 12. Rule 9(1) provides that for meeting of Zila Panchayat presence of 1/3 of the total number of members would make a quorum. Rule 9(2) provides that the quorum would be half of total number of members for matters to be dealt with as Special Resolution. Rule 9(3) has no application at present. 12. Relying upon the aforesaid provision of 1962 Rules, the submission is that the quorum being 1/3 of the meeting of Zila Panchayat, the members being present (30) formed a complete quorum and 25 of these 30 members having voted in favour of 'No Confidence Motion', the finding recorded by the Presiding Officer was not correct and in fact the motion stood passed against the Adhyaksha of the Zila Panchayat (opposite party No. 4). 13. We are afraid of that such submission can be accepted inasmuch as the 1962 Rules have no application to the meeting of 'No Confidence' and these rules have been framed for the purposes of the meeting of the Zila Panchayat for carrying out its business as may be empowered to different bodies of the Zila Panchayat. 14. Reading of Rule 4 makes it amply clear the purpose for which such rules have been framed. There is another reason for holding that the quorum for meeting of 'No Confidence Motion' cannot be said to be 1/3 where the very requirement in the Act, 1961 is of more than half of the elected members of the Zila Panchayat. Any quorum less than half of the elected members of Zila Panchayat would frustrate the very purpose of Section 28 (11) of the Act, 1961. 15. For all the reasons recorded above, the aforesaid writ petition being devoid of merits, fails and is accordingly dismissed.