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2019 DIGILAW 2246 (ALL)

Anil Kumar Singh v. State Of U. P.

2019-09-24

AJIT KUMAR, RAMESH SINHA

body2019
JUDGMENT : Sinha, J. 1. Heard Sri Tarun Agrawal, learned counsel for the petitioner, Sri Devendra Kumar Tiwari, learned Addl. Chief Standing Counsel for respondent nos.1 and 2 and Sri Rahul Sahai, learned counsel appearing for respondent no.3. Perused the record. 2. By means of this petition under Article 226 of the Constitution, the petitioner has questioned the correctness of the order dated 31.8.2019 passed by the District Magistrate whereby he has turned down the notice of no confidence motion moved by the petitioner and other members of Zila Panchayat on the ground that it was only signed by five members, though, it has been acknowledged in the order itself that there were 37 affidavits filed in support of the notice of no confidence motion. 3. We summoned the original records for the purposes of due verification as to the reason assigned in the order impugned by the District Magistrate. From the perusal of the original records, we find that the notice, though on the first page, is signed by five members but it has also an appended list of 37 members including those five members, titled as "Signatures of the members on a format in support of the notice of no confidence motion." 4. Having thus perused the original records, atleast this much is clear that there was a notice having a due appendix of the format which contained signatures of 37 members who intended to move a notice of no confidence motion against respondent no.3. 5. An argument has been advanced by learned counsel for the petitioner also relying upon a judgment of Division Bench of this Court in the case of Smt. Shashi Yadav vs. State of U.P. and others wherein in identical facts and circumstances the notice of motion carried alongwith affidavits of members who intended to move the no confidence motion. The Court held in its ultimate paragraph nos.38, 39 and 40 thus: "38. We hold the provision regarding the form of written notice of intention to make the motion required to be submitted to the Collector on behalf of the members signing the notice under Section 15(2) is to be directory in nature. A substantial compliance of the provisions would implement the requirements of law. A substantial compliance is done when the purpose of the notice is achieved. A substantial compliance of the provisions would implement the requirements of law. A substantial compliance is done when the purpose of the notice is achieved. The purpose of the notice of intent to make the motion, is to furnish to the Collector the material on which he has to found his satisfaction before convening the meeting. Such material should demonstrate full compliance of mandatory provisions of 15(2) of the Act. In particular, the notice should be in writing. It should manifest the clear intention of the members to make a motion expressing want of confidence in the Pramukh. It should be signed by at least half of the elected members. The copy of the no confidence motion should be attached thereto. 39. In fact, if a strict compliance of the said mandatory parts of Section 15(2) is done, then the substantial compliance of directory provisions of the aforesaid of Section 15(2) would be automatically deemed to have been done. 40. If such facts or material can be distilled from the notice to make a motion expressing want of confidence irrespective of its form, it substantially complies with the mandate of law. As has been held, these prerequisites are fulfilled in the instant case." 6. It is thus argued that the order passed by the District Magistrate cannot be sustained. 7. Per contra, an argument advanced by learned counsel appearing for the State respondents as well as the respondent no. 3 is that as per the provisions contained under Section 15 (3) (i), the District Magistrate is under an obligation to convene a meeting of Kshetra Panchayat for consideration of motion and which should be scheduled not later than 30 days from the date on which the notice under Sub-Section 2 was delivered to him. He further argues that as per the provision the only saving in terms extension in prescribed period is under those circumstances where there is some stay order operating in a case against the notice of no confidence motion under challenge. Therefore, he submits that since the notice admittedly was delivered on 16.8.2019, a period of 30 days has already expired so the writ petition is rendered infructuous and no effective relief can be granted. Moreover, he argues that there was no interim order or stay order operating in the present case as defined in the explanation. 8. Therefore, he submits that since the notice admittedly was delivered on 16.8.2019, a period of 30 days has already expired so the writ petition is rendered infructuous and no effective relief can be granted. Moreover, he argues that there was no interim order or stay order operating in the present case as defined in the explanation. 8. Countering the above submissions advanced, learned counsel for the petitioner argues that in such situation interim order would not be where notice itself has come to be rejected by the District Magistrate and rejection order is under challenge. He argues that the District Magistrate has not duly applied his mind and the order is absolutely illegal in the light of the ratio of the judgment of the Division Bench. He argues that the order if is bad and is set aside, this Court exercising extraordinary power under Article 226 of the Constitution, can even warrant for further period for convening the meeting of no confidence motion by providing extended time as prescribed for under the Act, 1961. Rival submissions fall for consideration. 9. Coming to the first argument advanced by learned counsel for the petitioner that the order passed by the District Magistrate is not sustainable as the law laid down is to the effect that even if the notice of no confidence motion is accompanied by affidavit of members forming requisite number i.e. more than half of total members to move a no confidence motion. 10. In our considered opinion, as the law stands today and the statement has been made at the bar that the judgment in Smt. Shashi Yadav (supra) still holds the field as the said judgment has not been challenged in the Apex Court, the ratio laid down in the judgment is fully attracted and the order of District Magistrate cannot be sustained. It is accordingly held bad being legally not sustainable. However, the question is that even if the order is quashed today what would be consequential effect thereof. 11. The argument as advanced by learned counsel for the respondents if tested upon the relevant provision of the Act, 1961, we find that there is a clear mandate by the legislature under the provision that no meeting can be convened for discussing a no confidence motion beyond a period of 30 days. 11. The argument as advanced by learned counsel for the respondents if tested upon the relevant provision of the Act, 1961, we find that there is a clear mandate by the legislature under the provision that no meeting can be convened for discussing a no confidence motion beyond a period of 30 days. The explanation that has been appended to the relevant provision only saves a situation where a notice of confidence motion has been put to challenge and there is some stay order operating in that respect. 12. We find justification for such a saving clause for the simple reason that once a notice is given convening a meeting, the meeting is a must on the scheduled date but for the Court's intervention. So, in case if Court finds notice to be legal and dismisses the writ petition vacating the stay order, the suspended animation gets over and natural legal effect would be the rescheduling of the meeting as if notice was already there. So, Court's order suspending any notice, otherwise legal, is like an eclipse that overshadows the time schedule provided under the Act, for a while and then goes away. 13. In the present case, we find that the District Magistrate has rejected the notice on certain grounds on 31.8.2019. A challenge to the rejection order would have resulted in a positive action, in case, if it is quashed and a period prescribed under substantive provision to convene the meeting is still there. 14. A limitation if prescribed by legislature, it cannot be extended. The golden rule of interpretation is to go by literal interpretation to a provision of law. The explanation added to the Section not only shows intendment of the legislature in saving a particular situation so that by an act of Court a proceeding otherwise legal, does not get frustrated, the principle being 'actus curiae neminem gravabit' which means act of Court shall prejudice no man. 15. In view of the legislative intent behind the provision, this Court exercising its power under Article 226, cannot pass a direction which would not only carry out a new exception to the general law but in substance would amount to an exercise, quite legislative in nature, which is clearly not permissible. 15. In view of the legislative intent behind the provision, this Court exercising its power under Article 226, cannot pass a direction which would not only carry out a new exception to the general law but in substance would amount to an exercise, quite legislative in nature, which is clearly not permissible. The law is very clear that a casus omissus can in no case be supplied by a Court of Law, for that would be to make laws (per Buller J. in Jones vs. Smart, 99 ER 963), except in some case of absolute necessity. The settled legal position as a rule of interpretation is that the Court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute or any statutory provision is the determinative factor of legislative intent of policy makers. [Union of India vs. Rajiv Kumar, (2003) 6 SCC 516 ]. 16. As here in this case Sub-Section 12 of Section 28 of the Act, 1961, would not be attracted and it is always open for the members to bring fresh notice qua no confidence motion against the respondent no.3, it is not a case of such an absolute necessity that if Court did apply the principle of 'casus omissus', miscarriage of justice would take place resulting in any irreparable loss. 17. Learned counsel appearing for the petitioner has not been able to cite any judgment to the contrary. 18. With the aforesaid observations, the petition stands consigned to records.