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2025 DIGILAW 547 (ALL)

Phulbasa v. District Magistrate Collector

2025-03-27

ANJANI KUMAR MISHRA

body2025
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard learned counsel for the petitioner, Sri R. K Ojha, learned Senior Advocate, appearing for respondent No.6 and the learned Standing Counsel. 2. The petitioner, an elected member of the Block Development Committee, Block- Chahaniya, District- Chandauli, has filed this writ petition seeking the following relief:- “A. Issue a writ, order or direction in the nature of certiorari quashing the order dated 29-09-2024 (Annexure No. 07) passed by District Magistrate, Chandauli by which application for no confidence has been rejected. B. Issue a writ, order or direction in the nature of mandamus directing to respondent authorities to accept the petitioner’s application for Motion of non- confidence against the respondent no. 6/Arun Jaiswal and proceeded with in accordance with the procedure laid down in the Section 15 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. C. Issue, a writ, order or direction in the nature of mandamus directing to respondent no.2/Chief secretary, Government of Uttar Pradesh, Lucknow to conduct the inquiry in pursuance of complaint dated 04-10-2024 (Annexure No. 08) filed by the petitioner in respect of arbitrary, illegal, mala fide, perverse and unconstitutional act of Mr. Nikhil Tikaram Funde, District Magistrate.” 3. The petitioner presented a notice of intention to bring a motion of no confidence on 18.07.2024 expressing no confidence in the Block Pramukh of Chahaniya which was signed by 72 members of the Kshettra Panchayat which has a total strength of 105 members. 4. This notice of no confidence has been rejected by the impugned order stating that it has not been filed in the pro-forma provided in Form I of the Schedule the “Rules Regarding No-Confidence Motion of U.P. Kshettra Panchayat Pramukh or Up-Pramukh.” 5. This petition appears to be a third in a series of petitions relating to no confidence in the sixth respondent, the Pramukh of Kshettra Panchayat Chahaniya. 6. The relevant facts briefly stated are that initially a notice of no confidence was presented to the District Magistrate on 04.03.2024. The District Magistrate by his order dated 15.03.2024 rejected this notice finding that it was not signed by more than half of the elected members of the Kshettra Panchayat. This order was challenged by means of Writ petition No. 11485 of 2024, which came to be dismissed on 10.07.2024. 7. The District Magistrate by his order dated 15.03.2024 rejected this notice finding that it was not signed by more than half of the elected members of the Kshettra Panchayat. This order was challenged by means of Writ petition No. 11485 of 2024, which came to be dismissed on 10.07.2024. 7. On 18.07.2024, a second notice of no confidence was presented this time by the petitioner. This notice was signed by 72 members. The District Magistrate, by order dated 01.08.2024, rejected this notice relying upon section 15(12) of the Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961. 8. This order of the District Magistrate was challenged by means of Writ Petition No. 31171 of 2024, Smt Phulbasa versus District Magistrate and 05 others, on the ground that sub-section 12 of Section 15 would not be attracted where an earlier notice of no confidence had been rejected by the Collector. It would be attracted only when a notice of no confidence resulted in a meeting of the Kshettra Panchayat to consider the No Confidence Motion and the motion was not carried out, either in the absence of quorum or by lack of majority only then would a second notice of no confidence be not maintainable before the expiry of one year from such meeting. 9. The writ petition aforesaid was allowed by the order dated 27.09.2024, accepting the argument of learned Counsel for the petitioner. The operative portion of the order reads as follows:- “25. We, accordingly, allow the writ petition and quash the impugned order dated 01.08.2024, directing the District Magistrate to examine the notice expressing the intention to make a no confidence motion afresh within a period of three days from today, and in case the same is found to be signed by the requisite number of elected members of the Kshetra Panchayat, and is otherwise in order, to proceed in accordance with the procedure prescribed in Section 15 of the Act for convening a meeting for considering the motion of no confidence.” 10. Thereafter, and in consequence of the directions contained in the order dated 27.09.2024, the District Magistrate has passed the impugned order. 11. Assailing the order, the contention of learned counsel for the petitioner is that not only it is the order illegal, it is also vitiated by mala fides on the part of the District Magistrate and therefore, he has been impleaded by name in this petition. 11. Assailing the order, the contention of learned counsel for the petitioner is that not only it is the order illegal, it is also vitiated by mala fides on the part of the District Magistrate and therefore, he has been impleaded by name in this petition. It is also contended that the impugned order is contrary to the law laid down:- (i) Smt. Omvati Yadav v. State of U.P. and others, 2019 (9) ADJ 225 , especially paragraph 12 thereof. (ii) Smt. Shashi Yadav v. State of U.P. and others, 2018 (4) ADJ 1 especially paragraph 29. (iii) Smt. Krishna Jaiswal v. State of U.P. and others, 2005 (2) ESC 879 especially paragraphs 29 and 30 (iv) Arti v. State of U.P. and others especially paragraph 12 thereof. 12. Shri R. K. Ojha, learned Senior Advocate, appearing for the respondent No. 6, as also learned standing counsel have opposed the petition. 13. Shri R. K. Ojha has submitted that the words used in sub-section 2 of Section 15 are, ‘a written notice of intention to make the motion in such form as may be prescribed’. He has emphasised on the words ‘form as may be prescribed’ to defend the impugned order. He states that once the form has been prescribed by means of the relevant rule, namely “Rules Regarding No Confidence Motion of U.P. Kshettra Panchayat Pramukh or Up-Pramukh” Form No. 1 prescribed in the schedule of the said rule is mandatory. 14. He has relied also upon paragraphs 16 to 18 of the judgement in the case of Arti and paragraphs 29 and 30 of the Full Bench decision in Krishna Jaiswal (supra) as also paragraph 35 of the judgement in Smt. Sashi Yadav (supra). 15. He has next submitted that the notice of the intention to move No Confidence Motion does mention the number of signatories to this notice, but contains no details of the Kshettra Panchayat in question. The notice in question upon a perusal thereof, has to be construed as one trying to put pressure on District Magistrate. It states unnecessary things which unnecessary statements render the notice defective. 16. Similar arguments have been raised by learned Standing Counsel. 17. The notice in question upon a perusal thereof, has to be construed as one trying to put pressure on District Magistrate. It states unnecessary things which unnecessary statements render the notice defective. 16. Similar arguments have been raised by learned Standing Counsel. 17. In rejoinder, the submission of learned counsel for the petitioner is that the notice of no confidence, as filed, substantially complied with the provisions of the Act and Rules as is clear from the details given in the impugned order itself. Therefore, the impugned order is vitiated. He has again reiterated paragraphs 12 and 16 of the judgement in Om Vati Yadav (supra). 18. The impugned order holds that the notice is not in the format prescribed in Form I of the Schedule of the Rules Regarding No- Confidence Motion of U.P. Kshettra Panchayat Pramukh or Up-Pramukh, hence, not maintainable. 19. We have perused the notice, and in essence, it states that the Pramukh has lost the confidence of 72 members of the Kshettra Panchayat, who have signed the notice, hence a meeting be convened to consider the motion of no confidence. 20. The judgement in the case of Arti v. State of U.P. and others, was dealing with a notice issued by the District Magistrate to convene a meeting for consideration of the No Confidence Motion and also Form II, provided in the Schedule of Rules Regarding No Confidence Motion of U.P. Kshettra Panchayat Pramukh or Up-Pramukh. In the instant case a notice of no confidence has been rejected holding that it has not been presented as per Form I. This judgment contains certain observation in paragraphs 18 and 19 thereof, which are reproduced below:- “18. The object of giving a written notice of the intention to make the motion of no confidence is to make possible for the Collector to ascertain as to whether the motion is backed by at least half of the elected members or not. The said requirement is of a mandatory character. If the written notice of intention to make the motion is not signed by at least half of the total number of the elected members, the Collector would not get jurisdiction to take cognizance of the same, nor to issue notice under sub-section (3) of Section 15. The said requirement is of a mandatory character. If the written notice of intention to make the motion is not signed by at least half of the total number of the elected members, the Collector would not get jurisdiction to take cognizance of the same, nor to issue notice under sub-section (3) of Section 15. However, at the same time, even if notice of the intention to make the motion is not given in the prescribed format but it contains all the ingredients of Form-I, it is always open to the Collector to cull out the intention of the members giving the notice and to act upon it. The object of prescribing Form-I is only of a procedural nature to enable the Collector to understand its import and to act without delay. Where a written notice of intention to make the motion is given in prescribed format, it becomes easy for the Collector to decipher intention of those giving the notice and to act accordingly. The copy of the written notice of intention to make the motion is thus for the convenience of the Collector. A person giving notice to the Collector which is not in prescribed format is always at the risk of Collector not taking due cognizance of the same. However, in a case where the Collector acts on a notice of intention to bring forth motion of no-confidence, though not contained in prescribed format, the person against whom the motion is brought cannot complain of the same. He is in no manner prejudiced thereby as the notice is not meant for him but for the Collector, Even its copy is not required to be sent to the members or the person against whom the motion is brought. Only the copy of the proposed no confidence motion is to be annexed alongwith the notice of the Collector.” “19. Having regard to the above facts, we are of the considered opinion that even if written notice of intention to make the motion is not given to the Collector in prescribed format but the document in which it is given contains all the ingredients prescribed in Form-I, it is within the competence of the Collector to take cognizance of such a notice and to proceed to convene meeting for consideration of the motion. We are further of the opinion that such a notice could be made part of the proposed motion itself and it will in no manner affect the validity of the motion.’ 21. The judgment in Smt. Shashi Yadav (supra) dealt with both, a notice of an motion of no confidence as also the notice to be issued by the District Magistrate, consequent to the notice of no confidence. Petitioner has relied upon paragraph 38 of the judgment which reads as follows:- “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. 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.” 22. Shri R. K. Ojha, learned Senior Advocate appearing for the respondent, has placed reliance upon paragraphs 25, 29, 34 and 35 of this very same judgement which are extracted below:- “25. In the schedule there are two forms, Form I and Form II. Form II was under consideration in Vikas Trivedi (supra). Form I is relevant to the present case. For facility of reference Form I of the Schedule, i.e., the notified form of written notice of intent to requisition the meeting of no confidence is reproduced hereunder: 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 Kshetra Samiti) To, The Collector, ..................... For facility of reference Form I of the Schedule, i.e., the notified form of written notice of intent to requisition the meeting of no confidence is reproduced hereunder: 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 Kshetra Samiti) To, The Collector, ..................... Sir, We the undersigned members of the.............Kshetra Samiti hereby give this notice to you of our intention to make the motion of no-confidence in Sri............................., the Pramukh/Up-Pramukh of our Kshetra Samiti and also annex hereto a copy of the proposed motion of no-confidence. 2. The total number of members, who for the time being constituted the Kshetra Samiti.................................is................................… Yours faithfully, 1. 2. 3. 4. Place................. Date..................20” 23. Para 29 of this judgment though relied upon by Shri R. K. Ojha is found to be of no consequence for the case at hand as it deals with the issue regarding the manner of service of the notice issued by the District Magistrate convening a meeting to consider a motion of no confidence. However, paragraphs 34 and 35 are relevant and are extracted below:- “34. The judgment in the case of Arti (supra), does not support the case of the petitioner, in fact it negates the same. The case of Arti (supra) fortifies the stand of the respondents.” “35. It would be appropriate at this stage to conclude the controversy regarding the notice dated 1.1.2018 under Section 15(2) of the Act in the light of the judicial authorities discussed earlier. The following requirements of Section 15(2) are held to be mandatory: 1(a) The intention to move the vote of no confidence by the members has to be reduced to writing, in the form a written notice of intention; (b) The written notice of intention so created has to be signed by at least half of the total number of members of Kshetra Panchayat for the time being; (c) A copy of the proposed no confidence motion should be annexed to the written notice of intention. (d) The copy of the motion and the said written notice of intention to make the motion (bearing the signatures) of the requisite number of the members should be delivered in person by anyone of the signatory to the notice to the Collector having jurisdiction over the Kshetra Panchayat.” 24. (d) The copy of the motion and the said written notice of intention to make the motion (bearing the signatures) of the requisite number of the members should be delivered in person by anyone of the signatory to the notice to the Collector having jurisdiction over the Kshetra Panchayat.” 24. In paragraph 38 of Smt. Shashi Yadav (supra), it has been held as follows:- 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. 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. 25. Paragraph 14 of Smt. Omvati Yadav (supra) reads as follows:- “14. The meaning of the word 'Together' has been explained by a Full Bench of this court while dealing with a similar provision of Section 87A(11) of the Municipalities Act, 1916, in Mahesh Chandra vs. Tar Chand, AIR 1958 (All) 374 at 386 (FB) (Paras-76, 79 and 80), as under: "76. The provisions of Section 87A can be broadly divided into two portions, one, dealing with the provisions which relate to the calling of the meeting and the actual holding of the meeting as also the conduct of the meeting itself; and the other, dealing with what is to follow the termination of the meeting. In my view, the first portion of this section is mandatory in its scope, but not the second portion. In my view, the first portion of this section is mandatory in its scope, but not the second portion. The words "a motion expressing non-confidence in the President shall be made only in accordance with the procedure laid down below" in Section 87A (1) can and do refer only to the calling of the meeting and the holding of the meeting and not to acts which have to be performed subsequent to the meeting. The act of sending a copy of the minutes of the meeting along with a copy of the motion and the result of the voting thereon after the termination of the meeting is not part of the making of "a motion expressing non-confidence in the President.'' The legislature could not be deemed to have ever intended that ministerial acts necessary upon the passing of the motion at a properly constituted meeting should be viewed with the same strictness as steps leading up to the meeting & the transaction of the business at the meeting, because the latter affected the rights of a party while the former did not. A motion of non-confidence is a potent weapon in the hands of an elected body, whereby that body keeps under check its officers. It also is a matter of great significance and vital importance to the officers that such motions are not lightly made or carried through without due regard being had to the prescribed form for their passing, but after a motion has been properly made and passed by a body competent to pass it, it becomes of vital importance thereafter that effect should be given to the motion and mere procedural errors, such as errors in its communication, etc., should not have the effect of setting at naught the duly recorded view of the statutory majority. 79. A motion means a proposal and nothing more. The statute does not provide for any specific words in which the motion of non-confidence has to be made, nor does it prescribe that the motion which is to be put for consideration of the meeting by the Presiding officer under Subsection (7) has to be in the words - the very words - in which the motion or proposal was made in the requisition under Sub-section (2). It is enough compliance with the provisions of Sub-section (3) for the District Magistrate while convening the meeting to say that a meeting is being convened for consideration of a motion of non-confidence signed by more than half the members of the Board against the President and it is also sufficient compliance with the provisions of Sub-section (7) to read the motion as contained in the notice issued by the District Magistrate under the provisions of Sub-section (3). The notice which was issued by the District Magistrate in this case actually said that the meeting was being called to consider the above motion: the above motion could only refer to the non-confidence motion referred to earlier in that notice. 80. It has been contended on behalf of the petitioners that after the passing of the motion of non-confidence and the communication of it by the judicial officer to the President along with a copy of the minutes and the result off the voting was sufficient compliance with the provisions of Sub-section (11), while on behalf of Sri Tara Chand Modi it was contended that there could be no sufficient compliance with the provisions of Sub-section (11) unless the judicial officer sent to the President a copy of the minutes of the meeting together with a copy of the motion and the result of the voting. The contention was that three documents had to be sent to the President. Support for this contention was found in the observations of Desai and Beg JJ., in Special Appeal No. 195 of 1957 (A11) (C). In that case the learned Judges held at follows: "The President became liable to be removed only if he did not resign or make a representation within three days of the receipt of the three documents mentioned in Section 87A (11); if he did not receive even one of them he was not bound to resign or make a representation and he could not be removed on the ground of his not resigning or making the representation. Section 47A requires that a motion of non-confidence after it has been passed must be communicated to the president in accordance with the provisions of Section 87A; merely communicating to him the motion of non-confidence will not be enough; he must be told that it has been passed, that is, he must be told of the result of voting. Section 47A requires that a motion of non-confidence after it has been passed must be communicated to the president in accordance with the provisions of Section 87A; merely communicating to him the motion of non-confidence will not be enough; he must be told that it has been passed, that is, he must be told of the result of voting. It is only when the three documents mentioned in Section 87A (11) are sent by the Judicial officer to him that he could be said to have communicated to him the motion of non-confidence in accordance with the provisions of Section 87A. If he does not send to him any of the documents he cannot be deemed to have communicated to him the motion of the non-confidence in accordance with the provisions of Section 87A." With the greatest respect to my learned brothers I have been unable to agree that on the words of Sub-section (11) there have to be three separate documents. The Sub-section does not in terms refer to any such documents; the sub-section, in my opinion, refers only to the matter in respect of which a communication has to be forwarded by the judicial officer to the President. A single document may contain a copy of the minutes of the meeting, a copy of the motion and the result of the voting thereon. I must, however, concede that the use of the word 'together' after the words 'a copy of the minutes of the meeting' in Sub-section (11) does create the impression that two separate documents have to be sent. The word 'together' however, not only means 'in company' but it also means in conjunction. or 'united'. The word 'together' is made out of the word 'gather' which means 'to bring together'; to sum up'. If the intention of the legislature was that the presiding officer was to send three separate documents containing the three things mentioned in Sub-section (11), then, in my view, the legislature would have used the words 'accompanied by' or some like phrase and not the word 'together', for the legislature must be deemed to know that the word 'together' also means 'incorporated' because the word 'gather' means 'to bring together' and 'to sum up' as I have already pointed out above. On the plain meaning of the sub-section, therefore, it cannot, in my view, be said that three separate documents have to be sent to the President by the Presiding officer at the termination of the meeting. On the facts it has to be held that the presiding officer did send to the President the Minutes of the meeting, the result of the voting and a copy of the notice, or notification as it has been called, which contained the motion which was in fact put to the Board and passed by the Board. There was, in my view, therefore, full compliance with the provisions of Sub-section (11) of Section 87A and there was nothing wrong in the communication which was made to the President." 26. Upon a consideration of the submissions made and upon a careful perusal and consideration of the judgments cited, we are of the opinion that what has been held by the Co-ordinate Bench in Shashi Yadav (supra) in paragraph 38, thereof is clinching. It has been held therein that the form of a written notice expressing an intention to make a motion of no confidence is directory and not mandatory. There needs to be substantial compliance of the statutory requirements of such a notice namely that it should be writing and should manifest a clear intention of the members to make a motion expressing no confidence in the Pramukh and it should be signed by the half of the elected members. 27. As regards the notice not being in the proper format, a coordinate Bench of this Court in the case of Arti vs. State of U.P., has held that though the relevant rules provide for a particular format, however, if in the written notice, intention to make a motion for no confidence is reflected from perusal of the notice, it would be sufficient notice of intention to make the motion and as such it is not mandatory for the motion to be in the prescribed format. 28. In our opinion, the notice in question substantially complied with the aforenoted requirements, even though some unnecessary facts might also be part of it. These unnecessary or irrelevant facts cannot detract from the clear intention, which emerges from a perusal of the notice itself. 29. 28. In our opinion, the notice in question substantially complied with the aforenoted requirements, even though some unnecessary facts might also be part of it. These unnecessary or irrelevant facts cannot detract from the clear intention, which emerges from a perusal of the notice itself. 29. It is also provided in sub-section (2) of Section 15 that the notice is required to be served personally by one of its signatories, upon the Collector having jurisdiction over the Kshettra Panchayat. 30. All the above ingredients are to be found in the notice served upon the Collector in person and therefore, the impugned order which is at best hyper technical is not liable to be affirmed. The form provided to the Schedule to the Rules Regarding No-Confidence Motion of U.P. Kshettra Panchayat Pramukh or Up-Pramukh is in fact a summary of the requirements specified in sub-section (2) of Section 15 and is for the convenience of the Collector and has been held to be only directory in Arti (supra). The impugned order therefore, is unsustainable as long as the requirements under Section 15(2) have been substantially complied with in the notice expressing intention to bring a no-confidence motion. 31. Accordingly, we allow the writ petition and set aside the impugned order dated 29.09.2024 passed by the District Magistrate, Chandauli and direct him to proceed in accordance with sub-section (3) of Section 15 of the Act, forthwith.