High Court
Case Details
1 Reserved on 20.1.2023 Delivered on 9.2.2023 AFR Court No. - 39 Case :- WRIT - C No. - 32101 of 2022 Petitioner :- Smt Jayantra Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ashok Kumar Tripathi,Rahul Agarwal Counsel for Respondent :- C.S.C.,Aditiya Kumar Singh,Amit Kumar Singh,Tarun Agrawal Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vipin Chandra Dixit,J. 1. Heard Sri Rahul Agarwal and Sri Ashok Kumar Tripathi learned counsel for the petitioner, Sri Ajit Kumar Singh learned Additional Advocate General assisted by Sri Sudhanshu Srivastava learned Additional Chief Standing Counsel for State-respondents and Sri Ashok Khare learned Senior Counsel assisted by Sri Aditya Kumar Singh learned Counsel for respondent No. 6. 2. This writ petitioner is challenging the 'No-confidence motion' carried out against her in the meeting held on 30.9.2022 as also the resultant notification issued by the Election Commission of India notifying the vacancy of the post of Block Pramukh/Pramukh, Kshettra Panchayat Haisar Bazar, District Sant Kabir Nagar. 3. The relevant facts to determine the controversy at hands are that a notice to bring 'No-confidence' motion against the petitioner herein, signed by 76 members out of total 99 members of the constituency namely Kshettra Panchayat Haisar Bazar was received by the District Magistrate, Sant Kabir Nagar. The District Magistrate by a notice dated 23.8.2022 called a meeting to consider 'No-confidence motion' on 8.9.2022. It is submitted by the learned counsel for the petitioner that the said notices were dispatched on 24.8.2022 by registered post. The period between the date of dispatch and the schedule date of meeting being less than 15 days, 'No-confidence motion' could not have been carried out on 2 the date fixed, i.e. 8.9.2022 in view of mandatory provisions of Section 15(3)(ii) of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as "the Act, 1961”). 4. It is an admitted fact of the matter that the meeting could not be convened on 8.9.2022. It was adjourned on account of an emergency leave applied by the Sub-Divisional Officer, Dhanghata, District Sant Kabir Nagar who was to preside over the meeting. The emergency leave application dated 6.9.2022 was moved by the Presiding Officer due to ill health of his mother with the prayer that he may be permitted to leave the station to go to District Meerut. Another leave application dated 7.9.2022 was moved by the Presiding Officer for extension of leave till 11.9.2022 due to prolonged illness of his mother. The leave was duly granted to the Sub-Divisional Officer, Dhanghata, Sant Kabir Nagar namely the Presiding Officer as per the service rules, by the competent Authority. The District Magistrate, Sant Kabir Nagar has issued an office order dated 7.9.2022 intimating that the meeting of 'No-confidence' scheduled on 8.9.2022 could not be held due to unavoidable circumstances and had been postponed. Further, the Sub-Divisional Officer, Dhanghata/the Presiding Officer intimated the District Magistrate, Sant Kabir Nagar by the letter dated 15.9.2022 that the next date of the meeting was fixed on 30th September, 2022 to be held at 11:30 AM in the meeting hall in the office of Kshettra Panchayat, Haisar Bazar. The intimation of the date fixed of the meeting had been given to all the members, Kshettra Panchayat and the minutes of the meeting dated 30.9.2022, the result of the voting, shows that out of total 99 members, 95 had participated in the meeting and exercised their franchise. Out of 95 votes, 72 were in favour of ‘No-confidence motion’ and hence it was passed with the strength of more than 50% of the members present and voting.
Legal Reasoning
this Court in the order dated 13.9.2022. The Presiding Officer himself failed to follow the mandatory procedure of adjournment. The contention is that the Executive Authorities namely the Presiding Officer and the Collector had given the provisions of Section 15 to a toss to buy time to hold the meeting as an adjourned meeting. The result of such an illegally convened meeting cannot be sustained in the eyes of law. 6. The submission, thus, is that since the entire process of carrying out 'No-confidence motion' in the meeting held on 30.9.2022 was per se illegal. The consequent vacancy and the notification issued by the State Election Commission, U.P., Lucknow dated 14.10.2022 for the post of Pramukh Kshettra Panchayat are also liable to be set aside. The submission is that the vacancy cannot be presumed to be validly existing if the meeting itself was invalid and the consequential 'No-confidence motion' is illegal, as any consequential election is dependent upon the result of the 'No-confidence motion'. 7. Sri Ashok Khare learned Senior Counsel assisted by Sri Aditya Kumar Singh learned Advocate for respondent No. 6 has challenged the
Arguments
There is no dispute about the above noted facts. Sri Rahul Agarwal learned Advocate appearing for the petitioner, however, argued that the initial notice dated 23.8.2022 fixing 8.9.2022 for the meeting was 3 dispatched on 24.8.2022 and hence the mandatory requirement of 15 days of intimation of the date fixed for meeting had not been fulfilled. Two terminal days, i.e. the first and the last date, i.e. the date of dispatch of notice and the date fixed for meeting have to be excluded from the time to be reckoned for compliance of Sub-Section (3) of clause (ii) of Section 15 of the Act, 1961. Reliance is placed on the decisions of this Court in Yadu Nath Pandey vs. District Panchayat Raj Officer1; Kamla Devi vs. State of U.P. and others2; Kamal Sharma vs. State of U.P. and other3; Kiran Singh vs. State of U.P. and others4; Surendra Kumar Yadav vs. State of U.P. and others5; Adesh Singh Yadav vs. Collector Bareilly6 and Niyazuddin vs. State of U.P. and others7 to assert that 15 days clear notice is mandatory in terms of Section 15(3)(ii) and non-compliance of the said provision would vitiate the proceeding. 5. The contention is that since the initial notice dated 23.8.2022 (dispatched on 24.8.2022) was bad in law, the subsequent adjournment of meeting and the motion carried out on 30.9.2022 within the extended time provided under Sub-Section (4-B) of Section 15 would have to be held bad in law. The entire proceeding being in contravention of the provisions of Section 15 of the Act, 1961. It is argued that the provisions of Section 15(3)(ii) are mandatory in nature and any violation thereof is not curable defect and cannot be rectified by adjournment of the meeting scheduled on 8.9.2022. Moreover, as per Sub-Section (4-B), the Officer who is to preside at such meeting is to record his reasons for adjournment of the meeting, if he is unable to preside at such meeting. While adjourning such meeting, he has to fix the date and time which shall not be later than 25 days for the 1 2 3 4 5 6 7 1986 UPLBEC 62 2014 (2) ADJ 327 2013 SCC Online All 8448 2017 (5) AWC 5096 2017 (3) AWC 2367 (LB) 2020 (5) ADJ 418 2020 (1) AWC 794 4 date appointed for such meeting. The requirement of Sub-Section (4-B), thus, is that only the Presiding Officer himself can adjourn the scheduled meeting by fixing date and time of the adjourned meeting recording reasons for his inability to preside at such meeting. The intimation by the Collector of the next meeting as per Sub-Section (4-B) of Section 15 is, thus, followed by the intimation given by the Presiding Officer of the date and time of the adjourned meeting. The recording of reasons and fixing date and time of the adjourned meeting are simultaneous acts to be performed by the Presiding Officer. The deferment of meeting on 7.9.2022 with the office order issued by the District Magistrate, thus, is in contravention of the provisions of Section 4-B of the Act, 1961. Further the meeting dated 30.9.2022 has been held under the directions issued by
Decision
maintainability of the writ petition with the assertion that in view of the second prayer made in the present writ petition, challenging the 5 notification issued by the State Election Commission with the election of respondent no. 6, the only remedy before the petitioner is to file an election petition as issue of validity of the election can be raised only by way of an election petition in view of the bar under Article 243-O read with Article 243ZG of the Constitution of India. The writ petition is, thus, liable to be dismissed as not maintainable. Reliance is placed on the decisions of the Apex Court in Hari Shankar Jain vs. Sonia Gandhi8; Amar Nath Jaiswal vs. State of U.P. and others9 and of this Court in Aijaz Ahmad vs. Niyaz Ahmad and others10; Sardar Gyan Singh vs. District Magistrate Bijnore and others11 and Akhilesh Kumar Katiyar vs. State of U.P. and others12 to substantiate the said assertion. 8. Learned Standing Counsel for the State respondents, however, has relied upon the averments in the personal affidavit of the District Magistrate, Sant Kabir Nagar to assert that there is no infirmity in the process of carrying out 'No-confidence motion'. The meeting was validly held on 30.9.2022 and the fact that 95 out of 99 members had participated in the meeting prove that information giving adequate time had been given to all the members. With regard to the meeting scheduled on 8.9.2022, it is submitted that the District Magistrate, Sant Kabir Nagar on receipt of the notice of intention to move the motion of 'No-confidence' against the petitioner, signed by 76 members of Kshettra Panchayat along with the notary affidavit on 22.8.2022, had formed a Committee comprising of three officers for scrutiny/verification of signatures/thumb impressions on the said written notice. All 76 members of Kshettra Panchayat Haisar Bazar who signed the written notice of intent dated 22.8.2022 were asked to present their credible and attested identity cards for verification of their signatures on the notice as also the affidavits filed 2008 (1) SCC 233 1992 SCC Online 8 9 10 1975 SCC Online All 111 11 1975 SCC Online All 144 12 2012 SCC Online All 4282 6 by them, on 23.8.2022 at about 3:00 PM. On prima facie satisfaction of the signatures/thumb impressions of 76 members, three Member Committee recorded satisfaction of matching of signatures on the written notice of intent dated 22.8.2022 and the notary affidavits. The District Magistrate then directed the Sub-Divisional Officer, Dhanghata, Sant Kabir Nagar to preside at the meeting scheduled on 8.9.2020 at 11:30 AM at the designated place mentioned therein by issuing a letter dated 23rd August, 2022. Simultaneously, notices were issued to 99 members on 23rd August, 2022 giving them intimation of the date fixed for motion of 'No confidence' on 8.9.2022 at 11:00 AM and the designated place of the meeting. The Block Development Officer was directed to serve notice to all 99 members and submit a report. Vide letter dated 24.8.2022, the Block Development Authority had submitted a report that out of 99 members, 78 had received the notice and out of remaining 21, the notice was pasted at the conspicuous places of the house of 15 members. The remaining members had assured to receive notice within one or two days. It is submitted by the learned Standing Counsel that adjournment of the meeting scheduled on 8.9.2022 was on account of unavoidable circumstances faced by the Presiding Officer and on the intimation given by the Presiding Officer, the District Magistrate had issued the Office Order dated 7.9.2022 intimating the reason for adjournment of the date fixed. The intimation about the date and time fixed for the meeting as 30.9.2022 at 11:30 AM was sent by the Presiding Officer to the District Magistrate pursuant to which the notices were sent and received by the members. No infirmity, therefore, can be attached to the 'No-confidence motion' carried out on 30.9.2022. 9. Dealing with the above submissions of the learned counsels for the parties, we are required to first deal with the submissions of Sri Ashok Khare learned Senior Advocate for the respondent no. 6 about the maintainability of the writ petition, on the plea that the writ petition 7 challenging the no confidence motion cannot be entertained as after election as against the vacancy, the only remedy before the petitioner is to challenge the election petition. 10. Dealing with this submission, suffice it to note that the issue raised in the present writ petition is about the validity of the 'No-confidence motion' carried out in the meeting held on 30.9.2022 against the petitioner herein. As regards the validity of the same being in contravention of the provisions of Section 15 of the Act, 1961, the issue of resultant vacancy being dependent upon the 'No-confidence motion', cannot be subject matter of election petition. Suffice it to note that the vacancy cannot be presumed to be existing if the meeting itself was invalid and the consequent 'No-confidence motion' is illegal. The consequential election against the resultant vacancy if found illegal, would itself fall. The vacancy in the present case undoubtedly occurred on account of the motion having been passed on the strength of a meeting, validity of which is subject matter of challenge herein. The filling up of such a vacancy is dependent upon the availability of the vacancy itself, which arises out of the 'No-confidence motion'. In our opinion, the question of validity of 'No-confidence motion' or the consequent vacancy occurring after the meeting held on 30.9.2022 cannot be subject matter of an election petition. Further on the date when the present writ petition has been filed, only the notification dated 14.10.2022 was issued by the State Election Commission and the date fixed for voting was 21st October, 2022. The lis before the Court was about the validity of the 'No-confidence motion' and notification of the consequent vacancy by the State Election Commission. In case, the challenge raised by the petitioner to the validity of meeting convened on 30.8.2022 is sustained being in violation of the mandatory provisions of Section 15(3)(ii) of the Act, the resolution passed on said date has to be quashed. The result is that there would be no removal of the petitioner and, thus, no vacancy. The subsequent notification dated 14.10.2022 has to fall on its own. The view taken by us is supported with 8 the decision of the Division Bench of this Court in Kamla Devi (supra). The objection as to the maintainability of the writ petition, for invoking jurisdiction under Article 226 of the Constitution of India, thus, is liable to be turned down. 11. Coming on the merits of the instant case, in order to deal with the contentions of the learned counsel for the petitioner, we are required to look to the scheme of the Act. The procedure for carrying out 'No-confidence motion' provided under Section 15 of the Act, 1961. 12. Before adverting to the provisions of the Act, we may note that to decide the question as to whether the statutory provisions are mandatory or directory in nature, no universal rule can be laid down. The use of the word “shall” or “may” is also not a decisive factor in determining this question. In considering the question, the purpose and the object of the provision as contained in the statute, the setting and the context in which the provisions occur and the purpose which is sought to be achieved by the provisions and the legislative intent in making the provision are necessary to be considered. [Reference State of U.P. vs. Manbodhan Lal Srivastava13] In Raza Buland Sugar Co. Ltd. Rampur vs. the Municipal Board, Rampur14, while considering this question at length, certain principles were laid down which are relevant to be noted as under:- “Para 7 The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the word "shall" as in the present case-is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the; provision is read one way or the other, the relation of the particular provision to other