Guddi (Smt.) vs State of U.P. and Others

Anjani Kumar, J.—This writ petition was heard by me on 21st June, 2004 and after hearing learned Counsel for the parties, the writ petition was dismissed for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.

The petitioner, who is elected Upadhyaksha (Vice-President) of Zila Panchayat, Firbzabad and was officiating as Adhyaksha under the provision of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred as "Adhiniyam"), because the then Adhyaksha ceased to be the member of the Zila Panchayat u/s 27-A of the Adhiniyam on being elected as member of the legislative Assembly Uttar Pradesh from Shikohabad constituency, Firozabad.

From the narration of the facts in the writ petition which are admitted, it appears that out of twenty-four members of the Zila Panchayat, seventeen members signed requisition and presented the same as provided u/s 28 of the Adhiniyam before the District Magistrate/Collector on 29th May, 2004. The District Magistrate by his order dated 31st May, 2004 directed the Upper Mukhya Adhikari, Zila Panchayat, Firozabad referring the aforesaid requisition to submit a report on the basis of admitted signatures of the members after verifying the same from the records about the genuineness or otherwise of the signatures of the members, who are the signatories on the requisition of ''No Confidence Motion''. On receipt of the report from the Upper Mukhya Adhikari, Zila Panchayat, Firozabad who found that the signatures on the requisition of motion of no confidence are genuine and submitted the report accordingly to the Collector. The Collector by the order dated 5th June, 2004 directed the notice to be issued to all the members to attend the meeting scheduled to be held on 25th June, 2004 for consideration of the motion of no confidence against the petitioner i.e., the Upadhyaksha (Vice President) working as officiating Adhyaksha. It is this notice and convening of the meeting scheduled on 25th June, 2004, which are under challenge by means of present writ petition, which the petitioner has filed with the following prayers :--

"(i) issue a writ, order or direction in the nature certiorari quashing the impugned notice dated 5.6.2004, issued by respondent No. 2 for converting the alleged meeting of ''No Confidence Motion'' against petitioner on 25.6.2004 (Annexure-5).

(ii) issue a writ order or direction in the nature of mandamus directing the respondents not to interfere with the functioning of petitioner as Upadhyaksha/officiating Adhyaksha, Zila Panchayat, Firozabad on the basis of impugned alleged ''No Confidence Motion'' notice dated 5.6.2004, issued by respondent No. 2.

(iii) issue any other suitable order or direction which this Hon''ble Court may deem fit and proper in the present circumstances of the case.

(iv) to award the cost of the writ petition in favor of petitioner."

It is asserted by the petitioner in the writ petition that the notice dated 5th June, 2004, which has been annexed as Annexure-5 to the writ petition is not served upon him. On this undisputed fact, the petitioner has sought quashing of the said notice dated 5th June, 2004.

In view of the law laid down by the Apex Court reported in Surinder Singh Vs. Central Government and Others, , the relevant Paragraph 9, which is reproduced below :--

"9. The second question relates to the validity of the order of Shri Rajni Kant the officer to whom power u/s 33 was delegated extending time to enable the appellant to deposit the auction sale money. Sri Rajni Kant by his order dated 6.2.70 exercising the delegated power of the Central Government u/s 33 of the Act, set aside the order canceling the auction sale held in August, 1959 and permitted the appellant to deposit the balance of the purchase money within fifteen days from the date of the order with a default clause that on his failure his petition would stand dismissed. In accordance with that order appellant was entitled to deposit the money till February 21, 1970. It appears that on appellants request the office prepared a challan which was valid up to February 20, 1970. The appellant went to the State Bank on February 20, 1970 to make the deposit but due to rush he could not make the deposit. On his application Shri Rajni Kant extended the time permitting the deposit by 28.2.1970 as a result of which a fresh challan was prepared which was valid upto 28.2.1970 and within that period appellant deposited the balance purchase money. The subsequent order of Shri Rajni Kant was challenged by the respondents and the High Court has quashed that order although that order was not before the High Court as none of the parties filed the same. The respondents who had challenged the order of Shri Rajni Kant should have filed a copy of the order. In the absence of the order under challenge the High Court could not quash the same. Normally whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons, which may have impelled the authority to pass the order. It is, therefore, improper to quash an order, which is not produced before the High Court in a proceeding under Article 226 of the Constitution. The order of the High Court could not be set aside for this reason, but we think it necessary to consider the merits also."

Since the petitioner himself has annexed the notice which is sought to be quashed, he cannot be allowed to submit that notice has not been served upon the petitioner. A careful reading of Paragraph 9 of the aforesaid judgment clearly demonstrates that the High Court cannot quash the order, which is not before him, but as the petitioner himself has annexed the notice dated 5th June, 2004 as Annexure-''5'' to the writ petition at least the service of the notice can be presumed on the petitioner when he has himself annexed the same in this writ petition as Annexure-''5'' to the writ petition, therefore, the statement made by the petitioner in the writ petition that the notice has not been served on him, cannot be believed.

There is yet another aspect of the matter that in view of the law laid down by the Five Judges Full Bench of this Court reported in Gyan Singh Vs. The District Magistrate, Bijnor and Others, , in which in Paragraph 15 it has been held that :--

"We however, do not agree with the observations of the learned Judge that the actual service of the notice of the meeting should be proved. It would be sufficient compliance with the provisions of Section 87-A(3) if notice is sent to the members and the members acquire knowledge about the time, date and place of the meeting."

Since the petitioner himself has annexed the aforesaid notice dated 5th June, 2004, the objection that the notice has not been served upon the petitioner is overruled.

Learned Counsel appearing on behalf of the petitioner relying upon the provisions of Sections 28(2) and (3) of the Adhiniyam, which is reproduced below submitted that as contemplated under Sub-section (2) which prescribed the procedure to be followed by the Collector on receipt of the same the Collector shall 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 give to the elected members notice of not less than fifteen days of such meeting in such manner as may be prescribed :

"28. Motion of no-confidence in Adhyaksha [or Up-Adhyaksha].--(1) A motion expressing want of confidence in the Adhyaksha [or the Up-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."

Learned Counsel appearing on behalf of the petitioner submitted that the Court must read the period of notice as thirty days, which according to him, is still misreading of the Statutory provision in view of the Gyan Singh''s case (supra) and the case reported in Jai Charan Lal Vs. State of U.P. and Others, , which deals with the similar controversy arising out of U.P. Municipalities Act (2 of 1916) Section 87-A(3), which is pari materia of Section 28 of the Adhiniyam aforesaid. In Paragraph 3 the Apex Court rules :--

"(3) In this appeal the question has been raised that the meeting itself was contrary to the provisions of Section 87-A of the U.P. Municipalities Act, and the resolution, therefore, being ultra vires and illegal was void. This argument is based upon the procedure, which is laid down in Section 87-A of the Act. We may now refer to those provisions. Section 87-A deals with motion of non-confidence against the President. It begins by stating that subject to the provisions of section such a motion shall only be made in accordance with the procedure laid down in the section. Sub-section (2) requires that a written notice of intention to make a motion of non-confidence on the President must be signed by such number of members of the Board as constitute not less than one-half of the total strength of the Board and must be accompanied by a copy of the motion which it is proposed to make and should be delivered in person by any two of the members signing the notice to the District Magistrate. This was done Sub-sections (3), (4), (5) and (6) then provide as follows :--

(3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the Board on the date and at the time appointed by him which shall not be earlier then thirty and not later than thirty-five days from the date on which the notice under Sub-section (2) was delivered to him. He shall send by registered post not less than 7 clear date before the date of the meeting, a notice of such meeting and of the date and time appointed, therefore, to every member of the Board at his place of residence and shall at the time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice.

(4) The District Magistrate shall arrange with the District Judge for a stipendiary Civil Judicial Officer to preside at the meeting convened under this section and no other person shall preside thereat. If within half an hour from the time appointed for the meeting the Judicial Officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and the time to be appointed and notified to the members by that officers under Sub-section (5).

(5) If the Judicial Officer is unable to preside at the meeting, he may, after recording his reasons adjourned the meeting to such other date and time as he may appoint, but not later than fifteen days from the date appointed for the meeting under Sub-section (3). He shall without delay communicate in writing to the District Magistrate the adjournment of the meeting. It shall not be necessary to send notice of the date and time of the adjourned meeting to the members individually but the District Magistrate shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in Sub-section (3).

(6) Save as provided in Sub-sections (4) and (5) a meeting convened for the purpose of considering a motion under this section shall not for any reason be adjourned."

I do not see any reason to read any other way of reading the similar provision of the word used in Section 28(3) of the Adhiniyam except as ruled by Apex Court. There is absolutely no material as to when the notice was served to the members as no other, member has come upto this Court with the same allegation, therefore, it is presumed that the notice must have been issued on the date which is dated 5th June, 2004 or a day later and even it is presumed to have been sent by the Collector on 6th June, 2004, since the date of meeting is fixed as 25th June, 2004, there is clear fifteen days notice and it is in full compliance of the provisions of Section 28 of the Adhiniyam aforesaid.

Learned Counsel appearing on behalf of the petitioner tries to argued that in view of the subsequent affidavits filed by the members, this Court to presume that the members were coerced to sign on the notice but if that be so, the members if they are so desirous in retaining the petitioner Upadhyaksha; there is ample opportunity in the meting which is scheduled to held on 25th June, 2004 of their members and they will not cast their votes for the motion. Since all the arguments advanced on behalf of the petitioners have been rejected. I do not find any merit in this case. The writ petition has no force and is accordingly dismissed. However, the parties shall bear their own cost.