Court No. - 32
Case :- WRIT - C No. - 38677 of 2018
Petitioner :- Khursheed Fatma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Atiqur Rahman Siddiqui,Rakesh Pande
Counsel for Respondent :- C.S.C.,Pawan Singh Pundir
Hon'ble Shashi Kant Gupta,J. Hon'ble Mrs. Manju Rani Chauhan,J.
This writ petition has been filed , inter alia, for the following relief:
"Issue a writ order or direction in the nature of certiorari quashing the impugned notice dated 16.11.2018 Annexure no. 6 to the writ petition issued by Collector,Muzaffar Nagar fixing 3.12.2018 for considering motion of no confidence against the petitioner."
It is relevant to note that a written notice dated 16.4.2018 together with a copy of the proposed motion was delivered to the Collector under section 15 (2) of Uttar Pradesh Kshetra Panchayat and Zila Panchayat Act (In short the "Act") by the members of the Kshetra Panchayat expressing want of confidence in the petitioner, who is a Block Pramukh of Kshetra Panchayat . The Sub Divisional Magistrate issued a notice dated 30.4.2018 fixing 15.5.2018 for the consideration of no confidence motion. The said notice was challenged by the petitioner by filing a writ petition, being Writ-C No. 16757 of 2018, inter alia, on the ground that the S.D.M. had no jurisdiction to issue notice or convene the meeting under section 15(3) of the Act for the consideration of no confidence motion. After hearing the parties, this court by interim order dated 14.5.2018 stayed the proceedings of no confidence motion. Subsequently, by order dated 27.10.2018, the writ petition was allowed by this court ,whereby the notice dated 30.4.2018 was quashed granting liberty to the Collector to re-schedule the meeting in accordance with law by giving a fresh notice for the same, if it is permissible in law and, to the members to bring a fresh no confidence motion, as the case may be. Consequently, the Collector proceeded to issue a fresh notice on 16.11.2018 fixing 3.12.2018 for considering no confidence motion against the petitioner.
Learned counsel for the petitioner submitted that the provision contained under Section 15(3) (ii) of the Act provides for 15 days' clear notice for calling the meeting to consider no confidence motion. The said condition has not been complied with. He further submitted that notice was not even pasted on the notice board of Kshetra Panchayat. He further submits that the impugned notice dated 16.11.2018 fixing 3.12.2018 to convene a meeting for the consideration of no confidence motion has been issued in pursuance of written notice delivered on 16.4.2018 alongwith the copy of proposed motion of No Confidence. It was further submitted that the Explanation appended to sub section ( 3) of section 15 of the Act would not apply in the present case as the written notice together with a copy of the proposed motion under section 15 (2) of the Act was not challenged in the earlier writ petition.
According to the learned counsel for the petitioner, the Explanation as appended to Section 15(3) (ii) of the Act would be applicable only when the written notice together with a copy of the proposed motion against the Pramukh of the Kshetra Panchayat is under challenge and not when the issuance of notice is challenged only on the ground of the jurisdiction. Thus, in nut shell , the argument of the learned counsel for the petitioner is that in the earlier writ petition legality of written notice delivered under section 15(2) of the Act was not challenged but the writ was filed merely on the ground of jurisdiction i.e. that the S.D.M. had no power to convene a meeting under section 15 (3) of the Act for the consideration of no confidence motion.
Learned Standing Counsel vehemently opposed the writ petition and submitted that the provision of section 15 (3) of the Act has been fully complied with by the Collector. He further submitted that the Collector has proceeded with the matter in terms of the earlier order passed by this court in the earlier writ petition No. 16757 of 2018, after following the procedure as provided under section 15 of the Act and as such he has rightly issued a fresh notice on 16.11.2018 for convening a meeting. It was further submitted that the said notice was also pasted on the notice board immediately on the next date of issuance of the said notice i.e. on 17. 11.2018 and apart from this, notice has also been sent to the members of the Kshetra Panchayat including the Pramukh (petitioner) through registered post . Thus, the provisions of section 15 of the Act were fully complied with while issuing the impugned notice.
Heard Mr. Rakesh Pandey, learned counsel for the petitioner, Mr. P.S. Pundir, learned counsel for the respondent no. 5, learned Standing Counsel and perused the record.
The main controversy before this court is as follows:
i. Whether the impugned notice dated 16.11.2018 (Annexure-6) issued by the Collector fixing 3.12.2018 for the consideration of no confidence motion against the petitioner is valid ?
(ii) whether the District Magistrate was justified in convening meeting on 3.12.2018 for the consideration of no confidence motion against the petitioner on the basis of earlier notice together with a copy of the proposed motion dated 16.4.2018
(iii) Whether 30 days' time for convening the meeting of no confidence motion as provided under sub section (3) of Section 15 of the Act stood expired when the impugned notice dated 16.11.2018 was issued ?
(iv) Whether Explanation as appended to Sub section (3) of Section 15 of the Act would be applicable in the present matter so as to exclude the period during which the interim order passed by this court was operating in the matter.
From perusal of the record, it transpires that earlier a writ petition, being writ C NO. 16757 of 2018, was filed against the issuance of notice dated 30.4.2018 issued by the S.D.M. for convening a meeting for the consideration of no confidence motion on the basis of a written notice accompanying a copy of the proposed motion.
This court after hearing the parties, granted an interim order staying the further proceedings to consider no confidence motion. Subsequently, the aforesaid writ petition was allowed by this court on 27.10.2018 with certain directions.
For ready reference, the operative portion of the said order dated 27.10.2018 is quoted below:
".......In view of the aforesaid facts and circumstances, the impugned notice dated 30.04.2018 is hereby quashed and liberty is given to the Collector to re-schedule the meeting in accordance with law and give afresh notice for the same, if it is permissible in law and to the members to bring afresh No Confidence Motion as the case may be.
The present writ petition is allowed with the above observations."
The contention of the learned counsel for the petitioner is that the provisions of section 15(3) (ii) has not been complied with as 15 days' clear notice was not given to the members of the Kshetra Panchayat before the meeting for the consideration of the no confidence motion was called for, therefore, no notice for convening the said meeting could have been issued. Further contention of the learned counsel for the petitioner was that the notice was not even pasted on the notice board .
It is relevant to note here that on earlier occasion, learned Standing Counsel was directed to produce relevant documents evidencing the fact with regard to pasting of notice on the notice board and in pursuance thereof, the learned Standing Counsel has produced a copy of the letter dated 28.11.2018 sent by Mr. Pawan Kumar, Zila Panchayat Raj Adhikari, Muzaffarnagart indicating therein that the notice dated 16.11.2018 fixing 3.12.2018 to convene meeting for the consideration of the no confidence motion was affixed on the notice board on 17.11.2018. The aforesaid document produced by the learned Standing Counsel clearly reveals that the impugned notice was pasted on the notice board. Thus, it can very safely be held that the impugned notice was pasted on the notice board on 17.11.2018 and there is no material on record to show that 15 days' clear notice was not given to the Members of Kshetra Panchayat before the meeting was called for as provided under section 15(3)(ii) of the Act.
The next submission of the learned counsel for the petitioner is that the impugned notice dated 16.11.2018 for convening meeting for the consideration of the no confidence motion on 3.12.2018 is in violation of the provisions contained under section 15(3) of the Act as 30 days' time for convening meeting for the consideration of no confidence motion as provided under sub section (3) (i) of Section 15 of the Act stood expired . Further contention of the learned counsel for the petitioner is that the Explanation appended to sub section ( 3) of Section 15 of the Act would not apply in the present case and the period during which the interim order was operating would not be excluded in computing the period of 30 days as provided in the said Explanation.
The basis of the aforesaid argument of the learned counsel for the petitioner was that in the earlier writ petition ( No. 16757 of 2018) written notice accompanying a copy of the proposed motion for no confidence was not challenged and that writ petition was filed merely on the ground that the S.D.M. had no jurisdiction to issue such notice for convening meeting for the consideration of the no confidence motion and it was only the Collector who was competent to issue any such notice. According to him, the Explanation appended to Section 15(3)of the Act would be applicable only when the writ petition would have been filed challenging the written notice accompanying with a copy of the proposed motion under Section 15(2) of the Act.
For ready reference Section 15 of the Act is quoted below:
" 15. Motion of non-confidence in Pramukh -
(1) A motion expressing want of confidence in the Pramukh or any [x x x] of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) [A written notice] of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of [elected members of the Kshettra 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 Kshettra Panchayat.
(3) The Collector shall thereupon :-
(i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra 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 member of the Kshettra Panchayat] notice of not less than fifteen days of such meeting in such manner as may be prescribed.
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 notices of the meeting to the members, shall be excluded."
We have very carefully perused the record of the case as well as the provisions of Section 15 of the Act and, accordingly, we are of the firm opinion that the argument of the learned counsel for the petitioner is wholly misconceived and has no substance. We have also carefully perused the record of the earlier writ petition filed by the petitioner to verify as to whether the validity of the written notice accompanying a copy of the proposed motion delivered to the District Magistrate was challenged or not and whether the writ petition was challenged only on the ground that the S.D.M. had no jurisdiction to issue notice under section 15(3) of the Act.
In this regard, perusal of the record of the earlier writ petition shows that the said writ petition was filed , inter alia, on the following grounds:
" I. Because notice of intention to move motion of no confidence in Form 1 was only signed by 4 members i.e. private respondents no. 6,7,8 and 9 whereas notice of intention to make motion in prescribed Form is required to be signed by at least ½ of total members of elected members of Kshetra Panchayat as such the notice itself was bad and invalid on account of fact that total strength of members of Kshetra Panchayt is 109 inclusive of Pramukh.
II. Because notice of intention to move motion of no confidence dated 16.4.2018 was invalid and against the provision of Section 15(2) of Uttar Pradesh Kshetra Panchayat and Zila Panchayat Act( hereinafter referred to as as " Act") insofar as said motion is signed by only four persons and was not signed by at least ½ of the total members of elected members of Kshetra Panchayat for the time being which was 109 as such no proceeding on the said proceeding could be drawn up against the petitioner.
V. Because the impugned notice dated 30.4.2018 is wholly illegal, arbitrary and against the mandatory provision of Section 15(3) (ii) of the Act insofar as even assuming that notice was dispatched on the date it was signed i.e. 30.4.2018 , the said notice does not give notice of not less than 15 days for meeting fixing 15.5.2018 insofar as date of issuance of notice and date of meeting is to be excluded in computing period of 15 days contemplated in section 15(3)II of the Act."
Perusal of the aforesaid grounds taken by the petitioner in the earlier writ petition, clearly reveals that apart from challenging the notice issued by the S.D.M. on the ground of jurisdiction, the petitioner had also challenged the validity of the notice dated 16.4.2018 delivered to the Collector accompanying a copy of the proposed motion . Thus, it can not be said that in the earlier writ petition, written notice delivered under section 15 of the Act was not challenged. Even otherwise also, we are of the firm opinion that while computing the period of 30 days as provided under section 15(3) (i) of the Act , the period during which the stay order was operating plus such further time as may be required in the issue of fresh notice of the meeting to the elected members , would be excluded while computing the period of 30 days. Even otherwise, It is not necessary that the Explanation would be applicable only when a written notice accompanying a copy of the proposed motion has also been challenged. Wording of the Explanation is very much clear and explicit and any other interpretation of the said Explanation contrary to it would be statutory violations.
Thus, in view of what has been discussed herein above, we do not see that any illegality or infirmity has been committed by the Collector in issuing the impugned notice dated 16.11.2018 fixing 3.12.2018 to convene meeting for the consideration of the no confidence motion.
Accordingly, the writ petition fails and the same is hereby dismissed.
Order Date :- 30.11.2018 MLK