Court No. - 29
Case :- WRIT - C No. - 22963 of 2019
Petitioner :- Smt. Sarita Yadav
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Ram Dayal Tiwari,Sri M.D. Singh (Sr. Adv.)
Counsel for Respondent :- C.S.C.,Shiv Avtar Sharma
Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.
Heard Sri M.D. Singh "Shekhar", Senior Counsel assisted by Sri R.D. Tiwari, learned counsel for the petitioner, learned Standing Counsel and Sri Shiv Avtar Sharma, learned counsel for the respondents.
The petitioner is an elected "Adhyaksh" of Zila Panchayat, Lalitpur. The said zila panchayat has 21 members. Fifteen members allegedly tabled a written notice for moving a motion of no confidence in petitioner on 13.06.2019 before the District Magistrate. The District Magistrate on the same very day issued a notice fixing 29.06.2019 for the meeting to consider the motion of no confidence. The meeting took place as scheduled in the presence of Civil Judge, Senior Division, Lalitpur as the Presiding Officer. According to report of the Presiding Officer, the motion was carried out by 15:6 votes.
The aforesaid resolution dated 29.06.2019 expressing motion of no confidence in the petitioner has been impugned in this petition on three grounds viz. the District Magistrate had not given 15 days clear notice, secrecy of votes was not maintained and that some of the lady members casting their votes could not read the words "no" or "yes" written on the ballot papers before casting their votes.
Section 28 (3) of the Uttar Pradesh Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (in short "Adhiniyam") envisages that on a written notice of intention to make motion of no confidence, the Collector shall give notice to the elected members of not less than 15 days for holding the meeting for its consideration.
The petitioner in the writ petition herself admits that the written notice of the intention to make a motion of no confidence was submitted by the members to the Collector on 13.06.2019 and that on the said date itself, the Collector issued notice fixing 29.06.2019 as the date of the meeting. This very fact clearly indicates that 15 days clear notice was given to the members.
The date of giving notice and the date of holding meeting are the relevant dates for computing the 15 days' period of notice and not the date when the members receive the notice.
The Rules framed under Adhiniyam provide the form in which a notice is required to be given and the said Rules specifically provide that the notice shall be sent by registered post to every member at his ordinary place of residence and that it shall also be published by affixation of a copy thereof on the notice board of the office of the zila panchayat.
The use of the words that the notice shall be sent by registered post indicates sending of the notice within time is necessary rather than its service.
In Smt. Nisha Yadav Vs. State of U.P. and others, 2019 (6) ADJ 490 (DB) (LB), a Division Bench of this Court in considering similar provisions of Section 15 (3) (2) of the Adhiniyam in relation to no confidence motion against the Pramukh held that where there is substantial compliance of the provisions regarding the notice for convening the meeting, the proceedings of the meeting would not be vitiated for any technical reason in that regard.
In view of the above, as there is substantial compliance of the above provision the argument that 15 days notice has no substance and stands rejected.
Insofar as secrecy of ballot paper is concerned, no doubt, the Presiding Officer was supposed to make arrangements to ensure the secrecy of ballots in terms of Rule 4 of Uttar Pradesh Zila Panchayats (Voting of Motions of No Confidence) Rules, 1964, but mere allegation that the secrecy was not maintained and that the members in casting the votes have shown their ballot papers cannot be sufficient enough to hold that the secrecy was not maintained when there is no such mention in the report of the Presiding Officer.
There is no averment that the Presiding Officer has failed to make arrangements ensuring the secrecy of the ballots. Therefore, the decision of Rekha Singh Vs. State of U.P. and others (2019 (4) ADJ 269 (DB)) is of no help to the petitioner.
The issue as to whether the secrecy of ballot papers was violated or not is a question of fact to be decided on the basis of the evidence of the parties which is not possible in exercise of powers of judicial review under Article 226 of the Constitution of India and that recourse to the civil remedy is more appropriate.
The submission that some of the lady members were unable to understand what was written on the ballot papers so as to enable them to cast their votes properly does not lie in the mouth of the petitioner. The petitioner cannot be accepted to know what actually weighed in the minds of the said lady members. None of them have come forward to disclose the said fact to the petitioner or to the Court. Therefore, the averment of the petitioner in this regard is without any basis.
Moreover, it is again a disputed question of fact which cannot be considered and adjudicated in exercise of discretionary jurisdiction.
In view of the aforesaid facts and circumstances, in our opinion, there is no substance in the challenge to the motion of no confidence passed against the petitioner.
The writ petition, as such, is devoid of merits and is dismissed. Order Date :- 25.7.2019 Nirmal Sinha