UMA NATH SINGH, J. - (1.) THIS review petition arises out of the judgment and order dated 05.02.2013 passed in Writ Petition No.9654 (MB) of 2012, filed by the review petitioner which was dismissed in view of the Enquiry report submitted by the learned Additional District Judge, Sitapur, with findings that out total 37 Members, who were alleged to have signed the resolution for bringing ''No Confidence', signatures of 31 Members are genuine.
(2.) THE brief facts giving rise to filing of this review petition are that the petitioner was duly elected as Member of the Zila Panchayat, Sitapur, along with 61 other Members and in terms of Article 243C (5) (b) and Section 19 of the U.P. Kshettra Panchayat and Zila Panchayat, 1961, (for short, ''the Act of 1961') was also elected as the Chairperson/Adhyaksh of the Zila Panchayat from amongst the elected Members. As per the averments of the petition, on being elected as Chairperson/ Adhyaksh, the petitioner was administered the oath of office on 14.01.2011 and therefore the term of the petitioner being coterminous with that of the term of the Panchayat was to come to an end on 13.01.2016. However, in terms of Section 28 of the Act of 1961, the Motion of No Confidence against the petitioner was initiated on the basis of alleged forged signatures of certain Members of the Zila Panchayat. It is the case of petitioner that the Members owing allegiance to the Samajwadi Party led by Smt. Madhu Gupta, w/o Shri Hari Om Gupta, were not able to collect any signature for the initiation of the Motion, and therefore, appended forged signatures of several Members on the notice of intent to move the Motion of No Confidence. These forged signatures were used to induce other members to join for giving the notice to move the Motion of No Confidence. The petitioner states that the very initiation of the Motion was a fraud on the system and against the settled democratic principles as in case, the contesting respondent, Mrs. Madhu Gupta, and her supporters had the requisite number then there was no need for forging the signatures of several Members, which being the act of forgery itself goes to show that the entire process of initiation of the Motion was invalid and illegal, and therefore, on the fact being established that the signatures were forged, the notice was liable to be struck down and in case Section 28 not being hit by Article 243N a fresh notice could only be initiated in terms of Section 29 after expiry of period of one year. Under the circumstances, according to the petitioner, this Court while entertaining the writ petition, at the very out set, required the matter of signatures being enquired into by the learned District Judge himself or through an officer, subordinate to him, not below the rank of Additional District Judge. Pursuant thereto, from the enquiry it came out that several signatures in the Motion were forged, however, this Court took a view that as the requisite number of Members to carry the Motion was 31 and the 31 signatures were genuine, as such, declined to delve further into the matter of forgery and dismissed the petition. It is also an averment that the petitioner had, inter alia, also pleaded in the Writ Petition that in terms of Article 243N, the provisions of Section 28 have been rendered otiose, for, (i) no fresh enactment was brought in by the State Legislature, and (ii) that the provisions thereof whereunder the No Confidence Motion can be initiated, is inconsistent with the constitutional scheme which does not comprehend the removal of Adhyaksh of Zila Panchayat, in mid term. Thus, the No Confidence Motion in question otherwise also can not be permitted to be carried. According to the petitioner in view of the dismissal of the writ petition on the basis of enquiry report, the aforesaid question of law was also not considered. Feeling aggrieved from the judgment and order dated 05.02.2013 passed by this Court in Writ Petition No.9654 (MB) of 2012, the petitioner filed Special Leave Petition (SLP) before Hon'ble the Supreme Court bearing SLP No.8542 of 2013 which was dismissed with certain observations asking the petitioner to file a review instead of the Special Leave Petition. According to the petitioner, in terms of the aforesaid order, Hon'ble the Apex Court was pleased to direct her to file review petition before this Court in order to seek indulgence and to enable the petitioner to get an opportunity to rebut the enquiry report submitted before this Court under its order, and also to urge that in view of the provisions of Article 243C of the Constitution of India and there being no provision in the Panchayat election for initiation of No Confidence Motion, the provisions of Section 28 of the Act of 1961 can not continue to operate in conflict with the aforesaid constitutional provision. It is also the averment on behalf of the petitioner that the learned Additional District Judge has only taken the statements of the Members of the Zila Panchayat and on their such statements had reported the signatures to be genuine, whereas the actual signatures ought to have been verified either by himself or after taking into account the expert opinion. The mere statements of the Members could not have been taken to be sufficient to arrive at the conclusion regarding the verification of signatures. The signatures of other Members have also been doubted in a very casual and cursory manner and the Additional District Judge, while reporting the matter of forged signatures the enquiry officer should have also enquired to find out as to who was responsible for such forgery so that appropriate action could be ordered by this Court. It is a further averment that the intent of the Constitutional scheme as spelt out in Article 243C (2) of the Constitution requires the election to the seats in the Panchayat to be filled by the persons, chosen by way of direct election from the territorial constituencies in the Panchayat area and Article 243C(5) provides for the election of the Chairperson of the Panchayat from amongst the elected Members. Thus, it does not contemplate removal of the Adhyaksh, so chosen by way of bringing No Confidence Motion. It is reiterated that Section 28 of the Act of 1961 being inconsistent with the Constitutional scheme no longer continues to be valid after expiry of one year from the insertion of 73rd amendment in the Constitution.
(3.) IN the preliminary objection regarding maintainability of the review petition filed on affidavit sworn by respondent no.5, Smt. Madhu Gupta, she has asserted that during the course of hearing of the writ petition both at the interim as well as final stage no any submission was made by learned counsel for the petitioner in respect of the constitutional validity of Section 28 of the Act of 1961 or the import of Article 243N of the Constitution of India. Even no request was made on behalf of the petitioner for providing opportunity to file objection to the enquiry report submitted by the learned Additional District Judge. Rather, learned senior counsel for the petitioner made a categorical statement at bar that in view of the fact that the report had been submitted by a senior judicial officer, there is no occasion to file any objection thereto. Paragraphs 10 and 11 of the Preliminary Objection on affidavit on reproduction read as: "10. That during the course of hearing the writ petition both at the interim or final stage no submissions were made by the counsel for the petitioner in respect of the constitutional validity of Section 28 or the import of Article 243N of the Constitution of India. 11.That no such request was made by the petitioner for providing opportunity to file objections to the enquiry report submitted by the Additional District Judge. It is stated that the counsel for the petitioner made a categorical statement at bar that in view of the fact that the report had been submitted by a Senior Judicial Officer their arose no occasion to file any objection to it." ;