ASHOK BHUSHAN, J. - (1.) THIS Full Bench has been constituted to answer the questions referred by two Division Benches, while hearing writ petition No. 29907 of 2012 and writ petition No. 46452 of 2012. The facts of both the writ petitions and the issues raised need to be noted before we look into the questions which have been referred by the two Division Benches.
(2.) WRIT petition No. 29907 of 2012, Vikas Trivedi Vs. State of U.P. has been filed by the petitioner, who was elected and functioning as Block Pramukh of Kshetra Panchayat Malava, district Fatehpur challenging the order of the District Magistrate dated 21.5.2012 by which order, the District Magistrate has directed for convening the meeting on 11.6.2012 for consideration of no confidence motion against the petitioner. The petitioner after coming to know about the no confidence motion, which was scheduled to take place on 11.6.2012 filed an election petition before the District Judge, Fatehpur making various allegations including the allegation that in the resolution of no confidence motion which has been received by the petitioner, there is no signature of any member. The District Judge fixed a date in July for considering the maintainability of the petition hence, the petitioner filed writ petition no. 29907 of 2012. Meeting for no confidence motion against Vikash Trivedi was held on 11.6.2012 as scheduled. Out of 94 members of the Kshetra Panchayat, 76 members were present in the debate and only 69 members casted their votes. 67 members voted in favour of no confidence motion and one member voted against no confidence motion and one vote was declared invalid. The no confidence motion was declared passed with majority of 67 -1. Amendment application has been filed by the petitioner seeking to amend the writ petition challenging the order dated 11.6.2012 by which result of no confidence motion was declared and letter dated 18.6.2012 by which Sub Divisional Officer was appointed as Administrator till fresh election is held. In the writ petition submission was made that the notice presented before the District Magistrate did not comply with the requirement of Section 15(2) of U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 1961 Act). It was further submitted that proposed no confidence resolution was not appended with motion nor was in prescribed format. Reliance was placed by learned counsel for the petitioner on Division Bench judgment of this Court in Ram Nath Tripathi Vs. Commissioner Lucknow Division, Lucknow and other (1992) 2 UPLBEC 1181. Learned Standing Counsel refuting the submissions of learned counsel for the petitioner contended that even if notice of no confidence motion has not been given in prescribed format that will not vitiate the proceedings since giving notice in prescribed format is only directory. The Court at the time of hearing of the writ petition looked into the record produced by learned Standing Counsel which indicated that notice of no confidence motion was signed by 60 members and was dated 19.5.2012. The Division Bench heard the matter on 11.7.2012. The Division Bench expressed its doubts regarding the view taken in Ram Nath Tripathi's case. The Division Bench also expressed its doubts about the view taken by the Division Bench in Smt. Krishna Jaiswal Vs. State of U.P. and others 2005 (2) AWC 1732 that the word 'may' used in Section 28(3) (ii) of 1961 Act indicates that use of proforma is not mandatory. The Division Bench also noticed subsequent two Division Benches following the view taken in Smt. Krishna Jainswal's case. In view of the submissions made before the Division Bench, the Division Bench vide its order dated 11.6.2012 referred following two questions for consideration by larger Bench. (i) Whether notice required to be given under Section 15(2) and (3) of Act, 1961 as also under Section 28(2) and (3) of Act, 1961 read with Rules prescribing the format and procedure is mandatory? (ii) Whether the observations made in Ram Nath Tripathi (supra) that requirement of notice in prescribed form alongwith its enclosures in complete format is mandatory, or directory as observed in Smt. Krishna Jaiswal (supra). Which of these judgement lays down correct law? Writ petition No. 46452 of 2012 has been filed by Pramod Kumar Tripathi who was working as elected Block Pramukh of Block Saidabad, district Allahabad challenging the order dated 29.8.2012 passed by the District Magistrate by which the District Magistrate on a notice for moving no confidence motion against the petitioner signed by 79 members has convened the meeting on 20.9.2012 for considering no confidence motion. The petitioner also challenged the notice issued by the District Magistrate dated 28.8.2012 by which notice was given for convening the meeting at 11 a.m. on 209.2012 for considering no confidence motion against the petitioner. The petitioner's case in the writ petition is that although the petitioner was served with the order/notice dated 29.8.2012 however, copy of the notice of no confidence motion was not annexed. He further submitted that he received the copy of the notice dated 29.8.2012 by registered post. Although notice stated that alleged no confidence is attached but the notice of no confidence which was annexed along with notice dated 29.8.2012 contained signatures of only five persons. It was contended that although the notice dated 29.8.2012 purported to claim that notice has been signed by 79 members but the document which was sent shows signatures of only seven members hence, the alleged motion is not in accordance with Section 15(2) of the 1961 Act. The Division Bench heard the matter on 12.9.2012. Before the Division Bench two submissions were made which have been noted by the Division Bench. The submissions and referring order of the Division Bench are quoted below: "1st SUBMISSION 7. The procedure for bringing motion of no confidence against the Pramukh of a block is governed by Section 15 of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (the Act) and the Rules framed therein. The Rules prescribe a proforma of the notice to be sent. 8. The Act, or the Rules, or the proforma nowhere provide that the names of the persons who gave the written notice to the Collector of their intention to make motion of no confidence should also be sent by the Collector. In case it is not there then the court cannot read it in the provisions. 9. In our opinion, the notice sent by the Collector cannot be invalidated merely on the ground that the names of the persons who had given written notice to the Collector of their intention to make motion of no confidence were not disclosed. 2nd SUBMISSION 10. The standing counsel has produced the record. It indicates that the proposed motion is in two pages. Therefore it is signed by members that runs upto fifth page. The Collector along with notice had sent the first two pages that contained the full motion of no confidence. The portion that was sent is at page -29 of the writ petition. However according to the counsel for the petitioner all pages upto five ought to have been sent. 11. The Act or the Rules do not provide that the proposed motion of no confidence should be signed by any member. The proposed motion of no confidence is neither invalid if it is signed by any members nor the signatures become part of proposed motion of no confidence. 12. In our opinion, the proposed motion was sent along with the notice of the Collector was sufficient. It cannot be invalidated if some pages containing signatures were not sent. 13. The Ram Nath -case contains some observations contrary to what we have held. It was distinguished in the case of Smt. Krishna Jaiswal Vs. State of U.P., 2005(2) AWC 1732 ( the Krishna -Jaiswal case) that was not only followed in the number of other cases but SLP against the same was also dismissed. 14. Nevertheless, a Division Bench of this Court in writ petition No.29907 of 2012, Vikas Trivedi Vs. State of U.P. And others (the Vikas case) has referred the two questions to the larger bench on 11.6.2012. One of the question relates to the correctness of the Krishna -Jaiswal case. QUESTIONS REFERRED 15. In view of above, it would be appropriate that the following two questions may also be considered along with the Vikas case: (i) Whether the notice sent by the Collector convening the meeting to consider motion of no confidence can be invalidated on the ground that the copy of the notice with the names of persons who had signed the written notice of their intention to make motion of no confidence was not sent along with the same. (ii) In case, the proposed motion of no confidence was signed by the members then, whether the notices convening the meeting can be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were not included in the copy of the proposed motion of no confidence sent along with the said notice. 16. This petition be connected with Writ Petition No.29907 of 2012 and in the meanwhile, the meeting to consider the motion of no confidence may be held but its result will be subject to the final decision of the writ petition." Before the Division Bench, learned counsel for the petitioner relied on Division Bench judgment in Ram Nath Tripathi's case (supra). The Division Bench noticed the judgment in Smt. Krishna Jaiswal and has also noted that two questions have been referred for consideration of larger Bench on 11.6.2012 in writ petition no. 29907 of 2012. The Division Bench referred two questions for consideration by larger Bench which are as follows: (for convenience they have been renumbered as questions no. (iii) and (iv) ). (iii) Whether the notice sent by the Collector convening the meeting to consider motion of no confidence can be invalidated on the ground that the copy of the notice with the names of persons who had signed the written notice of their intention to make motion of no confidence was not sent along with the same. (iv) In case, the proposed motion of no confidence was signed by the members then, whether the notices convening the meeting can be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were not included in the copy of the proposed motion of no confidence sent along with the said notice.
(3.) AFTER writ petition No. 29907 of 2012 was entertained, counter and rejoinder affidavits have been filed in the said writ petition. In the counter affidavit filed by the State of U.P. copy of the notice signed by 60 members of Kshetra Panchayat dated 19.5.2012 has been annexed as well as copy of the no confidence motion signed by 60 members have been annexed as Annexure C.A. 1. Copy of the notice issued by the Collector dated 21.5.2012 to all members of the Kshetra Panchayat has been annexed as Annexure C.A.2. Notice Annexure C.A. 2 although mentions that along with notice copy of no confidence motion is attached but the petitioner's case is that along with notice which was sent by the Collector, copy of the no confidence motion was not attached. In writ petition No. 46452 of 2012, the petitioner has filed copy of the notice of no confidence motion issued by the Collector as well as copy of the no confidence motion dated 27.8.2012 as Annexure -1 to the writ petition. The case of the petitioner however, is that copy of the no confidence motion which has been attached along with the notice is not complete copy and although the copy of no confidence motion runs in five pages but only two pages have been given to the petitioners and there are signature of only six members on second page, whereas 79 members have claimed to have signed the no confidence motion. The learned counsel for the petitioners have attacked the notice issued by the Collector to the members giving information of the meeting. The submission in writ petition of Vikas Trivedi is that along with notice which was sent by Collector copy of the no confidence motion was not attached and in Pramod Kumar Tripathi's case, the argument is that incomplete copy of the no confidence motion was attached since out of five pages only two pages were attached.;