V.K.KHANNA, A.C.J. - (1.) Petitioner-respondent was elected as Up Pradhan of Gaon Sabha Fatehullahpur, Block Sahpau, district Mathura in the year 1988. Proceedings were initiated for carrying out the motion of no-confidence against the petitioner-respondent and notice was issued on 6/04/1993 fixing the meeting on 16-4-1993 for considering the motion of no-confidence. A writ petition was filed by the respondent in this Court challenging the notice on the ground that 15 days notice had not been given and thus the holding of the meeting was in clear violation of the mandatory provisions contained in Section 14 of the U.P. Panchayat Raj Act (hereinafter referred to as the "Act"). The aforesaid writ petition was allowed on 13-4-1993. However, it was held that it will be open-to the respondents to fix another date and issue another notice under Section 14 of the Act in accordance with law. In view of the judgment of the High Court in the aforesaid writ petition the notice dated 6-4-1993 was cancelled. However, on 16-4-1993 the District Panchayat Raj Officer fixed the meeting for considering the motion of no-confidence on 3-5-1993. The aforesaid notice was challenged by filing second writ petition out of which the present special appeal arises on the ground that instead of 15 days clear notice only 10 days notice had been given to the petitioner-respondent which was contrary to the provisions of the Act, Rules and the judicial pronouncement besides other grounds.
(2.) Before the learned single Judge, at the time of hearing, notice of motion of no confidence was challenged solely on a fresh ground not raised in the writ petition - the ground being that the motion of no confidence was signed by the members of the Gaon Sabha and it was presented by 5 members of the Gaon Sabha; whereas petitioner-respondent is Up-Pradhan and the motion of no confidence should have been signed by not less than one half of the total members of Gaon Panchayat and should have been presented by at least five members signing the notice to the Prescribed Authority. The learned single Judge held that the notice and the motion of no-confidence was signed by the members of the Gaon Sabha and it was also presented by the members of the Gaon Sabha was borne out from the impugned notice itself. The learned single Judge was of the view that since the question raised was purely legal and went to the root of the matter, it would be in the interest of justice to consider and examine it. Learned single Judge held that after reading the relevant provisions of Section 11C of the Act and Rule 33B there cannot be any other conclusion except that Rule 13B while being applied in cases of removal of Up-Pradhan at every place word 'Gaon Sabha' should be read as 'Gaon Panchayat'. The learned single Judge took the view that the notice and the motion for removal of the Up-Pradhan was not signed by one half of the total members of the Gaon Panchayat nor the same was delivered by members of Gaon Panchayat before the Prescribed Authority. On the aforesaid findings it was held that there was no valid and legal motion for consideration and the entire proceedings subsequent thereto were illegal and could not be sustained. The writ petition was accordingly allowed and the motion of no-confidence was quashed.
(3.) In the present special appeal the learned counsel for the appellant has urged the following points: (i) It has been urged that the intention to move no-confidence motion was given in writing and signed by half of the members of the Gaon Sabha. Rule 33B(1) provides the procedure both for Pradhan and Up-Pradhan and on its plain meaning the notice had to be sent by half members of the Gaon Sabha and Rule 33B (1) requires no substitution of the word 'Gaon Sabha' by 'Gaon Panchayat'. (ii) Alternatively it was argued that even if it was taken that Rule 13B(1) requires signing of the motion by half of the members of the Gaon Panchayat, no factual foundation had been laid in the writ petition by making an averment to that effect. It was urged that more than half of the members of the Gaon Panchayat had signed the notice of motion of no-confidence and the affidavit would clearly show that the five members of the Gaon Sabha had also presented the same before the Competent Authority. Documentary evidence has been filed along with the affidavit and the rejoinder affidavit showing that even if it is assumed that Section 33B(1) requires signing of motion by half of the members of the Gaon Panchayat the same has been done. It has been argued that even if a larger body would have signed the motion besides the persons who were in law required to sign the motion, the motion would not be held to be invalid specially in view of the fact that the same had been carried out by all the members of the Gaon Panchayat present in the meeting except the petitioner-respondent. Reliance has been placed on a decision of this Court reported in Sharafatullah Khan v. State of U.P., 1962 All LJ 930. (iii) It has been urged that the earlier notice of no-confidence was challenged by filing a writ petition by the petitioner and in the said writ petition the only ground urged was that 15 days clear notice as contemplated by Section 14 of the Act was not given. No other point was urged before this Court. The writ petition was allowed on 13-4-1993 only on the aforesaid ground of not giving clear 15 days notice, the petitioner-respondent having not raised the points which have been urged in the present writ petition, the principles of constructive res judicata will apply and the petitioner could not be allowed to urge fresh grounds in respect of the notice of no-confidence in this writ petition. (iv) In view of the fact that motion of no-confidence was in fact carried, this Court should not have interfered in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. Reliance has been placed on a decision of this Court reported in Om Prakash Yadav v. Collector, Etah, 1991 (1) UPLBEC 238.;