- (1.) YATINDRA Singh and V. S. Bajpai, JJ. These two writ petition deal with the constitutionality as well as inter pretation of Section 28 of the U. P. Kshet tra Panchayats and Zila Panchayat Ad hiniyam, 1961 (the Act), which provides for motion of no confidence against Ad-hyaksha or Up-Adhyaksha of a Ziia Panchayat. THE FACTS:
(2.) THE election to the post of Adhyaksha of Zila Panchayat, Deoria (the Zila Panchayat) was held in the year 2000. In this election Smt. Krishna Jaiswal (Smt. Jaiswal) was elected as the Adhyaksha of the Zila Panchayat. THE Zila Panchayat consists of 40 elected members. Twenty eight elected mem bers gave notice to the Collector under Section 28 of the Act to bring the motion of no confidence against her on 29th November, 2004. THE Collector passed an order on 30-11 -2004 convening the meeting on 20-12- 2004 at 12. 00 a. m. in the hall of the Zila Parishad to consider the no confidence motion against her. He also passed an order that the Appar Mukhya Adhikari, Deoria (the AMA) to serve notice on the members by registered post as well as personally by 4th December, 2004. THE notices were sent and the AMA submitted a report to the Collector on 4-12-2004 that the notices here been sent by the registered post and personal service has been affected. Smt. Jaiswal filed Writ Petition No. 52945 of 2004 on 9th December, 2004 challenging the meeting of no confidence motion in pursuance of the order passed by the Collector, In this writ petition an interim. order was passed on 16-12-2004 keeping the meeting to consider the no confidence motion in abeyance. During pendency of the aforesaid writ petition, thirty-two elected members gave another notice of their intention to bring no confidence motion against Smt. Jaiswal on 20th December, 2004. On this notice, the Collector sent a letter to the Chief Standing Counsel seeking his guidance if meeting could be convened as the earlier meeting of no confidence motion was kept in abeyance by this Court Sri C. B. Yadav CSE-II informed the Court that in pur suance of letter he had telephonic talk with the Collector and he in view of the developments in the Court had advised the Collector not to convene any meet ing. The thirty elected members have filed WP 436 of 2005, before this Court for a direction to the Collector to con vene meeting of the Zila Panchayat for no confidence motion in pursuance of the notice dated 20th December, 2004. POINTS FOR DETERMINATION:
(3.) WE have heard Sri Ravi Kiran Jain, Senior Advocate, Sri H. R. Misra and Sri S. K. Mishra Counsels for Smt. Jaiswal; Sri Sanjiv Singh, Counsel for the elected members of the Zila Panchayat who had given notice for bringing on confidence motion; Sri J. N. Tiwari, Senior Advocate and Sri C. B. Gupta Counsels for the AMA. Sri Sudhir Agrawal, Additional Advocate General, Sri C. B. Yadav CSC-II and the Standing Counsel for the State of U. P. and the State officials. The following points arise for Determination. (i) Whether Section 28 of the Act is ultra vires the Constitution. (ii) Whether the part of Section 28 (3) (ii) providing for holding of the 'meeting in such manner as may be prescribed' and the man ner prescribed mandatory. Is a meeting con vened in pursuance of the notice- not in the prescribed proforma- illegal ? (iii) Whether fifteen days should elapse between the meeting and the giving of notice or receipt of notice by every member. (iv) Whether in the circumstances of the case, the second notice to bring the motion of no confidence could be given on 20th December, 2004. (v) Whether the part of Section 28 (3) (i) of the Act, which provides that the meeting of no confidence is to be convened within thirty days is mandatory. POINT NO. 1 : SECTION 28 IS NOT ULTRA VIRES THE CONSTITUTION: The Counsels supporting the constitutionality of Section 28 of the Act, submitted that: *section 87-A of the U. P. Municipalities Act provided for no confidence motion against the President of the Municipal Coun cils and Nagar Panchayats. *similarly Section 14 of the U. P. Panchayat Raj Act provides for no con fidence motion against the Pradhan of a Gram Panchayat. The validity of these two sections have been upheld by the Supreme Court in Mohan Lal Tripathi v. D. M. , Rae Bareilly, AIR 1993 SC 2042, (the Mohan Lal case) and Ram Beti v. District Panchayat Raj Adhikari and Ors. , 1998 (1) JCLR 395 (SC) : AIR 1998 SC 1222, (the Ram Beti case ). The validity of Section 28 has to be upheld on the same reasoning.;