- (1.) This petition brings forth the grievance on behalf of the petitioner impeaching the action of the District Magistrate, Rae Bareilly for convening the meeting for consideration of the No Confidence Motion on 15.4.2017 under the impugned notice dated 30.3.2017 in terms of Section 28 of the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961. The petitioner is the elected Chairman of the Zila Panchayat, Rae Bareilly.
(2.) The petition was entertained by us and on hearing the preliminary arguments, the following order was passed on 6.4.2017:- "A supplementary affidavit has been filed today, which is taken on record. We have heard Sri Prashant Chandra, learned Senior Counsel for the petitioner, learned Additional Chief Standing Counsel for the respondents no. 1 and 2 and Sri Hemant Kumar Mishra, learned counsel for the respondent no.3. An impleadment application has been filed by one Prabhat Kumar @ Prabhat Kumar Gupta, a Member of the Zila Panchayat, Rae Bareli and we have heard Sri Anil Tiwari, learned Senior Counsel on his behalf as well. The said application has been entertained in terms of Chapter XXII Rule 5-A of the Allahabad High Court Rules, 1952. A preliminary objection has been raised with regard to the maintainability of the writ petition without impleading any of the persons who have proposed the No Confidence Motion, which is the subject matter of dispute in the present writ petition and reliance has been placed on the Full Bench Judgement of this Court in the case of Mathura Prasad Tiwari v. Assistant District Panchayat Officer, Faizabad; 1967 RD Pg. 17 . This petition pertains to an allegation of noncompliance of the procedure of moving a 'No Confidence Motion' against the Chairman of the Zila Panchayat, the petitioner herein, in terms of Section 28 of the U.P. Kshetra Panchayat and Zila Panchayats Adhiniyam, 1961 read with Zila Parishad Rules regarding Motion of No Confidence as notified on 14.12.1962. Sri Prashant Chandra, learned Senior Counsel has urged that the said 'No Confidence Motion', which is alleged to have been notified to the District Magistrate is not in accordance with the aforesaid Rules inasmuch as it mentions the district of Bareily instead of Rae-Bareily, and it does not indicate any date of the moving of the said intention. He submits that this could not have been otherwise also possible, as, such an issue had been raised at item no.16 in the meeting dated 25.03.2017 itself and, therefore, there cannot be any presumption of moving of such an intention on the same date. He submits that the District Magistrate hurriedly without taking notice of the aforesaid facts and without even examining the objections relating to the moving of the affidavits, which according to the petitioner demonstrated that the signatures on the 'No Confidence Motion' notice were fake, renders the notice for consideration of the 'No Confidence Motion' on 15.04.2017 as invalid. The contention, therefore, is that the meeting convened for the said purpose on 15.04.2017 cannot be held as the entire procedure prescribed and which is mandatory having not been followed, the holding of the very meeting of the 'No Confidence Motion' is unlawful. Sri Prashant Chandra, learned Senior Counsel has urged that the District Magistrate is under a mandate to scrutinize such infirmities as he is not mere a post office as has been held in the Full Bench decision of this Court in the case of Smt. Sheela Devi v. State of U.P. and others; 2015 (2) UPLBEC 1176 . He further submits that the non-mentioning of the date on the alleged 'No Confidence Motion' notice also vitiates the entire process adopted inasmuch as, in the absence of any date, the calculation of the period of thirty days as prescribed under sub-section (3) of section 28 for holding of such a meeting, cannot be made and, therefore, it would be reasonable to presume and construe that the aforesaid condition does not stand fulfilled. Hence, the issuance of the notice for holding of the meeting on 15.04.2017 would stand vitiated in the absence of any such period available to count the aforesaid intervening period of thirty days. He submits that this is not a mere formality and such a requirement assumes importance and is a mandate of law for the said purpose, which aspect has not been dealt with in the other Full Bench judgement in the case of Vikas Trivedi v. State of U.P. and others; reported in (2013) 2 UPLBEC 1193 . Replying to the aforesaid contentions, Sri Abdul Moin, learned Additional Chief Standing Counsel for the State and Sri Anil Tiwari, learned Senior Counsel for the intervenor have urged that the petitioner himself has in paragraph 16, 17, 18 of the writ petition as well as in paragraph 7 of the supplementary affidavit admitted the date of the intention and notice of 'No Confidence Motion' as 25.03.2017. In view of such an admission, the contention on behalf of the petitioner that the notice is undated is of no avail. They further contend that the period of thirty days can be very conveniently counted, which has to be done in view of the provisions of Section 28(3)(i), which requires that the convening of the meeting for consideration of 'No Confidence Motion' has to be not later than thirty days from the date on which such a notice of 'No Confidence Motion' under sub-section (2) is delivered to him. They, therefore, submit that once it is established that the notice was delivered to the District Magistrate and the period of thirty days has not yet expired then in that event, the holding of the meeting on 15.04.2017 cannot be said to be vitiated on the basis of a fictional argument, as has been advanced on behalf of the petitioner. We have considered the submissions raised and what we find is that the date on which the notice has been delivered to the District Magistrate will assume importance to construe as to whether the meeting can be convened on 15.04.2017 or not. For this, we direct the learned Additional Chief Standing Counsel to summon the records from the District Magistrate and place it before us in order to enable us to locate the said date. Sri Prashant Chandra, learned Senior Counsel prays that the matter be taken up on Monday i.e. 10.04.2017. Put up on 10.04.2017. Copy of the order to the learned Additional Chief Standing Counsel for compliance."
(3.) The arguments proceeded thereafter on 10.4.2017 and in order to ascertain the correctness of the facts asserted and alleged in the writ petition, the supplementary affidavit filed on behalf of the petitioner as also the contentions raised on behalf of the intervenor as well as the respondent-State, we had also summoned the original records. The following order was passed on 10.4.2017:- "Heard Shri Prashant Chandra, learned Senior Counsel for the petitioner, Shri Anil Tiwari, learned Senior Advocate along with Shri P.S. Bajpai, learned counsel for the caveator, Shri Abdul Moin, learned Addl. Chief Standing counsel for the respondent nos. 1 & 2 & Shri Hemant Mishra, learned counsel for the respondent no.3/Zila Panchayat. An impleadment application has been filed that has been taken on record. A supplementary affidavit has been filed today stating therein that the dispatch of notice for the 'No Confidence Motion' has not been made by the proper authority and even otherwise the availability of 15 days clear notice is not established. It is also urged that as per the requirement of Section - 15(3)(ii), the procedure as prescribed for service of notice for holding of a No Confidence Motion is contained in the notification dated 14th December, 1962. Clause - 2 of the said notification specifically provides two modes of service of notice; firstly by Registered Post and secondly by publication and affixation of a copy of the said notice on the notice board of the Zila Parishad (Zila Panchayat). Shri Hemant Mishra, learned counsel for the Zila Panchayat may file an affidavit by tomorrow clearly stating therein as to whether the notice was pasted and affixed as per the notification dated 14th December, 1962 or not? The submissions that have been advanced and had been urged were with regard to the date of receipt by the District Magistrate of the intention of the members to move a No Confidence Motion. It is for this reason that we had summoned the records which has been produced by Shri Abdul Moin, learned Addl. Chief Standing Counsel today before us. The said records do indicate that there is no date in the notice which was moved before the District Magistrate but according to the letter dated 28th March, 2017 addressed to the District Judge, a mention has been made of having received the said intention on 27th March, 2017 and therefore, fixing of the date on 15th April, 2017, according to the learned Addl. Chief Standing Counsel, is well within the period as prescribed under Section - 28(3) of the 1961 Act. It is during the course of arguments and after having perused the supplementary affidavit filed today, the submission relating to affixation of notice has to be considered and for which the affidavit of the respondent - Zila Panchayat is necessary. Put up tomorrow i.e., 11.04.2017. The records be retained by the learned Addl. Chief Standing Counsel and shall be produced tomorrow again.";