Jayant Banerji, J. - (1.) The petitioner who is an elected Member of Zila Panchayat, Aligarh has filed this petition seeking the following reliefs: "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order being Paper No. 1432/S.T. Dated 25.8.2017 passed by the respondent no. 3/ 4 (Annexure no.1 to the writ petition) and order No. 3079/33-2-2017-100 (33)/17 dated 25.8.2017 passed by the respondent no.2 (Annexure no.2 to the writ petition). (ii) Issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Aligarh/respondent no.3/ 4 to fix the date for convening the meeting of No Confidence Motion against the respondent n o.5 forthwith by sending a clear cut 15 days notice to all the Members of Zila Panchayat; (iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.6 to monitor the working and conduct of the District Magistrate, Aligarh/ respondent no. 3/ 4 in dealing with the No Confidence Motion proposed against the respondent n o. 5 and ensure that the District Magistrate, Aligarh must act strictly in accordance with statutory provision and as well as strictly in accordance with the direction of this Hon'ble Court in writ petition No. 31329 of 2017 and 35221 of 2017 or in alternative this Hon'ble court may be pleased to direct some independent body/person to conclude the proceedings of No Confidence motion proposed against the respondent no.5; (iv) Issue a writ, order or direction in the nature of mandamus directing the respondent no.1 to conduct a high level enquiry against the respondent no.3, as to why he is protecting and safeguarding the interest of the respondent no.5 in utter violation and defiance of the orders passed by this Hon'ble court and the enquiry report may be submitted before this Hon'ble court for taking necessary action against the respondent no.3; (v) Issue a writ, order or direction in the nature of mandamus directing the respondent no. ¾ to exclude the days, during which the notice and No Confidence Motion lying rejected in terms of the impugned order in calculating the period of 30 days as contemplated under Section 28(3) of Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961; (vi) Issue an order or direction, drawing the suo-moto contempt proceedings against the respondent no.4, by this Hon'ble court, while exercising the powers, conferred under Article 215 of the Constitution of India and to punish him accordingly for willfully and deliberately flouting the directions of this Hon'ble Court, or as this Hon'ble court may otherwise deem fit and proper under the facts and circumstances of the case."
(2.) When this matter came up before the Court on 4 September 2017, after hearing the learned counsel for the parties including the learned Additional Advocate General appearing for the State, the Court observed as follows: "It transpires from the records that earlier Writ-C No.31329 of 2017 Upendra Singh Vs. State of U.P & 3 others decided on 26 July 2017. was filed by Upendra Singh, the elected Adhyksha of the Zila Panchayat, to assail the notice dated 12 July 2017 that had been issued by the District Magistrate, Aligarh for convening a meeting of the members of the Zila Panchayat, Aligarh for consideration of the 'No Confidence Motion' moved against him. Number of submissions were raised on his behalf to assail the notice that was issued, but learned counsel appearing for the member who had moved the motion of no confidence, submitted that the members who had moved the motion will withdraw it but liberty may be granted to move a fresh motion as was also provided by a Division Bench of this Court in Chhatrapal Singh Vs. State of U.P. & Ors., 2003 6 AWC 5635 It is for this reason that the Court disposed of the writ petition with the following observations : "On behalf of the writ petitioner various issues have been raised with regards to the legality of the notice issued. Shri Anurag Khanna, Senior Advocate appearing on behalf of respondent no. 4 submits that the members who had moved the motion shall withdraw the same but liberty may be granted to move a fresh motion as has been provided by the Division Bench of this Court in the case of Chhatrapal Singh vs. State of U.P. & Others, 2003 6 AWC 5635. Shri Shashi Nandan, Senior Advocate appearing on behalf of the petitioner has no objection. However he submits that right of the petitioner to object to the fresh motion be left intact. Since the person who had moved the No Confidence Motion want to withdraw the same with liberty as aforesaid, we see no reason to enter into the correctness or otherwise of the notice issued by the District Magistrate, Aligarh now. In view of the law laid down by the Division Bench of this Court in the case of Chhatrapal Singh , liberty is granted to the members to move a fresh motion before the District Magistrate, Aligarh. The District Magistrate, Aligarh in turn examine the same strictly in accordance with the law laid down by the Full Bench of this Court in the case of Smt. Sheela Devi & Others vs. State of U.P. & Others, 2015 2 ADJ 325 within the time frame permitted. There should be no complaint to this Court that the action required under the statutory provision has not been taken by the District Magistrate, Aligarh. All the rights of the petitioner to oppose the new motion are left intact. Nothing more remains to be examined in this petition. With the aforesaid observation/ direction the present writ petition is disposed of." It is stated that 29 members of the Zila Panchayat including the petitioner again submitted a No Confidence Motion on 28 July 2017 before the District Magistrate on 29 July 2017 but the District Magistrate did not accept the motion of no confidence. Ultimately, the petitioner had to file Writ-C No.35221 of 2017 Ajeet Gaur Vs. State of U.P & 2 others, decided on 11 August 2017. to seek a direction that the District Magistrate should receive the No Confidence Motion and convene a meeting for bringing the No Confidence Motion. This petition was disposed of on 11 August 2017 with a direction to the District Magistrate to receive the notice and deal with the same in accordance with law. The relevant portion of the judgment is reproduced below : "The only prayer made in the instant writ petition reads thus: "i. Issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Aligarh/respondent on.2 to receive the notice and as well as copy of the proposed motion of No Confidence brought against the respondent no.3 and accordingly convene a meeting for bringing No Confidence Motion against the respondent no.3." Counsel for respondent no.2, submits that respondent no.2 shall receive the notice to be tendered by the petitioner or any other person for that matter, with a copy of proposed motion of no confidence against respondent no.3 and, shall take further steps in accordance with law. His statement is recorded and accepted. In view thereof, the District Magistrate, is directed to receive the notice, as aforementioned, and deal with the same in accordance with law. The writ petition is, accordingly, disposed of." It is stated that the District Magistrate then accepted the No Confidence Motion on 17 August 2017 but sought a query from the State Government as to whether, in view of the provisions of section 28(12) of the U.P. Kshettra Panchayats & Zila Panchayats Adhiniyam, 1961,4 there would be a bar in receiving a fresh motion of no confidence until after the expiration of one year from the date the earlier meeting was scheduled to take place. The Special Secretary in the State Government sent a communication dated 25 August 2017 informing the District Magistrate, Aligarh on the basis of the legal opinion received from the State Government, that the bar contemplated under sub-section (12) of section 28 of the Act would operate and, therefore, the District Magistrate was directed to act in accordance with the opinion rendered. The District Magistrate then sent a communication dated 25 August 2017 to the petitioner informing him that because of the aforesaid opinion given by the State Government regarding the bar contained in sub-section (12) of section 28 of the Act, the motion of no confidence has been rejected."
(3.) With regard to the communication dated 25 August 2017 sent by the Special Secretary, Government of Uttar Pradesh, Lucknow to the District Magistrate, Aligarh on the basis of a legal opinion regarding the bar contemplated under sub-section (12) of Section 28 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 Act. the Court observed as follows: "Prima facie, on a plain reading of sub-section (12) of section 28 of the Act, the bar contained in sub-section (12) of section 28 of the Act may not operate in a case where the motion is withdrawn. This is clear from the use of the word "if the motion is not carried as aforesaid" in sub-section (12). This indicates that the procedure set out in the earlier sub-sections (1) to (11) have been undertaken. Sub-section (11) deals with a case where the motion is carried after the debate and sub-section (12) would, therefore, deal with a case where the motion is not carried after the debate. This apart, it has also been submitted by learned Senior Counsel for the petitioner that liberty had been granted to the petitioners in the earlier writ petition filed by Upendra Singh to move a fresh motion before the District Magistrate who was also directed to examine the said motion strictly in accordance with the law laid down by the Full Bench of this Court in Sheela Devi within the time frame permitted. The District Magistrate was also reminded that there should be no complaint to this Court that the action required under the statutory provisions was not taken by the District Magistrate. We, therefore, call upon the District Magistrate, Aligarh who passed the order dated 25 August 2017 to file his personal affidavit to explain why the impugned order was passed, particularly when the Division Bench of this Court in Writ-C No.31229 of 2017 filed by Upendra Singh had issued clear directions. The District Magistrate must also state in his personal affidavit as to whether the petitioners actually went to his office to serve the No Confidence Motion on various dates mentioned in the writ petition and if so, then whey he had not received the motion. The Joint Secretary in the State Government who sent the communication dated 25 August 2017 shall also file his personal affidavit to explain why the communication was sent to the District Magistrate and shall also enclose the copy of the legal opinion referred to in the said communication.";