Allowed

Smt. Madhuri Arya v. State of U.P. and 3 Others

Allahabad HC27 Nov 2018WRIC/28810/2018

Case brief

AI extract

What is this about?

In this writ petition challenging a notice to convene a no-confidence motion meeting, the Supreme Court held that proceedings were vitiated because the notice was issued before the District Magistrate formally passed the order convening the meeting, rendering the entire process illegal.

What did the court decide?

The impugned notice dated 13.08.2018 issued by the District Magistrate, Basti, and consequential proceedings are quashed. The petitioner was advised to file a fresh notice in accordance with law.

Smt. Madhuri Arya Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 32

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Case :- WRIT - C No. - 28810 of 2018

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Petitioner :- Smt. Madhuri Arya Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Narendra Kumar Pandey, Sudha Pandey Counsel for Respondent :- C.S.C., Brajesh Shukla, Harish Kumar Shukla, Pradeep Kumar

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Hon'ble Shashi Kant Gupta,J. Hon'ble Mrs. Manju Rani Chauhan,J.

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This writ petition has been filed by the petitioner, interalia, for the following reliefs:

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(i) Issue a writ, order or direction in the nature of certiorari calling for the record of the case and quashing the impugned notice dated 13.08.2018 issued by the District Magistrate, Basti (Annexure No. 7 to the writ petition) with all its consequential effects.

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(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect to the impugned notice dated 13.08.2018 issued by District Magistrate, Basti and not to interfere in peaceful functioning of the petitioner as Pramukh, Kshetra Panchayat Kaptanganj, District Basti.”

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A brief resume of necessary facts in this writ

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petition and supplementary affidavits are as follows:

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The election of Members of Kshetra

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Panchayat under the provisions of U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as the “Act”) was held in the month of September-October, 2015 and as many as total 57 members of Kshetra Panchayat under Section 6(1)(b) of the Act were declared elected on 16.10.2015 from different 57 territorial constituency (Wards) of Kshetra Panchayat Kaptanganj, District Basti. After the election of Members Kshetra Panchayat of Block Kaptanganj, District Basti, elected members elected their Block Pramukh in the election held

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on 07.02.2016, wherein the petitioner- Smt.

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Madhuri Arya was declared elected as Pramukh of Kshetra Panchayat Kaptanganj, District Basti.

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It has been further averred in the writ

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petition that in a pre-planned mechanism due to political rivalry, some members of Kshettra Panchayat proposed a No-Confidence Motion against the petitioner and delivered it to the Collector on 28.07.2018 bearing signature and thumb impression of as many as 44 elected members of Kshetra Panchayat Kaptanganj, District Basti. Thereafter, the District Magistrate, Basti directed the Chief Development Officer, Basti to verify the signature of Members of Kshetra Panchayat from the original records who have either made signatures or thumb

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impressions on the resolution dated 28.07.2018.

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The Collector after considering the

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motion/resolution dated 28.07.2018 in the light

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of Section 15 of the Act and as well as the statement of Smt. Shakuntala Devi, Member Kshettra Panchayat, Ward 57 recorded during the course of enquiry was of the opinion that the proposed resolution of No-Confidence Motion dated 28.07.2018 submitted by Smt. Dhanman Devi was not valid and further since the resolution dated 07.08.2018 was signed by only 7 members, it was contrary to the mandatory provisions of Section 15(2) & (3) of the Act, as such, both the resolution dated 28.07.2018 and 07.08.2018 were not found valid. Consequently the District Magistrate vide order dated

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10.08.2018 rejected the notice expressing lack of

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confidence in the petitioner.

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According to the petitioner, the copy of the same proposed motion, (which was earlier delivered by Smt. Dhanman Devi on 28.07.2018 and stood rejected) was again sent to the Collector, Basti by only changing the date 28.07.2018 to 10.08.2018. The District Magistrate, Basti without application of mind illegally, deliberately and arbitrarily by shutting his eyes to the realities of the matter issued/signed the impugned notice on 13.08.2018 for service of it upon the elected members informing them that a meeting of Kshettra Panchayat would be held on 30.08.2018 for consideration of “No confidence motion”

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against the petitioner.

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It has been further averred in the writ petition

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that from bare perusal of the copies of the proposed motion dated 28.07.2018 which is attached with notice dated 13.08.2018, it is evident that the alleged resolution dated 10.08.2018 is the verbatim reproduction of earlier resolution dated 28.07.2018. Thus, on the basis of the resolution dated 10.08.2018 a notice dated 13.08.2018 was signed/issued by the District Magistrate on 13.08.2018 convening the meeting on 30.08.2018.

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Supplementary affidavit has also been filed by the learned counsel for the petitioner annexing the order 14.08.2018 passed by the District Magistrate, Basti indicating that 44 members of

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Kshetra Panchayat Kaptanganj moved a notice for convening a meeting to bring No Confidence Motion against the petitioner in the prescribed format and consequently a meeting was convened for consideration of No Confidence Motion against the petitioner on 30.08.2018.

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It has been averred in paragraph 6 of the supplementary affidavit that from bare perusal of the impugned notice dated 13.08.2018 issued under the signature of Dr. Raj Shekhar, Collector, Basti, it is manifestly clear that prior to the order dated 14.08.2018 passed by the District Magistrate/Collector, Basti convening the meeting to consider No Confidence Motion against the petitioner on 30.08.2018, notice dated 13.08.2018 was signed/issued allegedly

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by the same signatory on 13.08.2018, which is,

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in fact, per se illegal and also demonstrates that

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the District Magistrate/Collector, Basti was under political pressure.

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In the Counter affidavit filed on behalf of the respondent nos. 2 and 3, it has been admitted that both the resolution dated 28.07.2018 and 07.08.2018 were rejected by the District Magistrate. It has been further averred in paragraph 5 of the counter affidavit that a notice of No Confidence Motion dated 10.08.2018 was again sent to the answering respondent no. 2 District Magistrate, Basti by Smt. Dhanman Devi and other elected members of Kshetra Panchayat Kaptanganj against the petitioner on the format prescribed under the Uttar Pradesh Kshetra

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Panchayat and Zila Panchayat Adhiniyam, 1961.

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The said notice of No Confidence Motion was sent by more than half of the elected members (44 members) of Kshetra Panchayat and on the said notice of No Confidence Motion, the District Panchayat Raj Officer, Basti prepared a notesheet dated 11.08.2018 and presented the same day before the Collector, Basti for taking action. Whereupon the Collector, Basti made a noting on the same day i.e. 11.08.2018 to convene a meeting for considering no confidence motion against the petitioner on 30.08.2018 and further authorized Deputy Collector, Harraiya, Basti to preside over the meeting.

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In paragraph no. 6 of the counter affidavit

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filed on behalf of the respondent nos. 2 and 3, it

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was further averred that on 13.08.2018 again an Office note was put up by the District Panchayat Raj Officer, Basti before the Collector, Basti for passing formal orders on the decision taken on 11.08,2018. In the said Office note, a request interalia was made for putting signature on the respective orders/notices authorizing the Deputy Collector Harraiya to preside over the meeting to be held on 30.08.2018 for considering “No Confidence Motion” and for issuing of notices on prescribed format to all the 57 elected members of Kshettra Panchayat Kaptanganj.

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In paragraph no. 7 of the counter affidavit, it has been further averred that on 13.08.2018 the District Magistrate, Basti signed the notices

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to be issued to all the 57 members of Kshettra

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Panchayat and authorized the Deputy Collector, Harraiya to preside over the scheduled meeting as well as to videograph and carry out the verification of signature/thumb impression of elected members.

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Rejoinder affidavit as well as supplementary affidavits have also been filed by the petitioner rebutting the contentions of the learned counsel for the respondents.

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Heard Shri Narendra Kumar Pandey, learned counsel for the petitioner, Shri M. C. Chaturvedi, learned Additional Advocate General assisted by Shri S.N. Shukla and Shri Pradeep Kumar appearing on behalf of the State, Shri H.K. Shukla, learned counsel for the respondent no. 4

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and perused the record.

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Before entering into the controversy raised

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by the learned counsel for the parties, it is worthwhile to mention that the State was directed to reproduce the entire record of the proceedings. This Court after perusing the original record which was produced on 05.09.2018 passed the following order:

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“Supplementary affidavit has been filed today on behalf of the petitioner is taken on record. Heard learned counsel for the petitioner, Sri Ramesh Chandra Singh, learned counsel for the respondent no. 4, learned Standing Counsel appearing on behalf of the respondent nos. 1 to 3 and perused the record.

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Learned counsel for the petitioner while referring to the Annexure- SA-2 of the supplementary affidavit has submitted that a decision for convening a meeting of the Kshettra Panchayat under Section 15 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam-1961 for the

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consideration of no confidence motion against the Pramukh was taken by the Collector, Basti on 14.08.2018 but the notice with regard to the same has been issued on 13.08.2018 by the Collector, Basti to the members of the Kshettra Panchayat, as such, the entire proceedings for convening a meeting for the consideration of no confidence motion has been vitiated. On the earlier occasion, learned counsel for the petitioner was directed to produce the record of the entire proceedings.

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We have perused the aforesaid record.

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The matter requires consideration.

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Learned counsel for the respondents pray for and are granted three weeks time for filing counter affidavit.

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The petitioner will have two weeks time thereafter for filing rejoinder affidavit.

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List the matter on 22nd October, 2018.

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Learned counsel for the petitioner has pointed out that the meeting in pursuance of the impugned notice has already been taken but

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the outcome of the said meeting has not declared. Thus, we direct the concerned Authority not to declare the result of the meeting for considering the no confidence motion held on 30.08.2018 till the next date of listing.”

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The main contention of the learned counsel for the petitioner is that a meeting of the Kshettra Panchayat under Section 15 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam-1961 for the consideration of no confidence motion against the Pramukh was formally convened by the Collector, Basti on 14.08.2018 but the notice with regard to the same was signed/issued on 13.08.2018 by the Collector, Basti to the members of the Kshettra Panchayat, as such, the entire proceedings for convening a meeting for the consideration of no

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confidence motion stood vitiated.

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Per contra, learned counsel appearing on behalf of the State has stated that after rejection of the first notice submitted under Section 15 of the Act by the concerned authority, a fresh notice together with the proposed motion dated 10.08.2018 under Section 15 of the Act was sent to the District Magistrate. Thereupon, the District Panchayat Raj Officer prepared a detailed report wherein at the bottom of the report the District Magistrate made a note for convening a meeting on 30.08.2018 for consideration of “No Confidence Motion” against the petitioner. On 13.08.2018, again a report was submitted by the District Panchayat Raj Officer for convening a meeting on 30.08.2018 for considering “No

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Confidence Motion” against the petitioner as well as to arrange for a videography of the alleged meeting and for signing the notices for issuing them to the elected members intimating them about the proposed meeting convened on 30.08.2018 for considering “No confidence motion”.

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Hence, the main controversy in the present

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matter is as on what date (11.08.2018 or 14.08.2018) the Collector, Basti took a decision

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for convening a meeting on 30.08.2018 for consideration of No Confidence Motion.

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As already mentioned herein before, the original record of the entire proceeding was produced before this Court on 05.09.2018 and

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this Court after perusing the entire original

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record interalia had noted the contention of the learned counsel for the petitioner that a decision for convening a meeting of the Kshettra Panchayat under Section 15 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam-1961 for the consideration of no confidence motion against the Pramukh was taken by the Collector, Basti on 14.08.2018 but the notice had been signed/issued on 13.08.2018 by the Collector, Basti to the members of the Kshettra Panchayat, Kaptanganj, District Basti, one day prior to the order dated 14.08.2018 convening the meeting on 30.08.2018. Thus, the entire proceedings to convene a meeting for the consideration of “ No

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Confidence Motion” stood vitiated.

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For ready reference the notice dated 13.08.2018

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issued by the Collector, Basti to the petitioner as well as order dated 14.08.2018 passed by the Collector, Basti convening the meeting on 30.08.2018 for consideration of “No Confidence Motion” against the petitioner are extracted herein below:-

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lsok esa] Jherh ek/kqjh vk;kZ lnL; {ks= iapk;r&dIrkuxat] ftyk&cLrhA

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^^uksfVl^^

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,rn~}kjk vkidks uksfVl fn;k tkrk gS fd {ks= iapk;r&dIrkuxat ds lHkkd{k esa ¼fnukad½ 30&8&2018 dks ¼le;½ izkr% 10-00 cts {ks= iapk;r&dIrkuxat ¼cLrh½ dh ,d cSBd gksxh] ftlesa ml vfo'okl ds izLrko ij

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fopkj fd;k tk;sxk tks mDr ¼{ks= iapk;r½ ds izeq[k Jherh ek/kqjh vk;kZ ds fo:) fd;k x;k gSA blds lkFk izLrko dh ,d izfr layXu gSA

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LFkku&cLrhA fnukad 13&8&2018

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¼Mk0 jkt 'ks[kj½ dysDVj] cLrhA

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vkn s'k

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Jherh /kueu nsoh] eatw] yhykorh vkfn lfgr dqy 44 ¼pkSOokyhl½ {ks= izeq[k {ks= iapk;r lnL;] {ks= iapk;r&dIrkuxat ¼cLrh½ }kjk fnukad 10&8&2018 dks Jherh ek/kqjh vk;kZ] izeq[k {ks= iapk;r&dIrkuxat ¼cLrh½ ds fo:) fu;r izk:i ij vfo'okl izLrko dh uksfVl@vfo 'okl izLrko izLrqr fd;k x;k gSA

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,rn~}kjk mRrj izns'k {ks= iapk;r rFkk ftyk iapk;r vf/kfu;e&1961¼;Fkk la'kksf/kr½ dh /kkjk&15 esa fufgr 'kfDr;ksa dk iz;ksx djrs gq, eSa Mk0 jkt 'ks[kj] dysDVj] cLrh mDr vfo'okl izLrko ij cSBd gsrq fnukad 30&8&2018 fu;r djrk gWwA izLrkfor

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vfo'okl izLrko ij cSBd fu;r frfFk dks {ks= iapk;r&dIrkuxat ds lHkkd{k esa izkr% 10-00 cts ls gksxh] rn~ksijkUr fLFkfr ds vuqlkj xqIr ernku }kjk fu;r jhfr ls ernku gksxkA

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vfo'okl izLrko ds izLrkfor cSBd dh v/;{krk gsrq fMIVh dysDVj@mi ftyk eftLVsªV] gjSZ;k ¼cLrh½ dks v/;{k fu;qDr djrs gq, mUgsa funsZf'kr djrk gwW fd mRrj izns'k {ks= iapk;r rFkk ftyk iapk;r vf/kfu;e&1961¼;Fkk la'kksf/kr½ dh /kkjk&15 esa fufgr izkfo/kkuksa ds vuqlj.k esa izLrkfor cSBd@ernku dh dk;Zokgh lEiUu djk;saA

¼Mk0 jkt'ks[kj½

dysDVj]

cLrhA

dk;kZy; dysDVjh] cLrhA

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i=kad

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1912@7&iapk;r&v0fo0iz0@{ks0ia0&dIrkuxat@2018 &19fnukad 14 vxLr 2018

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izfrfyfi%& fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"kr&

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1& [k.M fodkl vf/kdkjh dIrkuxat ¼cLrh½ dks ,d vfrfjDr izfr uksfVl cksMZ ij pLik djus gsrq ,oa bl funsZ'k ds lkFk iszf"kr fd cSBd gsrq vko';d O;oLFkk lqfuf'pr djk;saA

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2& Fkkuk/;{k] dIrkuxat ¼cLrh½ dks 'kkfUr O;oLFkk cuk;s j[kus gsrqA

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3& fMIVh dysDVj@mi ftyk eftLVsªV] gjSZ;k ¼cLrh½ dk vuqikyukFkZA 4& ftyk iapk;r jkt vf/kdkjh cLrhA 5& eq[; fodkl vf/kdkjh cLrhA

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6& iqfyl v/kh{kd] cLrh dks bl vk'k; ds lkFk fd mDr frfFk dks fodkl [k.M&dIrkuxat ifjlj esa vko';d lqj{kk O;oLFkk djus dk d"V djsaA

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dysDVj] cLrhA

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The order dated 14.08.2018 passed by the District Magistrate, Basti does not refer to the order allegedly passed on 11.08.2018 for convening the meeting on 30.08.2018.

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It may be noted that the original record of the case was placed before this Court on 05.09.2018 but the report of the District Panchayat Raj Officer dated 11.08.2018 carrying

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the noting of the District Magistrate, Basti, whereupon meeting for consideration of “No

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Confidence Motion”, was convened on

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30.08.2018 was not placed before this Court, as such, this Court had not made any observation with regard to the office note dated 11.08.2018 as well as the order passed by the Collector, Basti on the said office note fixing 30.08.2018 for considering no confidence motion. Even the note sheet dated 13.08.2018 proposed by the DPRO as referred to earlier in this judgment was not the part of the original record, thus no reference with regard to noting dated 11.08.2018 and 13.08.2018 was made by this Court in its order. Both the note-sheet dated 11.08.2018 and 13.08.2018 containing the noting of the District Magistrate were conspicuously missing from the original record

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when it was placed before this Court on

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05.09.2018.

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It has been contended by the learned counsel for the petitioner that the report of the District Panchayat Raj Officer dated 11.08.2018 has been manufactured after passing of the interim order dated 05.09.2018. No date has been put by the Collector, Basti while putting his alleged signature on the said note-sheet/report. We find substance in the argument advanced by the learned counsel for the petitioner. The office reports dated 11.08.2018 and 13.08.2018 were neither placed before this Court on 05.09.2018 when the original record was produced before the Court nor any reason has been given as to why the aforesaid reports were not the part of

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the record when the original record was placed before this Court.

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In the present case, it appears that no order was passed on 11.08.2018 or 13.08.2018 by the Collector, Basti for convening the meeting on 30.08.2018. Even though, notices were allegedly signed/issued to the elected members on 13.08.2018 fixing 30.08.2018 for consideration of no confidence motion against the petitioner, the formal order was passed to convene the meeting on the next day i.e. 14.08.2018. Thus the notice to the elected members was signed/issued on 13.08.2018 but the formal decision to convene the meeting was passed subsequently on the next date on 14.08.2018 by

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the Collector. We fail to understand that how

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the notice can be signed/issued to the elected members under Section 15(3) of the Act on 13.08.2018 for convening the meeting when the order fixing the meeting on 30.08.2018 itself was passed on the next date i.e. 14.08.2018 by the Collector. Thus the entire proceedings with regard to convening a meeting on 30.08.2018 for consideration of no confidence motion stands vitiated.

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The aforesaid fact clearly indicates that the decision was taken by the District Magistrate on 14.08.2018 but the notice was signed/issued to the elected members one day prior i.e. 13.08.2018, thus it itself creates a serious dent in the case of the respondents that the decision for

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fixing the date was taken by the District Magistrate on 11.08.2018. Thus the stand taken by the State is self contradictory. The discussions made herein above clearly shows that the State has not come with clean hands and appears that powers have been exercised in a hasty and surreptitious manner, as such, the impugned order/notice dated 13.08.2018 issued by the District Magistrate, Basti can not be sustained and therefore is quashed.

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In the result, the writ petition is allowed.

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However, it is open to the members of the Kshettra Panchayat, Kaptanganj, District Basti, if

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so advised, to file a fresh written notice in accordance with law as provided under Section 15 of the Act before the District Magistrate/Collector for consideration of “No Confidence Motion” against the petitioner.

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Order Date :- 27.11.2018 Arun

Smt. Madhuri Arya v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Smt. Madhuri Arya v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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