1

AFR

Judgment Reserved on 16 November 2017

Judgment delivered on 21 November 2017

Court No. - 39

Case :- WRIT - C No. - 51900 of 2017

Petitioner :- Devendra Singh

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Rahul Agarwal,Shri Ravi Kant

Counsel for Respondent :- C.S.C.,Pradeep Kumar Sharma, Ashok Khare

Hon'ble Dilip Gupta,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble Dilip Gupta, J.)

An elected Block Pramukh of Block Bithri, Chainpur in district

Bareilly has filed this petition to assail the order dated 24 October 2017

issued by the Collector, Bareilly on the written notice of intention to make

the motion of no confidence against the petitioner.

It is stated that the total strength of the elected members of the

Kshettra Panchayat is 112 and 70 of these elected members submitted a

written notice of intention to make the motion of no confidence with a copy

of the proposed motion against the petitioner to the Collector on 23 October

2017 under Section 15(2) of the U.P. Kshettra Panchayat and Zila Panchayat

Act, 1961

1

. The Collector then issued an order dated 24 October 2017 that

the meeting of all the elected members of the Kshettra Panchayat shall be

held on 11 November 2017 at 10:30 a.m in the office of the Kshettra

Panchayat to consider the proposed motion of no confidence against the

petitioner and also appointed the Sub-Divisional Magistrate Sadar as the

Presiding Officer. Copies of the order as also the proposed motion were

1'the Act'

NeutralPYitationPNoyPBP)b('8"zY8(':jZMBH;

2

endorsed to the Block Development Officer to paste them on the notice

board of the Kshettra Panchayat on 25 October 2017 and to the Zila

Panchayat Raj Officer Bareilly to send copies of the notice/proposed motion

by registered post to all the elected members.

On 8 November 2017, when the matter was taken up by the Court, it

was sought to be contended by Sri Ravi Kant learned Senior Counsel

appearing for the petitioner that the provisions of Section 15(3)(ii) of the Act

had not been complied with as 15 days time for holding such a meeting was

not given to the members. This submission was based on the averments

made in the supplementary affidavit sworn on 7 November 2017 that the

notice sent by the Collector was actually received by 16 members of the

Kshettra Panchayat on various dates between 27 October 2017 and 1

November 2017, while seven members had not received the notice at all.

It was, however, sought to be urged by Sri Ashok Khare, learned

Senior Counsel appearing for the elected Block Pramukh that the notice

dated 24 October 2017 issued by the Collector was not only despatched by

registered post on 24 October 2017 but it was also published in the

newspaper on 25 October 2017. It was also stated by learned Senior Counsel

that the notice and the proposed motion were also pasted on the notice board

of the office of the Kshettra Panchayat on 25 October 2017. The submission,

therefore, was that the provisions of Section 15(3)(ii) of the Act had been

duly complied with.

Learned Standing Counsel was, accordingly, granted time to seek

instructions in the matter and to also place the original records before the

3

Court. It was also ordered that the meeting could take place but the result

would not be declared.

When the matter was taken up by the Court on 16 November 2017, a

third supplementary affidavit was filed by the petitioner stating inter alia

that the order dated 24 October 2017 issued by the Collector had been

subsequently modified and the First Additional City Magistrate had been

appointed as the Presiding Officer instead of the Sub-Divisional Magistrate,

who had earlier been appointed. A chart was also enclosed with the

supplementary affidavit as Annexure-SA-2. It gives the dates on which the

registered envelopes sent by registered post containing the notice and the

proposed motion were received by 43 members of the Zila Panchayat. It

indicates that the envelopes were received by them between 27 October

2017 and 13 November 2017.

Ms. Meenakshi Singh, learned Standing Counsel has produced the

original records. The records indicate that the notice dated 24 October 2017

and the proposed motion of no confidence were despatched by registered

post to all the members of the Kshettra Panchayat on 24 October 2017. The

records also indicate that the notice dated 24 October 2017 and the proposed

motion of no confidence were pasted on the Notice Board of the Kshettra

Panchayat on 25 October 2017 and they were published in the newspaper

Amar Ujala on 25 October 2017.

Sri Ravi Kant, learned Senior Counsel appearing for the petitioner

submitted that the provisions of Section 15 (3)(ii) of the Act have not been

complied with inasmuch as notice of not less than fifteen days of the

4

meeting to be held on 11 November 2017 had not been given to the elected

members of the Kshettra Panchayat. Elaborating his submission, learned

Senior Counsel pointed out that though the notice and the proposed motion

may have been despatched by registered post on 24 October 2017 but since

they were received between 27 October 2017 and 13 November 2017, it

cannot be said that the requirement of giving to the elected members notice

of not less than fifteen days notice had been complied with. According to the

learned Senior Counsel the date of despatch is not relevant and what is

relevant is the date on which the envelopes containing the notice and the

proposed motion are received by the elected members of the Kshettra

Panchayat. The submission is that the Collector has to “give” to the elected

members of the Kshettra Panchayat notice of not less than 15 days of the

meeting and, therefore, the elected members will have information of the

meeting only when the notice is actually received by them and not when it is

despatched .

Learned Senior Counsel has also placed reliance upon Rule 2 of the

Rules framed under Section 237 of the Act to contend that the notice under

Section 15(3)(ii) of the Act can only be sent by registered post and by

affixation of a copy thereof on the notice board in the office of the Kshettra

Panchayat and by no other mode. It is, therefore, his submission that the

publication of the notice in the newspaper is of no consequence. In support

of his contention learned Senior Counsel has placed reliance upon the

5

judgment of the Supreme Court in Dipak Babaria & Anr. Vs. State of

Gujarat & Ors.,

2

.

Sri Ashok Khare, learned Senior Counsel appearing for respondent

No.4-Pankaj Singh who had served the written notice, however, contended

that the provisions of Section 15(3)(ii) had been duly complied with

inasmuch as not only was the notice and the proposed motion despatched by

registered post on 24 October 2017 but the notice was also pasted on the

notice board of the office of Kshettra Panchayat on 25 October 2017 and the

notice was also published in the newspaper on 25 October 2017. Learned

Senior Counsel submitted that the relevant date for determining whether

notice of not less than fifteen days has been given is the date on which the

notice and the proposed motion are despatched by registered post and not

when they are received by the elected members. In support of his contention,

learned Senior Counsel placed reliance upon the decision of the Supreme

Court in Jai Charan Lal & Anr. Vs. State of Uttar Pradesh & Ors.,

3

as

also a Division Bench judgment of this Court in Satya Prakash Mani &

Ors., Vs. State of U.P.& Ors.,

4

. In this connection, learned Senior Counsel

has also placed reliance upon Section 27 of the U.P. General Clauses Act,

1904.

Learned Senior Counsel, therefore, contended that all the elected

members of the Kshettra Panchayat had information that the meeting of the

members of the Kshettra Panchayat shall be held on 11 October 2017 at

10:30 a.m. in the office of the Kshettra Panchayat to consider the Motion of

2(2014) 3 SCC 502

3AIR 1968 SC 5

4(2005) 2 UPLBEC 1883

6

No Confidence against the petitioner and infact 74 elected members attended

and participated in the voting that took place on 11 November 2017.

Learned Standing Counsel also submitted that the provisions of

Section 15(3)(ii) of the Act had been duly complied with and in this

connection placed the relevant pages of the original records.

We have considered the submissions advanced by learned counsel for

the parties.

To appreciate the submissions advanced by learned Senior Counsel

for the parties, it would be appropriate to refer to the provisions of Section

15 of the Act as also the Rules framed under Section 237 of the Act relating

to the form in which a written notice of intention to make the motion of no

confidence will be given by the members of the Kshettra Panchayat and for

prescribing the manner in which the Collector shall give notice of the said

motion to the members of the Kshettra Panchayat.

Section 15 of the Act is reproduced below:

"15 Motion of non-confidence in Pramukh -

(1) A motion expressing want of confidence in the

Pramukh or any of a Kshettra Panchayat may be made

and proceeded with in accordance with the procedure laid

down in the following sub-sections.

(2) A written notice of intention to make the

motion in such form as may be prescribed, signed by at

least half of the total number of elected members of the

Kshettra Panchayat for the time being together with a

copy of the proposed motion, shall be delivered in

person, by any one of the members signing the notice, to

the Collector having jurisdiction over the Kshettra

Panchayat.

(3) The Collector shall thereupon:-

(i) convene a meeting of the Kshettra Panchayat

for the consideration of the motion at the office of the

Kshettra Panchayat on a date appointed by him, which

7

shall not be later than thirty days from the date on which

the notice under sub-section (2) was delivered to him;

and

(ii) give to the elected member of the Kshettra

Panchayat notice of not less than fifteen days of such

meeting in such manner as may be prescribed."

The English version of the Rules framed under Section 237 of the Act

regarding making of a motion of no confidence against the Pramukh or Up-

Pramukh of the Kshettra Panchayat, as amended in 1994, would read as

follows:

"1. A written notice of intention to make a motion

expressing want of confidence in the Pramukh or the Up-

pramukh of a Kshettra Panchayat shall be in Form I of

the Schedule given below.

2. The notice under clause (ii) of sub-section (3) of

Section 15 of the U.P. Kshettra Panchayats and Zila

Panchayats Adhiniyam, 1961, shall be in Form II of the

Schedule given below and shall be sent by registered post

to every member of the Zila Panchayat at his ordinary

place of residence. It shall also be published by affixation

of a copy thereof on the notice board of the office of the

Kshettra Panchayat.

SCHEDULE

FORM I

(Form of the written notice of intention to make a

motion expressing want of confidence in the

Pramukh/Up-pramukh of a Kshettra Panchayat)

To,

The Collector,

. . . . . . . . . . . . . .

Notice

Sir,

We the undersigned members of the . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . Kshettra Panchayat hereby give

this notice to you of our intention to make the motion of

non-confidence in Sri . . . . . . . . . . . . . . . . . . .... . . . . . ,

the Pramukh/Up-Pramukh of our Kshettra Panchayat and

also annex hereto a copy of the proposed motion of non-

8

confidence.

2. The total number of members, who for the time

being constitute the Kshettra Panchayat. . . . . . . . . . . . . . .

. . . . . . . is . . . . . . . . . . . . . . . . . . . . . .

Your faithfully,

1.

2.

3.

4.

Place . . . . . . . . . . . .

Dated . . . . . . . . . . . .

FORM II

(Form of the notice of a meeting of the Kshettra

Panchayat to be held for the consideration of the non-

confidence motion against the Pramukh/Up-Pramukh )

To

Sri . . . . . . . . . . . .

Member of . . . . . . . . . . . Kshettra Panchayat,

District . .. . .. . .. . . . ..

Notice

This notice is hereby given to you of the meeting

of . . . . . . . . . . . . Kshettra Panchayat which shall be held

at the office of the said Kshettra Panchayat on . . . . . . . . .

. . . . . (date) at . . . . . . . . . . . . . . . . . . . . . . .(time) for

consideration of the motion of non-confidence which has

been made against Sri . . . . . . . . . . . . . . . . . , the

Pramukh/Up-Pramukh of the said Kshettra Panchayat.

A copy of the motion is annexed hereto.

Collector . . . . . . . .

Place . . . . . . . . . . . . . . . . . .

Dated . . . . . . . . . . . . . . . . . ."

The total number of elected members of the Kshettra Panchayat is

112. Seventy elected members of the Kshettra Panchayat had submitted the

written notice of intention to make the motion of no confidence. This was

accompanied by the proposed motion of no confidence. Thus, the written

notice of intention to make the motion expressing want of confidence in the

Pramukh was signed by at least half of the total elected members of the

9

Kshettra Panchayat. The provisions of Section 15(2) of the Act were,

therefore, complied with.

On receipt of the notice, the Collector issued an order dated 24

September 2017 for convening a meeting of the elected members of the

Kshettra Panchayat on 11 November 2017 at 10:30 a.m in the office of the

Kshettra Panchayat.

A notice dated 24 October 2017 was thereafter issued by the

Collector. The notice mentions that a meeting of the elected members of the

Kshettra Panchayat would be held in the office of the Kshettra Panchayat at

10:30 a.m. on 11 November 2017 to consider the proposed motion of no

confidence against the petitioner. This notice and the proposed motion of no

confidence were sent by registered post to all the elected members on 24

October 2017. The notice as also the proposed motion of no confidence was

also pasted on the notice board of the Kshettra Panchayat on 24 October

2017. It was also published in the newspaper 'Amar Ujala' on 25 October

2017.

Section 15(3)(ii) provides that the Collector shall give to the elected

members of the Kshettra Panchayat notice of not less than fifteen days of

such meeting in such manner as may be prescribed. As noted above, the

manner has been prescribed in the Rules framed under Section 237 of the

Act. Rule 1 provides that a written notice of intention to make a motion

expressing want of confidence in the Pramukh shall be in Form I of the

Schedule. Rule 2 provides that the notice shall be sent by registered post to

every member of the Kshettra Panchayat at his ordinary place of residence.

10

It also requires it to be published by affixation of a copy thereof on the

notice board of the office of the Kshettra Panchayat. It is not in dispute that

the written notice of intention was in Form-I and that the notice was sent by

the Collector together with the copy of the motion in Form-II.

The main issue that arises for consideration in this petition is as to

whether the provisions of Section 15(3)(ii) of the Act requiring the Collector

to give to the elected members of the Kshettra Panchayat a notice of not less

than fifteen days of such meeting was complied with by the Collector.

To examine this issue, the Court has to ascertain whether the notice

dated 24 October 2017 issued by the Collector, Bareilly for convening a

meeting of the members of the Kshettra Panchayat on 11 November 2017 to

consider the motion of no confidence against the petitioner was despatched

by the Collector by registered post on 24 October 2017 and was pasted on

the notice board of the Kshettra Panchayat on 25 October 2017. The records

and the affidavit do substantiate that the notice and the proposed motion of

no confidence against the petitioner was sent by registered post to all the

elected members of the Kshettra Panchayat on 24 October 2017 and they

were also pasted on the notice board of the Kshettra Panchayat on 25

October 2017.

It would at this stage be appropriate for the Court to refer to two Full

Bench decisions of this Court in Sardar Gyan Singh Vs. District

Magistrate, Bijnor & Ors.

5

and Vikas Trivedi & Ors. Vs. State of U.P. &

Ors.

6

.

51975 AWC 321

6AIR 2014 All 166

11

Sardar Gyan Singh is a Full Bench decision of five Hon'ble Judges

and Section 87-A(3) of the U.P. Municipalities Act 1916 relating to motion

of no-confidence against the President came up for interpretation. The Full

Bench noticed that though Section 87-A contains 15 sub-sections, only the

first three sub-sections were material. They are as follows:-

"87-A: (1) Subject to the provisions of this section, a

motion expressing no-confidence in the President shall be

made only in accordance with the procedure laid down

below.

(2) Written notice of intention to make a motion of no-

confidence on its president signed by such number of

members of the board as constituted not less than one-

half of the total number of members of the Board,

together with a copy of the motion which it is proposed to

make, shall be delivered in person together by any two of

the members signing the notice to the District Magistrate.

(3) The District Magistrate shall then convene a meeting

for the consideration of the motion to be held at the office

of the board, on the date and at the time appointed by him

which shall not be earlier than thirty and not later, than

thirty five days from the date on which the notice under

Sub-section (2) was delivered to him. He shall send by

registered post not less than seven clear days before the

date of the meeting, a notice of such meeting and of the

date and time appointed therefor, to every member of the

board at his place of residence and shall at the same time

cause such notice to be published in such manner as he

may deem fit. Thereupon every member shall be deemed

to have received the notice."

The issue that arose before the Full Bench was as to whether the

provisions of Section 83-A(3) are mandatory or directory. The Full Bench

held that the first part of the section requiring the District Magistrate to

convene a meeting and to send notices to the members is mandatory but the

manner of service of notice and publication of the same is directory in nature

12

and substantial compliance of the same would meet the requirement of law.

The relevant paragraphs are as follows:-

"8. A careful analysis of Sub-section (3) would make

it clear that the first part which requires the District

Magistrate to convene meeting of the Board for

considering the motion of no-confidence against the

President is mandatory. The District Magistrate is

required to perform a public duty in convening a meeting

of the Board for consideration of the motion at the office

of the Board on the date and time as fixed by him, he has

no choice in the matter. He has to convene a meeting on a

date within 30 and 35 days from the date of presentation

of the motion to him. The District Magistrate is further

enjoined to perform a public duty of sending notice of the

meeting to the members, this again is a mandatory

requirement of law which must be strictly complied with.

The second part of the sub-section lays down the manner

required to be followed in sending notices to the

members. It lays down that notice of the meeting shall be

sent by registered post to every member of the Board at

his place of residence. The essence of this provision is to

give information to the members to enable them to avail

opportunity of participating in the meeting convened for

the purpose of considering the no-confidence motion.

The first part of the section requiring the District

Magistrate to convene meeting and to send notices to

the members is mandatory, any disregard of that

provision would defeat the very purpose of the

meeting, but the manner of service of notice and

publication of the same is directory in nature,

therefore a substantial compliance of the same would

meet the requirement of law.

9.The purpose of service of notice by registered

post and publication of the notice otherwise is to

ensure that members should get adequate notice, of

the meeting to enable them to participate in the debate

over the no-confidence motion at the meeting. That

purpose is not defeated if the notice is sent to the

members not by registered post but by other methods

and seven clear days are given to the members. The

legislature never intended that unless notice is sent by

registered post to the members the proceedings of the

meeting would be vitiated. The legislature, no doubt,

stressed that if the two steps as laid down in the sub-

section are taken by the District Magistrate, i.e., notice of

13

the meeting is sent to members by registered post at their

place of residence and further if it is published in the

manner directed by the District Magistrate, a presumption

would arise and every member shall be deemed to have

received the notice of the meeting. In that case it will not

be open to any member to contend that he did not receive

notice of the meeting or that the meeting was illegally

constituted for want of notice. The purpose of sending

notice can be achieved even without sending the same by

registered post. There may be a case where the postal

system may be disorganised and it may not be possible to

send notice by registered post. In that situation the

District Magistrate may send notice to members of the

Board by special messenger giving them seven clear days

before the date of the meeting. In that event the

legislative intent and purpose requiring sending of notice

would be fully achieved, although in that event the rule of

presumption as laid down in the sub-section would not be

available and if a challenge was made by a member that

no notice was received by him, the deeming provision

will not be applicable and it would require proof that the

notice even though sent by ordinary post or by special

messenger was actually served on the member. The

emphasis on sending notice to members by registered

post and for publication of the same in the manner

directed by the District Magistrate, is directed to invoke

the presumption as contemplated in the last sentence of

the sub-section. In the absence of presumption, it is

always open to a party to prove that notice though sent in

a different manner was served on the members. In view

of the above discussion. I am of the opinion that even if

the notice is not sent to the members by registered post

the meeting cannot be held to have been illegally

convened provided it is proved that the notice was

received by the members and they had knowledge of the

meeting.

.. .. ..

.. .. ..

19. The above discussion shows that the preponderance

of the Judicial opinion is that the second part of Sub-

section (3) of Section 87-A is directory, its literal

compliance is not necessary. A substantial compliance

in regard to service of notice of the meeting for

consideration of the motion of no-confidence on the

members will be sufficient and any literal non-

compliance of the said provision will not invalidate the

14

meeting or the motion of no-confidence which may be

adopted at the said meeting. In view of the above

discussion I am of the opinion that the second part of

Sub-section (3), of Section 87-A of the Act laying down

manner for sending the notice to the members of the

Board is directory, while the first part of the said sub-

section requiring the District Magistrate to convene a

meeting and to send notices to the members is mandatory.

It would be sufficient compliance of the directory

provision of this sub-section if notice is served on the

members not by registered post but by any other mode

and in that situation the motion of no-confidence which

may be carried at the said meeting cannot be nullified on

the ground of any literal non-compliance of service of

notice by registered post."

(emphasis supplied)

Vikas Trivedi is a Full Bench decision of three Hon'ble Judges. The

issue that arose before the Full Bench was with regard to the motion of no-

confidence contemplated under Section 15(3)(ii) as also Section 28(2)(3) of

the Act. The Full Bench held that the requirement of giving notice by the

Collector under Section 15(3)(ii) in the prescribed proforma as required by

Rule-2 and Form F-2 was not mandatory and the proceedings would not be

vitiated if there was substantial compliance of the provisions. However,

whether there was substantial compliance of the provisions would depend on

the facts and circumstances of each case. The observations are as follows:-

"63. Now after having noticed the relevant statutory

provisions, the principles of statutory interpretation and

the various judgments of this Court interpreting Section

15 and Section 28 of the 1961 Act, which are up for

consideration in this writ petitions, we have to look into

the statutory provisions under consideration and find out

as to whether the requirement of sending the notice in

accordance with the prescribed proforma with annexures

is mandatory and non compliance of the same shall vitiate

entire proceeding.

15

64. A perusal of sub-section (2) of Section 15 indicates

that it is specifically provided that written notice of

intention to make the motion in such form as maybe

prescribed together with a copy of proposed motion shall

be delivered in person to the Collector. After receiving

the written notice of intention to make the motion along

with proposed motion, it is enjoined on the Collector to

convene a meeting of the Kshetra Samiti for

consideration of the motion on a date appointed by him

which shall not be later than thirty days from the date on

which the notice under sub-section (2) was delivered to

him. Sub-section (3)(ii) of Section 15 requires the

Collector to give notice to the members of not less than

fifteen days of such meeting in such manner as may be

prescribed. The manner in which the notice is to be given

has been prescribed in the rules. As noted above, the

manner of sending notice is prescribed in Rule 2. Rule 2

contains three requirements i.e. (a) shall be in Form-2 of

the schedule given below, (b) shall be sent by registered

post to the Kshetra Samiti at its ordinary place and (c)

shall also be published by affixation of copy thereto on

the Notice Board of the office of the Kshetra Samiti.

Form-2 of the Schedule is the formate of the notice. The

notice is required to contain information regarding

following:-

(a) Name of Kshettra Samiti whose meeting is to be held;

(b) Date of meeting;

(c) Time of meeting; and

(d) The name of Pramukh/Up-Pramukh against whom

motion of no confidence has been brought.

.. .. ..

72. Whether there has been substantial compliance of

the second part of Clause (ii) of Section 15(3) read with

Rule 2 of the Rules and Form II contained in the

Schedule to the Rules, depends on the facts and

circumstances of each case.

.. .. ..

74. The judgment of 5-Judge Full Bench in Gyan

Singh's case (supra) had considered Section 87-A of the

U.P. Municipalities Act, 1916, which is also similar

provision for bringing no confidence motion against the

President of the Municipal Board. As noted above,

Section 87-A sub-clause (3) of the Municipalities Act,

1916 requires the District Magistrate to send the notice by

registered post not less than seven clear days before the

16

date of meeting ......... at his place of residence. The

words used in Section 87(3) were "he shall send

registered post". Sending of the notice by registered post

was thus preceded by word "shall". The Full Bench held

that second part of Section 87(3) which requires sending

of the notice by registered post is not mandatory and

substantial compliance of the said provision was

sufficient and shall not invalidate the proceeding.

Sending the notice in prescribed proforma as required

by Rule 2 read with Form-2 is also procedural

requirement substantial compliance of which shall

serve the purpose. Insisting on compliance of each and

every part of formate of the notice shall be giving

undue weight to the procedure and formate ignoring

the purpose and object of whole statutory provision

and scheme. The ratio of Full Bench judgment in Gyan

Singh's case (supra), as noted above, are fully applicable

while interpreting the provisions of Section 15(3)(ii) read

with Rule 2 and Form-2. The Full Bench in Gyan Singh's

case held that second part of sub-section (3) of Section 87

requiring sending of notice by registered post lays down

the manner required to be followed in sending the notice

to the members which is directory. The same has been

specifically laid down by the Full Bench in paragraphs 8

and 18 which have already been quoted above. We are of

the view that ratio of the Full Bench in Gyan Singh's case

(supra) is fully applicable for interpreting the provisions

of Section 15(3) read with Rule 2 and Form-2.

.. ..

.. ..

77. The provisions of Rule 2 read with Form-2 are also

statutory provisions which are required to be complied

with and there is no discretion in the authorities or they

are not free to disregard the same at their whims. If the

notice, which is sent by the Collector does not

substantially comply with the requirements, the

proceeding may be vitiated, similarly when the notice

substantially comply with the provisions, the action may

survive. This can be explained by giving illustration.

Take an example where Collector after receiving notice

for no confidence motion along with proposal convenes a

meeting and issue a notice to the members which does not

indicate that meeting is fixed for consideration of no

confidence motion against which office bearers,

obviously the said notice cannot be said to be substantial

17

compliance. Another example of non compliance shall be

when notice does not mention even the date of meeting.

The Court has to look into as to whether there is

substantial compliance, and the proceeding will be

allowed not to be vitiated only when the Court is

satisfied that there is sufficient compliance of the

manner in which notice has been sent. ............ "

(emphasis supplied)

It is clear from the aforesaid Full Bench decisions that the notice

contemplated under Section 15(3)(ii) requires the following information to

be given to the elected members:-

(a) Name of Kshetra Samiti whose meeting is to be held;

(b) Date of meeting;

(c) Time of meeting; and

(d)The name of Pramukh/Up-Pramukh against whom

motion of no confidence has been brought."

This issue was also examined by a Division Bench of the Lucknow

Bench in Awadhesh Singh Vs. State of U.P. & Ors.,

7

After referring to

the Full Bench decision in Sardan Gyan Singh and a decision of the

Division Bench of the Lucknow Bench in Jivendra Nath Kaul Vs. State of

U.P. & Ors.,

8

the Division Bench observed as follows:

“In our considered opinion, the said ratio was

again appropriately reiterated while applying it to the

office of Chairman of a Zila Panchayat under the 1961

Act as held in the case of Jivendra Nath Kaul (supra).

The Division Bench in that case was directly considering

the impact of non-fixation of notices by posting on the

notice board which is evident from the recitals contained

in paragraphs 2, 12, 18, 27, 28, 29, 31 and 32 of the said

decision. We are not reproducing the said paragraphs to

unnecessarily burden this judgment, but the crux of the

ratio is, that mere fact that the notice was not pasted

on the notice board of the Zila Panchayat would not

invalidate the convening of the meeting as the purpose

7Misc. Bench No.7171 of 2017, decided on 12 April 2017

81991 (9) LCD 186

18

of issuing notice is to intimate the members of the

date, time and place of the meeting well in time so

that they may come prepared to take part in the

meeting. The judgment clearly states that a man can

have knowledge of a meeting even if he reads a notice

which was served upon one of his colleagues. In such

circumstances, the person cannot even come and say

that he was not served a notice individually, inasmuch

the intention of giving notice is to inform the members

of the Panchayat of the date, time and place in which

a motion of no confidence is to be considered. The

decision cited by Sri Prashant Chandra in the case of

State Bank of India (supra) of the Bombay High Court

would not be attracted as the said decision was not

concerned with any such requirement as involved in the

present case relating to the compliance of procedure

under the 1961 Act. The direct decisions which are closer

to the controversy have already been indicated above and

hence no benefit can be availed of by the petitioner on

the strength of the judgment of the Bombay High Court.

Apart from this, the distinction between form and

content being mandatory or directory has again been

explained in the Full Bench decision of Vikas Trivedi

(supra) which also relies on the earlier Full Bench

decision of Sardar Gyan Singh (supra).”

(emphasis supplied)

Thus, it is clear from the aforesaid decisions rendered by the two Full

Benches that the requirement of giving notice by the Collector under Section

15(3)(ii) in the prescribed proforma as required by Rule-2 and Form-II is not

mandatory and the proceedings will not be vitiated if there has been

substantial compliance of the provisions. What is necessary is that the

elected members should have information regarding the name of the

Kshettra Samiti whose meeting is to be held; the date of the meeting; the

time of the meeting and the name of the Pramukh against whom the motion

has been brought.

19

Sri Ravi Kant, learned Senior Counsel for the petitioner, however,

contended that since Rules 1 and 2 referred to above require publication of

the notice by sending the notice by registered post and by pasting it on the

notice board of the Kshettra Panchayat, the mode adopted for publishing the

notice in the newspaper is of no consequence and cannot be made the basis

for submitting that information had been conveyed to the elected members

of the Kshettra Panchayat. In support of his contention, learned Senior

Counsel has placed reliance upon the decision of the Supreme Court in

Dipak Babaria that if the law requires a particular thing to be done in a

particular manner, it should be done in that way and none other.

The two modes prescribed under the Rule had been adopted. There is

nothing in the Rule which prohibits the Collector from publishing the notice

in the newspaper or serving it personally. These would be additional modes.

It is, therefore, not possible to accept the contention of learned Senior

Counsel for the petitioner.

From what has been stated above, there has been substantial

compliance of the provisions of Section 15(3)(ii) of the Act as all the

members of Kshettra Panchayat had due information that a meeting of the

members of the Kshettra Panchayat expressing want of confidence in the

Block Pramukh would be held on 11 November 2017 at 10.30 a.m in the

office of the Kshettra Panchayat to consider the motion because the notice

and the motion were pasted on the notice board of the Kshettra Panchayat on

24 October 2017 and it was also published in the newspaper on 25 October

2017.

20

In such circumstances, it may not be necessary for the Court to deal

with the submissions advanced by learned Senior Counsel for the petitioner

that the provisions of Section 15(3)(ii) of the Act were not complied since

the notice that was sent by registered post was received by some of the

elected members between 27 October 2017 and 13 November 2017 and,

therefore, the requirement of giving notice of not less than fifteen days had

not been complied with.

However, as learned counsel for the parties have made submissions on

this issue, we consider it appropriate to examine this issue also.

Section 15(3)(ii) of the Act provides that the Collector shall “give” to

the elected members of the Kshettra Panchayat notice of not less than fifteen

days of the meeting. The issue is whether this period of fifteen days should

be counted from the date the notice is despatched by registered post or

should be counted from the date when they are actually received by the

members. It needs to be remembered that once a written notice of intention

to make the motion is submitted in person to the Collector, the Collector has

to, in view of the provisions of Section 15(3)(i) of the Act, convene a

meeting of the Kshettra Panchayat for consideration of the motion on a date

appointed by him which shall not be later than thirty days from the date on

which the notice under sub-section (2) was delivered to him. Sub-section (3)

(ii) of Section 15 of the Act, however, provides that the Collector shall

“give” to the elected members of the Kshettra Panchayat notice of not less

than fifteen days of the meeting. Rule 2 also provides that the notice shall be

sent by registered post to every member of the Zila Panchayat at his ordinary

21

place of residence. These factors have to be kept in mind for determining

whether the period of fifteen days should be counted from the date the notice

is despatched by registered post or the date when it is actually received.

It would be very difficult for the Collector to comprehend, when he

proceeds to give the notice contemplated under Section 15(3)(ii) of the Act

by registered post, the date on which the notice will be received by the

elected members. Can he, in such circumstances, be expected to fix a date by

which all the elected members would have received the notice. The

Collector has also to keep in mind that the meeting has to be held not later

than thirty days from the date on which the notice under Section 15(2) is

delivered to him. There would be no uncertainty if the period of fifteen days

is counted from the date the notice is despatched by registered post.

It also goes without saying that Courts should avoid an interpretation

that would defeat the very legislative measure. This is what has been

observed by the Supreme Court in N. Parameswsaran Unni Vs. G.

Kannan & Anr.

9

while dealing with the provisions of Section 138 of the

Negotiable Instruments Act, 1881. The Supreme Court also observed that

once a notice is sent by registered post by correctly addressing to the drawer

of the cheque, the service of notice is deemed to have been effected and that

interpretation of a statute should be based on an object which the intended

legislation seeks to achieve. The relevant observations are:-

“13. It is clear from Section 27 of the General

Clauses Act, 1897 and Section 114 of the Evidence Act,

1872, that once notice is sent by registered post by

correctly addressing to the drawer of the cheque, the

9(2017) 5 SCC 737

22

service of notice is deemed to have been effected. Then

requirements under proviso (b) of Section 138 stand

complied, if notice is sent in the prescribed manner.

However, the drawer is at liberty to rebut this

presumption.

14. It is well settled that interpretation of a statute

should be based on the object which the intended

legislation sought to achieve:

“It is a recognised rule of interpretation of statutes

that expressions used therein should ordinarily be

understood in a sense in which they best harmonise with

the object of the statute, and which effectuate the object

of the Legislature. If an expression is susceptible of a

narrow or technical meaning, as well as a popular

meaning, the Court would be justified in assuming that

the Legislature used the expression in the sense which

would carry out its object and reject that which renders

the exercise of its power invalid.”

It will also be appropriate to reproduce how “giving of notice” has

been defined in Black's Law Dictionary. The 'giving of notice' is

distinguished from 'receiving of the notice'. It provides that a person notifies

or gives notice to another by taking such steps as may be reasonably

required to inform the other in the ordinary course, whether or not such

person actually comes to know of it. 'A person 'receives' a notice when it is

duly delivered to him or at the place of his business.

It would also be useful to reproduce Section 27 of the U.P. General

Clauses Act and the same is as follows:-

“27. Meaning of service by post.--Where any

Uttar Pradesh Act authorizes or requires any document to

be served by post, whether the expression "serve" or

either of the expressions "give" or "send" or any other

expression is used, then unless a different intention

appears, the service shall be deemed to be effected by

properly addressing, pre-paying and posting by registered

post, a letter containing the document and, unless the

contrary is proved, to have been effected at the time at

23

which the letter would be delivered in the ordinary course

of post."

This issue was also considered by the Supreme Court in Jai Charan

Lal the Supreme Court while examining the provisions of Section 87-A(3)

of the U.P. Municipalities Act, 1916 which are as follows:-

“The District Magistrate shall then convene a

meeting for the consideration of the motion to be held at

the office of the board, on the date and at the time

appointed by him which shall not be earlier than thirty

and not later than thirty-five days from the date on which

the notice under sub-section (2) was delivered to him. He

shall send by registered post not less than seven clear

days before the date of the meeting, a notice of such

meeting and of the date and time appointed therefor, to

every member of the board at his place of residence and

shall at the time cause such notice to be published in such

manner as he may deem fit. There upon every member

shall be deemed to have received the notice.”

It was sought to be contended by the appellant that the notice which

was sent by the District Magistrate by registered post did not allow seven

clear days before the date of meeting as is required to be under the latter part

of sub-section (3) and to substantiate this it was sought to be argued that the

critical date is not the date on which the notice was despatched but the date

on which the notice is received. The Supreme Court repelled this submission

and observed as follows:-

“4. The contentions of the appellant are based

upon the provisions of sub-sections (3) and (5) and it is

contended that there has been a breach of these

provisions and therefore, the resolution is void. Three

arguments in this connection have been raised before us

and we shall mention them now. the First contention is

that the notice which was sent out by the District

Magistrate by registered post did not allow seven clear

days before the date of the meeting as required by the

latter part of sub-section (3). In advancing this argument

24

the learned counsel for the appellant contends that the

critical date is not the date on which the notice is

despatched but the date on which the notice is received.

Since the notice was despatched on the 17th and

presumably reached the next day the learned counsel

excludes the date of receipt of the notice and the date of

the meeting and says that seven days did not intervene. In

our judgment this is an erroneous reading of the sub-

section. The sub-section says that the District Magistrate

shall send the notice not less than seven clear days before

the date of the meeting and the word "send" shows that

the critical date is the date of the despatch of the notice.

As the notice was sent on the 17th and the meeting was

to be called on the 25th, it is obvious that seven clear

days did intervene and there was no breach of this part of

the section.”

A Division Bench of this Court in Satya Prakash Mani & Ors., after

referring to the observations made by the Full Bench of this Court in Gyan

Singh that the essence of provisions of Section 87-A(3) of the U.P.

Municipalities Act is to give information to the members to enable them to

avail the opportunity of participating in the meeting convened for the

purpose for considering the no confidence motion as also the observations

made by the Supreme Court in Jai Charan Lal, observed as follows:-

“34. Even if it is taken that that some members

had received notice that gave less than 15 days time

for the meeting from the date of receipt, the meeting

cannot be invalidated. The relevant thing is date of

giving the notice and not of the date of receipt by the

members. The notice is given on the date when it is

affixed on the notice board or is despatched to the

members. It has also been so held in Jai Charan Lal

Anal Vs. State of U.P. AIR 1968 SC 5 and Ramshrya V.

District Panchayat Raj Officer, Gorakhpur, (1997) 3

UPLBEC 1872.

(emphasis supplied)

25

This decision was followed by the Division Bench in Rajeev Kiran

Vs. State of U.P. & Ors.,

10

Reference was made to Section 27 of the

General Clauses Act and it was observed:-

“Since Section 27 of the General Clauses Act

specifically incorporated the expression “give”, which is

equivalent to the word “give” used under Section 15(3)

(ii) of the Act, therefore, service shall be deemed to be

effected by properly posting, to which there is no such

dispute. The dispute, which has been tried to be raised by

the petitioner herein, is with regard to delivery by hand

on 27 July 2012, which is, according to us, extraneous in

nature.”

Thus, from what has been stated above, it is more than apparent that

Section 15(3)(ii) of the Act requires the counting of fifteen days from the

date of despatch of the notice by registered post and not from the date the

envelopes are received by the elected members.

There is, therefore, no merit in any of the contentions advanced by

learned Senior Counsel for the petitioner.

The writ petition, therefore, deserves to be dismissed and is,

accordingly, dismissed. The interim order is vacated and the respondents are

directed to declare the result of the voting that took place in the meeting held

on 11 November 2017 as expeditiously as is possible.

Order Date :- 21.11.2017

NSC

(Dilip Gupta, J.)

(Jayant Banerji, J.)

10(2013) 2 AWC 1336