A.F.R.

Court No. - 1

Case :- WRIT - C No. - 32482 of 2019

Petitioner :- Niyazuddin And 5 Others

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Mahendra Singh,Shashi Nandan (Sr.

Advocate)

Counsel for Respondent :- C.S.C.,Purushottam Mani Tripathi

Hon'ble Ramesh Sinha,J.

Hon'ble Ajit Kumar,J.

( Per Sinha 'J' for the Bench)

1.Heard Sri Shashi Nandan, learned Senior Advocate assisted

by Sri Mahendra Singh, learned counsel for the petitioners, Sri

Sanjeev Singh along with Sri Purushottam Mani Tripathi, learned

counsel for the respondent No.3, learned Standing Counsel for the

State-respondents and perused the record.

2.By means of present writ petition under Article 226 of the

Constitution, as it came to be filed, a writ of mandamus was

initially sought for commanding respondent No.2, namely, the

District Magistrate, Kushinagar to pass appropriate orders

exercising power vested with him under Section 15(2) of the U.P.

Kshettra Panchayat & Zila Panchayat Adhiniyam, 1961

(hereinafter referred to as 'Adhiniyam, 1961') qua the notice of

“No Confidence Motion” already delivered to him on 9

th

September, 2019 by the members of the Kshettra Panchayat,

Dudahi, District- Kushinagar.

3.The grievance raised by the petitioners is that though a

statutory duty is cast upon the District Magistrate to take a

decision to convene a meeting of Kshettra Panchayat for

consideration of motion of no confidence moved against the

Chairman/ Pramukh within 30 days of the delivery of the notice,

2

the District Magistrate- respondent No.2 was only borrowing time

by holding some roving inquiry in respect of the signatories of the

notice. It had been argued initially that in view of the settled legal

position emerging out from the Full Bench Judgment of this Court

in the case of Smt. Sheela Devi and others v. State of U.P. and

others, 2015 (2) ADJ 325 (FB) followed by the subsequent

Division Benches of this Court, it was not open for the District

Magistrate to conduct a roving inquiry calling for evidence to

arrive at satisfaction regarding genuineness of the signatures of

the members on the notice of no confidence motion.

4.Having found prima facie arguments advanced by the

learned counsel for the petitioners, to be appealing, we passed an

order on 1

st

October, 2019 to the following effect:-

“It is contended by Sri Shashi Nandan, learned Senior

Advocate assisted by Sri Mahendra Singh, learned counsel for

the petitioners that though the notice for no confidence motion

has been moved before the District Magistrate, Kushinagar on

09.09.2019 but he has sit tight over the matter and has not

passed any order till date, resultantly, the notice is getting

frustrated as not only the 15 days clear time has to be given to

the person concerned against whom the no confidence motion

is sought to be stated, but even the meeting has to be convened

within 30 days of the notice.

In such view of the matter, he submits that it is something like

frustrating the provisions contained in the U.P. Kshettra

Panchayats and Zila Panchayat Adhiniyam, 1961.

Let, District Magistrate, Kushinagar file his personal affidavit

on 17.10.2019 to disclose the reasons for not passing any

order on the notice of no confidence motion submitted before

him on 09.09.2019, failing which, the District Magistrate,

Kushinagar shall appear in person before this Court.

Put up on 17.10.2019.”

5.On the date so fixed above, a personal affidavit was filed by

the District Magistrate, Kushinagar annexing therewith a copy of

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an order dated 20

th

September, 2019 holding that in a fact finding

enquiry conducted by him since he has found signatures of 27

members to be valid out of 83 signatories to the notice and the

total members of the House being 149, the notice thus being found

genuinely signed only by members less than 50%, it was not

lawful to convene meeting of the Kshettra Panchayat under sub-

section (3) of Section 15 read with sub-section (2) of Section 15 of

Adhiniyam, 1961 and thus, notice of motion was held to be

incompetent.

6.In such view of the matter, learned counsel for the

petitioners sought time to challenge the order of District

Magistrate and for that we granted time fixing 21

st

October, 2019.

7.Having heard learned counsel for the respective parties, two

legal questions arise for our consideration in the present matter:-

(A). Whether the District Magistrate is justified in conducting the

fact finding enquiry by collecting evidence to consider the notice

of no confidence motion to be genuinely signed by members

which constitute at least half (50%) members of the total strength

of the House and;

(B). What should be the reasonable time within which the District

Magistrate should take a decision either to convene a meeting or

reject the notice for that matter, so as to ensure that legislative

intendment in providing 30 days time for convening a meeting

from the date of notice delivered to the District Magistrate under

Section 15 of Adhiniyam, 1961, is not frustrated.

8.In so far as the first question is concerned, the issue is no

more res integra. The Full Bench of this Court in the case of Smt.

Sheela Devi (supra) vide paragraphs 12, 13, 14 and 15 has

4

observed thus:-

“12. This view which we are inclined to take finds support in an

earlier judgment of a Full Bench of this Court in Mathura

Prasad Tewari v. Assistant District Panchayat Officer,

Faizabad, 1966 ALJ 612. The Full Bench in that case

considered the provisions of Rule 33-B of the U P Panchayat

Raj Rules, 1947 which, at the material time, provided as

follows:

"33-B (1) A written notice of the intention to move a

motion for removal of the Pradhan ... under Sec. 14 ...

shall be necessary. It shall be signed by not less than

one half of the total number of members of the Gaon

Sabha and shall state the reasons for moving the motion

and ... shall be delivered in person by at least five

members signing the notice to the prescribed authority.

(2) The prescribed authority shall, as soon as may be

after the receipt of the notice convene a meeting of the

Gaon Sabha... The meeting so convened shall be

presided over by the prescribed authority or the person

authorised by him in writing in this behalf."

13. Under Rule 33-B (2), the prescribed authority was required

to convene a meeting of the Gaon Sabha as soon as may be

after the receipt of a notice under sub-rule (1) signed by not

less than one half of the total number of members. Chief Justice

M C Desai in the judgment of the majority, held that having due

regard particularly to the need to convene the meeting as soon

as possible and the large number of members of the Gaon

Sabha, it could never have been intention of the State

Government while making the rule that issues such as whether

the signatures on the notice were forged or were obtained by

fraud or coercion be resolved where a long drawn enquiry

would become necessary. In that context, the learned Chief

Justice observed as follows:

"...If a prescribed authority finds that some signatures

are not of members of the Gaon Sabha or are forged or

otherwise invalid and the remaining signatures are

insufficient it would be bound to desist from convening a

meeting but the question before us is different, it being

whether it is required by any rule to make an enquiry.

There may be no provision forbidding an enquiry but

that also is immaterial because the law does not require

everything not forbidden to be done. The most that can

be said is that the matter is at the discretion of the

prescribed authority; if a complaint is made to it that a

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material number of signatures is invalid it may in its

discretion make an enquiry or refuse to make it. If it is a

small enquiry it is justified in making it and if it is likely

to turn out into a long drawn enquiry or if it thinks that

the complaint is not bona fide or is made with the

ulterior object of delaying the convening of the meeting

it is fully justified in not undertaking an enquiry..."

The Full Bench also held as follows:

"...There is nothing to suggest that he may spend days

and even months in enquiring whether the signatures on

the requisition are genuine or not or are obtained

without resort to fraud or coercion or not. If it cannot

be said that he is bound to make an enquiry it cannot be

said that the prescribed authority is bound to make an

enquiry on receipt of a notice under Rule 33-B. Injustice

and anomalies can be imagined but what is certain is

that an enquiry may take a long time and may be

followed by applications for certiorari, mandamus and

prohibition, in turn followed by appeals from orders on

the applications. Then the prescribed authority has no

power to summon witnesses and documents and it is not

understood how it can hold an enquiry.

...Whether a meeting should be convened or not is a

matter only between the prescribed authority and the

signatories delivering the notice to it. The prescribed

authority has to act on its finding that the notice has

been signed by at least half the members and has been

presented by at least five of the signatories. As nobody

has a right to file any objection the question of his

holding an enquiry simply does not arise. Whatever

enquiry is made by it is made entirely at its own

discretion and nobody has a right to compel it to make

it. Obviously there cannot be a right in any person to

compel it to make it when he has not been given a right

to file an objection."

14. The dissenting judgment, it must be noted, also observes

that it was not necessary for the prescribed authority to enter

upon a detailed enquiry and the authority would not go into

difficult question of fraud and duress. However, in the view of

the dissenting judge, the prescribed authority would have to

make a general enquiry if there was a specific allegation that a

particular signature of a living person is forged or is a

signature of a person who is dead. The dissenting judge held

that he was not in agreement with the principle of the majority

that the prescribed authority is not required to make any

6

enquiry on the receipt of a notice of intention to move a motion

for the removal of a Pradhan.

15. In our view, both the decisions of the majority as well as the

minority essentially follow the same line and the area of dissent

is rather narrow. Both the judgments of the majority as well as

the minority postulate that the Collector ought not to make a

detailed enquiry where serious allegations of fraud, coercion

and duress are required to be resolved particularly having

regard to the fact that a meeting had to be convened as soon as

possible. The area of divergence is only this that whereas the

majority left it open to the Collector to determine whether and

if so what enquiry should be held, the view of the dissenting

judge was that the Collector should hold an enquiry so long as

a detailed enquiry into serious questions of coercion or fraud

was not involved. In either view of the matter and since we are

bound by the judgment of the Full Bench, the law on the subject

is thus clear. The Collector, in the course of exercising the

power which is conferred upon him, ought not to enquire into

seriously disputed questions of fact involving issues of fraud,

coercion and duress. Moreover, the Collector must have the

discretion in each case of determining on the basis of a

summary proceeding whether the essential requirements of a

valid notice of an intention to move a motion of no confidence

have been fulfilled. Where in the course of the summary

enquiry, it appears to the Collector that the written notice does

not comply with the requirements of law, the Collector would be

within his power in determining as to whether all the required

conditions have been fulfilled, as enunciated in sub-section (2)

of Section 15. Whether the Collector in a given case has

transgressed his power is separate issue on which judicial

review under Article 226 of the Constitution would be

available. However, we expressly clarify that we are not laying

down a detailed and exhaustive enumeration of the

circumstances in which the Collector can determine the validity

of a notice furnished under Section (2) or those in which he can

make a limited enquiry which, as we have held, he is entitled

and competent to make. Ultimately, each case depends upon its

own facts and it for the Collector to determine as to whether

the objections raised before him are outside the scope of the

limited inquiry which he can make upon notice of an intent to

move a motion of no confidence if it is submitted to him

together with a notice of no confidence.”

9.Further the Full Bench of this Court vide paragraphs 20, 21,

23 and 24 of the judgment (supra) has finally concluded thus:-

“20. The principle which we have laid down in the earlier part

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of this judgment is founded on the basic position that when an

authority has a power to carry out a public act on the existence

of certain circumstances, it has an implied power to make an

enquiry in regard to the existence of those circumstances. This

is a power which flows out of the basic power which is

conferred upon the authority and is incidental to or ancillary

for the purpose of effectuating the purpose of the conferment of

the power. This principle has been recognized in a judgment of

a Division Bench of this Court in Committee of Management,

Sri Gandhi Inter College Vs Deputy Director of Education,

1988 UPLBEC 1057, where it was held as follows:

"...It is a settled law that when an authority is given power

to do certain act on existence of certain circumstances,

there is an implied power to make an enquiry as to

whether those circumstances exist or not. The enquiry in

regard to the existence of those circumstances is included

in the grant of power. In other words, the power of making

enquiry in regard to the existence of those circumstances

flows as necessary means to accomplish the end. In fact,

the enquiry is some thing essential for proper and effectual

performance of duty assigned..."

21. As a matter of statutory interpretation, the duty of the Court

while interpreting legislation, first and foremost is to give effect

to the plain and ordinary meaning of the language contained in

the statute. The legislative intent is best reflected in the words

used by the legislature in enacting legislation. Hence, the Court

will not readily supply a casus omissus except when there is a

clear necessity to do so and that too within the four corners of a

statute. At the same time, where a literal construction of the

words which have been used by the legislature give rise to an

absurdity or a manifestly erroneous result, it is open to the

Court to adopt a purposive interpretation which will give true

effect to the legislative object and scheme. In Padmasundara

Rao (Dead) Vs State of Tamil Nadu JT 2002 (3) SCC 1, the

Supreme Court observed as follows:

"Two principles of construction one relating to casus

omissus and the other in regard to reading the statute as

a whole appear to be well settled. Under the first

principle a casus omissus cannot be supplied by the

Court except in the case of clear necessity and when

reason for it is found in the four corners of the statute

itself but at the same time a casus omissus should not be

readily inferred and for that purpose all the parts of a

statute or section must be construed together and every

clause of a section should be construed with reference to

the context and other clauses thereof so that the

8

construction to be put on a particular provision makes a

consistent enactment of the whole statute. This would be

more so if literal construction of a particular clause

leads to manifestly absurd or anomalous results which

could not have been intended by the Legislature. "An

intention to produce an unreasonable result", said

Danckwerts, L.J., in Artemiou v. Procopiou11, "is not to

be imputed to a statute if there is some other construction

available"."

23. The same principle has been enunciated in the judgment of

a Bench of two learned Judges of the Supreme Court in Shanker

Raju v. Union of India, (2011) 2 SCC 409, where it has been

held that a statute is designed to be workable, and the

interpretation thereof by the Court should be to secure that

object unless a crucial omission or clear statutory direction

makes that end unattainable.

24. For these reasons, we have come to the conclusion that

where a notice is delivered to the Collector under sub-section

(2) of Section 15, the Collector has the discretion to determine

whether the notice fulfills the essential requirements of a valid

notice under sub-section (2). However, consistent with the

stipulation of time enunciated in sub-section (3) of Section 15 of

convening a meeting no later than thirty days from the date of

delivery of the notice and of issuing at least a fifteen days'

notice to all the elected members of the Kshettra Panchayat, it

is not open to the Collector to launch a detailed evidentiary

enquiry into the validity of the signatures which are appended

to the notice. Where a finding in regard to the validity of the

signatures can only be arrived at in an enquiry on the basis of

evidence adduced in the course of an evidentiary hearing at a

full-fledged trial, such an enquiry would be outside the purview

of Section 15. The Collector does not exercise the powers of a

court upon receipt of a notice and when he transmits the notice

for consideration at a meeting of the elected members of the

Kshettra Panchayat. Hence, it would not be open to the

Collector to resolve or enter findings of fact on seriously

disputed questions such as forgery, fraud and coercion.

However, consistent with the law which has been laid down by

the Full Bench in Mathura Prasad Tewari's case, it is open to

the Collector, having due regard to the nature and ambit of his

jurisdiction under sub-section (3) to determine as to whether

the requirements of a valid notice under sub-section (2) of

Section 15 have been fulfilled. The proceeding before the

Collector under sub-section (2) of Section 15 of the Act of 1961

is more in the nature of a summary proceeding. The Collector

for the purpose of Section 15, does not have the trappings of a

court exercising jurisdiction on the basis of evidence adduced

9

at a trial of a judicial proceeding. Whether in a given case, the

Collector has transgressed the limits of his own jurisdiction is a

matter which can be addressed in a challenge under Article 226

of the Constitution. We clarify that we have not provided an

exhaustive enumeration or list of circumstances in which the

Collector can determine the validity of the notice furnished

under sub-section (2) in each case and it is for the Collector in

the first instance and for the Court in the exercise of its power

of judicial review, if it is moved, to determine as to whether the

limits on the power of the Collector have been duly observed.”

10.The aforesaid judgment has been followed by two Division

Benches of this Court in the case of Amit Kumar v. State of U.P.

and 13 others (Writ-C No.- 3982 of 2018) and Kusumawati

Verma v. State of U.P. and 4 others (Writ-C No.- 22702 of

2018).

11.At this stage, we would also like to refer to another Division

Bench judgment of this Court in the case of Smt. Shashi Yadav v.

State of U.P. and others (Writ- C No. 1994 of 2018 decided on

22

nd

February, 2018) in which vide paragraphs 38, 39 and 40 the

Court has held thus:-

"38. We hold the provision regarding the form of written notice

of intention to make the motion required to be submitted to the

Collector on behalf of the members signing the notice under

Section 15(2) is to be directory in nature. A substantial

compliance of the provisions would implement the requirements

of law. A substantial compliance is done when the purpose of

the notice is achieved. The purpose of the notice of intent to

make the motion, is to furnish to the Collector the material on

which he has to found his satisfaction before convening the

meeting. Such material should demonstrate full compliance of

mandatory provisions of 15(2) of the Act. In particular, the

notice should be in writing. It should manifest the clear

intention of the members to make a motion expressing want of

confidence in the Pramukh. It should be signed by at least half

of the elected members. The copy of the no confidence motion

should be attached thereto.

39. In fact, if a strict compliance of the said mandatory parts of

Section 15(2) is done, then the substantial compliance of

directory provisions of the aforesaid of Section 15(2) would be

10

automatically deemed to have been done.

40. If such facts or material can be distilled from the notice to

make a motion expressing want of confidence irrespective of its

form, it substantially complies with the mandate of law. As has

been held, these prerequisites are fulfilled in the instant case."

12.From the reading of the aforesaid authorities what is clearly

revealed is that the ratio behind limiting the power of the District

Magistrate is that he being an authority to take decision for calling

the meeting of the House enjoys only the limited power to ensure

that it has been presented by the members signed/ supported by at

least half (50%) members of the total strength of the House. Even

if they had not signed and their affidavit accompanies the notice, it

has been held that the formalities stand complete. This ratio in the

judgment is in keeping spirit of Legislative intendment in

providing 30 days limited time for the District Magistrate to

convene the meeting to discuss the motion. The Legislature while

drafting this statutory provision seemed to be quite conscious of

sensitiveness of the issue qua confidence of an elected leader of

the House. If the confidence of an elected leader of the House is

put to challenge, in democracy the horse trading phenomenon is

concomitant to a situation where majority is shaking the

confidence while the one affected is pulling the string the other

way. The limited period, therefore, was deliberately provided by

the Legislature to avoid any such unhappy situation getting

created eroding faith of the people in the democratic institution.

One who does not have the confidence of the House must leave in

principle but as the stances are, in practice, it is quite reverse. So,

in case if any enquiry is instituted to verify the signatures by the

District Magistrate of individual members on the notice and then

to parade the members in his office would be something like

putting a caveat to the prerogative of the House to deliberate and

11

vote for or against the motion and this is the reason why the

District Magistrate is certainly not supposed to hold any roving

enquiry as such.

13.Applying the aforesaid principle of law to the facts of the

present case, it is quite reflective from the order of the District

Magistrate now impugned in the present writ petition, that the

District Magistrate virtually paraded the members of the House

and gave opportunity to the respondent Pramukh to bring men in

his support by submitting their notary affidavits. Such an exercise

of power was totally uncalled for. Something what was done in the

House through discussion and voting, got done in the office of the

District Magistrate. Neither the provisions as contained under

Section 15 of Adhiniyam, 1961 contemplated any such powers

nor, any such intendment of the Legislature is presumable behind

the incorporation of such a provision. Hence, the order passed by

the District Magistrate dated 20

th

September, 2019 deserves to be

held bad for undertaking an exercise beyond the authority vested

with the District Magistrate. However, any order by us setting

aside the order passed by the District Magistrate and remitting the

matter for fresh decision would not enable him to convene the

meeting within 30 days of the delivery of notice. Accordingly, we

consider it appropriate to hold that rejection of the present notice

would not come in the way of the petitioners and other members

of the Kshettra Panchayat in moving fresh notice for no

confidence motion, if they so desire.

14.The necessity to frame second question (supra) has arisen

on account of the fact that we have experienced in the past as

number of writ petitions have come to be filed seeking directions

to District Magistrate to take decision within limited period of

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time so that the notice does not get frustrated on account of

mandatory 30 days limitation prescribed for, under sub-section (3)

of Section 15 of Adhiniyam, 1961.

15.In order to deal with the second point, it is necessary to

reproduce sub-section (3) of Section 15 of Adhiniyam, 1961:-

“15. Motion of non-confidence in Pramukh or Up-

Pramukh- (1) ….......

(2) …....

(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 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.

Explanation - In computing the period of thirty days specified

in this sub-section, the period during which a stay order, if

any, issued by a Competent Court on a petition filed against

the motion made under this section is in force plus such

further time as may be required in the issue of fresh notices of

the meeting to the members, shall be excluded.

(4) ........."

(emphasis supplied)

16.From the bare reading of the aforesaid provision two

important and mandatory requirements appear to be:-

(1). Meeting has to be convened within 30 days from the date on

which the notice under sub-section (2) of Section 15 was delivered

to the District Magistrate and;

(2). There should be a notice of not less than 15 days qua the

scheduled meeting.

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17.A Division Bench of this Court in the case of Kamal

Sharma v. State of U.P. and others (Writ-C No. 9763 of 2013

decided on 5

th

October, 2013) has held that in computing 15 days,

the date of issuance of notice and of the meeting scheduled have

to be excluded. The Division Bench vide 26 of the judgment

(supra) has held thus:-

“26. There is no difference in the words "at least" and "not

less than". Admittedly, the notice dated 13.2.2013 was

dispatched to the elected members on 14.2.2013 by speed post

for convening the meeting which was scheduled to be held on

1.3.2013. While computing 15 days period the two terminal

dates have to be excluded. Thus 15 days clear notice was not

given to the elected members.”

18.In such above view of the matter, therefore, the District

Magistrate is required to proceed keeping the above calculations

in mind. Once he has been delivered with the notice of no

confidence motion, he is bound in law to take a decision whether

to convene a meeting or not to convene a meeting. And if he has

to convene a meeting then he has to keep in mind that he has to

provide 15 clear days notice on one hand and then the meeting

scheduled has to be within 30 days prescribed for under the

Statute.

19.Accordingly and in view of the sensitiveness of the issue of

no confidence motion, it is always necessary to take quick

decision in a reasonable period of time. In view of the ratio of the

judgment of the Full Bench (supra) and the subsequent Division

Benches, the District Magistrate is not to hold any roving and

detailed fact finding enquiry. He has to only satisfy that the notice

bears the signature or if does not bear, it has the requisite number

of affidavits supporting it or appended to it which may make the

notice competent within the meaning of sub-section (2) of Section

14

15 of Adhiniyam, 1961 in the light of the judgment of the Division

Bench of this Court in the case of Smt. Shashi Yadav (supra).

20.There is a logic also behind the above; if the House is not

supporting the motion, the members per majority would vote

against it and resultantly it will fall. Merely because the notice has

been delivered to the District Magistrate and he has convened the

meeting by scheduling it, does not mean that motion has stood

carried nor, does it raise presumption that the Chairman or the

Pramukh has lost the confidence. The ultimate show of strength is

always on the floor of the House and in any democratic institution

where the elected members constitute the House, this exercise has

to be done in the House itself, instead of wasting time in the office

of the District Magistrate parading the members of the House for

verification of the signatures etc.

21.A purposive interpretation of a statutory provision would

entail an exercise to understand the intendment of Legislature

first. As we have already discussed above as to how the statute in

the present case limits the discretion of the District Magistrate in

matters of decision making on a delivered notice so as to ensure

that meeting to discuss the motion on all counts is held within 30

days, it comes out to be a case where we need to look for

contextual construction of the given provisions. In ordinary sense

of the words 'rule of construction' means literal interpretation of

the provision. However, at times discretion is provided for, with

certain riders, putting a crease of limits upon powers but the

question is how within those limit an authority should exercise in

a case of limited authority given under statute and the answers, in

our view, is discipline in exercise of authority. If a pendulum

swings 60 times ordinarily to hit the 60

th

second, it follows a

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discipline to strike a minute. So the end result is guided by the rule

of discipline. The power if is vested in an authority to draw a

proceeding to its logical end, the exercise of power should be

aimed at achieving the said end result flawlessly. One who has the

discretion to reject a notice holding it as not competent in his

wisdom based on conclusion drawn, he must not shirk away from

a prompt decision. The Legislature though did not provide for

definite period for taking decision but since the statute provides

for maximum 30 days to direct for a meeting and that too with a

15 days' clear notice, it contextually means that District Magistrate

has to take decision within a limited time to ensure that purpose of

notice is not frustrated. Discipline of time in decision making

process, in such circumstances is contextually a must.

22.The question now is what should be a time reasonable

enough, for the District Magistrate to take a decision. As we have

already discussed the provision, a meeting not only has to be

convened with 15 days' clear notice but the meeting in all

conditions have to be called within 30 days of the delivery of

notice. This being the situation, the District Magistrate has

maximum 14 days from the date of delivery of notice to consider

the notice and pass an appropriate order. We may also notice at

this stage that explanation appended to sub-section (1) of Section

15 saves a situation where a notice has been issued convening the

meeting as per the provisions but the same has come to be stayed

in a court proceeding. So the time spent in a court proceeding and

time taken in issuing a fresh notice have come to be excluded. But

there is no saving provision to the effect that in case if notice is

returned/ rejected by the District Magistrate and the same is

challenged in a court of law and if set aside, would the period of

30 days exclude the period of court proceeding and the period that

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may be taken by the District Magistrate in issuing a fresh order in

the light of the order of the Court.

23.Equally by any rule of interpretation, we cannot apply the

aforesaid saving clause given in the explanation (supra) to such

above situation, this Court in the case of Anil Kumar Singh v.

State of U.P. and others (Writ- C No.- 29087 of 2019 decided on

24

th

September, 2019) has held thus:-

“In view of the legislative intent behind the provision, this

Court exercising its power under Article 226, cannot pass a

direction which would not only carry out a new exception to

the general law but in substance would amount to an

exercise, quite legislative in nature, which is clearly not

permissible. The law is very clear that a casus omissus can in

no case be supplied by a Court of Law, for that would be to

make laws (per Buller J. in Jones vs. Smart, 99 ER 963),

except in some case of absolute necessity. The settled legal

position as a rule of interpretation is that the Court cannot

read anything into a statutory provision or rewrite a provision

which is plain and unambiguous. A statute is an edict of the

legislature. The language employed in a statute or any

statutory provision is the determinative factor of legislative

intent of policy makers. [Union of India vs. Rajiv

Kumar(2003) 6 SCC 516].”

24.The issue, therefore, is that a 14 days' time is permitted to

the District Magistrate to take a decision and if he rejects notice or

returns the notice for that matter, the litigant and supporting

members who have challenged the order of the District

Magistrate, are rendered remediless. In our considered opinion,

this cannot be the intention of the Legislature. The Legislative

intent in not providing any saving provision in such

circumstances, seems to be for simple reason that under sub-

section (12) of Section 15 a fresh motion is barred only in case

motion falls, however rejection of notice does not beget such a

situation and so fresh motion can always be moved. The issue

does not get resolved here because if the process is again led, the

17

same procedure will be followed and again the District Magistrate

shall pass an order and same will again be challenged in a court of

law and then if it is quashed, the situation would turn out to be the

same as in this case and so it will all lead to an endless process.

This will not be a happy situation either and, therefore, in our

considered opinion, it is necessary to ask the District Magistrate to

take a decision upon delivery of notice to him either way i.e. to

return the notice or fixe the date for the meeting to discuss the

motion, within a reasonable time.

25.In such above view of the matter, therefore, we hold that 7

days' time is sufficiently reasonable time for the District

Magistrate to form an opinion whether to convene a meeting or

not to convene a meeting. However, in exceptional circumstances

and for the reasons to be recorded in writing, he may take further

time but in all circumstances he shall have to pass an order before

the expiry of the 13th day of the delivery of the notice. We may

hasten to add that this extended period from 7

th

day to 13

th

day

should be resorted to in a rarest of the rare cases and should be in

a very exceptional and compelling circumstance. We hold,

therefore, that if he finds that the notice is supported with

signatures or the affidavits of the members consisting at least half

(50%) members of the total strength of the House, he is bound to

convene meeting. While he may hold a preliminary enquiry only

to the extent as has been held by the Full Bench (supra), he has to

place the motion before the House scheduling the meeting as

contemplated under the law. The urgency involved in such matters

and in the backdrop of sensitiveness of the issue of no confidence

motion, the earlier is decision taken by the District Magistrate

lesser would be the chance of speculations and manipulations at

the end of the office of District Magistrate. District Magistrate is

18

the head of the district civil administration and so his office must

send message absolutely clear and loud qua righteousness. The

fairness in approach should be apparent on the face of the record.

The District Magistrate has been entrusted with this onerous duty

on account of his position as a responsible head civil servant and,

therefore, he is supposed to be conscious of his sacrosanct

position while dealing with such matters.

26.Accordingly, while disposing of this writ petition, we are

issuing following directions:-

(1). Once delivered with the notice of “No Confidence Motion”

the District Magistrate shall only ensure that it is signed by at least

half (50%) members of the total strength of the House and carries

the names of those who have signed and are elected members and

the enquiry will be limited to the extent as observed by us

hereinabove following the Full Bench judgment and the judgment

in the case of Smt. Shashi Yadav (supra).

(2). The District Magistrate in all such matters of “Notice of No

Confidence Motion” once delivered to him shall take decision

either to call a meeting or return the notice on the expiry of 7

th

day

of the delivery of the notice unless he has reasons to be recorded,

to take more time but in no case he shall have to pass order by the

13

th

day of the delivery of notice.

(3). District Magistrate shall ensure that clear 15 days notice is

published and also sent by registered post excluding the date of

publication of notice and the date of the scheduled meeting.

27.Registrar General of this Court is directed to send a copy of

this order forthwith to the Chief Secretary, State of U.P., Lucknow

for communication and compliance to all the District Magistrates

19

of the State of Uttar Pradesh.

Order Date :- 21.10.2019

Atmesh

(Ajit Kumar,J.) (Ramesh Sinha,J.)

20

Court No. - 1

Case :- WRIT - C No. - 32482 of 2019

Petitioner :- Niyazuddin And 5 Others

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Mahendra Singh,Shashi Nandan (Sr.

Advocate)

Counsel for Respondent :- C.S.C.,Purushottam Mani Tripathi

Hon'ble Ramesh Sinha,J.

Hon'ble Ajit Kumar,J.

Ref:- Civil Misc. Amendment Application

Heard learned counsel for the parties.

Amendment application is allowed.

Learned counsel for the petitioners is permitted to carry out

necessary amendment in the prayer clause of the writ petition

during the course of the day.

Order Date :- 21.10.2019

Atmesh

(Ajit Kumar,J.) (Ramesh Sinha,J.)