1

AFR

Reserved on 27 October 2017

Delivered on 6 November 2017

Court No.39

Case :- WRIT - C No. - 41600 of 2017

Petitioner :- Parveen Siddiqui

Respondent :- State Of U.P.Thru.Prin.Secy.Min.Of Panchayati Raj & 3

Others

Counsel for Petitioner :- Subodh Kumar,Sudhir Dixit,Udit Chandra

Counsel for Respondent :- C.S.C.,Onkar Nath Mishra

Hon'ble Dilip Gupta,J.

Hon'ble Jayant Banerji,J.

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

The petitioner, who is an elected Block Pramukh of Kshettra

Panchayat Damkhoda in District Bareilly, has sought the quashing of the

notice dated 30 August 2017 issued by the Collector, Bareilly under

Section 15(3) of the U.P. Kshettra Panchayats and Zila Panchayats

Adhiniyam, 1961

1

for calling a meeting of the members of the Kshettra

Panchayat on 15 September 2017 to consider the motion expressing want

of confidence in the Block Pramukh.

It has been stated that since the said notice was sent by registered

post by the Collector on 31 August 2017 and received by the petitioner on

1 September 2017, the provisions of Section 15(3)(ii) of the Act that

require the Collector to give to the elected members of the Kshettra

Panchayat notice of not less than fifteen-days of the meeting of Kshettra

Panchayat to be held for consideration of the motion of no confidence on

15 September 2017, were not complied with as the date on which notice

1the Act

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2

is despatched and the date on which the meeting is to be held have to be

excluded. It has further been stated that the notice was not accompanied

by a written notice of intention to make the motion of no confidence.

It is for this reason that when the matter was taken up by the Court

on 14 September 2017, time was given to the learned Standing Counsel to

seek instructions in the matter and it was further directed that the meeting

scheduled to be held on 15 September 2017 could be held but the result of

the meeting shall not be declared without the leave of the Court.

A short counter affidavit has been filed on behalf of the Collector,

Bareilly, the District Panchayat Raj Officer

2

and the Block Development

Officer

3

, Damkhoda who have been impleaded as respondent nos.2, 3 and

4 to the writ petition. A counter affidavit was also filed on behalf of

respondent no.5 who had submitted the motion of no confidence before

the Collector, Bareilly.

In the short counter affidavit filed by the State respondents, it has

been stated that there are 89 elected members of the Kshettra Panchayat

Damkhoda. A notice dated 29 August 2017 in Form-1 signed by 65

members enclosing the proposed motion expressing want of confidence

in the petitioner with their affidavits was submitted before the Collector

on 29 August 2017. Thereupon, the Collector issued the notice dated 30

August 2017 convening a meeting of the members of the Kshettra

Panchayat on 15 September 2017 at 10.30 a.m. in the office of Kshettra

Panchayat for consideration of the motion of no confidence. The

Collector by order dated 30 August 2017 directed the DPRO to serve the

2DPRO

3BDO

3

notice upon all the members of the Kshettra Panchayat by registered post.

In compliance of the order passed by the Collector, the notice was sent by

registered post on 31 August 2017 to all the members of the Kshettra

Panchayat and was also served upon substantial members of the Kshettra

Panchayat personally. A copy of the notice dated 30 August 2017 along

with the written notice of intention to make the motion signed by 65

members of the Kshettra Panchayat was also pasted on the Notice Board

of Block Damkhoda on 30 August 2017. It has also been stated that the

Assistant Development Officer (Panchayat), Block Damkhoda

4

, by a

report dated 30 August 2017, informed that the direction to paste the

notice on the Notice Board had been duly complied with. It has,

therefore, been stated that all the 89 elected members of the Kshettra

Panchayat, including the petitioner, had information about the meeting

scheduled to take place on 15 September 2017 for consideration of the no

confidence motion moved by 65 members of the Kshettra Panchayat

Damkhoda against the petitioner. The short counter affidavit further

mentions that all the 89 members of the Kshettra Panchayat participated

in the meeting and the voting that took place on 15 September 2017. The

result has, however, not been declared in view of the order dated 14

September 2017 passed by the Court.

A rejoinder affidavit has been filed by the petitioner to the short

counter affidavit filed by the State respondents. It has been stated that the

notice was not pasted on the Notice Board of Block Damkhoda nor all the

members of the Kshettra Panchayat were served personally. The report

4ADO (Panchayat)

4

submitted by the ADO (Panchayat) has been stated to have been obtained

on a back date as it was practically impossible for the DPRO to send the

order passed by the Collector to BDO and then to Block Damkhoda on

the same day. A copy of the 'Dakbahi Register' of Block Damkhoda has

been enclosed with the rejoinder affidavit to emphasise that the order

dated 30 August 2017 passed by the Collector was in fact received in the

office of BDO Damkhoda on 4 September 2017.

In view of the averments made in the rejoinder affidavit, the Court

directed the DPRO to file a detailed affidavit to specify the date on which

and the mode by which the order dated 30 August 2017 passed by the

Collector was received in the office of the BDO Damkhoda and also

specify the date on which it was pasted on the Notice Board of Block

Damkhoda.

A supplementary counter affidavit has been filed on behalf of the

DPRO and paragraphs 5, 6, 7, 8, 9, 10, 11 and 12, which are relevant for

the purposes of the controversy involved in this petition, are reproduced

below:-

“5.That the contents of paragraph no. 4 of the

rejoinder affidavit are not admitted as stated and in

reply, it is submitted that the notice of No Confidence

Motion bearing no. 3327-C dated 30.8.2017 was duly

served upon the members of Kshetra Panchayat

Damkhoda by publication on notice board, personal

service as well as registered post as required under

law.

6.That the contents of paragraph nos. 5, 6 & 7 of

the rejoinder affidavit are vehemently denied. The

assertions made thereunder are incorrect, based only

on presumptions and are contrary to the record. The

notice dated 29

th

August 2017 on Prapatra-1 duly

signed by 65 members (out of 89 members) of Kshetra

5

Panchayat Damkhoda, Bareilly along with proposal of

No Confidence was presented by members of Kshetra

Panchayat, Damkhoda, Bareilly before the District

Magistrate, Bareilly on 29

th

August 2017 and on the

same day, the same was marked to DPRO, Bareilly for

necessary action as per U.P. Kshetra Panchayats ad

Zila Panchayats Adhiniyam, 1961, hereinafter referred

to as the 'Act'. It is not out of place to mention that the

office of District Panchayat Raj Officer, Bareilly is

situated in Vikas Bhawan at a distance of about 1 Km.

from the office of District Magistrate, Bareilly. The

DPRO, Bareilly after completing formalities in

accordance with the Act put up the file including draft

order to appoint Presiding Officer, notice to be served

upon the members of Kshetra Panchayat Damkhoda

informing the date of meeting of Kshetra Panchayat

Damkhoda for consideration of No Confidence

Motion, on the date to be fixed by the District

Magistrate vide note-sheet on 29

th

August 2017. After

due consideration, the District Magistrate, Bareilly

approved the date of meeting of Kshetra Panchayat,

Damkhoda and vide order no. 3326-C appointed the

Sub Divisional Magistrate, Bareilly to preside over the

meeting of Kshetra Panchayat Damkhoda dated

15.09.2017 for consideration of No Confidence

Motion brought against Block Pramukh of the said

Kshetra Panchayat. The said letter was endorsed to all

concerned including Block Development Officer

Damkhoda, DPRO Bareilly, Sub Divisional

Magistrate, Bareilly etc. for ensuring, necessary steps

on the date of meeting. The order no. 3326-C and the

notice dated 3327-C dated 30

th

August 2017 duly

signed by the District Magistrate, Bareilly to be served

upon all the members of Kshetra Panchayat

Damkhoda, District Bareilly along with proposal of

No Confidence Motion were received from the office

of District Magistrate, Bareilly by Shri Kamlesh

Kumar, a Class IV employee in the office of DPRO,

Bareilly on 30

th

August 2017 itself. The reference

thereto finds place in the entry of 30

th

August 2017 in

the Register maintained by the office of District

Magistrate. For convenient perusal of this Hon'ble

Court true copies of the aforesaid letter/orders of

District Magistrate bearing nos. 3326-C, 3327-C and

relevant extract of the Register of the office of District

Magistrate, Bareilly are being filed herewith and

marked as Annexures SCA-1, SCA-1A & SCA-1B to

this supplementary counter affidavit respectively.

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7.That the staff of Block Development Officer,

Damkhoda received the letter/order of District

Magistrate nos. 3326-C, 3327-C along with letter no.

3060-C of DPRO, Bareilly, directing the Block

Development Officer, Damkhoda to publish notice on

notice-board on 30

th

August. The said fact is duly

recorded in the Register of office of DPRO, Bareilly

of the date 30

th

August 2017 recording the documents

date-wise made available to 15 blocks including the

Block Damkhoda, falling within the jurisdiction of

DPRO, Bareilly. For convenient perusal of this

Hon'ble Court a true copy of the letter no. 3060-C of

DPRO, Bareilly addressed to Block Development

Officer, Damkhoda, who on the same day marked the

said letter to Assistant Development Officer

(Panchayat), Damkhoda for compliance, and relevant

extract of the Register are collectively being filed

herewith and marked as Annexures SCA-2 & SCA-

2A to this supplementary counter affidavit

respectively.

8.That it is relevant to submit that at the relevant

time the post of Block Development Officer,

Damkhoda was vacant and accordingly, the District

Magistrate, Bareilly vide separate order dated 6

th

July

2017 assigned the additional charge of Block

Development Officer, Damkhoda to the then District

Youth Welfare Officer, Bareilly, whose office is also

situated on IInd Floor in Vikas Bhawan, Bareilly

itself, which also houses the office of District

Panchayat Raj Officer, Bareilly. A true copy of the

order of the District Magistrate, Bareilly dated 6

th

July

2017 circulated by Chief Developmental Officer,

Bareilly and the charge certificate dated 6

th

July 2017

are collectively being filed herewith and marked as

Annexure SCA-3 to this supplementary counter

affidavit.

9.That as the date of meeting was fixed on

15.09.2017 the officiating BDO rushed to Block

Damkhoda and handed over the letter/ order no. 3326-

C and notice no. 3327-C signed by District Magistrate,

Bareilly to the Assistant Development Officer

(Panchayat) posted at Block Damkhoda who got the

same pasted on the notice board on 30

th

August 2017

and reported compliance of pasting of the notice on

the notice board of Kshetra Panchayat Damkhoda on

30.08.2017 to the authorities, a copy whereof has

already been filed as Annexure -2 to the short counter

affidavit.

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10.That it is not out of place to mention here that

apart from pasting of the notice and No Confidence

Motion on the notice board, the Assistant

Development Office (Panchayat), Damkhoda got the

notice along with Motion of No Confidence served

upon the members of Kshetra Panchayat Damkhoda

personally. Substantial members were duly served by

the said process also.

11.That apart from publication of notice on

Prapatra-1 and motion of no confidence pasted on

notice board of Block Damkhoda on 30

th

August 2017,

the same were duly sent to all 89 members of Kshetra

Panchayat Damkhoda by registered post on 31

st

August 2017. Thus, substantial compliance of

provisions of law, to serve impugned notice along

with no confidence motion to the members of Kshetra

Panchayat Damkhoda by the process of publication on

notice board, personal service and registered post, has

been made. The assertions to the contrary are false,

incorrect and specifically denied.

12.That the assertions made in paragraph -5 of the

rejoinder affidavit that the impugned order/notice

dated 30

th

August 2017 issued by the District

Magistrate, Bareilly was received in the office of

Block Development Officer on 04.09.2017 are false

and incorrect. Copy of the Dak Bahi Register filed as

Annexure-1 to the rejoinder Affidavit is of the date of

30

th

August 2017 itself. The petitioner has obtained

copy of the Dak Bahi unofficially in connivance with

Shri Mahsood Ahmad (Urdu Translator/Senior

Assistant ) posted in Block Damkhoda by pretending

it to be of the date of 04.09.2017 after scoring the date

30.08.2017. The action of the aforesaid Senior

Assistant referred above was found to be contrary to

the Government Servant's Conduct Rules and

accordingly the Block Development Officer,

Damkhoda has already informed the said fact to the

said officials for appropriate action. For convenient

perusal of this Hon'ble Court a relevant extract Dak

Bahi Register of Block Damkhoda and the order

Block Development Officer Damkhoda are being filed

herewith and marked as Annexures SCA-4 & SCA-5

to this supplementary counter affidavit respectively.”

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A rejoinder affidavit to the aforesaid supplementary counter

affidavit has been filed by the petitioner and paragraphs 4, 5, 6 and 7 are

reproduced below:

“4.That the contents of Paragraph No. 3 of the

Supplementary Counter Affidavit is not admitted and

denied specifically and it is the further submitted that

the perusal of the Dakbahi Register of Block

Damkhoda District Bareilly, shows that the order

dated 30.08.2017 bearing paper No. 3326-C passed by

the District Magistrate Bareilly was received on

04.09.2017 and it is false to say that order dated

30.08.2017 bearing paper No. 3326-C was received in

the office of Block Development Officer (hereinafter

referred as B.D.O), Block Damkhoda, District Bareilly

was received on 30.08.2017.

5.That it is also false to say that date 30.08.2017

was cut and later on 04.09.2017 was written. A

perusal of the register starting from date 22.08.2017 to

13.09.2017 shows that prior to 04.09.2017 the last

date was 29.08.2017 and and entry of letter No. 779-

80 shows that it was received on 31.08.2017 and the

order dated 30.08.2017 bearing Paper No. 3326-C,

passed by District Magistrate Bareilly was received in

the office of B.D.O Block Damkhoda district Bareilly

04.09.2017 and an entry at Serial No.1 dated

04.09.2017 shows that the copy of the order dated

3326-C dated 30.08.2017 as served to the SHO Police

Station Devania on 04.09.2017 and an entry at Serial

No. 3 shows that the copy of the order dated 3326-C

dated dated 30.08.2017 was received by the S.D.M,

Bahedi on 04.09.2017, by which it is clear that order

dated 30.09.2017 bearing Paper No 3326-C passed by

District Magistrate Bareilly was not served in the

office B.D.O Block Damkhoda prior to 04.09.2017.

The Xerox Copy as well as typed copy of the Dakbahi

of Block Damkoda, District Bareilly from date

22.08.2017 to 13.09.2017 is being filed herewith and

marked as Annexure No. RA-1 to this Rejoinder

Affidavit.

6.That it is pertinent to mention here that an order

dated 30.08.2017 bearing paper No. 3060-C dated was

not received in the office of B.D.O Block Damkhoda

as shown in the Dakbahi and it is also important to

mention here that the copy of order dated 30.08.2017

bearing Paper No. 3060-C passed by D.P.R.O.

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Bareilly was annexed with the short counter affidavit

filed by Respondent Nos. 2, 3 & 4 dated 23.09.2017.

The copy was annexed as Annexure No. 2, Page No.

16 in the Short Counter Affidavit, but a perusal of it

shows that there has been no endorsement/signature of

the B.D.O dated 30.08.2017 and similarly copy of the

order bearing paper No. 3326-C dated 30.08.2017

passed by District Magistrate Breilly, the copy of

which was already annexed as Annexure No. SCA-2

in Short Counter Affidavit dated 23.09.2017, Paper

No. 14-15 does not bear any endorsement/signature of

the B.D.O Block Damkhoda, but copy of the same

order has been annexed as Annexure No. SCA-1

bearing Paper No. 10-11 shows an

endorsement/signature of order dated 30.08.2017,

which clearly shows that these endorsements/

signatures have been made later on after notice by this

Hon'ble Court just to show that the order dated

30.08.2017 was served and pasted on the notice board

on 30.08.2017 though a perusal of all documents

shows that the letter bearing paper No. 3060-C dated

30.08.2017 passed by D.P.R.O Bareilly was not

received in the office of B.D.O Block Damkhoda

Bareilly. The true copies of the both the orders one

bearing endorsements/signatures and others having no

endorsements/signatures on the orders dated

30.08.2017 bearing Paper No. 3326-C, passed by

District Magistrate Bareilly and orders dated

30.08.2017 bearing paper No. 3060-C, passed by

D.P.R.O Bareilly are being filed, herewith and marked

as Annexure No. RA-2 & RA-3 respectively to this

Rejoinder Affidavit.

7.That is is also pertinent to mention here that a

perusal of the order dated 30.08.2017 bearing letter

No.3326-C, passed by District Magistrate Bareilly

shows that D.P.R.O. Bareilly was directed to send the

copies of the notice regarding no confidence motion

by way of registered post to the members of the

Kshetra Panchayat and it has not been mentioned in

the order that the copy of the order will be pasted on

the notice board of the office of the B.D.O. Block

Damkhoda, District Bareilly.”

It is on the basis of the averments made in the writ petition and the

affidavits referred to above that Sri Shashi Nandan, learned Senior

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Counsel for the petitioner assisted by Sri Udit Chandra and Sri Sudhir

Dixit submitted that the notice dated 30 August 2017 issued by the

Collector, Bareilly was not pasted on the Notice Board of Block

Damkhoda and was only sent by registered post on 31 August 2017. It is,

therefore, his submission that there has been no compliance of the

provisions of Section 15(3)(ii) of the Act inasmuch as members of the

Kshettra Panchayat were not given fifteen-days notice of the meeting to

be held on 15 September 2017 for consideration of the motion of no

confidence against the petitioner. Learned Senior Counsel placed reliance

upon the 'Dakbahi Register' of Block Damkhoda and submitted that when

the notice issued by the Collector on 30 August 2017 was actually

received in the office of Block Damkhoda on 4 September 2017, it could

not have been pasted on its Notice Board on 30 August 2017.

Sri A.K. Goyal, learned Additional Chief Standing Counsel

appearing for the State respondents, however, on the basis of the

averments made in the short counter affidavit as also the supplementary

counter affidavit, submitted that the notice dated 30 August 2017 issued

by the Collector was pasted on the Notice Board of the Kshettra

Panchayat, which is also one of the modes prescribed under the Rules

framed under Section 237 of the Act. It is also his submission that not

only was the said notice also sent by registered post to all the members of

the Kshettra Panchayat on 31 August 2017 but substantial number of

members had also received it personally on 30 August 2017. Learned

Additional Chief Standing Counsel also submitted that the fact that all the

11

members of the Kshettra Panchayat had information about the meeting

scheduled to take place on 15 September 2017 also finds support from the

fact that all the 89 members of the Kshettra Panchayat, including the

petitioner, attended the meeting on 15 September 2017 for consideration

of the no confidence motion against the petitioner.

Sri M.D. Singh 'Shekhar', learned Senior Counsel appearing for

respondent no.5 also submitted that the notice dated 30 August 2017

issued by the Collector was pasted on the Notice Board on 30 August

2017 itself and, therefore, there was substantial compliance of the

provisions of Section 15(3)(ii) of the Act. In support of this contention,

learned Senior Counsel placed reliance upon a Division Bench judgment

of this Court in Smt. Sarita Devi Vs. State of U.P. & Ors.

5

as also the

Division Bench judgments of the Lucknow Bench in Awadhesh Singh

Vs. State of U.P. & Ors.

6

and Jivendra Nath Kaul Vs. State of U.P. &

Ors.

7

.

We have considered the submissions advanced by learned Senior

Counsel for the parties.

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

whether the provisions of Section 15(3)(ii) of the Act were complied with

by the Collector.

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

dated 30 August 2017 issued by the Collector, Bareilly for convening a

meeting of the members of the Kshettra Panchayat on 15 September 2017

5Writ-C No.39772 of 2017, decided on 11 September 2017

6Misc. Bench No.7171 of 2017, decided on 12 April 2017

71991 (9) LCD 186

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to consider the motion of no confidence against the petitioner was pasted

on the Notice Board of the Kshettra Panchayat on 30 August 2017 and

whether the pasting of such notice can be said to be substantial

compliance of the provisions of Section 15(3)(ii) of the Act.

To appreciate this submission, 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 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

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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-

confidence.

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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 the elected members of the Kshettra Panchayat

Damkhoda is 89. It is stated that the written notice dated 29 August 2017

in Form-I of the intention to make a motion expressing want of

confidence in the Block Pramukh was signed by 65 members and it was

15

personally submitted on 29 August 2017 to the Collector who, on the

same day, marked it to the DPRO for necessary action. It is further stated

that the office of the DPRO is situated in Vikas Bhawan which is at a

distance of about 1 km. from the office of the Collector. The DPRO, after

completing the formalities, submitted the file with the note-sheet to the

Collector and after due consideration, the Collector passed an order dated

30 August 2017 bearing no.3326-C. The said order states that the meeting

of the members of the Kshettra Panchayat to consider the motion

expressing want of confidence in the Block Pramukh would take place on

15 September 2017 and it would be presided over by the Sub-Divisional

Magistrate. This order was endorsed to as many as 12 Officers including

the DPRO with a direction that the notice of the meeting signed by the

Collector should be sent to all the members of the Kshettra Panchayat by

registered post. The notice dated 30 August 2017 bearing no.3327-C

signed by the Collector seeks to inform all the members of the Kshettra

Panchayat that the motion of no confidence against the petitioner shall be

considered in the meeting of the members of the Kshettra Panchayat to be

held on 15 September 2017 at 10.30 a.m. in the office of the Kshettra

Panchayat Damkhoda.

The aforesaid order of the Collector bearing no.3326-C and the

notice issued by the Collector bearing no.3327-C, both dated 30 August

2017, were received in the office of the DPRO on 30 August 2017 by a

Class IV employee namely, Kamlesh Kumar. This fact is reflected in the

Despatch Register maintained in the office of the Collector. The original

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Despatch Register in the office of the Collector has also been produced

before the Court which also indicates that the aforesaid papers were

received on 30 August 2017 in the office of DPRO by Kamlesh Kumar.

The staff of BDO Damkhoda received the order bearing no.3326-C and

the notice bearing no.3327-C along with the letter no.3060-C of DPRO

on 30 August 2017. The original Despatch Register maintained in the

office of the DPRO shows that all the three letters were despatched and

received on 30 August 2017. It needs to be stated that the letter dated 30

August 2017 bearing no.3060-C sent by the DPRO to the BDO

Damkhoda directs for pasting of the notice as also the copy of the motion

on the Notice Board of the Kshettra Panchayat on 30 August 2017. This

letter contains an endorsement of the BDO to ADO (Panchayat) for

ensuring compliance of the order. The ADO (Panchayat) has submitted a

report dated 30 August 2017 regarding compliance of the order dated 30

August 2017 of the DPRO by pasting the notice and the copy of the

motion on the Notice Board of the Kshettra Panchayat on 30 August

2017.

It has been stated by the respondents that at the relevant point of

time, the post of BDO was vacant and by order dated 6 July 2017, the

Collector assigned the additional charge of BDO to the then District

Youth Welfare Officer, Bareilly whose office is situated on the second

floor of the Vikas Bhawan and that the office of the DPRO is also

situated in the Vikas Bhawan. It has, therefore, been stated that since the

meeting for considering the motion of no confidence was fixed on 15

17

September 2017, the Officiating BDO rushed to Block Damkhoda and

handed over the order no.3326-C and the notice no.3327-C to the ADO

(Panchayat) on 30 August 2017 for pasting them on the Notice Board.

To controvert the pasting of the notice on the Notice Board of the

Kshettra Panchayat, reliance has been placed by learned Senior Counsel

for the petitioner upon the 'Dakbahi Register' maintained in the office of

the BDO Damkhoda and it was sought to be contended that it was only on

4 September 2017 that the order of the Collector and the notice were

received in the office of the BDO Damkhoda. It has, therefore, been

asserted that the notice could not have been pasted on the Notice Board in

the office of BDO Damkhoda on 30 August 2017.

It is not possible to accept this contention of learned Senior

Counsel for the petitioner. The 'Dakbahi Register' contains the date on

which these documents were received in the office of BDO Damkhoda. It

clearly shows that 30 August 2017 has been scored out and 4 September

2017 has been written. The signatures indicate that the Station House

Officer, the Sub-Divisional Officer and the petitioner received these

papers on 4 September 2017. The 'Dakbahi Register' does not, in any

manner, support the case of the petitioner that the order and the notice

were received in the office of BDO Damkhoda on 4 September 2017. In

fact, it has been asserted in the supplementary counter affidavit that the

date 30 August 2017 has been scored out and 4 September 2017 has been

inserted by Sri Masood Ahmad (Urdu Translator/Senior Assistant) and

that a notice dated 7 October 2017 has been served upon Masood Ahmad

18

for this act. The averments made in the short counter affidavit and the

supplementary counter affidavit filed on behalf of the State respondents

as also the original Registers do establish that the notice dated 30 August

2017 as also the copy of motion were pasted on the Notice Board of the

Kshettra Panchayat on 30 August 2017 itself. Pasting of the notice on the

Notice Board of the Kshettra Panchayat is also a requirement contained in

the Rules framed under Section 237 of the Act. Such being the position,

the contention of learned Senior Counsel for the petitioner that fifteen-

days notice was not given for holding the meeting of no confidence

motion against the petitioner on 15 September 2017 is not correct.

The second submission of learned Senior Counsel for the petitioner

is that the time period contemplated under Section 15(3)(ii) has to be

counted from 31 August 2017 when the notice was sent by registered post

to all the members of the Kshettra Panchayat.

To examine this issue, it would be appropriate for the Court to refer

to the two Full Bench decisions of this Court in Sardar Gyan Singh Vs.

District Magistrate, Bijnor & Ors.

8

and Vikas Trivedi & Ors. Vs.

State of U.P. & Ors.

9

.

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:-

81975 AWC 321

9AIR 2014 All 166

19

"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 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

20

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 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

21

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 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

22

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(2)(3) 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.

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

23

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 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

24

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 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

25

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 decision, the notice

contemplated under Section 15(3)(ii) requires information regarding the

following :-

"(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."

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.

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

Bench in Awadhesh Singh. 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, 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,

26

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 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).”

There has been, in the facts and circumstances of the case,

substantial compliance of the provisions of Section 15(3)(ii) of the Act

and all the members of Kshettra Panchayat had due information that the

meeting of the members of the Kshettra Panchayat for motion expressing

want of confidence in the Block Pramukh would be held on 15 September

2017 at 10.30 a.m in the office of the Kshettra Panchayat when the notice

27

and the motion were pasted on the Notice Board of the Kshettra

Panchayat on 30 August 2017.

It is also pertinent to note that except for the petitioner, who is the

Block Pramukh of the Kshettra Panchayat, no other member has come

forward to state that he had no information about the meeting that was to

take place on 15 September 2017 to consider the motion expressing want

of confidence in the Block Pramukh. It also needs to be noted that all the

89 elected members of the Kshettra Panchayat Damkhoda, including the

petitioner, participated in the meeting that was held on 15 September

2017.

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

by learned Senior Counsel for the petitioner.

The writ petition is, accordingly, dismissed and the interim order

dated 14 September 2017 is vacated. The respondents shall now declare

the result of the voting that took place in the meeting held on 15

September 2017 as expeditiously as is possible.

Date :-06.11.2017

SK

(Dilip Gupta, J.)

(Jayant Banerji, J.)