1. The petitioner has called in question a notice dated 13.05.2017 issued by District Magistrate, Mainpuri convening meeting of the members of the Kshetra Panchayat Sultanganj, Block Sultanganj, district Mainpuri on 5.06.2017 at 11:00 a.m. for consideration of a motion of no confidence against the petitioner.

2. The petitioner is Pramukh of Kshetra Panchayat Sultanganj having been elected in February, 2016. The procedure for bringing a no confidence motion against Pramukh or Up-Pramukh of the Kshetra Panchayat is laid down by Section 15 of the U.P. Kshetra Panchayats and Zilla Panchayats Adhiniyam, 1961 (the Adhiniyam), the relevant part whereof is as under:

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

(1) A motion expressing want of confidence in the Pramukh or any Up-Pramukh 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 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."

3. Thus, for bringing a no confidence motion (i) a written notice of intention to make the motion in such form as may be prescribed, (ii) signed by at least half of the total number of the elected members of the Kshetra Panchayat for the time being, (iii) together with a copy of the proposed motion, (iv) shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshetra Panchayat. Upon fulfillment of the aforesaid requirements, the Collector shall convene a meeting of the Kshetra Panchayat for consideration of the motion at the office of the Kshetra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which notice under sub-section (2) was delivered to him by giving to the elected members of the Kshetra Panchayat notice of not less than 15 days of such meeting in such manner as may be prescribed.

4. The State Government in exercise of powers under Section 237 of the Adhiniyam read with Section 15 has framed rules prescribing the forms in which a written notice of intention to make the motion of no confidence is to be given by the members of the Kshetra Panchayat as well as the manner in which the Collector would give notice of the said motion to the members of the Kshetriya Panchayat. These rules as well as the forms are reproduced below for convenience of reference:

Rules:

1. A written notice of intention to make a motion expressing want of confidence in the Pramukh or the Up-pramukh of a Kshettra Samiti 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 Samitis and Zilla Parishads Adhiniyam, 1961, shall be in Form-II of the Schedule given below and shall be sent by registered post to every member of the Kshettra Samiti 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 Samiti.

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 Samiti)

To

The Collector,

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

Notice

Sir,

We the undersigned members of the ..........................Kshettra Samiti hereby give this notice to you of our intention to make the motion of no-confidence in Sri...................., the Pramukh/Up-Pramukh of our Kshettra Samiti and also annex hereto a copy of the proposed motion of non-confidence.

2. The Total number of members, who for the time being constitute the Kshettra Samiti .........is....................

Yours faithfully,

1.

2.

3.

4.

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

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

"Form-II

(Form of the notice of a meeting of the Kshettra Samiti to be held for consideration of the non-confidence motion against the Pramukh/Up-Pramukh)

To

Sri

Member of ................Kshettra Samiti,

Notice

This notice is hereby given to you of the meeting of .................Kshettra Samiti which shall be held at the office of the said Kshettra Samiti 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 Samiti.

A copy of the motion is annexed hereto.

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

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

Collector.................."

5. The Kshetra Panchayat Sultanganj comprised of 106 members. The proposed motion was signed by 73 members, one amongst them being Sukhram, who had also signed the written notice of intention to make the motion in prescribed Form-I. He had also delivered the same to the Collector along with copy of the proposed motion. According to the petitioner, the written notice was delivered to the Collector on 5.5.2017. In pursuance thereof, the Collector has issued the impugned notice dated 13.05.2017 convening meeting of the Kshetra Panchayat on 5.6.2017 at 11:00 a.m. for consideration of the no confidence motion.

6. The attack to the notice issued by the Collector dated 13.5.2017 is two fold; first, the written notice of intention to make the motion in prescribed form was signed by only one member Sukhram, albeit the requirement of it being signed by at least half of the total number of the elected members of the Kshetra Panchayat for the time being and thus, it is invalid; and second, the Collector has fixed 5.6.2017 as the date for consideration of the no confidence motion which is later than 30 days from the date on which notice under sub-section (2) was delivered to him and thus, it is in contravention of the mandatory requirement of clause (i) of sub-section (3) of Section 15.

7. Mr. Ramanand Pandey, learned standing counsel appearing on behalf of respondent Nos. 1 and 2 has produced before us the original record relating to the proceedings of no confidence motion. He has also placed on record photo copies of the written notice given by Sukhram in Form-I as well as the copy of the motion signed by 73 members of the Kshetra Panchayat. He pointed out that the notice given by Sukhram in Form-I was delivered to the Collector on 8-5-2017. On the same date, he made endorsement over it of having received the same on 8.5.2017 and directed the District Panchayat Raj Officer to submit his report forthwith. Relying on the same, he submitted that the meeting convened by the Collector on 5.6.2017 is thus well within 30 days from the date on which notice under sub-section (2) of Section 15 was delivered to him. He further submitted that it is not necessary that the written notice of intention to make the motion should be given in the prescribed form. According to him, even if the notice is not in the prescribed format, but it contains all necessary ingredients laid down in the form prescribed, such a notice would be valid. If the Collector calls a meeting acting on such notice, there would be no illegality in the same. In the instant case, in his submission, the proposed no confidence motion, duly signed by 73 members, also clearly exhibit the intention to make the motion. It contains all the ingredients of the notice in Form-I. Apart from it, separate notice in Form-I, signed by Sukhram, also a signatory to the proposed motion, was also delivered to the Collector. It is urged that in such circumstances, the procedure prescribed has been substantially complied with and once a written notice of intention to make the motion along with no confidence motion duly signed by more than half of the total number of the members of the Kshetra Panchayat had been duly delivered in person by one member signing the notice, defect, if any, was a curable one, a mere irregularity, and would not vitiate the proceedings. In support of his contention, he has placed reliance on a Full Bench judgment of this Court in Vikas Trivedi and others v. State of U.P. and others. (2013 (8) ADJ 523 (FB) : (AIR 2014 All 166 [LQ/AllHC/2013/1439] (FB)).

8. Per contra, learned counsel for the petitioner contended that where the law requires a thing to be done in a particular manner, it is to be done in that manner or not at all. Thus, according to him, the fact that the written notice of intention to make the motion in prescribed form was signed by only one member, it would render the entire proceedings illegal. It was a patent defect, which is incurable and not merely an irregularity. He has placed reliance on Division Bench judgment of this Court in Saharanpur Cinema Exhibitors Association v. State of U.P. and others (2017 (2) ADJ 825) to buttress his aforesaid submission.

9. We first proceed to consider the issue, which is of a fundamental character, as to whether the written notice of intention to make the motion in prescribed Form-I having not been signed by at least half of the total member of elected members, it would vitiate the proceedings or it was a mere irregularity. As noted above, apart from notice in Form-I, another document, supposedly the proposed no confidence motion in original, was also delivered to the Collector. An English translation of the notice given by Sukhram in the prescribed Form-I has been brought on record by the petitioner along with the supplementary affidavit, which reads thus:

To,

The District Magistrate,

District Mainpuri

Sir,

I Sukhram, undersigned, one of the members of Kshettra Panchayat Sultanganj, District Mainpuri hereby give this written notice to you of no-confidence motion against the present Pramukh Arti Saankhwar of my Kshettra Panchayat Sultanganj, District Mainpuri and also annex hereto a copy of proposed motion of no-confidence.

Total number of present members of Kshettra Panchayat Sultanganj, District Mainpuri are 106.

Yours faithfully

Sukhram son of Sri Man Singh

Member, Kshettra Panchayat Sultanganj

Ward No. 94 (Rui Sinaura), Tahsil

Bhogaon, District Mainpuri.

Place-Mainpuri

Dated-05.05.2017

Note:- Signature Letter/resolution affidavit of the members of Kshettra Panchayat Sultanganj are attached herewith.

10. The relevant part of the other document i.e. the proposed no confidence motion, which was delivered to the Collector along with notice in Form-I, reads thus:

To,

The District Magistrate,

District Mainpuri.

Sub:- Motion of no-confidence against Arti Sankhwar, Block Pramukh, Block Sultanganj, District Minpuri under Section 15(1) and (2) of the Kshettra Panchayat and Zilla Panchayat Act, 1961.

Sir,

The present motion of no-confidence is presented on the ground, which are given below:

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

(3) That the total member of the Kshettra Panchayat Sultanganj, District Mainpuri are 106 i.e. more than 51% members are supporting the present proposal which is according to the Act".

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

"On the basis of aforesaid facts, we the members of the Kshettra Panchayat Block Sultanganj present a motion of no-confidence against Block Pramukh Arti Sankhwar and on fulfilling the requirement of signing no-confidence motion by requisite members, a prayer is made to convene a meeting of elected members of Kshettra Panchayat Sultanganj in accordance with law for casting of votes over no-confidence motion by conducting necessary proceedings".

11. The other paragraphs of the proposed no confidence motion contain the reason for bringing no confidence motion against the petitioner. A bare reading of the proposed no confidence motion reveals that it is a composite document which contains not only the grounds for bringing no confidence motion, but also the intention to bring motion of no confidence against the petitioner. Even learned counsel for the petitioner has not disputed before us that the document in question also clearly reflects the intention to bring a motion of no confidence against the petitioner. Concededly, it is a written notice signed by more than half of the total number of the elected members of the Kshetra Panchayat. However, according to counsel for the petitioner, the said document not being in prescribed format cannot be treated to be in due compliance of the mandatory provisions of sub-section (2) of Section 15. In other words, according to him, the written notice of intention to make the motion could only be given in Form-I. Since in the instant case, such notice was signed only by one member namely Sukhram, therefore, the motion against the petitioner is invalid and the Collector ought not to have acted upon such a notice.

12. Sub-section (2) of Section 15 lays down that a written notice of intention to make the motion has to be given "in such form as may be prescribed". Likewise, under sub-rule (3) of Section 15, the notice convening meeting of no confidence is to be issued by the Collector "in such manner as may be prescribed". Section 2 (19) defines prescribed to mean prescribed by the Act or by any rule made thereunder. As seen above, under the rules, format of the notice in which intimation is to be given by the Collector to the members regarding the date on which meeting is to be held is prescribed by Form-II. There was difference of opinion between two Division Benches of this Court in regard to the mandatory or directory nature of the requirement of issuing notice in Form-II. In Ram Nath Tripathi v. Commissioner, Lucknow Division, Lucknow and others ((1992) 2 UPLBEC 1181 : (1994 All LJ 25) it was held that giving of notice in prescribed format is mandatory, whereas contrary view was taken in Smt. Krishna Jaiswal v. State of U.P. and others (2005 (2) AWC 1732 [LQ/AllHC/2005/183] ). The Full Bench approved the ratio in Smt. Krishna Jaiswal while disagreeing with the view taken in Ram Nath Tripathi and answered the reference as under:

(i) The requirement of giving notice by the Collector under Section 15(3)(ii) in the prescribed form as required by Rule 2 and Form-2 is held not to be mandatory and on substantial compliance of the provisions the proceeding shall not be vitiated. Whether there has been substantial compliance of the said provisions, depends on the facts and circumstances of each case.

(ii) The observation of the Division Bench in Ram Nath Tripathis case (supra) that notice in prescribed form along with its annexures in complete formate is mandatory does not lay down the correct law. The judgment in Smt. Krishna Jaiswals case (supra) lays down the correct law and is approved.

(iii) The notice sent by the Collector convening the meeting to consider the motion of no confidence cannot be invalidated on the ground that copy of the notice with the name of the person who had signed the written notice of intention, was not sent along with the notice. When proposed motion of no confidence is signed by the requisite members, the notice convening the meeting cannot be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were sent along with the notice.

13. Before the Full Bench, one of the submissions which has also been raised in the instant petition on behalf of the petitioner was that where the law requires a thing to be done in a particular manner, that thing is to be done in that manner or not at all. While examining the said contention, the Full Bench referred to the treatise on Interpretation of Statutes by Maxwell and D Smiths Judicial Review (6th Edition) under the caption "Mandatory and Directory Duties and powers" as well as catena of decision of the Supreme Court. A specific reference was made to the judgment in Dattaraya Moreshwar v. State of Bombay and others (AIR 1952 SC 181 [LQ/SC/1952/22] ); State of U.P. v. Manbodhan Lal Srivastava (AIR 1957 SC 912 [LQ/SC/1957/93] ); State of U.P. and others v. Babu Ram Upadhyaya (AIR 1961 SC 751 [LQ/SC/1960/292] ); judgment of five Judges Bench in Raja Buland Sugar Company Ltd. Rampur v. Municipal Board, Rampur (AIR 1965 SC 895 [LQ/SC/1964/300] ); Sharif-Ud-Din v. Abdul Gani Lone (AIR 1980 SC 303 [LQ/SC/1979/448] ); Lakshmanasami Gounder v. C.I.T. Selvamani and others (1992) 1 SCC 91 [LQ/SC/1991/593] : (1992 AIR SCW 551); The Maharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service and others (1969) 2 SCC 746 [LQ/SC/1969/333] : (AIR 1970 SC 1926 [LQ/SC/1969/333] ); Metal Forgings v. Union of India (2003) 2 SCC 36 [LQ/SC/2002/1231] : (AIR 2003 SC 291 [LQ/SC/2002/1231] ); Pt. Rajan v. T.P.M. Sahir and others (2003) 8 SCC 498 [LQ/SC/2003/998] : (AIR 2003 SC 4603 [LQ/SC/2003/998] ); Mahadev Govind Gharge v. Special Land Acquisition Officer (2011) 6 SCC 321 : (AIR 2011 SC 2439 [LQ/SC/2011/703] ) and Pesara Pushpamala Reddy v. G. Veera Swamy and others (2011) 4 SCC 306 [LQ/SC/2011/356] : (2011 AIR SCW 1676). The Full Bench concluded by holding that for ascertaining whether the provision is mandatory of directory, the purpose with which the provision has been enacted, the mischief it seeks to remedy, and the prejudice it is likely to cause in case of its non-compliance, are to be taken into consideration.

14. The Full Bench also examined the theory behind the principle for bringing a no confidence motion against an elected office bearer. The Full Bench referred to the decision of the Supreme Court in Mohan Lal Tripathi v. District Magistrate Raebareli and others (1992) 4 SCC 80 [LQ/SC/1992/419] : (AIR 1993 SC 2042 [LQ/SC/1992/419] ) wherein the concept of bringing no confidence motion under Section 14 of the U.P. Panchayat Raj Act, 1947, an analogous provision, has been laid down as under:

"4. .........Vote of no-confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of Poor as said by Aristotle or of Masses as opposed to Classes but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is reprehensive in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act. Under sub-section (2) of Section 87-A the right to move the motion of no-confidence vests in the members of the Board which under Section 9, normally, comprises of elected representatives.

A person removed from office of President for loss of confidence, from the very nature of the Constitution of Board, is recall by the electorate themselves. An elected" representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President his electorate, to exercise this right, is the Board as it comprises of representatives of the same constituency from which the President is elected. Purpose of Section 87-A of the Act is, to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representatives. In Act it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. In fact construing the provision as suggested would render it unreasonable. A President of a Municipal Board of more than one lakh population would be removable by the Board comprising of elected representatives whereas a President of smaller Board would virtually get immunity from removal. It would be contrary to scheme of the Act and against public interest."

15. It was concluded by holding that bringing a no confidence motion is recognised as right of the members and keeping in mind the same, the Full Bench proceeded to interpret the provisions of the Act so as to effectuate the object behind the same. The Full Bench while doing so, also have had due regard to the 74th Constitutional Amendment and held that the provisions for bringing no confidence motion do not offend any provision of the Constitution.

16. The Full Bench after noticing the above broad principles of law and placing reliance on the Constitution Bench judgment in Raja Buland Sugar Company Ltd. held thus:

"The ratio of the judgment of the Apex Court in Raza Buland Sugar Company Ltd. v. Municipal Board, Rampur (AIR 1965 SC 895 [LQ/SC/1964/300] ) (supra) is also applicable for interpretation of Section 15 of the 1961 Act. As noted above, Section 131(3) of the U.P. Municipalities Act, 1916 required the Board to publish the proposal framed under sub-section (1) in the manner prescribed in Section 94. How the proposal was to be published was provided in Section 94 which required that every resolution passed by the Board be published in the local Hindi newspaper. The Apex Court held that requirement of Section 131(3) regarding publication of resolution is mandatory, however, the manner of publication as prescribed in Section 94(3) cannot be held to be mandatory and sufficient compliance of provisions shall suffice. In the present case, Section 15(3) provides issue of notice in the manner as prescribed. The manner of sending notice is prescribed in Rule 2 and Form-2. The judgment of the Apex Court in Raza Buland Sugar Companys case (supra) is applicable in full force and in view of clear ratio of the above judgment, it cannot be said that manner of sending notice in prescribed pro forma along with annexures is mandatory, breach of which shall vitiate the entire proceeding. The proceeding of no confidence motion shall be proceeded with if there is substantial compliance of the provisions of Rule 2 read with Form-2. "

(Emphasis supplied by us)

17. Having regard to the law laid down by the Supreme Court in various decisions cited by the Full Bench, as also the principles laid down by the Full Bench itself in Vikas Trivedi (AIR 2014 All 166 [LQ/AllHC/2013/1439] (FB)) (supra), we proceed to consider the issue regarding the mandatory or directory nature of giving notice in Form-I. On a perusal of Form-I in which notice of intention to make the motion is to be given, we find that it contains the following information:

(a) Name of the Kshetra Panchayat by whose member the notice is given.

(b) Name and office held by the person against whom the motion has been moved.

(c) The intention on part of the members to make the motion.

(d) The total strength of the members of the Kshetra Panchayat.

(e) It should be signed by all the members making the motion.

(f) Copy of the proposed motion should be annexed.

18. Indisputably, notice in Form-I was given by only one member namely Sukhram. However, it was accompanied by another document which is of a composite nature, in the shape of notice of intention to bring forth the no confidence motion, as also containing the proposed motion itself. It discloses the name of the Kshetra Panchayat and the name and designation of the person against which the motion is made. It is duly signed by more than half of the total number of the elected members. It also contains an unequivocal intention to bring forth the motion of no confidence against the petitioner. It also clearly discloses the total number of elected members and further states that more than 51% of the members have signed the same; the motion is thus, intended to be brought by more than half of the total members. The ground on which the proposed motion is sought to be brought is contained in the document itself. Thus, all the ingredients which are stipulated in the notice in Form-I are contained in the document.

19. The object of giving a written notice of the intention to make the motion of no confidence is to make possible for the Collector to ascertain as to whether the motion is backed by at least half of the elected members or not. The said requirement is of a mandatory character. If the written notice of intention to make the motion is not signed by at least half of the total number of the elected members, the Collector would not get jurisdiction to take cognizance of the same, nor to issue notice under sub-section (3) of section 15. However, at the same time, even if notice of the intention to make the motion is not given in the prescribed format but it contains all the ingredients of Form-I, it is always open to the Collector to cull out the intention of the members giving the notice and to act upon it. The object of prescribing Form-I is only of a procedural nature to enable the Collector to understand its import and to act without delay. Where a written notice of intention to make the motion is given in prescribed format, it becomes easy for the Collector to decipher intention of those giving the notice and to act accordingly. The copy of the written notice of intention to make the motion is thus for the convenience of the Collector. A person giving notice to the Collector which is not in prescribed format is always at the risk of Collector not taking due cognizance of the same. However, in a case where the Collector acts on a notice of intention to bring forth motion of no-confidence, though not contained in prescribed format, the person against whom the motion is brought cannot complain of the same. He is in no manner prejudiced thereby as the notice is not meant for him but for the Collector. Even its copy is not required to be sent to the members or the person against whom the motion is brought. Only the copy of the proposed no confidence motion is to be annexed along with the notice of the Collector.

20. Having regard to the above facts, we are of the considered opinion that even if written notice of intention to make the motion is not given to the Collector in prescribed format but the document in which it is given contains all the ingredients prescribed in Form-I, it is within the competence of the Collector to take cognizance of such a notice and to proceed to convene meeting for consideration of the motion. We are further of the opinion that such a notice could be made part of the proposed motion itself and it will in no manner affect the validity of the motion.

21. In view of the above discussion, we are of the opinion that the proposed motion was in fact a composite document. Apart from containing the grounds on which the motion of no confidence is proposed, it also unequivocally evinces the intention of at least half of the elected members to bring forth the motion. The Collector, acting upon the same, was well within his competence to convene a meeting for consideration of the motion. Thus, we find no force in the first submission of learned counsel for the petitioner.

22. Coming to the second limb of the argument of learned counsel for the petitioner, we find that although along with the writ petition a photostat copy of the notice in prescribed format given by Sukhram has been annexed containing the date 05.05.2017 but the original record reveals that the notice given by the Sukhram does not contain any date. There is only an endorsement by the Collector upon the said notice bearing date 08.05.2017 to the effect that the application has been received today with a further direction to the District Panchayat Raj Officer to submit his report on that day itself. There is always a presumption to the correctness of the official record. After going through the original record and the endorsement of the Collector, we confronted learned senior counsel appearing on behalf of the petitioner with regard to the endorsement made by the Collector. He initially made a feeble attempt in suggesting that the Collector may have made endorsement dated 08.05.2017 later on, but upon being queried by the Court as to why the petitioner has not filed photocopy of the original notice, he could not offer any explanation. He also could not dispute the first principle of law of evidence in regard to the presumption of correctness attached to the official records coming from proper custody. We thus, have no hesitation in holding that the notice of intention of bringing forth no confidence motion was tendered to the Collector on 08.05.2017. As the meeting has been convened on 5.6.2017, it is well within 30 days from the date of receipt of notice under sub-section (2). Thus, even the second submission advanced by learned counsel for the petitioner does not hold any water.

23. In consequence and for the reasons given above, we do not find any illegality in the impugned notice given by the Collector for convening the meeting for consideration of no confidence motion.

24. The writ petition lacks merit and is accordingly dismissed.