1. These two writ petitions deal with the constitutionality as well as interpretation of Section 28 of the UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 ( the), which provides for motion of no confidence against Adhyaksha or Up-Adhyaksha of a Zila Panchayat.

THE FACTS

2. The election to the post of Adhyaksha of Zila Panchayat Deoria (the Zila Panchayat) was held in the year 2000. In this election Smt. Krishna Jaiswal (Smt. Jaiswal) was elected as the Adhyaksha of the Zila Panchayat. The Zila Panchayat consists of 40 elected members. Twenty eight elected members gave notice to the Collector under section 28 of theto bring the motion of no confidence against her on 29th November 2004. The collector passed an order on 30.11.2004 convening the meeting on 20.12.2004 at 12.00 am in the hall of the Zila Parishad to consider the no confidence motion against her. He also passed an order that the Appar Mukhya Adhikari, Deoria (the AMA) to serve notice on the members by registered post as well as personally by 4th December 2004. The notices were sent and the AMA submitted a report to the Collector on 4.12.2004 that the notices have been sent by the registered post and personal service has been affected.

3. Smt. Jaiswal filed writ petition no. 52945 of 2004 on 9th December 2004 challenging the meeting of no confidence motion in pursuance of the order passed by the Collector. In this writ petition an interim order was passed on 16.12.2004 keeping the meeting to consider the no confidence motion in abeyance.

4. During pendency of the aforesaid writ petition, thirty-two elected members gave another notice of their intention to bring no confidence motion against Smt. Jaiswal on 20th December 2004. On this notice, the Collector sent a letter to the Chief Standing Counsel seeking his guidance if meeting could be convened as the earlier meeting of no confidence motion was kept in abeyance by this court. Sri CB Yadav CSE-II informed the court that in pursuance of letter he had telephonic talk with the Collector and he in view of the developments in the court had advised the Collector not to convene any meeting. The thirty elected members have filed WP 436 of 2005 before this court for a direction to the Collector to convene meeting of the Zila Panchayat for no confidence motion in pursuance of the notice dated 20th December 2004.

POINTS FOR DETERMINATION

5. We have heard Sri Ravi Kiran Jain, Senior advocate, Sri HR Misra, and Sri SK Mishra counsels for Smt. Jaiswal; Sri Sanjiv Singh, counsel for the elected members of the Zila Panchayat who had given notice for bringing no confidence motion; Sri JN Tiwari, Senior Advocate and Sri CB Gupta counsels for the AMA. Sri Sudhir Agrawal, Additional Advocate General, Sri CB Yadav CSC-II and the Standing counsel for the State of UP and the State officials; The following points arise for determination.

(i)Whether section 28 of theis ultravires the Constitution.

(ii)Whether the part of section 28(3)(ii) providing for holding of the meeting in such manner as may be prescribed and the manner prescribed mandatory. Is a meeting convened in pursuance of the notice--not in the prescribed proforma--illegal

(iii)Whether fifteen days should elapse between the meeting and the giving of notice or receipt of notice by every member.

(iv)Whether in the circumstances of the case, the second notice to bring the motion of no confidence could be given on 20th December 2004.

(v)Whether the part of section 28(3)(i) of the Act, which provides that the meeting of no confidence is to be convened within thirty days is mandatory.

POINT NO. 1: SECTION 28 IS NOT ULTRA VIRES THE CONSTITUTION.

6. The counsels supporting the constitutionality of section 28 of thesubmitted that

Section 87-A of the UP Municipalities Act provided for no confidence motion against the President of the Municipal Councils and Nagar Panchayats.

Similarly section 14 of the UP Panchayat Raj Act provides for no confidence motion against the Pradhan of a Gram Panchayat.

The validity of these two sections have been upheld by the Supreme Court in Mohan Lal Tripathi vs. DM Rae Bareilly: AIR 1993 SC 2042 [LQ/SC/1992/419] (the MohanLal case) and Ram Beti vs. District Panchayat Raj Adhikari and others: AIR 1998 SC 1222 [LQ/SC/1997/1705] (the RamBeti case).

The validity of section 28 has to be upheld on the same reasoning.

7. The counsels for Smt. Jaiswal in support of the first point submitted that:

(a) the decision in the MohanLal case was given before introduction of Part IX and Part IX-A of the Constitution and in the decision of the RamBeti case, there is no reference to these Parts and as such these decisions are not decisive for deciding the constitutionality of section 28 of the. Constitutionality has to be seen on the basis of Part IX and IX-A of the constitution.

(b) There should be some provision for challenging the meeting of no confidence motion like provision of election petition for challenging an election. The absence of any such provision renders section 28 ultravires the constitution.

(c) There is no supervision of the Election Commission in conducting the meeting to consider the motion of no confidence. Such meeting can only be held under the supervision of the Election Commissioner. Its absence renders the provision invalid.

(d) Section 28 of thedoes not prescribe all matters relating to no confidence motion and is ultravires the constitution.

(e) Section 87-A of UP Municipalities Act provided for no confidence motion against the President of a Municipal Council or Nagar Panchayat. This section has been deleted by the UP Municipalities (Amendment) Act, 2001(UP Act no. 22 of 2001). Non-deletion of similar provision for no confidence motion against Adhyaksha of the Zila Panchayats is discriminatory and is hit by article 14 of the Constitution.

8. Entry 5 of List-II of Seventh schedule of our constitution empowers the state Legislature to enact laws for local self government. In pursuance of this entry, Legislature has enacted different Acts governing local governments at different levels. The State has legislative competence to enact laws regarding local self government. In case there is any limitation then it could only be by an express provision of the Constitution.

9. Part IX of the Constitution relates to the Panchayats and Part IX-A relates to the Municipalities. Articles 243-N and 243-ZF of the Constitution provides for continuance of existing laws until expiration of one year of the commencement of these parts and the existing laws had to be amended before expiry of one year. In case any provision in the is contrary to any article of Part IX or IX-A then it is ultravires the Constitution and can not be upheld merely because similar provision had been upheld earlier by the Supreme Court in which no such argument was raised. But the question is, whether there is any article in Part IX or Part IX-A which invalidates section 28 of the.

10. The counsels for Smt. Jaiswal placed before us different Articles in these parts and also similar Articles meant for the Parliament and the State legislature contained in the other parts of the Constitution. They have also cited the following decisions.

(i)SR Bommai vs. Union of India: AIR 1994 SC 1918 [LQ/SC/1994/326] (para 105, 106).

(ii) Ahmedabad Municipal Corporation vs. Nawab Khan gulab Khan: Air 1997 SC 152 [LQ/SC/1996/1720] ( para 24).

(iii)Air India Statutory Corporation vs. United Labour Union: AIR 1997 SC 645 [LQ/SC/1996/2130] (para 38).

11. There are some observations in the aforesaid decisions regarding changes brought about by these parts. One of us had occasion to consider the changes in a judgement reported in Krishan Kant Tiwari vs. State of UP 2002 ALJ 753 and it is not necessary to repeat them again. In the aforesaid decisions, there are general observations regarding democracy also. Nevertheless there is neither anything in these decisions nor in any Article in Part IX or IX-A or any other part of the Constitution to show that the provision of no confidence motion (like section 28 of the) is contrary to democracy or is illegal. On the contrary the provision providing for no confidence motion is a democratic norm and part of healthy democracy. This is also so observed in different texts:

Conventions illustrated

...

The government must maintain the confidence of the House of Commons. If a vote of confidence on a matter central to government policy is lost, the government must resign or advise the Queen to dissolve Parliament. (Constitutional & Administrative Law by Hilaire Barnett page 29).

It is clear that a chairman who has been elected by the meeting can be removed by the meeting {Booth vs. Arnold (1895) 1 QB 571}. The usual procedure would be for a member to propose a vote of no confidence in the chair, and for this to be seconded. In such event, the chairman would normally have a right of reply; if he loses the vote he should relinquish the chair. (Shackleton on the Law and Practice of Meetings eight edition page 51)

Regarding Submission (b)

12. The counsels for Smt. Jaiswal brought to our notice sub-article 4 of Article 329-A {Article 329-A(4)} of the Constitution as it existed and headnote-B of the decision in Smt. Indira Nehru Gandhi vs. Raj Narain: AIR 1975 SC 2299 [LQ/SC/1975/439] (the Indira case) in support of his submission (b) and submitted that there is no provision for challenging the no confidence motion and section 28 of theis ultravires.

13 Article 329-A of the Constitution was introduced by the 39th Constitutional Amendment Act. Article 329-A(4) had provided that the election of Prime Minister and Speaker could not be challenged. It is relevant to point out that after decisions the Indira case, Article 329-A has been deleted by 44th Constitutional Amendment Act, 1978 w.e.f. 20.6.1979. The headnote-B of the Indira case relates to validity of Article 329-A(4). The election of all members of Parliament could be challenged but not the member who is elected as the Prime Minister or the Speaker. The observations in the Indira case are in the aforesaid background. They have nothing to do with no confidence motion. There is no bar in challenging a no confidence motion as was provided in article 329-A(4). There is also no discrimination as was contained in Article 329-A(4). The reference to Article 329-A(4) or to the Indira case is neither relevant nor apposite for considering the constitutionality of section 28 of the.

Regarding Submissions (c) and (d):

14. The counsels for Smt. Jaiswal in support of their submission (c) and (d) brought to our notice Mohinder Singh Gill vs. The Chief election Commissioner: AIR 1978 SC 851 [LQ/SC/1977/331] (paragraph 10) ( the Gill case) and submitted that section 28 of theis unconstitutional as there is neither supervision of Election Commission in holding the meeting for no confidence motion nor all matters have been provided for.

15. Part XV of our Constitution provides for election. The Articles in this Part provide that all matters relating to the election should be provided and the election is to be conducted under the supervision of the Election Commission. Part XV has no application to a no confidence motion, election does not include it. No confidence motion can be brought only when elections are over and the results are declared. The fallacy in the argument of the counsels for Smt. Jaiswal is in assuming that no confidence motion is part of election. This assumption is unwarranted and unnecessary. It is relevant to point out that section 28 of theprovides everything so far as motion of no confidence is concerned. The Gill case is regarding election. It is neither relevant nor apposite for deciding the constitutionality validity of section 28 of the.

Regarding Submission (e)

16. The counsels for Smt. Jaiswal have brought to our notice UP Act no. 22 of 2001 and submitted that provision for no confidence in respect of Municipal Councils and Nagar Panchayat under the UP Municipalities Act have been deleted and continuance of similar provision under the for Zila Panchayats is discriminatory and hit by Article 14 of the Constitution.

17. A district is divided into a rural and urban area. The rural area is governed by the UP Panchayat Raj Act and the UP Ksshettra Panchayat and Zila Panchayat Adhiniyam. The urban area is governed by the UP Municipalities Act and the Municipal Corporation Act. The Municipalities Act does not apply to the rural areas. The statement of objects and reasons of the UP no. 22 of 2001 provides as follows.

Under the Uttar Pradesh Municipalities Act, 1916, the President of a Municipal Council or a Nagar Panchyat is elected on the basis of adult suffrage by the electors in the Municipal Council area. Under section 87-A of the said Act, the President of Municipal Council or a Nagar Panchayat may be removed on a motion of no confidence passed by a majority of two-thirds of the total number of members of the municipality. It was considered improper to remove the President elected by electors in the municipal area, merely on the motion of no confidence of the members of the municipality. Under sub-section (2) of Section 48 of the said Act, the State Government has power to remove the President on any grounds specified in clause (a) and clause (b). It has been considered necessary to provide for certain more grounds for removal of the President and also to increase financial power of the President with regard to sanctioning of contracts.

18. Under the Municipalities Act, the president is elected by adult suffrage of the electors in the municipal area and not by the members of the Municipal Council or Nagar Panchayat. It was for this reason considered appropriate that provision for no confidence by the members who had not elected the president be deleted and some more grounds for removal of the President by the State Government under section 48 be added. Under the, Adhyaksha is not elected by adult suffrage of the electors in that Panchayat area but is elected by the members of the Zila Panchayat under section 19 of the. The members of Zila Panchayat elect and it is the members who can remove. There is no discrimination in not deleting Section 28 of the. It is not ultravires the Constitution.

POINT NO. 2: NOTICE NOT ILLEGAL

19. The collector passed an order for convening the meeting to consider no confidence motion on 20.12.2004 at 12 am noon in the hall of Zila Panchayat; it was on the written notice to bring the motion of no confidence against Smt. Jaiswal. The Collector also asked the AMA to serve the notice on the members by registered post as well as personally by 4.12.2004 by 5.00 pm. The AMA sent the notices to the members. These notices included the written dnotice given by all members to the collector, the copy of the resolution given by these members as well as the order of the collector convening the meeting. These documents are Annexures 1 and 2 to the writ petition. These documents admittedly were served by registered post as well as personally.

20. There is one more document. It is annexure-2 to the counter affidavit filed by the Collector. It is a notice. There is a dispute whether this document was sent or not. The Collector has personally filed his affidavit. In this affidavit he has stated that apart from other documents, he had sent notice (annexure-2 to his affidavit) to the AMA for service. The AMA disputes it. According to him this notice was not received by him and he has not sent the same to the members. Some members - who are supporting the no confidence motion - have stated that this notice was also sent. It is a disputed question of fact whether the notice was sent or not. The case can be decided without deciding this issue. In these circumstances, we proceed to decide the case assuming that it was not sent.

21. Section 28(3)(ii) of thestates that notice has to be given in such a manner as may be prescribed. This has been prescribed under the Uttar Pradesh Zila Panchayat Ke Adhyaksha Ke Avishwas Prastav ke Sambandh Me Niyam (the Rules). Form no. II also prescribes the proforma of the notice which is required to be sent by the Collector to different members. Neither the notice (Annexure-2 to the counter affidavit filed by the Collector) nor the other documents (that were admittedly sent) are in the proforma prescribed by the Rules. But, is the proforma mandatory

22. The counsels for Smt. Jaiswal placed reliance on the following cases for the proposition that it is mandatory to send the notice in the prescribed proforma.

(i) Ramnath Tripathi vs. Commissioner Lucknow Division, Lucknow: (1992) 2 UPLBEC 1181 ( the RamNath case);

(ii) Chhatrapal Singh vs. State of UP and others: (2003) 2 SAC 523 (the Chhatrapal case).

23. It is correct that there are certain observations in the aforesaid decisions which support the submission of the counsels for Smt. Jaiswal. However, these observations are merely obiter and have to be seen in the light of facts of these cases.

24. In the RamNath case the complete copy of the resolution was not attached alongwith notice. This is clear from paragraph 16 of this judgement which is as under:

The question raised before us, and on which we intend to dispose of this writ petition finally is that although the notice was issued in the prescribed form, but a complete copy of the motion of no confidence was not attached with the said Form.

25. The court in the RamNath case considered whether such notice with incomplete resolution was a valid notice or not and the observations were made in that light. In this case admittedly the complete copy of the resolution was sent.

26. In the Chhatrapal case the question was whether the meeting convened beyond the period of 30 days was valid or not. This is also clear from the submissions of the petitioner mentioned in the paragraph 3 of that judgement:

A monition expressing no confidence in the Pramukh or Up-Pramukh is to be considered in a meeting on the date appointed by the Collector, which shall not be later than 30 days from the day on which the notice under sub-section (2) of section 15 was delivered to him, and in the instant case, as the notice has been served upon him on 30.6.2003, he cannot be permitted to hold the meeting on 22nd September, 2003 and as the said notice stood lapsed, the impugned notice for holding the meeting on 22.6.2003 is liable to be quashed.

27. The court held that meeting has to be held within 30 days and the observations made therein have to be read in the light of controversy involved therein In this case meeting had been convened within 30 days. There is no dispute in this regard.

28. Gyan Singh vs. DM: AIR 1975 Allahabad 313 (the GyanSingh case) is a five judges full bench decision regarding interpretation of section 87-A of the UP Municipalities Act. This section dealt with no confidence motion against the president of the Municipality. The Full bench in paragraph 8 of the judgement mentioned the purpose of giving notice as follows:

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.

29. The aforesaid observations equally apply here. The purpose to give notice is to give information regarding the meeting. The words in section 28(3)(ii) providing holding of meetings in such manner as may be prescribed; uses the word may; it show that the use of proforma is not mandatory. The only thing necessary is that requisite information should reach. It has also been so held in Phula Devi vs. State of UP: ESC (All) 2385 regarding interpretation of section 15 of theproviding notice for no confidence against Pramukh and Up-Pramkukh of Kshetriya Samiti. This provision is similar to section 28 of the. The Division Bench in paragraph 24 of the report observed as follows:

It necessarily follows that the provisions of section 15(3)(i) and the first part of section 15(3)(ii) have to be held to be mandatory as was held by the Full Bench in respect of the corresponding part of section 87-A(3) of the UP Municipalities Act but the second part of section 15(3)(ii) which deals with the manner in which the notice has to be sent has to be held to be directory and substantial compliance of the procedure will not invalidate the notice.

30. The first part of section 28 (3)(ii) that requires 15 days of notice may be mandatory but in what manner and in what proforma it is to be given is merely directory. The notice can not be invalidated merely on the ground that it is not in the prescribed manner. The meeting for no confidence can be invalidated only if necessary information was not conveyed to the members. Annexures 1 and 2 to the WP 52945 of 2004 were admittedly sent to the members. Annexure 1 consists of two parts. The first part is the written notice given by the members to the Collector for bringing no confidence motion. The second part is resolution to be brought against Smt. Jaiswal. Annexure-2 is the order passed by the District Magistrate. This order clearly indicates the place, date, time and purpose of the meeting. This is substantial compliance of second part of section 28(3)(ii) of the. The no confidence meeting can not be invalidated merely on the ground that information was not in the prescribed proforma.

POINT NO. 3: 15 DAYS BETWEEN MEETING AND GIVING OF NOTICE

31. The counsels for Smt. Jaiswal submitted that

Some members had received the notice after 5.12.2004.

They were not given 15 days notice.

The first part of section 28(3)(ii) has been violated.

32. The counsels for Smt. Jaiswal were specifically asked to point out the names of the members who had received notice after 5.12.2004. They pointed out one name only namely of Smt. Sheelamani. She is alleged to have received notice on 6th December 2004. They also brought to our notice annexure-4 in WP 5294 of 2004 in which some endorsement has been made by one Devi Prasad post man on 6.12.2004.

33. The fact that the postman made endorsement on 6.12.2004 does not mean that Smt. Sheelmani received the notice on that date. Members were sent notice by registered post as well as the notice was served personally. Sri Brahm Dev Singh has filed an affidavit annexing copy of endorsement made by Smt. Sheelamni that the personal notice was served on 3.12.2004. This undoubtedly gives 15 days to her. No other instance was pointed out.

34. Even if it is taken that some members had received notice that gave less than 15 days time for the meeting from the date of receipt, the meeting can not be invalidated. The relevant thing is date of giving the notice and not of the date of receipt by the members. The notice is given on the date when it is affixed on the notice is board or is despatched to the members. It has also been so held in Jai Charan Lal Anal vs. The State of UP: AIR 1968 SC 5 [LQ/SC/1967/198] and Ramshrya vs. District Panchayat Raj Officer, Gorakhpur: (1997) 3 UPLBEC 1872. [LQ/AllHC/1997/1101]

35. The counsels for Smt. Jaiswal cited Kunwar Hari Raj vs. District Magistrate (the HariRaj case) to show that date of receipt is the important date. This case relates to the interpretation of section 87-A(3) of the Municipalities Act which required seven days clear notice before the date of meeting. Notice in the HariRaj case was dated 24.1.1991 and meeting was to be held on 30.1.1991. This gave only six days notice between issue of notice and holding of meeting. It is in view of this that the court had invalidated the meeting. In the present case the notice was affixed on the notice board on 30.11.2004. They were despatched on 1.12.2004. This is the date when notice was given. The meeting was to be held on 20th December 2004. Thus there was clear notice of 15 days to every one. There is no illegality on this account.

POINT NO. 4: THE SECOND NOTICE COULD BE GIVEN

36. This court passed an interim order on 16th December 2004 keeping the meeting dated 20th December 2004 to consider the no confidence motion in abeyance. This meeting was never held. There was no bar in presenting fresh notice to bring the no confidence motion. The members gave another notice on 20th December 2004 for bringing no confidence motion. The Collector ought to have called the meeting. He has given a reason for not calling the meeting; he had sent a letter to the Chief Standing Counsel asking his advice and was so advised. We do not wish to comment as now the meeting has to be held in pursuance of the first notice.

POINT NO. 5: CONVENING THE MEETING WITHIN 30 DAYS - MANDATORY OR NOT

37. There is dispute between the parties whether the provision provided for holding of a meeting within 30 days is mandatory or not. The counsel for Ms. Jaiswal has cited the Chhatrapal case and Girish Chandra Sharma v. District Magistrate, Aligharh: 1992 AllCJ 44 for the preposition that the meeting has to be held within time prescribed under the statute, otherwise it is illegal. The others have submitted that:

The outer limit is meant for officer to follow but it is not mandatory in the sense that in case the meeting is not held within this time then it is illegal. (Gopal Tewari vs. District Panchayat Raj Officer Deoria: (1991) UPLBEC 904 FB).

In case the meeting could not be held for any bonafide reason then meeting can be held after the period prescribed under the.

In case the period is mandatory then helping officials can always avoid a meeting of no confidence; they merely have to sit tight for some time and this could not be the intention of the legislature.

38. We do not consider it necessary to decide this point. We have already held that meeting in pursuance of the notice dated 29th December 2004 was not invalid. Explanation of Section 28(3) of thespecifically provides extension of time: the fresh meeting in pursuance of the notice given by members on 20.12.2004 can always be held.

SOME SUGGESTIONS

39. We have held that the notice sent to the members in pursuance of the no confidence motion was not invalid merely because it was not in the prescribed proforma and the notice sent was substantial compliance of the same. Nonetheless the Rules do provide a proforma. This proforma is prescribed for observance. This litigation would have neither come to the court nor time and money would have been wasted, had the state officials taken care to issue notice in the prescribed proforma. The Collectors should ensure that the notices are sent in the prescribed proforma.

40. In this case there has been lapse on the part of some one. It is for this reason there is contradiction in the counter affidavits. The officers are trying to save themselves. We are not deciding as to who was at fault; it will take time and is not necessary for deciding the case. This does not mean that the State can not take any action in accordance with law: the State may, if it so chooses, do so.

CONCLUSIONS

41. Our conclusions are as follows:

(a) Section 28 of the(the UP Kshetra Panchayats and Zila Panchayats Adhiniyam) is constitutional.

(b) The part of section 28 (3)(ii) of the Act, providing holding of meeting in such manner as may be prescribed, is directory. A meeting can not be invalidated merely on the ground that information was not sent in the prescribed proforma, provided the information sent contains the necessary ingredients namely; purpose of the meeting, date, place, and the time of the meeting.

(c) In the present case, necessary information was there; there was substantial compliance.

(d) Fifteen days notice is required between the date of the meeting and giving of notice. The notice is given on the date it is despatched. It is not connected with the date on which notice is received.

42. In view of our conclusions, both the WPs are disposed off with the observation that the Collector may consider the suggestion mentioned in paragraph 39 of the judgement under the heading SOME SUGGESTIONS and reconvene the meeting to consider the no confidence monition in pursuance of the notice dated 29.11.2004.