VIKAS TRIVEDI Vs. STATE OF U P

JUDGEMENT

(1.) THIS Full Bench has been constituted to answer the questions referred by two Division Benches, while hearing writ petition No. 29907 of 2012 and writ petition No. 46452 of 2012. The facts of both the writ petitions and the issues raised need to be noted before we look into the questions which have been referred by the two Division Benches.

(2.) WRIT petition No. 29907 of 2012, Vikas Trivedi Vs. State of U.P. has been filed by the petitioner, who was elected and functioning as Block Pramukh of Kshetra Panchayat Malava, district Fatehpur challenging the order of the District Magistrate dated 21.5.2012 by which order, the District Magistrate has directed for convening the meeting on 11.6.2012 for consideration of no confidence motion against the petitioner. The petitioner after coming to know about the no confidence motion, which was scheduled to take place on 11.6.2012 filed an election petition before the District Judge, Fatehpur making various allegations including the allegation that in the resolution of no confidence motion which has been received by the petitioner, there is no signature of any member. The District Judge fixed a date in July for considering the maintainability of the petition hence, the petitioner filed writ petition no. 29907 of 2012. Meeting for no confidence motion against Vikash Trivedi was held on 11.6.2012 as scheduled. Out of 94 members of the Kshetra Panchayat, 76 members were present in the debate and only 69 members casted their votes. 67 members voted in favour of no confidence motion and one member voted against no confidence motion and one vote was declared invalid. The no confidence motion was declared passed with majority of 67 -1. Amendment application has been filed by the petitioner seeking to amend the writ petition challenging the order dated 11.6.2012 by which result of no confidence motion was declared and letter dated 18.6.2012 by which Sub Divisional Officer was appointed as Administrator till fresh election is held. In the writ petition submission was made that the notice presented before the District Magistrate did not comply with the requirement of Section 15(2) of U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 1961 Act). It was further submitted that proposed no confidence resolution was not appended with motion nor was in prescribed format. Reliance was placed by learned counsel for the petitioner on Division Bench judgment of this Court in Ram Nath Tripathi Vs. Commissioner Lucknow Division, Lucknow and other (1992) 2 UPLBEC 1181. Learned Standing Counsel refuting the submissions of learned counsel for the petitioner contended that even if notice of no confidence motion has not been given in prescribed format that will not vitiate the proceedings since giving notice in prescribed format is only directory. The Court at the time of hearing of the writ petition looked into the record produced by learned Standing Counsel which indicated that notice of no confidence motion was signed by 60 members and was dated 19.5.2012. The Division Bench heard the matter on 11.7.2012. The Division Bench expressed its doubts regarding the view taken in Ram Nath Tripathi's case. The Division Bench also expressed its doubts about the view taken by the Division Bench in Smt. Krishna Jaiswal Vs. State of U.P. and others 2005 (2) AWC 1732 that the word 'may' used in Section 28(3) (ii) of 1961 Act indicates that use of proforma is not mandatory. The Division Bench also noticed subsequent two Division Benches following the view taken in Smt. Krishna Jainswal's case. In view of the submissions made before the Division Bench, the Division Bench vide its order dated 11.6.2012 referred following two questions for consideration by larger Bench.

(3.) AFTER writ petition No. 29907 of 2012 was entertained, counter and rejoinder affidavits have been filed in the said writ petition. In the counter affidavit filed by the State of U.P. copy of the notice signed by 60 members of Kshetra Panchayat dated 19.5.2012 has been annexed as well as copy of the no confidence motion signed by 60 members have been annexed as Annexure C.A. 1. Copy of the notice issued by the Collector dated 21.5.2012 to all members of the Kshetra Panchayat has been annexed as Annexure C.A.2. Notice Annexure C.A. 2 although mentions that along with notice copy of no confidence motion is attached but the petitioner's case is that along with notice which was sent by the Collector, copy of the no confidence motion was not attached. In writ petition No. 46452 of 2012, the petitioner has filed copy of the notice of no confidence motion issued by the Collector as well as copy of the no confidence motion dated 27.8.2012 as Annexure -1 to the writ petition. The case of the petitioner however, is that copy of the no confidence motion which has been attached along with the notice is not complete copy and although the copy of no confidence motion runs in five pages but only two pages have been given to the petitioners and there are signature of only six members on second page, whereas 79 members have claimed to have signed the no confidence motion. The learned counsel for the petitioners have attacked the notice issued by the Collector to the members giving information of the meeting. The submission in writ petition of Vikas Trivedi is that along with notice which was sent by Collector copy of the no confidence motion was not attached and in Pramod Kumar Tripathi's case, the argument is that incomplete copy of the no confidence motion was attached since out of five pages only two pages were attached.