# 184 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 Surya Prakash Dwivedi v. State of U.P. and others Responden

- **Citation:** (2008) 1 ILRA 183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-28
- **Case number:** Civil Misc. Writ petition No. 63027 of 2007
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/184-indian-law-reports-allahabad-series-2008-surya-prakash-dwivedi-v-state-of-u-41009
- **Pages:** 4

## Headnote

Rules
2005-Rule
33-B-No
confidence
motion notice-given with signature of 1189
members-District Punchayat Raj officer
nominated District Horticulture Officer-who
fixed the date by beat of drum to assemble
all those person to verify their signaturepresence of all those members on specified
date not possible-procedure adopted by the
enquiry officer contrary to rule-set a side.

Held: Para 9

In the present case the calling of the
meeting by beat of drums in the village and
thereafter asking the persons to assemble
to verify their signatures virtually preempted the 'no confidence motion'. It was
not necessary to call for the members who
had signed or put their thumb impressions.
They may not be present on that date or at
any particular time to be chosen by the
enquiry officer. It is not possible to assume
that more than half of the members of
village will be present in the village on any
given time before the enquiry officer.

## Text

1 All] Raj Dei V. Ram Lakhan
183
In the instant case the opposite party
examined himself as O.P.W. -1 and
deposed that he came home on leave in
January 1972 and went away to join his
duty in February 1972 and child was born
to the revisionist in January 1973 though
he had no physical relationship with her
after February 1972. In the Parivar
Register maintained by Gram Panchyat
the date of birth of the child has been
mentioned as 9.9.1972. The opposite
party did not apply for D.N.A. test of
blood samples of the child with his blood
samples to establish the identity of the
father of the child. The D.N .A. test is
recognized under the Indian Evidence Act
as proof of paternity of the child. There is
no documentary proof that the child was
born in January 1973. On the contrary, the
entries of Parivar Register indicate the
birth of the child on 9.9.72. The opposite
party did not examine any witness to
establish the adulterous relationship of
revisionist with a particular person. The
deposition of opposite party was not
sufficient for coming to the conclusion
that
the
revisionist
had
adulterous
relationship and child born to her was the
result of said relationship. Moreover the
child was born in the year 1972 or 1973.
The petition for maintenance was filed in
the year 1995. The statement of the
opposite party was silent on the point that
his wife was living in adultery on the date
the application was made. In view of
these facts the conclusion drawn by the
Principle Judge Family Court that the
revisionist is living in adultery and child
was
the
outcome
of
adulterous
relationship cannot be sustained.

18. Coming to the question whether
the revisionist has established that her
husband
neglected
and
refused
to
maintain her. The opposite party deposed
that, he will not allow his wife and her
son to live in his house. He admitted that
his wife is an illiterate woman and she is
residing at her parental home since the
birth of the child. According to him he is
drawing pension of Rs.2400/- per month.
The opposite party did not provide
maintenance to his wife and refused to
maintain her. The revisionist asserted that
she was assaulted, turned out of marital
home by the opposite party and threatened
not to come again. She gave out that she
has no means to maintain herself whereas
the opposite party is drawing pension and
had income from agricultural land. There
is no reason to discard the sworn
testimony of the revisionist that opposite
party neglected and refused to maintain
her. The opposite party is a man of means
having sufficient income to provide
maintenance to the revisionist. In view of
these
facts
and
circumstances
the
revisionist is entitled to get maintenance
allowance @ Rs.500/- per month from the
opposite party from the date of the
revision i.e. 25.7.2003.

19. A propose to what has been
discussed above the revision is allowed.
The impugned order dated 24.4.2003 is
set aside. Allowing the application moved
under
section
125
of
the
Code
maintenance allowance @ Rs.500/- per
month is awarded to the revisionist from
the opposite party from the date of this
revision.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ petition No. 63027 of 2007
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Surya Prakash Dwivedi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Sharma
Counsel for the Respondents:
Sri Girish Kumar Singh
S.C.

U.P. Punchayat Raj (16th Amendment)
Rules
2005-Rule
33-B-No
confidence
motion notice-given with signature of 1189
members-District Punchayat Raj officer
nominated District Horticulture Officer-who
fixed the date by beat of drum to assemble
all those person to verify their signaturepresence of all those members on specified
date not possible-procedure adopted by the
enquiry officer contrary to rule-set a side.

Held: Para 9

In the present case the calling of the
meeting by beat of drums in the village and
thereafter asking the persons to assemble
to verify their signatures virtually preempted the 'no confidence motion'. It was
not necessary to call for the members who
had signed or put their thumb impressions.
They may not be present on that date or at
any particular time to be chosen by the
enquiry officer. It is not possible to assume
that more than half of the members of
village will be present in the village on any
given time before the enquiry officer.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard learned counsel for the
petitioner. Sri Girish Kumar Singh appears
for contesting respondent. Learned Standing
Counsel appears for state-respondents.

2. The petitioner along with four other
members of the Gram Sabha, Ram Nagar,
presented a motion to the District Panchayat
Raj Officer, Pilibhit to convene a meeting to
consider a 'no confidence motion' vide notice
dated 2.11.2007 signed by 1189 members of
Gaon Sabha. The District Panchayat Raj
Officer nominated the District Horticulture
Officer, Pilibhit to verify these signatures. He
made a proclamation by beat of drums in the
village on 12.11.2007 calling the villagers to
assemble on 14.11.2007 for verifying the
signatures. The District Horticulture Officer
found that 913 persons/villagers did not
appear to verify their signatures and thumb
impressions, and that 16 persons present
expressed
their
doubts
over
the
signatures/thumb impressions. On the next
day, on 15.11.2007, on receiving the report,
the District Panchayat Raj Officer found that
the notice was not verified and cancelled the
same.

3. Learned counsel for the petitioner
contends that five members presenting the
notice, affirmed in their affidavits and
verified the signatures/thumb impression on
the notice. The law does not prescribed for
any specific procedure under the Rules for
verification. The subjective satisfaction of the
Prescribed Authority, and his discretion,
however, must be used in a reasonable
manner to verify the signature/thumb
impression on the notice. The procedure
adopted by the District Panchayat Raj
Officer was neither reasonable nor fair and
over reaches the requirement prescribed in
law.

4. Learned counsel for the respondent,
on the other hand, submit that the District
Panchayat Raj Officer directed the District
Horticulture Officer, and that the notice by
bit of drum to verify the signatures/thumb
impression on the notice of 'no confidence
motion' was a proper procedure. According
to him there was nothing wrong in the
procedure
adopted
by
the
Prescribed
Authority.
1 All] Surya Prakash Dwivedi V. State of U.P. and others
185
5. In the Full Bench case of Mathura
Prasad Tewari Vs. Assistant District
Panchayat Raj Officer, 1966 ALJ 672
(FB) Hon. M.C. Desai, C.J., observed as
follows:

"The most that can be said is that the
matter is in the discretion of the Prescribed
Authority, if a complain is made to it that
material number of signatures is invalid, it
may, in its discretion, make enquiry or refuse
to make it."

Similar 2 as the view taken by Hon'ble Satish
Chandra, J. as he then was, in Daya
Shankar Vs. District Panchayat Raj
Officer, 1968 ALJ 753:-

"The Prescribed Authority was not
obliged by law to make an enquiry into the
genuineness or otherwise of the signatures
appended to the notice. The enquiry directed
to be conducted in the instant case was
informal for the personal satisfaction of the
Prescribed Authority for which the Pradhan
or other members of the Gaon Sabha have no
concern or interest."

6. A Division Bench of this Court in
Banshoo Vs. District Panchayat Raj
Officer, Jaunpur, 1986 UPLBEC 429
approved the decision and held that it was the
discretion of the Prescribed Authority to hold
or not to hold the enquiry would be justified
depending upon the facts of the case, and
even the enquiry is to be made, it should not
be a long drawn enquiry so as to take it
beyond the statutory period of thirty days as
required by Rule 33-B of the Rules made
under U.P. Panchayat Raj Act, 1947.

7. Since after the aforesaid decisions,
Rules have been amended and that now Rule
33-B as amended by U.P. Panchayat Raj
(Sixteenth Amendment) Rules, 2005 with
effect from 4.3.2005 provides as follows:

"33-B. Procedure for removal of
Pradhan.- (1) A written notice of the
intention to move a motion for removal of
the Pradhan under Section 14 of the Act shall
be necessary. It shall be signed by not less
than one-half of the total number of members
of the Gram Sabha and shall state the reasons
for moving the motion and it shall be
delivered in person by at least five members
signing the notice to the District Panchayat
Raj Officer. It shall also be necessary to
certify the signatures of the other members
signing the notice by all five members
presenting the notice by furnishing their
affidavit to this effect. Before proceeding
further on notice the District Panchayat Raj
Officer shall satisfy himself regarding
genuineness of the signatures of the members
signing the notice.
(2) The District Panchayat Raj Officer
shall convene a meeting of the Gram Sabha,
under Provisions of Section 14 of the Act, on
a date and time of commencement of
meeting to be fixed by him which shall not
be later than thirty days from the date of
receipt of the notice. The meeting shall be
presided over by the District Panchayat Raj
Officer or by the person authorised by him in
writing in this behalf. If any other person is
authorised to preside the meeting, he shall be
supplied a copy of the electoral rolls of the
Gram Sabha and all other papers relating to
the motion by the District Panchayat Raj
Officer. The Presiding Officer may take such
clerical assistance for conducting the
proceedings
of
the
meeting
for
the
consideration of the motion as he may deem
necessary.
(3) The Presiding Officer shall read in
the meeting, the notice received by him. He
shall then allow the motion to be moved and
discussed. The Presiding Officer shall not
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
speak on the merit of the motion. Such
discussion shall terminate on the expiry of
two hours appointed for the commencement
of the meeting unless it is concluded earlier.
Then the motion shall be put to vote
according to provisions of Rule 33-D."

8. After the amendment of the Rules
with effect from 4.3.2005, the delivery of the
notice by five members signing the notice,
certifying the signatures of other members
signing the notice is prima facie sufficient to
satisfy the District Panchayat Raj Officer
regarding genuineness of the signatures of
the members signing the notice. He may hold
an enquiry, the manner of which is not
prescribed, to satisfy himself, with regard to
the genuineness and number of signatures on
the notice. He may also refuse to make an
enquiry in this regard. The enquiry, however,
should not be so elaborate so as to defeat the
very object of the notice. The law does not
require the enquiry officer to summon each
and every signatory or to knock on their
door, or even to ask them to assemble and to
verify the signatures/thumb impressions. The
enquiry should not be delayed or deferred
giving an opportunity to the elected Pradhan
to either withhold the members from
attending the proceedings or to manipulate to
defeat the motion. The enquiry also should
not be extended so that the members are not
provided with 15 clear days to consider the
motion.

9. In the present case the calling of the
meeting by beat of drums in the village and
thereafter asking the persons to assemble to
verify their signatures virtually pre-empted
the 'no confidence motion'. It was not
necessary to call for the members who had
signed or put their thumb impressions. They
may not be present on that date or at any
particular time to be chosen by the enquiry
officer. It is not possible to assume that more
than half of the members of village will be
present in the village on any given time
before the enquiry officer.

10. The writ petition is allowed. The
order dated 15.11.2007 passed by the District
Panchayat Raj Officer is set aside. Now since
the period of thirty days has expired, no
effective relief can be given to the petitioner
except by observing that the petitioner may
give a fresh notice, call the meeting to
consider the 'no confidence motion'. If and
when such a meeting is called, the District
Panchayat Raj Officer would hold the
enquiry regarding the genuineness of the
signatures/thumb impressions in accordance
with law as explained in the judgment.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2007

BEFORE
THE HON'BLE S.K. SINGH, J.

Second Appeal No. (88) of 2006

Ram Pal

...Plaintiff Appellant
Versus
Smt. Birmo
...Defendant/Respondent

Counsel for the Appellant:
Sri A.K. Singh

Counsel for the Respondent:
Sri Amit

Indian
Limitation
Act-Section
14Condonation of delay in filling Second
Appeal-5 years delay-No proper explanation
wrong advice of counsel-even name of such
counsel not disclosed-No complaint filed
before Bar counsel who advised to file
revision against the rejection of First Appeal
by District Judge-even on merit-no loss or
injury caused the appellant-delay not liable
to condone.