# Adesh Singh Yadav v. Collector/D.M. Bareilly & Ors

- **Citation:** (2020) 2 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-16
- **Case number:** Writ C No. 21 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adesh-singh-yadav-v-collector-d-m-bareilly-ors-45233
- **Pages:** 7

## Headnote

A. Civil Law-U.P. Kshettra Panchayat & Zila
Panchayat Act, 1961 - Section 15 - No
Confidence - Period of Notice - Mandatory effect
- Legislature intends that there has to be a notice
of not less than 15 days, in any case, to the
elected members of the Kshettra Panchayat to
consider the no confidence motion - the notice
has to be sent in the form as prescribed for under
the schedule and has to be sent by registered
post - There was only 13 days notice of the
scheduled meeting - Thus, the requirement of
not less than 15 days notice as contemplated
under the provision of Adhiniyam, 1961 has not
been fulfilled. (Para 8, 9 and 11)

Writ Petition allowed. (E-1)

List of cases cited :-

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
Director of Consolidation and another,
2005 SCC OnLine All 2263: 2005(98)
RD
593,
where
dealing
with
the
obligations of a Revisional court while
writing its opinion, it was held thus:

"8. It is well settled that, while
setting aside the judgment of inferior
Court or Tribunal a Revisional Court or
higher Tribunal has to deal with the
findings given by the inferior Court or
Tribunal and is required to consider the
entire evidence on record. Thus while
recording the contrary findings the Deputy
Director of Consolidation was under
obligation to consider entire evidence on
record and also to record reasons of
differing
with
the
findings
of
Consolidation Officer and Settlement
Officer Consolidation. ....."
(emphasis supplied)

14.

The
Deputy
Director
of
Consolidation, while deciding a Revision
cannot write his judgment like that of a
Court exercising original jurisdiction. He
has to write his judgments in the fashion of
a Court of Revision. The powers of the
Deputy Director of Consolidation, in view
of the third proviso to Section 48 of the
Act, have been immensely enlarged
retrospectively w.e.f. 1980, that would
apply in this case. Post amendment, the
Deputy
Director
of
Consolidation,
exercises a most non conservative kind of
revisional jurisdiction where he is a Court
entitled to decided all question of fact and
law, like a Court of regular appeal. But
that notwithstanding, the obligation of a
Revisional Court to exercise jurisdiction in
the manner a Court of Revision is
supposed to do, cannot be said to be done
away with. As a Revisional Court, the
Deputy Director of Consolidation is
obliged to reappraise the reasoning of the
Consolidation Officer and the SOC, and
then reverse, affirm or modify the orders
impugned before him. He cannot write his
judgment in the fashion of a third Court of
original
jurisdiction,
after
the
Consolidation Officer and the SOC have
dealt with the matter as Authorities of
original and Appellate jurisdiction.

15. This Court finds the impugned
order to be flawed on both counts.

16. Accordingly, this writ petition
succeeds and is allowed in part. The
impugned order dated 04.08.1984 passed
by the Deputy Director of Consolidation in
Revision No.580/878 Ram Niwas Vs.
Khached Mal and Others is hereby
quashed with a remit of the matter to the
Deputy Director of Consolidation to
decide the Revision afresh, bearing in
mind what has been said in the body of
this judgment, and after hearing all parties.
The Deputy Director of Consolidation
shall decide the Revision afresh within a
period of six months from the date of
receipt of a certified copy of this order.

17. There shall be no order as to
costs.
----------
(2020)02ILR A174

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.10.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 21 of 2019

Adesh Singh Yadav ...Petitioner
Versus
Collector/D.M. Bareilly & Ors.
 ...Respondents
4 All. Adesh Singh Yadav Vs. Collector/D.M. Bareilly & Ors.
175
Counsel for the Petitioner:
Sri Mangal Prasad Rai, Sri Indra Raj Singh, Sri
Rajesh Kumar Yadav, Sri Rakesh Kumar Mathur

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Rai, Sri Krishna
Dutt Awasthi, Sri Girja Shankar Singh

A. Civil Law-U.P. Kshettra Panchayat & Zila
Panchayat Act, 1961 - Section 15 - No
Confidence - Period of Notice - Mandatory effect
- Legislature intends that there has to be a notice
of not less than 15 days, in any case, to the
elected members of the Kshettra Panchayat to
consider the no confidence motion - the notice
has to be sent in the form as prescribed for under
the schedule and has to be sent by registered
post - There was only 13 days notice of the
scheduled meeting - Thus, the requirement of
not less than 15 days notice as contemplated
under the provision of Adhiniyam, 1961 has not
been fulfilled. (Para 8, 9 and 11)

Writ Petition allowed. (E-1)

List of cases cited :-

1. Writ- C No.- 9763 of 2013 (Kamal Sharma v.
State of U.P. and others) decided on 05.10. 2013

2. Civil Misc. Writ petition No.- 41077 of 2012
(Kamla Devi v. State of U.P and others)
decided on 14.02.2014

3. Writ- C No. 41600 2017 (Praveen Siddiqui v.
State of U.P. and others) 06.11.2017

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri Indra Raj Singh, learned
counsel for the petitioner, Sri Ashok
Kumar Rai, learned counsel for the
respondent No.6 and learned Standing
Counsel for the State-respondents and
perused the record.

2. The controversy in the present
case centres around the legality of the
notice of no confidence motion issued by
the
District
Magistrate,
Barielly
in
purported exercise of power under Section
15 of the U.P. Kshettra Panchayat & Zila
Panchayat Adhiniyam, 1961 (hereinafter
referred to as 'Adhiniyam, 1961') on 21st
December, 2018. By the said notice the
District Magistrate, Barielly fixed meeting
of the Kshettra Panchayat, Alampur,
Jafarabad, District Barielly on 6th January,
2019 to discuss the motion notice which
was mooted by more than half members of
the Kshettra Panchayat.

3. Learned counsel for the petitioner
has drawn our attention to the notice itself
which is in the form of an order dated 21st
December, 2018 directing for meeting of
the Kshettra Panchayat to consider the
motion of no confidence. He points out
that in the order itself after it has been
signed,
it
has
been
forwarded
for
information and necessary action to the
Block Development Officer and the
necessary action contemplated in the order
is that the notice of no confidence motion
is to be pasted on the notice board on 22nd
December 2018 and further directed the
District Panchayat Raj Officer to issue
notice by registered letter to all the
members of Kshettra Panchayat.

4. Learned counsel for the petitioner
has also drawn our attention to page 16 of
the writ petition and also the photo copy of
the envelop that contained the notice to
demonstrate that notice in fact was issued
by the registered post on 22nd December,
2018 only.

5. The argument, therefore, advanced
by the learned counsel for the petitioner is
that in the light of the provisions as
contained under the relevant provision of
the Adhiniyam, 1961, there has to be a
176 INDIAN LAW REPORTS ALLAHABAD SERIES
clear 15 days notice for the scheduled
meeting of the members of the Kshettra
Panchayat. He argues that the notice as
contemplated in the provisions of the
Adhiniyam, 1961, uses the words 'not less
than' and, therefore, in computing the
period of 15 days, one has to keep in mind
that there has to be a clear 15 days notice.
He argues that 15 clear days notice means
the date of issuance of the notice and the
date on which the meeting scheduled, has
to be excluded. He has relied upon the
Division Bench judgment of this Court in
the case of Kamal Sharma v. State of
U.P. and others decided on 5th October,
2013 in Writ- C No.- 9763 of 2013. He has
further placed reliance upon another
Division Bench judgment of this Court in
the case of Kamla Devi v. State of U.P
and others, decided on 14th February,
2014 in Civil Misc. Writ petition No.-
41077 of 2012, in which it has been held
that if a clear 15 days notice is not there
then the notice per se is illegal and is not
sustainable and, therefore, even if during
pendency of the writ petition, scheduled
meeting was permitted to be held and the
motion is alleged to have been carried out,
it would amount to a nullity. He submits
that if the notice itself is bad, the
consequential action to the notice is also
turned out to be bad.

6.

Per
contra,
the
argument
advanced by the learned counsel for the
contesting respondents is that a form of
notice is mere formality and is not
mandatory in nature. He argued that
intendment of the Legislature as is
reflected from the relevant provisions of
the Adhiniyam, 1961 is that a person
against whom the notice is slated, should
have the knowledge of the notice and then
those who have participated in the meeting
should have also the knowledge of the
notice. Whether the notice is pasted on the
notice board of the Kshettra Panchayat or
sent by the registered post hardly makes a
difference. He argues that even otherwise,
this Court while entertaining this writ
petition had permitted the meeting to be
held on the scheduled date and the motion
has been carried out as has been stated in
the counter affidavit and the petitioner has
virtually lost the confidence of the House
and, therefore, this Court should not go
into the technicality involved in the case
and should dismiss the writ petition outrightly.

7. Having heard learned counsel for
the parties and having perused the record,
we find that the core issue is the period
that has to be provided by the District
Magistrate under the provisions of the
Adhiniyam, 1961 for scheduling a meeting
to consider the no confidence motion as
far as the intimation to the person is
concerned. In order to appreciate the
argument advanced by the learned counsel
for the petitioner it is necessary to
reproduce Section 15 of the Adhiniyam,
1961 in its entirety. Section 15 of the
Adhiniyam, 1961 is runs 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
Kshetra Panchayat may be made and
proceeded with in accordance with the
procedure laid down in the following subsections.

(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
Kshetra Panchayat] for the time being
together with a copy of the proposed
motion, shall be delivered in person, by
4 All. Adesh Singh Yadav Vs. Collector/D.M. Bareilly & Ors.
177
any one of the members signing the notice,
to the Collector having jurisdiction over
the Kshetra 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 subsection, 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.

(4) ........."
(emphasis supplied)

8. From the bare reading of the
aforesaid provision it is clearly revealed
that the Legislature intends that there has
to be a notice of not less than 15 days, in
any case, to the elected members of the
Kshettra Panchayat to consider the no
confidence motion and such notice has to
be sent in a manner as may be prescribed.
The rules that govern the field regarding
procedure to be followed in the prescribed
form for the purposes of the notice as
meant under relevant rules are also
reproduced hereunder:-

RULES

1. A written notice of intention to
make a motion expressing want of
confidence in the Pramukh or the UpPramukh 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 Zila 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/UpPramukh 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 non-confidence in Sri
...............................
the
Pramukh/UpPramukh 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 ...................196
FORM II
178 INDIAN LAW REPORTS ALLAHABAD SERIES

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

To,

Sri

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

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 nonconfidence which has been made against
Sri ........................... the Pramukh/UpPramukh of the said Kshettra Samiti.

A copy of the motion is annexed
hereto.

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

Dated.................,196

Collector ..................

9. From the rules as quoted
hereinabove it is clear that the notice has
to be sent in the form as prescribed for
under the schedule and has to be sent by
registered post. Apart from its publication
and affixation of a copy thereof on the
notice board of the office of the Kshettra
Panchayat, the Division Bench of this
Court in the case of Kamal Sharma
(supra) had the occasion to consider the
legal aspect involved in the matter and has
compared this provision with the provision
as contained under Section 87(A) of the
U.P. Municipality Act, 1960 holding it to
be pari materia. After detailed deliberation
over the subject matter and discussing
various authorities relating to the same, the
Division Bench vide paragraph 26 of the
judgment (supra) has held thus:-

"26. There is no difference in the
words "at least" and "not less than".
Admittedly, the notice dated 13.2.2013 was
dispatched to the elected members on
14.2.2013 by speed post for convening the
meeting which was scheduled to be held
on 1.3.2013. While computing 15 days
period the two terminal dates have to be
excluded. Thus 15 days clear notice was
not given to the elected members."

10. We notice in this case that the
District Magistrate while passed the order
on 21st December, 2018 but directed the
notices to be issued with the copy thereof
being pasted on the notice board on 22nd
December, 2018. The question, therefore,
is that what is the date of issuance of the
notice as contemplated under the relevant
provisions of the Adhiniyam, 1961.

11. In our considered opinion, the
first date of notice which makes the notice
public including the members of the
Kshettra Panchayat scheduling a meeting
to consider the motion of no confidence is
22nd December, 2018. The date fixed for
the meeting is 6th January, 2018. Thus, if
we follow the Division Bench judgment
(supra) it is clearly borne out that there
was only 13 days notice of the scheduled
meeting. Thus, the requirement of not less
than 15 days notice as contemplated under
the provision of Adhiniyam, 1961 has not
been fulfilled.

12. The argument advanced by
learned counsel for the respondents that
the provision of notice is mandatory but
the manner in which notice is sent is
directory even if so accepted then there
has to be not less than 15 days notice. In
any event notice is published on 22nd
December, 2018. Now, excluding the date
of issuance of notice, the date on which
4 All. Adesh Singh Yadav Vs. Collector/D.M. Bareilly & Ors.
179
the meeting is slated is also excluded, it
comes out only 14 days notice. So even if
it is accepted that there was an effective
notice issued on 22nd December, 2018
with its affixation on notice board, the
mandatory requirement of the period for
the notice is not fulfilled.

13.

Learned
counsel
for
the
respondent has, in a submission though
relied upon a Division Bench judgment in
the case of Praveen Siddiqui v. State of
U.P.
and
others,
decided
on
6th
November, 2017 in Writ- C No. 41600
2017, does not help him either, because in
the said case the Court was dealing with
the issue of the manner of service of
notice. The Division Bench did not discuss
about the notice being not less than 15
days. Moreover the Division Bench has
not considered another judgment of the
concurrent Bench of this Court in the case
Kamal Sharma (supra) and also Kamla
Devi (supra) and, therefore, in the light of
the law a concurrent Bench could not have
taken
view
different
from
another
concurrent Bench and thus, the judgment
of the Division Bench does not have a
binding force. In the case of Kamla Devi
(supra), the Division Bench considered
this aspect of the matter and has held that
if the notice itself was not as per the
mandatory requirement of law, even if the
motion is carried out, it will not be held to
be legal one. The Division Bench has
observed as under:-

"We have considered the ratio of
the decisions that have been cited at the
bar and we do not find any good reason to
defer from the view already taken by
several division benches as referred to
hereinabove. One of the decisions, namely,
Satya Prakash Mani (supra), has also
taken into consideration the full bench
decision of 1975 in the case of Gyan Singh
(supra) as relied upon by Sri Tripathi
counsel for the respondent. The decision in
the case of Phula Devi (supra) has already
held that the provisions are mandatory
except for the manner in which the notice
has to be sent. Thereafter in Paragraph 30
of the aforesaid judgment in the case of
Satya Prakash Mani (supra) also holds
that the requirement of 15 days notice is
mandatory.

In the instant case, the dispute is
not with regard to the proforma of the
notice but the period of 15 days clear
notice. The respondents have not been
able to establish the dispatch of notice
prior to 13.8.2012. The pasting of the
notice has been clearly denied by the
petitioner. In the circumstances, the
contention raised that the requirement of
15 days clear notice had not been
complied with deserves to be accepted on
the facts of the present case."

14. It has further observed by the
Division Bench that it is settled principle
that parties to a litigation have to be
allowed to contest the matter, and
determined, on the date when the lis
began. If one of the parties succeeds, then
he or she has to be put back in the same
position that was existing on the date when
the lis began. Once it is found that the
meeting on 25.8.2012 was convened in
violation of the mandatory provision of
Section 15(3)(ii), then the resolution
passed on the said date has to fall through.
The no confidence motion therefore could
not have been passed in an invalidly
convened meeting and consequently there
would be no removal of the petitioner. If
the petitioner is not removed then there is
no vacancy and as such any notification
for subsequent elections and the election
of the respondent no. 4, being directly
180 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent on this contingency has also to
fall through.

To our mind such a contingency
as involved in the present case, which is
peculiar in its nature, arising out of the
pendency of the writ petition and the facts
aforesaid cannot be subject matter of an
election petition as urged by Sri Tripathi.
The bar of the constitutional provisions as
urged therefore is not at all attracted.

The decision of the apex court in
the case of K. Venkatachalam (supra), in
the aforesaid circumstances therefore
comes to the aid of this Court for exercise
of jurisdiction under Article 226 of the
Constitution of India and not to the
contrary as suggested by Sri Tripathi.

The question of a majority
having already voted against the petitioner
has to be considered in the background of
a
valid
meeting.
As
already
held
hereinabove since the meeting was itself
invalid, then the submission of Sri Tripathi
that a vast majority having voted against
the petitioner, can be of no consequence.
In our opinion, the reliefs prayed for by
the petitioner are very much entertainable
and the petition deserves to be allowed.

15. In view of the above, the writ
petition succeeds and is allowed. The
order/ notice of no confidence motion
scheduling the meeting under the order of
District Magistrate dated 21st December,
2018 is hereby quashed and so also any
consequential action if it is taken place
pursuant to such order/ notice stand
quashed.

16. We may clarify that since we
have held that notice itself was bad, the
provisions as contained under sub-section
12 of Section 15 shall not come in the way
of members if they so desire to move
another notice of no confidence motion.

17. With the aforesaid observations,
the writ petition stands allowed.
----------
(2020)02ILR A180

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ C No. 580 of 2014

Mohd. Baqar Agha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Goyal, Sri Siddharth Singhal

Counsel for the Respondents:
C.S.C., Sri Brijendra Kumar Ojha

A. Land Law-Urban Land (Ceiling and
Regulation) Act, 1976 - Section 10(5)
and 10(6) - Surplus land - Effect of taking or
not taking the possession - After the land was
declared to be surplus, no proceedings for
taking its possession were drawn and that at
least no notice under Section 10 (5) of the Act
was served upon the petitioner to surrender or
deliver the possession of the surplus land - The
respondents have not taken possession of the
land so declared to be surplus - The
respondents have not brought any memo of
possession on record which may have been
executed under Section 10 (6) of the Act - It is
admitted legal position that once possession of
the land declared to be surplus under the Act
has not been taken and in the meantime the
Act has been repealed, the respondents cannot
initiate any proceedings under the said Act for
its
possession.
(Para
11,
15
and
17)