# Niyazuddin & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-21
- **Case number:** Writ C No. 32482 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niyazuddin-ors-v-state-of-u-p-ors-45109
- **Pages:** 13

## Headnote

C.S.C., Sri Purshottam Mani Tripathi, Sri
Sanjeev Singh

A. District Magistrate-Statutory dutylimited power to ensure that the notice
for "No confidence motion" has been
presented
by
the
members
signed/supported -by at least 50 %
members of the total strength of the
House-30 days limited time to the District
Magistrate to convene the meeting.

Held, it is quite reflective from the order of the
District Magistrate now impugned in the
present
writ
petition,
that
the
District
Magistrate virtually paraded the members of
the House and gave opportunity to the
respondent Pramukh to bring men in his
support by submitting their notary affidavits.
Such an exercise of power was totally uncalled
for. Something what was done in the House
through discussion and voting, got done in the
office of the District Magistrate. Neither the
provisions as contained under Section 15 of
Adhiniyam, 1961 contemplated
any such
powers nor, any such intendment of the
Legislature
is
presumable
behind
the
incorporation of such a provision. Hence, the
order passed by the District Magistrate dated
20th September, 2019 deserves to be held bad
for undertaking an exercise beyond the
authority vested with the District Magistrate.
(Para13)

Writ Petition disposed of. (E-9)

List of cases cited: -
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1113

## Text

_Characters 0–39,157 of 44,437. This is a partial read: ask again with offset=39157 for what follows._

1112 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. The question is whether such
opinion given by the elected members would
be binding on the Presecribed authority. If
such as interepretation is given, then the power
exercised by the Prascriubed Authority under
section 12-J of the Act will have to be read
subjectect to the opinion of other members.
would not be a correct interpretation of the
law. There could be a possibility of violation of
reservation policy, and/or a person may
pressurise other members to propose his
name, and or the like. ........."

12. Since the judgment in Udaiveer
(supra), cited by learned Standing Counsel
provides that while exercising the power under
Section 12-J of the said Act, the District
Magistrate should obtain the opinion of the
elected members of the Gram Panchayat, which
view has been affirmed in the case of Shyamu
supra with the stipulation that the said opinion is
not absolutely binding, and such an exercise has
not been undertaken by the District Magistrate,
prior to passing the impugned order, in my
considered opinion, the impugned order is not
liable to be sustained. At least, there is no
mention of any such exercise having been
resorted to, in the order impugned.

13. Accordingly and in view of the
above, the writ petition is allowed. The
impugned order dated 24.07.2019 is hereby set
aside and the matter is remitted back to the
District Magistrate respondent no. 2 to pass a
fresh order under Section 12-J of the Panchayat
Raj Act, keeping in mind what has been stated
in the body of this judgment, above.

14. No order as to cost.
----------
(2020)1ILR 1111

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2019

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

Writ C No. 32482 of 2019

Niyazuddin & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan, Sri Mahendra Singh

Counsel for the Respondents:
C.S.C., Sri Purshottam Mani Tripathi, Sri
Sanjeev Singh

A. District Magistrate-Statutory dutylimited power to ensure that the notice
for "No confidence motion" has been
presented
by
the
members
signed/supported -by at least 50 %
members of the total strength of the
House-30 days limited time to the District
Magistrate to convene the meeting.

Held, it is quite reflective from the order of the
District Magistrate now impugned in the
present
writ
petition,
that
the
District
Magistrate virtually paraded the members of
the House and gave opportunity to the
respondent Pramukh to bring men in his
support by submitting their notary affidavits.
Such an exercise of power was totally uncalled
for. Something what was done in the House
through discussion and voting, got done in the
office of the District Magistrate. Neither the
provisions as contained under Section 15 of
Adhiniyam, 1961 contemplated
any such
powers nor, any such intendment of the
Legislature
is
presumable
behind
the
incorporation of such a provision. Hence, the
order passed by the District Magistrate dated
20th September, 2019 deserves to be held bad
for undertaking an exercise beyond the
authority vested with the District Magistrate.
(Para13)

Writ Petition disposed of. (E-9)

List of cases cited: -
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1113

1. Smt. Sheela Devi and others v. State of U.P.
and others, 2015 (2) ADJ 325 (FB)

2.Amit Kumar v. State of U.P. and 13 others
(Writ-C No.- 3982 of 2018)

3.Kusumawati Verma v. State of U.P. and 4
others (Writ-C No.- 22702 of 2018)

4.Smt. Shashi Yadav v. State of U.P. and others (Writ- C
No. 1994 of 2018 decided on 22nd February, 2018)
5. Kamal Sharma v. State of U.P. and others
(Writ-C No. 9763 of 2013 decided on 5th
October, 2013)

6. Anil Kumar Singh v. State of U.P. and others
(Writ- C No.- 29087 of 2019 decided on 24th
September, 2019)

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

1. Heard Sri Shashi Nandan, learned
Senior Advocate assisted by Sri Mahendra
Singh, learned counsel for the petitioners,
Sri
Sanjeev
Singh
along
with
Sri
Purushottam
Mani
Tripathi,
learned
counsel for the respondent No.3, learned
Standing
Counsel
for
the
Staterespondents and perused the record.

2. By means of present writ petition
under Article 226 of the Constitution, as it
came to be filed, a writ of mandamus was
initially
sought
for
commanding
respondent No.2, namely, the District
Magistrate, Kushinagar to pass appropriate
orders exercising power vested with him
under Section 15(2) of the U.P. Kshettra
Panchayat & Zila Panchayat Adhiniyam,
1961
(hereinafter
referred
to
as
'Adhiniyam, 1961') qua the notice of "No
Confidence Motion" already delivered to
him on 9th September, 2019 by the
members of the Kshettra Panchayat,
Dudahi, District- Kushinagar.

3. The grievance raised by the
petitioners is that though a statutory duty
is cast upon the District Magistrate to take
a decision to convene a meeting of
Kshettra Panchayat for consideration of
motion of no confidence moved against
the Chairman/ Pramukh within 30 days of
the delivery of the notice, the District
Magistrate- respondent No.2 was only
borrowing time by holding some roving
inquiry in respect of the signatories of the
notice. It had been argued initially that in
view of the settled legal position emerging
out from the Full Bench Judgment of this
Court in the case of Smt. Sheela Devi and
others v. State of U.P. and others, 2015
(2) ADJ 325 (FB) followed by the
subsequent Division Benches of this
Court, it was not open for the District
Magistrate to conduct a roving inquiry
calling
for
evidence
to
arrive
at
satisfaction regarding genuineness of the
signatures of the members on the notice of
no confidence motion.

4. Having found prima facie
arguments
advanced
by
the
learned
counsel for the petitioners, to be appealing,
we passed an order on 1st October, 2019
to the following effect:-

"It is contended by Sri Shashi
Nandan, learned Senior Advocate assisted
by Sri Mahendra Singh, learned counsel
for the petitioners that though the notice
for no confidence motion has been moved
before the District Magistrate, Kushinagar
on 09.09.2019 but he has sit tight over the
matter and has not passed any order till
date, resultantly, the notice is getting
frustrated as not only the 15 days clear
time has to be given to the person
concerned
against
whom
the
no
confidence motion is sought to be stated,
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
but even the meeting has to be convened
within 30 days of the notice.

In such view of the matter, he
submits that it is something like frustrating
the provisions contained in the U.P.
Kshettra Panchayats and Zila Panchayat
Adhiniyam, 1961.

Let,
District
Magistrate,
Kushinagar file his personal affidavit on
17.10.2019 to disclose the reasons for not
passing any order on the notice of no
confidence motion submitted before him
on 09.09.2019, failing which, the District
Magistrate, Kushinagar shall appear in
person before this Court.

Put up on 17.10.2019."

5. On the date so fixed above, a
personal affidavit was filed by the District
Magistrate,
Kushinagar
annexing
therewith a copy of an order dated 20th
September, 2019 holding that in a fact
finding enquiry conducted by him since he
has found signatures of 27 members to be
valid out of 83 signatories to the notice
and the total members of the House being
149, the notice thus being found genuinely
signed only by members less than 50%, it
was not lawful to convene meeting of the
Kshettra Panchayat under sub-section (3)
of Section 15 read with sub-section (2) of
Section 15 of Adhiniyam, 1961 and thus,
notice of motion was held to be
incompetent.

6. In such view of the matter, learned
counsel for the petitioners sought time to
challenge the order of District Magistrate
and for that we granted time fixing 21st
October, 2019.

7. Having heard learned counsel for
the respective parties, two legal questions
arise for our consideration in the present
matter:-

(A).
Whether
the
District
Magistrate is justified in conducting the
fact finding enquiry by collecting evidence
to consider the notice of no confidence
motion to be genuinely signed by members
which constitute at least half (50%)
members of the total strength of the House
and;

(B).
What
should
be
the
reasonable time within which the District
Magistrate should take a decision either to
convene a meeting or reject the notice for
that matter, so as to ensure that legislative
intendment in providing 30 days time for
convening a meeting from the date of
notice delivered to the District Magistrate
under Section 15 of Adhiniyam, 1961, is
not frustrated.

8. In so far as the first question is
concerned, the issue is no more res
integra. The Full Bench of this Court in
the case of Smt. Sheela Devi (supra) vide
paragraphs 12, 13, 14 and 15 has observed
thus:-

"12. This view which we are
inclined to take finds support in an earlier
judgment of a Full Bench of this Court in
Mathura Prasad Tewari v. Assistant
District Panchayat Officer, Faizabad,
1966 ALJ 612. The Full Bench in that case
considered the provisions of Rule 33-B of
the U P Panchayat Raj Rules, 1947 which,
at the material time, provided as follows:

"33-B (1) A written notice of the
intention to move a motion for removal of
the Pradhan ... under Sec. 14 ... shall be
necessary. It shall be signed by not less
than one half of the total number of
members of the Gaon Sabha and shall
state the reasons for moving the motion
and ... shall be delivered in person by at
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1115
least five members signing the notice to
the prescribed authority.

(2) The prescribed authority
shall, as soon as may be after the receipt
of the notice convene a meeting of the
Gaon Sabha... The meeting so convened
shall be presided over by the prescribed
authority or the person authorised by him
in writing in this behalf."

13. Under Rule 33-B (2), the
prescribed authority was required to
convene a meeting of the Gaon Sabha as
soon as may be after the receipt of a notice
under sub-rule (1) signed by not less than
one half of the total number of members.
Chief Justice M C Desai in the judgment of
the majority, held that having due regard
particularly to the need to convene the
meeting as soon as possible and the large
number of members of the Gaon Sabha, it
could never have been intention of the
State Government while making the rule
that issues such as whether the signatures
on the notice were forged or were
obtained by fraud or coercion be resolved
where a long drawn enquiry would
become necessary. In that context, the
learned Chief Justice observed as follows:

"...If a prescribed authority finds
that some signatures are not of members
of the Gaon Sabha or are forged or
otherwise invalid and the remaining
signatures are insufficient it would be
bound to desist from convening a meeting
but the question before us is different, it
being whether it is required by any rule to
make an enquiry. There may be no
provision forbidding an enquiry but that
also is immaterial because the law does
not require everything not forbidden to be
done. The most that can be said is that the
matter is at the discretion of the
prescribed authority; if a complaint is
made to it that a material number of
signatures is invalid it may in its
discretion make an enquiry or refuse to
make it. If it is a small enquiry it is
justified in making it and if it is likely to
turn out into a long drawn enquiry or if it
thinks that the complaint is not bona fide
or is made with the ulterior object of
delaying the convening of the meeting it is
fully justified in not undertaking an
enquiry..."

The Full Bench also held as
follows:

"...There is nothing to suggest
that he may spend days and even months
in enquiring whether the signatures on the
requisition are genuine or not or are
obtained without resort to fraud or
coercion or not. If it cannot be said that he
is bound to make an enquiry it cannot be
said that the prescribed authority is bound
to make an enquiry on receipt of a notice
under Rule 33-B. Injustice and anomalies
can be imagined but what is certain is that
an enquiry may take a long time and may
be followed by applications for certiorari,
mandamus
and
prohibition,
in
turn
followed by appeals from orders on the
applications.
Then
the
prescribed
authority has no power to summon
witnesses and documents and it is not
understood how it can hold an enquiry.

...Whether a meeting should be
convened or not is a matter only between
the
prescribed
authority
and
the
signatories delivering the notice to it. The
prescribed authority has to act on its
finding that the notice has been signed by
at least half the members and has been
presented
by
at
least
five
of
the
signatories. As nobody has a right to file
any objection the question of his holding
an
enquiry
simply
does
not
arise.
Whatever enquiry is made by it is made
entirely at its own discretion and nobody
has a right to compel it to make it.
Obviously there cannot be a right in any
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
person to compel it to make it when he has
not been given a right to file an objection."

14. The dissenting judgment, it
must be noted, also observes that it was
not necessary for the prescribed authority
to enter upon a detailed enquiry and the
authority would not go into difficult
question of fraud and duress. However, in
the view of the dissenting judge, the
prescribed authority would have to make a
general enquiry if there was a specific
allegation that a particular signature of a
living person is forged or is a signature of
a person who is dead. The dissenting
judge held that he was not in agreement
with the principle of the majority that the
prescribed authority is not required to
make any enquiry on the receipt of a
notice of intention to move a motion for
the removal of a Pradhan.

15. In our view, both the
decisions of the majority as well as the
minority essentially follow the same line
and the area of dissent is rather narrow.
Both the judgments of the majority as well
as the minority postulate that the Collector
ought not to make a detailed enquiry
where
serious
allegations
of
fraud,
coercion and duress are required to be
resolved particularly having regard to the
fact that a meeting had to be convened as
soon as possible. The area of divergence is
only this that whereas the majority left it
open to the Collector to determine whether
and if so what enquiry should be held, the
view of the dissenting judge was that the
Collector should hold an enquiry so long
as a detailed enquiry into serious
questions of coercion or fraud was not
involved. In either view of the matter and
since we are bound by the judgment of the
Full Bench, the law on the subject is thus
clear. The Collector, in the course of
exercising the power which is conferred
upon him, ought not to enquire into
seriously
disputed
questions
of
fact
involving issues of fraud, coercion and
duress. Moreover, the Collector must have
the discretion in each case of determining
on the basis of a summary proceeding
whether the essential requirements of a
valid notice of an intention to move a
motion of no confidence have been
fulfilled. Where in the course of the
summary enquiry, it appears to the
Collector that the written notice does not
comply with the requirements of law, the
Collector would be within his power in
determining as to whether all the required
conditions
have
been
fulfilled,
as
enunciated in sub-section (2) of Section
15. Whether the Collector in a given case
has transgressed his power is separate
issue on which judicial review under
Article 226 of the Constitution would be
available. However, we expressly clarify
that we are not laying down a detailed and
exhaustive
enumeration
of
the
circumstances in which the Collector can
determine the validity of a notice furnished
under Section (2) or those in which he can
make a limited enquiry which, as we have
held, he is entitled and competent to make.
Ultimately, each case depends upon its
own facts and it for the Collector to
determine as to whether the objections
raised before him are outside the scope of
the limited inquiry which he can make
upon notice of an intent to move a motion
of no confidence if it is submitted to him
together with a notice of no confidence."

9. Further the Full Bench of this
Court vide paragraphs 20, 21, 23 and 24 of
the judgment (supra) has finally concluded
thus:-

"20. The principle which we
have laid down in the earlier part of this
judgment is founded on the basic position
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1117
that when an authority has a power to
carry out a public act on the existence of
certain circumstances, it has an implied
power to make an enquiry in regard to the
existence of those circumstances. This is a
power which flows out of the basic power
which is conferred upon the authority and
is incidental to or ancillary for the
purpose of effectuating the purpose of the
conferment of the power. This principle
has been recognized in a judgment of a
Division Bench of this Court in Committee
of Management, Sri Gandhi Inter College
Vs Deputy Director of Education, 1988
UPLBEC 1057, where it was held as
follows:

"...It is a settled law that when
an authority is given power to do certain
act on existence of certain circumstances,
there is an implied power to make an
enquiry as to whether those circumstances
exist or not. The enquiry in regard to the
existence
of
those
circumstances
is
included in the grant of power. In other
words, the power of making enquiry in
regard
to
the
existence
of
those
circumstances flows as necessary means to
accomplish the end. In fact, the enquiry is
some thing essential for proper and
effectual performance of duty assigned..."

21. As a matter of statutory
interpretation, the duty of the Court while
interpreting legislation, first and foremost
is to give effect to the plain and ordinary
meaning of the language contained in the
statute. The legislative intent is best
reflected in the words used by the
legislature in enacting legislation. Hence,
the Court will not readily supply a casus
omissus except when there is a clear
necessity to do so and that too within the
four corners of a statute. At the same time,
where a literal construction of the words
which have been used by the legislature
give rise to an absurdity or a manifestly
erroneous result, it is open to the Court to
adopt a purposive interpretation which
will give true effect to the legislative object
and scheme. In Padmasundara Rao
(Dead) Vs State of Tamil Nadu JT 2002 (3)
SCC 1, the Supreme Court observed as
follows:

"Two principles of construction
one relating to casus omissus and the
other in regard to reading the statute as a
whole appear to be well settled. Under the
first principle a casus omissus cannot be
supplied by the Court except in the case of
clear necessity and when reason for it is
found in the four corners of the statute
itself but at the same time a casus omissus
should not be readily inferred and for that
purpose all the parts of a statute or section
must be construed together and every
clause of a section should be construed
with reference to the context and other
clauses thereof so that the construction to
be put on a particular provision makes a
consistent enactment of the whole statute.
This would be more so if literal
construction of a particular clause leads to
manifestly absurd or anomalous results
which could not have been intended by the
Legislature. "An intention to produce an
unreasonable result", said Danckwerts,
L.J., in Artemiou v. Procopiou11, "is not
to be imputed to a statute if there is some
other construction available"."

23. The same principle has been
enunciated in the judgment of a Bench of
two learned Judges of the Supreme Court
in Shanker Raju v. Union of India, (2011)
2 SCC 409, where it has been held that a
statute is designed to be workable, and the
interpretation thereof by the Court should
be to secure that object unless a crucial
omission or clear statutory direction
makes that end unattainable.

24. For these reasons, we have
come to the conclusion that where a notice
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
is delivered to the Collector under subsection (2) of Section 15, the Collector has
the discretion to determine whether the
notice fulfills the essential requirements of
a valid notice under sub-section (2).
However, consistent with the stipulation of
time enunciated in sub-section (3) of
Section 15 of convening a meeting no later
than thirty days from the date of delivery
of the notice and of issuing at least a
fifteen days' notice to all the elected
members of the Kshettra Panchayat, it is
not open to the Collector to launch a
detailed evidentiary enquiry into the
validity of the signatures which are
appended to the notice. Where a finding in
regard to the validity of the signatures can
only be arrived at in an enquiry on the
basis of evidence adduced in the course of
an evidentiary hearing at a full-fledged
trial, such an enquiry would be outside the
purview of Section 15. The Collector does
not exercise the powers of a court upon
receipt of a notice and when he transmits
the notice for consideration at a meeting
of the elected members of the Kshettra
Panchayat. Hence, it would not be open to
the Collector to resolve or enter findings
of fact on seriously disputed questions
such as forgery, fraud and coercion.
However, consistent with the law which
has been laid down by the Full Bench in
Mathura Prasad Tewari's case, it is open
to the Collector, having due regard to the
nature and ambit of his jurisdiction under
sub-section (3) to determine as to whether
the requirements of a valid notice under
sub-section (2) of Section 15 have been
fulfilled. The proceeding before the
Collector under sub-section (2) of Section
15 of the Act of 1961 is more in the nature
of a summary proceeding. The Collector
for the purpose of Section 15, does not
have the trappings of a court exercising
jurisdiction on the basis of evidence
adduced at a trial of a judicial proceeding.
Whether in a given case, the Collector has
transgressed the limits of his own
jurisdiction is a matter which can be
addressed in a challenge under Article 226
of the Constitution. We clarify that we
have
not
provided
an
exhaustive
enumeration or list of circumstances in
which the Collector can determine the
validity of the notice furnished under subsection (2) in each case and it is for the
Collector in the first instance and for the
Court in the exercise of its power of
judicial review, if it is moved, to determine
as to whether the limits on the power of
the Collector have been duly observed."

10. The aforesaid judgment has been
followed by two Division Benches of this
Court in the case of Amit Kumar v. State
of U.P. and 13 others (Writ-C No.- 3982
of 2018) and Kusumawati Verma v.
State of U.P. and 4 others (Writ-C No.-
22702 of 2018).

11. At this stage, we would also like
to refer to another Division Bench
judgment of this Court in the case of Smt.
Shashi Yadav v. State of U.P. and others
(Writ- C No. 1994 of 2018 decided on
22nd February, 2018) in which vide
paragraphs 38, 39 and 40 the Court has
held thus:-

"38. We hold the provision
regarding the form of written notice of
intention to make the motion required to
be submitted to the Collector on behalf of
the members signing the notice under
Section 15(2) is to be directory in nature.
A substantial compliance of the provisions
would implement the requirements of law.
A substantial compliance is done when the
purpose of the notice is achieved. The
purpose of the notice of intent to make the
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1119
motion, is to furnish to the Collector the
material on which he has to found his
satisfaction before convening the meeting.
Such material should demonstrate full
compliance of mandatory provisions of
15(2) of the Act. In particular, the notice
should be in writing. It should manifest the
clear intention of the members to make a
motion expressing want of confidence in
the Pramukh. It should be signed by at
least half of the elected members. The copy
of the no confidence motion should be
attached thereto.

39. In fact, if a strict compliance
of the said mandatory parts of Section
15(2) is done, then the substantial
compliance of directory provisions of the
aforesaid of Section 15(2) would be
automatically deemed to have been done.

40. If such facts or material can
be distilled from the notice to make a
motion expressing want of confidence
irrespective of its form, it substantially
complies with the mandate of law. As has
been held, these prerequisites are fulfilled
in the instant case."

12. From the reading of the aforesaid
authorities what is clearly revealed is that
the ratio behind limiting the power of the
District Magistrate is that he being an
authority to take decision for calling the
meeting of the House enjoys only the
limited power to ensure that it has been
presented
by
the
members
signed/
supported by at least half (50%) members
of the total strength of the House. Even if
they had not signed and their affidavit
accompanies the notice, it has been held
that the formalities stand complete. This
ratio in the judgment is in keeping spirit of
Legislative intendment in providing 30
days
limited
time
for
the
District
Magistrate to convene the meeting to
discuss the motion. The Legislature while
drafting this statutory provision seemed to
be quite conscious of sensitiveness of the
issue qua confidence of an elected leader
of the House. If the confidence of an
elected leader of the House is put to
challenge, in democracy the horse trading
phenomenon is concomitant to a situation
where majority is shaking the confidence
while the one affected is pulling the string
the other way. The limited period,
therefore, was deliberately provided by the
Legislature to avoid any such unhappy
situation getting created eroding faith of
the people in the democratic institution.
One who does not have the confidence of
the House must leave in principle but as
the stances are, in practice, it is quite
reverse. So, in case if any enquiry is
instituted to verify the signatures by the
District Magistrate of individual members
on the notice and then to parade the
members in his office would be something
like putting a caveat to the prerogative of
the House to deliberate and vote for or
against the motion and this is the reason
why the District Magistrate is certainly not
supposed to hold any roving enquiry as
such.

13. Applying the aforesaid principle
of law to the facts of the present case, it is
quite reflective from the order of the
District Magistrate now impugned in the
present writ petition, that the District
Magistrate virtually paraded the members
of the House and gave opportunity to the
respondent Pramukh to bring men in his
support
by
submitting
their
notary
affidavits. Such an exercise of power was
totally uncalled for. Something what was
done in the House through discussion and
voting, got done in the office of the
District Magistrate. Neither the provisions
as
contained
under
Section
15
of
Adhiniyam, 1961 contemplated any such
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
powers nor, any such intendment of the
Legislature is presumable behind the
incorporation of such a provision. Hence,
the order passed by the District Magistrate
dated 20th September, 2019 deserves to be
held bad for undertaking an exercise
beyond the authority vested with the
District Magistrate. However, any order by
us setting aside the order passed by the
District Magistrate and remitting the
matter for fresh decision would not enable
him to convene the meeting within 30 days
of the delivery of notice. Accordingly, we
consider it appropriate to hold that
rejection of the present notice would not
come in the way of the petitioners and
other members of the Kshettra Panchayat
in moving fresh notice for no confidence
motion, if they so desire.

14. The necessity to frame second
question (supra) has arisen on account of
the fact that we have experienced in the
past as number of writ petitions have come
to be filed seeking directions to District
Magistrate to take decision within limited
period of time so that the notice does not
get frustrated on account of mandatory 30
days limitation prescribed for, under subsection (3) of Section 15 of Adhiniyam,
1961.

15. In order to deal with the second
point, it is necessary to reproduce subsection (3) of Section 15 of Adhiniyam,
1961:-

"15. Motion of non-confidence
in Pramukh or Up-Pramukh- (1) ..........

(2) .......

(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)

16. From the bare reading of the
aforesaid provision two important and
mandatory requirements appear to be:-

(1). Meeting has to be convened
within 30 days from the date on which the
notice under sub-section (2) of Section 15
was delivered to the District Magistrate
and;

(2). There should be a notice of
not less than 15 days qua the scheduled
meeting.

17. A Division Bench of this Court in
the case of Kamal Sharma v. State of
U.P. and others (Writ-C No. 9763 of
2013 decided on 5th October, 2013) has
held that in computing 15 days, the date of
issuance of notice and of the meeting
scheduled have to be excluded. The
Division Bench vide 26 of the judgment
(supra) has held thus:-

"26. There is no difference in the
words "at least" and "not less than".
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1121
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."

18. In such above view of the matter,
therefore,
the
District
Magistrate
is
required to proceed keeping the above
calculations in mind. Once he has been
delivered with the notice of no confidence
motion, he is bound in law to take a
decision whether to convene a meeting or
not to convene a meeting. And if he has to
convene a meeting then he has to keep in
mind that he has to provide 15 clear days
notice on one hand and then the meeting
scheduled has to be within 30 days
prescribed for under the Statute.

19. Accordingly and in view of the
sensitiveness of the issue of no confidence
motion, it is always necessary to take
quick decision in a reasonable period of
time. In view of the ratio of the judgment
of the Full Bench (supra) and the
subsequent Division Benches, the District
Magistrate is not to hold any roving and
detailed fact finding enquiry. He has to
only satisfy that the notice bears the
signature or if does not bear, it has the
requisite number of affidavits supporting it
or appended to it which may make the
notice competent within the meaning of
sub-section
(2)
of
Section
15
of
Adhiniyam, 1961 in the light of the
judgment of the Division Bench of this
Court in the case of Smt. Shashi Yadav
(supra).

20. There is a logic also behind the
above; if the House is not supporting the
motion, the members per majority would
vote against it and resultantly it will fall.
Merely because the notice has been
delivered to the District Magistrate and he
has convened the meeting by scheduling it,
does not mean that motion has stood
carried nor, does it raise presumption that
the Chairman or the Pramukh has lost the
confidence. The ultimate show of strength
is always on the floor of the House and in
any democratic institution where the
elected members constitute the House, this
exercise has to be done in the House itself,
instead of wasting time in the office of the
District Magistrate parading the members
of the House for verification of the
signatures etc.

21. A purposive interpretation of a
statutory
provision
would
entail
an
exercise to understand the intendment of
Legislature first. As we have already
discussed above as to how the statute in
the present case limits the discretion of the
District Magistrate in matters of decision
making on a delivered notice so as to
ensure that meeting to discuss the motion
on all counts is held within 30 days, it
comes out to be a case where we need to
look for contextual construction of the
given provisions. In ordinary sense of the
words 'rule of construction' means literal
interpretation of the provision. However,
at times discretion is provided for, with
certain riders, putting a crease of limits
upon powers but the question is how
within those limit an authority should
exercise in a case of limited authority
given under statute and the answers, in our
view, is discipline in exercise of authority.
If a pendulum swings 60 times ordinarily
to hit the 60th second, it follows a
discipline to strike a minute. So the end
result is guided by the rule of discipline.
The power if is vested in an authority to
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
draw a proceeding to its logical end, the
exercise of power should be aimed at
achieving the said end result flawlessly.
One who has the discretion to reject a
notice holding it as not competent in his
wisdom based on conclusion drawn, he
must not shirk away from a prompt
decision. The Legislature though did not
provide for definite period for taking
decision but since the statute provides for
maximum 30 days to direct for a meeting
and that too with a 15 days' clear notice, it
contextually means that District Magistrate
has to take decision within a limited time
to ensure that purpose of notice is not
frustrated. Discipline of time in decision
making process, in such circumstances is
contextually a must.

22. The question now is what should
be a time reasonable enough, for the
District Magistrate to take a decision. As
we have already discussed the provision, a
meeting not only has to be convened with
15 days' clear notice but the meeting in all
conditions have to be called within 30
days of the delivery of notice. This being
the situation, the District Magistrate has
maximum 14 days from the date of
delivery of notice to consider the notice
and pass an appropriate order. We may
also notice at this stage that explanation
appended to sub-section (1) of Section 15
saves a situation where a notice has been
issued convening the meeting as per the
provisions but the same has come to be
stayed in a court proceeding. So the time
spent in a court proceeding and time taken
in issuing a fresh notice have come to be
excluded. But there is no saving provision
to the effect that in case if notice is
returned/
rejected
by
the
District
Magistrate and the same is challenged in a
court of law and if set aside, would the
period of 30 days exclude the period of
court proceeding and the period that may
be taken by the District Magistrate in
issuing a fresh order in the light of the
order of the Court.

23. Equally by any rule of
interpretation,
we
cannot
apply
the
aforesaid saving clause given in the
explanation
(supra)
to
such
above
situation, this Court in the case of Anil
Kumar Singh v. State of U.P. and others
(Writ- C No.- 29087 of 2019 decided on
24th September, 2019) has held thus:-

"In view of the legislative intent
behind the provision, this Court exercising
its power under Article 226, cannot pass a
direction which would not only carry out a
new exception to the general law but in
substance would amount to an exercise,
quite legislative in nature, which is clearly
not permissible. The law is very clear that
a casus omissus can in no case be supplied
by a Court of Law, for that would be to
make laws (per Buller J. in Jones vs.
Smart, 99 ER 963), except in some case of
absolute necessity. The settled legal
position as a rule of interpretation is that
the Court cannot read anything into a
statutory provision or rewrite a provision
which is plain and unambiguous. A statute
is an edict of the legislature. The language
employed in a statute or any statutory
provision is the determinative factor of
legislative intent of policy makers. [Union
of India vs. Rajiv Kumar(2003) 6 SCC
516]."

24. The issue, therefore, is that a 14
days' time is permitted to the District
Magistrate to take a decision and if he
rejects notice or returns the notice for that
matter,
the
litigant
and
supporting
members who have challenged the order of
the District Magistrate, are rendered
remediless. In our considered opinion, this
1 All. Niyazuudin & Ors. Vs. State of U.P. & Ors.
1123
cannot be the intention of the Legislature.
The Legislative intent in not providing any
saving provision in such circumstances,
seems to be for simple reason that under
sub-section (12) of Section 15 a fresh
motion is barred only in case motion falls,
however rejection of notice does not beget
such a situation and so fresh motion can
always be moved. The issue does not get
resolved here because if the process is
again led, the same procedure will be
followed and again the District Magistrate
shall pass an order and same will again be
challenged in a court of law and then if it
is quashed, the situation would turn out to
be the same as in this case and so it will all
lead to an endless process. This will not be
a happy situation either and, therefore, in
our considered opinion, it is necessary to
ask the District Magistrate to take a
decision upon delivery of notice to him
either way i.e. to return the notice or fixe
the date for the meeting to discuss the
motion, within a reasonable time.

25. In such above view of the matter,
therefore, we hold that 7 days' time is
sufficiently reasonable time for the District
Magistrate to form an opinion whether to
convene a meeting or not to convene a
meeting.
However,
in
exceptional
circumstances and for the reasons to be
recorded in writing, he may take further
time but in all circumstances he shall have
to pass an order before the expiry of the
13th day of the delivery of the notice.