IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2122 (M/S) of 2010 Hari Prakash …Petitioner Versus State of Uttarakhand and others …Respondents Hon’ble Tarun Agarwala, J. The petitioner was elected as the Pradhan of Gram Panchayat Bhamrola, District Udham Singh Nagar on 29th September, 2008. On 21st October, 2010, an application was filed under Section 14 of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ‘the Act’) read with Rule 33-B of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as ‘the Rules’) for initiating a no confidence motion against the petitioner. On this application, the District Panchayat Raj Officer, by an order dated 23rd October, 2010, fixed 29th October, 2010 for verification of the signatures of the members of the Gram Sabha. On 25th October, 2010, it was found that one of the affidavits, which accompanied the notice, was defective and accordingly, the District Panchayat Raj Officer returned the notice filed under Section 14 of the Act. A fresh application was filed on 2nd November, 2010. This application was accompanied by the affidavits of five members of the Gram Sabha certifying the signatures of 1248 members out of 1830 members of the Gram Sabha. On this application, the District Panchayat Raj Officer, by an order dated 4th November, 2010, fixed 11th November, 2010 for verification of the signatures of the members. This date was, subsequently, postponed till 12th November, 2010. Due publication and announcement by 2 loudspeaker was made with regard to the verification of the signatures of the members. On the date fixed, i.e., on 12th November, 2010, 40 members of the Gram Sabha appeared and verified their signatures. 4 persons came forward and denied their signatures. It transpires that the petitioner filed an objection indicating that the notice contains 79 forged signatures. The District Panchayat Raj Officer, after considering the objection, held that even if 79 signatures are removed from the list, nonetheless, the notice of no confidence motion has been moved by more one-half of the total members of the Gram Sabha. The District Panchayat Raj Officer, accordingly, by its order dated 12th November, 2010, fixed 29th November, 2010 for consideration of the no confidence motion. On the said date, i.e., on 29th November, 2010, the motion was carried out after due discussion and out of 720 members who were present, 683 valid voters were certified, out of which 541 members voted in favour of no confidence motion and 108 members voted against the motion. Since the motion was carried out by more than two-third of the members present and voting and the quorum being complete, the District Panchayat Raj Officer issued an order allowing the no confidence motion. The petitioner, being aggrieved by his removal from the post of Pradhan, has filed the present writ petition questioning the no confidence motion dated 29th November, 2010 as well as the order dated 7th December, 2010 and 8th December, 2010, by which the petitioner was directed to hand over the charge. Heard Sri C.D. Bahuguna, the learned counsel for the petitioner, Sri P.C. Bisht, the learned Brief 3 Holder for respondent nos. 1 to 4 and Sri Kishore Kumar, the learned counsel for respondent nos. 5 & 6. A number of grounds have been raised in the writ petition, but, the point, which has been argued by the learned counsel for the petitioner, is capsulated hereunder. It was contended that under Section 14 of the Act read with Rule 33-B of the Rules, it was mandatory for the District Panchayat Raj Officer to be satisfied about the genuineness of the signatures appended to the notice of no confidence motion and since the District Panchayat Raj Officer had not recorded his satisfaction nor any proper verification was done by him, the entire proceedings stood vitiated and consequently, the order dated 29.11.2010, by which the motion was carried out, should be set aside. The learned counsel submitted that the order dated 12.11.2010 fixing 29.11.2010 for consideration of the no confidence motion did not indicate the subjective satisfaction by the authority concerned with regard to the genuineness of the signatures of the members of the Gram Sabha inasmuch on the date fixed for the verification of the signatures, only 40 signatures out of 1248 signatures were verified which was wholly insufficient. It was further contended that under Rule 33-B (5)(iii)(b), the prescribed authority was required to satisfy himself about the identity of the voters before handing over the ballot paper and as per the record, only 43 signatures were verified from the voters list, which clearly indicates that genuine voters had not cast their votes and that outsiders had cast the votes. In support of his submission, the learned counsel for the 4 petitioner has placed reliance upon a decision of the Allahabad High Court in Smt. Bhagwan Devi vs. State of U.P. and others, 1999 (90) R.D. 480. In order to appreciate the submission of the learned counsel for the petitioner, one has to see the provision of the Act and the Rules framed thereunder with regard to the provision relating to the removal of the Pradhan. Rule 33-B underwent a lot of changes from time to time. As far back in the year 1966, a Full Bench of the Allahabad High Court in Mathura Prasad Tewari vs. Assistant District Panchayat Officer, Faizabad and another, 1966 A.L.J., L.B. 613 held:- “That most that can be said is that the matter is in the discretion of the prescribed authority, if a complaint is made to it that material number of signatures is invalid, it may, in its discretion, make enquiry or refuse to make it.” Justice Sharma, who gave a separate order, also held that the enquiry to be conducted by the authority should be a summary enquiry and whatever enquiry was required to be made was at the discretion of the authority and that nobody had a right to compel the authority to make an enquiry. Similarly, in Daya Shanker vs. District Panchayat Raj Officer and others, 1965 ALJ 753, the Court held that 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 court held:- “The Prescribed Authority was not obliged by law to make an enquiry into the genuineness or otherwise of the signatures appended to the 5 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.” In Banshoo vs. District Panchayat Raj Officer, Jaunpur and another, 1986 UPLBEC 429, a Division Bench of the Allahabad High Court held that it was purely a discretion of the prescribed authority to hold or not to hold the enquiry and even if such an enquiry was to be made, it should not be a long term enquiry so as to render the provision nugatory. The court held:- “10. We are therefore, of the opinion that it was under the discretion of the Prescribed Authority to hold or not to hold the enquiry and if it has 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. The enquiry has to be informal one.” Similar view was reiterated by another Division Bench of the Allahabad High Court in Devi Singh vs. District Panchayat Raj Adhikari, 1987 UPLBEC 745. The aforesaid decisions were made on the ground that there was no provision under Section 14 read with Rule 33-B of the Rules with regard to the verification of the signatures of the members of the Gram Sabha nor was there any provision relating to the satisfaction of the authority to be recorded. Subsequently, the provision underwent an amendment in the year 1994 by U.P. Act No. 9 of 1994 and it became obligatory upon the authority to record its subjective satisfaction. The said provision was considered and it was held that the satisfaction 6 has to be prima facie and nothing beyond that was required to be considered, as held in Smt. Premwati vs. State of U.P., 1997 (88) RD 482 and again in Smt. Kalawati Devi vs. State of U.P. and others, 2003 (94) RD 432. Section 14 and Rule 33-B as existing as on date, which are applicable to the present case, is quoted hereunder:- “14. Removal of Pradhan.- (1) The Gram Sabha may at a meeting specially convened for the purpose and of which at least 15 days previous notice shall be given, remove the Pradhan by a majority of two-thirds of the members of the Gram Sabha present and voting. (1-A) Notwithstanding anything contained in Section 11, one-third of the members of the Gram Sabha shall form the quorum for a meeting under sub-section (1). (2) A meeting for the removal of a Pradhan shall not be convened within [two years] of his election. (3) If the motion is not taken up for want of quorum or fails for lack of requisite majority at the meeting no subsequent meeting for the removal of the same Pradhan shall be convened within two years of the date of the previous meeting. (4) Subject to the provisions of this section, the procedure for the removal of a Pradhan, including that to be followed at such meeting, shall be such as may be prescribed.” Rule 33-B of the Rules was amended by U.P. Panchayat Raj (Sixteenth Amendment) Rules, 2005 with effect from 4th March, 2005. However, the same has not been adopted by the State of Uttarakhand as per the statement given by the Standing Counsel. Consequently, Rule 33-B, as existing prior to the 16th Amendment Rules, 2005, is quoted hereunder: 7 “33-B. Procedure for removal of Pradhan or Up-Pradhan.- (1) A written notice of the intention to move a motion for removal of the Pradhan or Up-Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one-half of the total numbers of member of the Gram Panchayat and shall state the reasons for moving the motion and it shall be delivered in person by at least three members signing the notice to the District Panchayat Raj Officer. Before proceeding further on the notice, the District Panchayat Raj Officer shall satisfy himself regarding genuineness of signatures of the members assigning the notice. (2) The District Panchayat Raj Officer shall convene a meeting of the Gram Panchayat, under Section 14 of the Act, on a date to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting so convened, shall be presided over by the District Panchayat Raj Officer or the person authorised by him in writing in this behalf. The Presiding Officer may take such clerical assistance for conducting the proceedings of the meetings for the consideration of the motion as he may deem necessary. (3) The Presiding Officer shall read to Gram Panchayat, the notice received by him. He shall then allow the motion to be moved and discussed. Such discussion shall terminate on the expiry of two hours appointed for the commencement of the meeting unless it is concluded earlier. Upon the conclusion of the debate or upon the expiry of the said period of two hours, as the case may be, the motion shall be put to vote. Voting shall be by secret ballot. (4) The Presiding Officer shall not speak on the merit of the motion, nor shall he be entitled to vote thereon. [(5) (i) (a) The ballot paper to be used at the voting shall be in such form as may be specified by the State Election Commission. The ballot paper may be handwritten, type-written, cyclostyled, printed or Photostat or type-written or hand-written. (b) The ballot box to be used at the voting shall be of any of the types of boxes approved by the State Election Commission (ii) (a) The Presiding Officer shall, immediately before the commencement of the 8 voting, allow inspection of the ballot box to the members of the Gram Panchayat who may be present in the meeting. (b) The Presiding Officer shall then secure and seal the box in such manner that the slit for insertion of ballot papers remains open. (iii) (a) The Presiding Officer shall be supplied by the District Panchayat Raj Office, a list of elected members and the Pradhan of the Gram Panchayat concerned. (b) Before delivering the ballot paper to a person entitled to vote, the Presiding Officer shall satisfy himself about his identity and for that purpose he may take the assistance of such persons as he may think fit. (c) If the Presiding Officer is not satisfied about the identity of any person, he may refuse to deliver a ballot paper to him after recording a brief note about the circumstances justifying such refusal. (iv) If any member after obtaining a ballot paper for the purpose of recording his vote decides not to use the same, he shall return the ballot paper to the Presiding Officer who shall mark it ‘returned and cancelled’ and keep it in an envelope. (v) The Polling compartment to be provided at the place of polling will be screened from observation. The member shall enter the same and if he wishes to vote for the rubber the removal, he shall make a mark X on the ballot paper with the motion the stamp supplied by the Presiding Officer and if he wishes to vote against the motion he shall make no mark on the ballot paper. He shall then fold the ballot paper and put it into the ballot box through the slit provided for the purpose. The ballot box shall be kept in view of the Presiding Officer. (vi) If owing to physical incapacity a person is unable to make a mark on the ballot paper, the Presiding Officer shall, on being so requested by the person concerned record the vote on the ballot paper according to his direction. The person concerned shall then himself or with the assistance of the Presiding Officer fold it so as to conceal the vote and insert it in the ballot box. The Presiding Officer shall have this done with as such secrecy as is feasible and shall keep a brief record of each instance without indicating 9 whether the vote has been cast in favour of the motion or against it. (vii) As soon as the poll is closed, the Presiding Officer shall proceed to count in the following manners the votes cast in favour of or against the motion in the presence of the Pradhan or Up-Pradhan concerned and the members presenting the notice who may be present on the spot : (a) the Presiding Officers shall open the ballot box and take out therefrom the ballot papers and examine them; (b) the Presiding Officer shall reject a ballot paper, if it bears any mark or writing by which the voter can be identified, or if it is a spurious ballot paper, or it has been so damaged or mutilated that its identity as genuine ballot paper cannot be established; (c) The Presiding Officer shall ascertain the number of valid votes cast in favour of and against the motion. (viii) The Presiding Officer shall then declare the result of the voting. The motion shall be deemed to have been carried only when it has been passed by a majority of two-thirds of the members present and voting. If the Presiding Officer declares the motion as carried, the Pradhan or Up-Pradhan, as the case may be, shall cease to function forthwith. (ix) If the Presiding Officer apprehends breach of peace in counting of votes, he shall seal up the slit of the ballot box and also allow the Pradhan or the Up-Pradhan concerned and the members presenting the notice who may be present, to seal the same. The Presiding Officer shall announce the date, time and place for the counting of votes and shall forthwith inform the prescribed authority. He shall also make necessary arrangement for the safe custody of the ballot box]. (6) (a) After the counting of all ballot papers contained in the ballot box has been completed, the Presiding Officer shall cause all such ballot papers to be kept in a separate packet on which shall be indicated such particulars as will identify the name of Gram Panchayat to which the ballot paper relate. 10 (b) An account of the ballot papers found in the box shall be recorded in a statement. [(c) The proceedings of the meeting shall be recorded by the Presiding Officer, who shall, unless he is himself the District Panchayat Raj Officer also, forward copy of the motion result of the voting thereon, marked copy of the list of the elected members and the Pradhan of the Gram Panchayat concerned and also other connected papers to the District Magistrate, Director Panchayat Raj, Uttar Pradesh and State Election Commission immediately, after the declaration of the result of voting. (7) If the motion has been carried the District Panchayat Raj Officer shall fix a date on which charge shall be handed over in the presence of the official appointed in this behalf by the District Panchayat Raj Officer. (8) In the case of removal of the Pradhan, charge shall be handed over to the Up-Pradhan, and in the case of removal of the Up-Pradhan charge shall be handed over to the Pradhan, if the Pradhan or Up-Pradhan fails to hand over charge, the transfer of charge shall be effected through the police.” In Smt. Kalawati Devi vs. State of U.P. and others, 2003 (94) RD 432, it was held that the words “Gram Panchayat” used in Rule 33-B has to be read as “Gram Sabha” in order to bring life to the amended Section 14 of the Act. In the light of the aforesaid, the notice of intention to move a motion for the removal of the Pradhan under Section 14 has to be delivered by five persons signing the notice. These five members are required to give their affidavits indicating that they are certifying the signatures of other members of the Gram Sabha who had appended their signatures. The District Panchayat Raj Officer shall satisfy himself regarding the genuineness of the signatures of the members signing the notice. 11 In Surya Prakash Dwivedi vs. State of U.P. and others, 2008 (2) AWC 1142, a learned Single Judge of the Allahabad High Court held that the provision 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. Only a prima facie satisfaction is required to be recorded. The court held:- “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.” Similarly, in Abdul Sattar vs. The Zila Panchayat Raj Adhikari, 1998 (Suppl.) RD 245, the court held that the satisfaction to be recorded is only prima facie about the genuineness of the demand and nothing beyond that has to be enquired. The court held:- 12 “12. The notice contemplated under the provisions of Section 14 of U.P. Panchayat Raj Act and Rule 33-B of the Rules framed thereunder it seems to me means and refers to the proposal or intention of the members of the Gram Panchayat for the removal of the Pradhan and it does not mean anything more. The notice referred to here-in-above as contemplated under Rule 33-B is required to be signed at least by half of the members of the Gram Panchayat and there is a genuine demand of a considerable members of the Gram Panchayat for the removal of the Pradhan so that the convening of the meeting may not be futile. The signing of this notice is merely a precautionary measure for preventing waste of time and energy. It further seems to me that the satisfaction referred to in Rule 33-B of the rules framed under the Panchayat Raj Act is prima facie satisfaction of the concerned authority about the genuineness of the demand. If the motion is carried out it would be anomalous to crush the proceedings of the meeting and the resolution passed for the removal simply on the ground that the motion was not signed by at least half of the members as the very fact that it is carried out indicates and has to be taken as confirming that there was in fact intention in the minds of at least half of the members of the Gram Panchayat to remove the Pradhan.” The Court further held:- “13………………The sufficiency or otherwise of the material cannot be questioned. The legitimacy of the inference drawn from such material is, however, certainly open for judicial review. But where the satisfaction is only a prima facie satisfaction contemplated only as precautionary measure and is not envisaged to jeopardize or effect any vested right of an office bearer even of an elective office, in the sense that the ultimate dependent on the “Will” of the majority of 2/3rd members of the elected representative in a meeting specially convened for consideration of not only the genuineness of the intention indicated in the notice but also the reasons mentioned there in support of such an intention, there can be no justifiable ground for interfering in the exercise of the prima facie 13 satisfactions in the present proceeding of an extraordinary nature. I must, however, hasten to add that whenever a statutory provision requires arriving at a satisfaction before passing an order which directly affects an individual to his detriment depriving him of the benefits of a vested right in such a case the legitimacy of the interference drawn from the materials produced before the concerned authority is certainly open for judicial review in the proceedings of the present nature but not otherwise.” In the light of the aforesaid, the Court finds that the notice contemplated under the provision of Section 14 read with Rule 33-B of the Rules refers to the proposal or intention of the members of the Gram Sabha for the removal of the Pradhan and it does not mean anything more. The notice is only a precautionary measure for preventing waste of time and energy. The satisfaction to be recorded by the authority about the genuineness of the demand is only a prima facie satisfaction. Five members are required to give an affidavit certifying the genuineness of other members. These affidavits are very relevant and has been deliberately included in the Rules to reduce the time to verify each and every signature. The District Panchayat Raj Officer, in the first instance, is only required to verify the signatures of these five persons who have delivered the notice