Allahabad High Court
Shyamu vs State Of U.P. Thru Sec. Panchayat Raj ... on 12 July, 2010
Author: Ferdino I. Rebello
Bench: Ferdino I. Rebello, A.P. Sahi
A.F.R.
Chief Justice's Court
Special Appeal No. 881 of 2010
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Shyamu
Vs.
State of U.P. & Ors.
Appearance :
For the Appellant : Shri N.L. Tripathi, Advocate
For the Respondents : Standing Counsel
Hon'ble Ferdino I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
(Judgment : By Justice Ferdino I. Rebello, C.J.) The appellant is aggrieved by the order of the learned Single Judge dated 06.05.2010, whereby the petition filed by respondent no.5 against the order dated 16.12.2009 passed by the District Magistrate, Sant Kabir Nagar in exercise of the powers conferred under Section 12-J of the U.P. Panchayat Raj Act, 1947, authorising the appellant herein to exercise the powers of the Pradhan of Village Shiv Bakhari, Vikas Khand Pauli, Tehsil Dhanghata, District Sant Kabir Nagar, has been disposed of with a direction to the District Magistrate, Sant Kabir Nagar to convene a meeting of the elected members of the said village and to take appropriate decision in respect of the interim arrangement. The Single Judge has, however, permitted the appellant to continue on the post of Pradhan till fresh arrangement is made, as directed by the learned Judge.
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2. It is submitted on behalf of the appellant that the order passed by the learned Single Judge is ex parte, without giving an opportunity to the appellant and, therefore, on this ground itself, the order impugned is liable to be set aside.
It is further submitted that a perusal of Section 12-J of the U.P. Panchayt Raj Act, 1947 (hereinafter referred to as the 'Act') makes it clear that there is no requirement of consulting members, and the learned Judge, while so directing against the express language of the Act, has committed an error of law. The judgment in the case of Smt. Usha Singh Vs. District Magistrate, Gorakhpur & Ors., 1992 RD 337, on which reliance has been placed, it is submitted, did not interpret the law correctly and the learned Single Judge failed to correctly appreciate the ratio of law laid down in the case of Smt. Kusma Devi Vs. State of U.P. & Ors., [ 2009 (106) RD 5], which has clearly taken the view that there is no requirement of consultation of elected members. The learned Single Judge has also placed reliance on a Division Bench judgment of this Court in the case of Udaivir Vs. State Election Commission of U.P. through its Chairman & Ors., [2009 (106) RD 151]. In the said judgment, it is submitted, that the learned Bench did not address itself to the issue in question and has mainly made observations, which cannot be said to lay down any law. It is, therefore, submitted that the impugned order should be set aside.
3. On the other hand, on behalf of the respondents, it is submitted that the view taken in Udaivir (supra) has affirmed the view of the learned 3 Single Judge in Smt. Usha Singh (supra), though there is no direct reference to Smt. Usha Singh (supra). It is further submitted that the attention of the learned Judge, who decided the case of Smt. Kusma Devi (supra), was not invited to the judgment of Udaivir (supra). Considering the above, as the Division Bench of this Court has upheld the view taken in Smt. Usha Singh (supra), the judgment of the learned Judge cannot be faulted.
4. A few facts may be set out. The elections to the Gram Panchayats in the State of Uttar Pradesh including the Gram Panchayat Shiv Bakhari were held in the year 2005. The respondent no.5 along with the appellant and 11 others were elected as members. Shri Ram Narayan was elected as Pradhan who, unfortunately, died on 02.10.2009, thereby creating a vacancy in the post of Pradhan. That vacancy was filled in by the Prescribed Authority under the Act vide order dated 16.12.2009 by nominating the appellant herein, respondent no.5 in the original petition, as Pradhan. The said order was challenged in the writ petition by respondent no.5, original petitioner, which has given rise to the appeal.
5. The issue for our consideration is whether the action of the Prescribed Authority, the respondent no.3 herein, in nominating the appellant to discharge the duties of Pradhan till such time the regular Pradhan is elected in terms of Section 12-J of the Act, was in accordance with law?
Section 12-J of the Act reads as under:-
"12-J. Arrangement in temporary vacancy in the 4 office of Pradhan:-(1) Where the office of Pradhan is vacant by reason of death, removal, resignation or otherwise, or where the Pradhan is incapable to act by reason of absence, illness or otherwise, the Up-Pradhan shall exercise all powers and discharge all duties of the Pradhan.
(2) Where the offices of both, Pradhan and Up-
Pradhan are vacant for any reason whatsoever, or when both Pradhan and Up-Pradhan are incapable to act for any reason whatsoever, the prescribed authority shall nominate a member of the Gram Panchayat to discharge the duties and exercise the powers of the Pradhan until such vacancy in the office of either the Pradhan or the Up-Pradhan is filled in, or until such incapacity of either of the two is removed."
6. We may now proceed to answer the main issue as to whether the Prescribed Authority under Section 12-J of the Act is bound to call a meeting of the elected members of the Panchayat on a vacancy arising before nominating the Pradhan till regular Pradhan is elected in terms of the Act?
7. It is, no doubt, true that Section 12-J of the Act came up for consideration in Smt. Usha Singh (supra). The following observations of the learned Single Judge would be relevant as to interpretation of Section 12-J of the Act. We may gainfully quote the same:-
"... Literally construed the said provisions gives absolute discretion to the Prescribed Authority to nominate any member of the Gaon Panchayat for this purpose. Such an interpretation, however, would make 5 the provision arbitrary and also unconstitutional since no guiding principle has been laid down as to how the discretion of the prescribed authority is to be exercised and in favour of which member of the Gaon Panchayat. ..."
After so observing, the learned Single Judge, then, proceeded to observe as under:-
"... In my opinion, since the Gaon Sabha and Gaon Panchayat are democratic bodies elected by the people, the proper interpretation of sub-section (2) of Section 12-J would be that in case where the offices of both Pradhan and Up Pradhan are vacant, or when both Pradhan and Up Pradhan are incapable to act, the Prescribed Authority should ask the members of the Gaon Panchayat to hold a meeting, and such members should decide among themselves which member should be nominated as Pradhan for the interim period until regular election, and such member should be nominated as officiating Pradhan under Section 12-J (2). Such an interpretation would be in consonance with the democratic principle underlying the U.P. Panchayat Raj Act, and would also make the statute constitutional."
Another learned Single Judge in Smt. Kusma Devi (supra), noted the judgment in Smt. Usha Singh (supra) but even after so noting, chose not to agree with the view taken in Smt. Usha Singh (supra) and proceeded to observe as under:-
"7. In my opinion, there is no lacuna in Section 6 12-J which is required to be filled up this Court. The provision of section 12-J sub-clause (2) is clear that temporary Gram Pradhan is to be nominated by the Prescribed Authority. Nothing can be added by reading in between the lines or to give strength one's own opinion. The Prescribed Authority has power to nominate any person under the Act which cannot be said to be arbitrary and the Registrar has acted in its wisdom as conferred under the Act."
8. It is a cardinal principle of our jurisprudence, that if a learned Single Judge disagrees with the view taken by another learned Judge on the interpretation of a provision, in the normal course, the learned Judge should refer the matter to a larger Bench unless the ratio of the judgment is clearly distinguishable. Judicial discipline requires such an approach to avoid inconsistency in judicial pronouncements and further to enable the authorities to exercise their powers in terms of the interpretation given by the Court to the provisions. We may gainfully refer to the judgment of the Supreme Court in the case of Tribhuvandas Purshottamdas Thakur Vs. Ratilal Motilal Patel, AIR 1968 SC 372, wherein the Supreme Court has observed that where a learned Single Judge chooses to take a view different from the view taken by another learned Single Judge, he is ordinarily bound to refer the matter to a Division Bench. We may only quote the following observations:-
"... It has been held time and again that a Single Judge of a High Court is ordinarily bound to accept as correct judgments of courts of coordinate jurisdiction 7 and of Division Benches and of the Full Benches of his Court and of this Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law."
9. This principle flows on the proposition that if decisions of the same or a superior Court are ignored, even though directly applicable, by a Judge in deciding a case arising before him, on the view that every Judge is entitled to take such view as he chooses on the question of law arising before him, the law will be bereft of all its utility if it should be thrown into a state of uncertainty by reasons of conflicting decisions. In this regard, the observation of Gajendragadkar, C.J., in Lala Shri Bhagwan Vs. Shri Ram Chand, (1965) 3 SCR 218, is quoted below:-
"It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
10. Merely because the judgment is of a larger Bench would not necessarily mean that the same is binding. There are exceptions to the 8 rule. One of the exceptions is the doctrine of per incuriam. Per incuriam means 'a decision rendered by ignorance of a previous binding decision, such as a decision of its own or of a Court of coordinate or higher jurisdiction or in ignorance of the terms of a Statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. Another exception would be that judgment of the coordinate Bench has really not decided the issue. What is binding is the ratio decidendi of the judgment. Ratio decidendi of a judgment can be culled down by addressing oneself firstly - as to whether the question was under consideration, secondly - as to whether the question was required to be decided, and thirdly - whether the question has been answered by a speaking order. That will constitute the ratio of a judgment and it is this ratio of the judgment, which would normally be binding on a coordinate Bench.
11. In the instant case, we have quoted the paragraphs from Smt. Usha Singh (supra), wherein the interpretation of Section 12-J of the Act was directly in issue. The learned Single Judge, therefore, in Smt. Kusma Devi (supra) in the face of the view taken in Usha Singh (supra) in paragraph 7 of the said judgment, ought not to have taken a different view without referring the matter to a larger Bench.
12. Apart from that, we may note that the Division Bench of this Court in Udaivir, though had not considered the judgment in Smt. Usha Singh (supra), yet in a similar line, observed that the Prescribed Authority 9 ought to have ascertained the wishes of the elected members before deciding as to who should be the officiating Pradhan. In other words, the Division Bench has accepted the judgment in Smt. Usha Singh (supra), at least to the extent that there must be ascertainment of the wishes of the elected members.
13. The question for our consideration is whether the later part of the observations made in Smt. Usha Singh (supra), which proceeds to hold that the Prescribed Authority ought to ask the elected members to hold a meeting and such members should decide, amongst themselves, as to who should be nominated as Pradhan and based on this, the Prescribed Authority should nominate the Pradhan, is in conformity with the language of Section 12-J of the Act?
14. We have earlier quoted Section 12-J of the Act. The Section, literally read, confers power on the Prescribed Authority alone to nominate a member of the Gram Panchayat. There is no provision for the Prescribed Authority to mandatorily consult the members of the Gram Panchayat. The settled legal principle of the interpretation is, in the first instance, to read the language of the Section in its literal sense. It is only in the event, when the reading of the literal language would result into the absurdity or detract from the intent of the legislature, the Court steps into read the provision in consonance of the intent of the legislature. The intention of the legislation is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also what has not been said. As a consequence, a construction, which 10 requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. [(See Shyam Kishori Devi Vs. The Patna Municipal Corporation & Anr., AIR 1966 SC 1678, and A.R. Antulay Vs. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500].
The learned Single Judge, who decided Smt. Usha Singh (supra), was of the opinion that the provision gives absolute discretion to the Prescribed Authority and such an interpretation would make the provision arbitrary and also unconstitutional since no guiding principle has been laid down as to how the discretion of the Prescribed Authority is to be exercised and in favour of which member of the Gram Panchayat. It cannot be said that this was not a possible interpretation considering that the object of the Section is to nominate a member to act as a Pradhan. The member nominated should normally enjoy the confidence of other members and/or atleast the majority of the members so that the functions of the Gram Panchayat can proceed smoothly. Secondly, this view has been holding the field atleast since the year 1992. In these circumstances, in our opinion, the requirement of consultation with the members cannot be said to be contrary to the intent of the legislature or adding words which have not been provided by the Statute. We, therefore, overrule the view taken in Smt. Kusma Devi.
15. The office of Pradhan of a village is filled in by elections. The legislature, aware of this position, has made a specific provision under the Act, conferring powers on the Prescribed Authority to nominate a 11 member to discharge the duties and exercise the powers of Pradhan until the vacancy of the office of Pradhan is filled in. This exercise is for the purpose of seeing that the functions of the Panchayat proceed smoothly and that there is no vacancy in the post till the vacancy is filled, as the Panchayat constitutes the basic unit of our democratic structure.
To that extent, the observations made by the learned Division Bench in Udaivir (supra), in our opinion, can be said to reflect this basic concept of our democratic body that those in majority, shall have their nominee elected as an elected Pradhan should have the confidence of the members.
16. The question is whether such opinion given by the elected members would be binding on the Prescribed Authority. If such an interpretation is given, then the power exercised by the Prescribed Authority under Section 12-J of the Act will have to be read subject to the opinion of other members. This 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. Directing the Prescribed Authority to accept the view of the members after the process of consultation, as to who should be the Pradhan of the village, to an extent, will be against the language of the Section. To that extent, in our opinion, the observation in the latter part of the paragraph, which we have reproduced separately, which practically holds that the view given by the elected members would be binding on the District Magistrate, would not be a proper interpretation of Section 12 12-J of the Act and to that extent may have to be further explained. Considering the Division Bench judgment in Udaivir (supra), the Prescribed Authority, at the highest, should note the opinion of the members and thereafter proceed to nominate the Pradhan. Such a step, to some extent, will help the Prescribed Authority to know who enjoys the confidence of the members, and this will help him to make an informal choice. If an overwhelming number of members prefer a candidate, the Prescribed Authority should ordinarily, in the exercise of his powers to nominate, take that opinion into consideration if otherwise the name proposed would not be against any policy. This, in our opinion, would be a proper interpretation of Section 12-J, which would not denude the power of the Prescribed Authority under the Section. The observation in Smt. Usha Singh (supra) should be read in this context.
17. Having so held, the issue as to whether the learned Judge could have decided the matter without an opportunity to the appellant, in our opinion, would not be relevant as the issue involved is purely on the question of law.
18. We, therefore, find no merit in this appeal, which is accordingly dismissed.
12.07.2010 AHA (Ferdino I. Rebello, C.J.) (A.P. Sahi, J.) 13 Hon'ble F. I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
Dismissed.
For orders, see order of date passed on separate sheets.
12.07.2010 AHA (F.I. Rebello, C.J.) (A.P. Sahi, J.)