Allahabad High Court
Shyam Narayan Ram vs State Of U.P. And 6 Others on 20 January, 2023
Bench: Rajesh Bindal, Chief Justice, Manoj Kumar Gupta, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD *** WRIT - C No. - 16538 of 2018 Pronounced on: January 20, 2023 Shyam Narayan Ram ..... Petitioner v/s State of U.P. and others .....Respondents With WRIT - C No. - 25174 of 2022 Smt. Komal ..... Petitioner v/s State of U.P. and others .....Respondents With WRIT - C No. - 28394 of 2022 Manoj Kumar Bhadauria ..... Petitioner v/s State of U.P. and others .....Respondents For the petitioner : Mr. Shashi Nandan, Senior Advocate with Mr. Udayan Nandan, Advocate For the respondents: Mr. M.C. Chaturvedi, Additional Advocate General with Mr. Vineet Pandey, Chief Standing Counsel and Mr. Sudhanshu Srivastava, Additional Chief Standing Counsel for respondent Nos.1, 2 & 4 to 6. CORAM: HON'BLE RAJESH BINDAL, CHIEF JUSTICE, HON'BLE MANOJ KUMAR GUPTA, JUDGE HON'BLE JAYANT BANERJI, JUDGE JUDGEMENT
1. The present Reference to Larger Bench emanates from an order dated 7.12.2018 passed by a Division Bench in Shyam Narayan Ram Vs. State of U.P. and others1 having its genesis in the divided opinion of their Lordships of Supreme Court in Ram Pal Singh Vs. State of U.P. and others2. The question referred to the Larger Bench is-
"whether the elected members of the Kshettra Panchayat, who have not taken or subscribed to the oath of office as member before taking their seats in the house are entitled to sign the notice of intention to bring a 'no confidence motion' against the Pramukh and to participate and vote in the meeting held for the consideration of such a no confidence motion."
INTRODUCTION
2. The background facts in which the aforesaid issue had arisen before the Division Bench was that the petitioner therein was an elected Pramukh of a Kshettra Panchayat, which had a total strength of 120 members. A motion of no confidence was moved against him by 81 members. It was successfully passed in the meeting of Kshettra Panchayat held for the purpose. In the meeting, 79 members participated, out of which, 74 voted in favour of the motion. The no confidence motion passed against the petitioner was subject matter of challenge in the writ petition before this Court on the ground that out of total elected members, only 69 had subscribed to oath of office and the remaining 51 had not taken oath. Large number of those members (13 members), who had not taken oath, were signatory to the notice of intention to bring no confidence motion and had also participated in the meeting in which the no confidence motion was passed. It was contended that the elected members who had not subscribed to oath, were not entitled to sign the notice and/or participate in the meeting. If these elected members are excluded, the no confidence motion was not signed by more than half of the total number of elected members. Thus, the no-confidence motion was not validly passed.
3. Before we proceed further, it would be useful to advert to the facts of Ram Pal Singh's case (supra) and the divergence of opinion noted by the Division Bench of this Court in Shyam Narayan Ram's case (supra) resulting in Reference to Larger Bench.
FACTS OF THE CASE OF RAM PAL SINGH
4. Kshettra Panchayat, Jasrana, District Firozabad comprised of 63 elected members. The first meeting of the Kshettra Panchayat took place on 18.03.2016, in which the petitioner therein - Ram Pal Singh was elected as Pramukh. He subscribed to oath of office in the said meeting. He thereafter administered oath of office to the elected members except 17 who were not present. Contrary to it, the version of the private respondents (elected members) was that all 63 elected members took oath of office. In due course of time, a no confidence motion was moved against Ram Pal Singh by 39 elected members, including 13 members, who had allegedly not taken oath of office. The no confidence motion was challenged on the ground that 13 elected members, who had not subscribed to oath, were not entitled to sign the notice of intention to bring no confidence motion and if they are excluded, the motion was signed by only 26 elected members, which is less than half of the total number of 63 elected members and would thus fail.
5. The judgement in Ram Pal Singh's case (supra) is by Hon. Madan B. Lokur, J and Hon. Deepak Gupta, J. Their Lordships of the Supreme Court were unanimous in holding that great degree of sanctity is to be attached to the oath of office and also in holding that in the absence of any disqualification prescribed, omission to take oath of allegiance, does not ipso facto result in any ineligibility or disqualification or vacation of seat of an elected member. However, there is conflict of opinion on the following aspects:-
(a) Hon. Madan B. Lokur, J. has held that there is no prohibition for an elected member from being signatory to a no confidence motion, while Hon. Deepak Gupta, J. has held that such an elected member cannot sign a no confidence motion.
(b) Whereas Hon. Madan B. Lokur, J. has left undecided the issue as to whether the proceedings of no confidence motion is legislative function or non-legislative function of an elected member of a Kshettra Panchayat except for observing that in absence of such members, the motion might get defeated, Hon. Deepak Gupta, J. has held that it is part of the proceedings of a Panchayat and therefore such members cannot participate or vote in the meeting held for considering motion of no-confidence.
(c) Albeit Hon. Madan B. Lokur, J. had relied on the law laid down by a Division Bench of this Court in Smt. Kamla Devi Vs. State of U.P. and others3 in a case deciding similar issues in holding that there is no bar in an elected member signing the No Confidence Motion, but Hon. Deepak Gupta, J. has held that the said judgement does not lay down the correct position of law. In Kamla Devi's case (supra), it has been held that (i) no disqualification is attached to an elected member not subscribing to oath of office (ii) such a member is entitled to sign the notice of intention to bring no confidence motion, and (iii) entitled to participate in the meeting of no confidence.
6. Barring the points on which there is conflict in opinion, the law laid down by Supreme Court in Ram Pal Singh's case (supra) is binding on this Court.
SUBMISSIONS
7. Sri Shashi Nandan, learned Senior Counsel appearing for the petitioner submitted that the procedure relating to no confidence motion as provided under Section 15 of the U.P. (Kshetra Panchayats and Zila Panchayats) Adhiniyam 1961 (hereinafter referred to as 'the Act') cannot be split in holding that an elected member who has not subscribed to oath, is not entitled to participate in the meeting of no confidence but can sign the notice of intention to make the motion. In other words, his submission is that an elected member, who has not subscribed to oath of office, if cannot participate in the meeting of no confidence, he or she also cannot sign the notice. He further submitted that under Section 15(13) notice of motion of no confidence could not be given within one year of the assumption of office by a Pramukh. The period of one year under Section 15 commences w.e.f. the date of assumption of office and not from the date of election. The date of assumption of office means the date on which the Pramukh takes oath of office and not the date on which he is declared elected. In support of his submission, he has placed reliance on a Division Bench judgement of this Court in Alka Devi Vs. State of U.P. and others4. It is thus contended that an elected member who has not subscribed to oath of office cannot be treated to have assumed office as elected member and is consequently dis-entitled to bring a motion of no confidence or to participate in such proceedings. He took aid of Section 79 of the Act to buttress his submission. He also emphasized on the sanctity of oath of affirmation to office by placing reliance on a Full Bench judgment of Kerala High Court in K.C. Chandy Vs. R. Balakrishna Pillai5.
8. On the other hand, Sri M.C. Chaturvedi, learned Additional Advocate General appearing for the State tried to draw distinction between a Kshettra Panchayat and an elected member of a Kshettra Panchayat. He submitted that a Kshettra Panchayat is constituted under Section 6 and consists of a Pramukh, all Pradhans of Gram Panchayat in the Khand, elected members, members of the house of people and members of legislative assembly of the State representing the constituencies which comprise wholly or partially the Khand and the members of the Council of State and the Members of the State Legislative Council who are registered as electors within the Khand. Section 6(2) of the Act permits only elected members to participate in a motion of no confidence against the Pramukh and it goes to show that a motion of no confidence is not a proceeding of Kshettra Panchayat, therefore, in such proceedings even those elected members, who had not subscribed to oath of office, can participate. He has also referred to Sections 62 and 65 of the Act to support his contention. Elaborating his submission, he points out that a meeting for considering motion of no confidence is convened by Collector, whereas the meeting for transacting business of the Kshettra Panchayat is convened by Pramukh. The meeting of no confidence motion is to be held at the office of the Kshettra Panchayat and wherein only the motion of no confidence is put up for debate and there could be no other agenda, whereas in ordinary meeting of Kshettra Panchayat convened for transacting its business, the meeting could be held at a place other than the office of Kshettra Panchayat and in such meeting there is no restriction relating to the number of items on the agenda. He has placed reliance on the judgement of the Supreme Court in Pashupati Nath Sukul (supra) and the judgement of this Court in Smt. Kamla Devi (supra).
RELEVANT PROVISIONS OF THE CONSTITUTION AND THE ACT
9. Before we proceed to analyse the issues involved, a bird's eye view of the relevant enactments is essential. By the Constitution (Seventy-Third Amendment) Act, 1992, Part IX was inserted dealing with the Panchayats. Article 243 defines Panchayat as an institution of self government constituted under Article 243-B for the rural areas. The word 'Panchayat' is an umbrella term which takes within its ambit Panchayats at (a) village level (b) intermediate level and (c) district level. Article 243-C provides for composition of Panchayats and states that subject to the provisions of Part IX, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats. Clause (2) of Article 243-C provides that all seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose, each Panchayat shall be divided into territorial constituencies. Clause (5) enjoins that the Chairperson of a Panchayat at the intermediate level shall be elected by, and from amongst, the elected members thereof. Article 243-E provides for the duration of Panchayat etc. and it stipulates that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. The powers, authority and responsibility of Panchayats is taken care of by Article 243-G. These are endowed upon the Panchayats by law made by Legislature of State to enable them to function as institutions of self government. It may authorize them to levy, collect and appropriate such taxes, duties, tolls and fees as prescribed by law made by Legislature of a State. Article 243-K provides for superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the Panchayat by a State Election Commission. No election to any Panchayat can be called in question except by an election petition in view of the bar imposed by Article 243-O.
10. Kshettra Panchayat is a Panchayat at the Intermediate level as contemplated under Article 243-B of the Constitution. The U.P. (Kshettra Panchayats and Zila Panchayats) Adhiniyam, 1961 is a complete code relating to incorporation, constitution and source of powers and functions and conduct of business of a Kshettra Panchayat. The provisions of the Act were extensively amended by U.P. Act No.21 of 1995 to bring the same in line with the Constitution (Seventy-Third Amendment) Act, 1992.
11. Under Section 5 of the Act, there shall be a Kshettra Panchayat for every Khand bearing the name of that Khand. It is a body corporate. The composition of Kshettra Panchayat is provided under Section 6 of the Act, which is as follows:-
"6. Composition of Kshettra Panchayat- (1) A Kshettra Panchayat shall consist of a Pramukh, who shall be its Chairperson and -
(a) all the Pradhans of the Gram Panchayats in the Khand;
(b) elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area and for this purpose the Panchayat area shall be divided into territorial constituencies in such manner that, so far as practicable, each territorial constituency shall have a population of two thousand:
Provided that in the hill Districts of Nainital, Almora, Pithoragarh, Tehri, Pauri, Dehradun, Chamoli or Uttarkashi, the State Government may declare an area within a radius of one kilometer (diameter of two kilometers) from the center of the village specified by it in this behalf, to be a territorial constituency though such area may have a population of less than two thousand:
Provided further that in the territorial constituency of a Kshettra Panchayat, no territorial constituency of a constituent Gram Panchayat shall be included in part.
(c) the members of the House of the people and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Khand;
(d) the members of the Council of States and the members of the State Legislative Council who are registered as electors within the Khand.
(2) The members of Kshettra Panchayat mentioned in clauses (a), (c) and (d) of sub-section (1) shall be entitled to take part in the proceedings and vote at the meetings of the Kshettra Panchayat except in matters of election of, and on a motion of no confidence against, the Pramukh or the [***]6.
(3) Each territorial constituency referred to in clause (b) of sub-section (1) shall be represented by one member.
(4) Every elected member of the Zila Panchayat representing, constituency which comprises, wholly or partly, and Kshettra Panchayat, shall be entitled to take part and express his views in the meetings of such Kshettra Panchayat as a special invitee but shall have no right to vote in such meetings."
12. Section 7 provides that in every Kshettra Panchayat, there shall be a Pramukh to be elected by the elected members of the Kshettra Panchayat from amongst themselves. The term of the Kshettra Panchayat and its members is provided under Section 8. It states that every Kshettra Panchayat shall unless sooner dissolved under this Act, continue for five years from the date appointed for its first meeting and no longer. Under Section 9, the term of Pramukh shall commence upon his election and shall extend upto the term of the Kshettra Panchayat. Section 11 deals with the resignation of Pramukh and a member and Section 13 deals with disqualifications from membership of Kshettra Panchayat. Section 15 deals with motion of no confidence in Pramukh and is reproduced below:-
"15. Motion of non-confidence in Pramukh or [***]6- (1) A motion expressing want of confidence in the Pramukh or any [***]6 of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(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 Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra 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 sub-section, 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) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting:
Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division or the sub-divisional officer cannot for any reason preside, any stipendiary additional or assistant collector named by the Collector shall preside at the meeting:
(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section(4-B).
(4-B) If the officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the members at least ten days notice of the next meeting in the manner prescribed under sub-section (3).
(5) Save as provided in sub-sections (4-A) and (4-B), a meeting convened for the purpose of considering a motion under this section, shall not be adjourned.
(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.
(7) No debate on the motion under this section shall be adjourned.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.
(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Zila Panchayat having jurisdiction.
(11) If the motion is carried with the support of [more than half] of the total number of elected members of the Kshettra Panchayat for the time being-
(a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette; and
(b) the Pramukh or [***6], as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or [***6] shall be received until after the expiration of one year from the date of such meeting.
(13) No notice of a motion under this section shall be received within [one year] of the assumption of office by a Pramukh or [***6], as the case may be."
13. Section 16 deals with removal of Pramukh by the State Government and is as follows:-
"16. Removal of Pramukh or [***]6.- (1) If in the opinion of the State Government the Pramukh or any [*** 6] of a Kshettra Panchayat willfully omits or refuses to perform his duties and functions under this Act, or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties, the State Government may, after giving the Pramukh or such [***6] as the case may be, a reasonable opportunity for explanation and after consulting the Adhyaksha of the Zila Panchayat concerned in the matter and taking into consideration his opinion, if received within thirty days from the date of the dispatch of the communication for such consultation, by order, remove such Pramukh or [***6], as the case may be, from office, and such order shall be final and not open to be questioned in a Court of law:
Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pramukh or [*** 6] is prima facie found to have committed financial and other irregularities, such Pramukh or [***6] shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three elected members of the Kshettra Panchayat appointed in this behalf by the State Government.
(2) A Pramukh or [***6], removed from his officer under this section, shall not be eligible for re-election as Pramukh or [***6] for a period of three years from the date of his removal."
14. Section 84 deals with the manner in which meetings of Kshettra Panchayat are convened and held and it reads as follows:-
"84. Meetings of Kshettra Panchayat.- (1) A Kshettra Panchayat shall meet for the transaction of business at least once in every two months:
Provided that the date to be appointed for the first meeting of a Kshettra Panchayat, shall be within thirty days from the date of its constitution.
(2) The Pramukh, [***6], may convene a meeting of the Kshettra Panchayat whenever he thinks fit and shall, upon a requisition made in writing by not less than one-fifth of the members of the Kshettra Panchayat and served on the Pramukh or sent by registered post acknowledgment due addressed to the Kshettra Panchayat at its office, convene a meeting of the Kshettra Panchayat within a period of one month from the date of the service or receipt of such requisition.
(3) A meeting may be adjourned until the next or any subsequent day and adjourned meeting may be further adjourned in the like manner.
(4) Every meeting shall be held at the office of the Kshettra Panchayat or at some other convenient place of which notice has been duly given."
15. Section 85 deals with the procedure etc. of meetings of Kshettra Panchayat which shall be same as specified under Section 62 in case of meetings of Zila Panchayat and reads thus:-
"62. Procedure of meetings, etc.- The following matters relating to meetings of Zila Panchayat shall be governed by rules-
(a) transaction of business at the meeting;
(b) quorum for transaction of business;
(c) presiding over the meeting in the absence of Adhyaksha and the [*** 6];
(d) asking of questions by members;
(e) publicity of meeting;
(f) maintaining of order at the meeting;
(g) decision by vote;
(h) minute book and resolutions;
(i) right of Government servants, persons authorized by the State Government and other persons to attend and take part in discussions;
(j) right of Zila Panchayat to require attendance of servants of the State Government to attend in the meetings;
(k) right of officers of the Zila Panchayat in regard to meetings;
(l) right of the Zila Panchayat to require reports, returns; etc. from the Mukhya Adhikari; and
(m) other incidental matters which need or ought to be prescribed."
16. Section 15 of the Act, which deals with motion of no confidence envisages (i) bringing of a motion of no confidence by giving a written notice of intention in the prescribed form signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being, and (ii) the motion being carried with the support of more than half of the total number of elected members of the Kshettra Panchayat for the time being.
ISSUES
17. For better analysis, the main issue referred to the larger Bench can be further subdivided into following four issues:
(i) who are elected members?
(ii) what is the effect of an elected member not subscribing to oath of office?
(iii) whether an elected member, who has not subscribed to oath of office, can sign no confidence motion,
(iv) whether an elected member, who had not subscribed to oath of office can participate and vote in the meeting convened for consideration of no confidence motion.
ISSUES (i) & (ii):
18. The expression 'elected member' is not defined in the Act. However, we get clue from Section 6 as to whom the expression 'elected members' refers to. According to it, elected members are those who are chosen by direct election from the territorial constituencies in the Panchayat area. Section 6 of the Act draws a clear distinction between members who are directly elected on basis of adult suffrage and those who become members of Kshettra Panchayat by virtue of their office viz, all the Pradhans of the Gram Panchayats in the Khand; members of the House of People; the members of Legislative Assembly of the State representing constituencies which comprise wholly or partly the Khand; the members of the Council of States and the members of the State Legislative Council who are registered as electors within the Khand. However, these ex-officio members are debarred from participating in matters of election of, and or a motion of no confidence, of the Pramukh.
19. The State Government in exercise of its rule making power under Section 237 of the Act has framed Rules governing oath of office of Adhyaksha or Pramukh etc. called 'the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh etc.) Rules, 1994 (hereinafter referred to as 'the Rules'). Rule 2 (2) defines members to mean in case of Kshettra Panchayat, Members elected under clause (b) of sub-section (1) of Section 6 of the Act.
20. Rule 3 of the said Rules, which is relevant for our purpose, is extracted below:-
"3. Manner of taking oath or affirmation.- (1) An Adhyaksha of a Zila Panchayat before taking his seat for the first time as Adhyaksha shall make or subscribe oath or affirmation before the District Magistrate in the form set out for the purpose in the Appendix.
(2) A Pramukh of a Kshettra Panchayat before taking his seat for the first time as Pramukh shall make or subscribe oath or affirmation before the Sub-Divisional Officer or such other officer appointed by the District Magistrate in this behalf in the form set out for the purpose in the Appendix.
(3) The members of Zila Panchayat and Kshettra Panchayat before taking their seats for the first time as such members shall make or subscribe oath or affirmation, in the case of member of Zila Panchayat before the Adhyaksha and in his absence before the Mukhya Adhikari and in the case of members of the Kshettra Panchayat before the Pramukh and in his absence before the Khand Vikas Adhikari, in the form set out in the Appendix."
21. Rule 3 prescribes that members of Kshettra Panchayat before taking their seats for the first time as such members shall make or subscribe to oath or affirmation before the Pramukh and in his absence, before the Khand Vikas Adhikari in the form set out in the Appendix. An elected member, who does not subscribe to oath or affirmation, cannot take a seat in the Kshettra Panchayat and, therefore, cannot participate in the proceedings of the House. However, no other adverse consequence is provided under the Act or the Rules for not subscribing to the oath or affirmation. Such a member does not cease to be an elected member for not subscribing to oath of office. The definition of 'members' is not restricted to those who subscribe to oath, but simply refers to those elected under Clause (b) of sub-section (1) of Section 6 of the Act, whether they have taken oath or not.
22. The conclusion is consistent with the unanimous view of Supreme Court in Ram Pal Singh's case (supra). The relevant part of the observations made in this regard are as follows:-
Hon. Madan B. Lokur, J. while dealing with the said aspect held as follows:-
"2. The Adhiniyam does not define the expression ''elected member'. For the purposes of the present petition we are proceeding on the basis that an ''elected member' is a person who has been duly elected. The ''elected member' might or might not have taken the oath of office in terms of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules, 1994 (hereinafter referred to as the Rules). We say this even though there is some sanctity attached to taking the oath of office, which we will advert to later.
6. In other words, a person duly elected to a Kshettra Panchayat under Section 6(1)(b) of the Adhiniyam is described as and remains an ''elected member' and if that ''elected member' does not take the oath of office, he or she does not cease to be an ''elected member'. The only consequence is that the ''elected member' cannot take a seat in the Kshettra Panchayat and therefore cannot participate in the proceedings of the Panchayat. The significance of this discussion will be apparent hereafter."
(emphasis supplied by us) Hon. Deepak Gupta, J. taking the same view observed as follows:-
"2. ......... Rule 2(2) of the U.P. Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules, 1994 (hereinafter referred to as ''the Rules') defines ''Members'. In case of Kshettra Panchayat, ''Members' means those persons elected under clause (b) of sub-section (1) of Section 6 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam,1961 (for short "the Adhiniyam"). The Adhiniyam provides that a Kshettra Panchayat shall consist of a Pramukh, who shall be its Chairperson and elected members, who shall be chosen by direct election from territorial constituencies in the Panchayat areas. It is out of these elected members that a Pramukh is elected in terms of Section 6(1)(b) of the Adhiniyam. According to Rule 3(3) of the Rules, which has been set out in the judgment of my learned brother, a member of the Kshettra Panchayat, before taking his seat for the first time as such member, shall make or subscribe oath or affirmation before the Pramukh and in his absence before the Khand Vikas Adhikari in the form set out in the appendix to the Adhiniyam. Rule 3(3), therefore, envisages that before taking seat for the first time the member must make or subscribe oath or affirmation (emphasis supplied). The words ''first sitting' have to be given some significance and the significance is that these elected members can vote without taking oath only while electing the Pramukh from amongst themselves because thereafter, the Pramukh administers oath to them and then, the sitting of the House takes place.
3. The language of Rule 3 indicates that a member must subscribe to the oath before he can take part in the sitting of the Panchayat. No doubt, an elected member continues to be member because no disqualification has been provided for not taking oath, but the seminal issue is whether such member can take part in the proceedings of the Panchayat. Reference in this regard has been made to the judgment of this Court in the case of Pashupati Nath Sukul v. Nem Chandra Jain and others, (1984) 2 SCC 404, judgment of the Calcutta High Court in the case of Bhupendra Nath Basi vs. Ranjit Singh, AIR 194 Cal. 152 and the judgment of the Allahabad High Court in the case of Kamla Devi v. State of U.P. and others, 2014 (8) ADJ 525."
(emphasis supplied by us)
23. In taking the above view, it has been noted by the Supreme Court that the only consequence provided in the Statue for not taking oath by an elected member is that he cannot take seat in the House. No other adverse consequence is provided in the statute and consequently, it has been held that such an elected member will not cease to be elected member nor his seat would be deemed to be vacant.
POSITION IN OTHER ANALOGOUS STATUTES
24. In contrast, in some of the cognate legislations, it is specifically provided that such a member or office bearer will be deemed to have vacated his seat. In this context, we may note Section 12-E of the U.P. Panchayat Raj Act, 1947 wherein the above consequence is provided:-
"12-E. Oath of office.- (1) Every person shall, before entering upon any office referred to in Sections 11-A, 12, 43 or 44, make and subscribe before such authority as may be prescribed on oath or affirmation in the form to be prescribed.
(2) Any member who declines or otherwise refuses to make and subscribe such oath or affirmation as aforesaid shall be deemed to have vacated the office forthwith."
25. Likewise, under Section 85(2) of the U.P. Municipal Corporation Act, 1959, similar prohibition is contained and the said provision is extracted below:-
"85. Oath of allegiance to be taken by the Mayor and Members.- (2) Any person who having been elected a Corporator or Mayor [***]6 or co-opted a Member of the Development Committee fails to make within three months of the date on which his term of office commences or at one of the first three meetings of the Corporation held after the said date, whichever is later, the oath or affirmation laid down in and required to be taken by sub-section (1) shall cease to hold his office and his seat shall be deemed to have become vacant."
26. The legislative casus omissus cannot be supplied by process of judicial interpretation. In M/s Unique Butyle Tube Industries Pvt. Ltd. Vs. U.P. Financial Corporation and others7, the Supreme Court while dealing with plea of casus omissus has observed as follows:-
"11. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and others Vs. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981)."
27. In D.R Venkatchalam and others etc. vs. Dy. Transport Commissioner and others etc.8 it was observed that Courts must avoid the danger of apriori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
28. It is noteworthy that the present enactment was amended recently by U.P. Act No.14 of 2022, but the Legislature has not provided for any other adverse consequence as prescribed in cognate legislations in case an elected member does not subscribe to the oath of office. His seat shall not be deemed to have become vacant.
29. In Commissioner of Sales Tax, U.P. Lucknow Vs. M/s Parson Tools and Plants, Kanpur9 the Supreme Court has held that where the legislature willfully omits to incorporate something of an analogous law in a subsequent statute, the Court cannot supply the omission. The observations of the Supreme Court in this behalf is extracted below:-
"16. If the Legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so "would be entrenching upon the preserves of Legislature" (At p 65 in Prem Nath L Ganesh v. Prem Nath, L. Ram Nath, AIR 1963 Punj 62, Per Tek Chand, J.), the primary function of a court of law being jus dicere and not jus dare."
30. The Supreme Court in respect of the present legislation in its judgement rendered in Ram Pal Singh's case (supra) has noticed the above lacuna in the legislation and had also sounded a note of advice to the Legislature to make suitable amendments in the Statute. However, the issue has not been addressed. It continues to give rise to controversies which are otherwise avoidable. We hope and trust that necessary corrective steps will be taken without further delay.
31. Thus, our answer to issues (i) and (ii) is as follows:-
Issue (i):
Elected members are those who are chosen by direct election from territorial constituencies in the Panchayat area.
Issue (ii):
The elected members do not cease to hold their office for not subscribing to the oath of office.
ISSUES (iii) & (iv):
32. These issues are inter-related, hence, being dealt with together.
33. As we have noted above, it is only the elected members of the Kshettra Panchayat who have been conferred with right to bring the motion of no confidence and to vote in the meeting held for such purpose. All other members mentioned under clause (a), (c) and (d) of sub-section (1) of Section 6 are expressly prohibited from participating in all matters of election and no confidence motion.
34. Section 15 of the Act which deals with the entire procedure relating to no confidence motion stipulates that the intention to make the motion has to be signed by at least one-half of the total number of elected members of the Kshettra Panchayat. Again the motion is treated to be carried successfully if more than half of the "total number of elected members of the Kshettra Panchayat for the time being" vote in its favour. We have already discussed above that an elected member does not cease from being an elected member merely because he has not subscribed to the oath of office. The phrase 'for the time being' has limited connotation to exclude those who had ceased to be elected members by reason of death or resignation (Section 11) or on account of incurring ineligibility specified under Section 13. It is not at all intended that an elected member, who has not subscribed to oath of office, would also be excluded in matters of election of, and on a motion of no confidence against, the Pramukh. While quantifying the figures for such purpose, it is clear that the total strength of the elected members has to be considered as otherwise it would lead to irreconcilable and fallacious results. This aspect has been noted succinctly by Hon. Madan B. Lokur, J. in Ram Pal Singh's case in following words:-
"21. The fallacy and dichotomy arises in this manner: either the 13 elected members continue to be elected members of the Kshettra Panchayat, despite their not having taken the oath of office or they cease to be elected members of the Kshettra Panchayat. If they are not elected members for the purposes of signing the No Confidence Motion, then the number of signatories to the No Confidence Motion would drop from 39 to 26. Correspondingly, the number of elected members of the Kshettra Panchayat would also get reduced from 63 to 50. Consequently, it would have to be concluded that since 26 out of 50 elected members of the Kshettra Panchayat have signed the No Confidence Motion, more than 50% of the elected members. Therefore, the No Confidence Motion would be maintainable under the provisions of Section 15 of the Adhiniyam.
22. In other words, it is not correct on the part of learned counsel for the petitioner to contend that for the purposes of signing the No Confidence Motion, the 13 elected members are not elected members but for the purposes of the composition of the Kshettra Panchayat they are elected members thereby maintaining the strength of the Kshettra Panchayat at 63. If the 13 elected members are not elected members for one purpose, they cannot have a different status for another purpose. Their status must remain the same as that of an elected member (or not an elected member) both at the time of signing the No Confidence Motion and for the composition of the Kshettra Panchayat."
(emphasis supplied by us)
35. The scheme of the Act makes a clear distinction in the procedure to be followed for holding a meeting of no confidence and meetings of Kshettra Panchayat for transacting its routine business. A meeting of no confidence can be convened only by a written notice of intention to make the motion signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being. The Collector convenes the meeting of the Kshettra Panchayat for consideration of motion at the office of Kshettra Panchayat on a day appointed by him which shall not be later than 30 days from the date on which notice of motion is delivered to him and not before expiry of 15 days from the date of its intimation to the elected members. On the other hand, meetings of Kshettra Panchayat for transaction of its business is to be held at least once in every two months. The meeting is convened by the Pramukh. Only 1/5th of the members of the Kshettra Panchayat are competent to make requisition for convening such a meeting. The meeting can be held at the office of Kshettra Panchayat or any other convenient place. The Sub Divisional Officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction is obliged to preside over a meeting of no confidence, whereas an ordinary meeting for transacting the business of Kshettra Panchayat is held under the Chairmanship of the Pramukh by virtue of Sections 81, 82 and 83 of the Act. In a meeting of no confidence, only elected members of the Kshettra Panchayat are entitled to participate in view of the restriction contained under Section 6(2) of the Act. While in meeting of Kshettra Panchayat for transacting its business, even members of Kshettra Panchayat mentioned in clauses (a), (c) and (d) of sub-section (1) of Section 6 are entitled to participate and vote. In a meeting of no confidence, the sole agenda is the motion of no confidence, while there may be several items in the agenda in an ordinary meeting of a Kshettra Panchayat held for transaction of its business. The Presiding Officer is precluded from speaking on the merits of the motion of no confidence and is also not entitled to vote, whereas there is no such prohibition for the person presiding a meeting held for transacting the business of Kshettra Panchayat. A meeting of no confidence cannot be adjourned even for want of quorum, while it is permissible in case of a meeting held for transacting the business of Kshettra Panchayat. If a no confidence motion is not carried out for want of quorum or otherwise fails for want of requisite support, a fresh motion cannot be brought until after expiration of two years but there is no such impediment in case of normal business of the Kshettra Panchayat.
36. Section 79 of the Act provides that powers, duties and functions specified in second column of Schedule VI, with the exception of those against which an entry is shown in the third column of the Schedule may be exercised and shall be performed by a Kshettra Panchayat by resolution passed at a meeting and not otherwise. Some of important powers and functions of Kshettra Panchayat as specified in Schedule VI are :-
Section Power or function Remarks 1 2 3 11(1)-(35(1) X X X X X X X X 38(a) To decide whether to unite with any other Kshettra Panchayat or other local authority in works or undertakings which benefit all the areas controlled by the Kshettra Panchayat.
......
38(b) To decide whether to contribute towards any work or institution from which the Khand benefits, although such work or institution is undertaken or maintained outside the Khand or is included in any [Municipal Corporation], municipality, cantonment, notified area or town area.
......86
To consider and approve the draft plan of the Khand.
......
87(1) and (2) To appoint Committee.
......
87(3) To appoint advisory Committees.
......
115(4) To consider the recommendations of the Niyojan Samiti as regards the budget.
......142
To charge fees for the use or occupation of immovable property vested in, or entrusted to the management of the Kshettra Panchayat and levy or recover charges.
......143
To charge fees for licences, sanctions and permissions.
......144
To fix and levy certain other fees and tolls described in this section.
......145
To impose fees or tolls in markets established, maintained or managed by the Kshettra Panchayats.
......
184(3) To declare a private street in a controlled rural area to be a public street.
......190
To declare a private street as a public street.
......196
To permit erection of a building, wall or other structure or planting of tree on a public drain or culvert or waterwork vested in the Kshettra Panchayat and to order removal and on default, itself to remove any unauthorised structure or tree and recover the expenses from the person concerned.
......
228(2)(read with 236).
To furnish explanation in connection with an order of the prescribed authority prohibiting the execution or further execution of any resolution or order.
......
37. These business are transacted in meeting of Kshettra Panchayat in the manner provided under Section 84 and Section 85 read with Section 62 of the Act. The members of the Kshettra Panchayat mentioned in clauses (a), (c) and (d) of sub-section (1) of Section 6 are also entitled to participate and vote. This is evidently for the reason that such members together with elected members constitute the Kshettra Panchayat and are collectively responsible for the decisions taken by the Panchayat, a unit of self government at the intermediate level in a rural area. On the other hand, the power to bring a no-confidence motion and remove the Pramukh is vested in the elected members of the Kshettra Panchayat alone as they are the one who elect a Pramukh from amongst themselves.
38. Under Rule 3 (2) of the Rules, before a Pramukh takes his seat for the first time as a Pramukh, he has to take oath before the Sub Divisional Officer in the form set out in the Appendix to the Rules. He thereafter administers oath to the other members. It means that elected members are entitled to vote to elect Pramukh even before they take oath. According to the Legislative scheme, a Pramukh, who is elected by the elected members from amongst themselves, is entitled to hold office till he enjoys confidence of majority of the elected members. If he loses confidence of such number of elected members as specified under the statute (which earlier was "more than half of the total number of elected members" and is now "not less than two-third" vide U.P. Act No.14 of 2022), he could be removed by them by bringing a motion of no confidence. For the said reason, it seems, that the legislature has not debarred elected members from bringing motion of no confidence or to vote for the same merely because he or she has not subscribed to oath of office. Elected members who elect a Pramukh without subscribing to oath of office are disqualified from participating in the meetings held for transacting the normal business of the Kshettra Panchayat but not a meeting held for considering the motion of no confidence.
39. This distinction is clearly discernible from the scheme of the Act and is analogous to the distinction made by the Supreme Court in Pashupati Nath Sukul's case (supra) between the legislative and non-legislative business of a Legislative Assembly. It was held by the Supreme Court in the said case that even a person who had not taken oath as member of the Legislative Assembly, would be entitled to propose name of a person for filling up vacancy in the Rajya Sabha and also vote in the election. While taking the said view, Article 18810 of the Constitution, which contains similar inhibition, as Rule 3(2) of the Rules had been considered. The relevant observations made in this behalf are as follows :-
"18 ...........Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer of a valid nomination for election to the Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words ''sitting and voting' in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under Section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of Section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the legislative proceedings of the House carried on at its meeting. Nor the vote cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. ...."
"20. We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him....."
40. It follows from the above discussions that a meeting held for considering no confidence motion is a special meeting, with specific purpose. The procedure for convening and holding such a meeting is different and distinct from the meeting of a Kshettra Panchayat held for transacting its ordinary business. The persons entitled to participate in the two meetings are not same. The members of the Kshettra Panchayat who are not eligible to elect a Pradhan are also not competent to participate in the meeting held for his/her removal. An elected member while participating in such a meeting is not covered by the inhibition contained in Rule 3(3) of the Rules. If we exclude the elected member from participating in the meeting of no confidence, it leads to several anomalies11, which have to be avoided to make the provisions of the Act workable.
41. The Courts strongly lean against a construction which reduces the statute to a futility. In Principles of Statutory Interpretation (13th Edition), the celebrated author (Justice G.P. Singh) observes in the very first Chapter that a statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim: ut res magis valeat quam pereat". Lord Dunedin in Manchester Ship Canal Co. v. Manchester Racecourse Co.12 observes that it is our duty to make what we can of statutes, knowing that they are meant to be operative, and not inept, and nothing short of impossibility should in my judgment allow a judge to declare a statute unworkable. The principle was reiterated by him in a later case where he observed: "A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable13."
42. Thus, our answer to issues (iii) and (iv) is as follows:-
Issue (iii):
An elected member is not debarred from signing written notice of intention to make the motion even if he/she has failed to subscribe to oath of office.
Issue (iv):
A meeting held for considering motion of no confidence is a special meeting with specific purpose and is distinct from a meeting of a Kshettra Panchayat held for transacting its ordinary business. An elected member even if has not subscribed to oath is entitled to participate in a meeting of no confidence, although would not be entitled to participate in the meeting held for transacting the ordinary business of the Kshettra Panchayat.
CONCLUSION
43. Thus, our answer to the issues framed is as follows:-
Issue (i):
Elected members are those who are chosen by direct election from territorial constituencies in the Panchayat area.
Issue (ii):
The elected members do not cease to hold their office for not subscribing to the oath of office.
Issue:(iii):
An elected member is not debarred from signing written notice of intention to make the motion even if he/she has failed to subscribe to oath of office.
Issue: (iv):
A meeting held for considering motion of no confidence is a special meeting with specific purpose and is distinct from a meeting of a Kshettra Panchayat held for transacting its ordinary business. An elected member even if has not subscribed to oath is entitled to participate in a meeting of no confidence, although would not be entitled to participate in the meeting held for transacting the ordinary business of the Kshettra Panchayat.
44. The reference is answered accordingly.
45. Let the papers be placed before the Bench having jurisdiction in the matter for further proceedings.
(Jayant Banerji) (Manoj Kumar Gupta) (Rajesh Bindal)
Judge Judge Chief Justice
January 20, 2023
Shyam Lal/SK Verma
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/