Allahabad High Court
Shyam Narayan Ram vs State Of U.P. And 6 Others on 7 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5162
Bench: Pankaj Mithal, Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- WRIT - C No. - 16538 of 2018 Petitioner :- Shyam Narayan Ram Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Kamlesh Kumar Tripathi,Sr. Advocate Counsel for Respondent :- C.S.C.,Saiful Islam Siddiqui Hon'ble Pankaj Mithal,J.
Hon'ble Rajiv Joshi,J.
The petitioner is an elected Pramukh of the Kshettra Panchayat, District Ghazipur.
The aforesaid Kshettra Panchayat has a total strength of 120 members. A motion for no confidence in him was served on 26.2/3.2016 allegedly signed by 81 elected members, out of which 74 members also submitted their affidavits in support thereof.
The petitioner objected to the said motion of no confidence and filed objections. He also preferred a Writ Petition No.12114 of 2018, Shyam Narayan Ram Vs. State of U.P. and others challenging the same. It was disposed of vide order dated 09.04.2018 with the observation that the petitioner may press his application/objections before the Collector, who shall proceed in accordance with law.
In pursuance thereof the Collector decided the application vide order dated 17.04.2018 and the objections of the petitioner have been rejected.
On the basis of the aforesaid notice of no confidence, a motion of no confidence was carried out against the petitioner by the Kshettra Panchayat in its meeting held for the purpose on 22.04.2018. In the said meeting 79 members participated and 74 persons voted in favour of the motion and as such it was carried out by the majority against the petitioner.
The petitioner by means of the present writ petition has challenged the order of the Collector dated 17.04.2018 and the proceedings of no confidence motion dated 22.04.2018.
We have heard Sri Shashi Nandan, Senior Counsel, assisted by Sri Kamlesh Kumar Triptahi, learned counsel for the petitioner, learned Standing Counsel for the State of U.P. and Sri Saiful Islam Siddiqui, learned counsel for the respondent No.3.
Sri Shashi Nandan, has attacked the motion of no confidence passed against the petitioner basically on the ground that out of the total elected members only 69 members took oath of office in the meeting of the Kshettra Panchayat held on 18.03.2016 and that the remaining 51 members had not taken oath.
Some of these 51 members are signatories to the notice of intention to bring a no confidence motion and have also participated in the meeting dated 20.04.2018 and as such the entire proceedings stand vitiated in law.
The members, who have not taken oath of office could not have moved the motion of no confidence and at least could not have participated and voted as members of the Kshettra Panchayat.
The petitioner has raised this objection specifically before the Collector but he declined to address the aforesaid aspect of the matter while passing the order dated 17.04.2018 and permitting the meeting to be held on 22.04.2018 for consideration of the no confidence motion.
In a recent case of Kiran Pal Singh Vs. State of U.P. and others (2018) 7 SCC 521 it has been opined that in such matters the jurisdiction of the Collector is only to scan the notice of intention given by the members to ensure it fulfills the essential requirements of a valid notice i.e. it is signed by more than half of the members and is delivered to him in person by anyone of those signing it or that it expresses clear intention of the proposed motion of no confidence.
The Collector in passing the impugned order has specifically considered the above aspects of the matter that the notice expresses the intention to bring a motion of no confidence against the petitioner, it is signed by more than half of the members and is delivered to him in person by one of the members signing it.
The Collector has no other job except to examine the aforesaid aspects. He has recorded that 81 members have signed the notice of intention to bring a motion of no confidence. It is supported by the affidavits of 74 members. It has been submitted in the prescribed form and has been duly delivered to him. Thus, there is no infraction in discharge of duty by the Collector in passing the order dated 17.04.2018 and there is no error or illegality in the said order.
The core question which remains for our consideration is whether the elected members of the Kshettra Panchayat, who have not subscribed to the oath could sign the notice for the motion of no confidence and participate & vote in the meeting to consider the motion.
The U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam) provides for the constitution and the incorporation of Kshettra Panchayat. Section 5 of the said Adhiniyam envisages for a Kshettra Panchayat for every block and that it shall be a body corporate. It also provides that the constitution of the Kshettra Panchayat shall be notified in the gazette.
The composition of the Kshettra Panchayat is provided in Section 6 of the Adhiniyam and it envisages that it shall consist of a Pramukh, who shall be its Chairperson and all the Pradhans of the Panchayat in the block; elected members who shall be chosen by direct election from the territorial constituencies in the Panchayat area; 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 block; the members of the council of the States and the members of the State Legislative Council registered as electors within the block.
The aforesaid composition of the Kshettra Panchayat to demonstrate that apart from the Pramukh as Chairperson it consists of elected and non-elected members as referred to above.
The non-elected members have not been given right to vote in matters of election and on a motion of no confidence against the Pramukh or the Up-Pramukh. Therefore, for the purpose of voting for consideration of motion of no confidence against the Pramukh only the elected members of the Kshettra Panchayat are entitle to participate in the proceedings and vote.
Section 15 of the Adhiniyam relates to the procedure of bringing a motion of no confidence in Pramukh. The relevant parts of Section 15 of the Adhiniyam are reproduced hereinbelow for the sake of convenience.
"15. Motion of non-confidence in Pramukh (1) A motion expressing want of confidence in the Pramukh or any 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 of 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 prescribe 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 the 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."
The salient features of the above provision are that that for a motion of no confidence, a written notice of intention to make the motion in the prescribed form, signed by at least half of the elected members of the Kshettra Panchayat is required to be delivered in person by one of the signatories to the aforesaid notice to the Collector.
The Collector is obliged to convene a meeting of the Kshettra Panchayat for the consideration of the motion of no confidence at the office of the Kshettra Panchayat on the appointed date which shall not be later than 30 days from the date on which the notice is delivered to him expressing intention to bring a motion of no confidence in the Pramukh.
The Pramukh ceases to hold office as soon as the motion of no-confidence is carried out against him by not less than 2/3rd of the total number of the elected members of the Kshettra Panchayat.
In short the elected members of the Kshettra Panchayat constitute an electoral collage to cast their vote in the meeting called for consideration to the motion of no confidence in the Pramukh and that such a motion is to be carried out by not less than 2/3rd of the total number of the elected members to oust the Pramukh from the office.
The aforesaid Adhiniyam do not provide for any oath or affirmation by the elected members of the Kshettra Panchayat before entering the Kshettra Panchayat as its members. It also do not provide for any penalty, consequence or effect of not subscribing to the oath by elected members of the Kshettra Panchayat.
The U.P. Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh etc.) Rules, 1994 prescribes that the members of the Zila Panchayat and Kshettra Panchayat before taking seats for the first time as members shall make and subscribe oath or affirmation before the Adhyaksha of the Zila Panchayat or before the Pramukh as the case may be or in their absence before the Mukhya Adhikari and the Khand Vikas Adhikari respectively, in the form set out in the Appendix to the Rules.
The relevant Sub-Rule(3) of Rule 3 of the above Rules reads as under:-
"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."
A complete reading of the above Rules would reveal that it also does not contain any provision which provide for any consequence or effect of not taking oath or affirmation by a member of the Kshettra Panchayat. Similarly, as stated earlier even the Adhiniyam does not prescribe for the consequence of not taking oath or affirmation by the members of the Kshettra Panchayat before taking their seats rather it does not even mandate for any oath or affirmation by the members.
In such a situation, in the absence of any statutory provision providing for the consequence or effect of not taking oath by the members of Kshettra Panchayat, it cannot be said that the provision of oath prescribed under the Rules is of a mandatory nature and that if anyone fails to abide by it, he will lose his membership or would be disqualified to be a member or to participate in the proceedings of the Kshettra Panchayat be it for consideration of the motion of no confidence.
It is not the case of the petitioner that all the elected members of the Kshettra Panchayat including those who have not subscribed to the oath or affirmation have not been included in the notification notifying constitution of the Kshettra Panchayat.
In somewhat a similar controversy in the case of Pashupati Nath Sukul Vs. Nem Chandra Jain and others, (1984) 2 SCC 404 concerning the election to the U.P. Legislative Assembly the house was summoned for taking oath by the members as required under Article 188 of the Constitution of India on a particular date but in the meantime the Election Commission issued a notification calling upon the elected members of the Legislative Assembly to elect a person for filling up a vacancy in the Rajya Sabha.
The question arose whether such elected persons who have not taken oath could participate in the election. The Apex Court on consideration of the entire case law on the subject held as under:-
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 (Representation of the People Act, 1951) 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. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the Act cannot be held to be illegal.
A Division Bench of this Court in Smt. Kamla Devi Vs. State of U.P. and others 2014 (8) ADJ 525 (DB) while grapling with an identical controversy of a motion of no confidence against the Pramukh of the Kshettra Panchayat relying upon Pashupati Nath Sukul (Supra) and some other decisions concluded that the elected members who have not subscribed to oath as prescribed under the Rules were also entitle to participate in the meeting held for consideration of no confidence motion.
A similar matter from Allahabad itself travelled to the Supreme Court by means of petition for Special Leave to Appeal (Civil) No.31990 of 2017, Ram Pal Singh Vs. State of U.P. and others it was dismissed on 24.04.2018.
The core question involved in the said appeal was whether the 13 elected members, who have not taken oath of allegiance to the office as members of the Zila Panchayat could sign the no confidence motion and vote in the meeting called for its consideration.
One of the Lordships presiding the bench in the Supreme Court in the above case relying upon Pashupati Nath Sukul (Supra) held that there may not be any doubt that an elected member of the house does not cease to be a member only for the reason that he has not subscribed to the oath of office unless there is a specific provision to that effect. Therefore, there is no hesitation in holding that the signatories to the no confidence motion, who were elected members of the Kshetra Panchayat, were entitle to sign the no confidence motion.
On the other hand, the other member of the Bench took a contrary view and considering all the above decisions and those referred to by his Lordship, the Presiding Judge opined that a member, who is elected to a house does not cease to be a member only because he had not subscribed to the oath unless there is specific provision in this regard but it is apparent that such an elected member, who has not taken oath can only take part in those proceedings which are not proceedings of the house.
The consideration of motion of no confidence is part of the proceedings of the Kshettra Panchayat and therefore is part of the business of the Kshettra Panchayat. Accordingly, an elected member, who has not taken oath cannot move and be a signatory of such a no confidence motion and is not eligible and entitle to vote in proceedings for consideration of such a motion.
In the end, his Lordship held that the judgment of the Allahabad High Court in Smt. Kamla Devi (Supra) does not lay down the correct position of law.
Despite the fact that the opinion expressed by the Division Bench of this court in Smt. Kamla Devi (Supra) was not set aside in appeal it would be difficult to follow the same in view of the above conflicting opinion expressed by their Lordships of the Supreme Court in the case of Ram Pal Singh (Supra) where one of the Lordships have placed reliance upon it whereas the other had expressly held that the opinion of the High Court in Smt. Kamla Devi (Supra) do not depict the correct position of law.
In the light of the aforesaid facts and circumstances, it is not possible for us to abide and follow the decision of the coordinate Bench in Smt. Kamla Devi (Supra) and at the same time it is difficult to follow either of the two divergent opinions given by their Lordships of the Supreme Court in Ram Pal Singh's case.
The question involved herein 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 entitle to sign the notice of intention to bring a no confidence motion against the Pramukh and to participate & vote in the meeting held for the consideration of such a no confidence motion is of public importance and may keep arising day in and day out so, we are of the opinion that it is more appropriate to have an opinion of a Larger Bench on it so that the question may be answered conclusively for future guidance of one and all.
Accordingly, we direct the papers to be placed before Hon'ble The Chief Justice for constituting a Larger Bench if deemed necessary to answer the above question of law.
Order Date :- 07.12.2018 piyush