Allahabad High Court
Smt. Kalawati Devi vs State Of U.P. And Ors. on 7 February, 2003
Equivalent citations: 2003(3)AWC1997, (2003)1UPLBEC894
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Sri Bharat Bhushan Paul for petitioner ; Sri Nurul Huda and Sri Shashank Shekhar Singh, learned standing counsel for respondents.
2. Petitioner Smt. Kalawati Devi is an elected Pradhan of village Panchayat Madanpatti, Vikas Khand Atrauliya, district Azamgarh. She has challenged a notice of no-confidence motion dated 12.1.2003, signed by 724 members of Gram Sabha which is more than half of the villagers on the electoral list and has been delivered in person by three members of the Gram Sabha, namely, Ram Tahal, Tihul and Smt. Reshma. By impugned order dated 25.1.2003, the District Panchayat Raj Officer/Prescribed Authority, Azamgarh, recorded satisfaction to the genuineness of signatures and convened the meeting of Gram Sabha for considering of no-confidence motion on 9.2.2003 at 10.00 a.m.
3. Learned counsel for petitioner has challenged the notice and the order of prescribed authority convening meeting on the ground that the notice does not comply with the requirements of Section 33B (1) of U. P. Panchayat Raj Rules, 1947 (in short Rules) inasmuch as the notice has not been signed by more than half of the total members of Gram Panchayat. According to him, out of the persons signing the notice, there are only three members of Gram Panchayat who have also delivered the notice to the prescribed authority.
4. In order to appreciate the submissions, it is necessary to set out the frequent amendments made in U. P. Panchayat Raj Act, 1947 (in short Act). Prior to Constitution (Seventy-third) Amendment 1994, the removal of Pradhan and Up Pradhan was provided in Section 14 of the Act for which the procedure was prescribed in Rule 33B are quoted as below :
"33B. Procedure for removal of Pradhan or Up Pradhan.--(1) A written notice of the intention to move a motion for removal of the Pradhan or Up Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one half of the total number of members of the Gaon Sabha and shall be delivered in person by at least five members signing the notice to the prescribed authority.
(2) The prescribed authority shall convene a meeting of the Gaon Sabha, under Section 14 of the Act, on a date to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting so convened shall be presided over by the prescribed authority or the person authorised by him in writing in this behalf. The presiding officer may take such clerical assistance for conducting the proceedings of the meeting for the consideration of the motion as he deems necessary."
5. Consequent to Constitution (Seventy-third) Amendment, 1994, the U. P. Panchayat Laws (Amendment) Act, 1994 (U. P. Act No. 9 of 1994) amended Section 14 of the Act. Sections 14 and 113 were amended by Sections 27 and 58 of the Act. These amendments are quoted as below :
"27. Amendment of Section 14.--In Section 14 of the Principal Act, in Sub-section (1), for the words 'Gaon Sabha' the words 'Gram Panchayat' shall be substituted."
"58. Amendment of Section 113.--In Section 113 of the Principal Act, after Sub-section (1), the following sub-section shall be inserted, namely :
(2) On and from the date of commencement of Uttar Pradesh Panchayat Laws (Amendment) Act, 1994, any reference to the 'Gaon Sabha' or "Gaon Panchayat' in any rules, regulations, bye-laws, statutory instruments or any other law for the time being in force or in any document or proceedings shall be construed as a reference to the 'Gaon Panchayat'."
6. The substitution of word 'Gram Panchayat' in Section 14 was challenged on various grounds including that a Pradhan and Up-Pradhan can only be removed by the members of Gram Sabha and not by their elected representatives in Gram Panchayat. The matter went upto the Apex Court in Ram Beti v. District Panchayat Raj Adhikari, 1998 (2) AWC 817 (SC) : (1998) 1 SCC 680. The Supreme Court upheld the amendment on the ground that right to recall is a statutory right and that Section 14 of the Act, insofar as it empowers the members of the Gram Panchayat to remove the Pradhan of a Gram Sabha by moving a motion of no-confidence, is neither unconstitutional nor void being violative of the concept of democracy or is arbitrary and unreasonable so as to be hit by Article 14 of the Constitution.
7. In order to carry out the purpose of amended Section 14, the U. P. Panchayat Raj (Fourteenth Amendment) Rules, 1996 were made, amending Rule 33B of the Rules. Sub-rules (1) and (2) of Rule 33B, relevant for the purpose of this case, are quoted as below :
"33B. Procedure for removal of Pradhan or Up-Pradhan.--(1) A written notice of the intention to move a motion for removal of the Pradhan or Up-Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one-half of the total number of members of the Gram Panchayat and shall state the reasons for moving the motion and it shall be delivered in person by at least three member signing the notice to the District Panchayat Raj Officer. Before proceeding further on the notice, the District Panchayat Raj Officer shall satisfy himself regarding genuineness of signatures of the members signing the notice.
(2) The District Panchayat Raj Officer shall convene a meeting of the Gram Panchayat, under Section 14 of the Act, on a date to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting so convened shall be presided over by the District Panchayat Raj Officer or the person authorised by him in writing in this behalf. The presiding officer may take such clerical assistance for conducting the proceedings of the meeting for the consideration of the motion as he may deem necessary."
8. It appears that Legislature of the State thought it fit to restore the right of recall to the members of Gram Sabha and thus amended Section 14 by the Uttar Pradesh Panchayat Laws (Amendment) Act, 2001 (U. P. Act No. 24 of 2001). The amendment of Section 14 as well as insertion of new Section 14B which provided for removing of Up-Pradhan separately by no confidence, are quoted as below :
"4. Amendment of Section 14.--In Section 14 of the Principal Act:
(a) in the heading the words "Pradhan and UP-Pradhan" shall be omitted ;
(b) for Sub-section (1) the following sub-sections shall be substituted, namely :
"(1) the Gram Sabha may at a meeting specially convened for the purpose and of which at least 15 days previous notice shall be given, remove the Pradhan by a majority of two-thirds of the members of the Gram Sabha present and voting, (1A) Notwithstanding anything contained in Section 11, one-third of the members of the Gram Sabha shall form the quorum for a meeting under Sub-section (1)."
(c) in Sub-section (3) for the words "two years" the words "one year" shall be substituted.
5. Insertion of new Section 14B.--After Section 14A of the principal Act, the following section shall be inserted, namely :
14B. Removal of Up-Pradhan.--(1) The Gram Panchayat may, at a meeting specially convened for the purpose and of which at least fifteen days previous notice shall be given, remove the Up-Pradhan by a majority of two-thirds of the members of the Gram Panchayat.
(2) A meeting for the removal of an Up-Pradhan shall not be convened within two years of his election.
(3) If the motion is not taken up for lack of requisite majority at the meeting, no subsequent meeting for the removal of the same Up-Pradhan shall be convened within two years of the date of the previous meeting.
(4) Subject to the provisions of this section, the procedure for the removal of an Up-Pradhan, including that to be followed at such meeting, shall be such as may be prescribed."
9. The object of para 2 of U. P. Panchayat Laws (Amendment) Act, 2001 is quoted as under :
"2. The United Provinces Panchayat Raj Act, 1947, provides that the Gram Panchayat may, at a meeting specially convened for this purpose, remove the Pradhan by a majority of two-thirds of all the members. As the Pradhan is elected directly by the members of the Gram Sabha, it has been considered expedient that the members of the Gram Sabha, who elect the Pradhan, should be given power to remove him."
10. With the aforesaid amendments by U. P. Panchayat Laws (Amendment) Act, 2001, separate procedures have been provided for removal of Pradhan and Up-Pradhan. whereas a Pradhan can be removed by resolution passed by two-thirds of the members of Gram Sabha present and voting at meeting specially convened for that purpose, at least 15 days previous notice is to be given and that the quorum of meeting has been provided as one-third of the members of Gaon Sabha and that a resolution can be brought after one year, for Up-Pradhan, such a resolution can be passed by the members of Gram Panchayat by majority of two thirds of its members at a meeting specially convened for the purpose and for which at least 15 days previous notice is to be given. Such meeting shall not be convened within two years of his election. Sub-section (4) of Section 14B provides that subject to the provisions of this section, the procedure for the removal of an Up-Pradhan, including that to be followed at such meeting, shall be such as may be prescribed. The rules, however, have not been amended in tune with the Act.
11. Ordinarily, the State Legislature should have amended the rules providing for procedure. The Court was informed by the learned standing counsel that such rules are proposed. The Court, however, cannot await for the State Legislature to realise the need of the amendment of rules providing for procedure for removal of Pradhan and Up-Pradhan. The right of recall is a statutory right and it can be fulfilled only by a fair and reasonable procedure provided under the Act and Rules. This right is a essence of democracy. Members of Gram Sabha elect Pradhans and Up-Pradhans for various purpose enabling the Panchayats to function as institution of self-Government. Article 243G of the Constitution provides that the panchayats shall be endowed with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such law may contain provisions for the devolution of powers and responsibilities upon panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to :
(a) the preparation of plans for economic development and social justice ;
(b) the implementation of schemes for economic development and social justice, as may be entrusted to them including those in relation to the matter listed in the Eleventh Schedule.
12. In case an elected Pradhan or Up-Pradhan has absented himself for more than three consecutive meetings ; refuses to act or become incapable to act or charge with the offence involving moral turpitude or his continuance as such is not desirable in public interest or he took part in politics or suffers from any disqualification mentioned in Clause (a) to Clause (n) of Section 5A of the Act, the State Government may remove him from his office after giving opportunity of hearing. However, there may be cases where Pradhan or Up-Pradhan. may not be removed by State Government, and that his manner of functioning or exercise of powers or authority may not come upto the aspirations of the residents of village. In such case, Sections 14 and 14B provides for his removal by no-confidence motion.
13. In the absence of consequent amendment to the rules, the residents of village have deprived of their right of recall. The rules are required to be amended for the said purpose. The inaction or delay on the part of Legislature to amend the rules cannot put such right into abeyance. In such a case, the Court has to interpret the provisions of the Act and Rules to make it purposeful. Sub-section (4) of Section 14B provides the procedure for removal subject to the provision of said sections. The procedure for removal provided by rules, as such, has to conform to the provisions of the Act.
14. In H.C. Suman and Anr. v. Rehabilitation Ministry Employees Co-operative House Building Society Ltd., New Delhi and Ors.. AIR 1991 SC 2160 (para 18), following the Judgment in Surjit Singh Kalra v. Union of India, (1991) 2 SCC 87, it was held that it is true that it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words" (Craies Statute Law, 7th Edn. p, 109). Similar observation was made in Hameedia Hardware Stores v. B. Mohan Lal Sowcar, (1988) 2 SCC 513 and Siraful Haq Khan v. Sunni Central Board of Waqf, AIR 1959 SC 198. In M. J. Export Ltd. and Anr. v. Customs Excise and Gold (Control) Appellate Tribunal, Bombay and Ors., AIR 1992 SC 2014, while interpreting the provisions of the import and export policy, it was held that the Court should construe a provision in a harmonious way to make it meaningful having regard to the context in which it appears. The Court should not supply or introduce words which are not found therein, but may interprete the language used and give content and meaning to the classification and heading used in the order permitting imports under O.G.L. in certain case in the context of the provisions of the Imports and Exports Control Act, 1947. In S.P. Jain v. Krishna Mohan Gupta and Ors., 1987 (1) AWC 293 (SC) : (1987) 1 SCC 191, it was stated in para 18 as follows :
"18. We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life style of the community. It is well-settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd. case that legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of the statute or the project promoted."
15. Following the aforesaid principles of law, the Court finds that although a procedure has been provided for removal of Pradhan and Up-Pradhan in Rule 33B the said rule has not been amended to give meaning to the provisions of Sections 14 and 14B. Whereas now the right to remove has been reinvested in members of Gram Sabha, Sub-rule (1) of Rule 33B provides that notice shall be signed by not less than one-half of the total number of members of the Gram Panchayat. The Rule may, as it is, apply without violating the provisions of Section 14B in respect of Up-Pradhan, but in respect of Pradhan, the words 'Gram Panchayat' have to be read as 'Gram Sabha' wherever these words are used in Rule 33B. Such interpretation brings life to the amended Section 14 and will carry the purpose for which it has been amended. This Court, therefore, holds that in respect of removal of Pradhan, wherever the words 'Gram Panchayat' occur in Rule 33B, these are read to be 'Gram Sabha'.
16. Coming to the case in hand, the District Panchayat Raj Officer/ Prescribed Authority, Azamgarh, has rightly interpreted the provisions of rules. The notice dated 12.1.2003 for no-confidence motion has been signed by 724 members which are more than one-half of the members of the Gram Sabha and has been delivered by three persons in person to the Prescribed Authority.
17. The order of the District Panchayat Raj Officer, Azamgarh, dated 25.1.2003 thus does not suffer from any error of law.
18. No other argument was advanced.
19. The writ petition is, accordingly, dismissed.