Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2019
(Arising out of SLP(Civil) No.36952 of 2017)
Seema Sarkar …..Appellant(s)
:Versus:
Executive Officer and Ors. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Leave granted.
2. The conundrum in this appeal is about the inclusion or
exclusion of the Member of the House of Parliament (for short
“MP”) representing the Union Territory of Andaman and
Nicobar Islands, who is also an exofficio member of the
Panchayat Samiti, for reckoning the quorum of a special
meeting regarding motion of no confidence against the
Signature Not Verified
Pramukh of the Little Andaman Panchayat Samiti (for short
Digitally signed by
DEEPAK SINGH
Date: 2019.05.01
17:32:21 IST
Reason:
the “said Samiti”) and also whether he/she can exercise
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his/her vote on the ‘No Confidence Motion’ within the meaning
of the provisions of Andaman and Nicobar Islands
(Panchayats) Regulation, 1994 (for short “Regulation”) and the
Andaman and Nicobar Islands (Panchayats Administration
Rules) 1997 (for short “the Rules”).
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3. A ‘No Confidence Motion’ dated 19 December, 2007 was
moved by respondent No.6 against the appellant (Pramukh of
the said Samiti). The said Samiti consisted of six members i.e.
five directly elected members from territorial constituencies in
the Panchayat area and one MP representing the Union
Territory. A meeting for discussion of the ‘No Confidence
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Motion’ was scheduled on 2 January, 2017 at 3.00 PM in
the Conference Hall of the Panchayat Samiti. That notice was
duly served to all the members. But only 3 elected members
remained present at the scheduled time (3.00 PM) and place of
the meeting. As the quorum was not complete, the members
waited upto one hour i.e. upto 4.00 PM. Eventually, the
meeting came to be dissolved by the Executive Officer for want
of quorum of four members, in view of Section 107 of the
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Regulation. The Executive Officer issued communication in
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that behalf on 2 July, 2017 which reads thus:
“No.3131/PS/HB/201617/535
OFFICE OF THE PANCHAYAT SAMITY
HUT BAY, LITTLE ANDAMAN
nd
Hut Bay dated the 2 Jan. 2017
To,
The Deputy Commissioner,
South Andaman, Port Blair.
Sub: Report on No Confidence Motion against Smt. Sima Sarkar,
Pramukh, Panchayat Samiti, Little AndamanReg.
Sir,
The rescheduled special meeting on No Confidence
Motion was held on 02/01/2017 at 3:00 pm in the
Conference hall of Panchayat Samiti. The notice was served
to 5 elected members and a Member of Parliament,
Andaman and Nicobar Administration. After serving notice
to Member of Parliament as per Panchayat Regulation 1994
under chapter X at serial no.107 the members of the
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Panchayat Samiti, Hut Bay become six and 2/3 majority is
4.
The meeting was fixed at 3:00 pm and waited upto 1
hour i.e., upto 4:00 pm but only 3 members were attended
but to fulfill Quorum 4 member is must hence for want of
Quorum meeting dissolved.
The extract of proceeding of the meeting is enclosed
herewith for your kind reference.
Encl: A/A
Yours Faithfully
Executive Officer
Panchayat Samiti
Little Andaman”
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4. The respondent No.6 assailed the said decision by way of
Writ Petition No.14 of 2017 before the High Court at Calcutta,
Civil Appellate Jurisdiction, Circuit Bench at Port Blair.
Respondent No.6 asserted that the MP had no right to
participate in the special meeting regarding a ‘No Confidence
Motion’ nor was he entitled to vote thereat. Respondent No.6
prayed for the following reliefs in the said writ petition:
“In the fact and circumstance mentioned herein above, your
petitioner respectfully prays that YOUR LORDSHIP may be
graciously pleased to issue:
A. A writ in the nature of certiorari quashing the
proceedings dated 02.01.2017 wherein the Executive
Officer, Panchayat Samiti, Little Andaman dated held
that quorum required is four members and as such no
confidence motion not be proceeded.
B. A writ in the Mandamus directing the respondent no.1
to call for a meeting of moving the no confidence
against the private respondent no.1 and further direct
the UpPramukh i.e. the respondent no.4 to preside
over the meeting to complete the process without
casting to vote in the said meeting.
C. A writ in the nature of the Certiorari directing the
respondent authorities to transmit the case records
before this Hon’ble Court so that after pursuing the
same conscionable justice may be rendered your
petitioner and directing the respondent no.1 to
consider the case of the letter of the petitioner dated
19.12.2016 and 02.01.2017.
D. Rule NISI in terms of prayer A&B above.
E. Cost of the incidents to this writ application.
F. Any other order/orders of further order/orders as your
Lordship may deem fit and proper.”
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5. The writ petition was heard by the learned Single Judge
of the High Court who negatived the stand of respondent No.6
and thus dismissed the writ petition. The learned Single Judge
held that the quorum for a special meeting to consider the
motion of no confidence against the Pramukh, being two
thirds of the “total membership”, minimum four members of
the Panchayat Samiti ought to have remained present.
Presence of only three members at the meeting, therefore, did
not constitute quorum. Further, the MP being the member of
the said Samiti was entitled to participate in the special
meeting to consider a no confidence motion and also vote on
that motion. As a result, the writ petition came to be rejected.
6. Respondent No.6 carried the matter before the Division
Bench by way of writ appeal, being M.A. No.26 of 2017. The
Division Bench reversed both the conclusions reached by the
learned Single Judge and instead, opined that the MP
representing the Union Territory was not eligible to participate
in the special meeting and vote on a ‘No Confidence Motion’
for removal of the Pramukh or UpPramukh of the Panchayat
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Samiti. For arriving at that conclusion, the Division Bench
adverted to Sections 107(3), 112(1), 115 and 117 of the
Regulation and Rules 9(3) and 21 of the Rules. Additionally,
the Division Bench placed reliance on the decisions in
1
and
Ramesh Mehta Vs. Sanwal Chand Singhvi and Ors.
State of Karnataka and Ors. Vs. Lakshmappa Kallappa
2
The Division Bench also adverted to
Balaganur and Ors.
Articles 243(d), 243B and 243C, especially clauses (3), (4) and
(5) of Article 243C of the Constitution of India and opined as
follows:
“….Panchayats have been included in the Constitution of
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the India by the Constitution (73 amendment) Act, 1992.
The purpose of amendment appears to be that it was felt
that in every State there should be a panchayats at the
village, intermediate and district levels as a part of self
governance. Article 243 (d) of the Constitution defines
Panchayat to mean an institution by whatever name called
of self government constituted under Article 243 B for the
rural areas. Article 243 C deals with composition of
Panchayat. 243 C (3) permits the legislation of the State by
law to provides for representation. Article 243 (C) (4)
provides that the Chairperson of the Panchayat and other
members of the Panchayat whether or not chosen by direct
election from territorial constituencies in the Panchayat
area shall have the right to vote in the meetings of the
panchayats. The Chairperson of a Panchayat at the
intermediate level or district level under Article 243 (C) (5)
1
(2004) 5 SCC 409
2
(2001) 3 KLJ 498
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(b) shall be elected by and from amongst the elected
members thereof. Article 243 (C) (4) is similar to Regulation
107 (3) (b) which provides that the member of the House of
Parliament representing the Union Territory shall also be
represented in the Panchayat Samiti with a right to vote in
the meetings of the Panchayat Samiti. It has to be seen from
the Regulations whether or not the Regulations intend to
treat the Member of Parliament at par with the elected
members of the Panchayat to participate in the proceedings
initiated for removal of the Pramukh of the Panchayat.
Although the Regulations and the Rules do not
appear to have made any distinction between “person” and
“member” which appear to have been used at places
interchangeably but regard must be had to the very object
for which a member of Parliament is included in the
Panchayat Samiti with a right to vote. The presence of the
Member of Parliament is not required for the purpose of
electing the Pramukh and UpPramukh as the Regulations
clearly use the phrase “by and from amongst elected
members of the Panchayat Samiti” and the Member of
Parliament is not treated at par with the elected members
for the purpose of election of such office bearers.
xxx xxx xxx xxx xxx
In view of the law laid down in the aforesaid decisions
on interpretation on similar rules and/or regulations, we
are of the opinion that the Member of Parliament cannot be
treated at par with an elected member of the Panchayat
Samity for the purpose of removal of Pramukh and Up
pramukh. In the relevant Rules and Regulations in relation
to a motion of no confidence wherever the word ‘member’ is
used, it would only mean elected members and not
nominated members even though such nominated member
may have a right to vote in other proceedings. All members
who have selected Pramukh and Uppramukh are all elected
members of the Samiti unlike the nominated members and
in matters concerning motion of no confidence in our view it
is only those members who have been directly elected shall
have the right to remove Pramukh and UpPramukh as the
said office bearers have been elected by and from amongst
the elected members of Panchayat Samiti. There is a clear
distinction between the two classes of members and they
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cannot be treated at par in matters relating to no confidence
motion to remove Pramukh or UpPramukh.”
7. Having thus held, the Division Bench proceeded to allow
the appeal filed by respondent No.6 and consequently granted
relief as prayed for in the writ petition of setting aside the
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decision of the Executive Officer dated 2 January, 2017. The
High Court also directed the Executive Officer, Panchayat
Samiti, Little Andaman to proceed in accordance with law in
light of the observations made in the said judgment.
8. Feeling aggrieved, the appellant has filed this appeal by
special leave. The appellant moved the Court for urgent
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consideration of the matter on 22 December, 2017 before the
Vacation Bench of this Court when notice came to be issued.
However, during the pendency of this appeal, the Deputy
Commissioner, acting upon the directions issued by the
Division Bench of the High Court not only proceeded to remove
the appellant from the post of Pramukh of the Little Andaman
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Panchayat Samiti on 26 December, 2017 but also intended to
proceed to fill up the vacancy arising from the removal of the
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appellant, by scheduling a fresh election on 19 January,
2018. The appellant, therefore, urgently moved this Court for
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appropriate orders on 15 January, 2018, when the following
order came to be passed:
“Learned counsel who have entered appearance on behalf of
the respondents, pray for a week’s time to file the counter
affidavit.
Learned counsel appearing for the petitioner does not intend
to file the rejoinder affidavit.
As a pure question of law emerges, let the matter be listed on
29th January, 2018.
Any election held in the meantime,
shall be subject to the result of this special leave
petition. ”
(emphasis supplied)
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9. Resultantly, the meeting scheduled on 19 January,
2018, proceeded to elect respondent No.6 as Pramukh of Little
Andaman Panchayat Samiti. As the matter also involved
applicability of Articles 243C and 243R of the Constitution of
st
India, this Court on 31 January, 2018, requested the learned
Attorney General for India to assist the Court. Pursuant to the
said request, the learned Attorney General for India appeared
in the proceedings and is now represented by Mr. Aman Lekhi,
Additional Solicitor General of India.
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10. We have heard Mr. Purushaindra Kaurav, learned senior
counsel appearing for the appellant, Mr. Aman Lekhi, learned
Additional Solicitor General of India, Ms. G. Indira, learned
counsel appearing for respondent No.1 and Mr. R.
Chandrachud, learned counsel appearing for respondent No.6.
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11. By the Constitution 73 Amendment Act, 1992, which
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came into force from 24 April, 1993, PartIX of the
Constitution of India came to be amended. It envisaged a
detailed mechanism for democratic decentralization of the self
Government on the principle of grassroot democracy. It may
be useful to advert to the Statement of Objects and Reasons
necessitating such amendment, which reads thus:
“THE CONSTITUTION (SEVENTYTHIRD AMENDMENT)
ACT, 1992
Statement of Objects and Reasons appended to the
Constitution (Seventysecond Amendment) Bill, 1991 which
was enacted as the Constitution (Seventythird Amendment)
Act, 1992
Though the Panchayati Raj institutions have been in
existence for a long time, it has been observed that these
institutions have not been able to acquire the status and
dignity of viable and responsive people’s bodies due to a
number of reasons including absence of regular elections,
prolonged supersessions, insufficient representation of
weaker sections like Scheduled Casts, Scheduled Tribes and
women, inadequate devolution of powers and lack of
financial resources.
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2. Article 40 of the Constitution which enshrines one
of the directive principles of State Policy lays down that the
State shall take steps to organize Village Panchayats and
endow them with such powers and authority as may be
necessary to enable them to function as units of self
government. In the light of the experience in the last forty
years and in view of the shortcomings which have been
observed, it is considered that there is an imperative need to
enshrine in the Constitution certain basic and essential
features of Panchayati Raj institutions to impart certainty,
continuity and strength to them.”
By virtue of this amendment, Panchayat has been defined to
mean an institution (by whatever name called) of self
Government constituted under Article 243B for the rural
areas. Article 243B reads thus:
“ (1) There shall be
243B. Constitution of Panchayats.
constituted in every State, Panchayats at the village,
intermediate and district levels in accordance with the
provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the
intermediate level may not be constituted in a State having a
population not exceeding twenty lakhs.”
It may be apposite to reproduce Article 243C which deals with
composition of Panchayats. The same reads thus:
“ 243C. Composition of Panchayats. (1) Subject to the
provisions of this Part, the Legislature of a State may, by
law, make provisions with respect to the composition of
Panchayats:
Provided that the ratio between the population of the
territorial area of a Panchayat at any level and the number of
seats in such Panchayat to be filled by election shall, so far
as practicable, be the same throughout the State.
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(2) All the 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 area shall be divided into territorial
constituencies in such manner that the ratio between the
population of each constituency and the number of seats
allotted to it shall, so far as practicable, be the same
throughout the Panchayat area.
(3) The Legislature of a State may, by law, provide for
the representation
(a) of the Chairpersons of the Panchayats at the
village level, in the Panchayats at the
intermediate level or, in the case of a State not
having Panchayats at the intermediate level, in
the Panchayats at the district level;
(b) of the Chairpersons of the Panchayats at the
intermediate level, in the Panchayats at the
district level;
(c) of 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 a Panchayat area at a
level other than the village level, in such
Panchayat;
(d) of the members of the Council of States and
the members of the Legislative Council of the
State, where they are registered as electors
within
(i) a Panchayat area at the intermediate level, in
Panchayat at the intermediate level;
(ii) A Panchayat area at the district level, in
Panchayat at the district level.
(4) The Chairperson of a Panchayat and other
members of a Panchayat whether or not chosen by direct
election from territorial constituencies in the Panchayat area
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shall have the right to vote in the meetings of the
Panchayats.
(5) The Chairperson of
(a) a Panchayat at the village level shall be elected in
such manner as the Legislature of a State may, by
law, provide; and
(b) a Panchayat at the intermediate level or district
level shall be elected by, and from amongst, the
elected members thereof.”
12. In the present case, we are concerned with an
intermediate level Panchayat. The composition of such
Panchayat can be culled out from Article 243C. Clause (1)
makes it amply clear that the legislature of a State is free to
make a law with respect to the composition of Panchayat
subject to the provisions of PartIX of the Constitution. In the
present case, we are not so much concerned about the
composition of Panchayat, except to notice that clause (2) of
the said Article makes it clear that all the seats in the
Panchayat shall be filled up by persons chosen by direct
election from the territorial constituencies in the Panchayat
area. Clause (3) of the Article is an enabling clause permitting
the legislature of a State to make a law to provide for the
representation of other persons who are not directly elected
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from the territorial constituencies in the Panchayat area.
Clause (4) deals with the right to vote in the meetings of the
chairperson of a Panchayat or other members of the
Panchayat whether or not chosen by direct election from the
territorial constituencies in the Panchayat area. Clause (5)
deals with the manner in which the chairperson of a
Panchayat is elected at the village level, intermediate level or
district level, as the case may be.
13. The chairperson of a Panchayat at intermediate level is
required to be elected by, and from amongst, the elected
members thereof. On a conjoint reading of the provisions
referred to above, it is crystal clear that there is marked
distinction between the member of the Panchayat chosen by
direct election from the territorial constituencies in the
Panchayat area referred to in clause (2) visavis other persons
referred to in subclauses (a) to (d) of clause (3) of Article
243C, who may also represent as per the law made by the
State Legislature. Thus understood, there is little doubt that
the election of chairperson is by the former category of the
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members of the Panchayat, namely, directly elected from the
territorial constituencies in the Panchayat area and one from
amongst them is then elected as a chairperson. Notably, there
is no express provision in the Constitution dealing with the
removal of a chairperson of the Panchayat Samiti.
14. Taking cue from the absence of such a provision in the
Constitution, it was argued by the learned ASG that it being a
case of constitutional silence by interpretative process, the
Court must hold that the MP, not being directly elected from
the territorial constituencies in the Panchayat area and only a
representative in the Panchayat Samiti by virtue of law made
in terms of Article 243C(3), is neither entitled to participate in
a special meeting concerning a ‘No Confidence Motion’ nor
eligible to vote thereat. For, only the body of members directly
elected from the territorial constituencies in the Panchayat
area which had elected the Chairperson/Pramukh, would
alone be competent to vote on a ‘No Confidence Motion’. The
concomitant is that the Member of Parliament (MP), though a
member of the Panchayat Samiti, is not competent to
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participate in the special meeting and vote on a ‘No Confidence
Motion’.
15. This argument is not wholly accurate. In our opinion,
that approach may become necessary only if the legislature of
the State also had chosen to remain silent by not enacting any
law on the subject of removal of the Pramukh or UpPramukh
of the Panchayat Samiti. Indisputably, however, a law on the
said subject is already in place in the form of the Regulation
as also the Rules concerning Panchayat administration. The
Constitution itself enables the State Legislature to make a law
on the subject of composition of Panchayats, including
regarding election of the Pramukh, subject to the provisions
contained in PartIX of the Constitution. The law, as made in
the form of the Regulation, is not the subject matter of
challenge before us either on the ground of being in excess of
legislative competence or transcending the sphere of matters
referred to in PartIX of the Constitution.
16. Concededly, the Regulation as well as the Rules
specifically provided for the subject of motion of no confidence,
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how such motion should be moved and the manner in which it
is required to be carried forward. Section 106 of the Regulation
speaks about the constitution of the Panchayat Samiti. The
composition of the Panchayat Samiti has been predicated in
Section 107. This provision is in four parts. The first clause
[(clause (1)] is a general provision envisaging that every
Panchayat Samiti shall consist of such number of seats as the
administrator may by notification determine. Clause (2)
postulates that the seats in the Panchayat Samiti as
determined shall be filled up by persons chosen by direct
election from the territorial constituencies in the manner
prescribed. Clause (3) refers to the persons who shall also be
represented in the Panchayat Samiti other than the persons
chosen by direct election referred to in clause (2). This clause
(3) is again split in two parts: the first referring to the
proportion of the representation given to the representatives of
the Gram Panchayat in the Panchayat Samiti; and the second
referring to the member of the House of Parliament
representing the Union Territory. As regards the latter, it has
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been explicitly provided that such member shall have the right
to vote in the meeting of the Panchayat Samiti. The fourth
clause is not significant for dealing with the issue on hand.
Section 107 of the Regulation reads thus:
“ (1) Every Panchayat Samiti shall consist of such
107.
number of seats as the Administrator may by notification
determine.
(2) The seats in the Panchayat Samiti shall be filled by
person chosen by direct election from the Territorial
Constituencies in such manner that the ratio between the
population of each constituency and the number of seats
allotted to it shall so far as practicable be the same
throughout the Panchayat Samiti area.
(3) The following persons shall also be represented in the
Panchayat Samiti, namely:
(a) a proportion of the Pradhans of the Gram
Panchayat in the Panchayat Samiti to be
determined by order of the Administrator and
by rotation for such period as may be
prescribed: Provided that while nominating the
Pradhans by rotation the Administrator shall
ensure that as far as possible all the Pradhans
are given the opportunity or being represented
in the Panchayat Samiti atleast once during its
duration: and
(b) the member of the House of Parliament
representing the Union Territory.
Who shall have the right to vote in the
meeting of the Panchayat Samiti.
(4) The provisions of subsections (5),(6),(7) and (8) of section
11 shall so far as may be apply to the Panchayat Samiti as
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they apply to a Gram Panchayat subject to the modification
that for the words ‘Gram Panchayat’ wherever they occur,
the words ‘Panchayat Samiti’ had been substituted.”
(emphasis supplied)
The other relevant provision in the Regulation is Section
17.
112, which deals with election of Pramukh and UpPramukh.
The same reads thus:
“ (1) On the constitution of a Panchayat Samiti for the
112.
first time under this Regulation or on the expiry of the term
of a Panchayat Samiti or on its reconstitution, a meeting
shall be called on the date fixed by the Deputy
Commissioner for the election of the Pramukh and the Up
Pramukh by and from amongst the elected members of the
Panchayat Samiti.
(2) The Deputy Commissioner shall preside at such meeting
but not have the right to vote.
(3) No business other than the election of the Pramukh and
UpPramukh shall be transacted at such meeting.
(4) In case of equality of votes, the result of the election shall
be decided by lots drawn in the presence of the Deputy
Commissioner in such manner as he may determine.
(5) Subject to any general or special order of the
Administrator, the Deputy Commissioner shall reserve.
(a) the number of offices of Pramukhs in the Panchayat
Samitis for the Scheduled Tribes which shall bear as
nearly as may be, the same proportion to the total
number of such offices in the Panchayat Simitis as the
population of the Scheduled Tribes in the area of the
Union Territory to which this Regulation applies bears
to the total population of such area;
(b) not less than onethird of the total number of offices
of Pramukh in the Panchayat Samitis for women;
Provided that the offices reserved under this sub
section shall be allotted by the Election Commission by
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rotation different Panchayat Samitis in such manner as may
be prescribed.”
18. Even this provision seems to be in conformity with the
letter and spirit of Article 243C. On a plain reading of this
provision, it is noticed that the election of the Pramukh and
UpPramukh is “by” the elected members of the Panchayat
Samiti and the one who is elected as such, is “from amongst
them”. Even the expression used in Article 243C(5)(b) is
“elected by, and from amongst, the elected members thereof”.
This dispensation is in consonance with the constitutional
scheme of democratic decentralization and selfGovernment on
the principle of grassroot democracy. In that sense, the other
members of the Panchayat Samiti (other than those chosen by
direct election from the territorial constituencies in the
Panchayat area) referred to in Article 243C(3) have no say in
the matter of electing the Pramukh or UpPramukh of the
Panchayat Samiti, though they may generally have the right to
vote in the meeting of the Panchayat Samiti on other matters.
19. Sections 107 and 112 are a facsimile of Article 243C and
also within the framework provided therein. Although the
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other member(s) who have been given representation in the
Panchayat Samiti have no say in the election of the Pramukh
or UpPramukh of the Panchayat Samiti, it does not follow
that they are not eligible to remain present and vote in the
special meeting regarding the motion of no confidence against
the Pramukh or UpPramukh of the Panchayat Samiti. As
aforementioned, the Constitution is completely silent on the
subject of removal of the Pramukh or the UpPramukh of the
Panchayat Samiti, including regarding the manner in which a
‘Motion of No Confidence’ against them could be moved and
carried forward. That subject has been articulated in the form
of Section 117 of the Regulation, which reads thus:
“ 117 (1) A motion of no confidence may be moved by any
member of a Panchayat Samiti against the Pramukh or the
UpaPramukh after such notice thereof as may be
prescribed.
(2) If the motion is carried by a majority of not less than
two thirds of the total number of members of the
Panchayat Samiti, the Pramukh or Upapramukh, as the
case may be shall cease to hold office after a period of three
days from the date on which the motion is carried unless he
has resigned earlier.
(3) Notwithstanding anything contained in this Regulation,
the Pramukh or UpaPramukh shall not preside over a
meeting in which a motion of no confidence is discuss
22
against him but he shall have the right to speak or
otherwise take part in the proceedings of such meeting.”
(emphasis supplied)
20. Thus, an unambiguous provision has been made in the
Regulation regarding the ‘No Confidence Motion’ against the
Pramukh or UpPramukh of the Panchayat Samiti. The
validity of the said provision is not the subject matter of this
appeal. As a result, we do not wish to dilate on the argument
which may indirectly, if not directly, question the validity of
the provision. Suffice is to observe that we are not dealing
with a case where the Regulation made by the State legislature
is also silent on the subject of motion of no confidence or
removal of Pramukh or UpPramukh of the Panchayat Samiti.
The provision is explicit as to who can move the motion and
the manner in which the same is required to be carried
forward to its logical end. As per this provision, the other
members having representation on the Panchayat Samiti, who
are not directly elected from the territorial constituencies in
the Panchayat area have no right to vote during the election of
the Pramukh or UpPramukh of the Panchayat Samiti, it does
23
not follow that they are not or cease to be members of the
Panchayat Samiti. Whereas, in terms of Section 107 which
specifies the composition of the Panchayat Samiti, they are
plainly recognized as members of the Panchayat Samiti during
the relevant period. Those persons may not be directly elected
from the territorial constituencies in the Panchayat area but
nevertheless, are people’s representatives, being elected as
Pradhans of the concerned Gram Panchayat within the area of
the Panchayat Samiti, or as the Member of the House of
Parliament representing the Union Territory. It would have
been a different matter if Section 117 had constricted the right
to vote on a motion of no confidence only to the members
directly elected from the territorial constituencies in the Gram
Panchayat area, referred to in Section 107(2) of the Regulation.
To put it differently, merely because the law permits only the
directly elected members to vote during the election of
Pramukh, that ipso facto would not follow that the other
members (other than the elected members) of the Panchayat
Samiti are ineligible to vote on a ‘No Confidence Motion’.
24
21. Besides the explicit provisions in the Regulation, even the
statutory Rules make it unstintingly intelligible that the other
(exofficio) member(s) of the Panchayat Samiti can also remain
present and participate in the special meeting to consider a
motion of no confidence against the Pramukh. The stated
Rules are framed in exercise of the power to make rules in
terms of Section 202. Clause (ak) of Section 202 (2) enables
the Administrator to frame rules in respect of the notice for
moving a motion of no confidence against the Pramukh or Up
Pramukh as per Section 117(1) of the Regulation. Further,
clause (al) permits framing of rules regarding the time and
place of meetings of the Panchayat Samitis and the procedure
for such meetings under subsection (1) of Section 121; and
clause (am) deals with the manner in which a member of
Panchayat Samiti may move resolution(s) and put question(s)
to the Pramukh and UpPramukh under subsection (2) of
Section 121. The statutory rules framed under Section 202
expressly provide for the quorum of the meetings of the
25
Panchayat Samiti. Rule 9 as applicable to Panchayat Samiti
reads thus:
“ . The following shall be the quorum required
9. Quorum
for meetings of Gram Sabha, Gram Panchayat, Panchayat
Samiti, Zilla Parishad for the kinds of meetings in each
Panchayat:
xxx xxx xxx xxx xxx
(3) (a)
Panchayat Samiti. Twothirds of the total
membership of a Panchayat Samiti shall be sufficient
quorum for an ordinary meeting of a Panchayat Samiti,
(b) Not less than twothirds of the total membership is
necessary for a special meeting called for the purpose
under subsection (1) of section 117 of the Regulation to
move a motion of no confidence against the Pramukh and
UpPramukh. However, to carry the motion under sub
section (2) of section 117, a majority of not less than two
thirds of the membership of the Panchayat Samiti present
and voting is necessary.
xxx xxx xxx xxx xxx”
(emphasis supplied)
It will be useful to advert to Rule 10, which reads thus:
“ 10. Adjournment of meeting for want of quorum . (1) If,
within one hour from the time appointed for holding a
meeting of a Panchayat quorum is not present, the meeting
may be adjourned and may be held on another date to be
fixed by the Chairperson or the ViceChairperson of the
Presiding member as the case may be. The members shall
be informed of the date, place and time of the adjourned
meeting by a fresh three day's notice in Form2. No quorum
shall be necessary for such adjourned meeting. No business
other than that included in the list of business for
transaction at the original meeting shall be brought before
an adjourned meeting.
26
(2). In determining the quorum, fraction of one half and
above be counted one, and less than half shall be ignored.”
22. Rule 21 specifically deals with the motion of no
confidence against the Pramukh or UpPramukh. The same
reads thus:
“ 21. Pramukh and UpPramukh : (1) A motion of no
confidence against the Pramukh or the UpPramukh may be
moved by any member of a Panchayat Samiti, after giving 7
days notice. The notice shall be in Form 4. The notice shall
be addressed to the Pramukh and shall be delivered to him
and in his absence to the UpPramukh or in the absence of
both, to the Executive Officer. The Pramukh or in his
absence the UpPramukh or in the absence of both, the
Executive Officer shall call a special meeting of the
Panchayat Samiti within 15 days from the date of moving
the notice of no confidence by serving notice to the
Pramukh, UpPramukh and all the members of the
Panchayat Samiti, in Form 1A enclosing therewith a copy
of the no confidence motion moved by the member.
(2) The Pramukh or the UpPramukh shall not preside over
the meeting but shall have a right to speak or otherwise
take part in the proceedings of the meeting. The meeting
shall be presided over by the Pramukh if the motion is
against the UpPramukh and if the motion is against the
Pramukh the meeting will be presided over by the Up
Pramukh. In the absence of both the Pramukh and Up
Pramukh, the members assembled shall elect one from
among themselves to preside over the meeting. A quorum of
not less than twothirds of the total membership of the
Panchayat Samiti is necessary for the meeting. Within
one hour from the appointed time, if there is no quorum,
the no confidence motion shall deemed to have not been
carried and the meeting shall be dissolved. The Executive
Officer shall send the report of the dissolution of the
meeting for want of quorum to the concerned Assistant
Commissioner, the Deputy Commissioner (Director of
27
Panchayat Elections), the Chief Executive Officer of the Zilla
Parishad and also the Secretary (Panchayat) of the
Administration.
(3) If the motion is carried by a majority of
not less than
twothirds of the total membership of the Panchayat
Samiti present and voting, the Pramukh or the Up
Pramukh or both, as the case may be, shall cease to hold
office after a period of three days from the date on which the
motion is carried unless the Pramukh or the UpPramukh
or both, as the case may be, have resigned earlier .”
(emphasis supplied)
To put it differently, the provisions in the Regulation and
23.
the Rules distinctly deal with the manner in which a motion of
‘No Confidence’ should be moved and carried forward to its
logical end. In that sense, the central issue is about the
purport of the mechanism provided in the Regulation and the
Rules on the subject of ‘No Confidence Motion’. From the
legislative scheme it is noticed that as and when the special
meeting to consider the ‘No Confidence Motion’ proceeds,
Section 117(2) mandates that the motion may be treated as
carried out only if a majority of not less than twothirds of the
“total number” of members of the Panchayat Samiti vote in
favour of removal of the Pramukh or UpPramukh, as the case
may be. A similar position is restated in Rule 21 of the Rules.
28
24. Indeed, the provisions in the Regulation do not provide
for the quorum of the special meeting. That is, however,
prescribed in the form of Rule 9. Rule 9(3)(b) stipulates that
twothirds of the “total membership” of a Panchayat Samiti
shall be a sufficient quorum for a special meeting of the
Panchayat Samiti in reference to Section 117(1) of the
Regulation to move a motion of no confidence against the
Pramukh or UpPramukh. Thus, the quorum specified is not
less than twothirds of the “total membership”. The emphasis
is on the expression “total membership”, which includes the
other (exofficio) member(s) referred to in Section 107(3) of the
Regulation having representation on the Panchayat Samiti
and not limited to members chosen by direct election from
territorial constituencies in the Panchayat area as referred to
in Section 107(2) of the Regulation. Thus understood, all
members of the Panchayat Samiti are expected to remain
present and participate in the special meeting and the quorum
of the meeting is to be determined on the basis of “total
number” of members in the Panchayat Samiti.
29
25. The question as to whether the other member(s) (other
than directly elected) who can participate in the special
meeting, have the right to vote on the ‘No Confidence Motion’.
That would depend on the legislative scheme and intent
manifest from the express provisions permitting them to do so.
The usefulness of their presence at such a special meeting, to
consider the motion of no confidence, cannot and need not be
speculated. The governing provisions predicate that the special
meeting must be attended by not less than twothirds of the
“total membership” of the Panchayat Samiti and the ‘No
Confidence Motion’ must be carried out by not less than two
thirds of the “total number” of members of the Panchayat
Samiti present and voting. This is the twin requirement. If so,
the ‘No Confidence Motion’ is required to be considered in the
special meeting of the Panchayat Samiti as a whole and not
limited to members directly elected from the territorial
constituencies in the Panchayat area. Thus understood, the
total membership of the Little Andaman Samiti being six, two
thirds thereof would be four. If the members present at the
30
scheduled place and time of the meeting were only three,
obviously the Executive Officer was justified in dissolving the
meeting for want of quorum.
That takes us to the question as to who can vote on the
26.
‘No Confidence Motion’. Indubitably, the language of Section
117 of the Regulation envisages that the motion is required to
be carried by a majority of not less twothirds of the “total
number” of members of the Panchayat Samiti present and
voting. A similar mandate flows from Rule 9 read with Rule 21
of the Rules. The question is whether the law as enacted in the
form of Section 117 of the Regulation, in any way, deviates
from the scheme of PartIX of the Constitution. Our answer is
an emphatic “NO”. The fact that Article 243C(5)(b) postulates
that the chairperson of the Panchayat Samiti at the
intermediate level shall be elected by, and from amongst, the
elected members thereof, it does not follow that the process of
removal of such chairperson should be limited to voting by the
elected members. The law on the removal of the Pramukh or
UpPramukh by means of ‘No Confidence Motion’ has been
31
enacted by the State Legislature. That permits “all” the
members of the Panchayat Samiti to participate in the
discussion and vote on the motion of no confidence. On
conjoint reading of Section 117, Rule 9(3)(b) and also Rule 21
of the Rules, in our opinion, they, in no way, exclude any
member of the Panchayat Samiti muchless the members
referred to in Section 107(3) of the Regulation. Not even by
necessary implication. Taking any other view would result in
rewriting of the provisions to read as the motion of no
confidence must be carried out by a majority of not less than
twothirds of the total number of “directly elected” members of
the Panchayat Samiti mentioned in Section 107(2), present
and voting. We must presume that the State Legislature was
conscious of the marked distinction between the category of
members constituting the Panchayat Samiti. As is evident
from Section 107(2), it refers to a category of persons chosen
by direct election from the territorial constituencies, in
contradistinction to the other category of persons mentioned
in Section 107(3), the constituent of the Panchayat Samiti. If
32
the legislature had intended to exclude the latter category from
the process of ‘No Confidence Motion’, it would have expressly
limited it to only the elected members [former category
ascribable to Section 107(2)] of the Panchayat Samiti, as is
done at the stage of election of the chairperson. Whereas, the
provision makes it incumbent that not less than twothirds of
the “total number” of members of the Panchayat Samiti must
participate and vote. This is the legislative intent which cannot
be whittled down by some overstretched interpretative process
including by relying on the common law principle that only the
body of persons, who had elected the Pramukh or Up
Pramukh, alone can initiate such a process.
27. The Division Bench of the High Court relied upon the
decision in (supra). In that case, this Court
Ramesh Mehta
was called upon to answer whether, in counting the “whole
number of members” on the Municipal Board in terms of Rule
3(9) of the Rajasthan Municipalities (Motion of Noconfidence
against the Chairman or ViceChairman) Rules, 1974,
“nominated members” have to be taken into consideration.
33
For answering that question, the Court adverted to Article
243R, which deals with the composition of municipalities. The
dispensation prescribed with regard to Panchayats in Article
243C is somewhat different from the one specified in Article
243R for Municipalities. As regards the Panchayats, in terms
of Article 243C(3), only persons referred to in subclauses (a)
to (d) thereof, can represent in the Panchayat Samiti as per the
law made by the State Legislature in that behalf. The category
of persons referred to in the said subclauses are all directly
elected at different levels be it Panchayat or the House of the
People and the members of the legislative assembly of the
State or the Council of States and the members of the
legislative council of the State. Whereas, in the composition of
Municipalities, persons having special knowledge or
experience in municipal administration can also be
nominated, who obviously may not be elected people’s
representatives. The latter, therefore, has been expressly
denuded of a right to vote in the meetings of the
Municipalities, as per the proviso to Article 243R(2). Similar
34
exclusion is not made in respect of the other categories of
members of the Municipality referred to in subclauses (ii) to
(iv) of Article 243R(2)(a). In short, the question considered in
the said case was very specific as to whether the voting rights
of the “nominated members” in a Municipal Board can be
reckoned for computing a majority required for a motion of no
confidence against the Chairman or ViceChairman of the
Board. The Court considered the statutory provisions as
applicable to that case i.e., Section 9 of the Rajasthan
Municipalities Act, 1959, as amended. It then concluded that
there was no indication therein that a right to vote is created
in the “nominated members”. In other words, they cannot
exercise voting rights.
28. In the present case, neither Article 243C nor the
Regulation made by the State Legislature or the Rules framed
thereunder expressly exclude the other members of the
Panchayat Samiti referred to in Section 107(3) of the
Regulation from exercising their vote on a ‘Motion of No
Confidence’. It is a well established position that the right to
35
elect, and including the right to be elected and continue on the
elected post, is a statutory right. Further, the mode and
manner of election to any post could be different from the
scheme for removal of a person from that post, as restated in
paragraph 10 of the same reported decision. It reads thus:
“10. There is no dispute with the proposition that the
right to elect and the right to be elected is a statutory
right and that the mode and manner of election to any
post could be different from the scheme of removal of a
person from that post. xxx xxx xxx”
(emphasis supplied)
The High Court had also adverted to the decision of the
29.
Karnataka High Court in State of Karnataka and Ors.
(supra). Even this decision will be of no avail. For, the High
Court considered the specific provisions contained in the
Karnataka Panchayat Raj Act, 1993 and construed them to
mean that they expressly exclude the right to participate in the
proceedings and vote on a ‘No Confidence Motion’ against the
Adhyaksha or UpAdhyaksha. The observations in the said
decision, therefore, are contextual and in reference to the
express provision in the Karnataka Panchayat Raj Act in the
36
form of Sections 120(2), 140(3), 159(2) and 179(3). As
aforesaid, the provisions in the Regulation under
consideration in no way exclude the MP, muchless expressly,
from participating in the special meeting and vote on the ‘No
Confidence Motion’. As a matter of fact, the provision in the
Regulation under consideration is an inclusive one and
explicitly permits all (total) members to participate in the
special meeting and vote on the ‘No Confidence Motion’ against
the Pramukh or UpPramukh, as the case may be.
30. A priori, the argument of Mr. Lekhi that the
interpretation will offend the principle of ut res magis valeat
quam pereat and make Article 243C(5)(b) unworkable, does
not commend us. As aforesaid, Article 243C makes no
mention about the manner and mode by which the
Chairperson of the Panchayat Samiti can be removed by way
of a ‘No Confidence Motion’. Whereas, the State Legislature
has been empowered to make a law on that subject. As is
noticed from the stated Regulation, the same explicitly deals
with the mechanism for moving a ‘No Confidence Motion’
37
against the Pramukh or UpPramukh, as the case may be; and
more particularly, as per the rules framed under the said
Regulation. The validity of the said provisions has not been
put in issue. In such a situation, the argument regarding
constitutional silence or its efficacy need not detain us. For the
same reason, we do not wish to dilate on the exposition in
Justice K.S. Puttaswamy and Anr. Vs. Union of India and
3
,
Ors. Bhanumati and Ors. Vs. State of Uttar Pradesh
4
through its Principal Secretary and Ors. , Usha Bharti
5
and
Vs. State of Uttar Pradesh and Ors. Delhi Transport
6
Corporation Vs. D.T.C. Mazdoor Congress and Ors.
31. Learned ASG has invited our attention also to the
decision in
Vipulbhai M. Chaudhary Vs. Gujarat
7
Cooperative Milk Marketing Federation Limited and Ors. ,
dealing with the question of permissibility of removal of the
Chairperson/elected office bearers by motion of no confidence.
The exposition in the said decision, that if a person has been
3
(2017) 10 SCC 1 (page 516519)
4
(2010) 12 SCC 1 (para 51)
5
(2014) 7 SCC 663 (para 34)
6
(1991) Supp.(1) SCC 600 (para 255)
7
(2015) 8 SCC 1 (para 20)
38
elected to an office through democratic process and when such
person loses the confidence of the representatives who elected
him, then those representatives should necessarily have a
democratic right to remove such an office bearer in whom they
do not have confidence, will not take the matter any further
in the wake of express provisions contained in the Regulation
of 1994 and the Rules of 1997, to which we have elaborately
adverted hitherto.
32. For the same reason, even the decision in Pratap
Chandra Mehta Vs. State Bar Council of Madhya Pradesh
8
and Ors. , will be of no avail for interpreting or applying the
provisions in the Regulation and the Rules under
consideration. Our attention was also invited to the decision in
Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly
9
and Ors. Emphasis was placed on the observations in
paragraph 4 of this decision. As a matter of fact, the dictum in
this decision would reinforce the view that we have taken, as it
is observed in the said paragraph that a provision in the
8
(2011) 9 SCC 573 (para 22, 26, 46)
9
(1992) 4 SCC 80 (para 4)
39
statute for recall of an elected representative has to be tested
not on general or vague notions but on practical possibility
and electoral feasibility of entrusting the power of recall to a
body which is representative in character and is capable to
projecting the views of the electorate. We have already noted
that the category of persons referred to in Section 107(3) of the
Regulation are also, in one sense, elected representatives
(though not by direct election from territorial constituencies in
the Panchayat area) and, therefore, their participation and
voting on the ‘No Confidence Motion’ has been expressly
permitted by the Regulation and the Rules. That cannot be
undermined on the basis of the common law principle, so long
as the governing statutory provisions are in the field.
33. For the above reasons, we conclude that the Division
Bench committed manifest error in setting aside the decision
nd
of the Executive Officer dated 2 January, 2017 declaring that
the meeting stood dissolved for want of quorum. Instead, we
uphold the said decision of the Executive Officer having held
that the quorum of the special meeting ought to be of not less
40
than twothirds of the “total number of membership of the
Panchayat Samiti” which includes all the members of the
Panchayat Samiti be it directly elected or exofficio members,
as the case may be. So understood, the quorum of the special
meeting has been justly recorded as four members. However,
as only three members had remained present at the scheduled
time and place, the Executive Officer had no option except to
nd
dissolve the meeting convened on 2 January, 2017. For the
same reason, the motion of no confidence against the
appellant, in law, could not have proceeded further.
Resultantly, the follow up action taken against the
34.
appellant, asking him to step down, therefore, also would be
th
non est in law. This Court, vide order dated 15 January,
2018, had made it clear that the consequential election to fill
in the vacancy arisen due to removal of the appellant, would
be subject to the outcome of this petition. Accordingly, we hold
that all steps taken after the order of the Executive Officer
nd
dated 2 January, 2017 be treated as non est in terms of this
order.
41
35. As a result, we allow this appeal, set aside the impugned
judgment and order passed by the High Court in M.A. No.26 of
2017, and instead, we dismiss the writ petition filed by
respondent No.6, and to do complete justice, we direct
restitution of the appellant to the post of Pramukh of the Little
Andaman Panchayat Samiti as his tenure would otherwise
have expired in September, 2020. The District Administration
shall take follow up steps forthwith and ensure compliance of
the directions not later than one week from the date of receipt
of a copy of this order and submit compliance report in the
Registry of this Court.
36. The appeal is allowed in the above terms. No order as to
costs. All pending applications stand disposed of.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Ajay Rastogi)
New Delhi;
May 01, 2019.