Contempt of court - No confidence Motion - sec.28(2) of Panchayat Act - Art.243 C(ii) constitution of India - whether the state has got power to frame No Confidence motion section - High court dismissed the challenge made against No confidence - In appeal raised new point that constitution not empowered the panchayats with No confidence powers - dismissed to file review - High court dismissed the review - in the meanwhile No confidence proceedings completed - In appeal , Apex court granted status quo - contempt petitions filed - Apex court held that State has got power to frame sections sec.28(2) is valid one - dismissed the appeal as well as contempt petitions =
The notice calling for a Motion of No Confidence was
signed by 37 members. The legal requirement under Section 28(2) is
that a motion expressing want of confidence in the Adhyaksh must be
signed by not less than half of the total number of elected members.=
“in view of the provisions of Article 243C(ii) of the Constitution of
India, there being no provision in the Panchayat election for Motion
of No Confidence whether Section 28 of the Panchayatiraj Adhiniyam
would continue to operate in view of Article 243N”.=
“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.
(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 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.”
This Article as well as some others, such as Articles 243-A, 243-
C(5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G, 243-H, 243-I(2), 243-
J, 243-K(2), (4) of the Constitution etc make provision for the State
to enact necessary legislation to implement the provisions in Part IX
of the Constitution of India. Therefore, we are not able to agree with
the submission of Mr. Bhushan that State Legislature will have no
power to make provision for no-confidence motion against the Adhyaksha
of Zila Panchayat.
In view of the observations made in the aforesaid judgments, this
Court would not be justified in holding that the High Court has erred
in law in not reviewing its earlier judgment.
65. This apart, we have examined the entire issue threadbare ourselves as
the issue with regard to the adverse impact on the candidates
belonging to the reserves categories has not been raised before the
High Court nor considered by it. In the earlier round, the issue was
also neither raised nor considered by this Court. When the order dated
19th February, 2013 was passed, the issue with regard to reservation
was also not canvassed. But now that the issue had been raised, we
thought it appropriate to examine the issue to put an end to the
litigation between the parties.
66. In view of the above, the appeal is accordingly dismissed.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41355
SURINDER SINGH NIJJAR, FAKKIR MOHAMED IBRAHIM KALIFULLA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
Usha Bharti …Appellant
VERSUS
State of U.P. & Ors. ...Respondents
WITH
CONTEMPT PETITION (C) No. 287 of 2013
IN
CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
WITH
CIVIL APPEAL NO……………OF 2014
(Arising out of SLP(C) No.29740 of 2013)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These appeals are directed against the judgment and order passed by
the High Court of Judicature at Allahabad (Lucknow Bench) in Review
Petition No.103 of 2013 on 4th July, 2013 dismissing the review
petition filed by the appellant.
3. Since the issues raised in these appeals are pristinely legal, it
would not be necessary to make a detailed reference to the facts,
leading to the filing of the present appeals. Even otherwise, the
High Court in the impugned judgment has made an elaborate survey of
the facts. Therefore, it is unnecessary to repeat the same. However,
the foundational facts for challenging the impugned judgment of the
High Court are recapitulated for ready reference.
4. The appellant successfully contested the election held in October,
2010 for becoming a Member of the Zila Panchayat, Sitapur, U.P. 62
candidates were elected as the Members of the Zila Panchayat including
the appellant and respondents 5 to 37. On 12th December, 2010, the
appellant was elected as Adhyaksh of the Zila Panchayat, Sitapur. On
30th October, 2012, a notice of proposed Motion of No Confidence was
given to the Collector, Sitapur for calling a meeting under Section 28
of the U.P. Kshettra Panchayat & Zila Panchayat Act, 1961 (for short
‘the Act’). The notice calling for a Motion of No Confidence was
signed by 37 members. The legal requirement under Section 28(2) is
that a motion expressing want of confidence in the Adhyaksh must be
signed by not less than half of the total number of elected members.
On 31st October, 2012, the Collector, Sitapur issued a notice
informing the elected members that a meeting for considering the
Motion of No Confidence will be held on 23rd November, 2012.
5. Aggrieved by the issuance of said notice, the appellant filed Writ
Petition No.9654 of 2012 on various grounds alleging that the motion
for no confidence has been done with an ulterior motive to usurp the
office of the appellant. It was alleged that atleast three members
whose names were mentioned in the Motion for No Confidence had not
signed the motion/notice requesting the Collector to call a meeting.
The appellant made the following prayers in the writ petition :-
“(i) Issue an appropriate writ, order or direction in the
nature of certiorari quashing the impugned notice of intent
to bring no-confidence motion against the petitioner;
(ii) Issue a writ, order or direction or writ in the nature of
certiorari quashing the notice dated 31st October, 2012,
issued by respondent No.3, as contained in Annexure No.1 to
the writ petition.
(iii) Issue a writ, order or direction or writ in the
nature of mandamus directing the respondent No.3 to verify
the genuineness of the signature of the member’s on the
notice to bring motion against the petition dated 30th
October, 2012,
(iv) Issue a writ, order or direction or writ in the
nature of mandamus commanding the opposite parties to let
the petitioner to continue on the office of Adhyaksha, Zila
Panchayat Sitapur of Tehsil & District Sitapur.
(v) Issues an ad-interim mandamus to the above effect.
(vi) Issue any other appropriate writ, order or direction in
favour of the petitioner as the Hon’ble Court may deem fit
in the circumstances of the case.
And
(vii) Award the costs of the petition to the petitioner.”
6. The High Court on 21st November, 2012 directed the District Judge or
any Additional District Judge nominated by him to hold an enquiry to
ascertain genuineness of the affidavits and signatures of members and
to submit a report thereon before the next date of hearing. It was
also directed that further proceedings of “No Confidence Motion” shall
remain in abeyance. The matter was to be listed on 20th December,
2012. The report was duly submitted, which indicated that 33 Members
had admitted their signatures appearing on the notice, and the
affidavits, submitted in connection with the motion of no confidence.
It was also stated that “among those members, in respect of whom
signatures and affidavits were doubted, the report of Deputy Director
(Pralekh) mentions that Zila Panchayat Member Mr. Vijay Kumar has also
proved to have been signed and submitted the notice and the affidavit.
Accordingly, 34 Zila Panchayat Members are found to have applied for
bringing in the motion of no confidence.” Taking note of the aforesaid
report, the High Court dismissed the writ petition with the following
observations:
“As the requirement of valid signature for carrying out the No
Confidence Motion is only 31, whereas in the enquiry report it
has been found to be 34, now nothing would survive in this writ
petition. Hence, it is dismissed.”
7. On 6th February, 2013, the Collector, Sitapur issued notice fixing
22nd February, 2013 for consideration of the Motion of No Confidence.
8. Aggrieved by the judgment of the High Court dated 5th February, 2013,
the appellant moved this Court through S.L.P.(C) No.8542 of 2013.
9. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant
submitted that the High Court had wrongly relied upon the report
submitted by the Additional District Judge without giving the
appellant any opportunity to submit any objection to the report. This
apart, in view of the provisions contained in Article 243C(2)of the
Constitution of India, no provision has been made for No Confidence
Motion in Panchayat elections. It was submitted by Mr. Shanti Bhushan
that the aforesaid issues with regard to the applicability of scope
and ambit of Article 243 of the Constitution of India, even though
specifically raised the writ petition and argued before the High Court
have neither been noticed nor considered. Taking note of the aforesaid
submissions, this Court passed the following order :-
“If that be so, in our opinion, the remedy of the petitioner
would be to seek review of the judgment of the High Court rather
than to challenge the same by way of this special leave
petition.”
10. The prayer made by Mr. Shanti Bhushan that the operation of the
impugned order be stayed for two weeks to enable the appellant to
approach the High Court by way of review petition was declined. It
was, however, made clear that the result of the meeting, which was
scheduled to be held on 22nd February, 2013, shall not be declared for
a further period of two weeks.
11. Thereafter, the petitioner filed Review Petition No.
103 of 2013 before the High Court. The appellant stated that members
owning allegiance to the Samajwadi Party led by Smt. Madhu Gupta, W/o
Shri Hari Om Gupta – Respondent No.5, were not able to muster any
signature for the initiation of the Motion and, therefore, appended
forged signature of several Members on the notice of intent to move
the Motion of No Confidence. These forged signatures were used by the
Samajwadi Party to induce other Members to join for giving the notice
for moving the Motion of No Confidence. It was stated that the very
initiation of the Motion was a fraud on the system and against the
settled democratic principles. The act of forgery of signatures was
committed on the instance of Respondent No. 5 and her supporters.
Therefore, the initiation of Motion of No Confidence was invalid and
illegal. The appellant pointed out that in the earlier writ petition,
it was specifically pleaded that in terms of Article 243N, the
provision of Section 28 have been rendered otiose. The provision
contained in Section 28 of the Act, being inconsistent with the
constitutional scheme, which does not comprehend the removal of
Adhyaksh of Zila Panchayat, mid term and as such, the Motion otherwise
also could not be permitted to be carried. It was further stated that
“in view of the provisions of Article 243C(ii) of the Constitution of
India, there being no provision in the Panchayat election for Motion
of No Confidence whether Section 28 of the Panchayatiraj Adhiniyam
would continue to operate in view of Article 243N”.
12. Upon completion of the pleadings, the High Court by an elaborate
judgment has dismissed the Review Petition by the impugned order dated
4th July, 2013. On 10th July, 2013, the District Magistrate, Sitapur
fixed a meeting for counting of votes on 12th July, 2013. Aggrieved
by the judgment of the High Court, the appellant filed SLP in this
Court on 11th July, 2013. The matter was mentioned in Court at 10.30
A.M. before the Chief Justice of India. A direction was issued by the
Chief Justice of India to the Registry to place the matter before this
bench at the end of the list. In the meantime, No Confidence Motion
was passed against the appellant with 33 votes in favour of the No
Confidence Motion and 23 against with 6 votes being declared invalid.
The counting was supervised by the Civil Judge, Sitapur. The
representative of the petitioner/appellant was present and had stated
that he is satisfied with the counting of votes. There has been no
challenge to the result of the No Confidence Motion, with regard to
the counting of votes. On 12th July, 2013, at about 12.15 P.M., this
Court issued notice and directed that “in the meanwhile, status quo,
as it exists today, shall be maintained”. Since Respondent No.5 had
filed a caveat on 11th July, 2013 at about 11.00 A.M. and no notice
had been given to her before hearing the Special Leave Petition, she
filed an application seeking recall of the aforesaid order dated 12th
July, 2013. It was claimed that Respondent No. 5 sought recall on the
following grounds:-
(i) No notice was given to Respondent before hearing and
passing Order dated 12.07.2013.
(ii) Counting of votes was already done and the no confidence
Order was passed well before passing the Order dated
12.07.2013 by this Hon’ble Court.
(iii) Present SLP is not maintainable as per the settled law
laid down by this Hon’ble Court namely that an SLP is not
maintainable against the dismissal of review filed before
the HC after dismissal of SLP.
(iv) In any case the SLP is also not maintainable as the issue
raised in the SLP is already covered by the judgment of
this Hon’ble Court in Bhanumati and Ors. V. State of U.P. &
Ors. reported in 2010 (12) SCC 1.
13. Whilst the matter was pending, on 23rd July, 2013, the petitioner
filed Contempt Petition No. 287 of 2013 for violating the orders of
this Court dated 12th July, 2013. It is stated that Respondent No.5
admittedly made false statement in the application to recall the order
dated 12th July, 2013. The order of this Court was communicated
whilst the meeting for counting of votes was still in progress. The
appellant states that one of the newspapers “Amar Ujala” has reported
that the result had been declared at 1.15 P.M.
14. Respondent No. 5 was impleaded as Respondent No. 4 in the aforesaid
Contempt Petition. However, notice of contempt was issued only
against official Respondent Nos. 1, 2 and 3. I.A. No. 8 was filed on
18th November, 2013 pointing out that in spite of No Confidence
Motion having been passed, the appellant has continued to take policy
decisions which were not only prejudicial to public interest but would
also create several problems for Zila Panchayat, in case the present
appeal is dismissed. The aforesaid application came up for hearing on
19th November, 2013. It was pointed out on behalf of Respondent No. 5
that the appellant had issued a Notice of Meeting on 8th November,
2013 of the meeting of the Zila Panchayat, Sitapur to be held on
20th November, 2013 at 11.30 A.M. to take decision on Subject Nos. 1
to 16 enumerated in Annexure A3 to the Interlocutory Application.
15. On the other hand, it was submitted on behalf of the appellant that
the notice merely indicates the subjects on which decisions are
required to be taken for the development work within the Zila
Panchayat. It was submitted that the appellant ought to be permitted
to take necessary decisions. However, during the course of
deliberations, Mr. Shanti Bhushan had very fairly submitted that the
appellant will voluntarily not preside over the aforesaid meeting,
rather the Collector may be requested to chair the meeting. A
direction was, therefore, issued that the District Magistrate, Sitapur
would chair the meeting on 8th November, 2013. It was made clear that
the issuance of the aforesaid direction will not in any manner
vary/alter the status quo order passed by this Court on 12th July,
2013, which was directed to continue. Submissions of the parties in
the appeal were heard on 3rd December, 2013, 5th December, 2013 and
11th December, 2013 when the judgment was reserved.
16. Very detailed and elaborate submissions have been made by the learned
counsel for the parties, which can be briefly summed up as follows:-
(i) At the outset, Dr. Rajiv Dhawan submitted that the Special
Leave Petition is not maintainable as it is directed only
against the judgment rendered by the High Court in Review
Petition No. 103 of 2013. In support of the submissions,
learned senior counsel relied on judgments of this Court in
State of Assam Vs. Ripa Sarma[1] and Suseel Finance &
Leasing Co. Vs. M. Lata & Ors.[2]. Dr. Dhawan also
submitted that even otherwise, the SLP deserves to be
dismissed as the matter is squarely covered against the
petitioner/appellant by the judgment of this Court in
Bhanumati & Ors. Vs. State of Uttar Pradesh through its
Principal Secretary & Ors.[3] Relying on the aforesaid
judgment, it was submitted by Dr. Dhawan that the
petitioner can not even be heard on the proposition that
Section 28 of the Act is inconsistent with Part IX of the
Constitution. Mr. Ashok Desai, learned senior counsel also
submitted that in view of the law laid down in Bhanumati &
Ors. (supra), the issue raised herein is no longer res
integra. Learned senior counsel also submitted that the
SLP against the judgment of the High Court rendered in the
Review Petition would not be maintainable without
challenging the judgment which was sought to be reviewed.
(ii) Mr. Shanti Bhushan has submitted that the issue raised in
the present appeal is of vital importance, i.e., whether
Section 28 of the Act, which provides for bringing No
Confidence Motion against the Chairman of Zila Panchayat is
valid in so far as it is inconsistent with Part IX of the
Constitution of India. Therefore, this Court will have to
determine whether the impugned provision falls within the
legislative competence of the State Legislature. The Court
will also have to decide as to whether the impugned
provision is inconsistent with Article 243N of the
Constitution of India?
(iii) It is submitted by the learned senior counsel that the
provision of No Confidence Motion for removing the Chairman
or Adhyaksha of Zila Panchayat is inconsistent with Part IX
of the Constitution. He submits that Part IX of the
Constitution containing Articles 243A to 243O were inserted
wide the Constitution (73rd Amendment Act, 1992) w.e.f.
24th April, 1993. The aforesaid articles have laid down
exhaustive provisions for self-governance at Panchayat
level. This includes election of Panchayat Members and its
Chairman as well as their disqualification. However, no
provision is made for bringing a No Confidence Motion
against the Chairperson of Panchayat. Article 243C(v)
provides that the Chairperson of a Panchayat at the village
level shall be elected in such a manner as the Legislature
of a State may, by law, provide. Article 243F provides
that Panchayat can make law for disqualification of
Panchayat Members. Sections 18, 19 and 29 of the Act,
which provides for composition of Zila Panchayat, election
of Adhyaksha and removal of Adhyaksha respectively are in
consonance with the aforesaid Articles of the Constitution
of India. Section 19 of the aforesaid Act provides for
election of Adhyaksha by elected members of the Zila
Panchayat from amongst themselves. Section 29(1) of the
Act enumerates the grounds for removal of Adhyaksha but
does not include the provision for bringing a Motion of No
Confidence against the Chairman.
(iv) Learned senior counsel further submitted that the
provision contained in Section 28(1) of the Act is
repugnant to Part IX of the Constitution. Mr. Shanti
Bhushan submits that in any event, the provisions contained
in Section 28 of the Act could not have continued after
expiry of one year of the enactment of the 73rd Amendment
of the Constitution of India, which came into effect from
24th April, 1993. Such continuance would be inconsistent
with the provisions contained in Article 243N of the
Constitution of India.
(v) Learned senior counsel further submitted that Article 243D
for the first time introduced reservation of seats for
Scheduled Castes, Scheduled Tribes as well as ladies both
in the election of members of Panchayat as well as for the
office of Chairperson. It is submitted that the provision
of “No Confidence” like Section 28 of the Act can frustrate
the provision for such reservation. SC, ST and ladies
always being in minority in Panchayat, a Chairperson from
the reserved category can easily be removed from the said
office by majority of general category Panchayat members.
Such a result was not envisaged by the provisions contained
in Article 243D. It is further submitted that Part IX of
the Constitution has exhaustively specified the areas for
which a State Legislature, as local self-governance falls
in the State List, can make laws in order to have complete
decentralization of the governance. This, according to the
learned senior counsel was the main objective of the 73rd
Amendment Act which does not provide for any law to be made
by the State Legislature for bringing a No Confidence
Motion against the Chairperson/Adhyaksha/Zila Panchayat.
(vi) According to Mr. Bhushan, if there had been no existing
provision for No Confidence like Section 28 in the Act,
then after 73rd amendment in the Constitution, the State
Legislature could not have brought such a provision as it
is not competent to do so. The provision, according to Mr.
Bhushan, is likely to be struck down as the powers vested
in the elected body are sought to be taken over and vested
in the executive, which would be opposed to the basic
structure of the Constitution of India. Mr. Bhushan
emphasized that by permitting the provisions in Section 28
to continue, the State Legislature and Executive are trying
to deprive the elected representatives of their fundamental
rights enshrined in Part III and Part IX of the
Constitution of India. Relying on the judgment of this
Court in I.R. Coelho Vs. Union of India[4]. He has
submitted that fundamental rights include within itself the
right to choose. The aforesaid right to choose would
continue till the tenure of the representative of the
people for which he has been elected is exhausted. The
provision in Section 28 permits such tenure to be
curtailed, which would infringe the fundamental right of
the voters that elected such a member. Giving numerous
examples from different Articles of the Constitution of
India, it is submitted that provision of No Confidence
Motion has been specifically provided wherever it was
intended. As example, he points out Articles 67(b), 90(c),
94(c) providing for No Confidence Motion for the removal of
Vice President, Deputy Chairman of the Council of States
and the Speaker or Deputy Speaker of the House of people
respectively. He also points out that there are
offices/posts in the Constitution, which are filled up
through a process of election but the persons so elected
can not be removed by way of moving a Motion for No
Confidence. For example, he relies on Article 80(4),
81(1)(a) and Article 54. Therefore, Rajya Sabha Members,
Lok Sabha Members and President of India can not be removed
by moving a Motion for No Confidence. Mr. Bhushan submits
that the question here is as to whether the No Confidence
provisions contained in the Act can continue after the
amendment of the Constitution. A provision for moving a
Motion for No Confidence is in other words the right to
recall of an elected member by the voters. The
Constitution may or may not provide for moving a Motion for
No Confidence. He submitted that provision for moving the
Motion for No Confidence is not necessarily part of
democracy. In fact, right to recall an elected member has
not been legally recognized. In support of this
submission, he makes a reference to Article 243N read with
Article 243(c)(iv) and (v) and in particular, sub-clause
5(b). He further submits that the reservation was
introduced for the first time by 73rd amendment, which
incorporated Article 243 in the Constitution of India
w.e.f. 24th April, 1993. He, thereafter, outlined the
various provisions for reservation of seats as contained in
Article 243D. It is emphasized that the provision
contained in Article 243D(ii) makes it mandatory that not
less than one third of the total number of seats reserved
under Clause 1 shall be reserved for ladies belonging to
the Scheduled Castes or as the case may be, the Scheduled
Tribes. Articles 243F(1)(a) and Article 243F(1)(b) which
correspond to Article 102 and 103 provides for
disqualification for being chosen as, and for being a
member of a Panchayat. Mr. Bhushan submitted that the
Constitution provides for removal and consequential
disqualification. This would not apply to a vote of No
Confidence. This would tantamount to giving the voters a
right to recall which does not exist in law in so far as
Panchayat Adhyaksha is concerned. Learned senior counsel
further submitted that Article 243 makes provision for
reservation, to advance the aim of our Constitution for the
upliftment of the poor sections of the society. Therefore,
the Parliament has taken extra care to ensure that such
members of the weaker society once elected should not be
removed by the strongest segment of the society by bringing
a Motion of No Confidence. He reiterated that wherever it
was felt necessary, the Parliament had provided for moving
a Motion of No Confidence. He has made a specific
reference to Articles 89, 90, 93, 94(c), 80(iv), 81, 54,
61, 66 and 67(b).
(vii) In support of the submission that Section 28 of the Act is
repugnant to Part IX of the Constitution of India, in
particular, Article 243N. The learned senior counsel
relied on a number of judgments of this Court:-
Deep Chand Vs. State of U.P.[5], Zaverbhai Amaidas Vs.
State of Bombay[6], N. Bhargawan Pillai Vs. State of
Kerala[7], State of U.P. Vs. Synthetics and Chemicals
Ltd.[8], Babu Parasu Kaikadi Vs. Babu[9], Nirmaljeet Kaur
Vs. State of M.P.[10], Zee Telefilms Ltd. Vs. Union of
India[11], Board of Control for Cricket in India Vs. Netaji
Cricket Club[12]
(viii) Learned senior counsel then submitted that the
judgment in Bhanumati & Ors. (supra) is per incuriam as the
issue with regard to the reservation had not been
considered at all. The judgment also does not consider the
provisions where specifically Motion for No Confidence has
not been provided. It is also submitted that most of the
judgment is obiter. In fact, Mr. Bhushan submitted that
the judgment is a treatise in law and should be given the
same status.
(ix) Mr. Bhushan then addressed us on the issue as to whether
the SLP would be maintainable against the judgment rendered
in review without challenging the judgment of which the
review was sought. The learned senior counsel submitted
that firstly the petitioner had challenged the main writ
petition by way of SLP No. 8542 of 2013. The same was
disposed of with opportunity to file review petition before
the High Court after noticing the objections raised by the
petitioner, which were not considered by the High Court.
The earlier judgment of the High Court in the writ petition
clearly merged in the judgment of the High Court dismissing
the review petition. Therefore, it was necessary only, in
the peculiar facts of this case, to challenge only the
judgment of the High Court in the review petition. It is
submitted by Mr. Shanti Bhushan that Section 114 of the CPC
contains no limits on the circumstances under which the
Court can review its own judgment. The section merely
states that the person aggrieved may apply for a review of
judgment to the Court, which passed the decree or made the
order, and the Court may make such order on it as it thinks
fit. So far as the High Court is concerned, it would have
inherent powers to review any decision.
(x) Learned senior counsel elaborated that Section 114 CPC
gives full powers to the Court to pass any order in the
interest of justice. It can not be curtailed by the Rules
made by the High Court or the Supreme Court. These Rules
can be amended by the High Court or the Supreme Court but
Section 114 can only be amended by the Parliament. He
points out that Section 121 and 122, which permits the High
Court to make their own rules on the procedure to be
followed in the High Court as well as in the Civil Court
subject to their superintendence. Learned senior counsel
further submitted that even Order 47 Rule 1 does not
curtail the power to review which is untrammeled.
According to Mr. Bhushan, Section 114 is incorporated in
Order 47 Rule 1 as it provides that review can be made by
the Courts either on facts as well as on law. The Court
has a power to rehear the entire matter in order to do
complete justice between the parties. Mr.
Bhushan further pointed out that Section 151 CPC is also
part of the same scheme to do complete justice between the
parties. It is emphasized that the powers of the Courts
have not been curtailed by the Code of Civil Procedure. In
fact, it is well known that the provisions of Code of Civil
Procedure are a hand maiden to justice. He, therefore,
submitted that full play should be given to the expression
“or for any other sufficient reason” to ensure that the
Court can do complete justice. The principle of Ejusdem
Generis should not be applied for interpreting these
provisions. Learned senior counsel relied on Board of
Cricket Control (supra). He relied on Paragraphs 89, 90
and 91. learned senior counsel also relied on S. Nagaraj &
Ors. Vs. State of Karnataka & Anr.[13] He submits finally
that all these judgments show that justice is above all.
Therefore, no constraints can be put on the power to review
of the Court. Mr. Bhushan also relied on Green View Tea &
Industries Vs. Collector, Golaghat, Assam & Anr.[14]
(xi) Mr. Bhushan has submitted that grounds for challenging the
theories of the Act of the anvil of Article 243 or will be
read into Prayers 1and 2(i) wherein a specific declaration
is sought that the provision is ultra vires to the
Constitution of India. Mr. Bhushan then referred to
Article 243N. He reiterated that the provision in Section
28 ceased to exist after one year. Therefore, it was not
necessary to plead as Section 28 would ipso facto be
rendered unconstitutional. He reiterated on the basis of
Paragraphs 20 and 21 that necessary averments have been
made that provision for No Confidence Motion is not
provided for in Part IX of the Constitution of India.
Therefore, if Paragraph 28 and Paragraph 31 are read with
Ground F, it would clearly indicate that the removal under
the Act can only be under Section 29 which does not provide
for moving a Motion for No Confidence.
(xii) Coming back to the submission that Section 28 is
inconsistent with Part IX of the Constitution of India, he
submits that Part IX is a complete code in relation to
Panchayats. Therefore, State Legislature can not make a
provision inconsistent to Part IX. Similar power has been
reserved for the Stated Legislature as exceptions as
enumerated in Articles 243a, 243C(iv) & (v). He further
submitted that Article 243f, 243G and 243H only give
limited powers to the State Legislature. This clearly show
that Part IX is a complete code. Therefore, unless power
is specifically conferred on the State Legislature, it
would not be competent to legislate on matters which are
specifically dealt with in Part IX. He also refers to
Articles 243I (ii), (iii) & (iv), J(iv) and K to emphasise
that even in these Articles no provision existed for moving
a Motion for No Confidence. Finally, it is submitted by
Mr. Shanti Bhushan that since the issues raised in the
appeal entail interpretation of the provisions of the
Constitution of India, the matter needs to be referred to
at-least five judges.
(xiii) Mr. Ashok Desai, learned senior counsel appearing
for Respondent No. 5 has submitted that admittedly the
petitioner does not enjoy the confidence of the majority of
the members of the Panchayat. She has not even challenged
the result of the No Confidence vote. He has given an
elaborate explanation of all the proceedings, which we have
recounted earlier.
(xiv) Countering the submissions of Mr. Shanti Bhushan that the
Petitioner belongs to the Scheduled Casts, therefore, she
is entitled to special protection, Mr. Ashok Desai has
submitted that this issue was not raised in the writ
petition or even in the review petition and is sought to be
raised for the first time before this Court. He further
pointed out that the petitioner did not contest the
election of Adhyaksha as a member of Scheduled Castes but
as a lady candidate for whom the seat was reserved. He
further submitted that the present case is, in any event,
squarely covered by the judgment of this Court in Bhanumati
& Ors. (supra). Therefore, there is no need for embarking
on a fresh reconsideration of all the issues. He has
submitted that the submission of Mr. Shanti Bhushan that
the earlier judgment was confined to the amendment of
Section 28 and not the original statute is a result of
misreading of judgment. The judgment of this Court in
Bhanumati & Ors. (supra) clearly applies in the facts and
circumstances of this case and, therefore, the Special
Leave Petition deserves to be dismissed. Learned senior
counsel elaborated that the submission with regard to
Section 28 of the Act being inconsistent with Part IX of
the Constitution deserves to be rejected outright. This
submission can only be considered on the basis of precise
pleadings in the present case. Except for making a
statement that the provision in the act is inconsistent
with Part IX of the Constitution, no other reasons are
given.
(xv) This apart, Section 28 can not be said to be contrary to
the foundational principles of democracy. These provisions
are referring to Sections 17, 18, 21 and 28 of the Act.
The learned senior counsel submitted that the aforesaid
provisions are to ensure that the Adhyaksha always enjoys
confidence of the constituency while in power during the
term for which such a person is elected.
(xvi) Mr. P.N. Mishra appearing for Respondent No.1 to 4
submitted that the Special Leave Petition deserves to be
dismissed on the short ground that it is filed only against
the judgment rendered by the High Court in review petition.
He has relied on judgment of this Court in Shanker Motiram
Nale Vs. Shiolalsing Gannusing Rajput[15]. He also relied
on an unreported judgment in Sandhya Educational Society &
Anr. Vs. Union of India & Ors. [SLP(C) No. 2429 of 2012] to
the same effect. He submitted that the powers of review
would not permit this Court to reopen the entire issue and
to rehear the entire matter on merits. The review is
limited to the provision contained in Section 114 CPC read
with Order 47 Rule 1. He submits that under this
provision, review is limited only to circumstances where
review is sought on discovery of new and important matter;
or where evidence could not be produced in spite of
exercise of due diligence or on account of some mistake or
error apparent on the face of the record. He submits that
the expression “or for any other sufficient reason” would
not permit the Court to reopen the entire issue, which has
already been judicially determined. This apart, according
to the learned counsel, the petitioner has failed to show
that injustice has been done to her in the face of the fact
that majority of the members of her constituency have voted
in favour of the No Confidence Motion. Learned senior
counsel further submitted that it is a matter of record
that the No Confidence Motion was not challenged on merits.
Therefore, the SLP deserves to be dismissed.
(xvii) Mr. Shanti Bhushan in reply submitted that these
submissions of Mr. Ashok Desai and Mr. Mishra are
fallacious as no Act of Parliament can interfere with the
powers of this Court under Article 136. In the event, this
Court holds that SLP is only against the judgment of review
and is not maintainable, it would tantamount to amending
Article 136 of the Constitution of India. The learned
senior counsel submitted that the discretion of this Court
cannot be whittled down let alone taken away as suggested
by the learned senior counsel appearing for the
respondents. Even on facts, Mr. Bhushan submitted that the
main judgment was challenged. In the judgment relied upon
by Mr. Mishra in State of Assam Vs. Ripa Sarma (supra), the
impugned judgment had not been challenged. Therefore, this
Court said that no SLP would be maintainable only against
the judgment of the High Court rendered in a review
petition, without challenging the main judgment. He
reiterated that the judgment in Bhanumati & Ors. (supra) is
mostly “obiter”. It is also per incuriam as reservation for
Scheduled Castes and Scheduled Tribes had not been taken
into consideration.
17. We have considered the submissions made by the learned counsel for the
parties.
18. We are not able to accept the submission of Mr. Shanti
Bhushan that the provision contained in Section 28 of the Act are, in
any manner, inconsistent with the provisions contained in Part IX, in
particular, Article 243N of the Constitution of India.
19. Section 19 of the Act provides that in every Zila Panchayat, an
Adhyaksha shall be elected by the elected members of the Zila
Panchayat through amongst themselves. Section 19-A was introduced by
U. P. Act No.9 of 1994 providing for reservation of the offices of
Adhyaksha, for persons belonging to Scheduled Casts and Scheduled
Tribes and the Backward Classes. It is, however, provided that the
number of offices of Adhyaksha, so reserved, shall bear, as nearly as
may be the same proportion to the total number of such offices in the
State as the population of the Scheduled Castes, Scheduled Tribes and
the Backward Classes in the State, bears to the total population of
the State. The Section even provides that the offices so reserved
shall be allotted by rotation to different Zila Panchayats in the
State in such manner as may be prescribed by the State Government. But
the reservation for the Backward Classes shall not exceed 27% of the
total number of offices of the Adhyakshas in the State. Section 19-
A(2) is important in the present context which provides that “not less
than one-third of the offices shall be reserved for the ladies
belonging to the Scheduled Castes, Scheduled Tribes or the Backward
Classes as the case may be.” Under this Section, on a seat reserved
for the aforesaid categories of Scheduled Castes, Scheduled Tribes and
the Backward Classes, a person belonging to that category would be
elected from a particular Panchayat in which reservation is made on
the basis of the roster provided in Section 19-A(3). Section 20 of the
Act provides that a Zila Panchayat shall continue for five years from
the date appointed for its first meeting and no longer. It is also
provided that Section 20(2) that the term of office of a member of a
Zila Panchayat shall expire with the term of Zila Panchayat unless
otherwise determined under the provisions of the Act. Section 21
provides that save as otherwise provided in this Act, the term of
office of the Adhyaksha shall commence on his election and with the
term of Zila Panchayat. Section 23 provides for disqualification for
corrupt practices, which is not applicable in the present case.
Section 24 provides for resignation of Adhyaksha, again not applicable
in the present case. Section 25 relates to filing of casual vacancy,
again not applicable in this case. Section 26 provides for
disqualification for being a member or an Adhyaksha in case a person
has incurred any disqualification for being elected as a member of the
Panchayat.
20. The whole debate in this case centres around Section 28, which
provides for a Motion of No Confidence in Adhyaksha. The section
provides detailed procedure with regard to the issuance of written
notice of intent to make the motion, in such form as may be
prescribed, signed by not less than one-half of the total number of
the elected members of the Zila Panchayat for the time being. Such
notice together with the copy of the proposed motion has to be
delivered to the Collector having jurisdiction over the Zila
Panchayat. Therefore, the Collector shall convene a meeting of the
Zila Panchayat for consideration of the motion on a date appointed by
him which shall not be later than 30 days the date from which the
notice was delivered to him. The Collector is required to give a
notice to the elected members of not less than 15 days of such meeting
in the manner prescribed. The meeting has to be presided over by the
District Judge or a Civil Judicial Officer not below the rank of a
Civil Judge. Interestingly, the debate on the motion cannot be
adjourned by virtue of provisions contained in Section 28(7). Sub-
section (8) further provides that the debate on the No Confidence
Motion shall automatically terminate on the expiration of 2 hours from
the time appointed for the commencement of the meeting, if it is not
concluded earlier. Either at the end of 2 hours or earlier, the motion
has to be put to vote. Further more, the Presiding Officer would be
either District Judge or a Judicial Officer is not permitted to speak
on the merits of the motion, and also not entitled to vote. Sub-
section (11) provides that “if the motion is carried with the support
of (more than half) of the total number of (elected members) of the
Zila Panchayat for the time being”. In our opinion, the aforesaid
provision contained in Section 28 is, in no manner, inconsistent with
the provisions contained in Article 243N. To accept the submission of
Mr. Bhushan of inconsistency would be contrary to the fundamental
right of democracy that those who elect can also remove elected person
by expressing No Confidence Motion for the elected person.
Undoubtedly, such No Confidence Motion can only be passed upon
observing the procedure prescribed under the relevant statute, in the
present case the Act.
21. We are unable to accept the submission of Mr. Bhushan that
removal of Adhyaksha can only be on the grounds of misconduct as
provided under Section 29 of the Act. The aforesaid Section provides
that a procedure for removing an Adhyaksha who is found guilty of
misconduct in the discharge of his/her duties. This Section, in no
manner, either overrides the provisions contained in Section 28 or is
in conflict with the same.
22. We also do not agree with the submission of Mr. Bhushan that Section
28 could not have continued after expiry of one year of the enactment
of 73rd Amendment of the Constitution of India, which came into effect
on 24th April, 1993. Such an eventuality would have
arisen only in case it was found that Section 28 is inconsistent with
any provision of Part IX of the Constitution. Merely because Article
243F is silent with regard to the removal of an Adhyaksha on the basis
of a Motion of No Confidence would not render the provision
inconsistent with the Article 243 of the Constitution of India.
23. We also do not find any merit in the submission of Mr. Bhushan that
the petitioner being a Scheduled Caste Lady cannot be removed through
a vote of No Confidence. We do not find any merit that the provisions
contained in Section 28 would frustrate the provisions for reservation
for Scheduled Caste Ladies. Even if an Adhyaksha belonging to one of
the reserved categories, Scheduled Castes, Scheduled Tribes and other
Backward Classes is removed on the basis of the vote of No Confidence,
she can only be replaced by a candidate belonging to one of the
reserved categories. Therefore, the submission of Mr. Shanti
Bhushan seems to be focused only on the petitioner, in particular, and
not on the candidates elected from the reserved categories, in
general. The submission is wholly devoid of any merit and is hereby
rejected.
24. We are entirely in agreement with Mr. Shanti Bhushan that Part IX of
the Constitution has made provisions for self-governance at Panchayat
level, including the election of Panchayat Members and its Chairman.
Thus, ushering in complete decentralization of the Government and
transferring the power to the grass roots level bodies; such as the
Panchayats at the village, intermediate and District level, in
accordance with Article 243C of the Constitution. Article 243C is as
under:
“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.
(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 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.”
This Article as well as some others, such as Articles 243-A, 243-
C(5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G, 243-H, 243-I(2), 243-
J, 243-K(2), (4) of the Constitution etc make provision for the State
to enact necessary legislation to implement the provisions in Part IX
of the Constitution of India. Therefore, we are not able to agree with
the submission of Mr. Bhushan that State Legislature will have no
power to make provision for no-confidence motion against the Adhyaksha
of Zila Panchayat.
25. We are also unable to agree with the submission of
Mr. Bhushan that a person once elected to the position of Adhyaksha
would be permitted to continue in office till the expiry of the five
years terms, even though he/she no longer enjoys the confidence of the
electorate. To avoid such catastrophe, a provision for no-confidence,
as observed earlier, has been made in Section 28 of the Act. The
extreme submission made by Mr. Bhushan, if accepted, would destroy the
foundational precepts of democracy that a person who is elected by the
members of the Zila Panchayat can only remain in power so long as the
majority support is with such person.
26. We also do not find any merit in the submission of Mr. Bhushan that
permitting the provision contained in Section 28 of the Act to remain
on the statute book would enable the executive to deprive the elected
representatives of their fundamental rights enshrined in Part III and
Part IX of the Constitution of India. In our opinion, the ratio of the
judgment in I.R.Coelho (supra) relied upon by Mr. Bhushan is wholly
inapplicable in the facts and circumstances of this case. There is no
interference whatsoever in the right of the electorate to choose.
Rather Section 28 ensures that an elected representative can only stay
in power so long as such person enjoys the support of the majority of
the elected members of the Zila Panchayat. In the present case, at the
time of election, the petitioner was the chosen one, but, at the time
when the Motion of No Confidence in the petitioner was passed, she was
not wanted. Therefore, the right to chose of the electorate, is very
much alive as a consequence of the provision contained in Section 28.
27. We are unable to accept the submission of Mr. Bhushan that
the provisions contained in Section 28 of the Act cannot be sustained
in the eyes of law as it fails to satisfy the twin test of reasonable
classification and rational nexus with the object sought to be
achieved. In support of this submission, Mr. Bhushan has relied on the
judgment of this Court in D.S. Nakara vs. Union of India[16]. We fail
to see how the provisions contained in Section 28 of the Act would
take away the autonomy of the Panchayati Raj Institutions. In our
opinion, the judgments relied upon by Mr. Bhushan in support of the
submissions that provisions of No Confidence Motion in Section 28 of
the Act would put the executive authorities in the State in control of
Village Panchayats or District Panchayats. Apart from the use of
superlatives, that the party now in power is trying to remove all the
office holders of Panchayats in U.P. belonging to the opposite party,
no other material has been placed on the record.
28. It is true that in the Constitution, Article 67B provides for removal
of the Vice-President by a resolution of the Council of States as
provided therein passed by the majority of all the then members of the
Council and agreed to by the House of People. It is also correct that
under Article 90C, the Deputy Chairman of the Council of States can be
removed from his office on a resolution of the Council passed by all
the majority members of the then Council. Similarly, Article 94
provides that a member of holding office as Speaker or Deputy Speakers
of the House of People may be removed from his office by a resolution
of the House of People passed by a majority of all the then members of
the House.
29. It is also true that there are certain positions in the Constitution,
which are filled up through election but individuals so elected cannot
be removed by way of No Confidence Motion, e.g. Rajya Sabha Members,
Lok Sabha Members and the President of India. We are, however, unable
to accept the submission of Mr. Bhushan that Part IX of the
Constitution of India has placed office of an Adhyaksha of a Zila
Panchayat on the same pedestal as the President of India. Article 243F
empowers the States to enact any law for a person who shall be
disqualified for being chosen as a member of a Panchayat. This would
also include a member of a Panchayat, who is subsequently appointed as
Adhyaksha of a Zila Panchayat. There is no prohibition under Article
243F disenabling any State Legislature for enacting that an elected
Adhyaksha shall remain in office only so long as such elected person
enjoys the majority support of the elected members of the Zila
Panchayat. Therefore, we have no hesitation in rejecting the aforesaid
submissions of Mr. Shanti Bhushan.
30. The submissions of Mr. Bhushan on depriving a candidate belonging to
the reserved category of a position to which he or she has been
elected on the basis of reservation are wholly fallacious. The seat
for the office of Adhyaksha of Zila Panchayat was reserved for women
candidates, i.e., all women candidates. It was not specifically
reserved for Ladies belonging to the reserved categories of Scheduled
Castes, Scheduled Tribes and the Backward Classes. The petitioner
contested as a Lady Candidate and not as a candidate belonging to any
reserved category and was elected on a seat reserved for Ladies
generally.
31. Having said all this, we would like to point out that in normal
circumstances the present SLP would not have been entertained. Dr.
Rajiv Dhawan and Mr. Ashok Desai had pointed out at the very initial
hearing that the SLP would not be maintainable as it challenges only
the judgment of the High Court rendered in review petition. The main
judgment dated 5th February, 2013 rendered in W.P.(C) No.9654 of 2012
which has been reviewed by the High Court in the impugned order has
not been challenged. As a pure statement of law, the aforesaid
proposition is unexceptionable. However, in the present case, we have
been persuaded to entertain the present SLP in view of the order
passed by this Court on 19th February, 2013. In Ripa Sarma
case (supra), it was not disputed before this Court that the judgment
and order dated 20th November, 2007 passed in Ripa Sarma (supra) was
not challenged by way of an SLP before this Court. Relying on Order 47
Rule 7 of the Code of Civil Procedure, 1908 and the earlier judgments
of this Court it was held that :
“In view of the above, the law seems to be well settled that in
the absence of a challenge to the main judgment, the special
leave petition filed challenging only the subsequent order
rejecting the review petition, would not be maintainable.”
32. With regard to the second submission of Dr. Dhawan and
Mr. Ashok Desai that the issue raised in the present proceeding is no
longer res integra in view of the law laid down by this Court in
Bhanumati (supra), we are of the opinion that the submission deserves
to be accepted, in so far as the matter is covered by the ratio laid
down in Bhanumati (supra).
33. A careful perusal of the judgment of this Court in Bhanumati (supra)
would show that this Court had considered the provisions contained in
all the Articles Part IX of the Constitution, in all its hues and
colours. However, it appears that the issue with regard to the adverse
impact of the provision in Section 28 of the Act on the reservation
for Scheduled Castes, Scheduled Tribes and other Backward Classes was
neither argued nor considered. We have, therefore, examined the issue
raised by Mr. Bhushan.
34. In our opinion, the provision under Section 28A of the Act in no
manner dilutes or nullifies the protection given to the candidates
belonging to Scheduled Castes, Scheduled Tribes and Backward Classes
in the 73rd Amendment of the Constitution of India. Therefore, we
accept the submission of Dr. Dhawan and Mr. Ashok Desai that in view
of the law laid down in Bhanumati’s case (supra), the issue is no
longer res integra.
35. As noticed earlier, we have been persuaded to entertain the Special
Leave Petition as Mr. Bhushan had highlighted that permitting the Vote
of No Confidence as a ground for disqualifying an elected Zila
Panchayat Adhyaksha, Zila Panchayat would leave a candidate, elected
from the reserved categories of Scheduled Castes/ Scheduled Tribes,
vulnerable to unjustified attacks from the elected members of the
general category. This issue was not raised before the High Court
either in original writ petition being W.P. No. 9654 of 2012 nor was
it raised before the High Court in the Review Petition. However, in
view of the seminal importance of the issue raised, we had entertained
the Special Leave Petition. Having said that, it must be pointed out
that the raising of such an issue is neither justified nor relevant in
the facts of the present case. As pointed out earlier, the petitioner
herein had contested the election as an Adhyaksha, Zila Panchayat from
a seat reserved for Ladies. Merely because she happens to belong to
the reserved category, it can not be permitted to be argued, that the
provision with regard to the reservation for the members of the
Scheduled Castes/Scheduled Tribes/Backward Classes has been in any
manner diluted, let alone nullified. It has been specifically noted
in the Statement of Objects and Reasons of the 73rd
Amendment as follows:-
“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
Castes, Scheduled Tribes and Women, inadequate devolution of
powers and lack of financial resources.
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 organise 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.”
36. The provisions of the 73rd Constitutional amendment are to ensure that
Panchayati Raj Institutions acquire “the status and dignity of viable
and responsive people’s bodies”. The provisions are not meant to
provide an all pervasive protective shield to an Adhyaksha, Zila
Panchayat, even in cases of loss of confidence of the constituents.
Provision in Section 28, therefore, cannot be said to be repugnant to
Part IX of the Constitution of India.
37. In our opinion, the amendment as well as the main provision in
Section 28 is in absolute accord with the vision explicitly enunciated
in the Preamble of the Constitution of India. In fact, the spirit
which led to ultimately encoding the goals of “WE THE PEOPLE” in the
Preamble of the Constitution of India, permeates all other provisions
of the Constitution of India. The fundamental aim of the Constitution
of India is to give power to the People. Guiding spirit of the
Constitution is “WE THE PEOPLE OF INDIA”. In India, the People are
supreme, through the Constitution of India, and not the elected
Representatives. Therefore, in our opinion, the provision for right to
recall through the Vote of No Confidence is in no manner repugnant to
any of the provisions of the Constitution of India.
38. Upon examination of the entire Scheme of the 73rd Amendment, in
the context of framing of the Constitution of India, this Court in
Bhanumati & Ors. (supra), observed as follows:-
“54. The argument that as a result of the impugned amendment
stability and dignity of the Panchayati Raj institutions has
been undermined, is also not well founded. As a result of no-
confidence motion the Chairperson of a panchayat loses his
position as a Chairperson but he remains a member, and the
continuance of panchayat as an institution is not affected in
the least.”
We are in respectful agreement with aforesaid conclusion.
39. We reiterate the view earlier expressed by this Court in Bhanumati &
Ors. (supra), wherein this Court observed as follows:-
“57. It has already been pointed out that the object and the
reasons of Part IX are to lend status and dignity to Panchayati
Raj institutions and to impart certainty, continuity and
strength to them. The learned counsel for the appellant
unfortunately, in his argument, missed the distinction between
an individual and an institution. If a no-confidence motion is
passed against the Chairperson of a panchayat, he/she ceases to
be a Chairperson, but continues to be a member of the panchayat
and the panchayat continues with a newly-elected Chairperson.
Therefore, there is no institutional setback or impediment to
the continuity or stability of the Panchayati Raj institutions.
58. These institutions must run on democratic principles. In
democracy all persons heading public bodies can continue
provided they enjoy the confidence of the persons who comprise
such bodies. This is the essence of democratic republicanism.
This explains why this provision of no-confidence motion was
there in the Act of 1961 even prior to the Seventy-third
Constitution Amendment and has been continued even thereafter.
Similar provisions are there in different States in India.”
40. The whole edifice of the challenge to the constitutionality of Section
28 is built on the status of the petitioner as a member belonging to
the reserved category. It has nothing to do with the continuance,
stability, dignity and the status of the Panchayat Institutions. In
our opinion, the personal desire, of the petitioner to cling on to the
office of Adhyaksha is camouflaged as a constitutional issue. The
provision of No Confidence Motion, in our opinion, is not only
consistent with Part IX of the Constitution, but is also foundational
for ensuring transparency and accountability of the elected
representatives, including Panchayat Adhyakshas. The provision sends
out a clear message that an elected Panchayat Adhyaksha can continue
to function as such only so long as he/she enjoys the confidence of
the constituents.
Is Bhanumati & Ors. per incuriam ?
41. This submission again, in our opinion, is not well founded. The only
ground urged in support of the submission by Mr. Shanti Bhushan was
that this Court in Bhanumati & Ors. (supra) had not considered the
provision with regard to special protection to be given to the members
of the Scheduled Castes, Scheduled Tribes and the Backward Classes.
Firstly, such a submission was never made before this Court in
Bhanumati & Ors. (supra). Secondly, as we have already pointed out
earlier, the issue with regard to reservation for Scheduled Castes,
Scheduled Tribes and the Backward Classes, does not arise in the facts
of this case as the petitioner had not been elected to the office of
Adhyaksha of Zila Panchayat reserved for Scheduled Castes and
Scheduled Tribes. Mr. Ashok Desai has placed before us enclosure to
Government Order No.2746/33-1-2010-37G/2000 dated 15th September, 2010
indicating reservation for the year 2010 for the office of Adhyaksha
of Zila Panchayat, District wise in the State of Uttar Pradesh. The
order is divided into two columns: Districts’ reserved for Schedule
Caste Lady and Districts’ reserved for Ladies. Extract of the
aforesaid order is as follows:-
|Districts’ reserved for |Districts’ reserved for Ladies |
|Schedule Caste Lady | |
|S.No. |District |S.No. |District |
|1 |Chatrapati Sahuji |1 |Allahabad |
| |Maharajnagar | | |
|2 |Sant Ravidas Nagar |2 |Sitapur |
| |(Bhadohi) | | |
|3 |Jaunpur |3 |Hardoi |
|4 |Ghajipur |4 |Lakhimpur Khiri |
|5 |Sant Kabir Nagar |5 |Azamgadh |
42. It is a matter of record that the petitioner was elected as Panchayat
Adhyaksha of Sitapur District Reserved for Ladies, it is not reserved
for a Schedule Caste Lady. Therefore, we are not able to accept the
submission of Mr. Bhushan.
43. We also do not accept the submission of Mr.
Bhushan that the aforesaid judgment needs reconsideration. A perusal
of the judgment would show that this Court traced the history leading
upto the insertion of Article 40 of the Constitution of India. The
Court examined the relevant commentaries of many learned authors,
Indian as well as Foreign; Constituent Assembly Debates; and concluded
as follows :
“13. The Constitution’s quest for an inclusive governance voiced
in the Preamble is not consistent with panchayat being treated
merely as a unit of self-government and only as part of
directive principle. If the relevant Constituent Assembly
Debates are perused one finds that even that constitutional
provision about panchayat was inducted after strenuous efforts
by some of the members. From the debates we do not fail to
discern a substantial difference of opinion between one set of
members who wanted to finalise the Constitution solely on the
parliamentary model by totally ignoring the importance of
panchayat principles and another group of members who wanted to
mould our Constitution on Gandhian principles of Village
Panchayat.”
44. The Court emphasized that Dr. Rajendra Prasad was the strongest critic
of the Draft Constitution, who had opined that “the village has been
and will even continue to be our unit in this country.” (Para 15). The
Court further notices the opinion of Mr. M.A. Ayangar and Mr. N.G.
Ranga, both of whom suggested some amendments to the Draft
Constitution. The Court also notices that a similar opinion was
expressed by Mr. S.C. Mazumdar, who had struck a balance
between Gandhian Principles and the Parliamentary model of the
Constitution. The insertion of Article 40 was accepted by Dr.
Ambedkar. This Court further notices the opinion of Seth Govind Das
from the Central Provinces and Berar (Constituent Assembly Debates
Vol. VII, PP.523-24) (See Paras 12 to 20).
45. Thereafter, the Court notices that “in other representative
democracies of the world committed to a written Constitution and Rule
of Law, the principles of self-Government are also part of the
Constitutional doctrine.” The Court emphasized that under
the 73rd Amendment of the Constitution, Panchayats become
“Institution of self-governance, which was previously a mere unit
under Article 40”. It was emphasized that the 73rd Amendment heralded
a new era, which is a turning point in the history of local self-
governance (Para 22). It was also emphasized that the 73rd Amendment
is very powerful “tool of social engineering” (Para 24). We reiterate
the opinion of this Court that as 74% of the Indian population live in
villages, it is necessary to ensure that the power of governance
should vest in the smallest units of the Panchayat having its
hierarchy as provided under various Panchayat Acts throughout the
country. The judgment analyses the changes introduced by the 73rd
Amendment and concludes as follows :
“34. The changes introduced by the Seventy-third Amendment of
the Constitution have given Panchayati Raj institutions a
constitutional status as a result of which it has become
permanent in the Indian political system as a third Government.
On a careful reading of this amendment, it appears that under
Article 243-B of the Constitution, it has been mandated that
there shall be panchayat at the village, intermediate and
district levels in accordance with the provisions of Part IX of
the Constitution.”
46. This Court concluded upon examination of the Constitutional scheme
introduced by the 73rd Amendment as
follows:
“39. Thus, the composition of the panchayat, its function, its
election and various other aspects of its administration are now
provided in great detail under the Constitution with provisions
enabling the State Legislature to enact laws to implement the
constitutional mandate. Thus, formation of panchayat and its
functioning is now a vital part of the constitutional scheme
under Part IX of the Constitution. Obviously, such a system can
only thrive on the confidence of the people, on those who
comprise the system.”
47. In our opinion, the provision for removing an elected representative
such as Panchayat Adhyaksha is of fundamental importance to ensure the
democratic functioning of the Institution as well as to ensure the
transparency and accountability in the functions performed by the
elected representatives.
48. We also do not agree with Mr. Bhushan that the issue with regard to
the constitutionality of Section 28 of the Act was not considered by
this Court in Bhanumati & Ors. (supra). The submission made by the
counsel for the petitioner therein is noticed as follows:
“40. In the background of these provisions, learned counsel for
the appellants argued that the provision of no-confidence, being
not in Part IX of the Constitution is contrary to the
constitutional scheme of things and would run contrary to the
avowed purpose of the constitutional amendment which is meant to
lend stability and dignity to Panchayati Raj institutions. It
was further argued that reducing the period from “two years” to
“one year” before a no-confidence motion can be brought, further
unsettles the running of the panchayat. It was further urged
that under the impugned amendment that such a no-confidence
motion can be carried on the basis of a simple majority instead
of two-thirds majority dilutes the concept of stability.”
From this it is evident that the provision of No Confidence
Motion in Section 28 was challenged on three grounds:
(a) It would be repugnant to the Scheme of the 73rd Amendment.
(b) It would unsettle the running of the Panchayat.
(c) It would dilute the concept of stability.
49. Upon consideration of the relevant provisions contained in various sub-
articles of Article 243 and in particular, Article 243C(v), this Court
concludes as under:
“41. This Court is not at all persuaded to accept this argument
on various grounds discussed below. A Constitution is not to
give all details of the provisions contemplated under the scheme
of amendment. In the said amendment, under various articles,
like Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6), 243-
F(1), (6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2), (4) of the
Constitution, the legislature of the State has been empowered to
make law to implement the constitutional provisions.
43. Therefore, the argument that the provision of no-confidence
motion against the Chairman, being not in the Constitution,
cannot be provided in the statute, is wholly unacceptable when
the Constitution specifically enables the State Legislature to
provide the details of election of the Chairperson.”
The Court also mentions that the statutory provision of No
Confidence Motion against the Chairperson is a pre-constitutional
provision and was there in Section 15 of the 1961 Act (Para 44).
After taking into consideration Article 243N of the Constitution of
India, it is observed as follows:-
“45. It is clear that the provision for no-confidence motion
against the Chairperson was never repealed by any competent
legislature as being inconsistent with any of the provisions of
Part IX. On the other hand by subsequent statutory provisions
the said provision of no-confidence has been confirmed with some
ancillary changes but the essence of the no-confidence provision
was continued. This Court is clearly of the opinion that the
provision of no-confidence is not inconsistent with Part IX of
the Constitution.”
50. In the face of these findings, it would not be possible to accept the
submission of Mr. Bhushan that the judgment in Bhanumati & Ors.
(supra) is either per incuriam or requires reconsideration.
51. Under Article 243N, any provision of law relating to Panchayats in
force immediately before the 73rd Amendment, which is inconsistent
with Part IX continues to be enforced until amended or repealed. In
the absence of such amendment or repeal, the inconsistent provision
will continue until the expiration of one year from the commencement
of the Constitution (73rd Amendment) Act, 1993. It is a matter of
record that the State of Uttar Pradesh enacted U.P. Panchayat Law
(Amendment) Act, 1994 on 22nd April, 1994 to give effect to the
provisions of Part IX of the Constitution. The pre-existing provision
of No Confidence was not repealed. It was amended subsequently by the
Amendment Act of 1998 (U.P. Act No. 20 of 1998). There was a further
amendment by the Amendment Act of 2007 (U.P. Act No. 4 of 2007). By
this amendment, the period for moving a No Confidence Motion was
reduced from two years to one year. Furthermore the requirement that
for a Motion of No Confidence to be carried, it had to be supported by
a majority of “not less than two third” was reduced to “more than
half”. It was these amendment changes brought about by the Amendment
Act of 2007, which was challenged by the petitioners in the case of
Bhanumati & Ors. (supra). The continuous of the provision of No
Confidence Motion was not even challenged. In spite of the fact that
the challenge was limited only to the amendment, this Court examined
the question as to whether provision for bringing a Motion of No
Confidence in Section 28 of the 1961 Act was repugnant or inconsistent
with Part IX of the Constitution of India. Ultimately, in Paragraph
51, this Court records the following opinion:-
“51. Many issues in our constitutional jurisprudence evolved out
of this doctrine of silence. The basic structure doctrine vis-à-
vis Article 368 of the Constitution emerged out of this concept
of silence in the Constitution. A Constitution which professes
to be democratic and republican in character and which brings
about a revolutionary change by the Seventy-third Constitutional
Amendment by making detailed provision for democratic
decentralisation and self-government on the principle of grass-
root democracy cannot be interpreted to exclude the provision of
no-confidence motion in respect of the office of the Chairperson
of the panchayat just because of its silence on that aspect.”
We are in respectful agreement with the aforesaid opinion.
52. The Court thereafter notices the submission that the position of
Panchayat Adhyaksha is comparable with that of the President of India.
On this analogy, it was submitted that the office of Chairperson, i.e.
Panchayat Adhyaksha should have the same immunity. This Court rejected
the submission with the observation that “this is an argument of
desperation and has been advanced, with respect, without any regard to
the vast difference in constitutional status and position between the
two posts.” Mr. Bhushan has made the same submission before us. We
would like to add here, that even by stretching the imagination beyond
all reasonable bounds, we are unable to accept the submission of Mr.
Bhushan that Chairman of a District Panchayat should be put on the
same pedestal as the President of India.
53. Mr. Shanti Bhushan had also submitted that since the issues raised
herein pertained to the interpretation of the Constitution of India,
the matter needs to be referred to the five Judges as provided in
Article 145(3) of the Constitution of India read with Order VII Rule 2
of the Supreme Court Rules, 1966.
54. We are of the opinion that no substantial question of law arises as
envisaged under Article 145(3) of the Constitution of India as to the
interpretation of the Constitution of India, in the facts and
circumstances of this case. The entire issue has been elaborately, and
with erudition, dilated upon by this Court in Bhanumati & Ors.
(supra). We also do not find any force in the submission of Mr.
Bhushan that there is any occasion for reconsideration of the judgment
of this Court in Bhanumati & Ors. (supra).
55. Mr. Bhushan has relied on numerous judgments of this Court in support
of his submissions. Let us now consider the same.
56. On the issue of repugnancy, Mr. Bhushan has cited following judgments:
(1) I.R.Coelho vs. Union of India (supra) –
In our opinion, the reliance on the aforesaid judgment is wholly
misplaced as the right to choose of the constituents is not curtailed
by Section 28 of the Act. It is only the right of an elected
Chairman/Adhyaksha to continue, who has lost the confidence of the
electorate that has been curtailed.
(2) Deep Chand vs. State of U.P. (supra) –
In this case, this Court culled out the law pertaining to the
rule of repugnancy. The three tests of inconsistency or repugnancy as
formulated by Nicholas in his Australian Constitution 2nd Edition have
been noticed which are as under:
“(1) There may be inconsistency in the actual terms of the
competing statutes;
(2) Though there may be no direct conflict, a State law may be
inoperative because the Commonwealth law, or the award of the
Commonwealth Court, is intended to be a complete exhaustive
code; and
(3) Even in the absence of intention, a conflict may arise when
both State and Commonwealth seek to exercise their powers over
the same subject-matter.”
57. The aforesaid three rules have been accepted by this Court in Ch. Tika
Ramji Vs. State of U.P.[17] Similar test was laid down by this Court
in, Zaverbhai Amaidas Vs. State of Bombay (supra) as follows:
“(1) Whether there is direct conflict between the two
provisions;
(2) Whether Parliament intended to lay down an exhaustive code
in respect of the subject-matter replacing the Act of the State
Legislature and
(3) Whether the law made by Parliament and the law made by the
State Legislature occupy the same field.
58. In our opinion, the provision contained in Section 28 can
not be said to be repugnant to the 73rd Amendment on the
basis of the aforesaid tests laid down by this Court.
59. On the issue of per incuriam, Mr. Bhushan has cited following
judgments:
(1) N. Bhargawan Pillai Vs. State of Kerala (supra) –
Mr. Bhushan had relied on observations made by this Court in
Paragraph 14 of the judgment. It was held that the judgment in the
case of Bore Gowda Vs. State of Karnataka[18] was per incuriam as it
did not consider the impact of Section 18 of the Probation of
Offenders Act, 1958.
In Bhanumati & Ors. (supra), it can not be said that any
relevant provision of the Constitution or the Act had not been taken
into consideration.
(2) State of U.P. Vs. Synthetics and Chemicals Ltd. (supra)
The observations made in Paragraph 86 in the earlier judgment of
Synthetics and Chemicals Ltd. & Ors. Vs. State of U.P. & Ors.[19]
were found to be per incuriam. The aforesaid observations would not
be applicable in the present case as no such legitimate criticism can
be made against the judgment of this Court in Bhanumati & Ors.
(supra).
(3) Babu Parasu Kaikadi Vs. Babu (supra)
This judgment also reiterated the well known principle of per
incuriam. It was held that the judgment in Dhondiram Tatoba Kadam Vs.
Ramchandra Balwantrao Dubal (since deceased) by His LRs. & Anr.[20]
was per incuriam as it had not noticed the earlier binding precedent
of a coordinate Bench and also having not considered the mandatory
provisions as contained in Sections 15 and 29 of the Bombay Tenancy
and Agricultural Lands Act, 1948 (67 of 1948). The well known
principle with regard to a judgment not being a binding precedent as
stated in Halsbury’s Laws of England, 4th Edn., Vol. 26 is as under:-
“A decision is given per incuriam when the court has acted in
ignorance of a previous decision of its own or of a court of
coordinate jurisdiction which covered the case before it, in
which case it must decide which case to follow; or when it has
acted in ignorance of a House of Lords decision, in which case
it must follow that decision; or when the decision is given in
ignorance of the terms of a statute or rule having statutory
force.”
The same principle has been reiterated by this Court in State of
U.P. Vs. Synthetics and Chemicals Ltd. (supra):-
“40. ‘Incuria’ literally means ‘carelessness’. In practice per
incuriam appears to mean per ignoratium. English courts have
developed this principle in relaxation of the rule of stare
decisis. The ‘quotable in law’ is avoided and ignored if it is
rendered, ‘in ignoratium of a statute or other binding
authority’. (Young v. Bristol Aeroplane Co. Ltd.) Same has been
accepted, approved and adopted by this Court while interpreting
Article 141 of the Constitution which embodies the doctrine of
precedents as a matter of law.”
(emphasis supplied)
In our opinion, the judgment in Bhanumati & Ors. (supra) can not
be said per incuriam on the applicability of the aforesaid tests.
(4) Zee Telefilms Ltd. Vs. Union of India (supra)
In this case, again this Court reiterated that a decision is an
authority for the question of law determined by it and that it should
not be read as a statute. A decision is not an authority for the
proposition which did not call for its consideration. These
observations again are of no assistance to the petitioner.
(5) Nirmaljeet Kaur Vs. State of M.P.
In this case also, this Court has reiterated the principles
earlier enunciated. Thus, this judgment is again of no help to the
petitioner.
60. On the submission with regard to the Validity/Legality of a
Legislative Act, reliance was placed upon:
D.S.Nakara vs. Union of India[21]; Union of India vs.
G.Ganayutham[22]; Bharat Petroleum Corporation Ltd. vs. Maddula
Ratnavalli[23] and State of A.P. v/s McDowell & Co.[24]. In our
opinion, all these judgments are inapplicable to the facts of
this case.
61. On the submission with regard to Arbitrary/discretionary/unguided
power to executive authority, Mr. Bhushan relied upon following
judgments:
Senior Superintendent of Post Offices vs. Izhar Hussain[25], Khoday
Distilleries Ltd. vs. State of Karnataka[26], Maganlal Chhagalal (P)
Ltd. vs. Municipal Corporation of Greater Bombay[27] Director of
Industries vs. Deep Chand Agarwal[28]. In our opinion, these judgments
have no application whatsoever either to the legal issue or to the
facts of this case.
62. We have no hesitation in accepting the submission of Mr. Bhushan that
the High Court or this Court, in exercise of its powers of review can
reopen the case and rehear the entire matter. But we must hasten to
add that whilst exercising such power the court cannot be oblivious of
the provisions contained in Order 47 Rule 1 of CPC as well as the
rules framed by the High Courts and this Court. The limits within
which the Courts can exercise the powers of review have been well
settled in a catena of judgments. All the judgments have in fact been
considered by the High Court in Pages 16 to 23. The High Court has
also considered the judgment in S. Nagaraj & Ors. Vs.
State of Karnataka & Anr. (supra), which reiterates the principle that
“19. Review literally and even judicially means re-examination
or re-consideration. Basic philosophy inherent in it is the
universal acceptance of human fallibility. Yet in the realm of
law the courts and even the statutes lean strongly in favour of
finality of decision legally and properly made. Exceptions both
statutorily and judicially have been carved out to correct
accidental mistakes or miscarriage of justice. Even when there
was no statutory provision and no rules were framed by the
highest court indicating the circumstances in which it could
rectify its order the courts culled out such power to avoid
abuse of process or miscarriage of justice……………..”
63. These principles are far too well entrenched in the Indian
jurisprudence, to warrant reiteration. However, for the sake of
completion, we may notice that Mr. Bhushan had relied upon Board of
Control for Cricket in India v/s Netaji Cricket Club (supra), and
Green View Tea & Industries (supra). It would be useful to reiterate
the following excerpts:
In the case of Board of Control for Cricket in India (supra), it
was observed that:
“90. Thus, a mistake on the part of the court which would
include a mistake in the nature of the undertaking may also call
for a review of the order. An application for review would also
be maintainable if there exists sufficient reason therefore.
What would constitute sufficient reason would depend on the
facts and circumstances of the case. The words “sufficient
reason” in Order 47 Rule 1 of the Code are wide enough to
include a misconception of fact or law by a court or even an
advocate. An application for review may be necessitated by way
of invoking the doctrine “actus curiae neminem gravabit”.
This court in Green View Tea & Industries (supra) reiterated the
view adopted by it in S. Nagaraj & Ors (supra). Therefore, the ratio
of Green View Tea is not applicable in this case.
64. In view of the observations made in the aforesaid judgments, this
Court would not be justified in holding that the High Court has erred
in law in not reviewing its earlier judgment.
65. This apart, we have examined the entire issue threadbare ourselves as
the issue with regard to the adverse impact on the candidates
belonging to the reserves categories has not been raised before the
High Court nor considered by it. In the earlier round, the issue was
also neither raised nor considered by this Court. When the order dated
19th February, 2013 was passed, the issue with regard to reservation
was also not canvassed. But now that the issue had been raised, we
thought it appropriate to examine the issue to put an end to the
litigation between the parties.
66. In view of the above, the appeal is accordingly dismissed.
Contempt Petition No.287 of 2013 in CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
67. This Petition was filed by the Petitioner/Appellant, seeking
initiation of contempt proceedings against alleged
contemnors/respondent for disobeying the order of status quo dated
12th July, 2013 passed by this Court in the aforesaid Civil Appeal.
68. In view of the judgment passed by this Court in Civil Appeal No………………
of 2014 (Arising out of SLP (C) No.22035 of 2013), this Petition is
dismissed as having become infructuous.
CIVIL APPEAL NO……………OF 2014 (Arising out of SLP(C) No.29740 of 2013
69. This Civil Appeal was filed by Smt. Rukmini Devi, challenging final
order and judgment dated 19th August, 2013 passed by the High Court of
Judicature at Allahabad, Lucknow Bench in Writ Petition No. (MB) 5999
of 2013.
70. The issues raised in this civil appeal are identical to those that we
have examined in Civil Appeal No……………… of 2014 (Arising out of SLP (C)
No.22035 of 2013). Therefore, in view of the judgment in the Civil
Appeal No……………… of 2014 (Arising out of SLP (C) No.22035 of 2013),
this appeal is also dismissed.
……………………………….J.
[Surinder Singh
Nijjar]
………………………………………….…..J.
[Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
March 28, 2014.
-----------------------
[1] (2013) 3 SCC 63
[2] (2004) 13 SCC 675
[3] (2010) 12 SCC 1
[4] (2007) 2 SCC 1
[5] (1959) Supp. 2 SCR 8
[6] (1955) 1 SCR 799
[7] (2004) 13 SCC 217
[8] (1991) 4 SCC 139
[9] (2004) 1 SCC 681
[10] (2004) 7 SCC 558
[11] (2005) 4 SCC 649
[12] (2005) 4 SCC 741
[13] (1993) Supp. 4 SCC 595
[14] (2004) 4 SCC 122
[15] (1994) 2 SCC 753
[16] (1983) 1 SCC 305
[17] (1956) SCR 393
[18] (2000) 10 SCC 620
[19] (1990 1 SCC 109
[20] (1994) 3 SCC 366
[21] (1983) 1 SCC 305
[22] (1997) 7 SCC 463
[23] (2007) 6 SCC 81
[24] (1996) 3 SCC 709
[25] (1989) 4 SCC 318
[26] (1996) 10 SCC 304
[27] (1974) 2 SCC 402
[28] (1980) 2 SCC 332
The notice calling for a Motion of No Confidence was
signed by 37 members. The legal requirement under Section 28(2) is
that a motion expressing want of confidence in the Adhyaksh must be
signed by not less than half of the total number of elected members.=
“in view of the provisions of Article 243C(ii) of the Constitution of
India, there being no provision in the Panchayat election for Motion
of No Confidence whether Section 28 of the Panchayatiraj Adhiniyam
would continue to operate in view of Article 243N”.=
“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.
(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 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.”
This Article as well as some others, such as Articles 243-A, 243-
C(5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G, 243-H, 243-I(2), 243-
J, 243-K(2), (4) of the Constitution etc make provision for the State
to enact necessary legislation to implement the provisions in Part IX
of the Constitution of India. Therefore, we are not able to agree with
the submission of Mr. Bhushan that State Legislature will have no
power to make provision for no-confidence motion against the Adhyaksha
of Zila Panchayat.
In view of the observations made in the aforesaid judgments, this
Court would not be justified in holding that the High Court has erred
in law in not reviewing its earlier judgment.
65. This apart, we have examined the entire issue threadbare ourselves as
the issue with regard to the adverse impact on the candidates
belonging to the reserves categories has not been raised before the
High Court nor considered by it. In the earlier round, the issue was
also neither raised nor considered by this Court. When the order dated
19th February, 2013 was passed, the issue with regard to reservation
was also not canvassed. But now that the issue had been raised, we
thought it appropriate to examine the issue to put an end to the
litigation between the parties.
66. In view of the above, the appeal is accordingly dismissed.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41355
SURINDER SINGH NIJJAR, FAKKIR MOHAMED IBRAHIM KALIFULLA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
Usha Bharti …Appellant
VERSUS
State of U.P. & Ors. ...Respondents
WITH
CONTEMPT PETITION (C) No. 287 of 2013
IN
CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
WITH
CIVIL APPEAL NO……………OF 2014
(Arising out of SLP(C) No.29740 of 2013)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These appeals are directed against the judgment and order passed by
the High Court of Judicature at Allahabad (Lucknow Bench) in Review
Petition No.103 of 2013 on 4th July, 2013 dismissing the review
petition filed by the appellant.
3. Since the issues raised in these appeals are pristinely legal, it
would not be necessary to make a detailed reference to the facts,
leading to the filing of the present appeals. Even otherwise, the
High Court in the impugned judgment has made an elaborate survey of
the facts. Therefore, it is unnecessary to repeat the same. However,
the foundational facts for challenging the impugned judgment of the
High Court are recapitulated for ready reference.
4. The appellant successfully contested the election held in October,
2010 for becoming a Member of the Zila Panchayat, Sitapur, U.P. 62
candidates were elected as the Members of the Zila Panchayat including
the appellant and respondents 5 to 37. On 12th December, 2010, the
appellant was elected as Adhyaksh of the Zila Panchayat, Sitapur. On
30th October, 2012, a notice of proposed Motion of No Confidence was
given to the Collector, Sitapur for calling a meeting under Section 28
of the U.P. Kshettra Panchayat & Zila Panchayat Act, 1961 (for short
‘the Act’). The notice calling for a Motion of No Confidence was
signed by 37 members. The legal requirement under Section 28(2) is
that a motion expressing want of confidence in the Adhyaksh must be
signed by not less than half of the total number of elected members.
On 31st October, 2012, the Collector, Sitapur issued a notice
informing the elected members that a meeting for considering the
Motion of No Confidence will be held on 23rd November, 2012.
5. Aggrieved by the issuance of said notice, the appellant filed Writ
Petition No.9654 of 2012 on various grounds alleging that the motion
for no confidence has been done with an ulterior motive to usurp the
office of the appellant. It was alleged that atleast three members
whose names were mentioned in the Motion for No Confidence had not
signed the motion/notice requesting the Collector to call a meeting.
The appellant made the following prayers in the writ petition :-
“(i) Issue an appropriate writ, order or direction in the
nature of certiorari quashing the impugned notice of intent
to bring no-confidence motion against the petitioner;
(ii) Issue a writ, order or direction or writ in the nature of
certiorari quashing the notice dated 31st October, 2012,
issued by respondent No.3, as contained in Annexure No.1 to
the writ petition.
(iii) Issue a writ, order or direction or writ in the
nature of mandamus directing the respondent No.3 to verify
the genuineness of the signature of the member’s on the
notice to bring motion against the petition dated 30th
October, 2012,
(iv) Issue a writ, order or direction or writ in the
nature of mandamus commanding the opposite parties to let
the petitioner to continue on the office of Adhyaksha, Zila
Panchayat Sitapur of Tehsil & District Sitapur.
(v) Issues an ad-interim mandamus to the above effect.
(vi) Issue any other appropriate writ, order or direction in
favour of the petitioner as the Hon’ble Court may deem fit
in the circumstances of the case.
And
(vii) Award the costs of the petition to the petitioner.”
6. The High Court on 21st November, 2012 directed the District Judge or
any Additional District Judge nominated by him to hold an enquiry to
ascertain genuineness of the affidavits and signatures of members and
to submit a report thereon before the next date of hearing. It was
also directed that further proceedings of “No Confidence Motion” shall
remain in abeyance. The matter was to be listed on 20th December,
2012. The report was duly submitted, which indicated that 33 Members
had admitted their signatures appearing on the notice, and the
affidavits, submitted in connection with the motion of no confidence.
It was also stated that “among those members, in respect of whom
signatures and affidavits were doubted, the report of Deputy Director
(Pralekh) mentions that Zila Panchayat Member Mr. Vijay Kumar has also
proved to have been signed and submitted the notice and the affidavit.
Accordingly, 34 Zila Panchayat Members are found to have applied for
bringing in the motion of no confidence.” Taking note of the aforesaid
report, the High Court dismissed the writ petition with the following
observations:
“As the requirement of valid signature for carrying out the No
Confidence Motion is only 31, whereas in the enquiry report it
has been found to be 34, now nothing would survive in this writ
petition. Hence, it is dismissed.”
7. On 6th February, 2013, the Collector, Sitapur issued notice fixing
22nd February, 2013 for consideration of the Motion of No Confidence.
8. Aggrieved by the judgment of the High Court dated 5th February, 2013,
the appellant moved this Court through S.L.P.(C) No.8542 of 2013.
9. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant
submitted that the High Court had wrongly relied upon the report
submitted by the Additional District Judge without giving the
appellant any opportunity to submit any objection to the report. This
apart, in view of the provisions contained in Article 243C(2)of the
Constitution of India, no provision has been made for No Confidence
Motion in Panchayat elections. It was submitted by Mr. Shanti Bhushan
that the aforesaid issues with regard to the applicability of scope
and ambit of Article 243 of the Constitution of India, even though
specifically raised the writ petition and argued before the High Court
have neither been noticed nor considered. Taking note of the aforesaid
submissions, this Court passed the following order :-
“If that be so, in our opinion, the remedy of the petitioner
would be to seek review of the judgment of the High Court rather
than to challenge the same by way of this special leave
petition.”
10. The prayer made by Mr. Shanti Bhushan that the operation of the
impugned order be stayed for two weeks to enable the appellant to
approach the High Court by way of review petition was declined. It
was, however, made clear that the result of the meeting, which was
scheduled to be held on 22nd February, 2013, shall not be declared for
a further period of two weeks.
11. Thereafter, the petitioner filed Review Petition No.
103 of 2013 before the High Court. The appellant stated that members
owning allegiance to the Samajwadi Party led by Smt. Madhu Gupta, W/o
Shri Hari Om Gupta – Respondent No.5, were not able to muster any
signature for the initiation of the Motion and, therefore, appended
forged signature of several Members on the notice of intent to move
the Motion of No Confidence. These forged signatures were used by the
Samajwadi Party to induce other Members to join for giving the notice
for moving the Motion of No Confidence. It was stated that the very
initiation of the Motion was a fraud on the system and against the
settled democratic principles. The act of forgery of signatures was
committed on the instance of Respondent No. 5 and her supporters.
Therefore, the initiation of Motion of No Confidence was invalid and
illegal. The appellant pointed out that in the earlier writ petition,
it was specifically pleaded that in terms of Article 243N, the
provision of Section 28 have been rendered otiose. The provision
contained in Section 28 of the Act, being inconsistent with the
constitutional scheme, which does not comprehend the removal of
Adhyaksh of Zila Panchayat, mid term and as such, the Motion otherwise
also could not be permitted to be carried. It was further stated that
“in view of the provisions of Article 243C(ii) of the Constitution of
India, there being no provision in the Panchayat election for Motion
of No Confidence whether Section 28 of the Panchayatiraj Adhiniyam
would continue to operate in view of Article 243N”.
12. Upon completion of the pleadings, the High Court by an elaborate
judgment has dismissed the Review Petition by the impugned order dated
4th July, 2013. On 10th July, 2013, the District Magistrate, Sitapur
fixed a meeting for counting of votes on 12th July, 2013. Aggrieved
by the judgment of the High Court, the appellant filed SLP in this
Court on 11th July, 2013. The matter was mentioned in Court at 10.30
A.M. before the Chief Justice of India. A direction was issued by the
Chief Justice of India to the Registry to place the matter before this
bench at the end of the list. In the meantime, No Confidence Motion
was passed against the appellant with 33 votes in favour of the No
Confidence Motion and 23 against with 6 votes being declared invalid.
The counting was supervised by the Civil Judge, Sitapur. The
representative of the petitioner/appellant was present and had stated
that he is satisfied with the counting of votes. There has been no
challenge to the result of the No Confidence Motion, with regard to
the counting of votes. On 12th July, 2013, at about 12.15 P.M., this
Court issued notice and directed that “in the meanwhile, status quo,
as it exists today, shall be maintained”. Since Respondent No.5 had
filed a caveat on 11th July, 2013 at about 11.00 A.M. and no notice
had been given to her before hearing the Special Leave Petition, she
filed an application seeking recall of the aforesaid order dated 12th
July, 2013. It was claimed that Respondent No. 5 sought recall on the
following grounds:-
(i) No notice was given to Respondent before hearing and
passing Order dated 12.07.2013.
(ii) Counting of votes was already done and the no confidence
Order was passed well before passing the Order dated
12.07.2013 by this Hon’ble Court.
(iii) Present SLP is not maintainable as per the settled law
laid down by this Hon’ble Court namely that an SLP is not
maintainable against the dismissal of review filed before
the HC after dismissal of SLP.
(iv) In any case the SLP is also not maintainable as the issue
raised in the SLP is already covered by the judgment of
this Hon’ble Court in Bhanumati and Ors. V. State of U.P. &
Ors. reported in 2010 (12) SCC 1.
13. Whilst the matter was pending, on 23rd July, 2013, the petitioner
filed Contempt Petition No. 287 of 2013 for violating the orders of
this Court dated 12th July, 2013. It is stated that Respondent No.5
admittedly made false statement in the application to recall the order
dated 12th July, 2013. The order of this Court was communicated
whilst the meeting for counting of votes was still in progress. The
appellant states that one of the newspapers “Amar Ujala” has reported
that the result had been declared at 1.15 P.M.
14. Respondent No. 5 was impleaded as Respondent No. 4 in the aforesaid
Contempt Petition. However, notice of contempt was issued only
against official Respondent Nos. 1, 2 and 3. I.A. No. 8 was filed on
18th November, 2013 pointing out that in spite of No Confidence
Motion having been passed, the appellant has continued to take policy
decisions which were not only prejudicial to public interest but would
also create several problems for Zila Panchayat, in case the present
appeal is dismissed. The aforesaid application came up for hearing on
19th November, 2013. It was pointed out on behalf of Respondent No. 5
that the appellant had issued a Notice of Meeting on 8th November,
2013 of the meeting of the Zila Panchayat, Sitapur to be held on
20th November, 2013 at 11.30 A.M. to take decision on Subject Nos. 1
to 16 enumerated in Annexure A3 to the Interlocutory Application.
15. On the other hand, it was submitted on behalf of the appellant that
the notice merely indicates the subjects on which decisions are
required to be taken for the development work within the Zila
Panchayat. It was submitted that the appellant ought to be permitted
to take necessary decisions. However, during the course of
deliberations, Mr. Shanti Bhushan had very fairly submitted that the
appellant will voluntarily not preside over the aforesaid meeting,
rather the Collector may be requested to chair the meeting. A
direction was, therefore, issued that the District Magistrate, Sitapur
would chair the meeting on 8th November, 2013. It was made clear that
the issuance of the aforesaid direction will not in any manner
vary/alter the status quo order passed by this Court on 12th July,
2013, which was directed to continue. Submissions of the parties in
the appeal were heard on 3rd December, 2013, 5th December, 2013 and
11th December, 2013 when the judgment was reserved.
16. Very detailed and elaborate submissions have been made by the learned
counsel for the parties, which can be briefly summed up as follows:-
(i) At the outset, Dr. Rajiv Dhawan submitted that the Special
Leave Petition is not maintainable as it is directed only
against the judgment rendered by the High Court in Review
Petition No. 103 of 2013. In support of the submissions,
learned senior counsel relied on judgments of this Court in
State of Assam Vs. Ripa Sarma[1] and Suseel Finance &
Leasing Co. Vs. M. Lata & Ors.[2]. Dr. Dhawan also
submitted that even otherwise, the SLP deserves to be
dismissed as the matter is squarely covered against the
petitioner/appellant by the judgment of this Court in
Bhanumati & Ors. Vs. State of Uttar Pradesh through its
Principal Secretary & Ors.[3] Relying on the aforesaid
judgment, it was submitted by Dr. Dhawan that the
petitioner can not even be heard on the proposition that
Section 28 of the Act is inconsistent with Part IX of the
Constitution. Mr. Ashok Desai, learned senior counsel also
submitted that in view of the law laid down in Bhanumati &
Ors. (supra), the issue raised herein is no longer res
integra. Learned senior counsel also submitted that the
SLP against the judgment of the High Court rendered in the
Review Petition would not be maintainable without
challenging the judgment which was sought to be reviewed.
(ii) Mr. Shanti Bhushan has submitted that the issue raised in
the present appeal is of vital importance, i.e., whether
Section 28 of the Act, which provides for bringing No
Confidence Motion against the Chairman of Zila Panchayat is
valid in so far as it is inconsistent with Part IX of the
Constitution of India. Therefore, this Court will have to
determine whether the impugned provision falls within the
legislative competence of the State Legislature. The Court
will also have to decide as to whether the impugned
provision is inconsistent with Article 243N of the
Constitution of India?
(iii) It is submitted by the learned senior counsel that the
provision of No Confidence Motion for removing the Chairman
or Adhyaksha of Zila Panchayat is inconsistent with Part IX
of the Constitution. He submits that Part IX of the
Constitution containing Articles 243A to 243O were inserted
wide the Constitution (73rd Amendment Act, 1992) w.e.f.
24th April, 1993. The aforesaid articles have laid down
exhaustive provisions for self-governance at Panchayat
level. This includes election of Panchayat Members and its
Chairman as well as their disqualification. However, no
provision is made for bringing a No Confidence Motion
against the Chairperson of Panchayat. Article 243C(v)
provides that the Chairperson of a Panchayat at the village
level shall be elected in such a manner as the Legislature
of a State may, by law, provide. Article 243F provides
that Panchayat can make law for disqualification of
Panchayat Members. Sections 18, 19 and 29 of the Act,
which provides for composition of Zila Panchayat, election
of Adhyaksha and removal of Adhyaksha respectively are in
consonance with the aforesaid Articles of the Constitution
of India. Section 19 of the aforesaid Act provides for
election of Adhyaksha by elected members of the Zila
Panchayat from amongst themselves. Section 29(1) of the
Act enumerates the grounds for removal of Adhyaksha but
does not include the provision for bringing a Motion of No
Confidence against the Chairman.
(iv) Learned senior counsel further submitted that the
provision contained in Section 28(1) of the Act is
repugnant to Part IX of the Constitution. Mr. Shanti
Bhushan submits that in any event, the provisions contained
in Section 28 of the Act could not have continued after
expiry of one year of the enactment of the 73rd Amendment
of the Constitution of India, which came into effect from
24th April, 1993. Such continuance would be inconsistent
with the provisions contained in Article 243N of the
Constitution of India.
(v) Learned senior counsel further submitted that Article 243D
for the first time introduced reservation of seats for
Scheduled Castes, Scheduled Tribes as well as ladies both
in the election of members of Panchayat as well as for the
office of Chairperson. It is submitted that the provision
of “No Confidence” like Section 28 of the Act can frustrate
the provision for such reservation. SC, ST and ladies
always being in minority in Panchayat, a Chairperson from
the reserved category can easily be removed from the said
office by majority of general category Panchayat members.
Such a result was not envisaged by the provisions contained
in Article 243D. It is further submitted that Part IX of
the Constitution has exhaustively specified the areas for
which a State Legislature, as local self-governance falls
in the State List, can make laws in order to have complete
decentralization of the governance. This, according to the
learned senior counsel was the main objective of the 73rd
Amendment Act which does not provide for any law to be made
by the State Legislature for bringing a No Confidence
Motion against the Chairperson/Adhyaksha/Zila Panchayat.
(vi) According to Mr. Bhushan, if there had been no existing
provision for No Confidence like Section 28 in the Act,
then after 73rd amendment in the Constitution, the State
Legislature could not have brought such a provision as it
is not competent to do so. The provision, according to Mr.
Bhushan, is likely to be struck down as the powers vested
in the elected body are sought to be taken over and vested
in the executive, which would be opposed to the basic
structure of the Constitution of India. Mr. Bhushan
emphasized that by permitting the provisions in Section 28
to continue, the State Legislature and Executive are trying
to deprive the elected representatives of their fundamental
rights enshrined in Part III and Part IX of the
Constitution of India. Relying on the judgment of this
Court in I.R. Coelho Vs. Union of India[4]. He has
submitted that fundamental rights include within itself the
right to choose. The aforesaid right to choose would
continue till the tenure of the representative of the
people for which he has been elected is exhausted. The
provision in Section 28 permits such tenure to be
curtailed, which would infringe the fundamental right of
the voters that elected such a member. Giving numerous
examples from different Articles of the Constitution of
India, it is submitted that provision of No Confidence
Motion has been specifically provided wherever it was
intended. As example, he points out Articles 67(b), 90(c),
94(c) providing for No Confidence Motion for the removal of
Vice President, Deputy Chairman of the Council of States
and the Speaker or Deputy Speaker of the House of people
respectively. He also points out that there are
offices/posts in the Constitution, which are filled up
through a process of election but the persons so elected
can not be removed by way of moving a Motion for No
Confidence. For example, he relies on Article 80(4),
81(1)(a) and Article 54. Therefore, Rajya Sabha Members,
Lok Sabha Members and President of India can not be removed
by moving a Motion for No Confidence. Mr. Bhushan submits
that the question here is as to whether the No Confidence
provisions contained in the Act can continue after the
amendment of the Constitution. A provision for moving a
Motion for No Confidence is in other words the right to
recall of an elected member by the voters. The
Constitution may or may not provide for moving a Motion for
No Confidence. He submitted that provision for moving the
Motion for No Confidence is not necessarily part of
democracy. In fact, right to recall an elected member has
not been legally recognized. In support of this
submission, he makes a reference to Article 243N read with
Article 243(c)(iv) and (v) and in particular, sub-clause
5(b). He further submits that the reservation was
introduced for the first time by 73rd amendment, which
incorporated Article 243 in the Constitution of India
w.e.f. 24th April, 1993. He, thereafter, outlined the
various provisions for reservation of seats as contained in
Article 243D. It is emphasized that the provision
contained in Article 243D(ii) makes it mandatory that not
less than one third of the total number of seats reserved
under Clause 1 shall be reserved for ladies belonging to
the Scheduled Castes or as the case may be, the Scheduled
Tribes. Articles 243F(1)(a) and Article 243F(1)(b) which
correspond to Article 102 and 103 provides for
disqualification for being chosen as, and for being a
member of a Panchayat. Mr. Bhushan submitted that the
Constitution provides for removal and consequential
disqualification. This would not apply to a vote of No
Confidence. This would tantamount to giving the voters a
right to recall which does not exist in law in so far as
Panchayat Adhyaksha is concerned. Learned senior counsel
further submitted that Article 243 makes provision for
reservation, to advance the aim of our Constitution for the
upliftment of the poor sections of the society. Therefore,
the Parliament has taken extra care to ensure that such
members of the weaker society once elected should not be
removed by the strongest segment of the society by bringing
a Motion of No Confidence. He reiterated that wherever it
was felt necessary, the Parliament had provided for moving
a Motion of No Confidence. He has made a specific
reference to Articles 89, 90, 93, 94(c), 80(iv), 81, 54,
61, 66 and 67(b).
(vii) In support of the submission that Section 28 of the Act is
repugnant to Part IX of the Constitution of India, in
particular, Article 243N. The learned senior counsel
relied on a number of judgments of this Court:-
Deep Chand Vs. State of U.P.[5], Zaverbhai Amaidas Vs.
State of Bombay[6], N. Bhargawan Pillai Vs. State of
Kerala[7], State of U.P. Vs. Synthetics and Chemicals
Ltd.[8], Babu Parasu Kaikadi Vs. Babu[9], Nirmaljeet Kaur
Vs. State of M.P.[10], Zee Telefilms Ltd. Vs. Union of
India[11], Board of Control for Cricket in India Vs. Netaji
Cricket Club[12]
(viii) Learned senior counsel then submitted that the
judgment in Bhanumati & Ors. (supra) is per incuriam as the
issue with regard to the reservation had not been
considered at all. The judgment also does not consider the
provisions where specifically Motion for No Confidence has
not been provided. It is also submitted that most of the
judgment is obiter. In fact, Mr. Bhushan submitted that
the judgment is a treatise in law and should be given the
same status.
(ix) Mr. Bhushan then addressed us on the issue as to whether
the SLP would be maintainable against the judgment rendered
in review without challenging the judgment of which the
review was sought. The learned senior counsel submitted
that firstly the petitioner had challenged the main writ
petition by way of SLP No. 8542 of 2013. The same was
disposed of with opportunity to file review petition before
the High Court after noticing the objections raised by the
petitioner, which were not considered by the High Court.
The earlier judgment of the High Court in the writ petition
clearly merged in the judgment of the High Court dismissing
the review petition. Therefore, it was necessary only, in
the peculiar facts of this case, to challenge only the
judgment of the High Court in the review petition. It is
submitted by Mr. Shanti Bhushan that Section 114 of the CPC
contains no limits on the circumstances under which the
Court can review its own judgment. The section merely
states that the person aggrieved may apply for a review of
judgment to the Court, which passed the decree or made the
order, and the Court may make such order on it as it thinks
fit. So far as the High Court is concerned, it would have
inherent powers to review any decision.
(x) Learned senior counsel elaborated that Section 114 CPC
gives full powers to the Court to pass any order in the
interest of justice. It can not be curtailed by the Rules
made by the High Court or the Supreme Court. These Rules
can be amended by the High Court or the Supreme Court but
Section 114 can only be amended by the Parliament. He
points out that Section 121 and 122, which permits the High
Court to make their own rules on the procedure to be
followed in the High Court as well as in the Civil Court
subject to their superintendence. Learned senior counsel
further submitted that even Order 47 Rule 1 does not
curtail the power to review which is untrammeled.
According to Mr. Bhushan, Section 114 is incorporated in
Order 47 Rule 1 as it provides that review can be made by
the Courts either on facts as well as on law. The Court
has a power to rehear the entire matter in order to do
complete justice between the parties. Mr.
Bhushan further pointed out that Section 151 CPC is also
part of the same scheme to do complete justice between the
parties. It is emphasized that the powers of the Courts
have not been curtailed by the Code of Civil Procedure. In
fact, it is well known that the provisions of Code of Civil
Procedure are a hand maiden to justice. He, therefore,
submitted that full play should be given to the expression
“or for any other sufficient reason” to ensure that the
Court can do complete justice. The principle of Ejusdem
Generis should not be applied for interpreting these
provisions. Learned senior counsel relied on Board of
Cricket Control (supra). He relied on Paragraphs 89, 90
and 91. learned senior counsel also relied on S. Nagaraj &
Ors. Vs. State of Karnataka & Anr.[13] He submits finally
that all these judgments show that justice is above all.
Therefore, no constraints can be put on the power to review
of the Court. Mr. Bhushan also relied on Green View Tea &
Industries Vs. Collector, Golaghat, Assam & Anr.[14]
(xi) Mr. Bhushan has submitted that grounds for challenging the
theories of the Act of the anvil of Article 243 or will be
read into Prayers 1and 2(i) wherein a specific declaration
is sought that the provision is ultra vires to the
Constitution of India. Mr. Bhushan then referred to
Article 243N. He reiterated that the provision in Section
28 ceased to exist after one year. Therefore, it was not
necessary to plead as Section 28 would ipso facto be
rendered unconstitutional. He reiterated on the basis of
Paragraphs 20 and 21 that necessary averments have been
made that provision for No Confidence Motion is not
provided for in Part IX of the Constitution of India.
Therefore, if Paragraph 28 and Paragraph 31 are read with
Ground F, it would clearly indicate that the removal under
the Act can only be under Section 29 which does not provide
for moving a Motion for No Confidence.
(xii) Coming back to the submission that Section 28 is
inconsistent with Part IX of the Constitution of India, he
submits that Part IX is a complete code in relation to
Panchayats. Therefore, State Legislature can not make a
provision inconsistent to Part IX. Similar power has been
reserved for the Stated Legislature as exceptions as
enumerated in Articles 243a, 243C(iv) & (v). He further
submitted that Article 243f, 243G and 243H only give
limited powers to the State Legislature. This clearly show
that Part IX is a complete code. Therefore, unless power
is specifically conferred on the State Legislature, it
would not be competent to legislate on matters which are
specifically dealt with in Part IX. He also refers to
Articles 243I (ii), (iii) & (iv), J(iv) and K to emphasise
that even in these Articles no provision existed for moving
a Motion for No Confidence. Finally, it is submitted by
Mr. Shanti Bhushan that since the issues raised in the
appeal entail interpretation of the provisions of the
Constitution of India, the matter needs to be referred to
at-least five judges.
(xiii) Mr. Ashok Desai, learned senior counsel appearing
for Respondent No. 5 has submitted that admittedly the
petitioner does not enjoy the confidence of the majority of
the members of the Panchayat. She has not even challenged
the result of the No Confidence vote. He has given an
elaborate explanation of all the proceedings, which we have
recounted earlier.
(xiv) Countering the submissions of Mr. Shanti Bhushan that the
Petitioner belongs to the Scheduled Casts, therefore, she
is entitled to special protection, Mr. Ashok Desai has
submitted that this issue was not raised in the writ
petition or even in the review petition and is sought to be
raised for the first time before this Court. He further
pointed out that the petitioner did not contest the
election of Adhyaksha as a member of Scheduled Castes but
as a lady candidate for whom the seat was reserved. He
further submitted that the present case is, in any event,
squarely covered by the judgment of this Court in Bhanumati
& Ors. (supra). Therefore, there is no need for embarking
on a fresh reconsideration of all the issues. He has
submitted that the submission of Mr. Shanti Bhushan that
the earlier judgment was confined to the amendment of
Section 28 and not the original statute is a result of
misreading of judgment. The judgment of this Court in
Bhanumati & Ors. (supra) clearly applies in the facts and
circumstances of this case and, therefore, the Special
Leave Petition deserves to be dismissed. Learned senior
counsel elaborated that the submission with regard to
Section 28 of the Act being inconsistent with Part IX of
the Constitution deserves to be rejected outright. This
submission can only be considered on the basis of precise
pleadings in the present case. Except for making a
statement that the provision in the act is inconsistent
with Part IX of the Constitution, no other reasons are
given.
(xv) This apart, Section 28 can not be said to be contrary to
the foundational principles of democracy. These provisions
are referring to Sections 17, 18, 21 and 28 of the Act.
The learned senior counsel submitted that the aforesaid
provisions are to ensure that the Adhyaksha always enjoys
confidence of the constituency while in power during the
term for which such a person is elected.
(xvi) Mr. P.N. Mishra appearing for Respondent No.1 to 4
submitted that the Special Leave Petition deserves to be
dismissed on the short ground that it is filed only against
the judgment rendered by the High Court in review petition.
He has relied on judgment of this Court in Shanker Motiram
Nale Vs. Shiolalsing Gannusing Rajput[15]. He also relied
on an unreported judgment in Sandhya Educational Society &
Anr. Vs. Union of India & Ors. [SLP(C) No. 2429 of 2012] to
the same effect. He submitted that the powers of review
would not permit this Court to reopen the entire issue and
to rehear the entire matter on merits. The review is
limited to the provision contained in Section 114 CPC read
with Order 47 Rule 1. He submits that under this
provision, review is limited only to circumstances where
review is sought on discovery of new and important matter;
or where evidence could not be produced in spite of
exercise of due diligence or on account of some mistake or
error apparent on the face of the record. He submits that
the expression “or for any other sufficient reason” would
not permit the Court to reopen the entire issue, which has
already been judicially determined. This apart, according
to the learned counsel, the petitioner has failed to show
that injustice has been done to her in the face of the fact
that majority of the members of her constituency have voted
in favour of the No Confidence Motion. Learned senior
counsel further submitted that it is a matter of record
that the No Confidence Motion was not challenged on merits.
Therefore, the SLP deserves to be dismissed.
(xvii) Mr. Shanti Bhushan in reply submitted that these
submissions of Mr. Ashok Desai and Mr. Mishra are
fallacious as no Act of Parliament can interfere with the
powers of this Court under Article 136. In the event, this
Court holds that SLP is only against the judgment of review
and is not maintainable, it would tantamount to amending
Article 136 of the Constitution of India. The learned
senior counsel submitted that the discretion of this Court
cannot be whittled down let alone taken away as suggested
by the learned senior counsel appearing for the
respondents. Even on facts, Mr. Bhushan submitted that the
main judgment was challenged. In the judgment relied upon
by Mr. Mishra in State of Assam Vs. Ripa Sarma (supra), the
impugned judgment had not been challenged. Therefore, this
Court said that no SLP would be maintainable only against
the judgment of the High Court rendered in a review
petition, without challenging the main judgment. He
reiterated that the judgment in Bhanumati & Ors. (supra) is
mostly “obiter”. It is also per incuriam as reservation for
Scheduled Castes and Scheduled Tribes had not been taken
into consideration.
17. We have considered the submissions made by the learned counsel for the
parties.
18. We are not able to accept the submission of Mr. Shanti
Bhushan that the provision contained in Section 28 of the Act are, in
any manner, inconsistent with the provisions contained in Part IX, in
particular, Article 243N of the Constitution of India.
19. Section 19 of the Act provides that in every Zila Panchayat, an
Adhyaksha shall be elected by the elected members of the Zila
Panchayat through amongst themselves. Section 19-A was introduced by
U. P. Act No.9 of 1994 providing for reservation of the offices of
Adhyaksha, for persons belonging to Scheduled Casts and Scheduled
Tribes and the Backward Classes. It is, however, provided that the
number of offices of Adhyaksha, so reserved, shall bear, as nearly as
may be the same proportion to the total number of such offices in the
State as the population of the Scheduled Castes, Scheduled Tribes and
the Backward Classes in the State, bears to the total population of
the State. The Section even provides that the offices so reserved
shall be allotted by rotation to different Zila Panchayats in the
State in such manner as may be prescribed by the State Government. But
the reservation for the Backward Classes shall not exceed 27% of the
total number of offices of the Adhyakshas in the State. Section 19-
A(2) is important in the present context which provides that “not less
than one-third of the offices shall be reserved for the ladies
belonging to the Scheduled Castes, Scheduled Tribes or the Backward
Classes as the case may be.” Under this Section, on a seat reserved
for the aforesaid categories of Scheduled Castes, Scheduled Tribes and
the Backward Classes, a person belonging to that category would be
elected from a particular Panchayat in which reservation is made on
the basis of the roster provided in Section 19-A(3). Section 20 of the
Act provides that a Zila Panchayat shall continue for five years from
the date appointed for its first meeting and no longer. It is also
provided that Section 20(2) that the term of office of a member of a
Zila Panchayat shall expire with the term of Zila Panchayat unless
otherwise determined under the provisions of the Act. Section 21
provides that save as otherwise provided in this Act, the term of
office of the Adhyaksha shall commence on his election and with the
term of Zila Panchayat. Section 23 provides for disqualification for
corrupt practices, which is not applicable in the present case.
Section 24 provides for resignation of Adhyaksha, again not applicable
in the present case. Section 25 relates to filing of casual vacancy,
again not applicable in this case. Section 26 provides for
disqualification for being a member or an Adhyaksha in case a person
has incurred any disqualification for being elected as a member of the
Panchayat.
20. The whole debate in this case centres around Section 28, which
provides for a Motion of No Confidence in Adhyaksha. The section
provides detailed procedure with regard to the issuance of written
notice of intent to make the motion, in such form as may be
prescribed, signed by not less than one-half of the total number of
the elected members of the Zila Panchayat for the time being. Such
notice together with the copy of the proposed motion has to be
delivered to the Collector having jurisdiction over the Zila
Panchayat. Therefore, the Collector shall convene a meeting of the
Zila Panchayat for consideration of the motion on a date appointed by
him which shall not be later than 30 days the date from which the
notice was delivered to him. The Collector is required to give a
notice to the elected members of not less than 15 days of such meeting
in the manner prescribed. The meeting has to be presided over by the
District Judge or a Civil Judicial Officer not below the rank of a
Civil Judge. Interestingly, the debate on the motion cannot be
adjourned by virtue of provisions contained in Section 28(7). Sub-
section (8) further provides that the debate on the No Confidence
Motion shall automatically terminate on the expiration of 2 hours from
the time appointed for the commencement of the meeting, if it is not
concluded earlier. Either at the end of 2 hours or earlier, the motion
has to be put to vote. Further more, the Presiding Officer would be
either District Judge or a Judicial Officer is not permitted to speak
on the merits of the motion, and also not entitled to vote. Sub-
section (11) provides that “if the motion is carried with the support
of (more than half) of the total number of (elected members) of the
Zila Panchayat for the time being”. In our opinion, the aforesaid
provision contained in Section 28 is, in no manner, inconsistent with
the provisions contained in Article 243N. To accept the submission of
Mr. Bhushan of inconsistency would be contrary to the fundamental
right of democracy that those who elect can also remove elected person
by expressing No Confidence Motion for the elected person.
Undoubtedly, such No Confidence Motion can only be passed upon
observing the procedure prescribed under the relevant statute, in the
present case the Act.
21. We are unable to accept the submission of Mr. Bhushan that
removal of Adhyaksha can only be on the grounds of misconduct as
provided under Section 29 of the Act. The aforesaid Section provides
that a procedure for removing an Adhyaksha who is found guilty of
misconduct in the discharge of his/her duties. This Section, in no
manner, either overrides the provisions contained in Section 28 or is
in conflict with the same.
22. We also do not agree with the submission of Mr. Bhushan that Section
28 could not have continued after expiry of one year of the enactment
of 73rd Amendment of the Constitution of India, which came into effect
on 24th April, 1993. Such an eventuality would have
arisen only in case it was found that Section 28 is inconsistent with
any provision of Part IX of the Constitution. Merely because Article
243F is silent with regard to the removal of an Adhyaksha on the basis
of a Motion of No Confidence would not render the provision
inconsistent with the Article 243 of the Constitution of India.
23. We also do not find any merit in the submission of Mr. Bhushan that
the petitioner being a Scheduled Caste Lady cannot be removed through
a vote of No Confidence. We do not find any merit that the provisions
contained in Section 28 would frustrate the provisions for reservation
for Scheduled Caste Ladies. Even if an Adhyaksha belonging to one of
the reserved categories, Scheduled Castes, Scheduled Tribes and other
Backward Classes is removed on the basis of the vote of No Confidence,
she can only be replaced by a candidate belonging to one of the
reserved categories. Therefore, the submission of Mr. Shanti
Bhushan seems to be focused only on the petitioner, in particular, and
not on the candidates elected from the reserved categories, in
general. The submission is wholly devoid of any merit and is hereby
rejected.
24. We are entirely in agreement with Mr. Shanti Bhushan that Part IX of
the Constitution has made provisions for self-governance at Panchayat
level, including the election of Panchayat Members and its Chairman.
Thus, ushering in complete decentralization of the Government and
transferring the power to the grass roots level bodies; such as the
Panchayats at the village, intermediate and District level, in
accordance with Article 243C of the Constitution. Article 243C is as
under:
“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.
(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 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.”
This Article as well as some others, such as Articles 243-A, 243-
C(5), 243-D(4), 243-D(6), 243-F(1), (6), 243-G, 243-H, 243-I(2), 243-
J, 243-K(2), (4) of the Constitution etc make provision for the State
to enact necessary legislation to implement the provisions in Part IX
of the Constitution of India. Therefore, we are not able to agree with
the submission of Mr. Bhushan that State Legislature will have no
power to make provision for no-confidence motion against the Adhyaksha
of Zila Panchayat.
25. We are also unable to agree with the submission of
Mr. Bhushan that a person once elected to the position of Adhyaksha
would be permitted to continue in office till the expiry of the five
years terms, even though he/she no longer enjoys the confidence of the
electorate. To avoid such catastrophe, a provision for no-confidence,
as observed earlier, has been made in Section 28 of the Act. The
extreme submission made by Mr. Bhushan, if accepted, would destroy the
foundational precepts of democracy that a person who is elected by the
members of the Zila Panchayat can only remain in power so long as the
majority support is with such person.
26. We also do not find any merit in the submission of Mr. Bhushan that
permitting the provision contained in Section 28 of the Act to remain
on the statute book would enable the executive to deprive the elected
representatives of their fundamental rights enshrined in Part III and
Part IX of the Constitution of India. In our opinion, the ratio of the
judgment in I.R.Coelho (supra) relied upon by Mr. Bhushan is wholly
inapplicable in the facts and circumstances of this case. There is no
interference whatsoever in the right of the electorate to choose.
Rather Section 28 ensures that an elected representative can only stay
in power so long as such person enjoys the support of the majority of
the elected members of the Zila Panchayat. In the present case, at the
time of election, the petitioner was the chosen one, but, at the time
when the Motion of No Confidence in the petitioner was passed, she was
not wanted. Therefore, the right to chose of the electorate, is very
much alive as a consequence of the provision contained in Section 28.
27. We are unable to accept the submission of Mr. Bhushan that
the provisions contained in Section 28 of the Act cannot be sustained
in the eyes of law as it fails to satisfy the twin test of reasonable
classification and rational nexus with the object sought to be
achieved. In support of this submission, Mr. Bhushan has relied on the
judgment of this Court in D.S. Nakara vs. Union of India[16]. We fail
to see how the provisions contained in Section 28 of the Act would
take away the autonomy of the Panchayati Raj Institutions. In our
opinion, the judgments relied upon by Mr. Bhushan in support of the
submissions that provisions of No Confidence Motion in Section 28 of
the Act would put the executive authorities in the State in control of
Village Panchayats or District Panchayats. Apart from the use of
superlatives, that the party now in power is trying to remove all the
office holders of Panchayats in U.P. belonging to the opposite party,
no other material has been placed on the record.
28. It is true that in the Constitution, Article 67B provides for removal
of the Vice-President by a resolution of the Council of States as
provided therein passed by the majority of all the then members of the
Council and agreed to by the House of People. It is also correct that
under Article 90C, the Deputy Chairman of the Council of States can be
removed from his office on a resolution of the Council passed by all
the majority members of the then Council. Similarly, Article 94
provides that a member of holding office as Speaker or Deputy Speakers
of the House of People may be removed from his office by a resolution
of the House of People passed by a majority of all the then members of
the House.
29. It is also true that there are certain positions in the Constitution,
which are filled up through election but individuals so elected cannot
be removed by way of No Confidence Motion, e.g. Rajya Sabha Members,
Lok Sabha Members and the President of India. We are, however, unable
to accept the submission of Mr. Bhushan that Part IX of the
Constitution of India has placed office of an Adhyaksha of a Zila
Panchayat on the same pedestal as the President of India. Article 243F
empowers the States to enact any law for a person who shall be
disqualified for being chosen as a member of a Panchayat. This would
also include a member of a Panchayat, who is subsequently appointed as
Adhyaksha of a Zila Panchayat. There is no prohibition under Article
243F disenabling any State Legislature for enacting that an elected
Adhyaksha shall remain in office only so long as such elected person
enjoys the majority support of the elected members of the Zila
Panchayat. Therefore, we have no hesitation in rejecting the aforesaid
submissions of Mr. Shanti Bhushan.
30. The submissions of Mr. Bhushan on depriving a candidate belonging to
the reserved category of a position to which he or she has been
elected on the basis of reservation are wholly fallacious. The seat
for the office of Adhyaksha of Zila Panchayat was reserved for women
candidates, i.e., all women candidates. It was not specifically
reserved for Ladies belonging to the reserved categories of Scheduled
Castes, Scheduled Tribes and the Backward Classes. The petitioner
contested as a Lady Candidate and not as a candidate belonging to any
reserved category and was elected on a seat reserved for Ladies
generally.
31. Having said all this, we would like to point out that in normal
circumstances the present SLP would not have been entertained. Dr.
Rajiv Dhawan and Mr. Ashok Desai had pointed out at the very initial
hearing that the SLP would not be maintainable as it challenges only
the judgment of the High Court rendered in review petition. The main
judgment dated 5th February, 2013 rendered in W.P.(C) No.9654 of 2012
which has been reviewed by the High Court in the impugned order has
not been challenged. As a pure statement of law, the aforesaid
proposition is unexceptionable. However, in the present case, we have
been persuaded to entertain the present SLP in view of the order
passed by this Court on 19th February, 2013. In Ripa Sarma
case (supra), it was not disputed before this Court that the judgment
and order dated 20th November, 2007 passed in Ripa Sarma (supra) was
not challenged by way of an SLP before this Court. Relying on Order 47
Rule 7 of the Code of Civil Procedure, 1908 and the earlier judgments
of this Court it was held that :
“In view of the above, the law seems to be well settled that in
the absence of a challenge to the main judgment, the special
leave petition filed challenging only the subsequent order
rejecting the review petition, would not be maintainable.”
32. With regard to the second submission of Dr. Dhawan and
Mr. Ashok Desai that the issue raised in the present proceeding is no
longer res integra in view of the law laid down by this Court in
Bhanumati (supra), we are of the opinion that the submission deserves
to be accepted, in so far as the matter is covered by the ratio laid
down in Bhanumati (supra).
33. A careful perusal of the judgment of this Court in Bhanumati (supra)
would show that this Court had considered the provisions contained in
all the Articles Part IX of the Constitution, in all its hues and
colours. However, it appears that the issue with regard to the adverse
impact of the provision in Section 28 of the Act on the reservation
for Scheduled Castes, Scheduled Tribes and other Backward Classes was
neither argued nor considered. We have, therefore, examined the issue
raised by Mr. Bhushan.
34. In our opinion, the provision under Section 28A of the Act in no
manner dilutes or nullifies the protection given to the candidates
belonging to Scheduled Castes, Scheduled Tribes and Backward Classes
in the 73rd Amendment of the Constitution of India. Therefore, we
accept the submission of Dr. Dhawan and Mr. Ashok Desai that in view
of the law laid down in Bhanumati’s case (supra), the issue is no
longer res integra.
35. As noticed earlier, we have been persuaded to entertain the Special
Leave Petition as Mr. Bhushan had highlighted that permitting the Vote
of No Confidence as a ground for disqualifying an elected Zila
Panchayat Adhyaksha, Zila Panchayat would leave a candidate, elected
from the reserved categories of Scheduled Castes/ Scheduled Tribes,
vulnerable to unjustified attacks from the elected members of the
general category. This issue was not raised before the High Court
either in original writ petition being W.P. No. 9654 of 2012 nor was
it raised before the High Court in the Review Petition. However, in
view of the seminal importance of the issue raised, we had entertained
the Special Leave Petition. Having said that, it must be pointed out
that the raising of such an issue is neither justified nor relevant in
the facts of the present case. As pointed out earlier, the petitioner
herein had contested the election as an Adhyaksha, Zila Panchayat from
a seat reserved for Ladies. Merely because she happens to belong to
the reserved category, it can not be permitted to be argued, that the
provision with regard to the reservation for the members of the
Scheduled Castes/Scheduled Tribes/Backward Classes has been in any
manner diluted, let alone nullified. It has been specifically noted
in the Statement of Objects and Reasons of the 73rd
Amendment as follows:-
“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
Castes, Scheduled Tribes and Women, inadequate devolution of
powers and lack of financial resources.
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 organise 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.”
36. The provisions of the 73rd Constitutional amendment are to ensure that
Panchayati Raj Institutions acquire “the status and dignity of viable
and responsive people’s bodies”. The provisions are not meant to
provide an all pervasive protective shield to an Adhyaksha, Zila
Panchayat, even in cases of loss of confidence of the constituents.
Provision in Section 28, therefore, cannot be said to be repugnant to
Part IX of the Constitution of India.
37. In our opinion, the amendment as well as the main provision in
Section 28 is in absolute accord with the vision explicitly enunciated
in the Preamble of the Constitution of India. In fact, the spirit
which led to ultimately encoding the goals of “WE THE PEOPLE” in the
Preamble of the Constitution of India, permeates all other provisions
of the Constitution of India. The fundamental aim of the Constitution
of India is to give power to the People. Guiding spirit of the
Constitution is “WE THE PEOPLE OF INDIA”. In India, the People are
supreme, through the Constitution of India, and not the elected
Representatives. Therefore, in our opinion, the provision for right to
recall through the Vote of No Confidence is in no manner repugnant to
any of the provisions of the Constitution of India.
38. Upon examination of the entire Scheme of the 73rd Amendment, in
the context of framing of the Constitution of India, this Court in
Bhanumati & Ors. (supra), observed as follows:-
“54. The argument that as a result of the impugned amendment
stability and dignity of the Panchayati Raj institutions has
been undermined, is also not well founded. As a result of no-
confidence motion the Chairperson of a panchayat loses his
position as a Chairperson but he remains a member, and the
continuance of panchayat as an institution is not affected in
the least.”
We are in respectful agreement with aforesaid conclusion.
39. We reiterate the view earlier expressed by this Court in Bhanumati &
Ors. (supra), wherein this Court observed as follows:-
“57. It has already been pointed out that the object and the
reasons of Part IX are to lend status and dignity to Panchayati
Raj institutions and to impart certainty, continuity and
strength to them. The learned counsel for the appellant
unfortunately, in his argument, missed the distinction between
an individual and an institution. If a no-confidence motion is
passed against the Chairperson of a panchayat, he/she ceases to
be a Chairperson, but continues to be a member of the panchayat
and the panchayat continues with a newly-elected Chairperson.
Therefore, there is no institutional setback or impediment to
the continuity or stability of the Panchayati Raj institutions.
58. These institutions must run on democratic principles. In
democracy all persons heading public bodies can continue
provided they enjoy the confidence of the persons who comprise
such bodies. This is the essence of democratic republicanism.
This explains why this provision of no-confidence motion was
there in the Act of 1961 even prior to the Seventy-third
Constitution Amendment and has been continued even thereafter.
Similar provisions are there in different States in India.”
40. The whole edifice of the challenge to the constitutionality of Section
28 is built on the status of the petitioner as a member belonging to
the reserved category. It has nothing to do with the continuance,
stability, dignity and the status of the Panchayat Institutions. In
our opinion, the personal desire, of the petitioner to cling on to the
office of Adhyaksha is camouflaged as a constitutional issue. The
provision of No Confidence Motion, in our opinion, is not only
consistent with Part IX of the Constitution, but is also foundational
for ensuring transparency and accountability of the elected
representatives, including Panchayat Adhyakshas. The provision sends
out a clear message that an elected Panchayat Adhyaksha can continue
to function as such only so long as he/she enjoys the confidence of
the constituents.
Is Bhanumati & Ors. per incuriam ?
41. This submission again, in our opinion, is not well founded. The only
ground urged in support of the submission by Mr. Shanti Bhushan was
that this Court in Bhanumati & Ors. (supra) had not considered the
provision with regard to special protection to be given to the members
of the Scheduled Castes, Scheduled Tribes and the Backward Classes.
Firstly, such a submission was never made before this Court in
Bhanumati & Ors. (supra). Secondly, as we have already pointed out
earlier, the issue with regard to reservation for Scheduled Castes,
Scheduled Tribes and the Backward Classes, does not arise in the facts
of this case as the petitioner had not been elected to the office of
Adhyaksha of Zila Panchayat reserved for Scheduled Castes and
Scheduled Tribes. Mr. Ashok Desai has placed before us enclosure to
Government Order No.2746/33-1-2010-37G/2000 dated 15th September, 2010
indicating reservation for the year 2010 for the office of Adhyaksha
of Zila Panchayat, District wise in the State of Uttar Pradesh. The
order is divided into two columns: Districts’ reserved for Schedule
Caste Lady and Districts’ reserved for Ladies. Extract of the
aforesaid order is as follows:-
|Districts’ reserved for |Districts’ reserved for Ladies |
|Schedule Caste Lady | |
|S.No. |District |S.No. |District |
|1 |Chatrapati Sahuji |1 |Allahabad |
| |Maharajnagar | | |
|2 |Sant Ravidas Nagar |2 |Sitapur |
| |(Bhadohi) | | |
|3 |Jaunpur |3 |Hardoi |
|4 |Ghajipur |4 |Lakhimpur Khiri |
|5 |Sant Kabir Nagar |5 |Azamgadh |
42. It is a matter of record that the petitioner was elected as Panchayat
Adhyaksha of Sitapur District Reserved for Ladies, it is not reserved
for a Schedule Caste Lady. Therefore, we are not able to accept the
submission of Mr. Bhushan.
43. We also do not accept the submission of Mr.
Bhushan that the aforesaid judgment needs reconsideration. A perusal
of the judgment would show that this Court traced the history leading
upto the insertion of Article 40 of the Constitution of India. The
Court examined the relevant commentaries of many learned authors,
Indian as well as Foreign; Constituent Assembly Debates; and concluded
as follows :
“13. The Constitution’s quest for an inclusive governance voiced
in the Preamble is not consistent with panchayat being treated
merely as a unit of self-government and only as part of
directive principle. If the relevant Constituent Assembly
Debates are perused one finds that even that constitutional
provision about panchayat was inducted after strenuous efforts
by some of the members. From the debates we do not fail to
discern a substantial difference of opinion between one set of
members who wanted to finalise the Constitution solely on the
parliamentary model by totally ignoring the importance of
panchayat principles and another group of members who wanted to
mould our Constitution on Gandhian principles of Village
Panchayat.”
44. The Court emphasized that Dr. Rajendra Prasad was the strongest critic
of the Draft Constitution, who had opined that “the village has been
and will even continue to be our unit in this country.” (Para 15). The
Court further notices the opinion of Mr. M.A. Ayangar and Mr. N.G.
Ranga, both of whom suggested some amendments to the Draft
Constitution. The Court also notices that a similar opinion was
expressed by Mr. S.C. Mazumdar, who had struck a balance
between Gandhian Principles and the Parliamentary model of the
Constitution. The insertion of Article 40 was accepted by Dr.
Ambedkar. This Court further notices the opinion of Seth Govind Das
from the Central Provinces and Berar (Constituent Assembly Debates
Vol. VII, PP.523-24) (See Paras 12 to 20).
45. Thereafter, the Court notices that “in other representative
democracies of the world committed to a written Constitution and Rule
of Law, the principles of self-Government are also part of the
Constitutional doctrine.” The Court emphasized that under
the 73rd Amendment of the Constitution, Panchayats become
“Institution of self-governance, which was previously a mere unit
under Article 40”. It was emphasized that the 73rd Amendment heralded
a new era, which is a turning point in the history of local self-
governance (Para 22). It was also emphasized that the 73rd Amendment
is very powerful “tool of social engineering” (Para 24). We reiterate
the opinion of this Court that as 74% of the Indian population live in
villages, it is necessary to ensure that the power of governance
should vest in the smallest units of the Panchayat having its
hierarchy as provided under various Panchayat Acts throughout the
country. The judgment analyses the changes introduced by the 73rd
Amendment and concludes as follows :
“34. The changes introduced by the Seventy-third Amendment of
the Constitution have given Panchayati Raj institutions a
constitutional status as a result of which it has become
permanent in the Indian political system as a third Government.
On a careful reading of this amendment, it appears that under
Article 243-B of the Constitution, it has been mandated that
there shall be panchayat at the village, intermediate and
district levels in accordance with the provisions of Part IX of
the Constitution.”
46. This Court concluded upon examination of the Constitutional scheme
introduced by the 73rd Amendment as
follows:
“39. Thus, the composition of the panchayat, its function, its
election and various other aspects of its administration are now
provided in great detail under the Constitution with provisions
enabling the State Legislature to enact laws to implement the
constitutional mandate. Thus, formation of panchayat and its
functioning is now a vital part of the constitutional scheme
under Part IX of the Constitution. Obviously, such a system can
only thrive on the confidence of the people, on those who
comprise the system.”
47. In our opinion, the provision for removing an elected representative
such as Panchayat Adhyaksha is of fundamental importance to ensure the
democratic functioning of the Institution as well as to ensure the
transparency and accountability in the functions performed by the
elected representatives.
48. We also do not agree with Mr. Bhushan that the issue with regard to
the constitutionality of Section 28 of the Act was not considered by
this Court in Bhanumati & Ors. (supra). The submission made by the
counsel for the petitioner therein is noticed as follows:
“40. In the background of these provisions, learned counsel for
the appellants argued that the provision of no-confidence, being
not in Part IX of the Constitution is contrary to the
constitutional scheme of things and would run contrary to the
avowed purpose of the constitutional amendment which is meant to
lend stability and dignity to Panchayati Raj institutions. It
was further argued that reducing the period from “two years” to
“one year” before a no-confidence motion can be brought, further
unsettles the running of the panchayat. It was further urged
that under the impugned amendment that such a no-confidence
motion can be carried on the basis of a simple majority instead
of two-thirds majority dilutes the concept of stability.”
From this it is evident that the provision of No Confidence
Motion in Section 28 was challenged on three grounds:
(a) It would be repugnant to the Scheme of the 73rd Amendment.
(b) It would unsettle the running of the Panchayat.
(c) It would dilute the concept of stability.
49. Upon consideration of the relevant provisions contained in various sub-
articles of Article 243 and in particular, Article 243C(v), this Court
concludes as under:
“41. This Court is not at all persuaded to accept this argument
on various grounds discussed below. A Constitution is not to
give all details of the provisions contemplated under the scheme
of amendment. In the said amendment, under various articles,
like Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6), 243-
F(1), (6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2), (4) of the
Constitution, the legislature of the State has been empowered to
make law to implement the constitutional provisions.
43. Therefore, the argument that the provision of no-confidence
motion against the Chairman, being not in the Constitution,
cannot be provided in the statute, is wholly unacceptable when
the Constitution specifically enables the State Legislature to
provide the details of election of the Chairperson.”
The Court also mentions that the statutory provision of No
Confidence Motion against the Chairperson is a pre-constitutional
provision and was there in Section 15 of the 1961 Act (Para 44).
After taking into consideration Article 243N of the Constitution of
India, it is observed as follows:-
“45. It is clear that the provision for no-confidence motion
against the Chairperson was never repealed by any competent
legislature as being inconsistent with any of the provisions of
Part IX. On the other hand by subsequent statutory provisions
the said provision of no-confidence has been confirmed with some
ancillary changes but the essence of the no-confidence provision
was continued. This Court is clearly of the opinion that the
provision of no-confidence is not inconsistent with Part IX of
the Constitution.”
50. In the face of these findings, it would not be possible to accept the
submission of Mr. Bhushan that the judgment in Bhanumati & Ors.
(supra) is either per incuriam or requires reconsideration.
51. Under Article 243N, any provision of law relating to Panchayats in
force immediately before the 73rd Amendment, which is inconsistent
with Part IX continues to be enforced until amended or repealed. In
the absence of such amendment or repeal, the inconsistent provision
will continue until the expiration of one year from the commencement
of the Constitution (73rd Amendment) Act, 1993. It is a matter of
record that the State of Uttar Pradesh enacted U.P. Panchayat Law
(Amendment) Act, 1994 on 22nd April, 1994 to give effect to the
provisions of Part IX of the Constitution. The pre-existing provision
of No Confidence was not repealed. It was amended subsequently by the
Amendment Act of 1998 (U.P. Act No. 20 of 1998). There was a further
amendment by the Amendment Act of 2007 (U.P. Act No. 4 of 2007). By
this amendment, the period for moving a No Confidence Motion was
reduced from two years to one year. Furthermore the requirement that
for a Motion of No Confidence to be carried, it had to be supported by
a majority of “not less than two third” was reduced to “more than
half”. It was these amendment changes brought about by the Amendment
Act of 2007, which was challenged by the petitioners in the case of
Bhanumati & Ors. (supra). The continuous of the provision of No
Confidence Motion was not even challenged. In spite of the fact that
the challenge was limited only to the amendment, this Court examined
the question as to whether provision for bringing a Motion of No
Confidence in Section 28 of the 1961 Act was repugnant or inconsistent
with Part IX of the Constitution of India. Ultimately, in Paragraph
51, this Court records the following opinion:-
“51. Many issues in our constitutional jurisprudence evolved out
of this doctrine of silence. The basic structure doctrine vis-à-
vis Article 368 of the Constitution emerged out of this concept
of silence in the Constitution. A Constitution which professes
to be democratic and republican in character and which brings
about a revolutionary change by the Seventy-third Constitutional
Amendment by making detailed provision for democratic
decentralisation and self-government on the principle of grass-
root democracy cannot be interpreted to exclude the provision of
no-confidence motion in respect of the office of the Chairperson
of the panchayat just because of its silence on that aspect.”
We are in respectful agreement with the aforesaid opinion.
52. The Court thereafter notices the submission that the position of
Panchayat Adhyaksha is comparable with that of the President of India.
On this analogy, it was submitted that the office of Chairperson, i.e.
Panchayat Adhyaksha should have the same immunity. This Court rejected
the submission with the observation that “this is an argument of
desperation and has been advanced, with respect, without any regard to
the vast difference in constitutional status and position between the
two posts.” Mr. Bhushan has made the same submission before us. We
would like to add here, that even by stretching the imagination beyond
all reasonable bounds, we are unable to accept the submission of Mr.
Bhushan that Chairman of a District Panchayat should be put on the
same pedestal as the President of India.
53. Mr. Shanti Bhushan had also submitted that since the issues raised
herein pertained to the interpretation of the Constitution of India,
the matter needs to be referred to the five Judges as provided in
Article 145(3) of the Constitution of India read with Order VII Rule 2
of the Supreme Court Rules, 1966.
54. We are of the opinion that no substantial question of law arises as
envisaged under Article 145(3) of the Constitution of India as to the
interpretation of the Constitution of India, in the facts and
circumstances of this case. The entire issue has been elaborately, and
with erudition, dilated upon by this Court in Bhanumati & Ors.
(supra). We also do not find any force in the submission of Mr.
Bhushan that there is any occasion for reconsideration of the judgment
of this Court in Bhanumati & Ors. (supra).
55. Mr. Bhushan has relied on numerous judgments of this Court in support
of his submissions. Let us now consider the same.
56. On the issue of repugnancy, Mr. Bhushan has cited following judgments:
(1) I.R.Coelho vs. Union of India (supra) –
In our opinion, the reliance on the aforesaid judgment is wholly
misplaced as the right to choose of the constituents is not curtailed
by Section 28 of the Act. It is only the right of an elected
Chairman/Adhyaksha to continue, who has lost the confidence of the
electorate that has been curtailed.
(2) Deep Chand vs. State of U.P. (supra) –
In this case, this Court culled out the law pertaining to the
rule of repugnancy. The three tests of inconsistency or repugnancy as
formulated by Nicholas in his Australian Constitution 2nd Edition have
been noticed which are as under:
“(1) There may be inconsistency in the actual terms of the
competing statutes;
(2) Though there may be no direct conflict, a State law may be
inoperative because the Commonwealth law, or the award of the
Commonwealth Court, is intended to be a complete exhaustive
code; and
(3) Even in the absence of intention, a conflict may arise when
both State and Commonwealth seek to exercise their powers over
the same subject-matter.”
57. The aforesaid three rules have been accepted by this Court in Ch. Tika
Ramji Vs. State of U.P.[17] Similar test was laid down by this Court
in, Zaverbhai Amaidas Vs. State of Bombay (supra) as follows:
“(1) Whether there is direct conflict between the two
provisions;
(2) Whether Parliament intended to lay down an exhaustive code
in respect of the subject-matter replacing the Act of the State
Legislature and
(3) Whether the law made by Parliament and the law made by the
State Legislature occupy the same field.
58. In our opinion, the provision contained in Section 28 can
not be said to be repugnant to the 73rd Amendment on the
basis of the aforesaid tests laid down by this Court.
59. On the issue of per incuriam, Mr. Bhushan has cited following
judgments:
(1) N. Bhargawan Pillai Vs. State of Kerala (supra) –
Mr. Bhushan had relied on observations made by this Court in
Paragraph 14 of the judgment. It was held that the judgment in the
case of Bore Gowda Vs. State of Karnataka[18] was per incuriam as it
did not consider the impact of Section 18 of the Probation of
Offenders Act, 1958.
In Bhanumati & Ors. (supra), it can not be said that any
relevant provision of the Constitution or the Act had not been taken
into consideration.
(2) State of U.P. Vs. Synthetics and Chemicals Ltd. (supra)
The observations made in Paragraph 86 in the earlier judgment of
Synthetics and Chemicals Ltd. & Ors. Vs. State of U.P. & Ors.[19]
were found to be per incuriam. The aforesaid observations would not
be applicable in the present case as no such legitimate criticism can
be made against the judgment of this Court in Bhanumati & Ors.
(supra).
(3) Babu Parasu Kaikadi Vs. Babu (supra)
This judgment also reiterated the well known principle of per
incuriam. It was held that the judgment in Dhondiram Tatoba Kadam Vs.
Ramchandra Balwantrao Dubal (since deceased) by His LRs. & Anr.[20]
was per incuriam as it had not noticed the earlier binding precedent
of a coordinate Bench and also having not considered the mandatory
provisions as contained in Sections 15 and 29 of the Bombay Tenancy
and Agricultural Lands Act, 1948 (67 of 1948). The well known
principle with regard to a judgment not being a binding precedent as
stated in Halsbury’s Laws of England, 4th Edn., Vol. 26 is as under:-
“A decision is given per incuriam when the court has acted in
ignorance of a previous decision of its own or of a court of
coordinate jurisdiction which covered the case before it, in
which case it must decide which case to follow; or when it has
acted in ignorance of a House of Lords decision, in which case
it must follow that decision; or when the decision is given in
ignorance of the terms of a statute or rule having statutory
force.”
The same principle has been reiterated by this Court in State of
U.P. Vs. Synthetics and Chemicals Ltd. (supra):-
“40. ‘Incuria’ literally means ‘carelessness’. In practice per
incuriam appears to mean per ignoratium. English courts have
developed this principle in relaxation of the rule of stare
decisis. The ‘quotable in law’ is avoided and ignored if it is
rendered, ‘in ignoratium of a statute or other binding
authority’. (Young v. Bristol Aeroplane Co. Ltd.) Same has been
accepted, approved and adopted by this Court while interpreting
Article 141 of the Constitution which embodies the doctrine of
precedents as a matter of law.”
(emphasis supplied)
In our opinion, the judgment in Bhanumati & Ors. (supra) can not
be said per incuriam on the applicability of the aforesaid tests.
(4) Zee Telefilms Ltd. Vs. Union of India (supra)
In this case, again this Court reiterated that a decision is an
authority for the question of law determined by it and that it should
not be read as a statute. A decision is not an authority for the
proposition which did not call for its consideration. These
observations again are of no assistance to the petitioner.
(5) Nirmaljeet Kaur Vs. State of M.P.
In this case also, this Court has reiterated the principles
earlier enunciated. Thus, this judgment is again of no help to the
petitioner.
60. On the submission with regard to the Validity/Legality of a
Legislative Act, reliance was placed upon:
D.S.Nakara vs. Union of India[21]; Union of India vs.
G.Ganayutham[22]; Bharat Petroleum Corporation Ltd. vs. Maddula
Ratnavalli[23] and State of A.P. v/s McDowell & Co.[24]. In our
opinion, all these judgments are inapplicable to the facts of
this case.
61. On the submission with regard to Arbitrary/discretionary/unguided
power to executive authority, Mr. Bhushan relied upon following
judgments:
Senior Superintendent of Post Offices vs. Izhar Hussain[25], Khoday
Distilleries Ltd. vs. State of Karnataka[26], Maganlal Chhagalal (P)
Ltd. vs. Municipal Corporation of Greater Bombay[27] Director of
Industries vs. Deep Chand Agarwal[28]. In our opinion, these judgments
have no application whatsoever either to the legal issue or to the
facts of this case.
62. We have no hesitation in accepting the submission of Mr. Bhushan that
the High Court or this Court, in exercise of its powers of review can
reopen the case and rehear the entire matter. But we must hasten to
add that whilst exercising such power the court cannot be oblivious of
the provisions contained in Order 47 Rule 1 of CPC as well as the
rules framed by the High Courts and this Court. The limits within
which the Courts can exercise the powers of review have been well
settled in a catena of judgments. All the judgments have in fact been
considered by the High Court in Pages 16 to 23. The High Court has
also considered the judgment in S. Nagaraj & Ors. Vs.
State of Karnataka & Anr. (supra), which reiterates the principle that
“19. Review literally and even judicially means re-examination
or re-consideration. Basic philosophy inherent in it is the
universal acceptance of human fallibility. Yet in the realm of
law the courts and even the statutes lean strongly in favour of
finality of decision legally and properly made. Exceptions both
statutorily and judicially have been carved out to correct
accidental mistakes or miscarriage of justice. Even when there
was no statutory provision and no rules were framed by the
highest court indicating the circumstances in which it could
rectify its order the courts culled out such power to avoid
abuse of process or miscarriage of justice……………..”
63. These principles are far too well entrenched in the Indian
jurisprudence, to warrant reiteration. However, for the sake of
completion, we may notice that Mr. Bhushan had relied upon Board of
Control for Cricket in India v/s Netaji Cricket Club (supra), and
Green View Tea & Industries (supra). It would be useful to reiterate
the following excerpts:
In the case of Board of Control for Cricket in India (supra), it
was observed that:
“90. Thus, a mistake on the part of the court which would
include a mistake in the nature of the undertaking may also call
for a review of the order. An application for review would also
be maintainable if there exists sufficient reason therefore.
What would constitute sufficient reason would depend on the
facts and circumstances of the case. The words “sufficient
reason” in Order 47 Rule 1 of the Code are wide enough to
include a misconception of fact or law by a court or even an
advocate. An application for review may be necessitated by way
of invoking the doctrine “actus curiae neminem gravabit”.
This court in Green View Tea & Industries (supra) reiterated the
view adopted by it in S. Nagaraj & Ors (supra). Therefore, the ratio
of Green View Tea is not applicable in this case.
64. In view of the observations made in the aforesaid judgments, this
Court would not be justified in holding that the High Court has erred
in law in not reviewing its earlier judgment.
65. This apart, we have examined the entire issue threadbare ourselves as
the issue with regard to the adverse impact on the candidates
belonging to the reserves categories has not been raised before the
High Court nor considered by it. In the earlier round, the issue was
also neither raised nor considered by this Court. When the order dated
19th February, 2013 was passed, the issue with regard to reservation
was also not canvassed. But now that the issue had been raised, we
thought it appropriate to examine the issue to put an end to the
litigation between the parties.
66. In view of the above, the appeal is accordingly dismissed.
Contempt Petition No.287 of 2013 in CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
67. This Petition was filed by the Petitioner/Appellant, seeking
initiation of contempt proceedings against alleged
contemnors/respondent for disobeying the order of status quo dated
12th July, 2013 passed by this Court in the aforesaid Civil Appeal.
68. In view of the judgment passed by this Court in Civil Appeal No………………
of 2014 (Arising out of SLP (C) No.22035 of 2013), this Petition is
dismissed as having become infructuous.
CIVIL APPEAL NO……………OF 2014 (Arising out of SLP(C) No.29740 of 2013
69. This Civil Appeal was filed by Smt. Rukmini Devi, challenging final
order and judgment dated 19th August, 2013 passed by the High Court of
Judicature at Allahabad, Lucknow Bench in Writ Petition No. (MB) 5999
of 2013.
70. The issues raised in this civil appeal are identical to those that we
have examined in Civil Appeal No……………… of 2014 (Arising out of SLP (C)
No.22035 of 2013). Therefore, in view of the judgment in the Civil
Appeal No……………… of 2014 (Arising out of SLP (C) No.22035 of 2013),
this appeal is also dismissed.
……………………………….J.
[Surinder Singh
Nijjar]
………………………………………….…..J.
[Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
March 28, 2014.
-----------------------
[1] (2013) 3 SCC 63
[2] (2004) 13 SCC 675
[3] (2010) 12 SCC 1
[4] (2007) 2 SCC 1
[5] (1959) Supp. 2 SCR 8
[6] (1955) 1 SCR 799
[7] (2004) 13 SCC 217
[8] (1991) 4 SCC 139
[9] (2004) 1 SCC 681
[10] (2004) 7 SCC 558
[11] (2005) 4 SCC 649
[12] (2005) 4 SCC 741
[13] (1993) Supp. 4 SCC 595
[14] (2004) 4 SCC 122
[15] (1994) 2 SCC 753
[16] (1983) 1 SCC 305
[17] (1956) SCR 393
[18] (2000) 10 SCC 620
[19] (1990 1 SCC 109
[20] (1994) 3 SCC 366
[21] (1983) 1 SCC 305
[22] (1997) 7 SCC 463
[23] (2007) 6 SCC 81
[24] (1996) 3 SCC 709
[25] (1989) 4 SCC 318
[26] (1996) 10 SCC 304
[27] (1974) 2 SCC 402
[28] (1980) 2 SCC 332
