TaxTMI 
TaxTMI 
2014 (3) TMI 1119
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.... 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 variou....
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.... 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....
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....eing 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 t....
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....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 reserve....
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.... 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....
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....nt of this Court in I.R. Coelho Vs. Union of India[(2007) 2 SCC 1]. 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....
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.... (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.[ (1959) Supp. 2 SCR 8], Zaverbhai Amaidas Vs. State of Bombay[(1955) 1 SCR 799], N. Bhargawan Pillai Vs. State of Kerala[(2004) 13 SCC 217], State of U.P. Vs. Synthetics and Chemicals Ltd.[ (1991) 4 SCC 139], Babu Parasu Kaikadi Vs. Babu[(2004) 1 SCC 681], Nirmaljeet Kaur Vs. State of M.P.[ (2004) 7 SCC 558], Zee Telefilms Ltd. Vs. Union of India[(2005) 4 SCC 649], Board of Control for Cricket in India Vs. Netaji Cricket Club[(2005) 4 SCC 741] (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....
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.... 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.[ (1993) Supp. 4 SCC 595] 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.[ (2004) 4 SCC 122] (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 Secti....
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....tioner 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 cannot be s....
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....iscretion 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 Zil....
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....e 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 auto....
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....eservation 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 ....
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....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 ....
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....t 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 ....
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....ent 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 reserve....
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.... 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. ....
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....tatives, 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 o....
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....onstitution. 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 powe....
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.... 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 Constitu....
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....tion 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-g....
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....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.[ (1956) SCR 393] 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 ....
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....ion 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. Thes....
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....akes 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 o....