TaxTMI 
TaxTMI 
2010 (12) TMI 1317
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....tutional validity of the U.P. Panchayat Laws (Amendment) Ordinance, 2007 dated 20.08.2007 (which later on became the U.P. Panchayat Laws (Amendment) Act, 2007, i.e. the Amendment Act), by filing a writ petition which was dismissed on 6.02.2009. Against which she filed a special leave petition before this Court. The special leave petition was also dismissed by judgment dated 4.05.2010 in the case titled Bhanumati etc. etc. v.State of Uttar Pradesh, through its Principal Secretary & Ors., 2010 (7) SCALE 398, upholding the constitutional validity of the Amendment Act. 6. Accordingly, the District Magistrate restrained Smt. Shanta Devi from functioning as Pramukh in light of the no-confidence motion passed against her and the order of the High Court dated 6.02.2009. Hence, the post of Pramukh fell vacant. The District Magistrate, in exercise of the power conferred on him under section 9(2) of the Amendment Act and the Rules thereunder, nominated the appellant for the post by order dated 2.07.2010. The sixth respondent, holding the post of Up-Pramukh, aggrieved by the aforesaid order of the District Magistrate, filed a writ petition in the High Court of Allahabad (CMWP No. 40262/2010).....
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....ioning of the respondent. Hence, the present appeal before this court. Civil Appeal No..................@SLP No. 27470/2010 13. Smt. Sonu Devi was elected as Pramukh in the election of Kshettra Panchayat, Akhand Nagar, Sultanpur district on 27.02.2006. The sixth respondent was appointed as Up-Pramukh. A no- confidence motion was brought against Smt. Sonu Devi on 17.12.2007. Smt. Sonu Devi challenged the Ordinance dated 20.08.2007 by filing a writ petition in the Allahabad High Court, which was dismissed on 6.02.2009. Smt. Sonu Devi then filed an SLP before this Court, which was dismissed by a judgment dated 4.05.2010 rendered in Bhanumati case (supra). 14. Thereafter, the District Magistrate dismissed Smt. Sonu Devi from the post of Pramukh on 19.07.2010 and nominated the appellant for the said post. Aggrieved, the sixth respondent filed a writ petition (No. 7626(M/B)/2010) in the Allahabad High Court. The High Court passed an interim order relying on the judgment of the Allahabad High Court dated 26.08.2010 in writ petition No. 7272/2010. The High Court stayed the operation of the order of the District Magistrate dated 19.07.2010 and restrained the appellant from looking after ....
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....re the High Court, and the same was dismissed on 6.2.2009. She further challenged it by way of an SLP before this Court, which was also dismissed by judgment dated 4.05.2010 rendered in the Bhanumati case (supra). 20. Thereafter, the District Magistrate dismissed Smt. Bindu Devi from the post of Pramukh on 19.7.2010 and nominated the appellant for the said post. Aggrieved, the seventh respondent filed a writ petition (No. 44066/2010) in the Allahabad High Court. The High Court, vide the impugned judgment dated 28.8.2010, quashed the order of the District Magistrate after relying on the judgment of the Allahabad High Court in CMWP No. 40262/2010. 21. Hence the present appeal. 22. The common questions of law arising in these appeals relate to an interpretation of section 7(3) vis-`- vis sections 9(2) and 9A of the Amendment Act. 23. The precise question is whether after the Amendment to the 1961 Act, the right and authority of the senior Up-Pramukh to discharge the duties of the Pramukh would survive or whether the District Magistrate can nominate an elected member to be the Pramukh when the post of Pramukh falls vacant and till the new Pramukh is elected or resumes office. 24.....
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....nds that the Amendment Act was introduced in 2007 to make the State laws regulating the Panchayats compatible with the provisions of Part IX of the Constitution. The relevant portion of the statement of Objects and Reasons in the amending Act of 2007 reads: "Statement of Objects and Reasons The United Provinces Panchayat Raj Act, 1947 (U.P. Act No. 26 of 1947) provided for the offices of Pradhan and Up-Pradhan in every Gram Panchayat and the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (U.P. Act No. 33 of 1961) provided for the offices of Pramukh, Up- Pramukh (Senior Up-Pramukh and Junior Up-Pramukh) in every Kshettra Panchayat and Adhyaksha and Up- Adhyaksha in every Zila Panchayat. It was decided to amend the said Acts to omit the provisions of the offices in respect of which there is no provision in the Constitution namely the offices of Up-Pradhan, Up-Pramukh (Senior Up-Pramukh and Junior Up-Pramukh) and Up-Adhyaksha." 30. It is relevant to mention here that the constitutional validity of the Amendment Act has been upheld by this court in the Bhanumati case (supra). 31. Before the Amendment Act was introduced, the 1961 Act provided that in....
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.... clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment." (See p. 599-600) (Emphasis added) 36. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram reported in (1986) 4 SCC 447, this Court stated that "the expression `notwithstanding anything contained in this Act ... is more often than not appended to a section in the beginning with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause... the enactment following it will have its full operation..." (See pages 477-478). (Emphasis added) 37. Further, this Court in A.G. Varadarajulu and another v. State of Tamil Nadu and others, reported in (1998) 4 SCC 231, observed that it is well-settled that while dealing with a non-obstante clause under which the legislature wants to give overriding effect to a section,....
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....e respondents. 42. Unfortunately, the High Court in the impugned judgment held that the non-obstante clause in section 7(3) has to be read as totally obliterating other provisions of the Amendment Act and that the Up-Pramukh who were elected prior to the Amendment Act would continue to hold office as if the Amendment Act in its entirety had not been enacted. 43. However, in view of several decisions of this Court discussed above, we hold that the non-obstante cause in section 7(3) will have a limited operation to the extent of allowing the Up-Pramukh to "continue to hold office as such... as if the said Act were not enacted." 44. In our view, the term `continue to hold office as such' would mean that despite the abolition of the post of Up-Pramukh in the amending Act, those who were elected as Up-Pramukh prior to such amendment will just continue as such i.e. as Up-Pramukh till his term expires. The expression `as such' has been added by way of caution and to emphasize that the continuance of Up-Pramukh is limited to just holding the office of Up-Pramukh. 45. The contrary argument of the respondent and which weighed with the High Court is that Up-Pramukhs wil....