Geeta vs State Of U.P. & Ors

Smt. Geeta ...Appellant(s)

Versus

State of U.P. & Ors. ...Respondent(s)

With Civil Appeal Nos................................................................../2010 @ SLP(C) Nos. 26447, 26201, 27470, 27491, 27404 of 2010 & C.A. No...........@ SLP (c) No........./2010 (CC No.17260)

J U D G M E N T

GANGULY, J.

1. Leave is granted in all these matters. This batch of

seven appeals raises common questions of law which

have been dealt with in this judgment.

2. Facts in each case are separately noted:

1

C.A.No.......................@ (SLP No. 26113/2010)

3. In February 2006, Smt. Shanta Devi was elected

Pramukh in the election of the Kshettra Panchayat of

Jahanaganj, district Azamgarh.

4. In 2007, an amendment was made to the Uttar Pradesh

Kshettra Panchayat and Zila Panchayat Act, 1961

(hereinafter called the 1961 Act) through Amendment

Act no. 44 of 2007 (hereinafter called the Amendment

Act) to make the State Act compatible with Part IX

of which contains constitutional provisions relating

to Panchayats.

5. In view of some serious allegations against Smt.

Shanta Devi, a no confidence motion was passed

against her. Smt. Shanta Devi challenged before the

High Court the constitutional 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

2 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).

7. The High Court quashed the order of the District

Magistrate by way of the impugned common judgment

dated 26.08.2010 (for CMWP Nos. 40262/2010 with

44538/2010), and allowed the Up-Pramukh to continue

as Pramukh. Aggrieved by the same, the appellant

3 moved this Court under Article 136 of the

Constitution.

C.A.No................................@ SLP No. 26447/2010

8. On 22.10.2005, the appellant was elected as a member

of the Block Development Committee from Kshettra

Panchayat Majhwan, Mirzapur from a general seat. The

seventh respondent was elected as the Senior Up-

Pramukh. A no-confidence motion was passed against

the Pramukh as a result of which the post of Pramukh

fell vacant. The District Magistrate appointed the

seventh respondent to discharge the functions of

Pramukh.

9. The appellant filed a writ petition (CMWP No.

44538/2010) challenging the appointment of the

seventh respondent to the post of Pramukh. It was

dismissed by the High Court by way of impugned

common judgment dated 26.08.2010 (for CMWP Nos.

40262/2010 with 44538/2010), holding that under the

provisions of law, the senior Up-Pramukh was the

only authorized person to act as Pramukh in absence

of the duly elected Pramukh. Challenging that

4 judgment, the present special leave petition was

filed before this Court under Article 136 of the

Constitution.

5 Civil Appeal No...........@(SLP No. 26201/2010)

10. On 27.02.2006, Smt. Pushpa was appointed as Pramukh

of the Kshettra Panchayat, Motigarpur, district

Sultanpur. The fourth respondent was appointed as

Up-Pramukh. A no-confidence motion was brought

against Smt. Pushpa on 4.01.2008. Smt. Pushpa

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. Pushpa filed an SLP

before this court, which was dismissed by a judgment

dated 4.05.2010 titled - Bhanumati case (supra).

11. Hence, the District Magistrate dismissed Smt. Pushpa

from the post of Pramukh on 20.07.2010 and under the

provisions of section 9(2) of the Amendment Act,

nominated the appellant for the post, by order dated

21.07.2010.

12. Aggrieved, the fourth respondent filed a writ

petition (No. 7272(MB)/2010) in the Allahabad High

Court. The High Court, by way of impugned order

dated 26.08.2010, quashed the order of the District

Magistrate and restrained the appellant from

6 interfering with the functioning 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

7 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 the work of Pramukh

and directed the sixth respondent to discharge the

functions of Pramukh till further orders of the

court or till the Pramukh was elected. Hence, the

present appeal before this court.

Civil Appeal No........@SLP No. 27491/2010

15. In February 2006, Smt. Sushila Devi (third

respondent) was appointed Pramukh in the election of

Kshettra Panchayat, Sidhauli, district Sitapur. The

fourth respondent was appointed as Up-Pramukh. A no

confidence motion was brought against Smt. Sushila

Devi in 2008. She challenged the Amendment Ordinance

dated 20.08.2007 by filing a writ petition before

the High Court which was dismissed on 6.02.2009. She

filed an SLP before this Court and the same was

dismissed by judgment dated 4.05.2010 in Bhanumati

case (supra).

8

16. Consequently, the District Magistrate dismissed Smt.

Sushila Devi from the post of Pramukh on 29.07.2010

and nominated the appellant for the post on

30.07.2010. Aggrieved, the fourth respondent filed a

writ petition (No. 7604 (M/B)/2010) before the

Allahabad High Court. The High Court passed the

impugned interim order dated 26.08.2010 relying on

the judgment in CMWP No. 7272/2010 and directed the

fourth respondent to function as Pramukh and

restrained the appellant from interfering in the

functioning of the fourth respondent. Hence, present

appeal.

Civil Appeal No ........@ SLP No....../2010 (CC No.17260)

17. The appellant was elected a member of the Kshettra

Panchayat, Bhaluani district- Deoria. A no

confidence motion was passed against the Pramukh of

Kshettra Panchayat, Bhaluani district- Deoria on

6.8.2010 as a result of which the said post fell

vacant. On 11.8.2010, the District Magistrate

nominated the seventh respondent to the vacant post

of Block Pramukh.

9

18. The eighth respondent challenged the said order by

filing a writ petition (No. 50547/2010) in the High

Court. The High Court followed the order passed in

CMWP No. 40262/2010 and passed the impugned interim

order staying the judgment dated 11.8.2010. Hence,

the appellant (who was not a party before the High

Court) filed the present appeal before this court.

10 Civil Appeal No ..@ SLP 27404/2010

19. Smt. Bindu Devi was elected Pramukh of Kshettra

Panchayat- Freedabad, district Jaunpur in February

2006. A no confidence motion was passed against her.

She challenged the amending Ordinance dated

20.8.2010 by filing a writ petition before 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.

11

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. One argument raised by the respondent is that the

Up-Pramukh would automatically become the Pramukh

when the post of Pramukh falls vacant, as was the

position before the Amendment Act was enforced. It

was also urged that the same is justified under

section 7(3) as amended. Section 7(3) reads as

follows:

"7. Pramukh and Up Pramukh-

(1) XXX (2) XXX (3) "Notwithstanding anything to the contrary contained in any other provision of this Act, the persons who have been elected to the office of the Up-Pramukh before the commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 2007 shall continue to hold the office as

12 such till the expiry of their term as if the said Act were not enacted".

25. The respondents argued that the words "continue to

hold office as such" entitled the Up-Pramukh to

discharge all the functions and duties of senior Up-

Pramukh as were prevalent before the Amendment Act

was introduced. Prior to amendment, rights of

Senior Up-Pramukh included the right to function

and discharge the duties of Pramukh when the office

of Pramukh was vacant. This contention of the

respondents was accepted by the High Court, which is

why the appellants filed the present batch of

appeals before this Court.

26. The appellants however put forward their case under

sections 9(2) and 9A of the Amendment Act. The

relevant provisions of 9(2) and 9A read as follows:

"9. Term of Pramukh and Up-Pramukh-

(1)XXX (2) Where the office of the Pramukh is vacant, the District Magistrate may, by order, make such arrangement as he thinks fit for the discharge of the functions of the Pramukh, till the Pramukh is elected.

9A. Temporary arrangement in certain cases- When the Pramukh is unable to discharge his functions owing to absence, illness or any other cause, the District Magistrate may, by order, make such arrangement, as he thinks

13 fit, for the discharge of the functions of the Pramukh until the date on which the Pramukh resumes his duties.

27. The appellants claimed that as per the

abovementioned provisions, it was for the District

Magistrate to appoint a Pramukh when the post of the

Pramukh fell vacant, and the Up-Pramukh could not

automatically discharge the functions as Pramukh

when the post of Pramukh fell vacant, after the

enforcement of the Amendment Act.

28. These are the rival contentions of the parties.

29. This Court finds 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

14 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 case the post of Pramukh fell

vacant, the Up-Pramukh would discharge the functions

of the Pramukh till a new Pramukh was appointed.

However, the Amendment Act abolished the said post

of Up-Pramukh from the Kshettra Panchayats and

provided that in cases where the post of Pramukh

fell vacant, the District Magistrate was to make

such arrangements as he thought fit. However, as per

section 7(3), the Up-Pramukh would still continue to

hold office as such till the end of their term.

32. Section 7(3) begins with a non-obstante clause, i.e.

"notwithstanding anything to the contrary contained

in any other provision of this Act." The said

15 provision raises two questions which need to be

answered:

a. Whether the non-obstante clause would prevail over

the rest of the provisions of the Amendment Act, and

to what extent?

b. How is the expression "shall continue to hold office

as such" to be construed?

33. Interpretation of non-obstante clauses has come up

for consideration before this Court in a large

number of decisions.

34. In Aswini Kumar Ghose & Anr. v. Arabinda Bose & Anr,

reported in AIR 1952 SC 369, a Constitution Bench of

this Court speaking through Chief Justice Patanjali

Sastri observed that the non-obstante clause can

reasonably be read as overriding "anything

contained" in any relevant existing law which is

inconsistent with the new enactment. But His

Lordship made it clear that the enacting part of a

statute must, where it is clear, be taken to control

16 the non-obstante clause where both cannot be read

harmoniously (See page 377).

35. Again in another Constitution Bench judgment of this

Court in The Dominion of India & Anr. v. Shrinbai A.

Irani and another, reported in AIR 1954 SC 596,

Bhagwati J. observed at para 10 as follows:

"...Although ordinarily there should be a close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be co- extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as 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,

17 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, the court must try to find out

the extent to which the legislature had intended to

give one provision overriding effect over another

provision. The Bench referred to the principle in

the Constitution Bench decision in Madhav Rao

Scindia v. Union of India and another, [(1971) 1 SCC

85] wherein this court held that the non-obstante

clause was a very potent clause intended to exclude

every consideration arising from other provisions of

the same statute or other statute but "for that

18 reason alone we must determine the scope" of that

provision strictly. When the section containing the

said clause does not refer to any particular

provisions, which it intends to override, but refers

to the provisions of the statute generally, it is

not permissible to hold that it excludes the whole

Act and stands alone by itself (See p. 236).

(underlined for emphasis)

38. This Court also held in the case of ICICI Bank Ltd.

v. SIDCO Leathers Ltd. & Ors, reported in (2006) 10

SCC 452, that the wide amplitude of a non-obstante

clause must be kept confined to the legislative

policy and it can be given effect to, to the extent

the Parliament intended and not beyond the same and

that in construing the provisions of a non-obstante

clause, it was necessary to determine the purpose

and object for which it was enacted (See page 465-

6).

39. In Central Bank of India v. State of Kerala & Ors,

reported in (2009) 4 SCC 94, this Court reiterated

that while interpreting a non-obstante clause the

court is required to find out the extent to which

19 the legislature intended to give it an overriding

effect.

40. In view of such consistent opinion expressed by this

Court on the purport and meaning of non-obstante

clause we are of the view that the operation of a

non-obstante clause in Section 7(3) of the amended

Act shall be subject to the intent of the

legislature, and must be interpreted in line with

the scheme of the Act and the purpose for which it

was enacted.

41. The learned counsel for the respondent referred to

two decisions of this Court in order to contend that

non-obstante clause in Section 7(3) completely

overrides all the other provisions of the Act.

Those decisions are: (a) Chandavarkar Sita Ratna Rao

v. Ashalata S. Guram, (1986) 4 SCC 447, (b) Union of

India & another v. G.M. Kokil and others, 1984

(Supp) SCC 196. However, none of these decisions

supports the contention of the respondents.

42. Unfortunately, the High Court in the impugned

judgment held that the non-obstante clause in

20 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.

21

45. The contrary argument of the respondent and which

weighed with the High Court is that Up-Pramukhs will

continue to exercise all the powers and functions

under Sections 82 and 83 of the pre-existing

provisions of the Act despite the express deletion

of those provisions by the Amendment Act. This

cannot be accepted.

46. If that argument is accepted, in that case, the

provisions which have been expressly deleted by way

of amendment, like pre-existing provisions of

Sections 82 and 83, will be revived. Sections 9(2)

and 9A, brought in by way of amendment and thereby

empowering the District Magistrate to make

arrangements when the office of the Pramukh is

vacant [Section 9(2)] or when the Pramukh is unable

to discharge functions [Section 9A] will be

unworkable. Therefore, for a harmonious

interpretation of the different provisions of the

amending Act, the non-obstante clause in Section

7(3) must be given a restricted meaning so as not be

in conflict with other provisions of the amending

Act.

22

47. The expressions `as if the said Act were not

enacted' in Section 7(3) of the amending Act apply

only where by way of general amendment of the Uttar

Pradesh Kshetra Panchayat and Zilla Adhiniyam 1961,

the words Up-Pramukh have been omitted.

48. We, therefore, affirm the orders passed by the

District Magistrates in exercise of their power

under Section 9(2) and 9A. We cannot agree with the

reasoning to the contrary given in the High Court

judgment.

49. In light of the above reasoning, the appeals are

allowed, the judgments of the High Court in all

these cases are set aside.

50. There will be, however, no order as to costs.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY) New Delhi December 14, 2010

23