Seema Sarkar vs Executive Officer

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2019 (Arising out of SLP(Civil) No.36952 of 2017)

Seema Sarkar …..Appellant(s)

:Versus:

Executive Officer and Ors. ....Respondent(s)

JUDGMENT

A.M. Khanwilkar, J.

1. Leave granted.

2. The conundrum in this appeal is about the inclusion or

exclusion of the Member of the House of Parliament (for short

“MP”) representing the Union Territory of Andaman and

Nicobar Islands, who is also an ex­officio member of the

Panchayat Samiti, for reckoning the quorum of a special

meeting regarding motion of no confidence against the Signature Not Verified

Pramukh of the Little Andaman Panchayat Samiti (for short Digitally signed by DEEPAK SINGH Date: 2019.05.01 17:32:21 IST Reason:

the “said Samiti”) and also whether he/she can exercise 2

his/her vote on the ‘No Confidence Motion’ within the meaning

of the provisions of Andaman and Nicobar Islands

(Panchayats) Regulation, 1994 (for short “Regulation”) and the

Andaman and Nicobar Islands (Panchayats Administration

Rules) 1997 (for short “the Rules”).

3. A ‘No Confidence Motion’ dated 19th December, 2007 was

moved by respondent No.6 against the appellant (Pramukh of

the said Samiti). The said Samiti consisted of six members i.e.

five directly elected members from territorial constituencies in

the Panchayat area and one MP representing the Union

Territory. A meeting for discussion of the ‘No Confidence

Motion’ was scheduled on 2nd January, 2017 at 3.00 PM in

the Conference Hall of the Panchayat Samiti. That notice was

duly served to all the members. But only 3 elected members

remained present at the scheduled time (3.00 PM) and place of

the meeting. As the quorum was not complete, the members

waited upto one hour i.e. upto 4.00 PM. Eventually, the

meeting came to be dissolved by the Executive Officer for want

of quorum of four members, in view of Section 107 of the 3

Regulation. The Executive Officer issued communication in

that behalf on 2nd July, 2017 which reads thus:

“No.3­131/PS/HB/2016­17/535 OFFICE OF THE PANCHAYAT SAMITY HUT BAY, LITTLE ANDAMAN **************

Hut Bay dated the 2nd Jan. 2017

To, The Deputy Commissioner, South Andaman, Port Blair.

Sub: Report on No Confidence Motion against Smt. Sima Sarkar, Pramukh, Panchayat Samiti, Little Andaman­Reg.

Sir, The re­scheduled special meeting on No Confidence Motion was held on 02/01/2017 at 3:00 pm in the Conference hall of Panchayat Samiti. The notice was served to 5 elected members and a Member of Parliament, Andaman and Nicobar Administration. After serving notice to Member of Parliament as per Panchayat Regulation 1994 under chapter X at serial no.107 the members of the Panchayat Samiti, Hut Bay become six and 2/3 rd majority is

4. The meeting was fixed at 3:00 pm and waited upto 1 hour i.e., upto 4:00 pm but only 3 members were attended but to fulfill Quorum 4 member is must hence for want of Quorum meeting dissolved.

The extract of proceeding of the meeting is enclosed herewith for your kind reference.

Encl: A/A Yours Faithfully

Executive Officer Panchayat Samiti Little Andaman” 4

4. The respondent No.6 assailed the said decision by way of

Writ Petition No.14 of 2017 before the High Court at Calcutta,

Civil Appellate Jurisdiction, Circuit Bench at Port Blair.

Respondent No.6 asserted that the MP had no right to

participate in the special meeting regarding a ‘No Confidence

Motion’ nor was he entitled to vote thereat. Respondent No.6

prayed for the following reliefs in the said writ petition:

“In the fact and circumstance mentioned herein above, your petitioner respectfully prays that YOUR LORDSHIP may be graciously pleased to issue:­ A. A writ in the nature of certiorari quashing the proceedings dated 02.01.2017 wherein the Executive Officer, Panchayat Samiti, Little Andaman dated held that quorum required is four members and as such no confidence motion not be proceeded.

B. A writ in the Mandamus directing the respondent no.1 to call for a meeting of moving the no confidence against the private respondent no.1 and further direct the Up­Pramukh i.e. the respondent no.4 to preside over the meeting to complete the process without casting to vote in the said meeting.

C. A writ in the nature of the Certiorari directing the respondent authorities to transmit the case records before this Hon’ble Court so that after pursuing the same conscionable justice may be rendered your petitioner and directing the respondent no.1 to consider the case of the letter of the petitioner dated 19.12.2016 and 02.01.2017.

D. Rule NISI in terms of prayer A&B above. E. Cost of the incidents to this writ application. F. Any other order/orders of further order/orders as your Lordship may deem fit and proper.” 5

5. The writ petition was heard by the learned Single Judge

of the High Court who negatived the stand of respondent No.6

and thus dismissed the writ petition. The learned Single Judge

held that the quorum for a special meeting to consider the

motion of no confidence against the Pramukh, being two­

thirds of the “total membership”, minimum four members of

the Panchayat Samiti ought to have remained present.

Presence of only three members at the meeting, therefore, did

not constitute quorum. Further, the MP being the member of

the said Samiti was entitled to participate in the special

meeting to consider a no confidence motion and also vote on

that motion. As a result, the writ petition came to be rejected.

6. Respondent No.6 carried the matter before the Division

Bench by way of writ appeal, being M.A. No.26 of 2017. The

Division Bench reversed both the conclusions reached by the

learned Single Judge and instead, opined that the MP

representing the Union Territory was not eligible to participate

in the special meeting and vote on a ‘No Confidence Motion’

for removal of the Pramukh or Up­Pramukh of the Panchayat 6

Samiti. For arriving at that conclusion, the Division Bench

adverted to Sections 107(3), 112(1), 115 and 117 of the

Regulation and Rules 9(3) and 21 of the Rules. Additionally,

the Division Bench placed reliance on the decisions in

Ramesh Mehta Vs. Sanwal Chand Singhvi and Ors.1 and

State of Karnataka and Ors. Vs. Lakshmappa Kallappa

Balaganur and Ors.2 The Division Bench also adverted to

Articles 243(d), 243B and 243C, especially clauses (3), (4) and

(5) of Article 243C of the Constitution of India and opined as

follows:

“….Panchayats have been included in the Constitution of the India by the Constitution (73 rd amendment) Act, 1992. The purpose of amendment appears to be that it was felt that in every State there should be a panchayats at the village, intermediate and district levels as a part of self governance. Article 243 (d) of the Constitution defines Panchayat to mean an institution by whatever name called of self government constituted under Article 243 B for the rural areas. Article 243 C deals with composition of Panchayat. 243 C (3) permits the legislation of the State by law to provides for representation. Article 243 (C) (4) provides that the Chairperson of the Panchayat and other members of the Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the panchayats. The Chairperson of a Panchayat at the intermediate level or district level under Article 243 (C) (5)

1 (2004) 5 SCC 409 2 (2001) 3 KLJ 498 7

(b) shall be elected by and from amongst the elected members thereof. Article 243 (C) (4) is similar to Regulation 107 (3) (b) which provides that the member of the House of Parliament representing the Union Territory shall also be represented in the Panchayat Samiti with a right to vote in the meetings of the Panchayat Samiti. It has to be seen from the Regulations whether or not the Regulations intend to treat the Member of Parliament at par with the elected members of the Panchayat to participate in the proceedings initiated for removal of the Pramukh of the Panchayat.

Although the Regulations and the Rules do not appear to have made any distinction between “person” and “member” which appear to have been used at places interchangeably but regard must be had to the very object for which a member of Parliament is included in the Panchayat Samiti with a right to vote. The presence of the Member of Parliament is not required for the purpose of electing the Pramukh and Up­Pramukh as the Regulations clearly use the phrase “by and from amongst elected members of the Panchayat Samiti” and the Member of Parliament is not treated at par with the elected members for the purpose of election of such office bearers.

xxx xxx xxx xxx xxx

In view of the law laid down in the aforesaid decisions on interpretation on similar rules and/or regulations, we are of the opinion that the Member of Parliament cannot be treated at par with an elected member of the Panchayat Samity for the purpose of removal of Pramukh and Up­ pramukh. In the relevant Rules and Regulations in relation to a motion of no confidence wherever the word ‘member’ is used, it would only mean elected members and not nominated members even though such nominated member may have a right to vote in other proceedings. All members who have selected Pramukh and Up­pramukh are all elected members of the Samiti unlike the nominated members and in matters concerning motion of no confidence in our view it is only those members who have been directly elected shall have the right to remove Pramukh and Up­Pramukh as the said office bearers have been elected by and from amongst the elected members of Panchayat Samiti. There is a clear distinction between the two classes of members and they 8

cannot be treated at par in matters relating to no confidence motion to remove Pramukh or Up­Pramukh.”

7. Having thus held, the Division Bench proceeded to allow

the appeal filed by respondent No.6 and consequently granted

relief as prayed for in the writ petition ­ of setting aside the

decision of the Executive Officer dated 2 nd January, 2017. The

High Court also directed the Executive Officer, Panchayat

Samiti, Little Andaman to proceed in accordance with law in

light of the observations made in the said judgment.

8. Feeling aggrieved, the appellant has filed this appeal by

special leave. The appellant moved the Court for urgent

consideration of the matter on 22nd December, 2017 before the

Vacation Bench of this Court when notice came to be issued.

However, during the pendency of this appeal, the Deputy

Commissioner, acting upon the directions issued by the

Division Bench of the High Court not only proceeded to remove

the appellant from the post of Pramukh of the Little Andaman

Panchayat Samiti on 26th December, 2017 but also intended to

proceed to fill up the vacancy arising from the removal of the 9

appellant, by scheduling a fresh election on 19 th January,

2018. The appellant, therefore, urgently moved this Court for

appropriate orders on 15th January, 2018, when the following

order came to be passed:

“Learned counsel who have entered appearance on behalf of the respondents, pray for a week’s time to file the counter affidavit.

Learned counsel appearing for the petitioner does not intend to file the rejoinder affidavit.

As a pure question of law emerges, let the matter be listed on 29th January, 2018. Any election held in the meantime, shall be subject to the result of this special leave petition.” (emphasis supplied)

9. Resultantly, the meeting scheduled on 19th January,

2018, proceeded to elect respondent No.6 as Pramukh of Little

Andaman Panchayat Samiti. As the matter also involved

applicability of Articles 243C and 243R of the Constitution of

India, this Court on 31st January, 2018, requested the learned

Attorney General for India to assist the Court. Pursuant to the

said request, the learned Attorney General for India appeared

in the proceedings and is now represented by Mr. Aman Lekhi,

Additional Solicitor General of India.

10

10. We have heard Mr. Purushaindra Kaurav, learned senior

counsel appearing for the appellant, Mr. Aman Lekhi, learned

Additional Solicitor General of India, Ms. G. Indira, learned

counsel appearing for respondent No.1 and Mr. R.

Chandrachud, learned counsel appearing for respondent No.6.

11. By the Constitution 73rd Amendment Act, 1992, which

came into force from 24th April, 1993, Part­IX of the

Constitution of India came to be amended. It envisaged a

detailed mechanism for democratic decentralization of the self­

Government on the principle of grass­root democracy. It may

be useful to advert to the Statement of Objects and Reasons

necessitating such amendment, which reads thus:

“THE CONSTITUTION (SEVENTY­THIRD AMENDMENT) ACT, 1992 Statement of Objects and Reasons appended to the Constitution (Seventy­second Amendment) Bill, 1991 which was enacted as the Constitution (Seventy­third Amendment) Act, 1992 Though the Panchayati Raj institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people’s bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Casts, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.

11 2. Article 40 of the Constitution which enshrines one of the directive principles of State Policy lays down that the State shall take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self­ government. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj institutions to impart certainty, continuity and strength to them.”

By virtue of this amendment, Panchayat has been defined to

mean an institution (by whatever name called) of self­

Government constituted under Article 243B for the rural

areas. Article 243B reads thus:

“243B. Constitution of Panchayats.­(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.”

It may be apposite to reproduce Article 243C which deals with

composition of Panchayats. The same reads thus:

“243C. Composition of Panchayats.­(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:

Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State.

12 (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 13

shall have the right to vote in the meetings of the Panchayats.

(5) The Chairperson of­

(a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and

(b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof.”

12. In the present case, we are concerned with an

intermediate level Panchayat. The composition of such

Panchayat can be culled out from Article 243C. Clause (1)

makes it amply clear that the legislature of a State is free to

make a law with respect to the composition of Panchayat

subject to the provisions of Part­IX of the Constitution. In the

present case, we are not so much concerned about the

composition of Panchayat, except to notice that clause (2) of

the said Article makes it clear that all the seats in the

Panchayat shall be filled up by persons chosen by direct

election from the territorial constituencies in the Panchayat

area. Clause (3) of the Article is an enabling clause permitting

the legislature of a State to make a law to provide for the

representation of other persons who are not directly elected 14

from the territorial constituencies in the Panchayat area.

Clause (4) deals with the right to vote in the meetings of the

chairperson of a Panchayat or other members of the

Panchayat whether or not chosen by direct election from the

territorial constituencies in the Panchayat area. Clause (5)

deals with the manner in which the chairperson of a

Panchayat is elected at the village level, intermediate level or

district level, as the case may be.

13. The chairperson of a Panchayat at intermediate level is

required to be elected by, and from amongst, the elected

members thereof. On a conjoint reading of the provisions

referred to above, it is crystal clear that there is marked

distinction between the member of the Panchayat chosen by

direct election from the territorial constituencies in the

Panchayat area referred to in clause (2) vis­a­vis other persons

referred to in sub­clauses (a) to (d) of clause (3) of Article

243C, who may also represent as per the law made by the

State Legislature. Thus understood, there is little doubt that

the election of chairperson is by the former category of the 15

members of the Panchayat, namely, directly elected from the

territorial constituencies in the Panchayat area and one from

amongst them is then elected as a chairperson. Notably, there

is no express provision in the Constitution dealing with the

removal of a chairperson of the Panchayat Samiti.

14. Taking cue from the absence of such a provision in the

Constitution, it was argued by the learned ASG that it being a

case of constitutional silence by interpretative process, the

Court must hold that the MP, not being directly elected from

the territorial constituencies in the Panchayat area and only a

representative in the Panchayat Samiti by virtue of law made

in terms of Article 243C(3), is neither entitled to participate in

a special meeting concerning a ‘No Confidence Motion’ nor

eligible to vote thereat. For, only the body of members directly

elected from the territorial constituencies in the Panchayat

area which had elected the Chairperson/Pramukh, would

alone be competent to vote on a ‘No Confidence Motion’. The

concomitant is that the Member of Parliament (MP), though a

member of the Panchayat Samiti, is not competent to 16

participate in the special meeting and vote on a ‘No Confidence

Motion’.

15. This argument is not wholly accurate. In our opinion,

that approach may become necessary only if the legislature of

the State also had chosen to remain silent by not enacting any

law on the subject of removal of the Pramukh or Up­Pramukh

of the Panchayat Samiti. Indisputably, however, a law on the

said subject is already in place in the form of the Regulation

as also the Rules concerning Panchayat administration. The

Constitution itself enables the State Legislature to make a law

on the subject of composition of Panchayats, including

regarding election of the Pramukh, subject to the provisions

contained in Part­IX of the Constitution. The law, as made in

the form of the Regulation, is not the subject matter of

challenge before us either on the ground of being in excess of

legislative competence or transcending the sphere of matters

referred to in Part­IX of the Constitution.

16. Concededly, the Regulation as well as the Rules

specifically provided for the subject of motion of no confidence, 17

how such motion should be moved and the manner in which it

is required to be carried forward. Section 106 of the Regulation

speaks about the constitution of the Panchayat Samiti. The

composition of the Panchayat Samiti has been predicated in

Section 107. This provision is in four parts. The first clause

[(clause (1)] is a general provision envisaging that every

Panchayat Samiti shall consist of such number of seats as the

administrator may by notification determine. Clause (2)

postulates that the seats in the Panchayat Samiti as

determined shall be filled up by persons chosen by direct

election from the territorial constituencies in the manner

prescribed. Clause (3) refers to the persons who shall also be

represented in the Panchayat Samiti other than the persons

chosen by direct election referred to in clause (2). This clause

(3) is again split in two parts: the first referring to the

proportion of the representation given to the representatives of

the Gram Panchayat in the Panchayat Samiti; and the second

referring to the member of the House of Parliament

representing the Union Territory. As regards the latter, it has 18

been explicitly provided that such member shall have the right

to vote in the meeting of the Panchayat Samiti. The fourth

clause is not significant for dealing with the issue on hand.

Section 107 of the Regulation reads thus:

“107. (1) Every Panchayat Samiti shall consist of such number of seats as the Administrator may by notification determine.

(2) The seats in the Panchayat Samiti shall be filled by person chosen by direct election from the Territorial Constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall so far as practicable be the same throughout the Panchayat Samiti area.

(3) The following persons shall also be represented in the Panchayat Samiti, namely:­

(a) a proportion of the Pradhans of the Gram Panchayat in the Panchayat Samiti to be determined by order of the Administrator and by rotation for such period as may be prescribed: Provided that while nominating the Pradhans by rotation the Administrator shall ensure that as far as possible all the Pradhans are given the opportunity or being represented in the Panchayat Samiti atleast once during its duration: and

(b) the member of the House of Parliament representing the Union Territory.

Who shall have the right to vote in the meeting of the Panchayat Samiti.

(4) The provisions of sub­sections (5),(6),(7) and (8) of section 11 shall so far as may be apply to the Panchayat Samiti as 19

they apply to a Gram Panchayat subject to the modification that for the words ‘Gram Panchayat’ wherever they occur, the words ‘Panchayat Samiti’ had been substituted.”

(emphasis supplied)

17. The other relevant provision in the Regulation is Section

112, which deals with election of Pramukh and Up­Pramukh.

The same reads thus:

“112. (1) On the constitution of a Panchayat Samiti for the first time under this Regulation or on the expiry of the term of a Panchayat Samiti or on its reconstitution, a meeting shall be called on the date fixed by the Deputy Commissioner for the election of the Pramukh and the Up­ Pramukh by and from amongst the elected members of the Panchayat Samiti.

(2) The Deputy Commissioner shall preside at such meeting but not have the right to vote.

(3) No business other than the election of the Pramukh and Up­Pramukh shall be transacted at such meeting.

(4) In case of equality of votes, the result of the election shall be decided by lots drawn in the presence of the Deputy Commissioner in such manner as he may determine.

(5) Subject to any general or special order of the Administrator, the Deputy Commissioner shall reserve.

(a) the number of offices of Pramukhs in the Panchayat Samitis for the Scheduled Tribes which shall bear as nearly as may be, the same proportion to the total number of such offices in the Panchayat Simitis as the population of the Scheduled Tribes in the area of the Union Territory to which this Regulation applies bears to the total population of such area;

(b) not less than one­third of the total number of offices of Pramukh in the Panchayat Samitis for women;

Provided that the offices reserved under this sub­ section shall be allotted by the Election Commission by 20

rotation different Panchayat Samitis in such manner as may be prescribed.”

18. Even this provision seems to be in conformity with the

letter and spirit of Article 243C. On a plain reading of this

provision, it is noticed that the election of the Pramukh and

Up­Pramukh is “by” the elected members of the Panchayat

Samiti and the one who is elected as such, is “from amongst

them”. Even the expression used in Article 243C(5)(b) is

“elected by, and from amongst, the elected members thereof”.

This dispensation is in consonance with the constitutional

scheme of democratic decentralization and self­Government on

the principle of grass­root democracy. In that sense, the other

members of the Panchayat Samiti (other than those chosen by

direct election from the territorial constituencies in the

Panchayat area) referred to in Article 243C(3) have no say in

the matter of electing the Pramukh or Up­Pramukh of the

Panchayat Samiti, though they may generally have the right to

vote in the meeting of the Panchayat Samiti on other matters.

19. Sections 107 and 112 are a facsimile of Article 243C and

also within the framework provided therein. Although the 21

other member(s) who have been given representation in the

Panchayat Samiti have no say in the election of the Pramukh

or Up­Pramukh of the Panchayat Samiti, it does not follow

that they are not eligible to remain present and vote in the

special meeting regarding the motion of no confidence against

the Pramukh or Up­Pramukh of the Panchayat Samiti. As

aforementioned, the Constitution is completely silent on the

subject of removal of the Pramukh or the Up­Pramukh of the

Panchayat Samiti, including regarding the manner in which a

‘Motion of No Confidence’ against them could be moved and

carried forward. That subject has been articulated in the form

of Section 117 of the Regulation, which reads thus:

“117 (1) A motion of no confidence may be moved by any member of a Panchayat Samiti against the Pramukh or the Upa­Pramukh after such notice thereof as may be prescribed.

(2) If the motion is carried by a majority of not less than two thirds of the total number of members of the Panchayat Samiti, the Pramukh or Upa­pramukh, as the case may be shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned earlier.

(3) Notwithstanding anything contained in this Regulation, the Pramukh or Upa­Pramukh shall not preside over a meeting in which a motion of no confidence is discuss 22

against him but he shall have the right to speak or otherwise take part in the proceedings of such meeting.”

(emphasis supplied)

20. Thus, an unambiguous provision has been made in the

Regulation regarding the ‘No Confidence Motion’ against the

Pramukh or Up­Pramukh of the Panchayat Samiti. The

validity of the said provision is not the subject matter of this

appeal. As a result, we do not wish to dilate on the argument

which may indirectly, if not directly, question the validity of

the provision. Suffice is to observe that we are not dealing

with a case where the Regulation made by the State legislature

is also silent on the subject of motion of no confidence or

removal of Pramukh or Up­Pramukh of the Panchayat Samiti.

The provision is explicit as to who can move the motion and

the manner in which the same is required to be carried

forward to its logical end. As per this provision, the other

members having representation on the Panchayat Samiti, who

are not directly elected from the territorial constituencies in

the Panchayat area have no right to vote during the election of

the Pramukh or Up­Pramukh of the Panchayat Samiti, it does 23

not follow that they are not or cease to be members of the

Panchayat Samiti. Whereas, in terms of Section 107 which

specifies the composition of the Panchayat Samiti, they are

plainly recognized as members of the Panchayat Samiti during

the relevant period. Those persons may not be directly elected

from the territorial constituencies in the Panchayat area but

nevertheless, are people’s representatives, being elected as

Pradhans of the concerned Gram Panchayat within the area of

the Panchayat Samiti, or as the Member of the House of

Parliament representing the Union Territory. It would have

been a different matter if Section 117 had constricted the right

to vote on a motion of no confidence only to the members

directly elected from the territorial constituencies in the Gram

Panchayat area, referred to in Section 107(2) of the Regulation.

To put it differently, merely because the law permits only the

directly elected members to vote during the election of

Pramukh, that ipso facto would not follow that the other

members (other than the elected members) of the Panchayat

Samiti are ineligible to vote on a ‘No Confidence Motion’. 24

21. Besides the explicit provisions in the Regulation, even the

statutory Rules make it unstintingly intelligible that the other

(ex­officio) member(s) of the Panchayat Samiti can also remain

present and participate in the special meeting to consider a

motion of no confidence against the Pramukh. The stated

Rules are framed in exercise of the power to make rules in

terms of Section 202. Clause (ak) of Section 202 (2) enables

the Administrator to frame rules in respect of the notice for

moving a motion of no confidence against the Pramukh or Up­

Pramukh as per Section 117(1) of the Regulation. Further,

clause (al) permits framing of rules regarding the time and

place of meetings of the Panchayat Samitis and the procedure

for such meetings under sub­section (1) of Section 121; and

clause (am) deals with the manner in which a member of

Panchayat Samiti may move resolution(s) and put question(s)

to the Pramukh and Up­Pramukh under sub­section (2) of

Section 121. The statutory rules framed under Section 202

expressly provide for the quorum of the meetings of the 25

Panchayat Samiti. Rule 9 as applicable to Panchayat Samiti

reads thus:

“9. Quorum.­ The following shall be the quorum required for meetings of Gram Sabha, Gram Panchayat, Panchayat Samiti, Zilla Parishad for the kinds of meetings in each Panchayat:

xxx xxx xxx xxx xxx

(3) Panchayat Samiti.­ (a) Two­thirds of the total membership of a Panchayat Samiti shall be sufficient quorum for an ordinary meeting of a Panchayat Samiti­,

(b) Not less than two­thirds of the total membership is necessary for a special meeting called for the purpose under sub­section (1) of section 117 of the Regulation to move a motion of no confidence against the Pramukh and Up­Pramukh. However, to carry the motion under sub­ section (2) of section 117, a majority of not less than two­ thirds of the membership of the Panchayat Samiti present and voting is necessary.

xxx xxx xxx xxx xxx”

(emphasis supplied)

It will be useful to advert to Rule 10, which reads thus:

“10. Adjournment of meeting for want of quorum. ­(1) If, within one hour from the time appointed for holding a meeting of a Panchayat quorum is not present, the meeting may be adjourned and may be held on another date to be fixed by the Chairperson or the Vice­Chairperson of the Presiding member as the case may be. The members shall be informed of the date, place and time of the adjourned meeting by a fresh three day's notice in Form­2. No quorum shall be necessary for such adjourned meeting. No business other than that included in the list of business for transaction at the original meeting shall be brought before an adjourned meeting.

26 (2). In determining the quorum, fraction of one half and above be counted one, and less than half shall be ignored.”

22. Rule 21 specifically deals with the motion of no

confidence against the Pramukh or Up­Pramukh. The same

reads thus:

“21. Pramukh and Up­Pramukh: (1) A motion of no confidence against the Pramukh or the Up­Pramukh may be moved by any member of a Panchayat Samiti, after giving 7 days notice. The notice shall be in Form 4. The notice shall be addressed to the Pramukh and shall be delivered to him and in his absence to the Up­Pramukh or in the absence of both, to the Executive Officer. The Pramukh or in his absence the Up­Pramukh or in the absence of both, the Executive Officer shall call a special meeting of the Panchayat Samiti within 15 days from the date of moving the notice of no confidence by serving notice to the Pramukh, Up­Pramukh and all the members of the Panchayat Samiti, in Form 1­A enclosing therewith a copy of the no confidence motion moved by the member.

(2) The Pramukh or the Up­Pramukh shall not preside over the meeting but shall have a right to speak or otherwise take part in the proceedings of the meeting. The meeting shall be presided over by the Pramukh if the motion is against the Up­Pramukh and if the motion is against the Pramukh the meeting will be presided over by the Up­ Pramukh. In the absence of both the Pramukh and Up­ Pramukh, the members assembled shall elect one from among themselves to preside over the meeting. A quorum of not less than two­thirds of the total membership of the Panchayat Samiti is necessary for the meeting. Within one hour from the appointed time, if there is no quorum, the no confidence motion shall deemed to have not been carried and the meeting shall be dissolved. The Executive Officer shall send the report of the dissolution of the meeting for want of quorum to the concerned Assistant Commissioner, the Deputy Commissioner (Director of 27

Panchayat Elections), the Chief Executive Officer of the Zilla Parishad and also the Secretary (Panchayat) of the Administration.

(3) If the motion is carried by a majority of not less than two­thirds of the total membership of the Panchayat Samiti present and voting, the Pramukh or the Up­ Pramukh or both, as the case may be, shall cease to hold office after a period of three days from the date on which the motion is carried unless the Pramukh or the Up­Pramukh or both, as the case may be, have resigned earlier.”

(emphasis supplied)

23. To put it differently, the provisions in the Regulation and

the Rules distinctly deal with the manner in which a motion of

‘No Confidence’ should be moved and carried forward to its

logical end. In that sense, the central issue is about the

purport of the mechanism provided in the Regulation and the

Rules on the subject of ‘No Confidence Motion’. From the

legislative scheme it is noticed that as and when the special

meeting to consider the ‘No Confidence Motion’ proceeds,

Section 117(2) mandates that the motion may be treated as

carried out only if a majority of not less than two­thirds of the

“total number” of members of the Panchayat Samiti vote in

favour of removal of the Pramukh or Up­Pramukh, as the case

may be. A similar position is restated in Rule 21 of the Rules. 28

24. Indeed, the provisions in the Regulation do not provide

for the quorum of the special meeting. That is, however,

prescribed in the form of Rule 9. Rule 9(3)(b) stipulates that

two­thirds of the “total membership” of a Panchayat Samiti

shall be a sufficient quorum for a special meeting of the

Panchayat Samiti in reference to Section 117(1) of the

Regulation to move a motion of no confidence against the

Pramukh or Up­Pramukh. Thus, the quorum specified is not

less than two­thirds of the “total membership”. The emphasis

is on the expression “total membership”, which includes the

other (ex­officio) member(s) referred to in Section 107(3) of the

Regulation having representation on the Panchayat Samiti

and not limited to members chosen by direct election from

territorial constituencies in the Panchayat area as referred to

in Section 107(2) of the Regulation. Thus understood, all

members of the Panchayat Samiti are expected to remain

present and participate in the special meeting and the quorum

of the meeting is to be determined on the basis of “total

number” of members in the Panchayat Samiti.

29

25. The question as to whether the other member(s) (other

than directly elected) who can participate in the special

meeting, have the right to vote on the ‘No Confidence Motion’.

That would depend on the legislative scheme and intent

manifest from the express provisions permitting them to do so.

The usefulness of their presence at such a special meeting, to

consider the motion of no confidence, cannot and need not be

speculated. The governing provisions predicate that the special

meeting must be attended by not less than two­thirds of the

“total membership” of the Panchayat Samiti and the ‘No

Confidence Motion’ must be carried out by not less than two­

thirds of the “total number” of members of the Panchayat

Samiti present and voting. This is the twin requirement. If so,

the ‘No Confidence Motion’ is required to be considered in the

special meeting of the Panchayat Samiti as a whole and not

limited to members directly elected from the territorial

constituencies in the Panchayat area. Thus understood, the

total membership of the Little Andaman Samiti being six, two­

thirds thereof would be four. If the members present at the 30

scheduled place and time of the meeting were only three,

obviously the Executive Officer was justified in dissolving the

meeting for want of quorum.

26. That takes us to the question as to who can vote on the

‘No Confidence Motion’. Indubitably, the language of Section

117 of the Regulation envisages that the motion is required to

be carried by a majority of not less two­thirds of the “total

number” of members of the Panchayat Samiti present and

voting. A similar mandate flows from Rule 9 read with Rule 21

of the Rules. The question is whether the law as enacted in the

form of Section 117 of the Regulation, in any way, deviates

from the scheme of Part­IX of the Constitution. Our answer is

an emphatic “NO”. The fact that Article 243C(5)(b) postulates

that the chairperson of the Panchayat Samiti at the

intermediate level shall be elected by, and from amongst, the

elected members thereof, it does not follow that the process of

removal of such chairperson should be limited to voting by the

elected members. The law on the removal of the Pramukh or

Up­Pramukh by means of ‘No Confidence Motion’ has been 31

enacted by the State Legislature. That permits “all” the

members of the Panchayat Samiti to participate in the

discussion and vote on the motion of no confidence. On

conjoint reading of Section 117, Rule 9(3)(b) and also Rule 21

of the Rules, in our opinion, they, in no way, exclude any

member of the Panchayat Samiti muchless the members

referred to in Section 107(3) of the Regulation. Not even by

necessary implication. Taking any other view would result in

re­writing of the provisions to read as ­ the motion of no

confidence must be carried out by a majority of not less than

two­thirds of the total number of “directly elected” members of

the Panchayat Samiti mentioned in Section 107(2), present

and voting. We must presume that the State Legislature was

conscious of the marked distinction between the category of

members constituting the Panchayat Samiti. As is evident

from Section 107(2), it refers to a category of persons chosen

by direct election from the territorial constituencies, in

contradistinction to the other category of persons mentioned

in Section 107(3), the constituent of the Panchayat Samiti. If 32

the legislature had intended to exclude the latter category from

the process of ‘No Confidence Motion’, it would have expressly

limited it to only the elected members [former category

ascribable to Section 107(2)] of the Panchayat Samiti, as is

done at the stage of election of the chairperson. Whereas, the

provision makes it incumbent that not less than two­thirds of

the “total number” of members of the Panchayat Samiti must

participate and vote. This is the legislative intent which cannot

be whittled down by some overstretched interpretative process

including by relying on the common law principle that only the

body of persons, who had elected the Pramukh or Up­

Pramukh, alone can initiate such a process.

27. The Division Bench of the High Court relied upon the

decision in Ramesh Mehta (supra). In that case, this Court

was called upon to answer whether, in counting the “whole

number of members” on the Municipal Board in terms of Rule

3(9) of the Rajasthan Municipalities (Motion of No­confidence

against the Chairman or Vice­Chairman) Rules, 1974,

“nominated members” have to be taken into consideration. 33

For answering that question, the Court adverted to Article

243R, which deals with the composition of municipalities. The

dispensation prescribed with regard to Panchayats in Article

243C is somewhat different from the one specified in Article

243R for Municipalities. As regards the Panchayats, in terms

of Article 243C(3), only persons referred to in sub­clauses (a)

to (d) thereof, can represent in the Panchayat Samiti as per the

law made by the State Legislature in that behalf. The category

of persons referred to in the said sub­clauses are all directly

elected at different levels ­ be it Panchayat or the House of the

People and the members of the legislative assembly of the

State or the Council of States and the members of the

legislative council of the State. Whereas, in the composition of

Municipalities, persons having special knowledge or

experience in municipal administration can also be

nominated, who obviously may not be elected people’s

representatives. The latter, therefore, has been expressly

denuded of a right to vote in the meetings of the

Municipalities, as per the proviso to Article 243R(2). Similar 34

exclusion is not made in respect of the other categories of

members of the Municipality referred to in sub­clauses (ii) to

(iv) of Article 243R(2)(a). In short, the question considered in

the said case was very specific as to whether the voting rights

of the “nominated members” in a Municipal Board can be

reckoned for computing a majority required for a motion of no

confidence against the Chairman or Vice­Chairman of the

Board. The Court considered the statutory provisions as

applicable to that case i.e., Section 9 of the Rajasthan

Municipalities Act, 1959, as amended. It then concluded that

there was no indication therein that a right to vote is created

in the “nominated members”. In other words, they cannot

exercise voting rights.

28. In the present case, neither Article 243C nor the

Regulation made by the State Legislature or the Rules framed

thereunder expressly exclude the other members of the

Panchayat Samiti referred to in Section 107(3) of the

Regulation from exercising their vote on a ‘Motion of No

Confidence’. It is a well established position that the right to 35

elect, and including the right to be elected and continue on the

elected post, is a statutory right. Further, the mode and

manner of election to any post could be different from the

scheme for removal of a person from that post, as restated in

paragraph 10 of the same reported decision. It reads thus:

“10. There is no dispute with the proposition that the right to elect and the right to be elected is a statutory right and that the mode and manner of election to any post could be different from the scheme of removal of a person from that post. xxx xxx xxx”

(emphasis supplied)

29. The High Court had also adverted to the decision of the

Karnataka High Court in State of Karnataka and Ors.

(supra). Even this decision will be of no avail. For, the High

Court considered the specific provisions contained in the

Karnataka Panchayat Raj Act, 1993 and construed them to

mean that they expressly exclude the right to participate in the

proceedings and vote on a ‘No Confidence Motion’ against the

Adhyaksha or Up­Adhyaksha. The observations in the said

decision, therefore, are contextual and in reference to the

express provision in the Karnataka Panchayat Raj Act in the 36

form of Sections 120(2), 140(3), 159(2) and 179(3). As

aforesaid, the provisions in the Regulation under

consideration in no way exclude the MP, muchless expressly,

from participating in the special meeting and vote on the ‘No

Confidence Motion’. As a matter of fact, the provision in the

Regulation under consideration is an inclusive one and

explicitly permits all (total) members to participate in the

special meeting and vote on the ‘No Confidence Motion’ against

the Pramukh or Up­Pramukh, as the case may be.

30. A priori, the argument of Mr. Lekhi that the

interpretation will offend the principle of ut res magis valeat

quam pereat and make Article 243C(5)(b) unworkable, does

not commend us. As aforesaid, Article 243C makes no

mention about the manner and mode by which the

Chairperson of the Panchayat Samiti can be removed by way

of a ‘No Confidence Motion’. Whereas, the State Legislature

has been empowered to make a law on that subject. As is

noticed from the stated Regulation, the same explicitly deals

with the mechanism for moving a ‘No Confidence Motion’ 37

against the Pramukh or Up­Pramukh, as the case may be; and

more particularly, as per the rules framed under the said

Regulation. The validity of the said provisions has not been

put in issue. In such a situation, the argument regarding

constitutional silence or its efficacy need not detain us. For the

same reason, we do not wish to dilate on the exposition in

Justice K.S. Puttaswamy and Anr. Vs. Union of India and

Ors.3, Bhanumati and Ors. Vs. State of Uttar Pradesh

through its Principal Secretary and Ors.4, Usha Bharti

Vs. State of Uttar Pradesh and Ors.5 and Delhi Transport

Corporation Vs. D.T.C. Mazdoor Congress and Ors.6

31. Learned ASG has invited our attention also to the

decision in Vipulbhai M. Chaudhary Vs. Gujarat

Cooperative Milk Marketing Federation Limited and Ors. 7,

dealing with the question of permissibility of removal of the

Chairperson/elected office bearers by motion of no confidence.

The exposition in the said decision, that if a person has been 3 (2017) 10 SCC 1 (page 516­519) 4 (2010) 12 SCC 1 (para 51) 5 (2014) 7 SCC 663 (para 34) 6 (1991) Supp.(1) SCC 600 (para 255) 7 (2015) 8 SCC 1 (para 20) 38

elected to an office through democratic process and when such

person loses the confidence of the representatives who elected

him, then those representatives should necessarily have a

democratic right to remove such an office bearer in whom they

do not have confidence, will not take the matter any further

in the wake of express provisions contained in the Regulation

of 1994 and the Rules of 1997, to which we have elaborately

adverted hitherto.

32. For the same reason, even the decision in Pratap

Chandra Mehta Vs. State Bar Council of Madhya Pradesh

and Ors.8, will be of no avail for interpreting or applying the

provisions in the Regulation and the Rules under

consideration. Our attention was also invited to the decision in

Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly

and Ors.9 Emphasis was placed on the observations in

paragraph 4 of this decision. As a matter of fact, the dictum in

this decision would reinforce the view that we have taken, as it

is observed in the said paragraph that a provision in the

8 (2011) 9 SCC 573 (para 22, 26, 46) 9 (1992) 4 SCC 80 (para 4) 39

statute for recall of an elected representative has to be tested

not on general or vague notions but on practical possibility

and electoral feasibility of entrusting the power of recall to a

body which is representative in character and is capable to

projecting the views of the electorate. We have already noted

that the category of persons referred to in Section 107(3) of the

Regulation are also, in one sense, elected representatives

(though not by direct election from territorial constituencies in

the Panchayat area) and, therefore, their participation and

voting on the ‘No Confidence Motion’ has been expressly

permitted by the Regulation and the Rules. That cannot be

undermined on the basis of the common law principle, so long

as the governing statutory provisions are in the field.

33. For the above reasons, we conclude that the Division

Bench committed manifest error in setting aside the decision

of the Executive Officer dated 2nd January, 2017 declaring that

the meeting stood dissolved for want of quorum. Instead, we

uphold the said decision of the Executive Officer having held

that the quorum of the special meeting ought to be of not less 40

than two­thirds of the “total number of membership of the

Panchayat Samiti” which includes all the members of the

Panchayat Samiti ­ be it directly elected or ex­officio members,

as the case may be. So understood, the quorum of the special

meeting has been justly recorded as four members. However,

as only three members had remained present at the scheduled

time and place, the Executive Officer had no option except to

dissolve the meeting convened on 2 nd January, 2017. For the

same reason, the motion of no confidence against the

appellant, in law, could not have proceeded further.

34. Resultantly, the follow up action taken against the

appellant, asking him to step down, therefore, also would be

non est in law. This Court, vide order dated 15 th January,

2018, had made it clear that the consequential election to fill

in the vacancy arisen due to removal of the appellant, would

be subject to the outcome of this petition. Accordingly, we hold

that all steps taken after the order of the Executive Officer

dated 2nd January, 2017 be treated as non est in terms of this

order.

41

35. As a result, we allow this appeal, set aside the impugned

judgment and order passed by the High Court in M.A. No.26 of

2017, and instead, we dismiss the writ petition filed by

respondent No.6, and to do complete justice, we direct

restitution of the appellant to the post of Pramukh of the Little

Andaman Panchayat Samiti as his tenure would otherwise

have expired in September, 2020. The District Administration

shall take follow up steps forthwith and ensure compliance of

the directions not later than one week from the date of receipt

of a copy of this order and submit compliance report in the

Registry of this Court.

36. The appeal is allowed in the above terms. No order as to

costs. All pending applications stand disposed of.

…………………………..….J. (A.M. Khanwilkar)

…………………………..….J. (Ajay Rastogi) New Delhi;

May 01, 2019.