RAM PAL SINGHversusSTATE OF U.P. & ORS.

                          [2018] 3 S.C.R. 971                               971


                          RAM PAL SINGH                                     A
                                   v.
                       STATE OF U.P. & ORS.
   (Petition for Special Leave to Appeal (Civil) No. 31990 of 2017)
                           APRIL 24, 2018                                   B
       [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
     Uttar Pradesh Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961:
      ss. 6(1)(b) and 15 r/w r. 3(3) of Uttar Pradesh Kshettra              C
Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or
Pramukh Etc.) Rules, 1994 – No confidence motion against
‘Pramukh’ of Kshetra Panchayat – Moved by 39 elected members –
Plea of the ‘Pramukh’ (petitioner) that the requisition for no
confidence motion was not maintainable in view of s. 15 because
                                                                            D
the same can be considered to have been signed only by 26 elected
members (i.e. less than half the total number i.e. 63 elected members)
as 13 elected members who had not taken oath of office could not
have signed or moved the motion – Held: Per Madan Lokur, J: There
is nothing in law to indicate that elected member ceases to be a
member if he/she does not take oath – That apart, if 13 members             E
cannot be considered as elected members, they also cannot be
considered or counted for the purpose of composition or counting
total strength of Kshettra Panchayat – If number of signatories
drop by 13, the total member of the elected members would also
drop by 13 – Thus no-confidence motion was a numerically valid
                                                                            F
requisition – In the facts of the case it is held that all the 63 members
had taken oath of office before moving the motion – Thus 13
members were elected members and were entitled to sign the motion
– Per Deepak Gupta, J: Members who have not taken oath cannot
move and be a signatory to such a no-confidence motion – If they
are not entitled to vote at such motion (having not taken oath) cannot      G
be held entitled or eligible to sign such motion – However, the
question whether certain members had taken oath or not is disputed,
and since the petitioner has failed to prove that such members had
not taken oath, the petition is liable to be dismissed.
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                                  971
972            SUPREME COURT REPORTS                      [2018] 3 S.C.R.


A           Oath:
            Oath of office – By persons holding public office – Sanctity
      of – Held: Oath cannot be rendered meaningless – Legislature is
      advised to provide consequences for not subscribing to such oath
      – In order to avoid controversy as to whether oath was taken or
B     not, advice to maintain record of the same.
            Dismissing the petition, the Court
            HELD:
            Per Madan B. Lokur, J.:
C           1.1 It is not correct on the part of the petitioner to contend
      that for the purposes of signing the No Confidence Motion, the
      13 elected members are not elected members but for the
      purposes of the composition of the Kshettra Panchayat they are
      elected members thereby maintaining the strength of the Kshettra
D     Panchayat at 63. If they are not elected members for the purposes
      of signing the No Confidence Motion, then the number of
      signatories to the No Confidence Motion would drop from 39 to
      26. Correspondingly, the number of elected members of the
      Kshettra Panchayat would also get reduced from 63 to 50.
      Consequently, it would have to be concluded that since 26 out of
E     50 elected members of the Kshettra Panchayat have signed the
      No Confidence Motion, more than 50% of the elected members.
      If the 13 elected members are not elected members for one
      purpose, they cannot have a different status for another purpose.
      Their status must remain the same as that of an elected member
F     (or not an elected member) both at the time of signing the No
      Confidence Motion and for the composition of the Kshettra
      Panchayat. [Paras 21, 22][982-B-E]
             1.2 In the facts of the case, all 63 elected members of the
      Kshettra Panchayat took the oath of office on 18th March, 2018
      and no communication was sent on 28 th March, 2018 to or
G
      received by any of the 17 elected members of the Kshettra
      Panchayat who were alleged not to have taken oath of office on
      18 th March, 2018. Consequently, the No Confidence Motion
      against the petitioner was a numerically valid requisition having
      been signed by more than 50% of the elected members of the
H     Kshettra Panchayat. [Para 25][983-C]
           RAM PAL SINGH v. STATE OF U.P. & ORS.                        973


       1.3 There is nothing in the law to indicate that an elected      A
member ceases to be a member of the Kshettra Panchayat if he
or she does not take the oath of office. Though it is strange and
illogical that the 13 elected members could sign the No
Confidence Motion even though they had not taken the oath of
office but they could not actually vote in the Panchayat because
                                                                        B
they were not entitled to a seat in the Panchayat, not having taken
the oath of office. However, there is no challenge to the provisions
of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats
Adhiniyam,1961. Therefore, if the requisition for the No
Confidence Motion was numerically valid, the discussion on that
would take place in the Panchayat and the requisition would meet        C
its appropriate fate. [Paras 23, 24][982-F-H; 983-A]
      1.4 The 13 signatories to No Confidence Motion against
the petitioner were elected members of the Kshettra Panchayat
and were entitled to sign the No Confidence Motion and that
there was no infirmity in this regard. [Para 37][988-A]                 D
      Bhupindra Nath Basu v. Ranajit Singh Bahadur A.I.R.
      1914 Calcutta 152; Pashupati Nath Sukul v. Nem
      Chandra Jain & Ors. (1984) 2 SCC 404 : [1984] 1
      SCR 939; Smt. Kamla Devi v. State of U.P. & Ors. 2014
      (8) ADJ 525 – referred to.                                        E
      In re Mayor of Penryn 1 Strange 582 = 93 E.R. 714;
      Rex v. Swyer 1 Strange 582 = 93 E.R. 714 – referred
      to.
      2.1 Subscribing to the oath of office is not being taken
very seriously. It must be appreciated that taking the oath of          F
office is not a mere ritual but there is a degree of seriousness
and sanctity attached to it. Different laws provide different
consequences (some quite mild) for not taking the oath of office.
Since subscribing to the oath of office is a solemn occasion, failure
to do so ought to result in serious consequences, such as the           G
seat being declared vacant after a specified time. Elected
representatives be visited with serious consequences for not
taking the oath of office within a specified time, mainly because
even the Constitution attaches a great degree of solemnity to
the oath of office. [Paras 33, 34][986-B-C; 987-C]
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974           SUPREME COURT REPORTS                     [2018] 3 S.C.R.


A           2.2 Apart from requiring elected representatives of a
      Panchayat attaching seriousness to taking the oath of office, an
      unimpeachable record of the elected representatives taking the
      oath of office should be maintained by the concerned officials of
      the State Government. Unless the sanctity of the oath of office is
      appreciated and appropriate documentation kept, situations such
B
      as the present where a dispute is raised whether an elected
      member of a body has taken the oath of office, will continue to be
      faced. Such controversies are completely avoidable. [Para
      36][987-E-G]
           Per Deepak Gupta, J.: (Concurring with Conclusion)
C
             1.1 Rule 3(3) of Uttar Pradesh Kshettra Panchayats and
      Zila Panchayats (Oath of office of Adhyaksha or Pramukh etc.)
      Rules, 1994 prescribes that before taking their seat for the first
      time, the members must subscribe oath or affirmation. If he does
      not take oath, he does not cease to be a member but, at the same
D     time, he cannot take part in the business of the House. A motion
      of no confidence is part of the proceedings of the Panchayat, as
      such a motion is governed by the provisions of the Adhiniyam
      and, therefore, this is part of the business of the Panchayat. An
      elected member who has not taken oath, cannot move and be a
E     signatory to such a no confidence motion. Such motion has to be
      moved in terms of Section 15 of the Adhiniyam. Those members
      who have not taken oath and are, therefore, not entitled to vote
      at such no confidence motion, cannot be held to be entitled or
      eligible to sign such motion. Otherwise, it would lead to a very
      odd situation where such members can sign a motion but cannot
F     vote when the said motion is put to vote. This could not have
      been the intention of the Legislature. Section 15(12) and (13) of
      the Adhiniyam provide that a no-confidence motion cannot be
      moved within one year of the election having taken place or within
      a year of the rejection of the motion. Therefore, members who
G     have not taken oath, do not have a right to vote for the no-
      confidence motion, cannot be permitted to sign such a motion.
      [Para 10][992-C-F]
           1.2 However, there are disputed questions of facts as to
      whether certain members had taken oath or not, which questions
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          RAM PAL SINGH v. STATE OF U.P. & ORS.                        975


cannot be decided at this stage and the petitioner has failed to       A
discharge the heavy burden on him to prove that these members
have not taken oath. [Para 12][993-A-B]
      Pashupati Nath Sukul v. Nem Chandra Jain & Ors.
      (1984) 2 SCC 404 : [1984] 1 SCR 939; Bhupendra
      Nath Basu v. Ranjit Singh AIR 1914 Cal.152 – held                B
      inapplicable
      Kamla Devi v. State of U.P & Ors. 2014 (8) ADJ 525 –
      held not good law
      Mayor of Penryn 93 ER 714 [Kings Bench]; Rex v.
      Swyer 109 E.R. 531 (Kings Bench) – referred to                   C

      2. Various articles of the Constitution of India and various
other laws provide that persons holding public office must
subscribe to an oath of allegiance. This oath cannot be rendered
meaningless and the Legislature would be well advised to provide
consequences for not subscribing to such an oath of office. To         D
avoid such controversy in future, it would also be advisable if the
swearing in/oath taking is videographed so that no such dispute
arises in future. [Para 12][975-B-C]
                       Case Law Reference
                                                                       E
In the Judgment of Madan B. Lokur, J.
      A.I.R. 1914 Calcutta 152     referred to        Para 27
      [1984] 1 SCR 939             referred to        Para 29
      2014 (8) ADJ 525             referred to        Para 31          F
In the Judgment of Deepak Gupta, J.
      [1984] 1 SCR 939         held inapplicable      Para 3
      AIR 1914 Cal.152         held inapplicable      Para 3
      2014 (8) ADJ 525         held not good law      Para 3           G
      CIVIL APPELLATE JURISDICTION: Petition for Special Leave
to Appeal (Civil) No. 31990 of 2017.
      From the Judgment and Order dated 12.09.2017 of the High Court
of Judicature at Allahabad in WC No. 41252 of 2017.
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976            SUPREME COURT REPORTS                         [2018] 3 S.C.R.


A           Mukul Rohatgi, Sr. Adv., Shantwanu Singh, Ms. Vamshi Rao,
      Ms. Misha, Surinder Dutt Sharma, Meghsham S. Bhangle, Murari Babu
      Sharma, Ashok Kumar Singh, Kaushal Yadav, Nandlal Kumar Mishra,
      Dr. Ajay Kumar, Kamlesh Kumar Maurya, Mrs. Sunita Yadav,
      Ali Mushtaq Nawashish, Mahendra Singh, Tuhin Lavania, Praveen
      Agrawal, R. K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, Rameshwar
B
      Prasad Goyal, Advs. for the Appellant.
             Ms. Aishwarya Bhati, AAG, P. S. Patwalia, S. R. Singh, Pradeep
      Kant, Sr. Advs., Bhanwar Pal Singh Jadon, Ms. Harshika Verma, Umesh
      Gupta, Ram Anugarh Singh, Manoj K. Mishra, Rajeev Kumar Dubey,
      Amit Kumar Singh, Adarsh Upadhyay, Garvesh Gabra, Gaurav Agrawal,
C     Ms. Vimlesh Kumar Shukla, Ms. Parul Shukla, E. C. Agrawala, Himanshu
      Satija, Sunil Murarka, Rajesh Kumar, Adbhut Pathak, R. K. Singh,
      Praveen Swarup, Varinder Kumar Sharma, P. K. Singh, Neeraj
      Srivastava, Vijay Pal, Ajay Singh, Divyanshu Sahay, Sanjay Goel, Sunny
      Choudhary, Ms. Preetika Dwivedi, Santosh Krishnan, Parmatma Singh,
D     Ram Anugrah, Vipin Singhania, Ms. Manju Gupta, Advs. for the
      Respondents.
            The following two Judgments of the Court were delivered by
             MADAN B. LOKUR, J. 1. Pursuant to a Notification issued
      by the State Election Commission, U.P. on 21st September, 2015 elections
E     were held to the Kshettra Panchayat, Jasrana, District Ferozabad (U.P.)
      on 7th February, 2016. Apparently, the results were declared on the
      same day by the State Election Commission and 63 candidates were
      declared elected. It may be mentioned that the elections were held
      under the provisions of the Uttar Pradesh Kshettra Panchayats and Zila
F     Panchayats Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam).
            An elected member
             2. The Adhiniyam does not define the expression ‘elected
      member’. For the purposes of the present petition we are proceeding
      on the basis that an ‘elected member’ is a person who has been duly
G     elected. The ‘elected member’ might or might not have taken the oath
      of office in terms of the Uttar Pradesh Kshettra Panchayats and Zila
      Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules,
      1994 (hereinafter referred to as the Rules). We say this even though
      there is some sanctity attached to taking the oath of office, which we
      will advert to later.
H
            RAM PAL SINGH v. STATE OF U.P. & ORS.                              977
                   [MADAN B. LOKUR, J.]

     3. Rule 2(2) of the Rules defines ‘Members’ in the following terms,       A
which is also without reference to taking the oath of office:
        “2(2) “Members” means in case of Zila Panchayats Members
      elected under clause (b) of sub-section (1) of Section 18 and in
      case of Kshettra Panchayat Members elected under clause (b)
      of sub-section (1) of Section 6 of the Act.”                             B
       4. Section 6(1) of the Adhiniyam provides that a Kshettra
Panchayat shall consist of a Pramukh, who shall be its Chairperson.
Section 6(1)(b) provides that all the Pradhans of the Gram Panchayats
in the Khand shall constitute the Kshettra Panchayat. Section 6(1)(b)
provides that ‘elected members’ of the Kshettra Panchayat shall be             C
chosen by direct election from territorial constituencies in the Panchayat
areas. In other words, it appears that despite the sanctity attached to
taking the oath of office, an ‘elected member’ is one who is elected to
the Kshettra Panchayat in accordance with Section 6(1)(b) of the
Adhiniyam regardless of whether she or he takes the oath of office.
                                                                               D
       5. The only adverse consequence of an ‘elected member’ not
taking the oath of office is provided in Rule 3(3) of the Rules. The adverse
consequence is that if the member of the Kshettra Panchayat does not
make or subscribe the oath or affirmation, then he or she cannot take
the seat in the Kshettra Panchayat. Rule 3(3) reads :
                                                                               E
       “3(3). The members of Zila Panchayat and Kshettra Panchayat
      before taking their seats for the first time as such members shall
      make or subscribe oath or affirmation in the case of member of
      Zila Panchayat before the Adhyaksha and in his absence before
      the Mukhya Adhikari and in the case of members of the Kshettra
      Panchayat before the Pramukh and in his absence before the               F
      Khand Vikas Adhikari in the form set out in the Appendix.”
       6. In other words, a person duly elected to a Kshettra Panchayat
under Section 6(1)(b) of the Adhiniyam is described as and remains an
‘elected member’ and if that ‘elected member’ does not take the oath of
office, he or she does not cease to be an ‘elected member’. The only           G
consequence is that the ‘elected member’ cannot take a seat in the
Kshettra Panchayat and therefore cannot participate in the proceedings
of the Panchayat. The significance of this discussion will be apparent
hereafter.
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978            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A           Taking the oath of office
              7. After the result of the elections was notified by the State
      Election Commission, the first meeting of the Kshettra Panchayat took
      place on 18th March, 2016. In this meeting, the ‘elected members’ elected
      the petitioner (Ram Pal Singh) as the Pramukh. He subscribed to the
B     oath of office before the Sub-Divisional Magistrate/appointee of the
      District Magistrate. Thereafter, the version advanced by the petitioner
      is that he administered the oath of office to the ‘elected members’ except
      17 elected members who were not present. On the other hand, the version
      advanced by the contesting private respondents (elected members) as
      well as the State of U.P. is to the effect that all 63 elected members took
C     the oath of office. We need to decide this factual controversy.
             8. In this regard, we have been shown two documents in the first
      instance, one by the petitioner and another by the contesting private
      respondents (elected members). According to the document produced
      by the petitioner, the Sub Divisional Officer/Pramukh reported that in
D     the proceedings of the Kshettra Panchayat of 18th March, 2016 of the
      elected members 17 of them did not take the oath of office. The other
      document has been filed by the private contesting respondents to the
      effect that proceedings were held on 18th March, 2016 in which they
      participated but there is an interpolation in the document to the effect
E     that 17 elected members did not take the oath of office. The submission
      is that they could have participated in the proceedings only after they
      had subscribed to the oath of office.
             9. Accordingly, we have two conflicting versions of the proceedings
      of 18th March, 2016. The submission of the petitioner is that the 17
F     elected members did not take the oath of office and did not participate in
      the proceedings held on 18th March, 2016. The submission of the private
      contesting respondents is that did take the oath of office, they were
      entitled to and did participate in the proceedings of 18th March, 2016 and
      an interpolation has been made in the record of proceedings only to
      suggest that they did not take the oath of office. Learned counsel for
G     the contesting private respondents made an additional submission and
      drew our attention to the averments made in the counter affidavit to the
      effect that these elected members were paid their daily allowance as
      well as their travelling allowance for subsequent meetings and this
      payment could have been made only if they had attended the meetings
H
            RAM PAL SINGH v. STATE OF U.P. & ORS.                              979
                   [MADAN B. LOKUR, J.]

of the Kshettra Panchayat after taking the oath of office. This averment       A
has not been specifically denied by anybody.
        10. In view of this serious factual controversy, we are of opinion
that it would be appropriate to rely on the counter affidavit filed by the
State. It is stated in the counter affidavit that in a communication of 12th
January, 2018 issued by the office of the Block Development Officer, it        B
is stated that all 63 members of the Kshettra Panchayat had taken the
oath of office on 18th March, 2016.
       11. Our attention has also been drawn to a communication dated
11th January, 2018 issued by the Deputy Collector, Shikhohabad. This
communication is in the nature of an inquiry into the events of 18th March,    C
2016 and it is addressed to the Chief Development Officer, District
Ferozabad. In the communication, it is stated inter alia, that a perusal
of the attendance register of 18th March, 2016 indicates that all 63
members of the Kshettra Panchayat had signed it. Further, oath was
also taken by all the elected members on 18 th March, 2016. The
conclusion of the Deputy Collector, therefore, is quite clear that all the     D
elected members of the Kshettra Panchayat had taken the oath of office
on 18th March, 2016. There is nothing to suggest that the affidavit filed
by the State is false or that the report referred to above is incorrect.
       12. The petitioner has relied upon two other documents in support
of his case that 17 elected members did not take the oath of office on         E
18th March, 2016. The first such document is a communication of 28 th
March, 2016 issued by the Block Development Officer, Jasrana,
addressed to the 17 elected members requiring them to remain present
in his office on 31st March, 2016 to take the oath of office and fill the
requisite form confirming that oath of office has been taken.                  F
       13. As a follow up to the communication dated 28th March, 2016
reference was made by the petitioner to another document dated 31st
March, 2016 in which it is stated that 3 of the 17 elected members took
the oath of office. This document also requires the Assistant Development
Officer (West) to take appropriate steps for completing the formalities        G
of oath being taken by the remaining 14 elected members.
       14. On the other hand, in the communication/report of 11th January,
2018 the Deputy Collector, Shekohabad, has specifically stated that there
is nothing on record to suggest that any communication was sent to the
17 elected members on 28th March, 2016. There is no record of the
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980             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A     communication having been despatched nor is there any document
      showing receipt of the communication by the 17 elected members. It
      appears that the Block Development Officer, Jasrana, was also contacted
      but he was unable to give any evidence or proof of any official record of
      the communication of 28th March, 2016.
B            15. In the communication of 12th January, 2018 sent from the
      office of the Block Development Officer, Jasrana, to the District
      Panchayat Raj Office, Ferozabad, it is stated that no receipt or despatch
      relating to the communication of 28th March, 2016 is available on record.
              16. The counter affidavit filed on behalf of the State confirms
C     that there is nothing on the record of the Kshettra Panchayat to indicate
      that any communication dated 28th March, 2016 was sent to the 17 elected
      members. We accept the submission and categorical averment of the
      State based on the record and conclude that no communication dated
      28th March, 2016 was sent to the 17 elected members for taking oath of
      office.
D
              17. It was then submitted by learned counsel for the petitioner
      that if in fact no communication was sent on 28th March, 2016 there was
      no reason for 3 of the 17 elected members to take the oath of office on
      31st March, 2016 since they had earlier taken the oath of office on 18th
      March, 2016. It is not necessary for us to go into this issue and it is
E     entirely for the 3 elected members to explain why they took the oath of
      office once again on 31st March, 2016 having already taken the oath of
      office on 18th March, 2016.
            18. Our conclusion in this regard is that all 63 elected members of
      the Kshettra Panchayat took the oath of office on 18th March, 2016.
F
            No Confidence Motion
             19. As time went by, it appears that there was a souring of relations
      between the petitioner and other elected members of the Kshettra
      Panchayat. Consequently, a No Confidence Motion was moved against
      the petitioner on 12th June, 2017. The No Confidence Motion was moved
G
      by 39 elected members including 13 elected members who had allegedly
      not taken the oath of office. It was therefore submitted by the petitioner
      that the No Confidence Motion was signed by only 26 elected members
      which is less than half the total number of 63 elected members of the
      Kshettra Panchayat. As such, in view of Section 15 of the Adhiniyam
H
            RAM PAL SINGH v. STATE OF U.P. & ORS.                              981
                   [MADAN B. LOKUR, J.]

the No Confidence Motion was not maintainable in law and the requisition       A
deserved to be rejected at the threshold. This provision reads as follows:-
      15. Motion of non-confidence in Pramukh- (1) A motion
      expressing want of confidence in the Pramukh or any of a Kshettra
      Panchayat may be made and proceeded with in accordance with
      the procedure laid down in the following sub-sections.                   B
      (2) A written notice of intention to make the motion in such form
      as may be prescribed, signed by at least half of the total number
      of elected members of the Kshettra Panchayat for the time being
      together with a copy of the proposed motion, shall be delivered in
      person, by any one of the members signing the notice, to the             C
      Collector having jurisdiction over the Kshettra Panchayat.
      (3) to (10) XXX XXX XXX
      (11) If the motion is carried with the support of more than half of
      the total number of elected members of the Kshettra Panchayat
      for the time being –                                                     D
          (a) the Presiding Officer shall cause the fact to be published
              by affixing a notice thereof on the notice board of the office
              of the Kshettra Panchayat and also by notifying the same
              in the Gazette, and
                                                                               E
          (b) the Pramukh or as the case may be, (sic) shall cease to
             hold office as such and vacate the same on and from the
             date next following that on which the said notice is fixed on
             the notice board of the office of the Kshettra Panchayat.
      (12) If the motion is not carried as aforesaid or if the meeting
                                                                               F
      could not be held for want of quorum, no notice of any subsequent
      motion expressing want of confidence in the same Pramukh or
      (sic) shall be received until after the expiration of one year from
      the date of such meeting.
      (13) No notice of a motion under this section shall be received
      within one year of the assumption of office by a Pramukh or (sic)        G
      as the case may be.
     20. We find a fallacy and a dichotomy in the submission of learned
counsel for the petitioner with regard to the status of elected members

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982             SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A     of the Kshettra Panchayat who have allegedly not taken the oath of
      office.
             21. The fallacy and dichotomy arises in this manner: either the 13
      elected members continue to be elected members of the Kshettra
      Panchayat, despite their not having taken the oath of office or they cease
B     to be elected members of the Kshettra Panchayat. If they are not elected
      members for the purposes of signing the No Confidence Motion, then
      the number of signatories to the No Confidence Motion would drop from
      39 to 26. Correspondingly, the number of elected members of the Kshettra
      Panchayat would also get reduced from 63 to 50. Consequently, it would
      have to be concluded that since 26 out of 50 elected members of the
C     Kshettra Panchayat have signed the No Confidence Motion, more than
      50% of the elected members. Therefore, the No Confidence Motion
      would be maintainable under the provisions of Section 15 of the
      Adhiniyam.
             22. In other words, it is not correct on the part of learned counsel
D     for the petitioner to contend that for the purposes of signing the No
      Confidence Motion, the 13 elected members are not elected members
      but for the purposes of the composition of the Kshettra Panchayat they
      are elected members thereby maintaining the strength of the Kshettra
      Panchayat at 63. If the 13 elected members are not elected members
E     for one purpose, they cannot have a different status for another purpose.
      Their status must remain the same as that of an elected member (or not
      an elected member) both at the time of signing the No Confidence Motion
      and for the composition of the Kshettra Panchayat.
            23. That apart, there is nothing in the law to indicate that an elected
F     member ceases to be a member of the Kshettra Panchayat if he or she
      does not take the oath of office.
              24. To get over this fallacy and dichotomy, it was submitted by
      learned counsel for the petitioner that it would be strange and illogical
      that the 13 elected members could sign the No Confidence Motion even
G     though they had not taken the oath of office but they could not actually
      vote in the Panchayat because they were not entitled to a seat in the
      Panchayat, not having taken the oath of office. While this may appear
      to be illogical and irrational, there is no challenge to the provisions of the
      Adhiniyam and we must proceed on the basis that if the requisition for
      the No Confidence Motion was numerically valid, the discussion on that
H
             RAM PAL SINGH v. STATE OF U.P. & ORS.                           983
                    [MADAN B. LOKUR, J.]

would take place in the Panchayat and the requisition would meet its         A
appropriate fate. We, therefore, reject this contention of the learned
counsel for the petitioner.
       25. Although we are loathe to adjudicate on factual disputes, we
have been compelled to do so in this particular case due to the nature of
the conflicting claims and the fact that we are concerned with               B
democratically elected representatives of a Kshettra Panchayat. That
being said, our conclusion on facts is that all 63 elected members of the
Kshettra Panchayat took the oath of office on 18th March, 2018 and no
communication was sent on 28th March, 2018 to or received by any of
the 17 elected members of the Kshettra Panchayat who were alleged
not to have taken oath of office on 18th March, 2018. Consequently, the      C
No Confidence Motion against the petitioner was a numerically valid
requisition having been signed by more than 50% of the elected members
of the Kshettra Panchayat.
       Position in law
                                                                             D
      26. The legal position having been settled for over 100 years, we
see no dire necessity or any necessity at all of over-turning the law laid
down.
       27. In Bhupindra Nath Basu v. Ranajit Singh Bahadur1 the
question related to the election of two non-official additional members      E
of the Council of the Governor-General. It was alleged that two electors
had not taken the oath of allegiance and therefore the election of the
non-official additional members was void. An unsuccessful candidate in
the election questioned the validity of the election and sought the
recounting of votes after excluding the votes of two electors who had
not taken the oath of allegiance.                                            F
       28. The Calcutta High Court referred to In re Mayor of Penryn2
and Rex v. Swyer3 which noted that a person is admitted to a public
office (which requires the oath of allegiance) only when that oath is
taken. However, the relevant Regulation did not address this issue. It
was held that for the purpose of performing ‘legislative functions’          G
conferred by the Regulation, it was a necessary requirement that the
oath of allegiance is taken. The mere fact of omission to take an oath of
1
  A.I.R. 1914 Calcutta 152
2
  1 Strange 582 = 93 E.R. 714
3
  10 B. & C. 486 = 8 L.J. (o.s.) K.B. 221 = 109 E.R. 531                     H
984               SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A     allegiance did not ipso facto cause a member to vacate his seat.
      Additionally, Regulation 8(1)(b) gave discretion to the Governor-General
      to declare a seat as void if the elected person fails to take the oath of
      allegiance. In the cited case, the Governor-General had not exercised
      such an option. Therefore, the mere fact that two elected members did
      not take the oath of allegiance did not result in their participation in the
B
      electoral process as illegal.
             29. A somewhat similar situation arose in Pashupati Nath Sukul
      v. Nem Chandra Jain & Ors.4 In this case, a member of a Legislative
      Assembly who had not taken the oath of office had proposed a candidate
      for election to the Rajya Sabha. Approving the law laid down in
C     Bhupindra Nath Basu this Court held that as long as the name of the
      elected member appears in the notification published under the provisions
      of Section 73 of the Representation of the People Act, 1951 that member
      can take part in all ‘non-legislative activities’ of an elected member.
      Reference was made to Article 188 of the Constitution which provides
D     that every member of the Legislative Assembly shall, before taking his
      seat, make and subscribe an oath or affirmation according to the form
      set out for the purpose in the Third Schedule of the Constitution.
               Article 188 of the Constitution reads as follows:
               “Every member of the Legislative Assembly or the Legislative
E              Council of a State shall, before taking his seat, make and subscribe
               before the Governor, or some person appointed in that behalf by
               him, an oath or affirmation according to the form set out for the
               purpose in the Third Schedule.”
           In this context, it was held by this Court in paragraph 20 of the
F     Report as follows :
               “We are of the view that an elected member who has not taken
               oath but whose name appears in the notification published under
               Section 73 of the Act can take part in all non-legislative activities
               of an elected member. The right of voting at an election to the
G              Rajya Sabha can also be exercised by him. In this case since it is
               not disputed that the name of the proposer had been included
               before the date on which he proposed the name of the appellant
               as a candidate in the notification published under Section 73 of
               the Act and in the electoral roll maintained under Section 152 of
      4
H         (1984) 2 SCC 404
              RAM PAL SINGH v. STATE OF U.P. & ORS.                           985
                     [MADAN B. LOKUR, J.]

         the Act, it should be held that there was no infirmity in the        A
         nomination. …… .”
      30. In view of the above, it was held that since the name of the
proposer appeared in the notification published under Section 73 of the
Representation of the People Act, 1951 there was no infirmity in the
nomination of the candidate to the Rajya Sabha.                               B
       31. The decision of the Calcutta High Court as well as of this
Court were referred to and relied upon in Smt. Kamla Devi v. State of
U.P. & Ors.5 In this case a somewhat similar situation as in the present
proceedings before us had arisen. A No Confidence Motion was signed
and carried against the Block Pramukh. Challenging this, the submission       C
of the Block Pramukh was that 11 elected members of the Kshettra
Panchayat had not subscribed to the oath of office after being elected.
Therefore, they were ineligible to participate in the meeting convened
for the No Confidence Motion and to cast their vote. It was contented
that these 11 elected members could not be treated as members of the
Kshettra Panchayat and if their votes are disregarded, the No Confidence      D
Motion would fail. The Allahabad High Court rejected the contention
following the decisions mentioned above.
       32. Learned counsel for the petitioner sought to make a distinction
between the performance of ‘legislative functions’ and ‘non-legislative
functions’ of an elected member of the Kshettra Panchayat. It was             E
submitted that the Kshettra Panchayat does not have any legislative
functions and its duties and responsibilities are circumscribed by Chapter
IX of the Constitution. The submission of learned counsel may not be
strictly correct since the Panchayat can be empowered by the State
Legislature to levy, collect and appropriate taxes, duties, tolls and fees.   F
However, without going into this issue, the broad intent of the decision of
the Calcutta High Court, the Allahabad High Court as well as this Court
is that if an elected member does not take the oath of office, he or she
cannot participate in the proceedings of the Kshettra Panchayat, unless
there is something to the contrary in a statute, which is not the case
here. Consequently, there is no prohibition against an elected member         G
from being a signatory to a No Confidence Motion. It is quite possible
that in the absence of the signatory to the No Confidence Motion – an
elected member – the No Confidence Motion might get defeated in the
5
    2014 (8) ADJ 525
                                                                              H
986            SUPREME COURT REPORTS                              [2018] 3 S.C.R.


A     Panchayat due to his or her inability to vote, but that is not relevant for
      our purposes.
            Sanctity of oath of office
             33. The case law that has emerged over the years suggests that
      subscribing to the oath of office is not being taken very seriously. It
B     must be appreciated that taking the oath of office is not a mere ritual but
      there is a degree of seriousness and sanctity attached to it. Different
      laws provide different consequences (some quite mild) for not taking
      the oath of office. We have already referred to the Adhiniyam and the
      Rules. We are of opinion that since subscribing to the oath of office is a
C     solemn occasion, failure to do so ought to result in serious consequences,
      such as the seat being declared vacant after a specified time. In fact,
      Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section
      40 as follows:
            “40. Oath or affirmation to be made by members - (1)
D           Notwithstanding anything contained in the Oaths Act, 1969
            (Central Act X of 1969), every person who is elected to be a
            member or who becomes a member shall, before taking his seat,
            make, at a meeting of the Panchayat an oath or affirmation in the
            following form, namely:-

E                “I, A.B, having been elected a member/having become a
                member of this Village Panchayat/Panchayat Union Council/
                District Panchayat do swear in the name of God/solemnly
                affirm that I will bear true faith and allegiance to the Constitution
                of India as by law established, that I will uphold the sovereignty
                and integrity of India and that I will faithfully discharge the
F               duty upon which I am about to enter”.
            (2) Any person who, having been elected to be a member or who,
            having become a member, fails to make within three months of
            the date on which his term of office commences or at one of the
            first three meetings held after the said date, whichever is later,
G           the oath or affirmation laid down in sub-section (1), shall cease to
            hold his office and his seat shall be deemed to have become vacant.
            (3) Any person who has been elected to be a member or who has
            become a member shall not take his seat at meeting of the
            Panchayat or do any act as such member unless he has made the
H           oath or affirmation as laid down in sub-section (1).
            RAM PAL SINGH v. STATE OF U.P. & ORS.                             987
                   [MADAN B. LOKUR, J.]

      (4) Notwithstanding anything contained in sub-section (3), the          A
      President or the Chairman of a Panchayat or the member of a
      Committee constituted under this Act, who has not made the oath
      or affirmation as a member, shall be entitled to act as such
      President, Chairman or member provided he makes the oath or
      affirmation and takes his seat at the first meeting of the Panchayat
                                                                              B
      which he attends within two months after he is elected or appointed
      as, or becomes entitled to exercise the functions of the President,
      Chairman or member, as the case may be.”
       34. We are of the view that elected representatives be visited
with serious consequences for not taking the oath of office within a
specified time, mainly because even the Constitution attaches a great         C
degree of solemnity to the oath of office. For example, Article 60 of the
Constitution provides that before entering upon his office, the President
shall make and subscribe the oath or affirmation. Similarly, Article 69 of
the Constitution requires the Vice President to make and subscribe the
oath or affirmation before entering upon his office.                          D
       35. Article 84 of the Constitution requires that a person shall not
be qualified to be chosen to fill a seat in Parliament unless he makes and
subscribes the oath or affirmation according to the forms set out for the
purpose in the Third Schedule. We have already referred to the oath or
affirmation by a member of the Legislative Assembly or the Legislative        E
Council as required by Article 188 of the Constitution. If the Constitution
has attached importance to the oath of office, why cannot legislations
provide something similar to what Tamil Nadu has?
       36. Additionally, it should be appreciated that apart from requiring
elected representatives of a Panchayat attaching seriousness to taking        F
the oath of office, an unimpeachable record of the elected representatives
taking the oath of office should be maintained by the concerned officials
of the State Government. Unless the sanctity of the oath of office is
appreciated and appropriate documentation kept, we will continue to be
faced with situations such as the present where a dispute is raised
whether an elected member of a body has taken the oath of office.             G
Such controversies are completely avoidable.
      Conclusion
      37. In view of the factual conclusions that we have arrived at as
well as the law on the subject, we have no hesitation in holding that the
                                                                              H
988            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     13 signatories to No Confidence Motion against the petitioner were
      elected members of the Kshettra Panchayat and were entitled to sign
      the No Confidence Motion and that there was no infirmity in this regard.
            38. The petition is accordingly dismissed and interim orders
      vacated. There will be no order as to costs.
B            DEEPAK GUPTA, J. 1.I have perused the erudite judgment of
      my esteemed brother. Though I agree with the conclusion that the petition
      should be dismissed and interim order be vacated, I am unable to pursue
      myself to agree with my learned brother on the issue “whether an elected
      member of a Kshettra Panchayat, who has not subscribed to the oath of
C     office, can sign or move a no-confidence motion against Pramukh of the
      Kshettra Panchayat”.
             2. The facts as well as the relevant rules and provisions of law
      have been set out in detail in the judgment of my learned brother, which
      I need not refer to in detail. Rule 2(2) of the U.P. Kshettra Panchayats
D     and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.)
      Rules, 1994 (hereinafter referred to as ‘the Rules’) defines ‘Members’.
      In case of Kshettra Panchayat, ‘Members’ means those persons elected
      under clause (b) of sub-section (1) of Section 6 of the U.P. Kshettra
      Panchayats and Zila Panchayats Adhiniyam,1961 (for short “the
      Adhiniyam”). The Adhiniyam provides that a Kshettra Panchayat shall
E     consist of a Pramukh, who shall be its Chairperson and elected members,
      who shall be chosen by direct election from territorial constituencies in
      the Panchayat areas. It is out of these elected members that a Pramukh
      is elected in terms of Section 6(1)(b) of the Adhiniyam. According to
      Rule 3(3) of the Rules, which has been set out in the judgment of my
F     learned brother, a member of the Kshettra Panchayat, before taking his
      seat for the first time as such member, shall make or subscribe oath or
      affirmation before the Pramukh and in his absence before the Khand
      Vikas Adhikari in the form set out in the appendix to the Adhiniyam.
      Rule 3(3), therefore, envisages that before taking seat for the first time
      the member must make or subscribe oath or affirmation (emphasis
G     supplied). The words ‘first sitting’ have to be given some significance
      and the significance is that these elected members can vote without
      taking oath only while electing the Pramukh from amongst themselves
      because thereafter, the Pramukh administers oath to them and then, the
      sitting of the House takes place.
H
            RAM PAL SINGH v. STATE OF U.P. & ORS.                           989
                    [DEEPAK GUPTA, J.]

       3. The language of Rule 3 indicates that a member must subscribe     A
to the oath before he can take part in the sitting of the Panchayat. No
doubt, an elected member continues to be member because no
disqualification has been provided for not taking oath, but the seminal
issue is whether such member can take part in the proceedings of the
Panchayat. Reference in this regard has been made to the judgment of
                                                                            B
this Court in the case of Pashupati Nath Sukul v. Nem Chandra Jain
& Ors.1, judgment of the Calcutta High Court in the case of Bhupendra
Nath Basu v. Ranjit Singh2 and the judgment of the Allahabad High
Court in the case of Kamla Devi v. State of U.P & Ors.3
       4. Before dealing with these judgments, I feel that it would be
apposite to deal with two judgments referred to by the Calcutta High        C
Court in Bhupendra Nath Basu’s case (supra). The first judgment is
the case of the Mayor of Penryn4. In this case, the Mayor of Penryn
was elected to the office but had not subscribed to the oath and without
being sworn in, he had exercised the power of the office of Mayor. On
a writ of quo warranto being entertained, it was found that though the      D
Mayor had been duly elected, since he had acted as a Mayor without
having subscribed to the oath, he had usurped the power of Mayor and
a judgment ousting him from office was passed. It had been urged that
at best a writ of mandamus be issued directing him to take oath, but this
prayer was rejected on the ground that once the Mayor had usurped the
office, judgment had to be pronounced against him.                          E

       5. Judgment in Rex v. Swyer5 is not very relevant. In this case it
was held that the period of the office of the Mayor would commence
only from the date he took oath.
       6. The Calcutta High Court in Bhupendra Nath Basu’s case             F
(supra) was dealing with a case where election was held for the non-
official additional members to the Governor General’s Council from the
constituency of the non-official members of the Bengal Legislative
Council. There were four candidates in the election and the petitioner
Bhupendra Nath Basu got 17 votes and was at 3rd place. The successful
                                                                            G
1
  (1984) 2 SCC 404
2
   AIR 1914 Cal.152
3
  2014 (8) ADJ 525
4
  93 ER 714 [ Kings Bench]
5
  109 E.R. 531 (Kings Bench)
                                                                            H
990            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A     candidates, viz. Moharaja Ranajit Singh Bahadur and Surendra Nath
      Banerjee had secured 18 and 22 votes respectively. Petitioner Bhupendra
      Nath Basu first filed an appeal before the Governor General in Council,
      which was rejected and thereafter, he filed a suit before the High Court
      questioning the validity of the election mainly on the ground that two of
      the members of the Bengal Legislative Council who had cast their votes,
B
      had not taken oath of allegiance and, therefore, their votes should be
      excluded. The Calcutta High Court, on the basis of the regulations relating
      to elections in question, held that the voters had a right of exercising
      their vote even by means of registered letters and, therefore, even if
      they were elected and not subscribed to the oath of office, they could
C     take part in the elections to the non-official members of the Governor
      General in Council. The High Court observed as follows:
            “It is only for the purpose of exercising the legislative functions
            governed by the regulations and by the Act that the oath of
            allegiance is required.”
D            7. In the case of Pashupati Nath Sukul (supra), election to the
      U.P. State Legislative Assembly took place and the Election Commission
      of India, on 9th June, 1980 notified the names of the elected members. A
      notification was issued that they would take oath as required under Article
      188 of the Constitution at the session of the Assembly which had been
E     summoned on 27th June, 1980. In the meantime, the Election Commission
      issued a notification on 17th June, 1980 calling upon the elected members
      to elect a person for filling up vacancy in the Rajya Sabha. Nominations
      were to take place on 24th June, 1980; polling, if necessary, on 4th July,
      1980. One of the objections taken against the nomination of Pashupati
      Nath Sukul was that his name had been proposed by a person, who had
F     not taken oath as member of the Legislative Assembly. Various other
      grounds were taken with which we are not concerned but, this Court,
      after discussing the entire law held as follows:
            “20. We are of the view that an elected member who has not
            taken oath but whose name appears in the notification published
G           under Section 73 of the Act can take part in all non-legislative
            activities of an elected member. The right of voting at an election
            to the Rajya Sabha can also be exercised by him.....”
            8. However, it would be pertinent to refer to certain other
      observations of the apex Court in the same case:
H
           RAM PAL SINGH v. STATE OF U.P. & ORS.                              991
                   [DEEPAK GUPTA, J.]

      “18 ………..Now the question is whether the making of oath or              A
      affirmation is a condition precedent for being eligible to act as a
      proposer of a valid nomination for election to the Rajya Sabha.
      The rule contained in Article 193 of the Constitution, as stated
      earlier, is that a member elected to a Legislative Assembly cannot
      sit and vote in the House before making oath or affirmation. The
                                                                              B
      words ‘sitting and voting’ in Article 193 of the Constitution imply
      the summoning of the House under Article 174 of the Constitution
      by the Governor to meet at such time and place as he thinks fit
      and the holding of the meeting of the House pursuant to the said
      summons or an adjourned meeting. An elected member incurs
      the penalty for contravening Article 193 of the Constitution only       C
      when he sits and votes at such a meeting of the House. Invariably
      there is an interval of time between the constitution of a House
      after a general election as provided by Section 73 of the Act and
      the summoning of the first meeting of the House. During that
      interval an elected member of the Assembly whose name appears
                                                                              D
      in the notification issued under Section 73 of the Act is entitled to
      all the privileges, salaries and allowances of a member of the
      Legislative Assembly, one of them being the right to function as
      an elector at an election held for filling a seat in the Rajya Sabha.
      That is the effect of Section 73 of the Act which says that on the
      publication of the notification under it the House shall be deemed      E
      to have been constituted. The election in question does not form
      a part of the legislative proceedings of the House carried on at its
      meeting. Nor the vote cast at such an election is a vote given in
      the House on any issue arising before the House. The Speaker
      has no control over the election. The election is held by the
                                                                              F
      Returning Officer appointed for the purpose.”
       9. When we read both the observations together, it is obvious that
a member who is elected to a House, does not cease to be a member
only because he had not subscribed to the oath unless there is a specific
provision in this regard. However, both from the judgments of this Court
and the Calcutta High Court, it is apparent that such an elected member       G
who has not taken oath, can only take part in those proceedings which
are not proceedings of the House. The Calcutta High Court was dealing
with the election of non-official members of the Governor General in
Council. The voters were the members of the Bengal Legislative Council
                                                                              H
992             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A     and, therefore, the election to the House of the Governor General in
      Council had no connection with the business of the Bengal Legislative
      Council. As far as the judgment of this Court is concerned, the members
      of the Legislative Assembly, who had not taken oath, were taking part in
      elections to the Rajya Sabha, which was definitely not part of the business
      of the Legislative Assembly.
B
              10. As far as the present case is concerned, as pointed out earlier,
      Rule 3(3) prescribes that before taking their seat for the first time, the
      members must subscribe oath or affirmation. What is the consequence
      of a member not taking oath? He does not cease to be a member but, at
      the same time, he cannot take part in the business of the House. In my
C     view, a motion of no confidence is part of the proceedings of the
      Panchayat, as such a motion is governed by the provisions of the
      Adhiniyam and, therefore, this is part of the business of the Panchayat.
      An elected member who has not taken oath, cannot move and be a
      signatory to such a no confidence motion. Such motion has to be moved
D     in terms of Section 15 of the Adhiniyam. In my view, those members
      who have not taken oath and are, therefore, not entitled to vote at such
      no confidence motion, cannot be held to be entitled or eligible to sign
      such motion. Otherwise, it would lead to a very odd situation where
      such members can sign a motion but cannot vote when the said motion
      is put to vote. This could not have been the intention of the Legislature.
E     Section 15 (12) and (13) of the Adhiniyam provide that a no-confidence
      motion cannot be moved within one year of the election having taken
      place or within a year of the rejection of the motion. Thus, the Legislature
      intended that a no-confidence motion should not be moved at drop of a
      hat. Therefore, according to me, members who have not taken oath
F     and, therefore, do not have a right to vote for the no-confidence motion
      cannot be permitted to sign such a motion.
             11. As far as the judgment of the Allahabad High Court in Kamla
      Devi (supra) is concerned, that only purports to follow the judgment of
      this Court. Considering the fact that my view is different, neither the
G     Calcutta High Court judgment nor the judgment of this Court is applicable
      to the facts of the instant case. The judgment of the Allahabad High
      Court, according to me, does not lay down the correct position of law.
            12. I, therefore, respectfully differ with my respected learned
      brother on the question as to whether the signing of a no- confidence
H     motion is part of the business of the House. However, I am in agreement
            RAM PAL SINGH v. STATE OF U.P. & ORS.                                 993
                    [DEEPAK GUPTA, J.]

with my learned brother that the petition ought to be dismissed. There            A
are disputed question of facts as to whether certain members had taken
oath or not, which questions cannot be decided at this stage and the
petitioner has failed to discharge the heavy burden on him to prove that
these members have not taken oath. I also agree with my learned brother
that sanctity must be attached to the oath. Various articles of the
                                                                                  B
Constitution of India and various other laws provide that persons holding
public office must subscribe to an oath of allegiance. This oath cannot
be rendered meaningless and the Legislature would be well advised to
provide consequences for not subscribing to such an oath of office. To
avoid such controversy in future, it would also be advisable if the swearing
in/oath taking is videographed so that no such dispute arises in future.          C

Kalpana K. Tripathy                                         Petition dismissed.




                                                                                  D




                                                                                  E




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                                                                                  H