Supreme Court of India
SEEMA SARKARversusEXECUTIVE OFFICER AND ORS.
- Citation
- 2019 INSC 612
- Decided
- 1 May 2019
- Disposal
- Appeal(s) allowed
- Bench
- A M KHANWILKAR
Holding
The quorum for a special meeting to consider a no‑confidence motion is two‑thirds of the total membership of the Panchayat Samiti, which includes ex‑officio members such as the MP, who are also entitled to vote on the motion.
Summary
The Little Andaman Panchayat Samiti, consisting of five elected members and one Member of Parliament (MP) as an ex‑officio member, scheduled a special meeting to consider a no‑confidence motion against the Pramukh. Only three elected members attended, and the Executive Officer dissolved the meeting, holding that a quorum of two‑thirds of the total membership (four members) was required. The High Court Division Bench held that the MP could not participate or vote in the motion, set aside the Executive Officer’s decision, and ordered a fresh election. On appeal, the Supreme Court examined the Andaman and Nicobar Islands (Panchayats) Regulation, 1994, the Panchayat Administration Rules, 1997, and Article 243C of the Constitution, concluding that the quorum includes all members, including the MP, who may also vote on the motion. Consequently, the Supreme Court allowed the appeal, reinstated the Executive Officer’s finding of lack of quorum, and restored the appellant to the post of Pramukh.
Issues considered
- The quorum required for a special meeting to consider a no‑confidence motion under Section 117 of the Regulation and Rule 9 of the Rules.
- Whether an ex‑officio MP member of a Panchayat Samiti is entitled to be counted in the quorum.
- Whether the MP may vote on a no‑confidence motion against the Pramukh.
- Interpretation of the Andaman and Nicobar Islands (Panchayats) Regulation, 1994 and the Panchayat Administration Rules, 1997 in light of Article 243C of the Constitution.
- The correctness of the High Court Division Bench’s reversal of the Executive Officer’s decision.
Legislation cited
- Andaman and Nicobar Islands (Panchayat Administration) Rules, 1997s. 10, s. 121, s. 202, s. 21, s. 9
- Andaman and Nicobar Islands (Panchayats) Regulation, 1994s. 107, s. 112, s. 117
- Constitution of Indias. Article 243B, s. Article 243C, s. Article 243d, s. Article 243R
Subjects
Panchayat SamitiNo‑confidence motionQuorumEx‑officio memberMember of ParliamentArticle 243CPanchayati RajStatutory interpretationConstitutional lawLocal self‑government
Judgment
[2019] 8 S.C.R. 151 151
SEEMA SARKAR A
v.
EXECUTIVE OFFICER AND ORS.
(Civil Appeal No.4547 of 2019)
MAY 01, 2019 B
[A.M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Panchayat: Inclusion or exclusion of the Member of the House
of Parliament (MP) representing the Union Territory of Andaman
and Nicobar Islands, who is also an ex-officio member of the
C
Panchayat Samiti, for reckoning the quorum of a special meeting
regarding motion of no confidence against the Pramukh of the Little
Andaman Panchayat Samiti – Held: The quorum of the special
meeting ought to be of not less than two-thirds of the “total number
of membership of the Panchayat Samiti” which includes all the
members of the Panchayat Samiti - be it directly elected or D
ex-officio members, as the case may be – A conjoint reading of
s.117, r.9(3)(b) and also r.21 of the Rules shows that they, in no
way, exclude any member of the Panchayat Samiti much less the
members referred to in s.107(3) of the Regulation – Not even by
necessary implication – If the legislature had intended to exclude
E
the latter category from the process of ‘No Confidence Motion’, it
would have expressly limited it to only the elected members 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 two-thirds of the “total number” of members of the
Panchayat Samiti must participate and vote – This is the legislative F
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 – Thus, the
Member of the House of Parliament (MP) being the member of the
G
Samiti is entitled to participate in the special meeting to consider a
‘No Confidence Motion’ and also vote on that motion – Andaman
and Nicobar Islands (Panchayats) Regulation, 1994 – ss.107,
117 – Andaman and Nicobar Islands (Panchayats Administration)
Rules 1997 – rr. 9, 21 – Interpretation of statutes – Constitution of
India – Art.243C. H
151
152 SUPREME COURT REPORTS [2019] 8 S.C.R.
A Allowing the appeal, the Court
HELD: 1. The composition of intermediate level 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 provi-
B sions of Part-IX of the Constitution. Clause (2) of the Article
243C 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
C not directly elected 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
D 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. [Para 12] [167-E-H; 168-A]
2. The chairperson of a Panchayat at intermediate level is
required to be elected by, and from amongst, the elected
E members thereof. 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) via-a-vis other persons referred to in sub-clauses (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
F is little doubt that the election of chairperson is by the former
category of the 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. There is no
express provision in the Constitution dealing with the removal
G of a chairperson of the Panchayat Samiti. 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
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 153
election of the Pramukh, subject to the provisions contained in A
Part-IX of the Constitution. [Paras 13, 15] [168-B-D, G-H;
169-A-B]]
3. The Regulation as well as the Rules specifically provided
for the subject of motion of no confidence, how such motion should
be moved and the manner in which it is required to be carried B
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 C
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 D
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 E
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.
[Para 16] [169-B-F]
4. A plain reading of Section 112 of the Regulation states F
that the election of the Pramukh and Up-Pramukh 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 G
with the constitutional scheme of democratic decentralization and
self-Government on the principle of grass-root 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
H
154 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 243C(3) have no say in the matter of electing the Pramukh or
Up-Pramukh of the Panchayat Samiti, though they may generally
have the right to vote in the meeting of the Panchayat Samiti on
other matters. [Para 18] [171-D-F]
5. Sections 107 and 112 are a facsimile of Article 243C and
B also within the framework provided therein. Although the other
member(s) who have been given representation in the Panchayat
Samiti have no say in the election of the Pramukh or Up-Pramukh
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
C Up-Pramukh of the Panchayat Samiti. The Constitution is
completely silent on the subject of removal of the Pramukh or
the Up-Pramukh of the Panchayat Samiti, including regarding the
manner in which a ‘Motion of No Confidence’ against them could
be moved and carried forward. [Para 19] [171-F-H; 172-A]
D 6. Section 117 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
E Panchayat area have no right to vote during the election of the
Pramukh or Up-Pramukh of the Panchayat Samiti, it does 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.
F 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
G 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
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 155
differently, merely because the law permits only the directly A
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’. [Para 20] [172--G-H;
173-A-C]
B
7. Besides the explicit provisions in the Regulation, even
the statutory Rules make it unstintingly intelligible that the other
(ex-officio) 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 C
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 D
meetings of the Panchayat Samitis and the procedure for such
meetings under sub-section (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
Up-Pramukh under sub-section (2) of Section 121. The statutory
rules framed under Section 202 expressly provide for the E
quorum of the meetings of the Panchayat Samiti. Rule 21
specifically deals with the motion of no confidence against the
Pramukh or Up-Pramukh. 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 F
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 G
majority of not less than two-thirds of the “total number” of
members of the Panchayat Samiti vote in favour of removal of the
Pramukh or Up-Pramukh, as the case may be. A similar position
is restated in Rule 21 of the Rules. [Paras 21-23] [173-D-F,
174-F; 175-G-H; 176-A] H
156 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 8. Rule 9(3)(b) stipulates that two-thirds 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 Up-Pramukh. Thus, the
quorum specified is not less than two-thirds of the “total mem-
B
bership”. The emphasis is on the expression “total membership”,
which includes the other (ex-officio) 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
C referred to in Section 107(2) of the Regulation. The governing
provisions predicate that the special meeting must be attended
by not less than two-thirds 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
D
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,
E two-thirds thereof would be four. If the members present at the
scheduled place and time of the meeting were only three,
obviously the Executive Officer was justified in dissolving the
meeting for want of quorum. [Paras 24, 25] [176-B-D, F-H]
9. Who can vote on the ‘No Confidence Motion’.
F 9.1 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 chairper-
son should be limited to voting by the elected members. The law
G on the removal of the Pramukh or Up-Pramukh by means of ‘No
Confidence Motion’ has been 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. A conjoint reading of Section 117, Rule 9(3)(b) and
also Rule 21 of the Rules shows that they, in no way, exclude any
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 157
member of the Panchayat Samiti much less the members referred A
to in Section 107(3) of the Regulation. Not even by necessary
implication. Taking any other view would result in re-writing of
the provisions to read as - the motion of no confidence must be
carried out by a majority of not less than two-thirds of the total
number of “directly elected” members of the Panchayat Samiti
B
mentioned in Section 107(2), present and voting. The State
Legislature was conscious of the marked distinction between the
category of members constituting the Panchayat Samiti. Section
107(2) 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 C
constituent of the Panchayat Samiti. If 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
D
election of the chairperson. [Para 26] [177-C-G]
9.2 In the instant 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 E
established position that the right to 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. F
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 G
‘No Confidence Motion’ against the Pramukh or Up-Pramukh,
as the case may be. 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 H
158 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
[Paras 28, 29, 32] [178-H; 179-A-B, F; 181-B-C]
B Mohan Lal Tripathi v. District Magistrate, Rai Bareilly
and Ors.(1992) 4 SCC 80 : [1992] 3 SCR 338
– relied on.
Ramesh Mehta v. Sanwal Chand Singhvi and Ors.
(2004) 5 SCC 409 : [2004] 1 Suppl. SCR 418 ; State
C of Karnataka and Ors. v. Lakshmappa Kallappa
Balaganur and Ors. (2001) 3 KLJ 498 ; Pratap
Chandra Mehta v. State Bar Council of Madhya
Pradesh and Ors. (2011) 9 SCC 573 : [2011] 11 SCR
965 – distinguished.
D Justice K.S. Puttaswamy and Anr. v. Union of India and
Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569 ; Bhanumati
and Ors. v. State of Uttar Pradesh through its Principal
Secretary and Ors. (2010) 12 SCC 1 : [2010] 7 SCR
585 ; Usha Bharti v. State of Uttar Pradesh and Ors.
(2014) 7 SCC 663 : [2014] 4 SCR 1076 ; Delhi
E Transport Corporation v. D.T.C. Mazdoor Congress and
Ors. (1991) 1 Suppl. SCC 600 : [1990] 1 Suppl. SCR
142; Vipulbhai M. Chaudhary v. Gujarat Cooperative
Milk Marketing Federation Limited and Ors. (2015) 8
SCC 1 : [2015] 3 SCR 997 – referred to.
F Case Law Reference
[2004] 1 Suppl. SCR 418 distinguished Para 6
(2001) 3 KLJ 498 distinguished Para 6
[2017] 10 SCR 569 referred to Para 30
G [2010] 7 SCR 585 referred to Para 30
[2014] 4 SCR 1076 referred to Para 30
[1990] 1 Suppl. SCR 142 referred to Para 30
[2015] 3 SCR 997 referred to Para 31
[2011] 11 SCR 965 distinguished Para 32
H [1992] 3 SCR 338 relied on Para 32
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 159
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4547 A
of 2019
From the Judgment and Order dated 13.12.2017 of the High Court
of Calcutta, Bench at Port Blair in Misc. Application No. 26 of 2017
Nachiketa Joshi, Anil Seth, Mohd. Asad Khan, Aayush Anand,
Ms. Suchita Joshi, Advs. for the Appellant. B
Aman Lekhi, ASG, Ms. Shraddha Deshmukh, Arvind K. Sharjma,
R. Chandrachud, Karan Sharma, Nitin Thukral, Ms. Mrinal Kanti
Mondal, K.V. Jagdishvaran, Ms. G. Indira, Advs. for the Respondents.
The Judgment of the Court was delivered by C
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”)
D
representing the Union Territory of Andaman and Nicobar Islands, who
is also an ex-officio member of the Panchayat Samiti, for reckoning the
quorum of a special meeting regarding motion of no confidence against
the Pramukh of the Little Andaman Panchayat Samiti (for short the
“said Samiti”) and also whether he/she can exercise his/her vote on the
‘No Confidence Motion’ within the meaning of the provisions of Andaman E
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 F
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 G
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
H
160 SUPREME COURT REPORTS [2019] 8 S.C.R.
A Executive Officer for want of quorum of four members, in view of
Section 107 of the Regulation. The Executive Officer issued
communication in that behalf on 2nd July, 2017 which reads thus:
“No.3-131/PS/HB/2016-17/535
OFFICE OF THE PANCHAYAT SAMITY
B HUT BAY, LITTLE ANDAMAN
**************
Hut Bay dated the 2nd Jan. 2017
To,
The Deputy Commissioner,
C
South Andaman, Port Blair.
Sub: Report on No Confidence Motion against Smt. Sima Sarkar,
Pramukh, Panchayat Samiti, Little Andaman-Reg.
Sir,
D The re-scheduled 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
E
the members of the Panchayat Samiti, Hut Bay become six and
2/3rd 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
F
dissolved.
The extract of proceeding of the meeting is enclosed herewith
for your kind reference.
Encl: A/A
G Yours Faithfully
Executive Officer
Panchayat Samiti
Little Andaman”
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 161
[A.M. KHANWILKAR, J.]
4. The respondent No.6 assailed the said decision by way of Writ A
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
B
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 C
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 D
respondent no.1 and further direct the Up-Pramukh 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 E
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. F
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. The writ petition was heard by the learned Single Judge of the
High Court who negatived the stand of respondent No.6 and thus G
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
H
162 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
B 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 Up-Pramukh of the
C Panchayat 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
D 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 (73rd amendment) Act, 1992. The purpose of
E 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
F 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
G in the meetings of the panchayats. The Chairperson of a Panchayat
at the intermediate level or district level under Article 243 (C) (5)
(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
1
(2004) 5 SCC 409
H 2
(2001) 3 KLJ 498
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 163
[A.M. KHANWILKAR, J.]
representing the Union Territory shall also be represented in the A
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
B
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 C
presence of the Member of Parliament is not required for the
purpose of electing the Pramukh and Up-Pramukh 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 D
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 E
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 F
may have a right to vote in other proceedings. All members who
have selected Pramukh and Up-pramukh 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 Up-Pramukh as the said office bearers have G
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 cannot be treated at par in matters
relating to no confidence motion to remove Pramukh or
Up-Pramukh.” H
164 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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 2nd 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
B
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
C 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 appellant, by scheduling a fresh
D election on 19th 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.
E 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.”
F
(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,
G
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.
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 165
[A.M. KHANWILKAR, J.]
10. We have heard Mr. Purushaindra Kaurav, learned senior A
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 B
into force from 24th April, 1993, Part-IX 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 grass-root
democracy. It may be useful to advert to the Statement of Objects and
Reasons necessitating such amendment, which reads thus:
C
“THE CONSTITUTION (SEVENTY-THIRD AMENDMENT)
ACT, 1992
Statement of Objects and Reasons appended to the Constitution
(Seventy-second Amendment) Bill, 1991 which was enacted as
the Constitution (Seventy-third Amendment) Act, 1992 D
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 E
representation of weaker sections like Scheduled Casts, Scheduled
Tribes and women, inadequate devolution of powers and lack of
financial resources.
2. Article 40 of the Constitution which enshrines one of the
directive principles of State Policy lays down that the State shall F
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 G
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-
H
166 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
B (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:
C
“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
D 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.
(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
E
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
F
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;
G
(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
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 167
[A.M. KHANWILKAR, J.]
which comprise wholly or partly a Panchayat area at a level other A
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 B
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 C
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.
(5) The Chairperson of-
(a) a Panchayat at the village level shall be elected in such manner D
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 E
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 Part-IX 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 F
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 from the
territorial constituencies in the Panchayat area. Clause (4) deals with G
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
H
168 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B 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) vis-a-vis other persons
referred to in sub-clauses (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
C former category of the 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.
D 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
E 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
F (MP), though a member of the Panchayat Samiti, is not competent to
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
G had chosen to remain silent by not enacting any law on the subject of
removal of the Pramukh or Up-Pramukh 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
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 169
[A.M. KHANWILKAR, J.]
make a law on the subject of composition of Panchayats, including A
regarding election of the Pramukh, subject to the provisions contained in
Part-IX 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 Part-IX of the Constitution.
B
16. Concededly, the Regulation as well as the Rules specifically
provided for the subject of motion of no confidence, 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 C
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. D
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 E
representing the Union Territory. As regards the latter, it has 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 F
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 G
practicable be the same throughout the Panchayat Samiti area.
(3) The following persons shall also be represented in the
Panchayat Samiti, namely:-
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170 SUPREME COURT REPORTS [2019] 8 S.C.R.
A (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
B
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
C Panchayat Samiti.
(4) The provisions of sub-sections (5),(6),(7) and (8) of section 11
shall so far as may be apply to the Panchayat Samiti as they apply
to a Gram Panchayat subject to the modification that for the words
‘Gram Panchayat’ wherever they occur, the words ‘Panchayat
D Samiti’ had been substituted.”
(emphasis supplied)
17. The other relevant provision in the Regulation is Section 112,
which deals with election of Pramukh and Up-Pramukh. The same reads
thus:
E
“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
F 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
Up-Pramukh shall be transacted at such meeting.
G
(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.
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 171
[A.M. KHANWILKAR, J.]
(5) Subject to any general or special order of the Administrator, A
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 B
the area of the Union Territory to which this Regulation applies
bears to the total population of such area;
(b) not less than one-third 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 C
allotted by the Election Commission by 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 Up-Pramukh is “by” the D
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 self-Government on the principle of E
grass-root 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 Up-Pramukh of
the Panchayat Samiti, though they may generally have the right to vote
in the meeting of the Panchayat Samiti on other matters. F
19. Sections 107 and 112 are a facsimile of Article 243C and also
within the framework provided therein. Although the other member(s)
who have been given representation in the Panchayat Samiti have no
say in the election of the Pramukh or Up-Pramukh of the Panchayat
Samiti, it does not follow that they are not eligible to remain present and G
vote in the special meeting regarding the motion of no confidence against
the Pramukh or Up-Pramukh of the Panchayat Samiti. As
aforementioned, the Constitution is completely silent on the subject of
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172 SUPREME COURT REPORTS [2019] 8 S.C.R.
A removal of the Pramukh or the Up-Pramukh 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:
B “117 (1) A motion of no confidence may be moved by any member
of a Panchayat Samiti against the Pramukh or the Upa-Pramukh
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
C Samiti, the Pramukh or Upa-pramukh, 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 Upa-Pramukh shall not preside over a meeting in
D which a motion of no confidence is discuss 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
E Regulation regarding the ‘No Confidence Motion’ against the Pramukh
or Up-Pramukh 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
F 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 Up-Pramukh 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
G 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 Up-Pramukh of the Panchayat Samiti, it
does 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
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 173
[A.M. KHANWILKAR, J.]
members of the Panchayat Samiti during the relevant period. Those A
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
B
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 C
elected members) of the Panchayat Samiti are ineligible to vote on a
‘No Confidence Motion’.
21. Besides the explicit provisions in the Regulation, even the
statutory Rules make it unstintingly intelligible that the other (ex-officio)
member(s) of the Panchayat Samiti can also remain present and D
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 E
framing of rules regarding the time and place of meetings of the
Panchayat Samitis and the procedure for such meetings under
sub-section (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 Up-Pramukh under sub-section (2) of F
Section 121. The statutory rules framed under Section 202 expressly
provide for the quorum of the meetings of the 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, G
Zilla Parishad for the kinds of meetings in each Panchayat:
xxx xxx xxx xxx xxx
(3) Panchayat Samiti.- (a) Two-thirds of the total membership
of a Panchayat Samiti shall be sufficient quorum for an ordinary
meeting of a Panchayat Samiti-, H
174 SUPREME COURT REPORTS [2019] 8 S.C.R.
A (b) Not less than two-thirds of the total membership is
necessary for a special meeting called for the purpose under
sub-section (1) of section 117 of the Regulation to move a motion
of no confidence against the Pramukh and Up-Pramukh. 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
B
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:
C
“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 Vice-Chairperson of the Presiding member as the case
D 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
Form-2. 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
E adjourned meeting.
(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 Up-Pramukh. The same reads thus:
F
“21. Pramukh and Up-Pramukh: (1) A motion of no confidence
against the Pramukh or the Up-Pramukh 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
G Up-Pramukh or in the absence of both, to the Executive Officer.
The Pramukh or in his absence the Up-Pramukh 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,
Up-Pramukh and all the members of the Panchayat Samiti, in
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 175
[A.M. KHANWILKAR, J.]
Form 1-A enclosing therewith a copy of the no confidence motion A
moved by the member.
(2) The Pramukh or the Up-Pramukh 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 Up-Pramukh and B
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 two-thirds of the total membership of the
Panchayat Samiti is necessary for the meeting. Within one C
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 D
(Director of 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
two-thirds of the total membership of the Panchayat Samiti E
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 Up-Pramukh or both, as the case may be, have
resigned earlier.”
F
(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 G
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 two-thirds of the “total
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176 SUPREME COURT REPORTS [2019] 8 S.C.R.
A number” of members of the Panchayat Samiti vote in favour of removal
of the Pramukh or Up-Pramukh, as the case may be. A similar position
is restated in Rule 21 of the Rules.
24. Indeed, the provisions in the Regulation do not provide for the
quorum of the special meeting. That is, however, prescribed in the form
B of Rule 9. Rule 9(3)(b) stipulates that two-thirds of the “total member-
ship” 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
Up-Pramukh. Thus, the quorum specified is not less than two-thirds of
the “total membership”. The emphasis is on the expression “total
C membership”, which includes the other (ex-officio) 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
D 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.
25. The question as to whether the other member(s) (other than
directly elected) who can participate in the special meeting, have the
E 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 two-thirds of the “total
F 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
G 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 scheduled place and time
of the meeting were only three, obviously the Executive Officer was
justified in dissolving the meeting for want of quorum.
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 177
[A.M. KHANWILKAR, J.]
26. That takes us to the question as to who can vote on the A
‘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 two-thirds 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
B
enacted in the form of Section 117 of the Regulation, in any way,
deviates from the scheme of Part-IX 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 C
to voting by the elected members. The law on the removal of the Pramukh
or Up-Pramukh by means of ‘No Confidence Motion’ has been 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
D
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 re-writing of the provisions to
read as - the motion of no confidence must be carried out by a majority
of not less than two-thirds of the total number of “directly elected” E
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
F
constituencies, in contradistinction to the other category of persons
mentioned in Section 107(3), the constituent of the Panchayat Samiti. If
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 G
chairperson. Whereas, the provision makes it incumbent that not less
than two-thirds 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
H
178 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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”
B on the Municipal Board in terms of Rule 3(9) of the Rajasthan
Municipalities (Motion of No-confidence against the Chairman or
Vice-Chairman) Rules, 1974, “nominated members” have to be taken
into consideration. 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
C 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 sub-clauses (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
D said sub-clauses 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
E 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 exclusion is not made in respect
of the other categories of members of the Municipality referred to in
sub-clauses (ii) to (iv) of Article 243R(2)(a). In short, the question
F 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 Vice-Chairman 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
G 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
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 179
[A.M. KHANWILKAR, J.]
exclude the other members of the Panchayat Samiti referred to in A
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 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
B
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 C
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 D
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 Up-Adhyaksha. The observations in the said
decision, therefore, are contextual and in reference to the express E
provision in the Karnataka Panchayat Raj Act in the 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 F
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 Up-Pramukh, as the case
may be.
30. A priori, the argument of Mr. Lekhi that the interpretation will G
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
H
180 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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’ against the Pramukh or Up-Pramukh, 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
B
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
C 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
D motion of no confidence. The exposition in the said decision, that if a
person has been 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
E 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
F 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
G
5
(2014) 7 SCC 663 (para 34)
6
(1991) Supp.(1) SCC 600 (para 255)
7
(2015) 8 SCC 1 (para 20)
8
(2011) 9 SCC 573 (para 22, 26, 46)
9
(1992) 4 SCC 80 (para 4)
H
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS. 181
[A.M. KHANWILKAR, J.]
paragraph that a provision in the statute for recall of an elected A
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
B
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. C
33. For the above reasons, we conclude that the Division Bench
committed manifest error in setting aside the decision of the Executive
Officer dated 2 nd 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 D
meeting ought to be of not less than two-thirds of the “total number of
membership of the Panchayat Samiti” which includes all the members
of the Panchayat Samiti - be it directly elected or ex-officio 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 E
Executive Officer had no option except to dissolve the meeting
convened on 2nd 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, F
asking him to step down, therefore, also would be non est in law. This
Court, vide order dated 15th 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 G
dated 2nd January, 2017 be treated as non est in terms of this order.
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,
H
182 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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.
C Devika Gujral Appeal allowed.
D
E
F
G
H
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