Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961:
ss. 6(1)(b) and 15 r/w r. 3(3) of Uttar Pradesh Kshettra 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 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 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 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 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. 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 not, advice to maintain record of the same.
Dismissing the petition, the Court
HELD:
Per Madan B. Lokur, J.:
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 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
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 (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 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 Kshettra Panchayat. [Para 25][983-C]
1.3 There is nothing in the law to indicate that an elected 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 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 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]
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.
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 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 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]
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 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)
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 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 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 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 have not taken oath, do not have a right to vote for the noconfidence 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 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. [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 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
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 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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