Seema Sarkar vs Executive Officer and Ors.

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 provisions 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 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 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 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 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 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 election of the Pramukh, subject to the provisions contained in 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 forward. Section 106 of the Regulation speaks about the constitution of the Panchayat Samiti. The composition of the Panchayat Samiti has been predicated in Section 107. This provision is in four parts. The first clause [(clause (1)] is a general provision envisaging that every Panchayat Samiti shall consist of such number of seats as the administrator may by notification determine. Clause (2) postulates that the seats in the Panchayat Samiti as determined shall be filled up by persons chosen by direct election from the territorial constituencies in the manner prescribed. Clause (3) refers to the persons who shall also be represented in the Panchayat Samiti other than the persons chosen by direct election referred to in clause (2). This clause (3) is again split in two parts: the first referring to the proportion of the representation given to the representatives of the Gram Panchayat in the Panchayat Samiti; and the second referring to the member of the House of Parliament representing the Union Territory. As regards the latter, it has 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 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 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 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 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 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]

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 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. Those persons may not be directly elected from the territorial constituencies in the Panchayat area but nevertheless, are people’s representatives, being elected as Pradhans of the concerned Gram Panchayat within the area of the Panchayat Samiti, or as the Member of the House of Parliament representing the Union Territory. It would have been a different matter if Section 117 had constricted the right to vote on a motion of no confidence only to the members directly elected from the territorial constituencies in the Gram Panchayat area, referred to in Section 107(2) of the Regulation. To put it differently, merely because the law permits only the directly elected members to vote during the election of Pramukh, that ipso facto would not follow that the other members (other than the elected members) of the Panchayat Samiti are ineligible to vote on a ‘No Confidence Motion’. [Para 20] [172--G-H; 173-A-C]

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 Section 202. Clause (ak) of Section 202(2) enables the Administrator to frame rules in respect of the notice for moving a motion of no confidence against the Pramukh or Up-Pramukh as per Section 117(1) of the Regulation. Further, clause (al) permits framing of rules regarding the time and place of meetings of the Panchayat Samitis and the procedure for such meetings under 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 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 logical end. In that sense, the central issue is about the purport of the mechanism provided in the Regulation and the Rules on the subject of ‘No Confidence Motion’. From the legislative scheme it is noticed that as and when the special meeting to consider the ‘No Confidence Motion’ proceeds, Section 117(2) mandates that the motion may be treated as carried out only if a majority of not less than 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]

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 membership”. 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 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 twin requirement. If so, the ‘No Confidence Motion’ is required to be considered in the special meeting of the Panchayat Samiti as a whole and not limited to members directly elected from the territorial constituencies in the Panchayat area. Thus understood, the total membership of the Little Andaman Samiti being six, two-thirds thereof would be four. If the members present at the 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’.

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 chairperson should be limited 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. 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 member of the Panchayat Samiti much less 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” members of the Panchayat Samiti 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 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 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 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. The provisions in the Regulation under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No Confidence Motion’. As a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidence Motion’ against the Pramukh or 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 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]

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 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.

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 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.