2 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 2680 of 2011. Reserved on : 29.7.2011. Decided on: August 18, 2011. Angdui Norbu and others Versus State of H.P. & others. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K.Sharma, Judge. Whether approved for reporting? Yes. For the petitioners: Mr. Shrawan Dogra, Advocate. For the Respondents: Mr. R.K.Bawa, AG, with Mr. Ankush Dass Sood, Addl. AG, for respondents No. 1 & 2. Mr. Vishal Panwar, Advocate, for respondents No. 3 to 8. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. Dictionary defines democracy as “ a system of government by the whole population usually through elected representatives”(The Concise Oxford Dictionary). Democracy pre-supposes participation and involvement of the people governing systems. A village is the basic and indestructible unit of our social system. Article 40 of the Constitution of India obliged the State to 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, as a directive principle of a state policy. It took more than 40 years to give a meaningful translation of that principle, by introducing the 73rd amendment in the Constitution in the year 1992, providing for the conferment of powers on local self government institutions, in the process of de-centralization of democratic institutions and providing for greater 3 accountability between the citizens and the State. It will be profitable in this context, to refer to the legislative intent as reflected in the statement of objects and reasons for the 73rd and 74th amendments, which read as follows: “73rd Amendment: 1. 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 suppressions, insufficient representation of weaker sections like Scheduled Castes, 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 take steps to organize village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self- government. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj institutions to impart certainty, continuity and strength to them. 3. Accordingly, it is proposed to add a new part relating to Panchayats in the Constitution to provide for among other things, Gram Sabha in a village or group 4 of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of chairpersons in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of 5 years for Panchayats and holding elections within a period of 6 months in the event of supersession of any Panchayat.” “74th Amendment. 1. In many States local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged suppressions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-government. 2. Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for- (i) Putting on a firmer footing the relationship between the State Government and the urban local bodies with respect to- (a) the functions and taxation powers; and (b) arrangements for revenue sharing; (ii) ensuring regular conduct of elections; (iii) ensuring timely elections in the case of supersession; and 5 (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women. 3. Accordingly, it is proposed to add a new part relating to the urban local bodies in the Constitution to provide for- (a) Constitution of three types of municipalities: (i) Nagar Panchayats for areas in transition from a rural area to urban area; (ii) Municipal Councils for smaller urban areas; (iii)Municipal corporations for larger urban areas. * * * (e) reservation of seats in every municipality- (i) for Scheduled Castes and Scheduled Tribes in proportion to their population of which not less than one-third shall be for women.” 2. In this case, we are concerned with a peculiar situation in the matter of constitution of Panchayat at intermediate level – Panchayat Samiti and the election of Chairman and Vice Chairman thereof. Under Article 243-C of the Constitution of India, it is for the State legislature to make provisions in respect of constitution of Panchayats. Article 243-C (2), reads follows: “All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.” 6 3. Article 243-C(3) provides for the composition of Panchayats, which reads as follows: “The Legislature of a State may, by law, provide for the representation- (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which compromise wholly or partly a Panchayat area at a level other than the village level in such Panchayat; (d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within- (i) A Panchayat area at the intermediate level, in Panchayat at the intermediate level; (ii) A Panchayat area at the district level, in Panchayat at the district level.” 4. Article 243-C (5) provides for election of Chairperson, which reads as follows: “(5) The Chairperson of- (a) A Panchayat at the village level shall be elected in such manner as 7 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.” 5. Article 243-O provides as follows: “ 243-O. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution- (a) The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243-K, shall not be called in question in any Court; (b) No election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as it provided for by or under any law made by the Legislature of a State.” 6. In terms of the mandate under Article 243-C of the Constitution of India, the State of Himachal Pradesh has enacted the Himachal Pradesh Panchayati Raj Act, 1994, ….. “ with a view to ensure effective involvement of the Panchayati Raj Institutions in the local administrative and developmental activities.” Section 77 of the Act provides for establishment of Panchayat Samiti, which reads as follows: “77. Establishment of Panchayat Samiti.- (1) For each Block there shall be a Panchayat Samiti, having jurisdiction, over the entire block excluding such portions of the block as are included in a Municipality constituted under any law for the time being in force:” 8 7. Section 78 of the Act provides for constitution of the Panchayat Samiti, which reads as follows: “78. Constitution of Panchayat Samiti.- (1) Every Panchayat Samiti shall consist of- (a) the directly elected members from territorial constituencies as determined under the Act; (b) the Members of the House of the people and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Panchayat Samiti area; (c) the members of the Council of States, where they are registered as electors within the Panchayat Samiti area; (d) one-fifth of the Pradhans of Gram Panchayats in the Panchayat Samiti area, by rotation, for such period as the prescribed authority may determine, by lot: Provided that a Pradhan who was a member under this clause for one term shall not be eligible to become member for a second term during the remainder of his term of office as Pradhan. (e) The member for the Zila Parishad, representing the ward which comprises wholly or partly the Panchayat Samiti area. (2) The Pradhans of Gram Panchayat and other members of the Panchayat Samiti whether or not chosen by direct election from territorial constituencies in the Panchayat Samiti shall have the right to vote in the meetings of the Panchayat Samiti except in the election and removal of the Chairman or Vice Chairman only the elected members shall have the right to vote. (3) The number of elected members of a Panchayat Samiti under clause (a) of sub- 9 section (1) shall consist of persons elected from the territorial constituencies in the Samiti area as may be notified from time to time by the Government at the rate of one member for every three thousand five hundred population or part thereof: Provided that in a Panchayat Samiti area having a population of not exceeding fifty two thousand five hundred there shall be minimum of 15 elected members: Provided further that where the population of a Panchayat Samiti area is more than one lakh and forty thousand, it shall be divided into territorial constituencies in such manner that the total number of constituencies shall not exceed forty and the population of each constituency shall, as far as practicable, be the same in each constituency. Provided further that the Government may, irrespective of the population of the Panchayat Samiti area, declare, by a notification, that the provisions of this section shall apply to a Panchayat Samiti in a scheduled area, subject to such exceptions and modifications as may be specified by it in such a notification. Explanation.- For the purpose of sub-section (3) of this section the word part thereof shall mean the calculation to the nearest multiple of one-half ignoring less than one- half and counting one-half or more as one for determining the population for fixing the seats. (4) Seats shall be reserved in a Panchayat Samiti for the:- (a) Scheduled Caste; and (b) the Scheduled Tribes; 10 and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat Samiti as the population of the Scheduled Castes in that Panchayat Samiti area or of the Scheduled Tribes in that Panchayat Samiti area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat in such manner, as may be prescribed. 5) Not less than one-third of the total number of seats reserved under sub-section (4)shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (5-A) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat Samiti shall be reserved for women. (6) The State Government may, by general or special order, reserve such number of seats for persons belonging to Backward Classes in a Panchayat Samiti, not exceeding the proportion to the total number of seats to be filled by direct election in the Panchayat Samiti as the population of the persons belonging to Backward Classes in that Panchayat Samiti area bears to the total population of that area and may further reserve not less than one-third of the total seats reserved under this sub- section for women belonging to Backward Classes. (7) the seats reserved under sub-section (4), (5), (5-A) and (6) shall be allotted by 11 rotation to different constituencies in the Samiti area in such manner as may be prescribed.” 8. In this case, we are concerned with the constitution of Panchayat Samiti Kaza and the election of Chairman and Vice Chairman thereof. It is significant to note that the Panchayati Raj Act itself has contemplated the constitution of a Samiti at the rate of one member for every 3500 population with the proviso that in a Panchayat Samiti which does not have a population not exceeding 52500, there should be a minimum of 15 elected members. The Kaza Block- Panchayat Samiti, is one such area and the number of elected members is 15. Section 2(20) defines member as including member of the Panchayat Samiti and Section 2(23) defines office bearer as including a member in the Samiti. Section 79 provides for election of Chairman and Vice Chairman of Panchayat Samiti, which read as follows: “79. Election of Chairman and Vice-Chairman or Panchayat Samiti.- (1) After the declaration of result of election of the elected members of the Panchayat Samiti in the prescribed manner, the Deputy Commissioner concerned or any Gazetted Officer appointed by him in this behalf shall as soon as possible but not later than one week of such declaration call under his Presidentship a meeting of all elected members for the purpose of oath, or the affirmation of allegiance under Section 127. 2) Immediately after oath or affirmation of allegiance under Section 127 is administered or made, the elected members of a Panchayat 12 Samiti shall, in the prescribed manner, elect one of its members to be the Chairman and another member to be the Vice-Chairman of the Panchayat Samiti: Provided that if the office of the Chairman or Vice-Chairman, as the case may be, is vacated or falls vacant during the tenure on account of death, resignation or no-confidence motion, a fresh election within a period of two months from the date of occurrence of vacancy shall be held from the same category in the prescribed manner.” 9. Section 127 provides for oath or affirmation of allegiance, which read as follows: “127. Oath or affirmation of allegiance.- (1) Notwithstanding anything contained in the Oaths Act, 1869 no elected office bearer of Panchayat shall enter upon his office, until he has, in the manner prescribed, taken oath or made affirmation of his allegiance in the form specified in Schedule-V. (2) If any such person refuses to take or make such oath or affirmation, except on account of such disability for which permission of the prescribed authority is obtained, his election shall be deemed to be invalid and a fresh election shall take place. (3) No person whose election has been deemed to be invalid under this section shall be eligible for election as the member, Pradhan or Up-Pradhan of Gram Panchayat or the member, Chairman or Vice-Chairman of Panchayat Samiti or Zila Parishad, as the case may be, for a period of two years from the date on which he ought to have taken or made such oath or affirmation.” 13 10. Section 80 of the Act provides for the meeting of the Panchayat Samiti, which reads as follows: “80. Meetings.- (1) A meeting of a Panchayat Samiti shall be either ordinary or special and, except as otherwise provided under this Act, the meetings of the Panchayat Samiti shall be convened by the Chairman and in his absence by the vice-Chairman. (2) A Panchayat Samiti shall ordinarily meet at its headquarters at least four times in each year for the transaction of its business and not more than three months shall be allowed to elapse between any two successive meetings. (3) Notice of every meeting specifying the time and date thereof and the business to be transacted there at shall be sent to every member of the Panchayat Samiti and exhibited at the office of the Panchayat Samiti not less than ten clear days before an ordinary meeting and seven clear day before special meeting: Provided that wherever it is considered expedient to do so in the public interest the requirement of the time limits specified in this sub-section may be relaxed with the approval of the prescribed authority. (4) The Chairman, or in his absence the Vice-Chairman, may whenever he thinks fit, and shall, on requisition made in writing by not less than one-third of the total members of the Panchayat Samiti or if required by the Zila Parishad or the Deputy Commissioner, convene a special meeting within two weeks of the receipt of the written requisition. (5) Any meeting of a Panchayat Samiti may, with the consent of the majority of the 14 members present, be adjourned to any other date, but no business other than that left over at the adjourned meeting shall be transacted at the next following meeting: Provided that additional agenda may be included for the adjourned meeting if the same is notified on the day of adjournment of the meeting or at least one week before the date fixed for the adjourned meeting: Provided further that when a special meeting is adjourned for want of quorum, fresh adjourned special meeting shall be convened by giving fifteen days notice to the members within one month from the date of adjournment of special meeting. (6) At every meeting of a Panchayat Samiti, the Chairman if present, or in his absence the Vice Chairman, and if there be no Chairman or Vice Chairman present, then such one of its members, as the members may elect, shall preside. (7) Except as otherwise provided by this Act or the rules made thereunder all questions coming up before any meeting of a Panchayat Samiti shall be decided by a majority of votes of the members present and voting and, in case of an equality of votes, the authority presiding at the meeting shall have a second or casting vote. (8) Any matter finally disposed of by a Panchayat Samiti shall not be reconsidered unless the recorded consent of not less than two-thirds of its total members has been obtained there to or unless the Zila Parishad, or the Director has directed its reconsideration. (9) Subject to the provisions of this Act and the rules framed thereunder, for the transaction of business at a meeting of a 15 Panchayat of a Panchayat Samiti, the quorum shall be:- (a) if it is an ordinary meeting one-half of its members having right; (b) if it is a special meeting, two-thirds of its members having right to vote.” 11. The Himachal Pradesh Panchayati Raj (Election) Rules, 1994, under Chapter IX, have provided for election of Chairman and Vice-Chairman of Panchayat Samiti. Rule 85, as amended to the extent relevant, reads as follows: “85. Meeting for election.(1) After the declaration of results of the elected members of the Panchayat Samiti, the Deputy Commissioner concerned or any other officer authorised by him in this behalf except Block Development and Panchayat Officer shall fix a date of meeting under his presidentship (hereinafter referred to as Presiding Officer) for the purposes of oath or the affirmation of allegiance under section 127 of the Act as soon as possible, but not later than one week of the declaration of results as per section 79 of the Act. (1-A). As soon as possible but not later than seven days after oath or affirmation of allegiance under sub-rule (1) is administered or made, the Deputy Commissioner concerned or any other officer authorised by him in this behalf except Block Development Officer shall call under his presidentship a meeting of all elected members to elect one of its members to be the Chairman and another member to be the Vice Chairman of the Panchayat Samiti: Provided that the State Government may, be general or special order, allow holding 16 of meeting for the election of Chairman and Vice-Chairman under this sub-rule after one week but not later than one month from declaration of result of election of the elected members of the Panchayat Samiti under the following circumstances :- (i) if it is not possible to convene meeting within seven days due to natural calamities; (ii) If it is not possible or desirable to hold meeting within seven days due to severe law and order problem; and (iii) If the election are declared exceeding the period of fifteen days prior to the expiry of the duration of the existing Panchayats.;and (1-B). As soon as possible but not later than seven days after the declaration of occurrence of the casual vacancy in the office of the Chairman or the Vice-Chairman or both, as the case may be, the Deputy Commissioner concerned or any other officer, except the Secretary of the Panchayat Samiti, authorised by him in this behalf shall call under his Presidentship a meeting of all elected members to elect the Chairman or the vice-Chairman or both, as the case may be: Provided that if, owing to a natural calamity of great severity or a grave situation of law and order or a war or aggression by another country against India affecting the relevant area in Himachal Pradesh or any other cause beyond human control, it is not possible to hold such meeting within seven days, the government may allow such meetings to be held after seven days, but no later than thirty days after the occurrence of the vacancy in question. 17 (2) The Presiding Officer shall issue a notice to all the members entitled to take part in the proceedings in Form-40. (3) A copy of such notice shall be exhibited on the notice board of the Panchayat Samiti Office. (4) The Notice shall be despatched at least five days before the date of meeting at their permanent address and shall contain the date, time, place and purpose of the meeting. (5) No quorum shall be required for the meeting for the purpose of oath or affirmation of allegiance under sub-rule (1). Quorum for meetings for the purposes of election of Chairman and Vice-Chairman or both, as the case may be shall be two-third of the total elected members. It within two hours after the time appointed for the meeting, the quorum is not present, the meeting shall be adjourned. In the event of adjournment of the first meeting for want of quorum, the second meeting shall be convened within ten days from the date of first meeting and if the second meeting is also adjourned for want of quorum, the subsequent meetings shall be convened within ten days from the date of the last adjourned meeting and action under clause (b) of Sub-section (1) of Section 146 of the Act shall be taken against those members who will not attend subsequent meetings for which specific mention shall be made in the notices of such meetings. Quorum for the second and subsequent meetings shall be the simple majority of the total elected members; and………..” 18 12. Having referred to the provisions, both the constitutional and statutory, we shall now refer to the factual matrix and the issues arising thereof. Election to the 15 wards of Kaza Panchayat Samiti was held on 4.1.2011. On 6.1.2011, the authorized officer issued notice (Annexure P-1) to the