Case: SEEMA SARKAR Vs. EXECUTIVE OFFICER

3. A ‘No Confidencedated 19 th December, 2007 was moved by respondent No.6 against the appellant (Pramukh of the said 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 Confidencewas scheduled on 2 nd 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 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 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 2 nd July, 2017 which readsOF THE PANCHAYATHut Bay dated the 2 nd Jan.th Andaman, Port Blair.Sub: Report on No Confidence Motion against Smt. Sima Sarkar, Pramukh, Panchayat Samiti, Little Andaman-Reg.Sir,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 the members of the Panchayat Samiti, Hut Bay become six and 2/3 rd 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 dissolved.The extract of proceeding of the meeting is enclosed herewith for your kind. The respondent No.6 assailed the said decision by way of Writ 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 Confidencenor was he entitled to vote thereat. Respondent No.6 prayed for the following reliefs in the said writthe fact and circumstance mentioned herein above, your petitioner respectfully prays that YOUR LORDSHIP may be graciously pleased toA writ in the nature of certiorari quashing the proceedings dated 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 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 thisCourt 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.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.The writ petition was heard by the learned Single Judge of the High Court who negatived the stand of respondent No.6 and thus 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, minimum four members of the Panchayat Samiti ought to have remained 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.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 Confidencefor removal of the Pramukh or Up-Pramukh of the 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. ((2004) 5 SCC 409  ) and State of Karnataka and Ors. Vs. Lakshmappa Kallappa Balaganur and Ors. ((2001) 3 KLJ 498) 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 ashave been included in the Constitution of the India by the Constitution (73 rd amendment) Act, 1992. The purpose of 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 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 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 representing the Union Territory shall also be represented in the 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 Panchayat.Although the Regulations and the Rules do not appear to have made any distinction betweenwhich 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 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 phraseand from amongst elected members of the Panchayatand the Member of Parliament is not treated at par with the elected members for the purpose of election of such office bearers.xxx xxx xxx xxx xxxIn 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 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 wordis used, it would only mean elected members and not nominated members even though such nominated member 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 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.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 2 nd 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 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 22 nd December, 2017 before the Vacation Bench of this Court when notice came to be issued. However, during the pendency of this 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 26 th December, 2017 but also intended to proceed to fill up the vacancy arising from the removal of the appellant, by scheduling a fresh election on 19 th January, 2018. The appellant, therefore, urgently moved this Court for appropriate orders on 15 th January, 2018, when the following order came to becounsel who have entered appearance on behalf of the respondents, pray for atime to file the counter affidavit.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. Resultantly, the meeting scheduled on 19 th 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 31 st January, 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.

Reasoning:
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 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 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.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 by virtue of law made in terms of Article 243C(3), is neither entitled to participate in a special meeting concerning a ‘No Confidencenor 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 ConfidenceThis argument is not wholly accurate. In our opinion, that approach may become necessary only if the legislature of the State also 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 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. 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.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 isthe elected members of the Panchayat Samiti and the one who is elected as such, isEven the expression used in Article 243C(5)(b) isby, and from amongst, the elected membersThis 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.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 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 removal of the Pramukh or the Up-Pramukh of the Panchayat Samiti, including regarding the manner in which a ‘Motion of Noagainst them could be moved and carried forward.Thus, an unambiguous provision has been made in the Regulation regarding the ‘No Confidenceagainst 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 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 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, areTo put it differently, the provisions in the Regulation and the Rules distinctly deal with the manner in which a motion of ‘Noshould 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 ConfidenceFrom the legislative scheme it is noticed that as and when the special meeting to consider the ‘No Confidenceproceeds, Section 117(2) mandates that the motion may be treated as carried out only if a majority of not less than two-thirds of theof 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 of Rule 9. Rule 9(3)(b) stipulates that two-thirds of theof 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. The emphasis is on the expression, 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 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 ofof members in the Panchayatwould 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 theof the Panchayat Samiti and the ‘No Confidencemust be carried out by not less than two- thirds of theof members of the Panchayat Samiti present and voting. This is the twin requirement. If so, the ‘No Confidenceis 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 ofthe 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 theof 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 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 emphaticThe fact that Article 243C(5)(b) postulates that the chairperson of the Panchayat Samiti at the intermediate level shall be electedby, and from amongst, the elected membersthereof, 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 Confidencehas been enacted by the State Legislature. That permitsthe 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 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 ofrs 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 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 Confidenceit 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. Whereas, the provision makes it incumbent that not less than two-thirds of theof 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 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 theon 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,ve 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 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 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 electedrepresentatives. 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 considered in the said case was very specific as to whether the voting rights of thein 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 concluded that there was no indication therein that a right to vote is created in the. 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 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 NoIt 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. It readsThere 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 a person from that post.xxx xxx. The High Court had also adverted to the decision of the Karnataka High Court in State of Karnataka and Ors. (supra). Even 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 Confidenceagainst the Adhyaksha or Up-Adhyaksha. The observations in the said decision, therefore, are contextual and in reference to the express 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 ConfidenceAs 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 Confidenceagainst the Pramukh or Up-Pramukh, as the case may be.30. A priori, the argument of Mr. Lekhi that the interpretation will 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 ConfidenceWhereas, the State Legislature has been 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 Confidenceagainst 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 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.((2017) 10 SCC 1 (pageBhanumati and Ors. Vs. State of Uttar Pradesh through its Principal Secretary and Ors. ((2010) 12 SCC 1 (  para 51)), Usha Bharti Vs. State of Uttar Pradesh and Ors.((2014) 7 SCC 663 (  para 34)) and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Ors.((1991) Supp.(1) SCC 600 (para 255)).31. Learned ASG has invited our attention also to the decision in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and Ors. ((2015) 8 SCC 1 (  para 20)), dealing with the question of permissibility of removal of the Chairperson/elected office bearers by 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 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.((2011) 9 SCC 573 (  para 22,26,46)) will be of no avail for interpreting or applying the provisions in the Regulation and the Rules under consideration. Our attention was also invited to the decision in Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly and Ors. ((1992) 4 SCC 80 (  para 4)) 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 paragraph that a provision in the statute for recall of an elected 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 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 Confidencehas 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.