Case: RAM PAL SINGH Vs. THE STATE OF UTTAR PRADESH

1. Pursuant to a Notification issued by the State Election Commission, U.P. on 21st September, 2015 elections were held to the Kshettra Panchayat, Jasrana, District Ferozabad (U.P.) on 7th February, 2016. Apparently, the results were declared on the same day by the State Election Commission and 63 candidates were declared elected. It may be mentioned that the elections were held under the provisions of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam)that an elected member is a person who has been duly elected. The elected member might or might not have taken the oath of office in terms of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules, 1994 (hereinafter referred to as the Rules). We say this even though there is some sanctity attached to taking the oath of office, which we will advert to later3. Rule 2(2) of the Rules defines Members in the following terms, which is also without reference to taking the oath of office:2(2) Members means in case of Zila Panchayats Members elected under clause (b) ofn (1) of Section 18 and in case of Kshettra Panchayat Members elected under clause (b) ofn (1) of Section 6 of the Act5. The only adverse consequence of an elected member not taking the oath of office is provided in Rule 3(3) of the Rules. The adverse consequence is that if the member of the Kshettra Panchayat does not make or subscribe the oath or affirmation, then he or she cannot take the seat in the Kshettra Panchayat. Rule 3(3) reads :3(3). The members of Zila Panchayat and Kshettra Panchayat before taking their seats for the first time as such members shall make or subscribe oath or affirmation in the case of member of Zila Panchayat before the Adhyaksha and in his absence before the Mukhya Adhikari and in the case of members of the Kshettra Panchayat before the Pramukh and in his absence before the Khand Vikas Adhikari in the form set out in the Appendix6. In other words, a person duly elected to a Kshettra Panchayat under Section 6(1)(b) of the Adhiniyam is described as and remains an elected member and if that elected member does not take the oath of office, he or she does not cease to be an elected member. The only consequence is that the elected member cannot take a seat in the Kshettra Panchayat and therefore cannot participate in the proceedings of the Panchayat. The significance of this discussion will be apparent hereafterTaking the oath of officepetitioner (Ram Pal Singh) as the Pramukh. He subscribed to the oath of office before thel Magistrate/appointee of the District Magistrate. Thereafter, the version advanced by the petitioner is that he administered the oath of office to the elected members except 17 elected members who were not present. On the other hand, the version advanced by the contesting private respondents (elected members) as well as the State of U.P. is to the effect that all 63 elected members took the oath of office. We need to decide this factual controversy8. In this regard, we have been shown two documents in the first instance, one by the petitioner and another by the contesting private respondents (elected members). According to the document produced by the petitioner, the Sub Divisional Officer/Pramukh reported that in the proceedings of the Kshettra Panchayat of 18th March, 2016 of the elected members 17 of them did not take the oath of office. The other document has been filed by the private contesting respondents to the effect that proceedings were held on 18th March, 2016 in which they participated but there is an interpolation in the document to the effect that 17 elected members did not take the oath of office. The submission is that they could have participated in the proceedings only after they had subscribed to the oath of office18th March, 2016. The submission of the petitioner is that the 17 elected members did not take the oath of office and did not participate in the proceedings held on 18th March, 2016. The submission of the private contesting respondents is that did take the oath of office, they were entitled to and did participate in the proceedings of 18th March, 2016 and an interpolation has been made in the record of proceedings only to suggest that they did not take the oath of office. Learned counsel for the contesting private respondents made an additional submission and drew our attention to the averments made in the counter affidavit to the effect that these elected members were paid their daily allowance as well as their travelling allowance for subsequent meetings and this payment could have been made only if they had attended the meetings of the Kshettra Panchayat after taking the oath of office. This averment has not been specifically denied by anybody2. The facts as well as the relevant rules and provisions of law have been set out in detail in the judgment of my learned brother, which I need not refer to in detail. Rule 2(2) of the U.P. Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules, 1994 (hereinafter referred to as the Rules) defines Members. In case of Kshettra Panchayat, Members means those persons elected under clause (b) ofri in the form set out in the appendix to the Adhiniyam. Rule 3(3), therefore, envisages that before taking seat for the first time the member must make or subscribe oath or affirmation (emphasis supplied). The words first sitting have to be given some significance and the significance is that these elected members can vote without taking oath only while electing the Pramukh from amongst themselves because thereafter, the Pramukh administers oath to them and then, the sitting of the House takes place.

Reasoning: 10. In view of this serious factual controversy, we are of opinion that it would be appropriate to rely on the counter affidavit filed by the State. It is stated in the counter affidavit that in a communication of 12th January, 2018 issued by the office of the Block Development Officer, it is stated that all 63 members of the Kshettra Panchayat had taken the oath of office on 18th March, 201620. We find a fallacy and a dichotomy in the submission of learned counsel for the petitioner with regard to the status of elected members of the Kshettra Panchayat who have allegedly not taken the oath of office24. To get over this fallacy and dichotomy, it was submitted by learned counsel for the petitioner that it would be 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.While this may appear to be illogical and irrational, there is no challenge to the provisions of the Adhiniyam and we must proceed on the basis that 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. We, therefore, reject this contention of the learned counsel for the petitionerof the Kshettra Panchayat who were alleged not to have taken oath of office on 18th 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 Panchayat26. The legal position having been settled for over 100 years, we see no dire necessity or any necessity at all ofg the law laid downIn this case a somewhat similar situation as in the present proceedings before us had arisen. A No Confidence Motion was signed and carried against the Block Pramukh. Challenging this, the submission of the Block Pramukh was that 11 elected members of the Kshettra Panchayat had not subscribed to the oath of office after being elected. Therefore, they were ineligible to participate in the meeting convened for the No Confidence Motion and to cast their vote. It was contented that these 11 elected members could not be treated as members of the Kshettra Panchayat and if their votes are disregarded, the No Confidence Motion would fail. The Allahabad High Court rejected the contention following the decisions mentioned above32. Learned counsel for the petitioner sought to make a distinction between the performance of legislative functions ande functions of an elected member of the Kshettra Panchayat. It was submitted that the Kshettra Panchayat does not have any legislative functions and its duties and responsibilities are circumscribed by Chapter IX of the Constitution. The submission of learned counsel may not be strictly correct since the Panchayat can be empowered by the State Legislature to levy, collect and appropriate taxes, duties, tolls and fees. However, without going into this issue, the broad intent of the decision of the Calcutta High Court, the Allahabad High Court as well as this Courtis that if an elected member does not take the oath of office, he or she cannot participate in the proceedings of the Kshettra Panchayat, unless there is something to the contrary in a statute, which is not the case here. Consequently, there is no prohibition against an elected member from being a signatory to a No Confidence Motion. It is quite possible that in the absence of the signatory to the No Confidence Motion – an elected member – the No Confidence Motion might get defeated in the Panchayat due to his or her inability to vote, but that is not relevant for our purposesSanctity of oath of office33. The case law that has emerged over the years suggests that 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. We have already referred to the Adhiniyam and the Rules. We are of opinion that 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. In fact, Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows:40. Oath or affirmation to be made by memberser or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter.(2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down inn (1), shall cease to hold his office and his seat shall be deemed to have become vacant.(3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in(4) Notwithstanding anything contained inn (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may besolemnity to the oath of office. For example, Article 60 of the Constitution provides that before entering upon his office, the President shall make and subscribe the oath or affirmation. Similarly, Article 69 of the Constitution requires the Vice President to make and subscribe the oath or affirmation before entering upon his office35. Article 84 of the Constitution requires that a person shall not be qualified to be chosen to fill a seat in Parliament unless he makes and subscribes the oath or affirmation according to the forms set out for the purpose in the Third Schedule. We have already referred to the oath or affirmation by a member of the Legislative Assembly or the Legislative Council as required by Article 188 of the Constitution. If the Constitution has attached importance to the oath of office, why cannot legislations provide something similar to what Tamil Nadu has?