Case: Bhanumati Etc. Etc Vs. State Of U.P.Tr.Prinl.Sec

These appeals have been filed assailing the judgment dated 6th February, 2009 by the Lucknow Bench of Allahabad High Court whereby the High Court upheld the Constitutional validity of U.P. Panchayat Laws (Amendment) Ordinance, 2007 (U.P. Ordinance 26 of 2007) which later on became U.P. Panchayat Laws (Amendment) Act, 2007 (U.P. Act 44 of 2007).

Reasoning: It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj Institutions and to impart certainty, continuity and strength to them. 76. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no-confidence motion is passed against the chairperson of a Panchayat, he/she ceases to be a Chairperson, but continues to be a member of the Panchayat and the Panchayat continues with a newly elected Chairperson. Therefore, there is no institutional set back or impediment to the continuity or stability of the Panchayati Rajcourse the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assailsJustice Lahoti also laid down several parameters in considering the constitutional validity of a statute at page No.562-563 of the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or theall these aspects, this Court sees no reason to take a view different from the one taken by the Honble High Courtby the aforesaid tests, as we must, this Court does not find any lack of legislative competence on the part of the State Legislature in enacting the impugned amendment Act. 74. The learned counsel for the appellant cited several judgments in support of the contention that theimpugned amendment in relation to the provisions forare unreasonable and ultra vires the provisions of Part. It hasalready been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj Institutions and to impart certainty, continuity and strength to them. 76. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If amotion is passed against the chairperson of a Panchayat, he/she ceases to be a Chairperson, but continues to be a member of the Panchayat and the Panchayat continues with a newly elected Chairperson. Therefore, there is no institutional set back or impediment to the continuity or stability of the Panchayati RajInstitution. 77. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision ofmotion was there in the Act of 1961 even prior to the 73rd Constitution amendment and has been continued even thereafter. Similar provisions are there in different States in India. 78. Section 211 of the Tamil Nadu Panchayats Act, 1994 contains a provision for motion ofin respect ofof panchayat and Section 212 contains a provision for motion of non confidencein respect ofan of panchayat union council. 79. In the Bombay Village Panchayats Act, 1958 under Section 35 similar provision for motion ofis to be found. 80. In West Bengal Panchayat Act, 1973 under Section 12 there is a provision for the removal of Pradhan andif he has lost the confidence of the members of the Gram Panchayat. 81. In M.P. Panchayat Raj Avam Gram Samaj Adhiniyam, 1993, Section 21 provides formotion against Sarpanch and82. There is a similar provision ofmotion against Sarpanch under Section 19 of the Punjab Panchayati Raj Act, 1994 as also under Section 157 the Kerala Panchayat Raj Act, 1994. 83. The Karnataka Panchayat Raj Act, 1993 Section 49 has similar provision of a motion ofagainst Adhyaksha or Upadhyaksha of Gram Panchayat. 84. Such a provision is wholly compatible and consistent with the rejuvenated Panchayat contemplated in Part IX of the Constitution and is not at all inconsistent with the same. 85. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution. 86. Any head of a democratic institution must be prepared to face the test of confidence. Neither the democratically elected Prime Minister of the Country nor the Chief Minister of a State is immune from such a test of confidence under the Rules of Procedure framed under Articles 118 and 208 of the Constitution. Both the Prime Minister of India and Chief Ministers of several States heading the Council of Ministers at the Centre and in several States respectively have to adhere to the principles of collective responsibilities to their respective houses in accordance with Articles 75(3) and 164(2) of the Constitution. 87. The learned counsel for the appellant therefore compared the position of the Chairperson of a Panchayat with that of the President of India and argued that both are elected for five years and Presidents continuance in office is not subject to any vote ofThe post of Chairperson should have the same immunity. 88. This is an argument of desperation and has been advanced, with respect, without any regard to the vast difference in Constitutional status and position between the two posts. The two posts are not comparable at all by any standards. Even the President of India is subject to impeachment proceedings under Article 61 of the Constitution. No one is an imperium in imperio in our Constitutional set up. 89. In this matter various judgments have been cited by the learned counsel for the appellant. Of those judgments only the judgment in Mohan Lal Tripathi vs. District Magistrate, Rai Bareilly & others [1992 (4) SCC 80 ] is on the question of themotion against President of the municipality elected directly by the electorate.motion was passed by the board against the said President and not by the electorate. That was challenged. This Court repelled the challenge and upheld themotion holding that the recall by the Board amounts to recall by the electorate itself. 90. Upholding the aforesaid provision ofwhich is virtually a power of recall, this Court in Mohan Lal Tripathi (supra) held that the recall of the elected representative, so long it is in accordance with law, cannot be assailed on abstract laws of democracy. (Para 2, page 86 of the report) 91. Upholding the concept of vote ofin Mohan Lal Tripathi (supra) this Court further elaborated the concept as follows: "...Vote ofagainst elected representative is direct check flowing from accountability. Today democracy is not a rule of Poor as said by Aristotle or of Masses as opposed to Classes but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a 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 of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act..." 92. In Ram Beti vs. District Panchayat Raj Adhikari & others [1998 (1) SCC 680 ] this Court has upheld the provisions of Section 14 of U.P. Panchayat Raj Act, 1947 as amended by U.P. Act No.9 of 1994 which empowers members of the Gram Panchayat to remove the Pradhan of Gram Sabha by vote ofThis Court held that such a provision is not unconstitutional nor does it infringe the principle of democracy or provisions of Article 14. This decision was rendered in 1997, which is after the incorporation of Part IX of the Constitution. 93. In fact, in Ram Beti (supra), this Court considered the impact of 73rd Amendment and also took into consideration the provisions of Article 243N introduced by 73rd Amendment. The ratio in Mohan Lal Tripathi (supra) was also affirmed in Ram Beti (supra). 94. In the background of this admitted position, the argument that 2007 Amendment Act lacks legislative competence has no merit. The relevant legislative entryin respect ofPanchayat is in Entry 5, list II of the 7th Schedule. The said entry is: "5. Local Government, that is to say, the constitution and powers of municipal, corporations, improvement trusts, district boards mining settlement authorities and other local authorities for the purpose of local self Government or village administration." 95. It is well known that legislative entry is generic in nature and virtually constitutes the legislative field and has to be very broadly construed. These entries demarcate areas, fields of legislation within which the respective laws are to be operate and do not merely confer legislative power as much. The words in the entry should be held to extend to all ancillary and subsidiary matters which can be reasonably said to be encompassed by it. (See Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta and others, AIR 1955 SC 367 ; Navinchandra Mafatlal, Bombay vs. Commissioner of Income Tax, Bombay City, AIR 1955 SC 58 , and also the decision of this Court rendered in Jilubhai Nanbhai Khachar etc. etc. vs. State of Gujarat and another reported in AIR 1955 SC 142 at 148]. 96. About interpretation of entries in the 7th Schedule reliance was placed by the learned counsel for the appellant on the judgment of Constitution Bench of this court in Diamond Sugar Mills Limited and another vs. The State of Uttar Pradesh and another reported in AIR 1961 SC 652 . In that case the Court considered the meaning of the word local area in Entry 52 of the State List in the 7th Schedule. The Constitution Bench of this Court held that in considering the meaning of the words in the 7th Schedule, the Court held bear in mind that the entries of such schedule should be liberally interpreted as they confer rights of legislation. But at the same time the Court should be careful enough not to extend the meaning of the words beyond their reasonable connotation in an anxiety to preserve the power of the legislature. On the basis of the above interpretation this Court held that premises of a factory is not a local area. 97. The said decision has no application in the present case in as much as Entry 5 of List Ii of the 7th Schedule is wide enough to authorize legislation ofagainst the Chairperson of the Panchayat. 98. The next judgment cited on this point was rendered in the case of State of Tamil Nadu vs. M/s. Payarelal Malhotra and Others [1976 (1) SCC 834 ]. 99. In that decision meaning of the expression that is to say was discussed with reference to Strouds Judicial Dictionary. 100. Relying on Stroud, this Court held the expression that is to say is resorted to for clarifying and fixing the meaning of what is defined. There is no difficulty about applying those principles to the facts of this case. In Payarelal (supra), this Court was construing the relevant entry in the context of single point Sales Tax subject to special conditions when imposed on separate categories of specified goods. Therefore, there is vast situational difference between the case in Payarelal (supra) and the present one. 101. The last decision cited on this point was rendered in the case of Commissioner of Sales Tax M.P. vs. Popular Trading Company, Ujjain [2000 (5) SCC 511 ]. This was also a case relating to Sales Tax and the expression that is to say has been used. This Court in explaining the purport of that is to say referred to the ratio in Payarelal (supra). Even if we accept the said ratio in construing the ambit of Entry 5 of List II in the 7th Schedule, this Court finds that the impugned provision ofagainst the Chairperson of the Panchayat is very much encompassed within Entry 5 if we read the entry liberally and in accordance with well settled principles of reading legislative entries in several lists of the 7th Schedule. The decision on Popular Trading (supra) does not at all advance the case of the appellant. 102. Learned counsel for the State of U.P. cited some decisions to point out how the Court should consider the challenge to the constitutional validity of a Statute. Some of the decisions cited by the learned counsel are quite helpful and are considered by this Court. 103. In the case of State of Bihar & Ors. vs. Bihar Distillery Ltd.JT 1996 (10) S.C. 854, this Court in paragraph 18 at pageof the report laid down certain principles on how to judge the constitutionality of an enactment. This Court held that in this exercise the Court should (a) try to sustain validity of the impugned law to the extent possible. It can strike down the enactment only when it is impossible to sustain it; (b) the Court should not approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed; (c) the Court should consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with; (d) the Court should strike down the Act only when the unconstitutionality is plainly and clearly established; (e) the Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it. This Court abstracted those principles from various judgments of this Court. 104. In State of Bihar (supra), this Court also considered the observations of Lord Denning inSeaford Court Estates Ltd. vs. Asherand highlighted that the job of a judge in construing a statute must proceed on the constructive task of finding the intention of Parliament and this must be done (a) not only from the language of the statute but also (b) upon consideration of the social conditions which gave rise to it (c) and also of the mischief to remedy which the statute was passed and if necessary (d) the judge must supplement the written word so as to give force and life to the intention of the legislature. 105. According to Lord Denning these are the principles laid down in Heydons case and is considered one of the safest guides today. This Court also accepted those principles. (See para 21 at page 867 of the report). 106. Reliance was also placed on another decision of this Court in Dharam Dutt and Ors. vs. Union of India & Ors.(2004) 1 SCC 712. This judgment is relevant in order to deal with the argument of the learned counsel for the appellants that in reducing the period for bringing themotion from two years to one year and then in reducing the required majority from 2/3rd to simple majority, the legislature was guided by the sinister motive of some influential Ministers to get rid of a local leader who, as a Pradhan of Panchayat, may have become very powerful and competitor of the Minister in the State. 107. In Dharam Dutt (supra) this Court held that if the legislature is competent to pass a particular law, the motive which impelled it to act are really irrelevant. If the legislature has competence, the question of motive does not arise at all and any inquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (See page 713 of the report). 108. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors.(2005) 8 SCC 534. Chief Justice Lahoti speaking for the Bench laid down in para 37, page 562 of the report that the legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in legislative process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. Ofcourse the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assailsit. 109. ChiefJustice Lahoti also laid down several parameters in considering the constitutional validity of a statute at pageof the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or the