In a democratic setup, elected representatives who have lost majority cannot be allowed to hold power for even a second – Allahabad High Court

Court No. 32 Case : WRIT C No. 136620 Petitioner : Tripti Rani Respondent : State Of U P And 5 Others Counsel for Petitioner : Atiqur Rahman Siddiqui Rakesh PandeVishakha Pande Counsel for Respondent : C.S.C. D.C.Mathur Hon ble Shashi Kant Gupta J Hon ble Piyush Agrawal J This writ petition has been filed inter alia for the following i. Issue a writ order or direction in the nature of certiorari quashing the impugned order notice dated 21.08.2020 Annexure No. 3 to the writ petition) passed by Collector ii. Issue a writ order or direction in the nature of mandamus directing the respondent no. 1 to initiate appropriate against the District Magistrate Collector Bijnor for violation of mandatory instructions issued under the Disaster Management Act 2005 The petitioner is the Pramukh of the Kotwali Kshetra Panchayat Bijnor. The petitioner assumed the charge of Pramukh on 29.07.2019. On 21.08.2020 a no confidence motion as per section 15 of the Uttar Pradesh Kshetra Panchayat & Zila Panchayat Act 1961was made in accordance with the procedure laid down under the Act of 1961 In pursuance of the no confidence motion the District Magistrate Bijnor issued a notice dated 21.08.2020 convening a meeting for consideration of the motion of no confidence on 15.09.2020 at 11.00 a.m. at the Kotwali Kshetra Panchayat Office In view of the aforesaid notice of the District Magistrate Bijnor a meeting for consideration of no confidence motion is to be held at 11.00 a.m. on 15.09.2020 It is contended by the learned counsel for the petitioner that since there are about 185 Members in the Kotwali Kshetra Panchayat District Bijnor they exceed the number of persons permitted under the Guidelines for Phased Re openingand in clause 1(iii thereof it has been mentioned that social academic sports entertainment cultural religious political functions and other congregations with a ceiling of 100 persons will be permitted with effect from 21st September 2020 with mandatory wearing of face masks social distancing provision for thermal scanning and hand wash or sanitizers much as possible. During the COVID 19 pandemic everybody has to act with utmost caution so that the spread of infection may be curtailed as 10. The Act of 1961 provides for local self governance where the people of Gaon Sabhas have been given the right to manage their own affairs and perform governmental function through a democratic process under which they have been given the right to elect a Pradhan and remove him by passing a motion of no confidence. Election and removal by a motion of no confidence are two important aspects in democratic set up for which the Act of 1961 has made ample provisions 11. Democracy is a system of government in which a country s political leaders are chosen by the people in regular free and fair elections. In a democracy people have a choice between different candidates and parties who want the power to govern. The people are sovereign. They are the highest authority and government is based on the will of the people. Elected representatives at the national and local levels must listen to the people and be responsive to their needs. Thus the voters have right to elect their representatives and also criticize and replace them if they do not In view of the above inherent political philosophy and principle the provision for bringing a no confidence motion for removing the representatives has been introduced in the present Act of 1961. The Will of people is supreme. It cannot be lightly interfered with. Under no circumstance can the will of the people be permitted to be frustrated. In a democratic set up where right to govern depends on the will of the people the person who has lost the majority cannot be permitted to hold office. If a representative no longer enjoys the confidence of the people elected representatives have a right to remove him and he cannot be permitted to remain in power even for a second and has to be immediately replaced by a newly elected representative 13. Therefore considering the facts & circumstances of the case we direct the District Magistrate Bijnor to ensure all the protocols applicable for social and physical distancing are adhered to. The sitting arrangements be made in such a manner so that it may adhere to the prescribed norms. The District Magistrate Bijnor may also explore the possibility of seating the Members of the Kotwali Kshetra Panchayat in two or three separate rooms a big hall or in open space. The Authority concerned may also explore the possibility of holding a virtual session with the help of modern 14. The District Magistrate or his representative who would be present on the spot will be the best person to understand the ground reality for holding the proposed no confidence motion in the best possible manner and we hope and trust he would ensure that all the protocols as prescribed under the guidelines and norms issued by the State and Central Governments and the observations made hereinabove would be followed 15. At a time when the State is reeling from a monstrous pandemic it is imperative that detailed modalities for holding statutory meetings of local bodies including those for considering ‘No Confidence Motions’ are put in place and implemented Accordingly we direct the State Government to consider framing detailed Guidelines in this regard expeditiously if possible within a period of three weeks from today. A copy of this order be sent to the Chief Secretary for its necessary compliance In view of the aforesaid discussions we do not see any justification to interfere in the matter. The writ petition lacks merit and it is hereby dismissed Order Date : 10.9.2020

Summary: In a democratic setup, where the right to govern is on the will of the people the elected representative who has lost majority cannot be permitted to hold office held by Justice Shashi Kant Gupta and Justice Piyush Agrawal in the case of Tripti Rani V. State of UP and Ors [C No. – 13665 of 2020]. The Facts related to this case is– The petitioner was the Pramukh of the Kotwali Kshetra Panchayat, Bijnor. The petitioner assumed the charge of Pramukh on 29.07.2019. On 21.08.2020, a no-confidence motion, as per section 15 of the Uttar Pradesh Kshetra Panchayat &amp; Zila Panchayat Act, 1961, was made in accordance with the procedure laid down under the Act of 1961. In pursuance of the no-confidence motion, the District Magistrate, Bijnor issued a notice dated 21.08.2020 convening a meeting for consideration of the motion of no confidence on 15.09.2020 at 11.00 a.m. at the Kotwali Kshetra Panchayat Office. In view of the aforesaid notice of the District Magistrate, Bijnor, a meeting for consideration of no-confidence motion was to be held at 11.00 a.m. on 15.09.2020. It was contended by the learned counsel for the petitioner that since there were about 185 Members in the Kotwali Kshetra Panchayat, District – Bijnor, they exceeded the number of persons permitted under the Guidelines for Phased Re-opening issued by the Ministry of Home Affairs, Government of India on 29.08.2020. It was further submitted that in view of the aforesaid Guidelines, the proposed meeting for consideration of no-confidence motion could not be convened on 15.09.2020 since it would be in violation of the provisions of the Disaster Management Act. It was observed by the Hon’ble Court that “Democracy is a system of government in which a country’s political leaders are chosen by the people in regular, free, and fair elections. In a democracy, people have a choice between different candidates and parties who want the power to govern. The people are sovereign. They are the highest authority and government is based on the will of the people. Elected representatives at the national and local levels must listen to the people and be responsive to their needs. Thus, the voters have right to elect their representatives and also criticize and replace them if they do not perform well.” The Hon’ble Court while examining the legal question as to whether the meeting for consideration of a no-confidence motion cannot be convened on being in violation of the Disaster Management Act, the court observed that “In view of the above inherent political philosophy and principle, the provision for bringing a no-confidence motion for removing the representatives, has been introduced in the present Act of 1961. The Will of the people is supreme. It cannot be lightly interfered with. Under no circumstance can the will of the people be permitted to be frustrated. In a democratic setup where the right to govern depends on the will of the people, the person who has lost the majority cannot be permitted to hold office. If a representative no longer enjoys the confidence of the people, elected representatives have a right to remove him and he cannot be permitted to remain in power even for a second and has to be immediately replaced by a newly elected representative.” The writ petition lacks merit and it was hereby dismissed. Click here to read the judgement