PREMWATI v. STATE OF U P — 1996 DIGILAW 1257 (ALL)

S. P. SRIVASTAVA, J. Heard the learned counsel for the petitioner and the learned Standing counsel representing respondents No. 1 and 2. 2. Perused the record. 3. Feeling aggrieved by the notice dated 17-10-96 issued by the District Panchayat Raj Adhikari, Agra acting in the exercise of the jurisdiction envisaged under Section 14 of the U. P. Panchayat Raj Act, 1947 read with Rule 33-Kha (1) (2) of the Rules framed there under intimating the petitioner that a meeting for consider ing the motion of no confidence received against him will be held on 13-11-96 under the Presidentship of the Assistant Development Officer, Sainya indicating the procedure to be adopted in holding the meeting and consideration of the motion of no confidence, the petitioner has now approached this Court seeking redress praying for the quashing of the aforesaid notice. 4. Gram Panchayat, Bhilwali consists of Pradhan and thirteen members, the petitioner had been elected as Pradhan of Gram Panchayat, Bhilwali By persons registered in the electoral rolls for the territorial constituencies of the Panchayat area. 5. Under the provisions contained in the Constitution (Seventy- third Amend ment) Act, 1992 which received the assent of the President on 20-4-93 after Part VIII of the Constitution a new part IX was inserted in the Constitution. This part re lates to the Panchayats. The provisions relevant for the purposes of considering the controversy raised in this case may be referred to at this stage. Under the provisions contained in newly inserted part IX of the Constitution, Gram Sabha means "a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level and Panchayat means" an institution (by whatever name called) of self government constituted under Article 243-B, for the Rural areas. Article 243-C provides that subject to the provisions contained in Part IX of the Constitution the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats subject to the conditions provided there under. Article 243- C (5) provides that the Chair person of a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide. Article 243- C (5) provides that the Chair person of a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide. Article 243-F provides that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date ap pointed for its first meeting and no longer. The provisions contained in Article 243-N stipulate that notwithstanding anything in part IX any provision of any law relating to panchayats in force in a State immediately before the commencement of the Constitution (Seventy Third Amendment) Act, 1992 which is inconsistent with the provisions of that part, shall continue to be in force until amended or repealed by a competent Legislature or other com petent authority or until the expiration of one year from such commencement, whichever is earlier. 6. After the enforcement of the Con stitution (Seventy Third Amendment) Act, 1992 the State Legislature amended the provisions contained in the U. P. Panchayat Raj Act, 1947 and the rules framed there under. Section 14 of the U. P. Panchayat Raj Act, 1947 was amended by U. P. Act No. IX of 1994 and as amended it reads as follows: 14. Removal of Pradhan and Up-Prad-han.- (1) The Gram Panchayat may, at a meet ing specially convene for the purpose and of which at least 15 days previous notice shall be given, remove the Pradhan by a majority of two thirds of the members present and voting. (2) A meeting for the removal of a Prad han shall not be convened within one year of his election. (3) If the motion is not taken up for want of quorum or fails for lack of requisits majority at the meeting, no subsequent meeting for the removal of the same Pradhan shall be convened within ayear of the date of the previous meeting. (4) Subject to the provisions of this sec tion, procedure for the removal of a Pradhan, including that to be followed at such meeting, shall be such as may be, prescribed. 7. Apart from the amendment brought in Section 14 of the Panchayat Raj Act, the Rule 33-B of the Rules framed there under was also amended with the en forcement of the U. P. Panchayat Raj (Fourteenth (Amendment) Rules, 1996. 7. Apart from the amendment brought in Section 14 of the Panchayat Raj Act, the Rule 33-B of the Rules framed there under was also amended with the en forcement of the U. P. Panchayat Raj (Fourteenth (Amendment) Rules, 1996. The relevant portion of Rule 33-B as amended so far as the controversy raised in this case is concerned is to the following effect: - "33-B Procedure for removal of Pradhan or Up-Pradhan.- (1) A written notice of the intention to move a motion for removal of the Pradhan or Up-Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one half of the total number of mem bers of the Gram Panchayat and shall state the reasons for moving the motion and it shall be delivered in person by at least three members signing the notice to the District Panchayat Raj Officer. Before proceeding further on the notice, the District Panchayat Raj Officer shall satisfy himself regarding genunineness of signa tures of the members signing the notice. (2) The District Panchayat Raj Officer shall convene a meeting of the Gram Panchayat under Section 14 of the Act, on a date to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting so convened shall be presided over by the District Panchayat Raj Officer or the per sons authorised by him in writing in this behalf. The Presiding Officer may take such clerical assistance for conducting the proceedings of the meeting for the consideration of the motion as he may deem necessary. (3) The Presiding Officer shall read to Gram Panchayat the notice received by him. We shall then allow the motion to be moved and discussed. Such discussion shall terminate on the expiry of two hours appointed for the com mencement of the meeting unless it is concluded earlier. Upon the conclusion of the debate or upon the expiry of said period of two hours, as the case may be, the motion shall be put to vote. Voting shall be by secret ballot. (4) The Presiding Officer shall not speak on the merit of the motion, nor shall he be entitled to vote thereon. (5 ). . . . . . . . . . . . . . . . . (6 ). . . . . Voting shall be by secret ballot. (4) The Presiding Officer shall not speak on the merit of the motion, nor shall he be entitled to vote thereon. (5 ). . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . . (7 ). . . . . . . . . . . . . . . . . . (8 ). . . . . . . . . . . . . . . . . . As will be apparent from a perusal of the amended Rule 33-B of the Rules framed under the U. P. Panchayat Raj Act a written notice of the intention to move a motion for removal of the Pradhan or Up- Pradhan under Section 14 of the Act con stitutes a mandatory requirement as in its absence the proceedings cannot be in timated. Such a notice has to be signed by not less than 1 1/2 of the total number of members of the Gram Panchayat and fur ther has to contain the reasons for moving the motion and is required to be delivered in person by at least three members sign ing the notice to the District Panchayat Raj Officer. The rule casts a duty on the District Panchayat Raj Officer to satisfy Irmself regarding genuineness of the sig natures of the members signing the notice. 8. Under the aforesaid rule the Dis trict Panchayat Raj Officer is required to convene a meeting of the Gram Panchayat, on a date fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting so con vened has to be presided over by the Dis trict Panchayat Raj Officer or the person authorised by him in writing in this behalf. The Presiding Officer is required to read to the members of the Gram Panchayat the notice received by him and then allow the motion to be moved and discussed. Such discussion has to terminate on the expiry of two hours appointed for the commence ment of the meeting unless it is concluded earlier. The Presiding Officer is required to read to the members of the Gram Panchayat the notice received by him and then allow the motion to be moved and discussed. Such discussion has to terminate on the expiry of two hours appointed for the commence ment of the meeting unless it is concluded earlier. It is upon the conclusion of the debate or upon the expiry of the said period of two years, as the case may be, that the motion is required to be put to vote, 9. The learned counsel for the petitioner has strenuously contended that the provisions contained in Section 14 of the Panchayat Raj Act cannot take in its sweep the procedure of no confidence as provided for in Rule 33-B of the Rules framed under the Act and the removal of a Pradhan contemplated under Section 14 of the Act is nothing else except the removal of an elected person from elective office on some or the other charge of mis conduct for which a specific provision is made under the Panchayat Raj Act itself as contained in Section 95 (1) (g) thereof. What is contended is that the power which is sought to be exercised while purporting to act under Section 14 of the Panchayat Raj Act read with Rule 33-B thereof as amended is not only without jurisdiction but is also arbitrary and in fact does not flow from the provisions contained in the newly inserted part IX of the Constitution. It has also been urged in this connection that Section 14 as well as Rule 33-B (1)and (2) of the Rules are ultra vires the Con stitution as amended by (Seventy Third Amendment) Act, 1992. In this connec tion it has been emphasised that the petitioner who had been elected by the members of the Gram Sabha which is the grass root of democracy in the country cannot be removed by head count in the meeting which is confined to only 13 per sons of the Gram Panchayat particularly in view of the fact that there is no specific statutory provision of moving a motion of no confidence for the removal of the Prad han. 10. The learned counsel for the petitioner has in this connection further urged that under the scheme of the Act different procedures have been provided for the removal of the Pradhan. 10. The learned counsel for the petitioner has in this connection further urged that under the scheme of the Act different procedures have been provided for the removal of the Pradhan. One pro cedure is provided for under Section 14 of the Act and the other in Section 95 (1) (g) of the Act. However, in the absence of a guideline for adopting or taking course to a method provided for under Section 14 of the Act or under Section 95 (1) (g) of the Act impugned action is vitiated on account of being violative of equal protection guaranteed under the Constitution. 11. The learned Standing counsel representing the respondents No. 1 and 2, however, has urged that the impugned provisions do not suffer from any such legal infirmity as claimed and have been put in force well within the legislative competence requiring no interference therein as sought for. 12. I have given my anxious con sideration to the submissions made by the learned counsel for the petitioner indi cated herein above and have carefully perused the provisions contained in the U. P. Panchayat Raj Act as amended and the provisions contained in the newly in serted part IX of theconstitution. 13. As provided for under Article 264 (3) of the Constitution subject to clauses (1) and (2) thereof the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule which is referred to as the state List. The subject relating to local government, that is to say, the constitution and powers of Municipal Corporations, Improvement Trusts, Dis trict Boards, Mining Settlement Authorities and other local authorities for the purpose of local self government or village administration are provided for in item No. 5 of the List II i. e. State List. 14. The subject relating to local government, that is to say, the constitution and powers of Municipal Corporations, Improvement Trusts, Dis trict Boards, Mining Settlement Authorities and other local authorities for the purpose of local self government or village administration are provided for in item No. 5 of the List II i. e. State List. 14. It may, however, be noticed that in spite of the insertion of part IX of the Constitution and bringing into effect the Articles 243 and 243-A to 243-O of the Constitution, the provisions contained in Articles 245 & 246 of the Constitution continue to remain in force and effective so as to secure the jurisdiction and the legislative competence of the State Legislature which can exercise its jurisdiction in respect of the subject-matter covered by item No. 5 of the State List with the rider to ensure that any provision made by the State Legislature on the subject covered by the provisions contained in Articles 243,243-A and 243-K has not to be incon sistent with the provisions contained in the aforesaid Articles of the Constitution. 15. The newly inserted Article 243-N of part IX of the Constitution is of great significance. The aforesaid provision in an unambiguous manner lays emphasis on the aspect that notwithstanding anything contained in the newly inserted Chapter IX of the Constitution any provision of any law relating to Panchayat in force in a State immediately before the commence ment of the Constitution Seventy Third Amendment Act, 1992 which is inconsis tent with the provisions contained in that part shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement whichever is earlier. 16. It is, therefore, apparent that any provision contained under any State enactment relating to the Panchayats in force before the insertion of Part IX indi cated above was to cease to be effective only to the extent of inconsistency with the scheme underlying the provisions con tained in the newly inserted Part IX on either being amended or repealed by a competent Legislature or other com petent authority or after the expiration of one year from the date of commencement of the Constitution Seventy Third Amend ment Act, 1992. 17. 17. It seems to me that the provisions brought in force by the State Legislature amending Rule 14 of the U. P. Panchayat Raj Act and Rule 33-B of the Rules framed there under retaining the procedure for the removal of thepradhan on the passing of a motion of no confidence brought against him which is duly carried out is not in any manner inconsistent with the provisions contained in the newly inserted Part IX of the Constitution. 18. It may further be noticed in this connection that the provisions contained in the newly inserted Part IX of the Con stitution do not touch the procedure to be devised by the State for the removal of a Pradhan of a Gram Panchayat. This matter which has to be taken as covered by Item No. 5 of List II i. e. State List falls within the exclusive domain of the State which is free to regulate the procedure to be adopted for the removal of a Pradhan of a Gram Panchayat who is inducted in the elective office on the basis of an election held in accordance with the procedure as envisaged under the legislative policy indi cated in the provisions contained in the newly inserted Part IX of the Constitu tion. 19. It must be remembered that every presumption favours the validity of an Act and the doubts, if any, must be resolved in support of the Act. This presumption arises from the fact that the Legislature is pledged to support and upheld the Con stitution. This presumption is, however, not conclusive but throws a heavy burden on a person who seeks to displace such a presumption by attacking the validity of any statutory provision in an Act lawfully passed to clearly and convincingly show as to how and in what respect the impugned provision is violative of any constitutional provision. In such a circumstance in the absence of clinching material leading to an irresistible conclusion that the impugned provisions stands vitiated on account of absence of legislative competence or being arbitrary on account of being violative of Articles 14 and 15 of the Constitution, it is not permissible to displace the presump tion indicated hereinabove. 20. In such a circumstance in the absence of clinching material leading to an irresistible conclusion that the impugned provisions stands vitiated on account of absence of legislative competence or being arbitrary on account of being violative of Articles 14 and 15 of the Constitution, it is not permissible to displace the presump tion indicated hereinabove. 20. The notice contemplated under the provisions of Section 14 of the U. P. Pancnayat Raj Act ami Rule 33-B of the Rules framed there under, it seems to me, means and refers to the proposal or inten tion of the members of the Gram Panchayat for the removal of the Pradhan and it does not mean anything more. The notice referred to hereinabove as con templated under Rule 33-B is required to be signed at least by half of the members of the Gram Panchayat and that is for the purpose of ensuring that there is a genuine demand of a considerable number of the members of the Gram Panchayat for the removal of the the Pradhan so that the convening of the meeting may not be futile. The signing of this notice is merely a precautionary measure for preventing waste of time and energy. It further seems to me that the satisfaction referred to in the amended Rule 33-B of the rules framed under the Panchayat Raj Act is a prima facie satisfaction of the concerned authority about the genuineness of the demand. If the motion is carried out it would be anomalous to quash the proceedings of the meeting and the resolu tion passed for the removal simply on the ground that the motion was not signed by at least half of members as the very fact that it is carried out indicates and has to be taken as confining that there was in fact intention in the minds of at least half of the members of the Gram Panchayat to remove the Pradhan. 21. The provision of no confidence motion is a unique method to ensure that an elected representative continues to hold an elective office only till he retains the confidence of the electorate. This extra- ordinary right to throw out a Prad han recognised under Section 14 of the Act read with Rule 33-B of the Rule. 21. The provision of no confidence motion is a unique method to ensure that an elected representative continues to hold an elective office only till he retains the confidence of the electorate. This extra- ordinary right to throw out a Prad han recognised under Section 14 of the Act read with Rule 33-B of the Rule. , framed there under, however, has to be ex ercised carefully and it is in this view of the matter that the law has placed stringent limitations upon the exercise of this right. The mere fact that the Pradhan is elected by the general body of the Gram Panchayat consisting of the persons registered in the electoral rolls for the territorial constituencies of the Panchayat area may be ousted from his office as Pradhan of the Gram Panchayat only by two third of the majority of the members of the said Gram Panchayat is of no consequence as the members of the Gram Panchayat are the elected representatives of the Gram Panchayat and their decision has to be taken under the law to be the decision of the general body of the Gram Panchayat which is a body corporate as provided for insection 12 of the Act. 22. It seems to me that it is not the personal whim, wish or view or opinion or the ipse-dixit dehors the material brought before the concerned authority but a legitimate inference drawn from the material placed before such authority which is relevant for arriving at the satis faction contemplated under Rule 33-B of the Rules framed under the Act. The suf ficiency or otherwise of the material can not be questioned. The legitimacy of the inference drawn from such material is, however, certainly open for judicial review. The suf ficiency or otherwise of the material can not be questioned. The legitimacy of the inference drawn from such material is, however, certainly open for judicial review. But where the satisfaction is only a prima facie satisfaction contemplated only as a precautionary measure and is not en visaged to jeopardise or affect any vested right of an office bearer even of an elective office, in the sense that the ultimate effect is left dependent on the "will" of the majority of 2/3rd members of the elected representatives in a meeting specially con vened for consideration of not only the genuineness of the intention indicated in the notice but also the reasons mentioned therein in support of such an intention, there can be no justifiable ground for in terfering in the exercise of the prima facie, satisfaction in the present proceedings of an extraordinary nature. I must however, hasten to add that whenever a statutory proviso requires arriving at a satisfaction before passing an order which directly af fects an individual to his detriment depriv ing him of the benefits of a vested right in such a case the legitimacy of the inference drawn from the materials produced before the concerned authority is certainly open for judicial review in the proceedings of the present nature but not otherwise. 23. It must be remembered in this connection that foundation of democracy is faith in the capacities of human nature; faith in human intelligence and in the power of pooled and cooperative ex perience. The interest of the Gram Panchayat is paramount to individual in terest of a person to cling to the elective office of Pradhan and the two interests must be brought into just and harmonious relation. 24. It is submitted that Section 14 and Section 95 (1) (g) of the U. P. Panchayat Raj Act provide for two different and al ternative methods for the removal of the Pradhan and the prescribed authority as contemplated under Section 2 of the said Act which stands vested with the powers in this regard enjoys unfettered and un-guided powers and at his will can dis criminate between two similarly situated Pradhans of Gram Panchayat and thereby violate the benefits of the equal protection clause of the Constitution. 25. 25. It may be noticed in this connec tion that it is well established that Article 14 condemns discrimination not only by a substantive law but also by a law of the procedure. However, the aforesaid sub mission in my considered opinion is clear ly based on mis-apprehension and is not sustainable on a close scrutiny of the provisions in question and the scheme un derlying the Act under consideration. 26. The provisions contained in Sec tion 14 of the Act secure a right in the representatives of the electorate to get the Pradhan removed from his post by voting him out by 2/3rd majority of its elected representatives in a meeting convened for the purpose after bringing to the notice of the Pradhan concerned the reasons for such an action which if approved of by such majority results in the removal of the Pradhan after giving him an opportunity to convince and persuade the members of the Gram Panchayat in the meeting to desist from carrying out the resolution regarding removal. In the aforesaid provisions, it is further stipulated that a meeting for the removal of a Pradhan shall not be convened within one year of his election and if the motion is not taken up for want of quorum or fails for lack of requisite majority at the meeting no sub sequent meeting for the removal of the same pradhan shall be convened within a year of the date of the previous meeting. 27. The provisions contained in Sec tion 95 (1) (g) of the Act, however, secure a power in the State Government to suspend or remove the Pradhan of the Gram Panchayat on the establishment of the facts and on the grounds enumerated in Section 95 (1); (g) (i) (ii) (iii) (v) and 95 (1) (h ). As provided for under Section 95 (1) (2) of the Act a Pradhan removed under sub-clause 95 (1) (g) (iii) that is who has abused his position as such or has persist ently failed to perform the duties imposed by the Act or Rules made there under or his continuance as such is not desirable in public interest stands debarred from get ting re-elected to any office under the Act for a period of five years or such lesser period as the State Government may order in any case. 28. 28. It is, therefore, obvious that the jurisdiction to remove a Pradhan which vests in the State Government is quite different from the jurisdiction which vests in the representatives of the electorate itself as contemplated under Section 14 of the said Act. The ouster from the office of the Pradhan of the Gram Panchayat in the proceedings under Section 14 of the Act or Section 95 (1) (g) of the Act carry with it different consequences. Il may be that the fields of operation of Section 14 and Sec tion 95 (1) (g) of the Act have some over-lappings but that is not sufficient by itself to indicate that the procedure for ouster of a Pradhan from the elective office gets vitiated on account of being dis criminatory. In fact it seems to me that the provisions contained in Section 14 of the Act stipulate vesting of an additional Power in regard to the removal of the radhan in an authority altogether dif ferent from the authority contemplated under Section 95 (1) (g) of the Act. Fur ther even the failure of an effort to oust a Pradhan from his office in the proceedings under Section 14 of the Act, for the reasons indicated in the notice con templated therein under the scheme un derlying the Act does not prohibit the in itiation of the proceedings for the same reasons under Section 95 (1) (g) of the Act by the competent authority> envisaged therein even in those cases where the reasons are common in both the proceed ings. The consequence of removal of a Pradhan in the proceedings under Section 95 (1) (g) of the Act and the consequence of either the failure to remove the Pradhan in the circumstances stipulated in Section 14 of the Act or the removal of the Prad han in the aforesaid proceedings are en tirely different. 29. There is a prong presumption in favour of the constitutionality of a legisla tive enactment and it has to be presumed that a Legislature understands and cor rectly appreciates the needs of its own people and further that discrimination if any is normally based upon adequate grounds. 29. There is a prong presumption in favour of the constitutionality of a legisla tive enactment and it has to be presumed that a Legislature understands and cor rectly appreciates the needs of its own people and further that discrimination if any is normally based upon adequate grounds. Considering the legislative in tent and the scheme underlying the provisions of the U. P. Panchayat Raj Act and the Rules framed there under as amended it cannot be held that the provisions contained in Section 14 of the said Act has the effect of sanctioning dis crimination is, thereby, violative of equal protection clause. This Court cannot be called upon to embark on any enquiry into public policy or investigation intp questions of political wisdom or pronounce upon mo tives of legislation in enacting a law which it is otherwise competent to make. A legisla tive action cannot be struck down except for lack of legislative competence or for being arbitrary as claimed. 30. This Court in its decision in the case of Hari Chand v. State of U. P. and others rendered by a Division Bench reported in 1970 AWR 48 had observed that from the scheme of the Act it appears that the Pradhan can be removed in two ways. He can either be removed under Section 14 by the Gaon Sabha itself if the Pradhan for any reason loses the con fidence of the Gaon Sabha or can be removed by the State Government under Section 95 (1) (g) for any of the reasons mentioned therein. It was clarified by this Court that Section 95 occurs in Chapter VII which deals with the external control exercised by the State Government over the affairs of a Gaon Sabha. In the exercise of that control the State Government has been invested with the power under clause (g) of sub-section (1) of Section 95 to suspend or remove an office bearer of the Gaon Sabha if he is found guilty of any of the defaults enumerated in sub-clauses (i), (ii) and (v ). In the exercise of that control the State Government has been invested with the power under clause (g) of sub-section (1) of Section 95 to suspend or remove an office bearer of the Gaon Sabha if he is found guilty of any of the defaults enumerated in sub-clauses (i), (ii) and (v ). He can also be removed under clause (b) of sub- section (1) of Section 95, if he does not possess the qualification specified in Section 5-B. In other words it was pointed out that a Pradhan can be removed as a result of the internal action by the Gaon Sabha itself or as a result of the external control exercised by the State Government. lit such a circumstance the Division Bench opined that there was no conflict between the two provisions and that these two provisions were mutually exclusive. 31. It seems to me that even taking into account the amendments brought in force to which a reference has already been made above there has not been any depar ture and both the provisions continue to remain mutually exclusive - one confined to internal action by Gaon Panchayat itself and the other confined to the external con trol over the Gaon Sabha exercised by the State Government. 32. I am of the considered that the provisions in question do not suffer from any such constitutional invalidity which may justify the striking down thereof and the contentions raised by the learned counsel for the petitionerin this regard are totally misconceived and not at all ac ceptable. 33. No ground has been made out justifying any interference by this Court while exercising the extra- ordinary juris diction envisaged under Article 226 of the Constitution of India. 34. This writ petition in the cir cumstances, deserves to be dismissed and is hereby dismissed. Petition dismissed. .