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2017 DIGILAW 971 (CAL)

Shipra Banik v. Executive Officer

2017-12-13

ARIJIT BANERJEE, SOUMEN SEN

body2017
JUDGMENT : Soumen Sen, J. This appeal is directed against the order passed by a learned Single Judge on 14th June, 2017 in WP No. 014 of 2017 refusing to quash the impugned order/ decision dated 2nd January 2017 of the Executive officer, Panchayat Samiti, Little Andaman by which the said officer adjourned the meeting on the ground of absence of quorum. 2. The Panchayat Samiti, Little Andaman consists of six members including a Member of Parliament. At the scheduled meeting only three members were present. The said officer conducting the meeting held that quorum requirement of 2/3rd of the members under Rule 9 (3) of the Andaman and Nicobar Island (Panchayat Administration Rules, 1997) i.e. four members has not been fulfilled. The meeting was ‘dissolved’. 3. Mrs. Nag, learned counsel appearing on behalf of the appellant/petitioner submits that under Regulation 107(3)(b) of the Andaman and Nicobar Island (Panchayats) Regulations 1994 (hereinafter referred to as the said regulations) although Pradhans of the Gram Panchayat who are appointed by rotation and a Member of the Parliament is part of composition of Panchayat Samiti and both of them may have a right to vote in the meeting of the Panchayat, however, under Regulation 112 the Pradhan has to be elected from amongst the elected members of the Panchayat Samiti which does not include the Member of Parliament. Mrs. Nag has referred to Regulation 115 which deals with oath of office. It is submitted that under the said Regulation after the first meeting of Panchayat Samiti every member is required to take oath of office before the Deputy Commissioner in the form prescribed in the First Schedule and no member of Panchayat Samiti who has not taken such oath shall vote or take part in the proceedings of any meeting of the Panchayat Samiti. The learned Counsel also refers to Regulation 117 which lays down that the Motion of No Confidence may be moved by any member of the Panchayat Samiti against the Pramukh. The motion to succeed is to be carried by a majority of not less than 2/3rd of total number of members of the Panchayat Samiti. It is submitted that since Pramukh is elected by the Samiti without the presence of a non elected member being the Member of the Parliament, the removal should also follow the same rule. Mrs. The motion to succeed is to be carried by a majority of not less than 2/3rd of total number of members of the Panchayat Samiti. It is submitted that since Pramukh is elected by the Samiti without the presence of a non elected member being the Member of the Parliament, the removal should also follow the same rule. Mrs. Nag submits that since Regulation 112 is quite clear in laying down that the election of the Pramukh and Up-Pramukh only ‘by and from’ amongst elected members of the Panchayat Samiti and any of such member would be disqualified to take part in the proceeding of any meeting of the Panchayat Samiti if he fails to take oath after the first meeting of the Panchayat Samiti it is only natural that members totally unconnected with election and the selection of the Pramukh cannot have any say in a No Confidence Motion for removal of the said office-bearer. It is submitted that while the nominated members may have right to vote in relation to all other matters concerning the Panchayat Samiti but in respect of No Confidence Motion it is only the members who are elected members of the Panchayat Samiti would constitute quorum under Regulation 107 (2) of the said Regulations. The expression in any proceedings under Regulation 115 (1) and the words any member of Panchayat Samiti in Regulation 117 (1) according to the learned counsel would mean only elected members of a Panchayat Samiti in relation to a No Confidence Motion. Mrs. Nag, learned counsel refers to Article 243 R of the Constitution of India and submits that the present Regulations are to be read in consonance with Article 243 R of the Constitution which debars a nominated member from exercising right to vote in the meetings of the municipality. Mrs. Nag has referred to a decision of the Hon’ble Supreme Court in the case of Ramesh Mehta vs. Sanwal Chand Singhvi and others reported in 2004 (5) SCC 409 and a Division Bench judgement of the Karnataka High Court in the case of State of Karnataka and another vs. Lakshmappa Kallappa Balaganjr and another reported in 2001 (3) KarLJ 498 , 2001 AIHC 2283 to argue that only elected members of the Panchayat who have right to elect the Pramukh are entitled to move the No Confidence Motion and exercise their right to vote in such motion. It is only those members who would constitute quorum. Mrs. Nag contends that in Ramesh Mehta (supra) the Hon’ble Supreme Court has categorically stated that only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality. 4. Per contra, Mr. Rajinder Singh and Mr. Sivabalan, learned counsel for the respondent No.2 and respondent No.1 submit that there is difference in language in Regulations 112 (1) and 117. They submit that Regulation 112 relates only to election of inter alia, the Pramukh. During this election only elected members of the Panchayat Samiti could vote. However, in respect of No Confidence Motion under Regulation 117 there is no such stipulation that only the elected representative can vote. Mr. Singh has referred to Rule 9 (3) of the Andaman and Nicobar Islands (Panchayat Administration Rules), 1997 (hereinafter referred to as the said Rules) which deal with quorum required for meeting inter alia of Panchayat Samiti. It is submitted that the said Rules make it abundantly clear that not less than 2/3rd of the total membership is necessary for a special meeting called to move a Motion of No Confidence against a Pramukh and Up-Pramukh. Mr. Singh has also referred to Rule 21 which deals with Motion of No Confidence against Pramukh and Up-Pramukh. It is submitted that under Rule 21 Sub Rule (2) of the Rules a quorum of not less than 2/3rd of the total membership of the Panchayat Samiti is necessary for the meeting. Mr. Singh by referring to the aforesaid Regulations and Rules submitted that for the purpose of a No Confidence Motion the Regulations and the Rules make no distinction between the elected members and non elected members. 5. In order to appreciate the rival contentions it is necessary to refer to Regulations 107 (3), 112 (1), 115, 117 and Rules 9 (3) and 21. 5. In order to appreciate the rival contentions it is necessary to refer to Regulations 107 (3), 112 (1), 115, 117 and Rules 9 (3) and 21. The said Regulations and Rules are set out below: “107(3) The following persons shall also be represented in the Panchayat Samiti, namely:- (a) a proportion of the Pradhans of the Gram Panchayat in the Panchayat Samiti to be determined by order of the Administrator and by rotation for such period as may be prescribed: Provided that while nominating the Pradhans by rotation the Administrator shall ensure that as far as possible all the Pradhans are given the opportunity of being represented in the Panchayat Samiti at least once during its duration; and (b) the member of the House of Parliament representing the Union Territory. Who shall have the right to vote in the meetings of the Panchayat Samiti.” “112 (1) On the constitution of a Panchayat Samiti for the first time under this Regulation or on the expiry of the term of a Panchayat Samiti or on its reconstitution, a meeting shall be called on a date fixed by the Deputy Commissioner for the election of the Pramukh and the Up-Pramukh by and a from amongst the elected members of the Panchayat Samiti.” “115.(1) As soon as may be after the first meeting of the Panchayat Samiti every member thereof shall take oath of office before the Deputy Commissioner in the form set out in the First Schedule. (2) No member of the Panchayat Samiti who has not taken such oath shall vote or take part in the proceedings of any meeting nor shall he be included as a member of any committee constituted by the Panchayat Samiti.” “117. (1) A motion of no-confidence may be moved by any member of a Panchayat Samiti against the Pramukh or the Upa-Pramukh after such notice thereof as may prescribed. (2) If the motion is carried by a majority of not less than two-thrids of the total number of members of the Panchayat Samiti, the Pramukh of UpPramukh, as the case may be, shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned earlier. (2) If the motion is carried by a majority of not less than two-thrids of the total number of members of the Panchayat Samiti, the Pramukh of UpPramukh, as the case may be, shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned earlier. (3) Notwithstanding any thing contained in this Regulation, the Pramukh or Upa-Pramukh shall not preside over a meeting in which a motion of no confidence is discussed against him but he shall have the right to speak or otherwise take part in the proceedings of such meeting.” “9. Quorum. – The following shall be the quorum required for meetings of Gram Sabha, Gram Panchayat, Panchayat Samiti, Zilla Parishad for the kinds of meetings in each Panchayat: (3) Panchayat Samiti – (a) Two-thirds of the total membership of a Panchayat Samiti shall be sufficient quorum for an ordinary meeting of a Panchayat Samiti- (b) Not less than two-thirds of the total membership is necessary for a special meeting called for the purpose under sub-section (1) of section 117 of the Regulation to move a motion of no confidence against the Pramukh and Up-Pramukh. However, to carry the motion under sub section (2) of section 117, a majority of not less than two-thrids of the membership of the Panchayat Samiti present and voting is necessary.” “21. Pramukh and Up-Pramukh: (1) A motion of no confidence against the Pramukh or the Up-Pramukh may be moved by any member of a Panchayat Samiti, after giving 7 days notice. The notice shall be in Form 4. The notice shall be addressed to the Pramukh and shall be delivered to him and in his absence to the Up-Pramukh or in the absence of both, to the Executive Officer. The Pramukh or in his absence the Up-Pramukh or in the absence of both, the Executive Officer shall call a special meeting of the Panchayat Samiti within 15 days from the date of moving the notice of no confidence by serving notice to the Pramukh, Up-Pramukh and all the members of the Panchayat Samiti, in Form 1-A enclosing therewith a copy of the no confidence motion moved by the member. (2) The Pramukh or the Up-Pramukh shall not preside over the meeting but shall have a right to speak or otherwise take part in the proceedings of the meeting. (2) The Pramukh or the Up-Pramukh shall not preside over the meeting but shall have a right to speak or otherwise take part in the proceedings of the meeting. The meeting shall be presided over by the Pramukh if the motion is against the Up-Pramukh and if the motion is against the Pramukh the meeting will be presided over by the Up-Pramukh. In the absence both the Pramukh and Up-Pramukh, the members assembled shall elect one from among themselves to preside over the meeting. A quorum of not less than two-thirds of the total membership of the Panchayat Samiti is necessary for the meeting. Within one hour from the appointed time, if there is no quorum, the no confidence motion shall deemed to have not been carried and the meeting shall be dissolved. The Executive Officer shall send the report of the dissolution of the meeting for want of quorum to the concerned Assistant Commissioner, the Deputy Commissioner (Director of Panchayat Elections), the Chief Executive Officer of the Zilla Parishad and also the Secretary (Panchayat) of the Administration. (3) If the motion is carried by a majority of not less than two-thirds of the total membership of the Panchayat Samiti present and voting, the Pramukh or the Up-Pramukh or both, as the case may be, shall cease to hold office after a period of three days from the date on which the motion is carried unless the Pramukh or the Up-Pramukh or both, as the case may be, have resigned earlier.” 6. Panchayats have been included in the Constitution of the India by the Constitution (73rd 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. 243C(3) permits the legislation of the sate 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. 243C(3) permits the legislation of the sate 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. 7. Although the Regulations and the Rules do not appear to have made any distinction between “person” and “member” which 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 phrase “by and from amongst elected members of the Panchayat Samiti” and the Member of Parliament is not treated at par with the elected members for the purpose of election of such office bearers. 8. In Ramesh Mehta (Supra) the issue arose before the Hon’ble Supreme Court with regard to interpretation of the expression ‘whole number of members’ used in Rule 3(9) of the Rajasthan Municipalities (Motion of No Confidence against Chairman or Vice Chairman) Rules, 1974 read with section 3 (6) and Section 9 of the Rajasthan Municipalities Act, 1959. The impugned order passed by the Division Bench interpreted the said expression to exclude nominated members. In Ramesh Mehta (Supra) out of the three Judges, Justice Kapadia speaking also on behalf of Chief Justice Khare opined that the right to elect and the right to be elected is a statutory right. The impugned order passed by the Division Bench interpreted the said expression to exclude nominated members. In Ramesh Mehta (Supra) out of the three Judges, Justice Kapadia speaking also on behalf of Chief Justice Khare opined that the right to elect and the right to be elected is a statutory right. The mode and manner of election to any post may be different from the scheme of removal of a person from that post. However, in each case the statute in question has to be examined. Justice S.B Sinha in his Lordship’s concurring judgement noticed that the procedure laid down in the rules has remained unamended despite the fact that the Act had been amended in consonance with Article 243-R of the Constitution of India. All members who were not elected members under the unamended provisions were treated as elected members. Their rights were at par with them. The very fact that the Constitution made a difference between an elected member and a nominated member in the matter of election and removal of a Chairman is suggestive of the fact that now a new interpretation is called for. Nominated members are persons with special knowledge in the subject. They are nominated so that they may render their advice properly to the members of the Board which would enable it to run the municipal affairs efficiently. They remain as members of the Board irrespective of the fact as to who the person occupying the post is or his political affinity. They are not concerned with election. They do not take part in it. By reason of the amendment in the Constitution and consequent amendment by the State Legislature in the Rajasthan Municipalities Act, no indication has been given that by reason thereof a special right is sought to be created in the nominated members although they would not participate in such a proceeding and would not have any voting right either in the election of the Chairman or in the proceedings for his removal. Only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality. Only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality. The Rules which were made in the year 1974 having not been amended, with a view to give an effective and proper meaning, the same must be construed to mean that only members with voting right are entitled to participate in such proceedings and not the nominated members. 9. In paragraph 41 of the said reported judgment Justice Sinha has held that as regards right of participation of a member who was an elected member or who had a right equal to that of an elected member the decisions of the Courts would show that only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality. 10. In State of Karnataka and another (Supra) the learned Single Judge declared that sub-section (2) of Section 159 of the Karnataka Panchayat Raj Act, 1993 (hereinafter called as the ‘Act’) to the extent it prohibits the members of the House of the People, the State Legislative Assembly, the Council of States, the State Legislative Council and Adhyakshas of Taluk Panchayats, referred to in clauses (ii) to (iv) of sub-section (1) of Section 159 of the Act, from participating in the meeting convened for considering the no-confidence motion moved against the Adhyaksha and Upadhyaksha of a Zilla Panchayat under sub-section (3) of Section 1/9 of the Act, is illegal, void and unconstitutional and declared that the words “or for considering a no confidence motion under sub-section (3) of Section 1/9” contained in sub section (2) of Section 159 of the Act are struck down as void and unconstitutional; further, declared that subsection (3) of Section 1/9 of the Act to the extent it prohibits the members of the House of the People, the State Legislative Assembly, the Council of State, the State Legislative Council and Adhyakshas of Taluk Panchayats, from participating in the meeting convened for considering no-confidence motion against the Adhyaksha and Upadhyuaksha of a Zilla Panchayat is illegal, void and unconstitutional in law. Accordingly, the word “elected” found immediately after the words “majority of the total number of” and before the words “Members of a Zilla Panchayat at a meeting specially convened for this purpose” in sub-section (3) of Section 1/9 of the Act, was struck down as unconstitutional and the meeting notice dated 25th of February, 1999 issued by the Chief Executive Officer of Bagalkot Zilla Panchayat was quashed. 11. The Hon’ble Division Bench on interpretation of the relevant rules held: “21. The Panchayat concerned in W.A. Nos. 635 and 636 of 2000 have 18 elected members out of total 65 members including the nominated members, that is non-elected and elected. When elected 18 members will vote for electing Adhyaksha and Upadhyaksha, if all 65 members are allowed to vote in noconfidence motion against the Adhyaksha and Upadhyaksha by interpreting the provisions of the Constitution, Article 243-C(4) and the provisions of the Act as submitted by the learned Counsel for the writ petitioners, it would result in anomaly, that is, elected person will be thrown out within a short time as elected by the lesser members and will be voted by large majority of members. Therefore, the Legislature taking into consideration all relevant facts and circumstances of the election process that would be in the democratic country and the constitutional mandate in Article 243-C, it has incorporated the relevant provisions referred to above, entitling only elected members of the Panchayat to elect Chairperson/Adhyaksha/Upadhyaksha and the said members above are entitled to move the no-confidence motion and vote against them.” 12. In 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 word ‘member’ is 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. In the relevant Rules and Regulations in relation to a motion of no confidence wherever the word ‘member’ is 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. 13. In view thereof, the appeal succeeds. The impugned decision of the Executive Officer dated 2nd January, 2017 of Panchayat Samiti, Little Andaman is set aside. The Executive Officer, Panchayat Samiti, Little Andaman is directed to proceed in accordance with law in the light of the observations made in this judgment and order. 14. MA No. 026 of 2017 is accordingly disposed of. Arijit Banerjee, J. : I agree.