Ram Beti
Vs. District Panchayat Rajadhikari & Ors, [1997] INSC 945 (17 December 1997)
S.C.
AGARWAL, S. RAJENDRA BABU
ACT:
HEADNOTE:
THE
17TH DAY OF DECEMBER,1997 Present:
Hon'ble
Mr, Justice S.C.Agrawal Hon'ble Mr. Justice S. Rajendra Babu G.L.Sanghi, Yogeshwar
Prasad, J.P.Goyal, Sr.Advs.,Mahabir Singh, R.D.Upadhaya, Mukesh K,Giri, Abha R.
Sharma, Safia Khan, Kavin Gulati, Ms.Nandini Gore, A.V.Palli, Atul Sharma, Shrish
Kumar Mishra, Indra Makwana, Pravir Chudhary. Arvind Agrawal, Manoj Saxena, Ms.B.Sunita
Rao, Pramod Swarup,.
S.K.Mehta,
Dhruv Mehta, Fazlin Anam, M/s.Shobha Verma, Punit Dutt Tyagi, Shree Pall Singh,
P.K.Jain, D.L.K. Garg, R.P.Gupta, A.K.Srivastava, B.L.Yadav, B.M.Sharma, T.N.Singh,
S.K.Bhatt, S.R. Bhatt, Debasis Misra, Suman Bala Rastogi, D.K.Saxena, S.K. Sabbarwal,
J.P.Dhanda, K.K.Rai B.Y.Kulkarni, Shyam Mohan Srivastava. Neeraj Srivastava, Anbhuj
Srivastava, C.L.Sahu Rajesh, Makrand D.Adkar, S.D.Singh Anil Kumar Gupta-II, Ms.Rani
Jethmalani, Prem Sunder Jha, V.v.Joshi, Alok Singh, Umesh Bhagat, Anis Ahmed
Khan, Gulab Chandra, M.K.D.Namboodri, M.P. Raju, T.R.V.Rajan, U.S.prasad, Neeraj
Jain, Monish Mohan, Santosh Gupta, M.P.S. Tomar, Ms. Sandhya Goswamin, Sunil
Kumar, S.K.Sinha, S.Kulshreshtha, Rakesh K.Sharma, Ms.M.Annapoorani, S.P.
Singh, Goodwill Indeevar, Vishnu sharma, Ms.Mridhla Ray Bhardwaj, Shashindra Tripathi,
Sudamaji Shamli, K.L.Taneja, V.K.Sharma, Advs., with them for the appearing
parties.
The
following judgment of the Court was delivered:
16647/97,
16602/97, 16969/97, 16972/97, 16978/97, 17061/97, 17127/97, 17176/97, 17267/97,
17338/97, 17342/97, 17355/97, 17327/97, 17321/97, 17365/97, 17444/97, 17435/97,
17461/97, 17463/97, 17454/97, 17453/97, 17443/97, 17459/97, 17462/97, 17464/97,
17470/97, 17465/97, 17475/97, 17482/97, 17485- 17488/97, 17467/97, 21024/97,
20440/97, 19875/97, writ Petitions (c) Nos. 621/97, 620/97, 615/97, special
Leave Petitions (CP Nos. 20956/97, 20998/97,24346/97, 21360/97, 21371/97, Writ
Petitions (C)Nos.628/97,595/97, Special Leave Petitions (C)Nos.21407/97,2502/97,
20548/97, 20444/97, 20528/97, 20697/97, 20700/97,15817/97, Special Leave
Petitions (C) Nos.23084.85.89.90/97@ (C.O.Nos.8638/97,8668/97,8711/97 and
8635/97)
S.C.AGRAWAL.J:
These
matters raise common questions relating to the validity of the provisions
contained in Section 14 of the U.P. Panchayat Raj Act. 1947 ( hereinafter
referred to as the Act) in so far as the said provision provides for removal of
the Pradhan of a Gram Sabha by a majority of two- thirds of the m embers of the
Gram Panchayat present and voting.
The
Act was enacted by the U.P. Legislature to establish and develop local Self
Government In the rural areas of the State and to make better provision for
village administration and development., The act amongst other things makes provision
for establishment and constitution of Gram Sabhas and gram Panchayats, election
of Pradhans and Up-Pradhans of Gram Sabhas and members of Gram Panchayats and
removal of Pradhans and Up-Pradhans. The election to the office of the Pradhan
or Up-Pradhan of a Gram Sabha and a member of a Gram, Panchayat is required to
be held by secret ballot in (With Civil Appeals
Nos.5715/97,58816/97,5817/97,5818/97.
5819/97,5820/97,5721/97,
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Special
Leave Petition (C) Nos.15095/9715511/97.15505/97.15479/97.15676/97.15835/97.160
66/97.`16087/97.16084/97.16073/97.16030/97.15836/97.15454/97 .16138-
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97.16206-16215/97.16203/97.16204/97.16205/97.16216-16219/97.
15797/97.15804/97.16712/97.16334-16337/97.16409/97.16607/97.
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20298/97.20299/97.20337/97.20335/97.19790/97.19794/97.Writ Petitions (C)
Nos.655/97.566/97.582/97.586/97.583/97.590/97.591/97.Special Leave Petitions
(C) Nos.18948/97.19046/97.18766/97.18796/97.
18788/97.18767/97.18846/97.18877/97.18971/97.19072/97.19188/
97, 19462/97, 19457/97, 19093/97, 19494/97, 19688-19693/97, 19086/97, 19685/97,
18817/97,Writ Petiyion (C) No.560/97, Special Leave Petitions (C) Nos.18713/97,
17495- 17503/97.17491/97, 17554/97, 17492/97, 17979/97, 17980/97, 17497/97,
18085/97, 17556/97, 17558/97, 17633/97, 17807/97, 17634/97, 17811/97, 17886/97,
18142/97, 18521/97, 18534/97, 18535/97, 18544/97, 18545/97, 18595/97, 18182/9,
18467/97, 18596/97, 18597/97, 18728/97, 18691/97, 18692/97, 18703/97, Writ
Petition (c) No. 516/97, Special Leave Petitions (C) Nos. 18593/97, 16291/97.
the
manner prescribed (Section 12A). Under the U.P.
Panchayat
Raj Rules, 194 (hereinafter referred to as the Rules) the Pradhan is elected by
the members of the Gram Sabha, i.e., all persons whose names are for the time
being included in the electoral roll of a Gram Sabha. Prior to the amendments
introduced in the Act by the U.P.Act No.9 of 1994, Section 14(1) of the Act
provided that the Pradhan could be removed by two thirds of the members of the Gaon
Sabha present and voting at a meeting specially convened fore the purpose and
of which at least 15 days previous notice has been given, By the constitution
(Seventy-third Amendment) Act, 1992 Part IX ( Articles 243 to 243O) has been
introduced in the constitution. The said Part contains provisions relating to Panchayats
at the village intermediate and district levels, In Article 243N it has been
provided that notwithstanding anything contained in the said Part 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 the said part, shall continue to be in
force until amended or repealed by a competent legislature or other competent
authority on until the expiration of one year from such commencement, whichever
is earlier., In accordance with the said requirement, the U.P. Satate
Legislature amended the Act by enacting Act 9 of 199. As a result of the
amendment introduced in the Act by Act 9 to 1994 the Gaon Sabhas have been
designated as Gram Sabhas and under Section 3 a Gram Sabha has to be
established for a village or group of villages by the State Government by
notification. The Gram Sabha consists of persons registered in the electoral
rolls relating to a village comprised within the area of a Gram Panchayat.
Under Section 11F the state Government is required to declare by notification
any area comprising a village or group of villages, having as far as
practicable, a population of one thousand, to be a Panchayat area for the
purpose of the Act.
Section
12 provides for constitution of a Gram Panchayat for every Panchayat area. The
Gram Panchayat consists of a Pradhan and nine members where the Panchayat area
is having a population of one thousand, eleven members where the Panchayat area
is having a population of more than on e thousand but not more than one
thousand but not more than two thousand, thirteen members where the Panchayat
area is having a population of more than two thousand but not more than three
thousand and fifteen members where the Panchayat area is having a population of
more than three thousand and fifteen members where the Panchayat area is having
a population of more than three thousand. The election to the office of the Pradhan
continues to be held by secret ballot by all the members of the Gram Sabha as
laid down in Section 12A and the Rules Section 14 of the Act, as amended by Act
9 of 1994, provides as follows:- ''Section 14. Removal of Pradhan or Up-Pradhan.--
(1) The Gram Panchayat may, at a meeting specially convened 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 Pradhan 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 requisite
majority at the meeting, no subsequent meeting for the removal of the same Pradhan
shall be convened within a year of the date of the previous meetings.
(4)
Subject to the provisions of this section, the procedure for the removal of a Pradhan,
including that to be followed at such meeting, shall be such as may be
prescribed.
The
appellants in the appeals and the petitioners in the special leave petitions
and writ petitions (hereinafter referred to as 'the petitioners') were duly
elected as Pradhans of Gram Sabhas. Action for their removal was initiated
before the concerned Gram Panchayat under Section 14 of the Act. Feeling
aggrieved the proposed move for their removal as Pradhan by the members of the
respective Gram Panchayats, they approached the Allahabad High Court by filing
writ petitions under Article 226 of the Constitution wherein they challenged
the validity of Section 14 of the Act. It was urged that since a Pradhan is
elected by all the members of the Gram Sabha he could be removed only if he had
lost the confidence of the members who had elected him and Section 14 of the
Act which provides for removal of a Pradhan by members of the Gram Panchayat is
unconstitutional and void since it is destructive of the democratic functioning
of the Panchayats which are part of the local administration of the village
community and runs counter to the concept of democracy which is a basic feature
of the Constitution. The said contention was, however rejected by a learned
single judge of the High Court in Sm t. Ram Beti vs, District Panchayat Raj Adhikari
(Civil Misc.Writ Petition No.14191 of 1997 decided on May 7,1997) as well as by
a Division Bench of the High Court in Bankey Lal vs. State of U.P. (Special
Appeal No 423 of 1994 decided on July 15,1997). The judgments dismissing the
writ petitions files by the petitioners. The said judgments of the High Court
are under challenge before this Court in the appeals and special leave
petitions. Some of the Pradhans who were sought to be removed under Section 14
of the Act have filed writ petitions under Article 32 of the Constitution.
In the
impugned judgment the High Court has placed reliance on the decision of this
court in Mohanlal Tripathi V. District Magistrate, Rai Bareilly & Ors.,
1992 (4) SCC 80, wherein this court was dealing with the provisions contained
in subsection (2) of Section 87-A of the U.P Musicalities Act, 1916 which
empowered the members of a Municipal Board to remove the President who was
directly elected by the electorate by moving a Motion of Non- Confidence. The
validity of the said provisions was challenged before this Court on the Ground
that it was violative of the democratic concept since it provided for removal
or recall of and elected representative by a smaller and different body than
the one that elected him.
The
said contention was, however, rejected by this Court. It was observed:-
''Democracy is a concept, a political philosophy, an ideal practised by many
nations culturally advanced and politically mature by resorting to governance
by representatives of the people elected directly or indirectly. But electing
representatives to govern is neither a 'fundamental right' nor a common right'
but a special right created by the statures, or a political right' of
privilege' and not a natural', absolute' or vested right'. Concepts familiar to
common law and equity must remain strangers to Election Law unless statutorily
embodied. Right to remove an elected representative, too, must stem out of the
statute as in the absence of a constitutional restriction it is within the power
of a legislature to enact a law for the recall of officers. Its existence or
validity can be decided on the provision of the Act and not, as a matter of
policy.''(pp.84.85) ''An elected representative is accountable to its
electorate. That is the inherent philosophy in the policy or recall. For the
President his electorate, to exercise this right, is the Board as it comprises
representatives of the same constituency from which the President is elected.
Purpose
of Section 87-A of the Act is, to remove elected representative who has lost
confidence of the body which elected hi. It may be by people themselves or they
may entrust their power through legislation to their representatives. In the
Act it is the latter. Members of the Board are elected from smaller
constituencies. They represent the entire electorate as they are
representatives of the people although smaller in body. A President who is
elected by the entire electorate when removed by such members of the Board who
are also been elected by the people is in fact removal but the electorate
itself. Such provision neither violates the spirit nor purpose or recall of an
elected representative. Rather it ensures removal by a responsible body. It
cannot be criticised either as irrational or arbitrary or violative of any
democratic norm.
(pp.87.88)
'' The Board is thus visualised as a body entrusted with responsibility, to
keep a watch on the President whether elected by it or the electorate. Any
arbitrary functioning by the President or disregard of provision of the statute
or acting contrary to the interest of the electorate could be know to the Board
only. Therefore it was not only proper but necessary to empower the Board to
take action, if necessary. (p.89) The learned counsel for the petitioners have
sought to distinguish the said decision in Mohanlal Tripathi (supra) on the
ground that the said case was decided in the context of the office of the
President of a Municipal Board who is elected by a larger body of electorate
and has no application to a case of removal of a Pradhan of a Gram Sabha who is
elected by a much smaller body of electorate.
The
learned counsel have placed reliance on the following observations of this
Court in the judgment in Mohanlal Tripathi (supra):- ''Comparison with
provisions in Panchayat Raj Act where a Pradhan is removeable by the gaon Sabha
was odious as a Gaon Sabha is a very small body as compared to a
Municipality."(p.89) These observations were made in the context of the
provisions of Section 14 of the Act, as it stood at that time, i.e.,., prior to
amendment by Act 9 of 1994, when it provided for removal of a Pradhan by the
members of the Gaon Sabha who had elected him.
The
learned counsel for the petitioners have also invited our attention to Section
11 of the Act wherein Provision is made regarding meetings and functions of
Gram Sabha and it is prescribed that every Gram Sabha shall hold two general
meetings in each year one, known as kharif meeting, to be held after harvesting
of the kharif crop and other, known as rabi meeting, to be held after
harvesting of the rabi crop. The learned counsel have pointed out that under
the first proviso to Section 11(1) a meeting of the Gram Sabha can also be
requisitioned by not less than one- fifth of the number of the members. It has
been urged that there is no difficulty in moving a motion of no-confidence in
any of the two general meetings of the Gram Sabha for that purpose. It is no
doubt true that under section 11(1) of the Act provision is made for holding of
two general meetings of the Gram Sabha in each year as well as for
requisitioning of a meeting by one-fifty of the members. But the Legislature,
in its wisdom, thought it proper that the matter of removal of a pradhan,
instead of being considered at the meeting of the Gram Sabha , should be
considered by the members of the Gram Panchayat. The considerations which
weighed with this Court for upholding the validity of sub- section (2) of
section 87-A of the U.P Musicalities Act, 1916 relating to the removal of the
President of a Municipal Board in Mohanlal Tripathi (supra) are, in our
opinion, also applicable to the removal of the Pradhan of a the Gram Sabha.
Although under Section 14 of the Act the power of removal of a pradhan is
conferred on the members of the Gram Panchayat, having been elected the members
of the Gram Sabha, represent the same electorate which has elected the Pradhan.
The removal of a Pradhan by two-thirds members of the Gram Panchayat who are
also elected representatives of the members of the Gram Sabha is, in fact,
removal by the members of the Gram SAbha through their representatives.
Just
as the Municipal Board us visualised as a body entrusted, with the
responsibility to keep a watch on the President, whether elected by it or by
the electorate, so also the Gram Panchayat is visualised as a body entrusted,
with the responsibility to keep a watch on the President, Whether elected by it
or by the electorate, also the Gram Panchayat it visualised as a body entrusted
with the responsibility to keep a watch on the Pradhan who is not elected by it
and is elected by the members of the Gram Sabha, An arbitrary functioning of a Pradhan
in disregard to the statute or his acting contrary to the interests of the
electorate could be know to the members of the Gram Panchayat only and, in the
circumstance, it is but proper that the members of the Gram Panchayat are em
powered to take action for removal of the Pradhan If necessary. It is no doubt
true that in Section 11 of the Act provision is made for holding two general meetings
of the Gram Sabha in each year and for requisitioning of a meeting of the Gram Sabha
by one-fifty of its members, But, at the same time, we cannot lose sight of the
fact that the number of members of the Gram Sabha is also fairly large, It
would range from one to more than three thousand. thousand elections to public
offices even at village level give rise to sharp polarisation of the electorate
on cast or communal basis.
The
possibility of disturbance of law and order in a meeting of the Gram Sabha
called for considering a motion for removal of the Pradhan cannot be excluded,
Moreover, there cannot also be due deliberation of a serious matter as no
confidence motion by a very large body of persons. While amending Section 14 of
the Act so as to confer the power to remove the Pradhan of a Gram Sabha on the
members of the Gram Panchayat the legislature must have taken into
consideration the prevailing social environment. Moreover, buy way of safeguard
against any arbitrary exercise of the power of removal it is necessary that the
motion must be passed b a majority of two-thirds of the members present and
voting.
For
the reasons aforementioned we are unable to hold that Section 14 of the Act, in
so far as it empowers the members of the Gram Panchayat to remove the Pradhan
of a Gram Sabha buy moving a motion of no-confidence, is unconstitutional and
void being violative of the concept of democracy or is arbitrary and
unreasonable so as to be hit vary Article 14 of the Constitution.
It was
urged by the learned counsel for the petitioners that in the event of removal
of a pradhan by a motion of mo- confidence, the Up-Pradhan takes over as Pradhan
under Section 12H of the Act and that there is no provision in the Act or the
Rules which requires that a fresh election be held to elect a new Pradhan
within a particular period. It is submitted that under Section 11A of the Act
provision is made for reservation of the offices of Pradhans for the Scheduled
Castes. the Scheduled Tribes and the backward classes and for women and that
the said policy of reservation would be frustrated if a Pradhan of a Gram Sabha
belonging to a reserved category is removed and another pradhan belonging to
the said category is not elected before the expiry of the term fixed for the Pradhan
belonging to the said category. it has also been urged that in the even of the
removal of a pradhan belonging to a reserved category, the Up-Pradhan who takes
over as Pradhan, may be a person who does not belong to that reserved category
and that the removal of the Pradhan in such a case would result in the object
underlying the policy of reservation contained in Section 11A would defeated by
the members of the Gram Panchayat. Though these submissions do not touch upon
the question of validity of Section 14 of the Act, but they raise issues which
need consideration by the authorities at the proper level. Shri Yogeshwar
Prasad, the learned senior counsel appearing for the State of Uttar Pradesh, states that attention of the
authorities would be invited to these aspects so that appropriate action can betaken
soon.
Another
grievance that has been raised by the learned counsel for the petitioners in
some of these cases is that in the Writ Petitions that were filed before the
High Court, in addition to the challenge to the validity of Section 14 of the
Act, the petitioners had also raised other questions assailing the validity of
the provisions relating to the consideration of the motion of no-confidence. It
has been submitted that the High Court did not go into the said questions and
the writ petitions have been dismissed on the basis of the earlier judgment
upholding the validity of Section 14 of the Act. We find that in many of the
impugned judgments the High Court has only considered the question of validity
of Section 14 of the Act and the writ petitions have been dismissed on the view
that the said section is valid. On the basis of the record it cannot be
ascertained whether any other question was raised in the writ petitions but it
was not considered by the High Court. In the circumstances, we consider it
appropriate, in the interest of justice, to direct that, if any of the
petitioners whose writ petition was dismissed by the High Court files a writ
petition challenging his removal as Pradhan on the basis of a motion of removal
passed under Section 14 of the Act on the ground that such action was taken
without complying with the provisions of Section 14 or the relevant Rules in
that regard, the High Court may, if it is satisfied that such a contention had
been raised in the earlier writ petition but was not considered by the High
Court while disposing the earlier writ petition, may permit the said petitioner
to raise such a plea in the subsequent writ petition and consider the same on
merits.
The
appeals, special leave petitions and writ petitions are accordingly dismissed.
But in the circumstances there will be no order as to costs.
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