Smt. Geeta Vs State
of U.P. & Ors.
J U D G M E N T
is granted in all these matters. This batch of seven appeals raises common
questions of law which have been dealt with in this judgment.
in each case are separately noted: C.A.No.......................@ (SLP No.
February 2006, Smt. Shanta Devi was elected Pramukh in the election of the
Kshettra Panchayat of Jahanaganj, district Azamgarh.
2007, an amendment was made to the Uttar Pradesh Kshettra Panchayat and Zila Panchayat
Act, 1961 (hereinafter called the 1961 Act) through Amendment Act no. 44 of
2007 (hereinafter called the Amendment Act) to make the State Act compatible
with Part IX of which contains constitutional provisions relating to
view of some serious allegations against Smt. Shanta Devi, a no confidence motion
was passed against her. Smt. Shanta Devi challenged before the High Court the
constitutional validity of the U.P. Panchayat Laws (Amendment) Ordinance, 2007 dated
20.08.2007 (which later on became the U.P. Panchayat Laws (Amendment) Act,
2007, i.e. the Amendment Act), by filing a writ petition which was dismissed on
6.02.2009. Against which she filed a special leave petition before this Court. The
special leave petition was also dismissed by judgment dated 4.05.2010 in the
case titled Bhanumati etc. etc. v. State of Uttar Pradesh, through its Principal
Secretary & Ors., 2010 (7) SCALE 398, upholding the constitutional validity
of the Amendment Act..
the District Magistrate restrained Smt. Shanta Devi from functioning as Pramukh
in light of the no-confidence motion passed against her and the order of the
High Court dated 6.02.2009. Hence, the post of Pramukh fell vacant. The District
Magistrate, in exercise of the power conferred on him under section 9(2) of the
Amendment Act and the Rules there under, nominated the appellant for the post
by order dated 2.07.2010. The sixth respondent, holding the post of Up-Pramukh,
aggrieved by the aforesaid order of the District Magistrate, filed a writ
petition in the High Court of Allahabad (CMWP No. 40262/2010).
High Court quashed the order of the District Magistrate by way of the impugned
common judgment dated 26.08.2010 (for CMWP Nos. 40262/2010 with 44538/2010),
and allowed the Up-Pramukh to continue as Pramukh. Aggrieved by the same, the
appellant moved this Court under Article 136 of the Constitution. C.A.No................................@
SLP No. 26447/2010
22.10.2005, the appellant was elected as a member of the Block Development Committee
from Kshettra Panchayat Majhwan, Mirzapur from a general seat. The seventh
respondent was elected as the Senior Up- Pramukh. A no-confidence motion was
passed against the Pramukh as a result of which the post of Pramukh fell
vacant. The District Magistrate appointed the seventh respondent to discharge the
functions of Pramukh.
appellant filed a writ petition (CMWP No. 44538/2010) challenging the appointment
of the seventh respondent to the post of Pramukh. It was dismissed by the High Court
by way of impugned common judgment dated 26.08.2010 (for CMWP Nos. 40262/2010
with 44538/2010), holding that under the provisions of law, the senior
Up-Pramukh was the only authorized person to act as Pramukh in absence of the duly
elected Pramukh. Challenging that judgment, the present special leave petition was
filed before this Court under Article 136 of the Constitution. Civil Appeal
No...........@(SLP No. 26201/2010)
27.02.2006, Smt. Pushpa was appointed as Pramukh of the Kshettra Panchayat, Motigarpur,
district Sultanpur. The fourth respondent was appointed as Up-Pramukh. A no-confidence
motion was brought against Smt. Pushpa on 4.01.2008. Smt. Pushpa challenged the
Ordinance dated 20.08.2007 by filing a writ petition in the Allahabad High Court,
which was dismissed on 6.02.2009. Smt. Pushpa filed an SLP before this court,
which was dismissed by a judgment dated 4.05.2010 titled - Bhanumati case
the District Magistrate dismissed Smt. Pushpa from the post of Pramukh on
20.07.2010 and under the provisions of section 9(2) of the Amendment Act, nominated
the appellant for the post, by order dated 21.07.2010.
the fourth respondent filed a writ petition (No. 7272(MB)/2010) in the
Allahabad High Court. The High Court, by way of impugned order dated
26.08.2010, quashed the order of the District Magistrate and restrained the appellant
from interfering with the functioning of the respondent. Hence, the present
appeal before this court. Civil Appeal No..................@SLP No. 27470/2010
Sonu Devi was elected as Pramukh in the election of Kshettra Panchayat, Akhand Nagar,
Sultanpur district on 27.02.2006. The sixth respondent was appointed as Up-Pramukh.
A no- confidence motion was brought against Smt. Sonu Devi on 17.12.2007. Smt. Sonu
Devi challenged the Ordinance dated 20.08.2007 by filing a writ petition in the
Allahabad High Court, which was dismissed on 6.02.2009. Smt. Sonu Devi then
filed an SLP before this Court, which was dismissed by a judgment dated 4.05.2010
rendered in Bhanumati case (supra).
the District Magistrate dismissed Smt. Sonu Devi from the post of Pramukh on
19.07.2010 and nominated the appellant for the said post. Aggrieved, the sixth respondent
filed a writ petition (No. 7626(M/B)/2010) in the Allahabad High Court. The High
Court passed an interim order relying on the judgment of the Allahabad High
Court dated 26.08.2010 in writ petition No. 7272/2010. The High Court stayed
the operation of the order of the District Magistrate dated 19.07.2010 and
restrained the appellant from looking after the work of Pramukh and directed
the sixth respondent to discharge the functions of Pramukh till further orders of
the court or till the Pramukh was elected. Hence, the present appeal before
this court.Civil Appeal No........@SLP No. 27491/2010
February 2006, Smt. Sushila Devi (third respondent) was appointed Pramukh in
the election of Kshettra Panchayat, Sidhauli, district Sitapur. The fourth
respondent was appointed as Up-Pramukh. A no confidence motion was brought
against Smt. Sushila Devi in 2008. She challenged the Amendment Ordinance dated
20.08.2007 by filing a writ petition before the High Court which was dismissed
on 6.02.2009. She filed an SLP before this Court and the same was dismissed by
judgment dated 4.05.2010 in Bhanumati case (supra).
the District Magistrate dismissed Smt. Sushila Devi from the post of Pramukh on
29.07.2010 and nominated the appellant for the post on 30.07.2010. Aggrieved,
the fourth respondent filed a writ petition (No. 7604 (M/B)/2010) before the Allahabad
High Court. The High Court passed the impugned interim order dated 26.08.2010
relying on the judgment in CMWP No. 7272/2010 and directed the fourth respondent
to function as Pramukh and restrained the appellant from interfering in the functioning
of the fourth respondent. Hence, present appeal. Civil Appeal No ........@ SLP
No....../2010 (CC No.17260)
appellant was elected a member of the Kshettra Panchayat, Bhaluani district- Deoria.
A no confidence motion was passed against the Pramukh of Kshettra Panchayat, Bhaluani
district- Deoria on 6.8.2010 as a result of which the said post fell vacant. On
11.8.2010, the District Magistrate nominated the seventh respondent to the
vacant post of Block Pramukh.
eighth respondent challenged the said order by filing a writ petition (No.
50547/2010) in the High Court. The High Court followed the order passed in CMWP
No. 40262/2010 and passed the impugned interim order staying the judgment dated
11.8.2010. Hence, the appellant (who was not a party before the High Court)
filed the present appeal before this court. Civil Appeal No ..@ SLP 27404/2010
Bindu Devi was elected Pramukh of Kshettra Panchayat- Freedabad, district
Jaunpur in February 2006. A no confidence motion was passed against her. She challenged
the amending Ordinance dated 20.8.2010 by filing a writ petition before the
High Court, and the same was dismissed on 6.2.2009. She further challenged it
by way of an SLP before this Court, which was also dismissed by judgment dated 4.05.2010
rendered in the Bhanumati case (supra).
the District Magistrate dismissed Smt. Bindu Devi from the post of Pramukh on
19.7.2010 and nominated the appellant for the said post. Aggrieved, the seventh
respondent filed a writ petition (No. 44066/2010) in the Allahabad High Court.
The High Court, vide the impugned judgment dated 28.8.2010, quashed the order
of the District Magistrate after relying on the judgment of the Allahabad High
Court in CMWP No. 40262/2010.
the present appeal.
common questions of law arising in these appeals relate to an interpretation of
section 7(3) vis-`- vis sections 9(2) and 9A of the Amendment Act.
precise question is whether after the Amendment to the 1961 Act, the right and
authority of the senior Up-Pramukh to discharge the duties of the Pramukh would
survive or whether the District Magistrate can nominate an elected member to be
the Pramukh when the post of Pramukh falls vacant and till the new Pramukh is
elected or resumes office.
argument raised by the respondent is that the Up-Pramukh would automatically
become the Pramukh when the post of Pramukh falls vacant, as was the position
before the Amendment Act was enforced. It was also urged that the same is
justified under section 7(3) as amended. Section 7(3) reads as follows: "7.
Pramukh and Up Pramukh-
anything to the contrary contained in any other provision of this Act, the
persons who have been elected to the office of the Up-Pramukh before the
commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 2007 shall
continue to hold the office as 12 such till the expiry of their term as if the
said Act were not enacted".
respondents argued that the words "continue to hold office as such" entitled
the Up-Pramukh to discharge all the functions and duties of senior Up- Pramukh as
were prevalent before the Amendment Act was introduced. Prior to amendment, rights
of Senior Up-Pramukh included the right to function and discharge the duties of
Pramukh when the office of Pramukh was vacant. This contention of the respondents
was accepted by the High Court, which is why the appellants filed the present batch
of appeals before this Court.
appellants however put forward their case under sections 9(2) and 9A of the Amendment
Act. The relevant provisions of 9(2) and 9A read as follows: "9. Term of
Pramukh and Up-Pramukh-
b. Where the office of
the Pramukh is vacant, the District Magistrate may, by order, make such arrangement
as he thinks fit for the discharge of the functions of the Pramukh, till the
Pramukh is elected. 9A. Temporary arrangement in certain cases- When the
Pramukh is unable to discharge his functions owing to absence, illness or any other
cause, the District Magistrate may, by order, make such arrangement, as he
thinks 13 fit, for the discharge of the functions of the Pramukh until the date
on which the Pramukh resumes his duties.
appellants claimed that as per the abovementioned provisions, it was for the
District Magistrate to appoint a Pramukh when the post of the Pramukh fell
vacant, and the Up-Pramukh could not automatically discharge the functions as Pramukh
when the post of Pramukh fell vacant, after the enforcement of the Amendment
are the rival contentions of the parties.
Court finds that the Amendment Act was introduced in 2007 to make the State
laws regulating the Panchayats compatible with the provisions of Part IX of the
Constitution. The relevant portion of the statement of Objects and Reasons in
the amending Act of 2007 reads: "Statement of Objects and Reasons The
United Provinces Panchayat Raj Act, 1947 (U.P. Act No. 26 of 1947) provided for
the offices of Pradhan and Up-Pradhan in every Gram Panchayat and the Uttar
Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (U.P. Act No.
33 of 1961) provided for the offices of Pramukh, Up- Pramukh (Senior Up-Pramukh
and Junior Up-Pramukh) in every Kshettra Panchayat and Adhyaksha and Up- Adhyaksha
in every Zila Panchayat. It was decided 14 to amend the said Acts to omit the
provisions of the offices in respect of which there is no provision in the
Constitution namely the offices of Up-Pradhan, Up-Pramukh (Senior Up-Pramukh
and Junior Up-Pramukh) and Up-Adhyaksha."
is relevant to mention here that the constitutional validity of the Amendment Act
has been upheld by this court in the Bhanumati case (supra).
the Amendment Act was introduced, the 1961 Act provided that in case the post
of Pramukh fell vacant, the Up-Pramukh would discharge the functions of the
Pramukh till a new Pramukh was appointed. However, the Amendment Act abolished
the said post of Up-Pramukh from the Kshettra Panchayats and provided that in
cases where the post of Pramukh fell vacant, the District Magistrate was to
make such arrangements as he thought fit. However, as per section 7(3), the
Up-Pramukh would still continue to hold office as such till the end of their
7(3) begins with a non-obstante clause, i.e. "notwithstanding anything to
the contrary contained in any other provision of this Act." The said provision
raises two questions which need to be answered:
a. Whether the
non-obstante clause would prevail over the rest of the provisions of the
Amendment Act, and to what extent?
b. How is the expression
"shall continue to hold office as such" to be construed?
of non-obstante clauses has come up for consideration before this Court in a large
number of decisions.
Aswini Kumar Ghose & Anr. v. Arabinda Bose & Anr, reported in AIR 1952
SC 369, a Constitution Bench of this Court speaking through Chief Justice
Patanjali Sastri observed that the non-obstante clause can reasonably be read as
overriding "anything contained" in any relevant existing law which is
inconsistent with the new enactment. But His Lordship made it clear that the
enacting part of a statute must, where it is clear, be taken to control the
non-obstante clause where both cannot be read harmoniously (See page 377).
in another Constitution Bench judgment of this Court in The Dominion of India
& Anr. v. Shrinbai A. Irani and another, reported in AIR 1954 SC 596, Bhagwati
J. observed at para 10 as follows: "...Although ordinarily there should be
a close approximation between the non-obstante clause and the operative part of
the section, the non-obstante clause need not necessarily and always be co- extensive
with the operative part, so as to have the effect of cutting down the clear
terms of an enactment. If the words of the enactment are clear and are capable
of only one interpretation on a plain and grammatical construction of the words
thereof a non-obstante clause cannot cut down the construction and restrict the
scope of its operation. In such cases the non-obstante clause has to be read as
clarifying the whole position and must be understood to have been incorporated
in the enactment by the legislature by way of abundant caution and not by way of
limiting the ambit and scope of the operative part of the enactment." (See
p. 599-600) (Emphasis added)
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram reported in (1986) 4 SCC 447,
this Court stated that "the expression `notwithstanding anything contained
in this Act ... is more often than not appended to a section in the beginning
with a view to give the enacting part of the section, in case of conflict, an
overriding effect over the provision of the Act or the contract mentioned in the
non-obstante clause. It is equivalent to saying that in spite of the provision
of the Act or any other Act mentioned in the non-obstante clause... the
enactment following it will have its full operation..." (See pages 477- 478).
this Court in A.G. Varadarajulu and another v. State of Tamil Nadu and others, reported
in (1998) 4 SCC 231, observed that it is well-settled that while dealing with a
non-obstante clause under which the legislature wants to give overriding effect
to a section, the court must try to find out the extent to which the legislature
had intended to give one provision overriding effect over another provision.
The Bench referred to the principle in the Constitution Bench decision in Madhav
Rao Scindia v. Union of India and another, [(1971) 1 SCC 85] wherein this court
held that the non-obstante clause was a very potent clause intended to exclude every
consideration arising from other provisions of the same statute or other
statute but "for that reason alone we must determine the scope" of
that provision strictly. When the section containing the said clause does not refer
to any particular provisions, which it intends to override, but refers to the
provisions of the statute generally, it is not permissible to hold that it
excludes the whole Act and stands alone by itself (See p. 236). (underlined for
Court also held in the case of ICICI Bank Ltd. v. SIDCO Leathers Ltd. &
Ors, reported in (2006) 10 SCC 452, that the wide amplitude of a non-obstante clause
must be kept confined to the legislative policy and it can be given effect to,
to the extent the Parliament intended and not beyond the same and that in
construing the provisions of a non-obstante clause, it was necessary to
determine the purpose and object for which it was enacted (See page 465- 6).
Central Bank of India v. State of Kerala & Ors, reported in (2009) 4 SCC
94, this Court reiterated that while interpreting a non-obstante clause the court
is required to find out the extent to which the legislature intended to give it
an overriding effect.
view of such consistent opinion expressed by this Court on the purport and
meaning of non-obstante clause we are of the view that the operation of a non-obstante
clause in Section 7(3) of the amended Act shall be subject to the intent of the
legislature, and must be interpreted in line with the scheme of the Act and the
purpose for which it was enacted.
learned counsel for the respondent referred to two decisions of this Court in
order to contend that non-obstante clause in Section 7(3) completely overrides all
the other provisions of the Act. Those decisions are: (a) Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447, (b) Union of India & another
v. G.M. Kokil and others, 1984 (Supp) SCC 196. However, none of these decisions
supports the contention of the respondents.
the High Court in the impugned judgment held that the non-obstante clause in section
7(3) has to be read as totally obliterating other provisions of the Amendment
Act and that the Up-Pramukh who were elected prior to the Amendment Act would continue
to hold office as if the Amendment Act in its entirety had not been enacted.
in view of several decisions of this Court discussed above, we hold that the
non-obstante cause in section 7(3) will have a limited operation to the extent
of allowing the Up-Pramukh to "continue to hold office as such... as if
the said Act were not enacted."
our view, the term `continue to hold office as such' would mean that despite
the abolition of the post of Up-Pramukh in the amending Act, those who were
elected as Up-Pramukh prior to such amendment will just continue as such i.e.
as Up-Pramukh till his term expires. The expression `as such' has been added by
way of caution and to emphasize that the continuance of Up-Pramukh is limited
to just holding the office of Up-Pramukh.
contrary argument of the respondent and which weighed with the High Court is
that Up-Pramukhs will continue to exercise all the powers and functions under Sections
82 and 83 of the pre-existing provisions of the Act despite the express
deletion of those provisions by the Amendment Act. This cannot be accepted.
that argument is accepted, in that case, the provisions which have been
expressly deleted by way of amendment, like pre-existing provisions of Sections
82 and 83, will be revived. Sections 9(2) and 9A, brought in by way of
amendment and thereby empowering the District Magistrate to make arrangements when
the office of the Pramukh is vacant [Section 9(2)] or when the Pramukh is
unable to discharge functions [Section 9A] will be unworkable. Therefore, for a
harmonious interpretation of the different provisions of the amending Act, the non-obstante
clause in Section 7(3) must be given a restricted meaning so as not be in
conflict with other provisions of the amending Act.
expressions `as if the said Act were not enacted' in Section 7(3) of the
amending Act apply only where by way of general amendment of the Uttar Pradesh
Kshetra Panchayat and Zilla Adhiniyam 1961, the words Up-Pramukh have been
therefore, affirm the orders passed by the District Magistrates in exercise of their
power under Section 9(2) and 9A. We cannot agree with the reasoning to the
contrary given in the High Court judgment.
light of the above reasoning, the appeals are allowed, the judgments of the
High Court in all these cases are set aside.
will be, however, no order as to costs.
(ASOK KUMAR GANGULY)