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IN THE HIGH COURT OF ALLAHABAD
S. H. A. RAZA
RAMASHRAYA - Appellant
Versus
DISTRICT PANCHAYAT RAJ OFFICER, GORAKHPUR - Respondents
C. M. W. P. 27562 Of 1997
Decided On : 09/01/1997
UP PANCHAYAT RAJ ACT - SECTION 14 - REMOVAL OF PRADHAN - VOTE OF NO CONFIDENCE - VALIDITY - ELECTION OF PRADHAN BY REGISTERED VOTERS - REMOVAL BY ELECTED MEMBERS - DEMOCRACY - CONCEPT - LEGISLATIVE POLICY - JUDICIAL REVIEW - SCOPE - U.P. PANCHAYAT RAJ RULES, 1995 - RULE 33-B - NOTICE OF NO CONFIDENCE MOTION - SERVICE - MANNER - DIRECTORY - SUBSTANTIAL COMPLIANCE - SUFFICIENCY - KNOWLEDGE OF MEETING - ATTENDANCE - WAIVER OF OBJECTIONS - EQUITY JURISDICTION - COURT'S DISCRETION - INTERFERENCE - JUSTIFICATION - GENUINENESS OF SIGNATURES ON NOTICE - VERIFICATION BY PRESCRIBED AUTHORITY - DISCRETION - ENQUIRY - NECESSITY - NATURAL JUSTICE - HEARING OF SIGNATORIES AND SUPPORTING MEMBERS - MANDATORY - WRIT PETITION - MAINTAINABILITY - NON-IMPLEADMENT OF SIGNATORIES AND SUPPORTING MEMBERS - FATAL DEFECT.
Fact of the Case:
Numerous writ petitions were filed challenging the vires of Section 14 of the U.P. Panchayat Raj Act, 1947 and Rule 33-B of the U.P. Panchayat Raj Rules, 1995, which allowed for the removal of the Pradhan of a Gram Panchayat by a vote of no confidence passed by the elected members of the Panchayat. The petitioners argued that this provision violated the principles of democracy and the concept of direct election of the Pradhan by the registered voters.
Finding of the Court:
The Court upheld the validity of Section 14 of the U.P. Panchayat Raj Act and Rule 33-B of the U.P. Panchayat Raj Rules. It held that the removal of the Pradhan by a vote of no confidence passed by the elected members of the Panchayat did not violate the principles of democracy or the concept of direct election of the Pradhan by the registered voters. The Court reasoned that the election of representatives and their removal are matters of legislative policy and cannot be subjected to judicial review. The Court also held that the requirement of a 15-day notice for the no-confidence motion was directory and not mandatory, and that substantial compliance with the notice requirement was sufficient. The Court further held that the prescribed authority was not required to verify the genuineness of the signatures on the notice of no-confidence motion or to hold an enquiry into the matter. The Court also held that the failure to implead the signatories of the notice and the members who voted in support of the no-confidence motion as parties to the writ petition was a fatal defect.
Issues: 1. Whether the removal of the Pradhan of a Gram Panchayat by a vote of no confidence passed by the elected members of the Panchayat violates the principles of democracy and the concept of direct election of the Pradhan by the registered voters? 2. Whether the requirement of a 15-day notice for the no-confidence motion is mandatory or directory? 3. Whether the prescribed authority is required to verify the genuineness of the signatures on the notice of no-confidence motion or to hold an enquiry into the matter? 4. Whether the failure to implead the signatories of the notice and the members who voted in support of the no-confidence motion as parties to the writ petition is a fatal defect?
Ratio Decidendi: 1. The removal of the Pradhan of a Gram Panchayat by a vote of no confidence passed by the elected members of the Panchayat does not violate the principles of democracy or the concept of direct election of the Pradhan by the registered voters. The election of representatives and their removal are matters of legislative policy and cannot be subjected to judicial review. 2. The requirement of a 15-day notice for the no-confidence motion is directory and not mandatory. Substantial compliance with the notice requirement is sufficient. 3. The prescribed authority is not required to verify the genuineness of the signatures on the notice of no-confidence motion or to hold an enquiry into the matter. 4. The failure to implead the signatories of the notice and the members who voted in support of the no-confidence motion as parties to the writ petition is a fatal defect.
Final Decision: The writ petitions were dismissed.
( 1 ) SINCE in all the abovementioned writ petitions, the question, facts and law involved are common, thus, the same are being disposed of by a common judgment. However, writ petition No. 27562 of 1997 shall be the leading case.
( 2 ) ACCORDING to an Old fable a "jin" even if killed, takes another form and shape and lives for ever. One would have thought that after the decision in Haji Ghafoor Bux v. State of U. P. , (1991) 1 UPLBEC 505, writ petition No. 6091 of 1990 and writ petition No. 2832 of 1990, decided on 19-2-1991 and similar writ petitions by the Division Bench of this Court, sitting at Lucknow, in which I was a member, finally set at rest the controversy, that the elected members of the Municipal Board may pass a vote of non confidence against the President of the Board, who has been directly elected by the registered voters of the city and in that regard the vague concept of democracy that a person directly elected by the electorates could only be dislodged by the electorates, not by the members of the Board, would have no relevance. But the same argument which did not find favour with the Court has been raked up again, in spite of the following observations :"in the backdrop of the law discussed in the Statute that a motion of no confidence would be considered by the members of the Board even in respect of the President elected directly by the electorate. In these matters, a provision contained, in the Statute will be binding and legally hold good. "
( 3 ) AGAINST the said judgment passed in writ petition No. 2832 of 1990 and similar other writ petitions, decided on 19-2-1991, a special leave petition bearing No. 4165 of 1991 was filed by Mohan Lal Tripathi. The leave was granted, from which arose civil appeal No. 2425 of 1 992, which was dismissed on 15-5-1992.
( 4 ) SPEAKING on behalf of the Bench Honble Mr. Justice R. M. Sahai, in Mohan Lal Tripathi v. District Magistrate, AIR 1 993 SC 2042 observed (Para 2) :"democracy is a concept, a political thrust 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 election representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes, or a political right or privilege and not a natural, absolute or vested right. Concept familiar to common law and equity must remain stranger to Election law unless statutorily recognised. 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 provisions of the Act and not , as a matter of policy. The efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. "
( 5 ) IN Para 4 it was further observed :"a President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit for purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. In fact construing the provision as suggested would render it unreasonable. A President of a Municipal Board of more than one Lakh Population would be removable by the Board comprising of elected representatives where as a President of smaller Board would virtually get immunity from removal. It would be contrary to scheme of the Act and against public interest. "
( 6 ) IN para 6 of the report, it was further held:"whether a President should be elected by the peopl
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