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2023 Supreme(All) 1845
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
RAJESH BINDAL, CJ., MANOJ KUMAR GUPTA, JAYANT BANERJI, JJ.
Shyam Narayan Ram and Others - Petitioners
Versus
State of U.P. and Others - Respondents
Writ - C No. 16538 of 2018 With Writ - C Nos. 25174, 28394 of 2022
Decided On : 20-01-2023
For the Petitioner:Mr. Shashi Nandan, Senior Advocate with Mr. Udayan Nandan.
For the Respondents:Mr. M.C. Chaturvedi, Additional Advocate General with Mr. Vineet Pandey, Chief Standing Counsel and Mr. Sudhanshu Srivastava, Additional Chief Standing Counsel.
Headnote:(A) U.P. (Kshetra Panchayats and Zila Panchayats) Adhiniyam, 1961 - Sections 6, 15, and relevant Rules - Elected members of a Kshettra Panchayat not ceasing to hold office for failing to subscribe to the oath of office; they are entitled to participate in no confidence meetings. The matter referred concerns the validity of signatories of a no confidence motion in absence of taking the oath of office. (Para 43)
Facts of the case:
The case arose from a challenge to a no confidence motion passed against an elected Pramukh, alleging that many signatories had not taken the oath of office, thus questioning their eligibility to participate. (Paras 2-5)
Findings of Court:
The court reaffirmed that elected members retain their status regardless of oath subscription but cannot participate in regular meetings unless oath is taken, whereas in no confidence motions they can participate. (Para 43)
Issues: The key issues addressed were the eligibility of elected members who had not taken the oath to sign and vote in no confidence motions and their status as elected members. (Paras 17-41)
Ratio Decidendi: The court clarified that failure to take an oath does not disqualify elected members from signing or voting in no confidence motions, asserting legislative intent and operational functionality of democratic processes in Kshettra Panchayats. (Para 44)
Result: Reference answered, permitting participation in no confidence motions even without oath subscription.
| Table of Content |
|---|
| 1. no confidence motion validity requires oath subscription. (Para 1 , 2 , 4 , 5) |
| 2. arguments on participation and notice for no confidence. (Para 7 , 8) |
| 3. panchayat structure is governed by constitutional provisions. (Para 9 , 10 , 11 , 12 , 13) |
| 4. definition of elected members under the act. (Para 17 , 18 , 19 , 20) |
| 5. elected members' status despite failure to subscribe oath. (Para 22 , 32 , 36 , 43) |
| 6. conclusion on the reference answering the issues. (Para 44 , 45) |
JUDGMENT :
1. The present Reference to Larger Bench emanates from an order dated 7.12.2018 passed by a Division Bench in Shyam Narayan Ram Vs. State of U.P. and others , 2019 (2) ADJ 21 having its genesis in the divided opinion of their Lordships of Supreme Court in Ram Pal Singh Vs. State of U.P. and others , (2018) 6 SCC 692 . The question referred to the Larger Bench is-
“whether the elected members of the Kshettra Panchayat, who have not taken or subscribed to the oath of office as member before taking their seats in the house are entitled to sign the notice of intention to bring a 'no confidence motion' against the Pramukh and to participate and vote in the meeting held for the consideration of such a no confidence motion.”
INTRODUCTION
2. The background facts in which the aforesaid issue had arisen before the Division Bench was that the petitioner therein was an elected Pramukh of a Kshettra Panchayat, which had a total strength of 120 members. A motion of no confidence was moved against him by 81 members. It was successfully passed in the meeting of Kshettra Panchayat held for the purpose. In the meeting, 79 members participated, out of which, 74 voted in favour of the motion. The no confidence motion passed against the petitioner was subject matter of challenge in the writ petition before this Court on the ground that out of total elected members, only 69 had subscribed to oath of office and the remaining 51 had not taken oath. Large number of those members (13 members), who had not taken oath, were signatory to the notice of intention to bring no confidence motion and had also participated in the meeting in which the no confidence motion was passed. It was contended that the elected members who had not subscribed to oath, were not entitled to sign the notice and/or participate in the meeting. If these elected members are excluded, the no confidence motion was not signed by more than half of the total number of elected members. Thus, the no-confidence motion was not validly passed.
3. Before we proceed further, it would be useful to advert to the facts of Ram Pal Singh's case (supra) and the divergence of opinion noted by the Division Bench of this Court in Shyam Narayan Ram's case (supra) resulting in Reference to Larger Bench.
FACTS OF THE CASE OF RAM PAL SINGH
4. Kshettra Panchayat, Jasrana, District Firozabad comprised of 63 elected members. The first meeting of the Kshettra Panchayat took place on 18.03.2016, in which the petitioner therein - Ram Pal Singh was elected as Pramukh. He subscribed to oath of office in the said meeting. He thereafter administered oath of office to the elected members except 17 who were not present. Contrary to it, the version of the private respondents (elected members) was that all 63 elected members took oath of office. In due course of time, a no confidence motion was moved against Ram Pal Singh by 39 elected members, including 13 members, who had allegedly not taken oath of office. The no confidence motion was challenged on the ground that 13 elected members, who had not subscribed to oath, were not entitled to sign the notice of intention to bring no confidence motion and if they are excluded, the motion was signed by only 26 elected members, which is less than half of the total number of 63 elected members and would thus fail.
5. The judgement in Ram Pal Singh's case (supra) is by Hon. Madan B. Lokur, J and Hon. Deepak Gupta, J. Their Lordships of the Supreme Court were unanimous in holding that great degree
