SEEMA SARKAR versus EXECUTIVE OFFICER AND ORS.

[2019] 8 S.C.R. 151

SEEMA SARKAR

EXECUTIVE OFFICER AND ORS.

(Civil Appeal No.4547 of 2019)

MAY 01, 2019

[A.M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Panchayat: Inclusion or exclusion of the Member of the Houseof Parliament (MP) representing the Union Territory of Andamanand Nicobar Islands, who is also an ex-officio member of thePanchayat Samiti, for reckoning the quorum of special meetingregarding motion of no confidence against the Pramukh of the LittleAndaman Panchayat Samiti – Held: The quorum of the specialmeeting ought to be of not less than two-thirds of the “total numberof membership of the Panchayat Samiti” which includes all themembers of the Panchayat Samiti - be it directly elected orex-officio members, as the case may be – conjoint reading ofs.117, r.9(3)(b) and also r.21 of the Rules shows that they, in noway, exclude any member of the Panchayat Samiti much less themembers referred to in s.107(3) of the Regulation – Not even bynecessary implication – If the legislature had intended to excludethe latter category from the process of ‘No Confidence Motion’, itwould have expressly limited it to only the elected members of thePanchayat Samiti, as is done at the stage of election of thechairperson – Whereas, the provision makes it incumbent that notless than two-thirds of the “total number” of members of thePanchayat Samiti must participate and vote – This is the legislativeintent which cannot be whittled down by some overstretchedinterpretative process including by relying on the common lawprinciple that only the body of persons, who had elected the Pramukhor Up-Pramukh, alone can initiate such process – Thus, theMember of the House of Parliament (MP) being the member of theSamiti is entitled to participate in the special meeting to consider a‘No Confidence Motion’ and also vote on that motion – Andamanand Nicobar Islands (Panchayats) Regulation, 1994 – ss.107,117 – Andaman and Nicobar Islands (Panchayats Administration)Rules 1997 – rr. 9, 21 – Interpretation of statutes – Constitution ofIndia – Art.243C.

152SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. The composition of intermediate level Panchayatcan be culled out from Article 243C. Clause (1) makes it amplyclear that the legislature of State is free to make law withrespect to the composition of Panchayat subject to the provi-Bsions of Part-IX of the Constitution. Clause (2) of the Article243C makes it clear that all the seats in the Panchayat shall befilled up by persons chosen by direct election from the territorialconstituencies in the Panchayat area. Clause (3) of the Article isan enabling clause permitting the legislature of State to make alaw to provide for the representation of other persons who areCnot directly elected from the territorial constituencies in thePanchayat area. Clause (4) deals with the right to vote in themeetings of the chairperson of Panchayat or other members ofthe Panchayat whether or not chosen by direct election from theterritorial constituencies in the Panchayat area. Clause (5) dealsDwith the manner in which the chairperson of Panchayat is electedat the village level, intermediate level or district level, as thecase may be. [Para 12] [167-E-H; 168-A]2. The chairperson of Panchayat at intermediate level isrequired to be elected by, and from amongst, the electedEmembers thereof. There is marked distinction between themember of the Panchayat chosen by direct election from theterritorial constituencies in the Panchayat area referred to inclause (2) via-a-vis other persons referred to in sub-clauses (a)to (d) of clause (3) of Article 243C, who may also represent asper the law made by the State Legislature. Thus understood, thereFis little doubt that the election of chairperson is by the formercategory of the members of the Panchayat, namely, directly electedfrom the territorial constituencies in the Panchayat area and onefrom amongst them is then elected as chairperson. There is noexpress provision in the Constitution dealing with the removalGof chairperson of the Panchayat Samiti. However, law on thesaid subject is already in place in the form of the Regulation asalso the Rules concerning Panchayat administration. TheConstitution itself enables the State Legislature to make lawon the subject of composition of Panchayats, including regarding

election of the Pramukh, subject to the provisions contained inPart-IX of the Constitution. [Paras 13, 15] [168-B-D, G-H;169-A-B]]

3. The Regulation as well as the Rules specifically providedfor the subject of motion of no confidence, how such motion shouldbe moved and the manner in which it is required to be carriedforward. Section 106 of the Regulation speaks about theconstitution of the Panchayat Samiti. The composition of thePanchayat Samiti has been predicated in Section 107. Thisprovision is in four parts. The first clause [(clause (1)] is ageneral provision envisaging that every Panchayat Samiti shallconsist of such number of seats as the administrator may bynotification determine. Clause (2) postulates that the seats inthe Panchayat Samiti as determined shall be filled up by personschosen by direct election from the territorial constituencies inthe manner prescribed. Clause (3) refers to the persons who shallalso be represented in the Panchayat Samiti other than thepersons chosen by direct election referred to in clause (2). Thisclause (3) is again split in two parts: the first referring to theproportion of the representation given to the representatives ofthe Gram Panchayat in the Panchayat Samiti; and the secondreferring to the member of the House of Parliamentrepresenting the Union Territory. As regards the latter, it hasbeen explicitly provided that such member shall have the rightto vote in the meeting of the Panchayat Samiti. The fourth clauseis not significant for dealing with the issue on hand.[Para 16] [169-B-F]

4. plain reading of Section 112 of the Regulation statesthat the election of the Pramukh and Up-Pramukh is “by” theelected members of the Panchayat Samiti and the one who iselected as such, is “from amongst them”. Even the expressionused in Article 243C(5)(b) is “elected by, and from amongst, theelected members thereof”. This dispensation is in consonancewith the constitutional scheme of democratic decentralization andself-Government on the principle of grass-root democracy. In thatsense, the other members of the Panchayat Samiti (other thanthose chosen by direct election from the territorialconstituencies in the Panchayat area) referred to in Article

A243C(3) have no say in the matter of electing the Pramukh orUp-Pramukh of the Panchayat Samiti, though they may generallyhave the right to vote in the meeting of the Panchayat Samiti onother matters. [Para 18] [171-D-F]

5. Sections 107 and 112 are facsimile of Article 243C andBalso within the framework provided therein. Although the othermember(s) who have been given representation in the PanchayatSamiti have no say in the election of the Pramukh or Up-Pramukhof the Panchayat Samiti, it does not follow that they are noteligible to remain present and vote in the special meetingregarding the motion of no confidence against the Pramukh orCUp-Pramukh of the Panchayat Samiti. The Constitution iscompletely silent on the subject of removal of the Pramukh orthe Up-Pramukh of the Panchayat Samiti, including regarding themanner in which ‘Motion of No Confidence’ against them couldbe moved and carried forward. [Para 19] [171-F-H; 172-A]

D6. Section 117 is explicit as to who can move the motionand the manner in which the same is required to be carriedforward to its logical end. As per this provision, the othermembers having representation on the Panchayat Samiti, whoare not directly elected from the territorial constituencies in theEPanchayat area have no right to vote during the election of thePramukh or Up-Pramukh of the Panchayat Samiti, it does notfollow that they are not or cease to be members of the PanchayatSamiti. Whereas, in terms of Section 107 which specifies thecomposition of the Panchayat Samiti, they are plainly recognizedas members of the Panchayat Samiti during the relevant period.FThose persons may not be directly elected from the territorialconstituencies in the Panchayat area but nevertheless, arepeople’s representatives, being elected as Pradhans of theconcerned Gram Panchayat within the area of the PanchayatSamiti, or as the Member of the House of ParliamentGrepresenting the Union Territory. It would have been differentmatter if Section 117 had constricted the right to vote on amotion of no confidence only to the members directly electedfrom the territorial constituencies in the Gram Panchayat area,referred to in Section 107(2) of the Regulation. To put it

differently, merely because the law permits only the directlyelected members to vote during the election of Pramukh, thatipso facto would not follow that the other members (other thanthe elected members) of the Panchayat Samiti are ineligible tovote on ‘No Confidence Motion’. [Para 20] [172--G-H;173-A-C]

7. Besides the explicit provisions in the Regulation, eventhe statutory Rules make it unstintingly intelligible that the other(ex-officio) member(s) of the Panchayat Samiti can also remainpresent and participate in the special meeting to consider amotion of no confidence against the Pramukh. The stated Rulesare framed in exercise of the power to make rules in terms ofSection 202. Clause (ak) of Section 202(2) enables theAdministrator to frame rules in respect of the notice for movinga motion of no confidence against the Pramukh or Up-Pramukhas per Section 117(1) of the Regulation. Further, clause (al)permits framing of rules regarding the time and place ofmeetings of the Panchayat Samitis and the procedure for suchmeetings under sub-section (1) of Section 121; and clause (am)deals with the manner in which member of Panchayat Samitimay move resolution(s) and put question(s) to the Pramukh andUp-Pramukh under sub-section (2) of Section 121. The statutoryrules framed under Section 202 expressly provide for thequorum of the meetings of the Panchayat Samiti. Rule 21specifically deals with the motion of no confidence against thePramukh or Up-Pramukh. The provisions in the Regulation andthe Rules distinctly deal with the manner in which motion of‘No Confidence’ should be moved and carried forward to itslogical end. In that sense, the central issue is about the purportof the mechanism provided in the Regulation and the Rules onthe subject of ‘No Confidence Motion’. From the legislativescheme it is noticed that as and when the special meeting toconsider the ‘No Confidence Motion’ proceeds, Section 117(2)mandates that the motion may be treated as carried out only if amajority of not less than two-thirds of the “total number” ofmembers of the Panchayat Samiti vote in favour of removal of thePramukh or Up-Pramukh, as the case may be. similar positionis restated in Rule 21 of the Rules. [Paras 21-23] [173-D-F,174-F; 175-G-H; 176-A]

A8. Rule 9(3)(b) stipulates that two-thirds of the “totalmembership” of Panchayat Samiti shall be sufficient quorumfor special meeting of the Panchayat Samiti in reference toSection 117(1) of the Regulation to move motion of noconfidence against the Pramukh or Up-Pramukh. Thus, thequorum specified is not less than two-thirds of the “total mem-Bbership”. The emphasis is on the expression “total membership”,which includes the other (ex-officio) member(s) referred to inSection 107(3) of the Regulation having representation on thePanchayat Samiti and not limited to members chosen by directelection from territorial constituencies in the Panchayat area asCreferred to in Section 107(2) of the Regulation. The governingprovisions predicate that the special meeting must be attendedby not less than two-thirds of the “total membership” of thePanchayat Samiti and the ‘No Confidence Motion’ must becarried out by not less than two-thirds of the “total number” ofmembers of the Panchayat Samiti present and voting. This is theDtwin requirement. If so, the ‘No Confidence Motion’ is requiredto be considered in the special meeting of the Panchayat Samitias whole and not limited to members directly elected from theterritorial constituencies in the Panchayat area. Thus understood,the total membership of the Little Andaman Samiti being six,Etwo-thirds thereof would be four. If the members present at thescheduled place and time of the meeting were only three,obviously the Executive Officer was justified in dissolving themeeting for want of quorum. [Paras 24, 25] [176-B-D, F-H]

9. Who can vote on the ‘No Confidence Motion’.F

9.1 The fact that Article 243C(5)(b) postulates that thechairperson of the Panchayat Samiti at the intermediate level shallbe elected by, and from amongst, the elected members thereof,it does not follow that the process of removal of such chairper-son should be limited to voting by the elected members. The lawGon the removal of the Pramukh or Up-Pramukh by means of ‘NoConfidence Motion’ has been enacted by the State Legislature.That permits “all” the members of the Panchayat Samiti toparticipate in the discussion and vote on the motion of noconfidence. conjoint reading of Section 117, Rule 9(3)(b) andalso Rule 21 of the Rules shows that they, in no way, exclude anyH

member of the Panchayat Samiti much less the members referredto in Section 107(3) of the Regulation. Not even by necessaryimplication. Taking any other view would result in re-writing ofthe provisions to read as - the motion of no confidence must becarried out by majority of not less than two-thirds of the totalnumber of “directly elected” members of the Panchayat Samitimentioned in Section 107(2), present and voting. The StateLegislature was conscious of the marked distinction between thecategory of members constituting the Panchayat Samiti. Section107(2) refers to category of persons chosen by direct electionfrom the territorial constituencies, in contradistinction to the othercategory of persons mentioned in Section 107(3), theconstituent of the Panchayat Samiti. If the legislature had intendedto exclude the latter category from the process of ‘NoConfidence Motion’, it would have expressly limited it to onlythe elected members [former category ascribable to Section107(2)] of the Panchayat Samiti, as is done at the stage ofelection of the chairperson. [Para 26] [177-C-G]

9.2 In the instant case, neither Article 243C nor theRegulation made by the State Legislature or the Rules framedthereunder expressly exclude the other members of the PanchayatSamiti referred to in Section 107(3) of the Regulation fromexercising their vote on ‘Motion of No Confidence’. It is wellestablished position that the right to elect, and including the rightto be elected and continue on the elected post, is statutoryright. Further, the mode and manner of election to any post couldbe different from the scheme for removal of person from thatpost, as restated in paragraph 10 of the same reported decision.The provisions in the Regulation under consideration in no wayexclude the MP, muchless expressly, from participating in thespecial meeting and vote on the ‘No Confidence Motion’. As amatter of fact, the provision in the Regulation underconsideration is an inclusive one and explicitly permits all (total)members to participate in the special meeting and vote on the‘No Confidence Motion’ against the Pramukh or Up-Pramukh,as the case may be. The category of persons referred to inSection 107(3) of the Regulation are also, in one sense, electedrepresentatives (though not by direct election from territorialconstituencies in the Panchayat area) and, therefore, their

Aparticipation and voting on the ‘No Confidence Motion’ has beenexpressly permitted by the Regulation and the Rules. Thatcannot be undermined on the basis of the common law principle,so long as the governing statutory provisions are in the field.[Paras 28, 29, 32] [178-H; 179-A-B, F; 181-B-C]

BMohan Lal Tripathi v. District Magistrate, Rai Bareillyand Ors.(1992) 4 SCC 80 : [1992] 3 SCR 338– relied on.

Ramesh Mehta v. Sanwal Chand Singhvi and Ors.(2004) 5 SCC 409 : [2004] 1 Suppl. SCR 418 ;Stateof Karnataka and Ors. v. Lakshmappa KallappaBalaganur and Ors. (2001) 3 KLJ 498 ; PratapChandra Mehta v. State Bar Council of MadhyaPradesh and Ors. (2011) 9 SCC 573 : [2011] 11 SCR965 – distinguished.

Justice K.S. Puttaswamy and Anr. v. Union of India andOrs. (2017) 10 SCC 1 : [2017] 10 SCR 569 ;Bhanumatiand Ors. v. State of Uttar Pradesh through its PrincipalSecretary and Ors. (2010) 12 SCC 1 :[2010] 7 SCR585 ;Usha Bharti v. State of Uttar Pradesh and Ors.(2014) 7 SCC 663 : [2014] 4 SCR 1076 ; DelhiTransport Corporation v. D.T.C. Mazdoor Congress andOrs. (1991) 1 Suppl. SCC 600 : [1990] 1 Suppl. SCR142;Vipulbhai M. Chaudhary v. Gujarat CooperativeMilk Marketing Federation Limited and Ors.(2015) 8SCC 1 : [2015] 3 SCR 997 – referred to.

Case Law Reference

[2004] 1 Suppl. SCR 418 distinguished(2001) 3 KLJ 498distinguished[2017] 10 SCR 569 referred to[2010] 7 SCR 585 referred to[2014] 4 SCR 1076 referred to[1990] 1 Suppl. SCR 142 referred to[2015] 3 SCR 997 referred to[2011] 11 SCR 965 distinguished[1992] 3 SCR 338 relied on

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4547of 2019

From the Judgment and Order dated 13.12.2017 of the High Courtof Calcutta, Bench at Port Blair in Misc. Application No. 26 of 2017

Nachiketa Joshi, Anil Seth, Mohd. Asad Khan, Aayush Anand,Ms. Suchita Joshi, Advs. for the Appellant.

Aman Lekhi, ASG, Ms. Shraddha Deshmukh, Arvind K. Sharjma,R. Chandrachud, Karan Sharma, Nitin Thukral, Ms. Mrinal KantiMondal, K.V. Jagdishvaran, Ms. G. Indira, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1.Leave granted.

2.The conundrum in this appeal is about the inclusion orexclusion of the Member of the House of Parliament (for short “MP”)representing the Union Territory of Andaman and Nicobar Islands, whois also an ex-officio member of the Panchayat Samiti, for reckoning thequorum of special meeting regarding motion of no confidence againstthe Pramukh of the Little Andaman Panchayat Samiti (for short the“said Samiti”) and also whether he/she can exercise his/her vote on the‘No Confidence Motion’ within the meaning of the provisions of Andamanand Nicobar Islands (Panchayats) Regulation, 1994 (for short“Regulation”) and the Andaman and Nicobar Islands (PanchayatsAdministration Rules) 1997 (for short “the Rules”).

3.A ‘No Confidence Motion’ dated 19[th] December, 2007 wasmoved by respondent No.6 against the appellant (Pramukh of the saidSamiti). The said Samiti consisted of six members i.e. five directly electedmembers from territorial constituencies in the Panchayat area and oneMP representing the Union Territory. meeting for discussion of the‘No Confidence Motion’ was scheduled on 2[nd] January, 2017 at 3.00PM in the Conference Hall of the Panchayat Samiti. That notice wasduly served to all the members. But only 3 elected members remainedpresent at the scheduled time (3.00 PM) and place of the meeting. Asthe quorum was not complete, the members waited upto one hour i.e.upto 4.00 PM. Eventually, the meeting came to be dissolved by the

Executive Officer for want of quorum of four members, in view ofSection 107 of the Regulation. The Executive Officer issuedcommunication in that behalf on 2[nd] July, 2017 which reads thus:

“No.3-131/PS/HB/2016-17/535

OFFICE OF THE PANCHAYAT SAMITY

HUT BAY, LITTLE ANDAMAN

**************

Hut Bay dated the 2[nd] Jan. 2017

The Deputy Commissioner,

South Andaman, Port Blair.

Sub: Report on No Confidence Motion against Smt. Sima Sarkar,Pramukh, Panchayat Samiti, Little Andaman-Reg.

Sir,

The re-scheduled special meeting on No Confidence Motionwas held on 02/01/2017 at 3:00 pm in the Conference hall ofPanchayat Samiti. The notice was served to 5 elected membersand Member of Parliament, Andaman and NicobarAdministration. After serving notice to Member of Parliament asper Panchayat Regulation 1994 under chapter X at serial no.107the members of the Panchayat Samiti, Hut Bay become six and2/3[rd] majority is 4.

The meeting was fixed at 3:00 pm and waited upto 1 hour i.e.,upto 4:00 pm but only 3 members were attended but to fulfillQuorum 4 member is must hence for want of Quorum meetingdissolved.

The extract of proceeding of the meeting is enclosed herewithfor your kind reference.

Encl: A/A

Yours Faithfully

Executive OfficerPanchayat Samiti Little Andaman”

4. The respondent No.6 assailed the said decision by way of WritPetition No.14 of 2017 before the High Court at Calcutta, CivilAppellate Jurisdiction, Circuit Bench at Port Blair. Respondent No.6asserted that the MP had no right to participate in the special meetingregarding ‘No Confidence Motion’ nor was he entitled to vote thereat.Respondent No.6 prayed for the following reliefs in the said writpetition:

“In the fact and circumstance mentioned herein above, yourpetitioner respectfully prays that YOUR LORDSHIP may begraciously pleased to issue:-

A. writ in the nature of certiorari quashing the proceedings dated02.01.2017 wherein the Executive Officer, Panchayat Samiti,Little Andaman dated held that quorum required is fourmembers and as such no confidence motion not be proceeded.

B. writ in the Mandamus directing the respondent no.1 to call fora meeting of moving the no confidence against the privaterespondent no.1 and further direct the Up-Pramukh i.e. therespondent no.4 to preside over the meeting to complete theprocess without casting to vote in the said meeting.

C. writ in the nature of the Certiorari directing the respondentauthorities to transmit the case records before this Hon’ble Courtso that after pursuing the same conscionable justice may berendered your petitioner and directing the respondent no.1 toconsider the case of the letter of the petitioner dated 19.12.2016and 02.01.2017.

D. Rule NISI in terms of prayer A&B above.

E. Cost of the incidents to this writ application.

F. Any other order/orders of further order/orders as your Lordshipmay deem fit and proper.”

5.The writ petition was heard by the learned Single Judge of theHigh Court who negatived the stand of respondent No.6 and thusdismissed the writ petition. The learned Single Judge held that thequorum for special meeting to consider the motion of no confidenceagainst the Pramukh, being two-thirds of the “total membership”,minimum four members of the Panchayat Samiti ought to have remained

Apresent. Presence of only three members at the meeting, therefore, didnot constitute quorum. Further, the MP being the member of the saidSamiti was entitled to participate in the special meeting to consider noconfidence motion and also vote on that motion. As result, the writpetition came to be rejected.B6.Respondent No.6 carried the matter before the Division Bench

B6.Respondent No.6 carried the matter before the Division Benchby way of writ appeal, being M.A. No.26 of 2017. The Division Benchreversed both the conclusions reached by the learned Single Judge andinstead, opined that the MP representing the Union Territory was noteligible to participate in the special meeting and vote on ‘NoConfidence Motion’ for removal of the Pramukh or Up-Pramukh of theCPanchayat Samiti. For arriving at that conclusion, the Division Benchadverted to Sections 107(3), 112(1), 115 and 117 of the Regulation andRules 9(3) and 21 of the Rules. Additionally, the Division Bench placedreliance on the decisions in Ramesh Mehta Vs. Sanwal Chand Singhviand Ors.[1] and State of Karnataka and Ors. Vs. Lakshmappa

DKallappa Balaganur and Ors.[2] The Division Bench also adverted toArticles 243(d), 243B and 243C, especially clauses (3), (4) and (5) ofArticle 243C of the Constitution of India and opined as follows:

“….Panchayats have been included in the Constitution of the Indiaby the Constitution (73[rd] amendment) Act, 1992. The purpose ofEamendment appears to be that it was felt that in every State thereshould be panchayats at the village, intermediate and districtlevels as part of self governance. Article 243 (d) of theConstitution defines Panchayat to mean an institution by whatevername called of self government constituted under Article 243 Bfor the rural areas. Article 243 deals with composition ofFPanchayat. 243 (3) permits the legislation of the State by law toprovides for representation. Article 243 (C) (4) provides that theChairperson of the Panchayat and other members of the Panchayatwhether or not chosen by direct election from territorialconstituencies in the Panchayat area shall have the right to voteGin the meetings of the panchayats. The Chairperson of Panchayatat the intermediate level or district level under Article 243 (C) (5)(b) shall be elected by and from amongst the elected membersthereof. Article 243 (C) (4) is similar to Regulation 107 (3) (b)which provides that the member of the House of Parliament

1 (2004) 5 SCC 409H2(2001) 3 KLJ 498

representing the Union Territory shall also be represented in thePanchayat Samiti with right to vote in the meetings of thePanchayat Samiti. It has to be seen from the Regulations whetheror not the Regulations intend to treat the Member of Parliamentat par with the elected members of the Panchayat to participatein the proceedings initiated for removal of the Pramukh of thePanchayat.

Although the Regulations and the Rules do not appear tohave made any distinction between “person” and “member” whichappear to have been used at places interchangeably but regardmust be had to the very object for which member of Parliamentis included in the Panchayat Samiti with right to vote. Thepresence of the Member of Parliament is not required for thepurpose of electing the Pramukh and Up-Pramukh as theRegulations clearly use the phrase “by and from amongst electedmembers of the Panchayat Samiti” and the Member of Parliamentis not treated at par with the elected members for the purpose ofelection of such office bearers.In view of the law laid down in the aforesaid decisions oninterpretation on similar rules and/or regulations, we are of theopinion that the Member of Parliament cannot be treated at parwith an elected member of the Panchayat Samity for the purposeof removal of Pramukh and Up-pramukh. In the relevant Rulesand Regulations in relation to motion of no confidence whereverthe word ‘member’ is used, it would only mean elected membersand not nominated members even though such nominated membermay have right to vote in other proceedings. All members whohave selected Pramukh and Up-pramukh are all elected membersof the Samiti unlike the nominated members and in mattersconcerning motion of no confidence in our view it is only thosemembers who have been directly elected shall have the right toremove Pramukh and Up-Pramukh as the said office bearers havebeen elected by and from amongst the elected members ofPanchayat Samiti. There is clear distinction between the twoclasses of members and they cannot be treated at par in mattersrelating to no confidence motion to remove Pramukh orUp-Pramukh.”

A7.Having thus held, the Division Bench proceeded to allow theappeal filed by respondent No.6 and consequently granted relief asprayed for in the writ petition - of setting aside the decision of theExecutive Officer dated 2[nd] January, 2017. The High Court also directedthe Executive Officer, Panchayat Samiti, Little Andaman to proceed inaccordance with law in light of the observations made in the saidBjudgment.

8.Feeling aggrieved, the appellant has filed this appeal by specialleave. The appellant moved the Court for urgent consideration of thematter on 22[nd] December, 2017 before the Vacation Bench of this Courtwhen notice came to be issued. However, during the pendency of thisCappeal, the Deputy Commissioner, acting upon the directions issued bythe Division Bench of the High Court not only proceeded to remove theappellant from the post of Pramukh of the Little Andaman PanchayatSamiti on 26[th] December, 2017 but also intended to proceed to fill up thevacancy arising from the removal of the appellant, by scheduling freshDelection on 19[th] January, 2018. The appellant, therefore, urgently movedthis Court for appropriate orders on 15[th] January, 2018, when thefollowing order came to be passed:

“Learned counsel who have entered appearance on behalf of therespondents, pray for week’s time to file the counter affidavit.

Learned counsel appearing for the petitioner does not intend tofile the rejoinder affidavit.

As pure question of law emerges, let the matter be listed on29th January, 2018. Any election held in the meantime, shallbe subject to the result of this special leave petition.”

(emphasis supplied)

9.Resultantly, the meeting scheduled on 19[th] January, 2018,proceeded to elect respondent No.6 as Pramukh of Little AndamanPanchayat Samiti. As the matter also involved applicability of Articles243C and 243R of the Constitution of India, this Court on 31[st] January,G2018, requested the learned Attorney General for India to assist theCourt. Pursuant to the said request, the learned Attorney General forIndia appeared in the proceedings and is now represented by Mr. AmanLekhi, Additional Solicitor General of India.

10.We have heard Mr. Purushaindra Kaurav, learned seniorcounsel appearing for the appellant, Mr. Aman Lekhi, learned AdditionalSolicitor General of India, Ms. G. Indira, learned counsel appearing forrespondent No.1 and Mr. R. Chandrachud, learned counsel appearingfor respondent No.6.

11. By the Constitution 73[rd] Amendment Act, 1992, which cameinto force from 24[th] April, 1993, Part-IX of the Constitution of Indiacame to be amended. It envisaged detailed mechanism for democraticdecentralization of the self-Government on the principle of grass-rootdemocracy. It may be useful to advert to the Statement of Objects andReasons necessitating such amendment, which reads thus:

“THE CONSTITUTION (SEVENTY-THIRD AMENDMENT)

ACT, 1992

Statement of Objects and Reasons appended to the Constitution(Seventy-second Amendment) Bill, 1991 which was enacted asthe Constitution (Seventy-third Amendment) Act, 1992

Though the Panchayati Raj institutions have been in existencefor long time, it has been observed that these institutions havenot been able to acquire the status and dignity of viable andresponsive people’s bodies due to number of reasons includingabsence of regular elections, prolonged supersessions, insufficientrepresentation of weaker sections like Scheduled Casts, ScheduledTribes and women, inadequate devolution of powers and lack offinancial resources.

2. Article 40 of the Constitution which enshrines one of thedirective principles of State Policy lays down that the State shalltake steps to organize Village Panchayats and endow them withsuch powers and authority as may be necessary to enable themto function as units of self-government. In the light of theexperience in the last forty years and in view of the shortcomingswhich have been observed, it is considered that there is animperative need to enshrine in the Constitution certain basic andessential features of Panchayati Raj institutions to impart certainty,continuity and strength to them.”

By virtue of this amendment, Panchayat has been definedto mean an institution (by whatever name called) of self-

AGovernment constituted under Article 243B for the rural areas.Article 243B reads thus:

“243B. Constitution of Panchayats.-(1) There shall beconstituted in every State, Panchayats at the village, intermediateand district levels in accordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at theintermediate level may not be constituted in State having apopulation not exceeding twenty lakhs.”

It may be apposite to reproduce Article 243C which deals withcomposition of Panchayats. The same reads thus:

“243C. Composition of Panchayats.-(1) Subject to theprovisions of this Part, the Legislature of State may, by law,make provisions with respect to the composition of Panchayats:

Provided that the ratio between the population of the territorialDarea of Panchayat at any level and the number of seats in suchPanchayat to be filled by election shall, so far as practicable, bethe same throughout the State.

(2) All the seats in Panchayat shall be filled by persons chosenby direct election from territorial constituencies in the Panchayatarea and, for this purpose, each Panchayat area shall be dividedinto territorial constituencies in such manner that the ratio betweenthe population of each constituency and the number of seats allottedto it shall, so far as practicable, be the same throughout thePanchayat area.

(3) The Legislature of State may, by law, provide for theFrepresentation-

(a) of the Chairpersons of the Panchayats at the village level, inthe Panchayats at the intermediate level or, in the case of Statenot having Panchayats at the intermediate level, in the Panchayatsat the district level;

(b) of the Chairpersons of the Panchayats at the intermediatelevel, in the Panchayats at the district level;

(c) of the members of the House of the People and the membersof the Legislative Assembly of the State representing constituencies

which comprise wholly or partly Panchayat area at level otherthan the village level, in such Panchayat;

(d) of the members of the Council of States and the members ofthe Legislative Council of the State, where they are registered aselectors within-

(i) Panchayat area at the intermediate level, in Panchayat at theintermediate level;

(ii) Panchayat area at the district level, in Panchayat at thedistrict level.

(4) The Chairperson of Panchayat and other members of aPanchayat whether or not chosen by direct election from territorialconstituencies in the Panchayat area shall have the right to votein the meetings of the Panchayats.

(5) The Chairperson of-

(a) Panchayat at the village level shall be elected in such manneras the Legislature of State may, by law, provide; and

(b) Panchayat at the intermediate level or district level shall beelected by, and from amongst, the elected members thereof.”

12.In the present case, we are concerned with an intermediatelevel Panchayat. The composition of such Panchayat can be culled outfrom Article 243C. Clause (1) makes it amply clear that the legislatureof State is free to make law with respect to the composition ofPanchayat subject to the provisions of Part-IX of the Constitution. Inthe present case, we are not so much concerned about the compositionof Panchayat, except to notice that clause (2) of the said Article makesit clear that all the seats in the Panchayat shall be filled up by personschosen by direct election from the territorial constituencies in thePanchayat area. Clause (3) of the Article is an enabling clausepermitting the legislature of State to make law to provide for therepresentation of other persons who are not directly elected from theterritorial constituencies in the Panchayat area. Clause (4) deals withthe right to vote in the meetings of the chairperson of Panchayat orother members of the Panchayat whether or not chosen by directelection from the territorial constituencies in the Panchayat area. Clause(5) deals with the manner in which the chairperson of Panchayat is

Aelected at the village level, intermediate level or district level, as thecase may be.

13.The chairperson of Panchayat at intermediate level isrequired to be elected by, and from amongst, the elected members thereof.On conjoint reading of the provisions referred to above, it is crystalBclear that there is marked distinction between the member of thePanchayat chosen by direct election from the territorial constituenciesin the Panchayat area referred to in clause (2) vis-a-vis other personsreferred to in sub-clauses (a) to (d) of clause (3) of Article 243C, whomay also represent as per the law made by the State Legislature. Thusunderstood, there is little doubt that the election of chairperson is by theCformer category of the members of the Panchayat, namely, directlyelected from the territorial constituencies in the Panchayat area and onefrom amongst them is then elected as chairperson. Notably, there is noexpress provision in the Constitution dealing with the removal of achairperson of the Panchayat Samiti.

14.Taking cue from the absence of such provision in theConstitution, it was argued by the learned ASG that it being case ofconstitutional silence by interpretative process, the Court must hold thatthe MP, not being directly elected from the territorial constituencies inthe Panchayat area and only representative in the Panchayat SamitiEby virtue of law made in terms of Article 243C(3), is neither entitled toparticipate in special meeting concerning ‘No Confidence Motion’nor eligible to vote thereat. For, only the body of members directly electedfrom the territorial constituencies in the Panchayat area which had electedthe Chairperson/Pramukh, would alone be competent to vote on ‘NoConfidence Motion’. The concomitant is that the Member of ParliamentF(MP), though member of the Panchayat Samiti, is not competent toparticipate in the special meeting and vote on ‘No ConfidenceMotion’.

15.This argument is not wholly accurate. In our opinion, thatapproach may become necessary only if the legislature of the State alsoGhad chosen to remain silent by not enacting any law on the subject ofremoval of the Pramukh or Up-Pramukh of the Panchayat Samiti.Indisputably, however, law on the said subject is already in place in theform of the Regulation as also the Rules concerning Panchayatadministration. The Constitution itself enables the State Legislature to

make law on the subject of composition of Panchayats, includingregarding election of the Pramukh, subject to the provisions contained inPart-IX of the Constitution. The law, as made in the form of theRegulation, is not the subject matter of challenge before us either on theground of being in excess of legislative competence or transcending thesphere of matters referred to in Part-IX of the Constitution.

16.Concededly, the Regulation as well as the Rules specificallyprovided for the subject of motion of no confidence, how such motionshould be moved and the manner in which it is required to be carriedforward. Section 106 of the Regulation speaks about the constitution ofthe Panchayat Samiti. The composition of the Panchayat Samiti hasbeen predicated in Section 107. This provision is in four parts. The firstclause [(clause (1)] is general provision envisaging that every PanchayatSamiti shall consist of such number of seats as the administrator may bynotification determine. Clause (2) postulates that the seats in thePanchayat Samiti as determined shall be filled up by persons chosen bydirect election from the territorial constituencies in the manner prescribed.Clause (3) refers to the persons who shall also be represented in thePanchayat Samiti other than the persons chosen by direct electionreferred to in clause (2). This clause (3) is again split in two parts: thefirst referring to the proportion of the representation given to therepresentatives of the Gram Panchayat in the Panchayat Samiti; andthe second referring to the member of the House of Parliamentrepresenting the Union Territory. As regards the latter, it has beenexplicitly provided that such member shall have the right to vote in themeeting of the Panchayat Samiti. The fourth clause is not significant fordealing with the issue on hand. Section 107 of the Regulation reads thus:

“107. (1) Every Panchayat Samiti shall consist of such numberof seats as the Administrator may by notification determine.

(2) The seats in the Panchayat Samiti shall be filled by personchosen by direct election from the Territorial Constituencies insuch manner that the ratio between the population of eachconstituency and the number of seats allotted to it shall so far aspracticable be the same throughout the Panchayat Samiti area.

(3) The following persons shall also be represented in thePanchayat Samiti, namely:-

(a) proportion of the Pradhans of the Gram Panchayat in thePanchayat Samiti to be determined by order of theAdministrator and by rotation for such period as may beprescribed: Provided that while nominating the Pradhans byrotation the Administrator shall ensure that as far as possibleall the Pradhans are given the opportunity or being representedin the Panchayat Samiti atleast once during its duration: and

(b) the member of the House of Parliament representingthe Union Territory.

Who shall have the right to vote in the meeting of thePanchayat Samiti.

(4) The provisions of sub-sections (5),(6),(7) and (8) of section 11shall so far as may be apply to the Panchayat Samiti as they applyto Gram Panchayat subject to the modification that for the words‘Gram Panchayat’ wherever they occur, the words ‘PanchayatSamiti’ had been substituted.”

(emphasis supplied)

17.The other relevant provision in the Regulation is Section 112,which deals with election of Pramukh and Up-Pramukh. The same readsthus:

“112. (1) On the constitution of Panchayat Samiti for the firsttime under this Regulation or on the expiry of the term of aPanchayat Samiti or on its reconstitution, meeting shall be calledon the date fixed by the Deputy Commissioner for the election ofthe Pramukh and the Up-Pramukh by and from amongst theelected members of the Panchayat Samiti.

(2) The Deputy Commissioner shall preside at such meeting butnot have the right to vote.

(3) No business other than the election of the Pramukh andUp-Pramukh shall be transacted at such meeting.

(4) In case of equality of votes, the result of the election shall bedecided by lots drawn in the presence of the Deputy Commissionerin such manner as he may determine.

(5) Subject to any general or special order of the Administrator,the Deputy Commissioner shall reserve.

(a) the number of offices of Pramukhs in the Panchayat Samitisfor the Scheduled Tribes which shall bear as nearly as may be,the same proportion to the total number of such offices in thePanchayat Simitis as the population of the Scheduled Tribes inthe area of the Union Territory to which this Regulation appliesbears to the total population of such area;

(b) not less than one-third of the total number of offices ofPramukh in the Panchayat Samitis for women;

Provided that the offices reserved under this sub-section shall beallotted by the Election Commission by rotation different PanchayatSamitis in such manner as may be prescribed.”

18.Even this provision seems to be in conformity with the letterand spirit of Article 243C. On plain reading of this provision, it isnoticed that the election of the Pramukh and Up-Pramukh is “by” theelected members of the Panchayat Samiti and the one who is elected assuch, is “from amongst them”. Even the expression used in Article243C(5)(b) is “elected by, and from amongst, the elected membersthereof”. This dispensation is in consonance with the constitutional schemeof democratic decentralization and self-Government on the principle ofgrass-root democracy. In that sense, the other members of the PanchayatSamiti (other than those chosen by direct election from the territorialconstituencies in the Panchayat area) referred to in Article 243C(3)have no say in the matter of electing the Pramukh or Up-Pramukh ofthe Panchayat Samiti, though they may generally have the right to votein the meeting of the Panchayat Samiti on other matters.19.Sections 107 and 112 are facsimile of Article 243C and alsowithin the framework provided therein. Although the other member(s)who have been given representation in the Panchayat Samiti have nosay in the election of the Pramukh or Up-Pramukh of the PanchayatSamiti, it does not follow that they are not eligible to remain present andvote in the special meeting regarding the motion of no confidence againstthe Pramukh or Up-Pramukh of the Panchayat Samiti. Asaforementioned, the Constitution is completely silent on the subject of

Aremoval of the Pramukh or the Up-Pramukh of the Panchayat Samiti,including regarding the manner in which ‘Motion of No Confidence’against them could be moved and carried forward. That subject hasbeen articulated in the form of Section 117 of the Regulation, whichreads thus:

B“117 (1) motion of no confidence may be moved by any memberof Panchayat Samiti against the Pramukh or the Upa-Pramukhafter such notice thereof as may be prescribed.

(2) If the motion is carried by majority of not less than twothirds of the total number of members of the PanchayatCSamiti, the Pramukh or Upa-pramukh, as the case may be shallcease to hold office after period of three days from the date onwhich the motion is carried unless he has resigned earlier.

(3) Notwithstanding anything contained in this Regulation, thePramukh or Upa-Pramukh shall not preside over meeting inDwhich motion of no confidence is discuss against him but heshall have the right to speak or otherwise take part in theproceedings of such meeting.”

(emphasis supplied)

20.Thus, an unambiguous provision has been made in theERegulation regarding the ‘No Confidence Motion’ against the Pramukhor Up-Pramukh of the Panchayat Samiti. The validity of the saidprovision is not the subject matter of this appeal. As result, we do notwish to dilate on the argument which may indirectly, if not directly,question the validity of the provision. Suffice is to observe that we areFnot dealing with case where the Regulation made by the Statelegislature is also silent on the subject of motion of no confidence orremoval of Pramukh or Up-Pramukh of the Panchayat Samiti. Theprovision is explicit as to who can move the motion and the manner inwhich the same is required to be carried forward to its logical end. Asper this provision, the other members having representation on theGPanchayat Samiti, who are not directly elected from the territorialconstituencies in the Panchayat area have no right to vote during theelection of the Pramukh or Up-Pramukh of the Panchayat Samiti, itdoes not follow that they are not or cease to be members of the PanchayatSamiti. Whereas, in terms of Section 107 which specifies thecomposition of the Panchayat Samiti, they are plainly recognized asH

members of the Panchayat Samiti during the relevant period. Thosepersons may not be directly elected from the territorial constituencies inthe Panchayat area but nevertheless, are people’s representatives, beingelected as Pradhans of the concerned Gram Panchayat within the areaof the Panchayat Samiti, or as the Member of the House of Parliamentrepresenting the Union Territory. It would have been different matterif Section 117 had constricted the right to vote on motion of noconfidence only to the members directly elected from the territorialconstituencies in the Gram Panchayat area, referred to in Section 107(2)of the Regulation. To put it differently, merely because the law permitsonly the directly elected members to vote during the election of Pramukh,that ipso facto would not follow that the other members (other than theelected members) of the Panchayat Samiti are ineligible to vote on a‘No Confidence Motion’.21.Besides the explicit provisions in the Regulation, even thestatutory Rules make it unstintingly intelligible that the other (ex-officio)member(s) of the Panchayat Samiti can also remain present andparticipate in the special meeting to consider motion of no confidenceagainst the Pramukh. The stated Rules are framed in exercise of thepower to make rules in terms of Section 202. Clause (ak) of Section 202(2) enables the Administrator to frame rules in respect of the notice formoving motion of no confidence against the Pramukh or Up-Pramukhas per Section 117(1) of the Regulation. Further, clause (al) permitsframing of rules regarding the time and place of meetings of thePanchayat Samitis and the procedure for such meetings undersub-section (1) of Section 121; and clause (am) deals with the manner inwhich member of Panchayat Samiti may move resolution(s) and putquestion(s) to the Pramukh and Up-Pramukh under sub-section (2) ofSection 121. The statutory rules framed under Section 202 expresslyprovide for the quorum of the meetings of the Panchayat Samiti. Rule 9as applicable to Panchayat Samiti reads thus:

“9. Quorum.- The following shall be the quorum required formeetings 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 membershipof Panchayat Samiti shall be sufficient quorum for an ordinarymeeting of Panchayat Samiti-,

A(b) Not less than two-thirds of the total membership isnecessary for special meeting called for the purpose undersub-section (1) of section 117 of the Regulation to move motionof no confidence against the Pramukh and Up-Pramukh. However,to carry the motion under sub-section (2) of section 117, majorityof not less than two-thirds of the membership of the PanchayatBSamiti present and voting is necessary.

xxxxxxxxxxxxxxx”

(emphasis supplied)

It will be useful to advert to Rule 10, which reads thus:

“10. Adjournment of meeting for want of quorum. -(1) If,within one hour from the time appointed for holding meeting ofa Panchayat quorum is not present, the meeting may be adjournedand may be held on another date to be fixed by the Chairpersonor the Vice-Chairperson of the Presiding member as the casemay be. The members shall be informed of the date, place andtime of the adjourned meeting by fresh three day’s notice inForm-2. No quorum shall be necessary for such adjourned meeting.No business other than that included in the list of business fortransaction at the original meeting shall be brought before anadjourned meeting.

(2). In determining the quorum, fraction of one half and above becounted one, and less than half shall be ignored.”

22.Rule 21 specifically deals with the motion of no confidenceagainst the Pramukh or Up-Pramukh. The same reads thus:

“21. Pramukh and Up-Pramukh: (1) motion of no confidenceagainst the Pramukh or the Up-Pramukh may be moved by anymember of Panchayat Samiti, after giving 7 days notice. Thenotice shall be in Form 4. The notice shall be addressed to thePramukh and shall be delivered to him and in his absence to theUp-Pramukh or in the absence of both, to the Executive Officer.The Pramukh or in his absence the Up-Pramukh or in the absenceof both, the Executive Officer shall call special meeting of thePanchayat Samiti within 15 days from the date of moving thenotice 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 copy of the no confidence motionmoved by the member.

(2) The Pramukh or the Up-Pramukh shall not preside over themeeting but shall have right to speak or otherwise take part inthe proceedings of the meeting. The meeting shall be presidedover by the Pramukh if the motion is against the Up-Pramukh andif the motion is against the Pramukh the meeting will be presidedover by the Up-Pramukh. In the absence of both the Pramukhand Up-Pramukh, the members assembled shall elect one fromamong themselves to preside over the meeting. quorum of notless than two-thirds of the total membership of the

Panchayat Samiti is necessary for the meeting. Within onehour from the appointed time, if there is no quorum, the noconfidence motion shall deemed to have not been carried and themeeting shall be dissolved. The Executive Officer shall send thereport of the dissolution of the meeting for want of quorum to theconcerned Assistant Commissioner, the Deputy Commissioner(Director of Panchayat Elections), the Chief Executive Officerof the Zilla Parishad and also the Secretary (Panchayat) of theAdministration.

(3) If the motion is carried by majority of not less thantwo-thirds of the total membership of the Panchayat Samitipresent and voting, the Pramukh or the Up-Pramukh or both,as the case may be, shall cease to hold office after period ofthree days from the date on which the motion is carried unless thePramukh or the Up-Pramukh or both, as the case may be, haveresigned earlier.”

(emphasis supplied)

23.To put it differently, the provisions in the Regulation and theRules distinctly deal with the manner in which motion of ‘NoConfidence’ should be moved and carried forward to its logical end. Inthat sense, the central issue is about the purport of the mechanismprovided in the Regulation and the Rules on the subject of ‘NoConfidence Motion’. From the legislative scheme it is noticed that asand when the special meeting to consider the ‘No Confidence Motion’proceeds, Section 117(2) mandates that the motion may be treated ascarried out only if majority of not less than two-thirds of the “total

Anumber” of members of the Panchayat Samiti vote in favour of removalof the Pramukh or Up-Pramukh, as the case may be. similar positionis restated in Rule 21 of the Rules.

24.Indeed, the provisions in the Regulation do not provide for thequorum of the special meeting. That is, however, prescribed in the formBof Rule 9. Rule 9(3)(b) stipulates that two-thirds of the “total member-ship” of Panchayat Samiti shall be sufficient quorum for specialmeeting of the Panchayat Samiti in reference to Section 117(1) of theRegulation to move motion of no confidence against the Pramukh orUp-Pramukh. Thus, the quorum specified is not less than two-thirds ofthe “total membership”. The emphasis is on the expression “totalCmembership”, which includes the other (ex-officio) member(s) referredto in Section 107(3) of the Regulation having representation on thePanchayat Samiti and not limited to members chosen by direct electionfrom territorial constituencies in the Panchayat area as referred to inSection 107(2) of the Regulation. Thus understood, all members of theDPanchayat Samiti are expected to remain present and participate in thespecial meeting and the quorum of the meeting is to be determined onthe basis of “total number” of members in the Panchayat Samiti.25.The question as to whether the other member(s) (other thandirectly elected) who can participate in the special meeting, have theEright to vote on the ‘No Confidence Motion’. That would depend on thelegislative scheme and intent manifest from the express provisionspermitting them to do so. The usefulness of their presence at such aspecial meeting, to consider the motion of no confidence, cannot andneed not be speculated. The governing provisions predicate that the specialmeeting must be attended by not less than two-thirds of the “totalFmembership” of the Panchayat Samiti and the ‘No Confidence Motion’must be carried out by not less than two-thirds of the “total number” ofmembers of the Panchayat Samiti present and voting. This is the twinrequirement. If so, the ‘No Confidence Motion’ is required to beconsidered in the special meeting of the Panchayat Samiti as wholeGand not limited to members directly elected from the territorialconstituencies in the Panchayat area. Thus understood, the totalmembership of the Little Andaman Samiti being six, two-thirds thereofwould be four. If the members present at the scheduled place and timeof the meeting were only three, obviously the Executive Officer wasjustified in dissolving the meeting for want of quorum.H

26.That takes us to the question as to who can vote on the‘No Confidence Motion’. Indubitably, the language of Section 117 of theRegulation envisages that the motion is required to be carried by amajority of not less two-thirds of the “total number” of members of thePanchayat Samiti present and voting. similar mandate flows from Rule9 read with Rule 21 of the Rules. The question is whether the law asenacted in the form of Section 117 of the Regulation, in any way,deviates from the scheme of Part-IX of the Constitution. Our answer isan emphatic “NO”. The fact that Article 243C(5)(b) postulates that thechairperson of the Panchayat Samiti at the intermediate level shall beelected by, and from amongst, the elected members thereof, it does notfollow that the process of removal of such chairperson should be limitedto voting by the elected members. The law on the removal of the Pramukhor Up-Pramukh by means of ‘No Confidence Motion’ has been enactedby the State Legislature. That permits “all” the members of the PanchayatSamiti to participate in the discussion and vote on the motion of noconfidence. On conjoint reading of Section 117, Rule 9(3)(b) and alsoRule 21 of the Rules, in our opinion, they, in no way, exclude anymember of the Panchayat Samiti muchless the members referred to inSection 107(3) of the Regulation. Not even by necessary implication.Taking any other view would result in re-writing of the provisions toread as - the motion of no confidence must be carried out by majorityof not less than two-thirds of the total number of “directly elected”members of the Panchayat Samiti mentioned in Section 107(2), presentand voting. We must presume that the State Legislature was consciousof the marked distinction between the category of members constitutingthe Panchayat Samiti. As is evident from Section 107(2), it refers to acategory of persons chosen by direct election from the territorialconstituencies, in contradistinction to the other category of personsmentioned in Section 107(3), the constituent of the Panchayat Samiti. Ifthe legislature had intended to exclude the latter category from theprocess of ‘No Confidence Motion’, it would have expressly limited it toonly the elected members [former category ascribable to Section 107(2)]of the Panchayat Samiti, as is done at the stage of election of thechairperson. Whereas, the provision makes it incumbent that not lessthan two-thirds of the “total number” of members of the PanchayatSamiti must participate and vote. This is the legislative intent whichcannot be whittled down by some overstretched interpretative processincluding by relying on the common law principle that only the body of

Apersons, who had elected the Pramukh or Up-Pramukh, alone caninitiate such process.

27.The Division Bench of the High Court relied upon thedecision in Ramesh Mehta (supra). In that case, this Court was calledupon to answer whether, in counting the “whole number of members”Bon the Municipal Board in terms of Rule 3(9) of the RajasthanMunicipalities (Motion of No-confidence against the Chairman orVice-Chairman) Rules, 1974, “nominated members” have to be takeninto consideration. For answering that question, the Court adverted toArticle 243R, which deals with the composition of municipalities. Thedispensation prescribed with regard to Panchayats in Article 243C isCsomewhat different from the one specified in Article 243R forMunicipalities. As regards the Panchayats, in terms of Article 243C(3),only persons referred to in sub-clauses (a) to (d) thereof, canrepresent in the Panchayat Samiti as per the law made by the StateLegislature in that behalf. The category of persons referred to in theDsaid sub-clauses are all directly elected at different levels - be it Panchayator the House of the People and the members of the legislative assemblyof the State or the Council of States and the members of the legislativecouncil of the State. Whereas, in the composition of Municipalities,persons having special knowledge or experience in municipaladministration can also be nominated, who obviously may not be electedEpeople’s representatives. The latter, therefore, has been expresslydenuded of right to vote in the meetings of the Municipalities, as perthe proviso to Article 243R(2). Similar exclusion is not made in respectof the other categories of members of the Municipality referred to insub-clauses (ii) to (iv) of Article 243R(2)(a). In short, the questionFconsidered in the said case was very specific as to whether the votingrights of the “nominated members” in Municipal Board can bereckoned for computing majority required for motion of noconfidence against the Chairman or Vice-Chairman of the Board. TheCourt considered the statutory provisions as applicable to that case i.e.,Section 9 of the Rajasthan Municipalities Act, 1959, as amended. It thenGconcluded that there was no indication therein that right to vote iscreated in the “nominated members”. In other words, they cannotexercise voting rights.

28.In the present case, neither Article 243C nor the Regulationmade by the State Legislature or the Rules framed thereunder expresslyH

exclude the other members of the Panchayat Samiti referred to inSection 107(3) of the Regulation from exercising their vote on ‘Motionof No Confidence’. It is well established position that the right to elect,and including the right to be elected and continue on the elected post, isa statutory right. Further, the mode and manner of election to any postcould be different from the scheme for removal of person from thatpost, as restated in paragraph 10 of the same reported decision. It readsthus:

“10.There is no dispute with the proposition that the rightto elect and the right to be elected is statutory right andthat the mode and manner of election to any post couldbe different from the scheme of removal ofa person from that post. xxxxxxxxx”

(emphasis supplied)

29.The High Court had also adverted to the decision of theKarnataka High Court in State of Karnataka and Ors. (supra). Eventhis decision will be of no avail. For, the High Court considered thespecific provisions contained in the Karnataka Panchayat Raj Act, 1993and construed them to mean that they expressly exclude the right toparticipate in the proceedings and vote on ‘No Confidence Motion’against the Adhyaksha or Up-Adhyaksha. The observations in the saiddecision, therefore, are contextual and in reference to the expressprovision in the Karnataka Panchayat Raj Act in the form of Sections120(2), 140(3), 159(2) and 179(3). As aforesaid, the provisions in theRegulation under consideration in no way exclude the MP, muchlessexpressly, from participating in the special meeting and vote on the ‘NoConfidence Motion’. As matter of fact, the provision in the Regulationunder consideration is an inclusive one and explicitly permits all (total)members to participate in the special meeting and vote on the ‘NoConfidence Motion’ against the Pramukh or Up-Pramukh, as the casemay be.

30.A priori, the argument of Mr. Lekhi that the interpretation willoffend the principle of ut res magis valeat quam pereat and make Article243C(5)(b) unworkable, does not commend us. As aforesaid, Article243C makes no mention about the manner and mode by which theChairperson of the Panchayat Samiti can be removed by way of ‘NoConfidence Motion’. Whereas, the State Legislature has been

Aempowered to make law on that subject. As is noticed from the statedRegulation, the same explicitly deals with the mechanism for moving a‘No Confidence Motion’ against the Pramukh or Up-Pramukh, as thecase may be; and more particularly, as per the rules framed under thesaid Regulation. The validity of the said provisions has not been put inissue. In such situation, the argument regarding constitutional silenceBor its efficacy need not detain us. For the same reason, we do not wishto dilate on the exposition in Justice K.S. Puttaswamy and Anr. Vs.Union of India and Ors.[3], Bhanumati and Ors. Vs. State of UttarPradesh through its Principal Secretary and Ors.[4], Usha BhartiVs. State of Uttar Pradesh and Ors.[5]and Delhi TransportCCorporation Vs. D.T.C. Mazdoor Congress and Ors.[6]

31.Learned ASG has invited our attention also to the decision inVipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk MarketingFederation Limited and Ors.[7], dealing with the question ofpermissibility of removal of the Chairperson/elected office bearers byDmotion of no confidence. The exposition in the said decision, that if aperson has been elected to an office through democratic process andwhen such person loses the confidence of the representatives whoelected him, then those representatives should necessarily have ademocratic right to remove such an office bearer in whom they do nothave confidence, will not take the matter any further in the wake ofEexpress provisions contained in the Regulation of 1994 and the Rules of1997, to which we have elaborately adverted hitherto.

32.For the same reason, even the decision in Pratap ChandraMehta Vs. State Bar Council of Madhya Pradesh and Ors.[8], will beof no avail for interpreting or applying the provisions in the RegulationFand the Rules under consideration. Our attention was also invited to thedecision in Mohan Lal Tripathi Vs. District Magistrate, Rai Bareillyand Ors.[9] Emphasis was placed on the observations in paragraph 4 ofthis decision. As matter of fact, the dictum in this decision wouldreinforce the view that we have taken, as it is observed in the said

5(2014) 7 SCC 663 (para 34)

6(1991) Supp.(1) SCC 600 (para 255)

7(2015) 8 SCC 1 (para 20)

8(2011) 9 SCC 573 (para 22, 26, 46)

9(1992) 4 SCC 80 (para 4)

paragraph that provision in the statute for recall of an electedrepresentative has to be tested not on general or vague notions but onpractical possibility and electoral feasibility of entrusting the power ofrecall to body which is representative in character and is capable toprojecting the views of the electorate. We have already noted that thecategory of persons referred to in Section 107(3) of the Regulation arealso, in one sense, elected representatives (though not by direct electionfrom territorial constituencies in the Panchayat area) and, therefore,their participation and voting on the ‘No Confidence Motion’ has beenexpressly permitted by the Regulation and the Rules. That cannot beundermined on the basis of the common law principle, so long as thegoverning statutory provisions are in the field.

33.For the above reasons, we conclude that the Division Benchcommitted manifest error in setting aside the decision of the ExecutiveOfficer dated 2[nd] January, 2017 declaring that the meeting stooddissolved for want of quorum. Instead, we uphold the said decision ofthe Executive Officer having held that the quorum of the specialmeeting ought to be of not less than two-thirds of the “total number ofmembership of the Panchayat Samiti” which includes all the membersof the Panchayat Samiti - be it directly elected or ex-officio members,as the case may be. So understood, the quorum of the special meetinghas been justly recorded as four members. However, as only threemembers had remained present at the scheduled time and place, theExecutive Officer had no option except to dissolve the meetingconvened on 2[nd] January, 2017. For the same reason, the motion of noconfidence against the appellant, in law, could not have proceededfurther.

34.Resultantly, the follow up action taken against the appellant,asking him to step down, therefore, also would be non est in law. ThisCourt, vide order dated 15[th] January, 2018, had made it clear that theconsequential election to fill in the vacancy arisen due to removal of theappellant, would be subject to the outcome of this petition. Accordingly,we hold that all steps taken after the order of the Executive Officerdated 2[nd] January, 2017 be treated as non est in terms of this order.

35.As result, we allow this appeal, set aside the impugnedjudgment and order passed by the High Court in M.A. No.26 of 2017,

182SUPREME COURT REPORTS

Aand instead, we dismiss the writ petition filed by respondent No.6, and todo complete justice, we direct restitution of the appellant to the post ofPramukh of the Little Andaman Panchayat Samiti as his tenure wouldotherwise have expired in September, 2020. The District Administrationshall take follow up steps forthwith and ensure compliance of thedirections not later than one week from the date of receipt of copy ofBthis order and submit compliance report in the Registry of this Court.

36.The appeal is allowed in the above terms. No order as tocosts. All pending applications stand disposed of.

CDevika Gujral

Appeal allowed.