| SooperKanoon Citation | sooperkanoon.com/918966 |
| Court | Allahabad High Court |
| Decided On | Aug-26-2010 |
| Case Number | Writ Petition No. 7272 (MB) of 2010 |
| Judge | Pradeep Kant; Ritu Raj Awasthi, JJ. |
| Appellant | Raj Bahadur |
| Respondent | State of U.P. and Others. |
| Cases Referred | (iv) A.K. Gopalan v. State of Madras |
1. Heard the counsel for the petitioner Sri O.P. Srivastava, Sri D.K. Upadhyaya, learned Chief Standing Counsel for the State and Dr. L.P. Misra for private respondent no. 4.
2. Learned counsel for the respondents submitted that they would not like to file counter affidavit and that since only legal question is involved, the matter may be finally heard and decided.
3. An interim order is continuing in the present case.
4. The elections of Kshettra Panchayat, Motigarpur, District Sultanpur were held on 27.2.06. In this election one Smt. Pushpa wife of Sri Vijai Pal was selected as Pramukh and the petitioner was elected as Senior Up-Pramukh. The petitioner was administered oath of office of Up-Pramukh on 18.3.06.
5. On the date of election, U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, (hereinafter referred to as the Principal Act) as amended from time to time, was in force but later on, by means of U.P. Act No. 44 of 2007 (hereinafter referred to as the Amending Act), the aforesaid Act was drastically amended.
6. Leaving aside all other features of amendment, the amendments which are relevant for the present controversy are that the offices of Pramukh, Senior Up-Pramukh and Junior Up-Pramukh in the case of Kshettra Panchayats and Upadhyaksha in the case of Zila Panchayats, were abolished and powers were given to the District Magistrate under Section 9(2), when the office of Pramukh becomes vacant, to make such arrangement, which the thinks fit, for discharge of the functions of the Pramukh, till the Pramukh is elected and in case of temporary vacancy, arrangement was again to be made by the District Magistrate, as he thinks fit, for discharge of the functions of the Pramukh, until the date on which the Pramukh resumes his duties. This was done by substituting Section 9-A of the Principal Act, by means of Section 12 of the Amending Act.
7. One more important amendment, was made with respect to the period of 'no confidence motion' which could be brought against Pramukh or Up-Pramukh under Section 15 of the Principal Act, wherein sub-clause (11) prescribed that if motion is carried with the support of 'not less than two thirds' of the total number of elected members of the Kshettra Panchayat for the time being, it would be deemed to be carried through but by means of the Amending Act the words 'not less than two-thirds' were substituted by the words 'more than half'.
8. The other important amendment was the restriction of two years in moving the second 'no confidence motion' against the Pramukh, whose first motion has been defeated for any reason whatsoever, was curtailed to one year. This was done by substituting the words 'one year' in place of 'two years', occurring in Section 15 sub-clause (12) and (13) of the Principal Act.
9. Smt. Pushpa, the elected Pramukh faced a 'no confidence motion', which was carried through by majority of more than half of the members, as required under the Amending Act, on 28.7.2010, as such, the office of Pramukh had become vacant.
10. It may be apt to mention here that challenge was made to the aforesaid amendments, which were enforced by U.P. Act No. 44 of 2007, in a bunch of writ petitions, leading case being Writ Petition No. 451 (MB) of 2008: Mamta Kannaujia v. State of U.P. and others.
11. In the aforesaid case reported in 2009 (2) LCD 350, a Division Bench of this Court, in which one of us (Pradeep Kant, J.) was a member, the validity of the aforesaid amendments was upheld and the apex court also confirmed the aforesaid judgement dated 6.2.09 in Civil Appeal No. 3802 of 2009: Bhanumati and others v. State of U.P. and others and other connected appeals, vide order dated 12.2.09. But all the parties are in consonance in saying that the aforesaid case of Mamta Kannauji did not deal with the present controversy, as the said issue was not in question in those petitions and, therefore, the matter requires consideration by the Court.
12. Since the constitutional validity of the aforesaid Amending Act has been upheld, on vacancy being caused because of passing of 'no confidence motion' against the sitting Pramukh, namely, Smt. Pushpa, the District Magistrate entrusted the functions of Pramukh in purported exercise of her powers under Section 9 (2) to the respondent no. 4, by the impugned order, till the Pramukh was elected.
13. The petitioner challenged the aforesaid order saying that he is the elected Senior Up-Pramukh and his election for his full tenure, stands protected under the Amending Act, despite abolition of the posts of Senior Up-Pramukh and Junior Up-Pramukh and, therefore, in the presence of the petitioner, who was legally entitled to discharge the functions of Pramukh, in his absence, the District Magistrate was having no authority to make any such arrangement by nominating any member, in the vacancy of Pramukh, the office having fallen vacant for any reason whatsoever, may be because of the passing of 'no confidence motion' against the sitting Pramukh.
14. The District Magistrate, Sultanpur was required to be present in the Court to explain that why in the presence of Up-Pramukh, she has nominated the respondent no. 4 for discharging the functions of Pramukh.
15. The District Magistrate appeared in person and she stated that as per her own understanding of the provision of the Act, as amended and the rules framed thereunder, there is no requirement of giving charge to Up-Pramukh in case the vacancy occurs in the office of Pramukh and that since Pramukh here was of scheduled caste category, therefore, in her absence, a scheduled caste member has been entrusted with the functions of Pramukh.
16. The question, therefore, involved in the present petition is, whether in a case where the office of the Pramukh becomes vacant during his/her subsisting tenure, the District Magistrate under Section 9(2), as newly amended, would have power to make any arrangement for discharging the function of Pramukh, till the Pramukh is elected, by nominating any member, despite the Up-Pramukh being available to discharge the said functions, his election for his full term, having been protected even under the Amending Act.
17. A corollary to the aforesaid question would be, whether the abolition of the office of Senior Up-Pramukh or Junior Up-Pramukh, by Section 9 of the Amending Act, would mean that Senior Up-Pramukh and Junior Up-Pramukh, if already elected, though their tenure would not stand curtailed and they will continue as such, but they would not be entitled to discharge the functions of Pramukh in his absence, may be in a temporary vacancy or if it is a casual vacancy.
18. For arriving to a conclusion on the aforesaid issues, it would be beneficial to note down the provisions of the Principal Act as well as corresponding provisions of the Amending Act.
19. Section 9 of the Amending Act provides as under:
"9. In the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, hereinafter in this chapter referred to as the Principal Act, the words "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh" and "Upadhyaksha" wherever occurring including the marginal headings and Scheduleds, shall be omitted."
20. Section 7 of the Principal Act contained only two sub-sections, wherein the following new sub-section (3) has been inserted by virtue of Section 10 of the Amending Act:
"(3) Notwithstanding anything to the contrary contained in any of the provision of this Act, the persons who have been elected to the office of Up-Pramukh before the commencement of the Uttar Pradesh Panchayat Raj (Amendment) Act, 2007 shall continue to hold the office as such till the expiry of their term as if the said Act were not enacted."
21. Section 9 sub-section (2) of the Principal Act reads as under:
"9(2). Where the office of the Pramukh is vacant -
(a) the Senior Up-Pramukh shall discharge the functions of the Pramukh till the Pramukh is elected;
(b) and if the office of Senior Up-Pramukh is also vacant, the Junior Up-Pramukh shall discharge the functions of the Pramukh till the Pramukh or the Senior Up-Pramukh is elected;
(c) and if the offices of both, the Senior and Junior Up-Pramukhs also are vacant the District Magistrate may, by order, make such arrangements as he thinks fit for the discharge of the functions of the Pramukh, till the Pramukh, Senior Up-Pramukh or Junior Up-Pramukh is elected."
22. The substituted Section 9(2) reads as under:
"(2) 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."
23. Likewise, Section 9-A of the Principal Act read as follows:
"9-A. Temporary arrangement in certain cases.-- When the Pramukh is unable to discharge his functions owing to absence, illness or any other cause, and the office of Up-Pramukhs are vacant, or when the Up-Pramukh, if any, acting under Section 83 during a vacancy in the office of 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 fit, for the discharge of the functions of the Pramukh, until the date on which the Pramukh or Up-Pramukh, as the case may be, resumes his duties."
24. The substituted Section 9-A reads as under:
"9-A. When the Pramukh is unable to discharge his functions owing Temporary absence, illness or any other cause, the District Magistrate may, by order, make such arrangement as he thinks fit, for the discharge of the functions of the Pramukh until the date on which the Pramukh resumes his duties."
25. It has been contended by the respondents that validity of U.P. Act No. 44 of 2007 has been upheld in toto and that the provisions of the Amending Act which have been incorporated in the Act itself, have to be read, understood and interpreted, keeping in mind that there cannot be any challenge to the aforesaid amended provisions, on the ground of their legality, propriety and authority, including the legislative competence.
26. The plea is absolutely correct but what is to be seen is the scheme under the Act, as it stands after the amendment.
27. The respondents' main plea is that sub-section (2) of Section 9, as it was in the Principal Act, since has been substituted by an entirely different provision, which does not speak of anything regarding the status, right, powers and duties of the Up-Pramukh in the case of Kshettra Panchayat and Upadhyaksha in the case of Zila Panchayat, therefore, it has to be read and interpreted in a manner, which gives the fullest meaning to the contents therein and does not encroach upon the legislative drafting.
28. Submission in nutshell is, that the aforesaid amended provision, without any qualifying clause, take care of the vacancy, either casual or temporary which occurs in the office of Pramukh, in which situation, the District Magistrate has been conferred with the power to make such arrangement, as he thinks fit i.e. as per his own discretion, for the discharge of the functions of Pramukh, till Pramukh is elected or till the Pramukh resumes his duties as the case may be.
29. Elaborating the aforesaid argument, it has been submitted that the office of Pramukh can become vacant by reason of death, resignation and passing of 'no confidence motion'. In all such situations, arrangement is to be made under Section 9(2) and such an arrangement would last till the Pramukh is elected. The period for filling up such vacancies, has been provided under Section 12, which has the heading 'filling of casual vacancies'. Section 12 says that if a vacancy occurs by reason of death or otherwise in the office of a Pramukh, Up-Pramukh or an elected member of the Kshettra Panchayat, it shall be filled before the expiration of a period of six months from the date of such vacancy, in the manner provided for in Section 6 and 7, as the case may be, for the residue of the term of his predecessor.
30. The proviso appended thereto, says that if on the date of occurrence of such vacancy the residue of the term of the Kshettra Panchayat is less than six months, the vacancy shall not be filled.
31. Likewise, it has been submitted that in the case of temporary vacancy, namely, when the Pramukh is unable to discharge his functions owing to absence, illness or any other cause, the District Magistrate 32. would have the authority to make such arrangement, as he thinks fit, for the discharge of the functions of Pramukh, until the date on which the Pramukh resumes his duties.
33. The only difference in the aforesaid two provisions is that in case vacancy of Pramukh is caused due to death or otherwise, the District Magistrate shall make such arrangement as he thinks fit for the discharge of the functions of the Pramukh, till the Pramukh is elected and where there is a temporary vacancy, temporary arrangement is to be made and that arrangement would last till the Pramukh resumes the duties.
34. In response, learned counsel for the petitioner submitted that though the office of Up-Pramukh or Upadhyaksha, as the case may be, have been abolished but the continuance of such office bearers, who were elected before the commencement of Amending Act, since has been protected under Section 7 of the Amending Act for the full term, the unamended provisions of the Principal Act, would continue to govern the status, rights, powers, duties, authority and functions of such elected Up-Pramukh or Upadhyaksha, as the case may be, and that the amended provision in regard to making arrangements either when the office of Pramukh is vacant or there is a temporary vacancy, would not give any power to the District Magistrate to overcome the provision of the Principal Act, relating to the discharge of functions by the Up-Pramukh or Upadhyaksha, where such Up-Pramukh or Upadhyaksha are in office and their term has not come to an end.
35. Further argument is that the District Magistrate would have the power to make arrangements only in cases, where the Kshettra Panchayat is not having any elected Up-Pramukh or Upadhyaksha in the case of Zila Panchayat, for the time being, but where such elected office stands occupied, the District Magistrate would not be required to pass any order authorising the elected Up-Pramukh or Upadhyaksha, to discharge the functions of Pramukh or Adhyaksha, as the case may be, but even if he so desires, he would have no option but to pass orders, authorising the Up-Pramukh or Upadhyaksha to discharge the functions of Pramukh or Adhyaksha, till the Pramukh or Adhyaksha is elected in case of any vacancy and till the Pramukh or Adhyaksha resumes duties in case of temporary arrangement.
36. It is abundantly clear and very obvious that the legislature in its wisdom while amending the Principal Act, has specifically protected the office of the elected Up-Pramukh or Upadhyaksha, who have been allowed to continue till their term is over.
37. Therefore, the question arises, whether such an elected Up-Pramukh or Upadhyaksha, as the case may be, would remain only as an elected office bearer, denuded of all his powers and duties, as was provided under the Principal Act, or they would be enjoying all those facilities, powers and duties, which were specifically entrusted upon them under the Principal Act, despite the aforesaid amendments.
38. In the Amending Act, the words "or in his absence from the Khand the Senior Up-Pramukhs or if the latter is also absent from the Khand, the Junior Up-Pramukh" in Sub-section (2) of Section 84 of the Principal Act have also been omitted. Former relates to Kshettra Panchayat and latter relates to Zila Panchayat.
39. Likewise in Section 61 of the Principal Act, in sub-section (2) the words "or in his absence from the District, the Upadhyaksha" have been omitted.
40. In place of sub-section (2) of Section 88 of the Principal Act, following sub-section has been substituted:
"(2) The Pramukh shall be the ex-officio Chairman of Vitta Evam Vikas Samiti, Shiksha Samiti and Samta Samiti."
Sub-sections (3), (3-A) and (4) have been omitted.
Sub-section (5) of the Principal Act has been substituted by the following sub-section:
"(5) As soon as may be after their Constitution each Committee specified in sub-section (1) of section 87, other than Karya Samiti shall at its first meeting elect one of their members to be the Vice-Chairman."
41. Sections 82 and 83 of the Principal Act have also been omitted.
42. Section 82 of the Principal Act dealt with delegation of functions by Pramukh to Up-Pramukh and provided that (1) the Pramukh of Kshettra Panchayat may by general or special order empower to the Senior or Junior Up-Pramukh to exercise or perform under his general guidance any one or more of his powers, duties or functions except those specified in clauses (a) and (b) of Section 81, whereas Section 83 dealt with the duties of Up-Pramukh and laid down as under:
"83. Duties of Up-Pramukh. - (1) A Senior Up-Pramukh shall -
(a) in the absence of the Pramukh preside at the meetings of the Kshettra Panchayat unless prevented by any unreasonable cause from dong so and shall perform all duties and functions and may exercise all the powers of the Pramukh when presiding at the meeting;
(b) during a vacancy in the office of Pramukh or in case of urgent necessity or during the temporary absence or incapacity of the Pramukh perform any other duty or function and exercise any other power of the Pramukh; and
(c) at any time perform any duty or function and exercise, when occasion arises, any power delegated to him by the Pramukh under Section 82."
Section 84 of the Principal Act prescribed the procedure to be adopted for the meetings of Kshettra Panchayat, which, in sub-section (2), provided that "the Pramukh, or in his absence from the Khand, the Senior Up-Pramukh, or if the latter is also absent from the Khand, the Junior Up-Pramukh, may convene a meeting of the Kshettra Panchayat whenever he thinks fit....."
43. By virtue of Section 9 of the Amending Act, a general proposition has been pronounced by the State Legislature, omitting the words "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh and "Upadhyaksha" wherever occurring including the marginal headings and Scheduleds in the Principal Act.
44. This apparently has been done for the reason that on the enforcement of the Amending Act, the provisions regarding the office of "Up-Pramukh" and "Upadhyaksha" was abolished.
45. While enacting the aforesaid provision, the intention appears to be that in the absence of the Up-Pramukh and Upadhyaksha, there cannot be any occasion for dealing with their powers and authority and the manner in which they were to function in the absence of Pramukh or Adhyaksha and, therefore, by a general statement in the Amending Act, all such words were directed to be omitted.
46. The result of such a provision is that under the Principal Act, wherever the aforesaid words did occur, they would not be treated to be on statute any more.
47. The argument of the learned counsel for the respondents that in the absence of any specific provision being introduced, incorporated or inserted in the Amending Act, with respect to rights, powers and duties of the Up-Pramukh and Upadhyaksha, such elected office bearers cannot seek protection under the provisions of the Principal Act, that is, to say, the unamended Act, as the same are no more on the Statute, requires a little scrutiny of the provisions of the Amending Act and in particular, Section 10 thereof, which adds sub-section (3) after sub-section (2) of Section 7.
48. This is necessary for the reason that the elected office bearers on the posts of Up-Pramukh and Upadhyaksha, have been saved from the application of the provisions of the Amending Act, though only for the present term of their office.
49. Sub-section (3) of Section 7 aforesaid starts with non obstante clause and thus, overrides all other provisions of the Act, namely, the Amending Act.
50. A reading of the aforesaid sub-section (3) reveals that while protecting the office bearers on the post Up-Pramukh, it also gives them right to continue to hold the office as such till the expiry of their term as if the said Act were not enacted (underlined by us).
51. The words in the aforesaid provision are absolutely clear and does not call for any ambiguity.
52. Adopting the principle of literal interpretation and giving the words their simple and true meaning, it can safely be said that the aforesaid provision excludes the applicability of the provisions of Amending Act in respect of the already elected Up-Pramukhs, who have been allowed to continue to hold the office, as such.
53. The words 'as such', following the words 'shall continue to hold the office' obviously mean that they will continue to hold the office in the same manner as they were holding before the Amending Act was enforced, which would include all such powers, duties and functions to be enjoyed by these elected office bearers for the whole of their term, as was provided in the Principal Act.
54. This gets more clarified when the aforesaid phrase is followed by the words 'as if the said Act were not enacted'. The Legislature, therefore, very consciously, deliberately and specifically provided that while dealing with the elected Up-Pramukhs, their functioning would remain uninterrupted till the expiry of their term, despite the enactment of the Amending Act.
55. This would also mean that the amendment made by virtue of Amending Section 9 of the Act, omitting the words "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh and "Upadhyaksha" in the Principal Act has not been made applicable in the case of elected Up-Pramukh and Upadhyaksha and thus, this omission also would not effect the Principal Act, in relation to the Up-Pramukhs and Upadhyakshas, as the case may be.
56. After omission of the aforesaid words, namely, "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh and "Upadhyaksha", by virtue of Section 9 of the Amending Act, the words "shall continue to hold the office as such till the expiry of their term as if the said Act were not enacted" having been inserted in sub-section (3) of Section 7 of the Principal Act, with respect to elected Up-Pramukh, the omission aforesaid would not be taken to be incorporated in the Principal Act, so far the aforesaid provisions of the Principal Act relate to the already elected Up-Pramukh. Since omission of the aforesaid words would not be attracted in the case of elected Up-Pramukh, the Principal Act as it stood before amendment would hold the field.
57. If the intent of the Legislature is clear that for the elected Up-Pramukh, Amending Act would not be taken to have been enforced or its existence even is denied and by a legal fiction, the applicability of the Amending Act stands excluded, there can be only one consequence of such a phrase, which contains non obstante clause, that such Up-Pramukhs would be governed by the Principal Act.
58. Sub-section (3) not only starts with non obstante clause but further clarifies that despite the contrary provisions contained in this Act, i.e. the Amending Act, the persons who have been elected to the office of Up-Pramukh before the commencement of the Amending Act, would not be affected by such amended provisions and they shall continue to hold the office as such, till the expiry of their term, as if the said Act i.e. the Amending Act was not enacted.
59. In the case of ICICI Bank Ltd. (since substituted by Standard Chartered Bank) v. SIDCO Leathers Ltd. and others, (2006) 10 SCC 452, the apex court held that 'the non obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy and that a non obstante clause must be given effect to, to the extent Parliament intended and not beyond the same'.
60. In the case of Aswini Kumar Ghose and another v. Arabinda Bose and another, AIR 1952 SC 369, the Supreme Court observed as under:
"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; for, even apart from such clause, later law abrogates earlier laws clearly inconsistent with it"
61. In Dominion of India (now Union of India) v. Shrinbai A. Irani, AIR 1954 SC 596, it was held that 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.
62. The language and intention of the legislature, which incorporates sub-section (3) in Section 7 i.e. Section 7 of the Principal Act, is utmost clear. It does not call for any interpretation to the contrary, which says that the office bearers who were elected before passing of the Amending Act, would hold their office for their entire term, 'as such', and any provision of the Amending Act which runs contrary to the Principal Act, would not be applicable in their case and, as a matter of fact, the entire Amending Act would not be applicable in the case of such Up-Pramukhs, particularly when the Legislature specifically provided that the Amending Act would not be taken to have been enacted at all, for the elected Up-Pramukh.
63. The only interpretation, thus, which can be given is that the Up-Pramukhs would enjoy the same benefits, powers and duties and would also discharge the same functions, which they were doing under the Principal Act, as the Amending Act cannot be taken to be in force for them and rather, it is deemed not to have been enacted, for the Up-Pramukhs and Upadhyakshas, as the case may be.
64. In the case of Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. Railway Workers Union, AIR 1969 S.C. 513, the Supreme Court referring to certain cases observed as under:
"But the intention of the legislature, as observed by Lord Watson in Salomon v. A. Saloman and Co. Ltd., (1897) AC 22 at p. 28 "is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact." It is well settled that the meaning which words ought to be understood to bear is not to be ascertained by an process akin to speculation and the primary duty of a court is to find the natural meaning of the words used in the context in which they occur, that context including any other phrase in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. In R. v. Wimbledon Justices, 1953-I QB 380, Lord Goddard said: "Although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words in it which are not there...............".............in Latham v. Lafone, (1887) 2 Ex. 115 at p. 121, Martin B. said: "I think the proper rule for construing this statute is to adhere to its words strictly; and it is my strong belief that, by reasoning on long drawn inferences and remote consequences, the courts have pronounced many judgments affecting debts and action in a manner that the persons who originated and prepared the Act never dreamed of." In the light of these principles we ought, therefore, to give a literal meaning to the language used by Parliament unless the language is ambiguous or its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act."
65. In the case of Union of India v. Sankalchand Himatlal Sheth and others, AIR 1977 SC 2328,, the apex court observed as under:
"Now, it is undoubtedly true that where the language of an enactment is plain and clear upon its face and by itself susceptible to only one meaning, then ordinarily that meaning would have to be given by the Court. In such a case the task of interpretation can hardly be said to arise. But language at best is an imperfect medium of expression and a variety of significations may often lie in a word of expression. It has, therefore, been said that the words of a statute must be understood in the sense which the legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor in its popular use, as in the subject or the occasion on which they are used and the object to be attained.
................The words used in a statute cannot be read in isolation; their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. And when I use the word 'context', I mean it in its widest sense "as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia and the mischief which - the statute was intended to remedy." The context is of the greatest importance in the interpretation of the words used in a statute."
66. In the case of Mohammad Ali Khan and others v. Commissioner of Wealth-tax, AIR 1997 S.C. 1165, the apex court has observed as under:
"It is a cardinal principle of construction that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. It has been often held that the intention of the Legislature primarily to be gathered from the language used, which means that attention should be paid to what has been said. As a consequence a constructions which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided."
67. In Institute of Chartered Accountants of India v. M/s Price Waterhouse and another, AIR 1998 S.C. 74, the apex court observed as under:
"Where, therefore, the "language" is clear, the intention of the Legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity........"
68. Reference can also be made to the following, in this regard.
(i) Tata Consultancy Services v. State of A.P., (2005) 1 SCC 308;
(ii) Swedish Match AB v. SEBI, (2004) 11 SCC 641;
(iii) Indian Administrative Service (S.C.S.) Assn. v. Union of India, 1993 Supp (1) SCC 730; and
(iv) A.K. Gopalan v. State of Madras, AIR 1950 SC 27
69. If any other interpretation is given to the aforesaid provision, it would not only defeat the purpose and object of the aforesaid protection given under the Act but would also run contrary to the scheme, which the Legislature has consciously and deliberately incorporated in the Amending Act.
7. Merely by omitting the office of "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh and "Upadhyaksha" by the provisions of the Amending Act in the Principal Act, would not take away the meaning, import and effect of the aforesaid substantive provision, namely, sub-section (3) of Section 7, which is a special provision made applicable to a specific category of elected office bearers nor such a protection can be negated or interfered with, by general omission of the words "Up-Pramukhs" and "Upadhyakshas", as given in Section 9 of the Amending Act, which, in fact, is in general terms.
8. The interpretation which is sought to be given by the respondents, if accepted, would absolutely frustrate the special provisions of sub-section (3) of Section 7 of the Principal Act, which has been inserted by means of Section 10 of the Amending Act.
9. The Principal Act permits the Up-Pramukh in the case of Kshettra Panchayat and Upadhyaksha in the case of Zila Panchayat to take over the functioning of Pramukh in the event, a vacancy occurs in his office or the Pramukh is temporarily absent and also empowers the Up-Pramukhs to convene meetings of Kshettra Panchayat in the absence of Pramukh and to discharge all such functions, which are entrusted upon him under the said Act. The said position does not stand changed by the commencement of the Amending Act.
10. The issue in question can be seen with another angle also.
11. The Kshettra Panchayats and Zila Panchayats have been given constitutional status, by virtue of 73rd Amendment of the Constitution. Their elected office bearers have to enjoy their full tenure, unless it is curtailed by any such methods, as may be available under the Act.
12. It thus, cannot be imagined nor can be thought of, that on the one hand the State Legislature would protect the continuance of the elected office bearer, namely, Up-Pramukh for full term and on the other hand, it would divest such elected Up-Pramukh from his powers, duties and functions, though he would be allowed to enjoy his full term of the office. Such an effort or attempt on the part of the State Legislature would run contrary to the constitutional scheme as given under 73rd Amendment and would not be protected. This appears to be the reason that while amending the aforesaid Act, the Legislature did not interfere with the term of the elected Up-Pramukh and only abolished those offices from a future date, namely, after the expiry of the term for which Up-Pramukh has been elected.
13. In the case of Mamta Kannaujia (supra), the Court took a view that it was not necessary to provide for an office of Up-Pramukh or Upadhyaksha for constituting a Kshettra Panchayat or Zila Panchayat, as the composition provided under the Constitution, does not make any such office to be imperative. But nonetheless, it was also observed that it would be the discretion of the State Legislature to provide such offices or to continue with such offices, even after the constitutional amendment, as the Chairperson would include the Vice Chairperson and there is no bar under the constitutional scheme to have such Up-Pramukh or Upadhyaksha, as the case may be. The elected Up-Pramukhs thus, have to enjoy their office during their full term and no interference can be made with their functions during their term.
14. It also does not appeal to reason, that the office of Up-Pramukh, namely, elected Up-Pramukh would continue but he would not be allowed to discharge the functions, because of a general omission of the words "Up-Pramukhs" and "Upadhyakshas" by virtue of the amendment in the Principal Act.
15. The words 'shall continue to hold the office, as such, till expiry of their term', can be given no other meaning except that they will continue to be the Up-Pramukh for their full term, subject to, they being ousted in accordance with law at any prior date and they will discharge their functions also, as such.
16. Holding of an elected office, without any responsibility being given and without any accountability, that too by denuding the powers and duties of the office, would, in effect, mean abolition of such office, though it stands protected under the Legislative enactment.
17. Anything which has been specifically provided by the Legislature in the provisions of the Amending Act, cannot be nullified or diversified by making an interpretation, which neither flows from the language used by the Legislature nor it serves the purpose for which it has been enacted. This will be encroaching upon the language of enactment and interpreting the provisions against its intention and object.
18. Having said so, it also has to be taken into account that there is a hierarchy of elected offices in the Kshettra Panchayats and Zila Panchayats. This hierarchy is to be maintained, unless, by some law any deviation is made and such law is not found to be unreasonable, arbitrary and beyond the legislative competence. The hierarchy as was given in the Principal Act, so far the Kshettra Panchayats are concerned, was in the following manner; Pramukh being at the top, thereafter Senior Up-Pramukh, Junior Up-Pramukh or Up-Pramukh and in the case of Zila Panchayats, Adhyaksha and thereafter Upadhyaksha.
19. The aforesaid hierarchy being maintained even after the commencement of the Amending Act by the Legislature in respect of those office bearers (Up-Pramukhs), who had been elected prior to the commencement of the Amending Act, such office bearers would enjoy the status, responsibilities, powers and functions, as per the aforesaid hierarchy. It goes without saying that under the provisions of the Principal Act, where specific provisions were made, which we need not elaborate, on the vacancy being caused in the office of Pramukh, the functions of Pramukh was to be looked after by the Up-Pramukh, Senior Up-Pramukh or Junior Up-Pramukh, as the case may be and for doing so, there was no requirement of any order being passed by the District Magistrate.
20. The same situation still continues. This is apparent by the fact that for already elected Up-Pramukhs, sub-section (3) of Section 7 of the Principal Act inserted by means of Section 10 of the Amending Act, excludes the applicability of the Amending Act, when it uses the phrase 'as if the said Act were not enacted'. If the said Act has not been enacted in respect of all the elected Up-Pramukhs, there is no question of applying the Amending Act in their cases or to exclude the applicability of the Principal Act.
21. The Amending Act also says that it does not repeal the Principal Act or provisions thereof but only substitutes and inserts certain provisions, a reference of which finds mention in the Amending Act. The effect of such amendment thus, is that so far the elected Up-Pramukhs are concerned, they would continue to hold the office as such and they would be enjoying all such powers, duties and functions, as they were doing under the Principal Act.
22. Apart from the aforesaid reason, one has also to consider that it will create a very anomalous situation, that in the presence of higher post holder, namely, an elected Up-Pramukh, when a vacancy occurs or a temporary arrangement is to made, he would be ignored and a member would be appointed as such by the District Magistrate to look after the functions of Pramukh.
23. A senior person, namely, an elected office bearer, who holds the office higher in rank than the members and next below the rank of Pramukh, would have a right to substitute himself on the post of Pramukh, in case any such occasion arises. No member can claim as a right that on vacancy so caused or on temporary arrangement being made, he be allowed to manage the affairs of Kshettra Panchayat and to look after the functions of Pramukh bye-passing the elected Up-Pramukh. This would cut across the whole scheme of the Act and the specific provisions of the Amending Act, where protection has been given to the elected Up-Pramukhs, namely, those who have been elected prior to the commencement of the Amending Act.
24. The argument of the learned Chief Standing Counsel that since the present post of Pramukh is reserved for a particular category, namely, scheduled caste, therefore, if the Up-Pramukh is allowed to look after the functions of Pramukh on the vacancy so caused or office being temporarily vacant, it would defeat the object of reservation and the person who otherwise could not be elected as Pramukh, would be entrusted with the functioning of Pramukh, though appears to be attractive at first glance but cannot be substantiated in the wake of the specific provisions of the Amending Act, read with the Principal Act.
25. This situation would or could have occurred even if the Amending Act had not been enforced i.e. under the Principal Act also.
26. Under Article 243-D of the Constitution reservation for the offices of Pramukh and Adhyaksha, as the case may be, is provided. The reservation, therefore, was to be followed in all matters of election of Pramukh and Adhyaksha, even under the Principal Act i.e. before the enforcement of the Amending Act. It was not necessary even at that time, that if the vacancy of Pramukh or Adhyaksha was to be filled in, by a reserved category candidate, may be scheduled caste, other backward classes, women etc., the Up-Pramukh was also to be elected from the same category.
27. There may be instances that despite the seat of Pramukh or Adhyaksha being reserved for a particular category, unless there is some provision of reservation for the office of Up-Pramukh and Upadhyaksha also, a different person not belonging to the said category can be elected for the post of Up-Pramukh or Upadhyaksha.
28. During all this period, even before the commencement of the Amending Act, if a vacancy had arisen in the office of Pramukh or he was temporarily absent for any reason whatsoever, where temporary arrangement was to be made, the Up-Pramukh was authorised under the Principal Act, to look after the work of Pramukh without any requirement of any order being passed by the District Magistrate. The situation would not change even after the commencement of the Amending Act.
29. The reservation is provided to a particular office/post, namely, Pramukh or Adhyaksha, as the case may be. Making an arrangement on a vacancy being caused in the said office, till the Pramukh is elected or making a temporary arrangement against the temporary vacancy would not negate the reservation made for the said office nor would run contrary to the scheme of the Act or that of the Constitution.
30. In both the situations aforesaid, it is the temporary arrangement, may be in case of vacancy, this arrangement would last till the Pramukh is elected and in the case of vacancy otherwise caused, it would last will the elected Pramukh resumes duties and in both the cases, the person authorised to look after the function of Pramukh would have no right to continue with the said office, if the said vacancy is filled up or the Pramukh resumes his duties. Had it been the intention of the Constitution or that of the State Legislature that in case of vacancy, casual or temporary, in the office of the Pramukh, belonging to the reserved category, then in every such case where the Pramukh was to be elected from a particular reserved category, there would have been a provision for electing the Up-Pramukh from the same category. This apparently is not the requirement of the Principal Act nor of the Amending Act.
31. There is no mandate under the provision of making temporary arrangements either under the Amending Act or the Principal Act, for making such arrangement by keeping in mind the category to which the Pramukh belonged. The discretion exercised by the District Magistrate, in the instant case, thus cannot be sustained on this ground.
32. If the Statute permits the District Magistrate to exercise his own discretion in choosing a member in given circumstances, to look after the work of Pramukh, with no further clarifications, qualifications or restrictions, the District Magistrate would be at liberty to appoint/nominate any member for looking after the work of Pramukh or Adhyaksha in case there occurs a casual vacancy or if he is to made otherwise, temporary arrangement. The District Magistrate thus, would be fully competent to nominate any member in case vacancy arises in the office of Pramukh or he has to make a temporary arrangement but this power he can exercise only when there is no elected Up-Pramukh, whose term stands secured under the Amending Act.
33. In case there is an elected Up-Pramukh and his term has not expired as given in the Amending Act, the District Magistrate will have no power to make any such arrangement. In fact, such an Up-Pramukh has the right, power and authority on a vacancy being caused in the office of Pramukh or on temporary absence of the Pramukh, to look after the functions of Pramukh, as per the provisions of the Principal Act of his own, there being no requirement to seek any order from the District Magistrate for exercising such powers.
34. Learned counsel for the petitioner also submitted that in case there is any ambiguity in the Amending Act with respect to rights and duties of the elected Up-Pramukh, whose office stands protected or the Amending Act is silent on this point, guidelines can be issued by the Court so as to give effect to the non obstante clause and to fulfil the intention and object of the Act.
35. We do not find any reason to issue any such direction or to lay down any guidelines for the reason that the enactment itself is very clear and unambiguous, which very clearly pronounces that for the elected Up-Pramukhs and Upadhyakshas, who have been elected before the commencement of the Amending Act, it would be taken as if the present Amending Act has not been enacted at all.
36. Even if we accept for argument sake that the provisions of the Principal Act since have been amended, which spoke about the rights, duties and functions of the Up-Pramukh and Upadhyaksha and, therefore, the said provisions are no more available, still the elected office of Up-Pramukh and Upadhyaksha having been saved by the Amending Act, the Up-Pramukhs and Upadhyakshas, who are elected from the members themselves and who hold the higher position in rank, cannot be restrained from functioning as such, if either a casual vacancy arises or any temporary arrangement is to be made, or otherwise he is to function, in the absence of the Pramukh for convening and presiding over the meetings etc. The only requirement in such a situation would be that the District Magistrate will have to pass an order, for which he has no other choice, to appoint/nominate the Up-Pramukh to look after the functions of Pramukh, till the vacancy of Pramukh is filled up, in the case of the office of Pramukh being vacant or till the Pramukh resumes his duties, in case of temporary vacancy,
37. We are thus, of the considered opinion that in the case of Kshettra Panchayats, where elected Up-Pramukhs are still holding office and who are to continue as such for their full term, if any vacancy arises because of death of otherwise or if temporary vacancy arises owing to absence, illness or any other cause, such Up-Pramukh would look after the work of Pramukh and the District Magistrate will have no authority and power to nominate any member to look after the office of Pramukh and to hold and preside meetings etc. No orders are required to be passed by the District Magistrate in this regard
38. For the reasons stated above, the order passed by the District Magistrate, Sultanpur dated 21.7.2010, nominating the respondent no. 4 to look after the functions of Pramukh, as the vacancy has caused because of the passing of 'no confidence motion, against the Pramukh, is hereby quashed.
39. We further issue a writ in the nature of mandamus restraining the respondent no. 4 from interfering with the functioning of the petitioner, who is an elected Senior Up-Pramukh and whose term has not yet expired, who shall look after and discharge the functions of Pramukh, as per the provisions of the Principal Act, till the Pramukh is elected, in case he is to be elected in terms of the provisions of Section 12, keeping in mind the proviso appended thereto.
40. The writ petition is allowed. No order as to costs.