RAM PAL SINGH Vs THE STATE OF UTTAR PRADESH
Bench: HON'BLE MR. JUSTICE MADAN B. LOKUR, HON'BLE MR. JUSTICE DEEPAK GUPTA
Judgment by: HON'BLE MR. JUSTICE MADAN B. LOKUR
Case number: SLP(C) No.-031990 / 2017
Diary number: 37024 / 2017
Advocates: ASHOK KUMAR SINGH Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 31990 OF 2017
Ram Pal Singh ... Petitioner
Versus
State of U.P. & Ors. ....Respondents
J U D G M E N T
Madan B. Lokur, J.
1. Pursuant to a Notification issued by the State Election
Commission, U.P. on 21st September, 2015 elections were held to the
Kshettra Panchayat, Jasrana, District Ferozabad (U.P.) on 7th February,
2016. Apparently, the results were declared on the same day by the State
Election Commission and 63 candidates were declared elected. It may be
mentioned that the elections were held under the provisions of the Uttar
Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961
(hereinafter referred to as the Adhiniyam).
An elected member
2. The Adhiniyam does not define the expression ‘elected member’.
For the purposes of the present petition we are proceeding on the basis
S.L.P. (C) No. 31990 of 2017 Page 1
that an ‘elected member’ is a person who has been duly elected. The
‘elected member’ might or might not have taken the oath of office in
terms of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats
(Oath of Office of Adhyaksha or Pramukh Etc.) Rules, 1994 (hereinafter
referred to as the Rules). We say this even though there is some sanctity
attached to taking the oath of office, which we will advert to later.
3. Rule 2(2) of the Rules defines ‘Members’ in the following terms,
which is also without reference to taking the oath of office:
“2(2) “Members” means in case of Zila Panchayats Members elected under clause (b) of sub-section (1) of Section 18 and in case of Kshettra Panchayat Members elected under clause (b) of sub-section (1) of Section 6 of the Act.”
4. Section 6(1) of the Adhiniyam provides that a Kshettra Panchayat
shall consist of a Pramukh, who shall be its Chairperson. Section 6(1)(b)
provides that all the Pradhans of the Gram Panchayats in the Khand shall
constitute the Kshettra Panchayat. Section 6(1)(b) provides that ‘elected
members’ of the Kshettra Panchayat shall be chosen by direct election
from territorial constituencies in the Panchayat areas. In other words, it
appears that despite the sanctity attached to taking the oath of office, an
‘elected member’ is one who is elected to the Kshettra Panchayat in
accordance with Section 6(1)(b) of the Adhiniyam regardless of whether
she or he takes the oath of office. S.L.P. (C) No. 31990 of 2017 Page 2
5. The only adverse consequence of an ‘elected member’ not taking
the oath of office is provided in Rule 3(3) of the Rules. The adverse
consequence is that if the member of the Kshettra Panchayat does not
make or subscribe the oath or affirmation, then he or she cannot take the
seat in the Kshettra Panchayat. Rule 3(3) reads :
“3(3). The members of Zila Panchayat and Kshettra Panchayat before taking their seats for the first time as such members shall make or subscribe oath or affirmation in the case of member of Zila Panchayat before the Adhyaksha and in his absence before the Mukhya Adhikari and in the case of members of the Kshettra Panchayat before the Pramukh and in his absence before the Khand Vikas Adhikari in the form set out in the Appendix.”
6. In other words, a person duly elected to a Kshettra Panchayat under
Section 6(1)(b) of the Adhiniyam is described as and remains an ‘elected
member’ and if that ‘elected member’ does not take the oath of office, he
or she does not cease to be an ‘elected member’. The only consequence
is that the ‘elected member’ cannot take a seat in the Kshettra Panchayat
and therefore cannot participate in the proceedings of the Panchayat. The
significance of this discussion will be apparent hereafter.
Taking the oath of office
7. After the result of the elections was notified by the State Election
Commission, the first meeting of the Kshettra Panchayat took place on
18th March, 2016. In this meeting, the ‘elected members’ elected the
S.L.P. (C) No. 31990 of 2017 Page 3
petitioner (Ram Pal Singh) as the Pramukh. He subscribed to the oath of
office before the Sub-Divisional Magistrate/appointee of the District
Magistrate. Thereafter, the version advanced by the petitioner is that he
administered the oath of office to the ‘elected members’ except 17 elected
members who were not present. On the other hand, the version advanced
by the contesting private respondents (elected members) as well as the
State of U.P. is to the effect that all 63 elected members took the oath of
office. We need to decide this factual controversy.
8. In this regard, we have been shown two documents in the first
instance, one by the petitioner and another by the contesting private
respondents (elected members). According to the document produced by
the petitioner, the Sub Divisional Officer/Pramukh reported that in the
proceedings of the Kshettra Panchayat of 18th March, 2016 of the elected
members 17 of them did not take the oath of office. The other document
has been filed by the private contesting respondents to the effect that
proceedings were held on 18th March, 2016 in which they participated but
there is an interpolation in the document to the effect that 17 elected
members did not take the oath of office. The submission is that they
could have participated in the proceedings only after they had subscribed
to the oath of office.
9. Accordingly, we have two conflicting versions of the proceedings
S.L.P. (C) No. 31990 of 2017 Page 4
of 18th March, 2016. The submission of the petitioner is that the 17
elected members did not take the oath of office and did not participate in
the proceedings held on 18th March, 2016. The submission of the private
contesting respondents is that did take the oath of office, they were
entitled to and did participate in the proceedings of 18th March, 2016 and
an interpolation has been made in the record of proceedings only to
suggest that they did not take the oath of office. Learned counsel for the
contesting private respondents made an additional submission and drew
our attention to the averments made in the counter affidavit to the effect
that these elected members were paid their daily allowance as well as
their travelling allowance for subsequent meetings and this payment
could have been made only if they had attended the meetings of the
Kshettra Panchayat after taking the oath of office. This averment has not
been specifically denied by anybody.
10. In view of this serious factual controversy, we are of opinion that it
would be appropriate to rely on the counter affidavit filed by the State. It
is stated in the counter affidavit that in a communication of 12th January,
2018 issued by the office of the Block Development Officer, it is stated
that all 63 members of the Kshettra Panchayat had taken the oath of
office on 18th March, 2016.
11. Our attention has also been drawn to a communication dated 11th
January, 2018 issued by the Deputy Collector, Shikhohabad. This S.L.P. (C) No. 31990 of 2017 Page 5
communication is in the nature of an inquiry into the events of 18 th
March, 2016 and it is addressed to the Chief Development Officer,
District Ferozabad. In the communication, it is stated inter alia, that a
perusal of the attendance register of 18th March, 2016 indicates that all 63
members of the Kshettra Panchayat had signed it. Further, oath was also
taken by all the elected members on 18th March, 2016. The conclusion of
the Deputy Collector, therefore, is quite clear that all the elected members
of the Kshettra Panchayat had taken the oath of office on 18th March,
2016. There is nothing to suggest that the affidavit filed by the State is
false or that the report referred to above is incorrect.
12. The petitioner has relied upon two other documents in support of
his case that 17 elected members did not take the oath of office on 18 th
March, 2016. The first such document is a communication of 28 th March,
2016 issued by the Block Development Officer, Jasrana, addressed to the
17 elected members requiring them to remain present in his office on 31st
March, 2016 to take the oath of office and fill the requisite form
confirming that oath of office has been taken.
13. As a follow up to the communication dated 28th March, 2016
reference was made by the petitioner to another document dated 31st
March, 2016 in which it is stated that 3 of the 17 elected members took
the oath of office. This document also requires the Assistant
S.L.P. (C) No. 31990 of 2017 Page 6
Development Officer (West) to take appropriate steps for completing the
formalities of oath being taken by the remaining 14 elected members.
14. On the other hand, in the communication/report of 11th January,
2018 the Deputy Collector, Shekohabad, has specifically stated that there
is nothing on record to suggest that any communication was sent to the 17
elected members on 28th March, 2016. There is no record of the
communication having been despatched nor is there any document
showing receipt of the communication by the 17 elected members. It
appears that the Block Development Officer, Jasrana, was also contacted
but he was unable to give any evidence or proof of any official record of
the communication of 28th March, 2016.
15. In the communication of 12th January, 2018 sent from the office of
the Block Development Officer, Jasrana, to the District Panchayat Raj
Office, Ferozabad, it is stated that no receipt or despatch relating to the
communication of 28th March, 2016 is available on record.
16. The counter affidavit filed on behalf of the State confirms that
there is nothing on the record of the Kshettra Panchayat to indicate that
any communication dated 28th March, 2016 was sent to the 17 elected
members. We accept the submission and categorical averment of the
State based on the record and conclude that no communication dated 28th
March, 2016 was sent to the 17 elected members for taking oath of office. S.L.P. (C) No. 31990 of 2017 Page 7
17. It was then submitted by learned counsel for the petitioner that if in
fact no communication was sent on 28th March, 2016 there was no reason
for 3 of the 17 elected members to take the oath of office on 31st March,
2016 since they had earlier taken the oath of office on 18th March, 2016.
It is not necessary for us to go into this issue and it is entirely for the 3
elected members to explain why they took the oath of office once again
on 31st March, 2016 having already taken the oath of office on 18th
March, 2016.
18. Our conclusion in this regard is that all 63 elected members of the
Kshettra Panchayat took the oath of office on 18th March, 2016.
No Confidence Motion
19. As time went by, it appears that there was a souring of relations
between the petitioner and other elected members of the Kshettra
Panchayat. Consequently, a No Confidence Motion was moved against
the petitioner on 12th June, 2017. The No Confidence Motion was moved
by 39 elected members including 13 elected members who had allegedly
not taken the oath of office. It was therefore submitted by the petitioner
that the No Confidence Motion was signed by only 26 elected members
which is less than half the total number of 63 elected members of the
Kshettra Panchayat. As such, in view of Section 15 of the Adhiniyam the
No Confidence Motion was not maintainable in law and the requisition
S.L.P. (C) No. 31990 of 2017 Page 8
deserved to be rejected at the threshold. This provision reads as follows:-
15. Motion of non-confidence in Pramukh- (1) A motion expressing want of confidence in the Pramukh or any of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat.
(3) to (10) XXX XXX XXX
(11) If the motion is carried with the support of more than half of the total number of elected members of the Kshettra Panchayat for the time being –
(a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette, and
(b) the Pramukh or as the case may be, (sic) shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or (sic) shall be received until after the expiration of one year from the date of such meeting.
(13) No notice of a motion under this section shall be received within one year of the assumption of office by a Pramukh or (sic) as the case may be.
20. We find a fallacy and a dichotomy in the submission of learned
counsel for the petitioner with regard to the status of elected members of
the Kshettra Panchayat who have allegedly not taken the oath of office.
21. The fallacy and dichotomy arises in this manner: either the 13
elected members continue to be elected members of the Kshettra S.L.P. (C) No. 31990 of 2017 Page 9
Panchayat, despite their not having taken the oath of office or they cease
to be elected members of the Kshettra Panchayat. If they are not elected
members for the purposes of signing the No Confidence Motion, then the
number of signatories to the No Confidence Motion would drop from 39
to 26. Correspondingly, the number of elected members of the Kshettra
Panchayat would also get reduced from 63 to 50. Consequently, it would
have to be concluded that since 26 out of 50 elected members of the
Kshettra Panchayat have signed the No Confidence Motion, more than
50% of the elected members. Therefore, the No Confidence Motion
would be maintainable under the provisions of Section 15 of the
Adhiniyam.
22. In other words, it is not correct on the part of learned counsel for
the petitioner to contend that for the purposes of signing the No
Confidence Motion, the 13 elected members are not elected members but
for the purposes of the composition of the Kshettra Panchayat they are
elected members thereby maintaining the strength of the Kshettra
Panchayat at 63. If the 13 elected members are not elected members for
one purpose, they cannot have a different status for another purpose.
Their status must remain the same as that of an elected member (or not an
elected member) both at the time of signing the No Confidence Motion
and for the composition of the Kshettra Panchayat.
S.L.P. (C) No. 31990 of 2017 Page 10
23. That apart, there is nothing in the law to indicate that an elected
member ceases to be a member of the Kshettra Panchayat if he or she
does not take the oath of office.
24. To get over this fallacy and dichotomy, it was submitted by learned
counsel for the petitioner that it would be strange and illogical that the 13
elected members could sign the No Confidence Motion even though they
had not taken the oath of office but they could not actually vote in the
Panchayat because they were not entitled to a seat in the Panchayat, not
having taken the oath of office. While this may appear to be illogical and
irrational, there is no challenge to the provisions of the Adhiniyam and
we must proceed on the basis that if the requisition for the No Confidence
Motion was numerically valid, the discussion on that would take place in
the Panchayat and the requisition would meet its appropriate fate. We,
therefore, reject this contention of the learned counsel for the petitioner.
25. Although we are loathe to adjudicate on factual disputes, we have
been compelled to do so in this particular case due to the nature of the
conflicting claims and the fact that we are concerned with democratically
elected representatives of a Kshettra Panchayat. That being said, our
conclusion on facts is that all 63 elected members of the Kshettra
Panchayat took the oath of office on 18th March, 2018 and no
communication was sent on 28th March, 2018 to or received by any of the
S.L.P. (C) No. 31990 of 2017 Page 11
17 elected members of the Kshettra Panchayat who were alleged not to
have taken oath of office on 18th March, 2018. Consequently, the No
Confidence Motion against the petitioner was a numerically valid
requisition having been signed by more than 50% of the elected members
of the Kshettra Panchayat.
Position in law
26. The legal position having been settled for over 100 years, we see
no dire necessity or any necessity at all of over-turning the law laid down.
27. In Bhupindra Nath Basu v. Ranajit Singh Bahadur1 the question
related to the election of two non-official additional members of the
Council of the Governor-General. It was alleged that two electors had not
taken the oath of allegiance and therefore the election of the non-official
additional members was void. An unsuccessful candidate in the election
questioned the validity of the election and sought the recounting of votes
after excluding the votes of two electors who had not taken the oath of
allegiance.
28. The Calcutta High Court referred to In re Mayor of Penryn2 and
Rex v. Swyer3 which noted that a person is admitted to a public office
(which requires the oath of allegiance) only when that oath is taken.
1 A.I.R. 1914 Calcutta 152 2 1 Strange 582 = 93 E.R. 714 3 10 B. & C. 486 = 8 L.J. (o.s.) K.B. 221 = 109 E.R. 531 S.L.P. (C) No. 31990 of 2017 Page 12
However, the relevant Regulation did not address this issue. It was held
that for the purpose of performing ‘legislative functions’ conferred by the
Regulation, it was a necessary requirement that the oath of allegiance is
taken. The mere fact of omission to take an oath of allegiance did not
ipso facto cause a member to vacate his seat. Additionally, Regulation
8(1)(b) gave discretion to the Governor-General to declare a seat as void
if the elected person fails to take the oath of allegiance. In the cited case,
the Governor-General had not exercised such an option. Therefore, the
mere fact that two elected members did not take the oath of allegiance did
not result in their participation in the electoral process as illegal.
29. A somewhat similar situation arose in Pashupati Nath Sukul v.
Nem Chandra Jain & Ors.4 In this case, a member of a Legislative
Assembly who had not taken the oath of office had proposed a candidate
for election to the Rajya Sabha. Approving the law laid down in
Bhupindra Nath Basu this Court held that as long as the name of the
elected member appears in the notification published under the provisions
of Section 73 of the Representation of the People Act, 1951 that member
can take part in all ‘non-legislative activities’ of an elected member.
Reference was made to Article 188 of the Constitution which provides
that every member of the Legislative Assembly shall, before taking his
4 (1984) 2 SCC 404 S.L.P. (C) No. 31990 of 2017 Page 13
seat, make and subscribe an oath or affirmation according to the form set
out for the purpose in the Third Schedule of the Constitution.
Article 188 of the Constitution reads as follows:
“Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.”
In this context, it was held by this Court in paragraph 20 of the
Report as follows :
“We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act, it should be held that there was no infirmity in the nomination. …… .”
30. In view of the above, it was held that since the name of the
proposer appeared in the notification published under Section 73 of the
Representation of the People Act, 1951 there was no infirmity in the
nomination of the candidate to the Rajya Sabha.
31. The decision of the Calcutta High Court as well as of this Court
were referred to and relied upon in Smt. Kamla Devi v. State of U.P. &
S.L.P. (C) No. 31990 of 2017 Page 14
Ors.5 In this case a somewhat similar situation as in the present
proceedings before us had arisen. A No Confidence Motion was signed
and carried against the Block Pramukh. Challenging this, the submission
of the Block Pramukh was that 11 elected members of the Kshettra
Panchayat had not subscribed to the oath of office after being elected.
Therefore, they were ineligible to participate in the meeting convened
for the No Confidence Motion and to cast their vote. It was contented
that these 11 elected members could not be treated as members of the
Kshettra Panchayat and if their votes are disregarded, the No Confidence
Motion would fail. The Allahabad High Court rejected the contention
following the decisions mentioned above.
32. Learned counsel for the petitioner sought to make a distinction
between the performance of ‘legislative functions’ and ‘non-legislative
functions’ of an elected member of the Kshettra Panchayat. It was
submitted that the Kshettra Panchayat does not have any legislative
functions and its duties and responsibilities are circumscribed by Chapter
IX of the Constitution. The submission of learned counsel may not be
strictly correct since the Panchayat can be empowered by the State
Legislature to levy, collect and appropriate taxes, duties, tolls and fees.
However, without going into this issue, the broad intent of the decision of
the Calcutta High Court, the Allahabad High Court as well as this Court
5 2014 (8) ADJ 525 S.L.P. (C) No. 31990 of 2017 Page 15
is that if an elected member does not take the oath of office, he or she
cannot participate in the proceedings of the Kshettra Panchayat, unless
there is something to the contrary in a statute, which is not the case here.
Consequently, there is no prohibition against an elected member from
being a signatory to a No Confidence Motion. It is quite possible that in
the absence of the signatory to the No Confidence Motion – an elected
member – the No Confidence Motion might get defeated in the Panchayat
due to his or her inability to vote, but that is not relevant for our purposes.
Sanctity of oath of office
33. The case law that has emerged over the years suggests that
subscribing to the oath of office is not being taken very seriously. It must
be appreciated that taking the oath of office is not a mere ritual but there
is a degree of seriousness and sanctity attached to it. Different laws
provide different consequences (some quite mild) for not taking the oath
of office. We have already referred to the Adhiniyam and the Rules. We
are of opinion that since subscribing to the oath of office is a solemn
occasion, failure to do so ought to result in serious consequences, such as
the seat being declared vacant after a specified time. In fact, Section 40 of
the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows:
“40. Oath or affirmation to be made by members - (1) Notwithstanding anything contained in the Oaths Act, 1969 (Central Act X of 1969), every person who is elected to be a
S.L.P. (C) No. 31990 of 2017 Page 16
member or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:-
“I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter”.
(2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down in sub-section (1), shall cease to hold his office and his seat shall be deemed to have become vacant.
(3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in sub-section (1).
(4) Notwithstanding anything contained in sub-section (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may be.”
34. We are of the view that elected representatives be visited with
serious consequences for not taking the oath of office within a specified
time, mainly because even the Constitution attaches a great degree of
S.L.P. (C) No. 31990 of 2017 Page 17
solemnity to the oath of office. For example, Article 60 of the
Constitution provides that before entering upon his office, the President
shall make and subscribe the oath or affirmation. Similarly, Article 69 of
the Constitution requires the Vice President to make and subscribe the
oath or affirmation before entering upon his office.
35. Article 84 of the Constitution requires that a person shall not be
qualified to be chosen to fill a seat in Parliament unless he makes and
subscribes the oath or affirmation according to the forms set out for the
purpose in the Third Schedule. We have already referred to the oath or
affirmation by a member of the Legislative Assembly or the Legislative
Council as required by Article 188 of the Constitution. If the Constitution
has attached importance to the oath of office, why cannot legislations
provide something similar to what Tamil Nadu has?
36. Additionally, it should be appreciated that apart from requiring
elected representatives of a Panchayat attaching seriousness to taking the
oath of office, an unimpeachable record of the elected representatives
taking the oath of office should be maintained by the concerned officials
of the State Government. Unless the sanctity of the oath of office is
appreciated and appropriate documentation kept, we will continue to be
faced with situations such as the present where a dispute is raised whether
an elected member of a body has taken the oath of office. Such
controversies are completely avoidable. S.L.P. (C) No. 31990 of 2017 Page 18
Conclusion
37. In view of the factual conclusions that we have arrived at as well as
the law on the subject, we have no hesitation in holding that the 13
signatories to No Confidence Motion against the petitioner were elected
members of the Kshettra Panchayat and were entitled to sign the No
Confidence Motion and that there was no infirmity in this regard.
38. The petition is accordingly dismissed and interim orders vacated.
There will be no order as to costs.
………………………J (Madan B. Lokur)
New Delhi; April 24, 2018
S.L.P. (C) No. 31990 of 2017 Page 19
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. 31990 OF 2017
RAM PAL SINGH …PETITIONER (S)
Versus
THE STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. I have perused the erudite judgment of my esteemed
brother. Though I agree with the conclusion that the petition
should be dismissed and interim order be vacated, I am unable to
pursue myself to agree with my learned brother on the issue
“whether an elected member of a Kshettra Panchayat, who has
not subscribed to the oath of office, can sign or move a
S.L.P. (C) No. 31990 of 2017 Page 20
no-confidence motion against Pramukh of the Kshettra
Panchayat”.
2. The facts as well as the relevant rules and provisions of law
have been set out in detail in the judgment of my learned
brother, which I need not refer to in detail. Rule 2(2) of the U.P.
Kshettra Panchayats and Zila Panchayats (Oath of Office of
Adhyaksha or Pramukh Etc.) Rules, 1994 (hereinafter referred to
as ‘the Rules’) defines ‘Members’. In case of Kshettra Panchayat,
‘Members’ means those persons elected under clause (b) of
sub-section (1) of Section 6 of the U.P. Kshettra Panchayats and
Zila Panchayats Adhiniyam,1961 (for short “the Adhiniyam”).
The Adhiniyam provides that a Kshettra Panchayat shall consist
of a Pramukh, who shall be its Chairperson and elected
members, who shall be chosen by direct election from territorial
constituencies in the Panchayat areas. It is out of these elected
members that a Pramukh is elected in terms of Section 6(1)(b) of
the Adhiniyam. According to Rule 3(3) of the Rules, which has
been set out in the judgment of my learned brother, a member of
the Kshettra Panchayat, before taking his seat for the first time
as such member, shall make or subscribe oath or affirmation
before the Pramukh and in his absence before the Khand Vikas
S.L.P. (C) No. 31990 of 2017 Page 21
Adhikari in the form set out in the appendix to the Adhiniyam.
Rule 3(3), therefore, envisages that before taking seat for the first
time the member must make or subscribe oath or affirmation
(emphasis supplied). The words ‘first sitting’ have to be given
some significance and the significance is that these elected
members can vote without taking oath only while electing the
Pramukh from amongst themselves because thereafter, the
Pramukh administers oath to them and then, the sitting of the
House takes place.
3. The language of Rule 3 indicates that a member must
subscribe to the oath before he can take part in the sitting of the
Panchayat. No doubt, an elected member continues to be
member because no disqualification has been provided for not
taking oath, but the seminal issue is whether such member can
take part in the proceedings of the Panchayat. Reference in this
regard has been made to the judgment of this Court in the case
of Pashupati Nath Sukul v. Nem Chandra Jain & Ors.6,
judgment of the Calcutta High Court in the case of Bhupendra
Nath Basu v. Ranjit Singh7 and the judgment of the Allahabad
High Court in the case of Kamla Devi v. State of U.P & Ors.8
6 (1984) 2 SCC 404 7 AIR 1914 Cal.152 8 2014 (8) ADJ 525 S.L.P. (C) No. 31990 of 2017 Page 22
4. Before dealing with these judgments, I feel that it would be
apposite to deal with two judgments referred to by the Calcutta
High Court in Bhupendra Nath Basu’s case (supra). The first
judgment is the case of the Mayor of Penryn9. In this case, the
Mayor of Penryn was elected to the office but had not subscribed
to the oath and without being sworn in, he had exercised the
power of the office of Mayor. On a writ of quo warranto being
entertained, it was found that though the Mayor had been duly
elected, since he had acted as a Mayor without having subscribed
to the oath, he had usurped the power of Mayor and a judgment
ousting him from office was passed. It had been urged that at
best a writ of mandamus be issued directing him to take oath,
but this prayer was rejected on the ground that once the Mayor
had usurped the office, judgment had to be pronounced against
him.
5. Judgment in Rex v. Swyer10 is not very relevant. In this
case it was held that the period of the office of the Mayor would
commence only from the date he took oath.
6. The Calcutta High Court in Bhupendra Nath Basu’s case
(supra) was dealing with a case where election was held for the
9 93 ER 714 [ Kings Bench] 10 109 E.R. 531 (Kings Bench) S.L.P. (C) No. 31990 of 2017 Page 23
non-official additional members to the Governor General’s
Council from the constituency of the non-official members of the
Bengal Legislative Council. There were four candidates in the
election and the petitioner Bhupendra Nath Basu got 17 votes
and was at 3rd place. The successful candidates, viz. Moharaja
Ranajit Singh Bahadur and Surendra Nath Banerjee had secured
18 and 22 votes respectively. Petitioner Bhupendra Nath Basu
first filed an appeal before the Governor General in Council,
which was rejected and thereafter, he filed a suit before the High
Court questioning the validity of the election mainly on the
ground that two of the members of the Bengal Legislative Council
who had cast their votes, had not taken oath of allegiance and,
therefore, their votes should be excluded. The Calcutta High
Court, on the basis of the regulations relating to elections in
question, held that the voters had a right of exercising their vote
even by means of registered letters and, therefore, even if they
were elected and not subscribed to the oath of office, they could
take part in the elections to the non-official members of the
Governor General in Council. The High Court observed as
follows:
“It is only for the purpose of exercising the legislative functions governed by the regulations
S.L.P. (C) No. 31990 of 2017 Page 24
and by the Act that the oath of allegiance is required.”
7. In the case of Pashupati Nath Sukul (supra), election to
the U.P. State Legislative Assembly took place and the Election
Commission of India, on 9th June, 1980 notified the names of the
elected members. A notification was issued that they would take
oath as required under Article 188 of the Constitution at the
session of the Assembly which had been summoned on 27th
June, 1980. In the meantime, the Election Commission issued a
notification on 17th June, 1980 calling upon the elected members
to elect a person for filling up vacancy in the Rajya Sabha.
Nominations were to take place on 24th June, 1980; polling, if
necessary, on 4th July, 1980. One of the objections taken against
the nomination of Pashupati Nath Sukul was that his name
had been proposed by a person, who had not taken oath as
member of the Legislative Assembly. Various other grounds were
taken with which we are not concerned but, this Court, after
discussing the entire law held as follows:
“20. We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him.....”
S.L.P. (C) No. 31990 of 2017 Page 25
8. However, it would be pertinent to refer to certain other
observations of the apex Court in the same case:
“18 ………..Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer of a valid nomination for election to the Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words ‘sitting and voting’ in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under Section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of Section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the legislative proceedings of the House carried on at its meeting. Nor the vote cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose.”
9. When we read both the observations together, it is obvious
that a member who is elected to a House, does not cease to be a
S.L.P. (C) No. 31990 of 2017 Page 26
member only because he had not subscribed to the oath unless
there is a specific provision in this regard. However, both from
the judgments of this Court and the Calcutta High Court, it is
apparent that such an elected member who has not taken oath,
can only take part in those proceedings which are not
proceedings of the House. The Calcutta High Court was dealing
with the election of non-official members of the Governor General
in Council. The voters were the members of the Bengal
Legislative Council and, therefore, the election to the House of
the Governor General in Council had no connection with the
business of the Bengal Legislative Council. As far as the
judgment of this Court is concerned, the members of the
Legislative Assembly, who had not taken oath, were taking part
in elections to the Rajya Sabha, which was definitely not part of
the business of the Legislative Assembly.
10. As far as the present case is concerned, as pointed out
earlier, Rule 3(3) prescribes that before taking their seat for the
first time, the members must subscribe oath or affirmation.
What is the consequence of a member not taking oath? He does
not cease to be a member but, at the same time, he cannot take
part in the business of the House. In my view, a motion of no
S.L.P. (C) No. 31990 of 2017 Page 27
confidence is part of the proceedings of the Panchayat, as such a
motion is governed by the provisions of the Adhiniyam and,
therefore, this is part of the business of the Panchayat. An elected
member who has not taken oath, cannot move and be a signatory
to such a no confidence motion. Such motion has to be moved in
terms of Section 15 of the Adhiniyam. In my view, those
members who have not taken oath and are, therefore, not entitled
to vote at such no confidence motion, cannot be held to be
entitled or eligible to sign such motion. Otherwise, it would lead
to a very odd situation where such members can sign a motion
but cannot vote when the said motion is put to vote. This could
not have been the intention of the Legislature. Section 15 (12)
and (13) of the Adhiniyam provide that a no-confidence motion
cannot be moved within one year of the election having taken
place or within a year of the rejection of the motion. Thus, the
Legislature intended that a no-confidence motion should not be
moved at drop of a hat. Therefore, according to me, members
who have not taken oath and, therefore, do not have a right to
vote for the no-confidence motion cannot be permitted to sign
such a motion.
S.L.P. (C) No. 31990 of 2017 Page 28
11. As far as the judgment of the Allahabad High Court in
Kamla Devi (supra) is concerned, that only purports to follow the
judgment of this Court. Considering the fact that my view is
different, neither the Calcutta High Court judgment nor the
judgment of this Court is applicable to the facts of the instant
case. The judgment of the Allahabad High Court, according to
me, does not lay down the correct position of law.
12. I, therefore, respectfully differ with my respected learned
brother on the question as to whether the signing of a no-
confidence motion is part of the business of the House.
However, I am in agreement with my learned brother that the
petition ought to be dismissed. There are disputed question of
facts as to whether certain members had taken oath or not,
which questions cannot be decided at this stage and the
petitioner has failed to discharge the heavy burden on him to
prove that these members have not taken oath. I also agree with
my learned brother that sanctity must be attached to the oath.
Various articles of the Constitution of India and various other
laws provide that persons holding public office must subscribe to
an oath of allegiance. This oath cannot be rendered meaningless
and the Legislature would be well advised to provide
S.L.P. (C) No. 31990 of 2017 Page 29
consequences for not subscribing to such an oath of office. To
avoid such controversy in future, it would also be advisable if the
swearing in/oath taking is videographed so that no such dispute
arises in future.
.….…………………….J. (DEEPAK GUPTA)
New Delhi April 24, 2018
S.L.P. (C) No. 31990 of 2017 Page 30