USHA BHARTI Vs STATE OF U.P. .
Bench: SURINDER SINGH NIJJAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: C.A. No.-004197-004197 / 2014
Diary number: 21150 / 2013
Advocates: KAMINI JAISWAL Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………. OF 2014 (Arising out of SLP (C) No.22035 of 2013)
Usha Bharti …Appellant
VERSUS
State of U.P. & Ors. ...Respondents
WITH CONTEMPT PETITION (C) No. 287 of 2013
IN CIVIL APPEAL NO………………. OF 2014
(Arising out of SLP (C) No.22035 of 2013)
WITH CIVIL APPEAL NO……………OF 2014
(Arising out of SLP(C) No.29740 of 2013)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These appeals are directed against the judgment
and order passed by the High Court of Judicature at
Allahabad (Lucknow Bench) in Review Petition No.103
of 2013 on 4th July, 2013 dismissing the review petition
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filed by the appellant.
3. Since the issues raised in these appeals are
pristinely legal, it would not be necessary to make a
detailed reference to the facts, leading to the filing of
the present appeals. Even otherwise, the High Court in
the impugned judgment has made an elaborate survey
of the facts. Therefore, it is unnecessary to repeat the
same. However, the foundational facts for challenging
the impugned judgment of the High Court are
recapitulated for ready reference.
4. The appellant successfully contested the election
held in October, 2010 for becoming a Member of the
Zila Panchayat, Sitapur, U.P. 62 candidates were
elected as the Members of the Zila Panchayat including
the appellant and respondents 5 to 37. On 12th
December, 2010, the appellant was elected as
Adhyaksh of the Zila Panchayat, Sitapur. On 30th
October, 2012, a notice of proposed Motion of No
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Confidence was given to the Collector, Sitapur for
calling a meeting under Section 28 of the U.P. Kshettra
Panchayat & Zila Panchayat Act, 1961 (for short ‘the
Act’). The notice calling for a Motion of No Confidence
was signed by 37 members. The legal requirement
under Section 28(2) is that a motion expressing want of
confidence in the Adhyaksh must be signed by not less
than half of the total number of elected members. On
31st October, 2012, the Collector, Sitapur issued a
notice informing the elected members that a meeting
for considering the Motion of No Confidence will be held
on 23rd November, 2012.
5. Aggrieved by the issuance of said notice, the
appellant filed Writ Petition No.9654 of 2012 on various
grounds alleging that the motion for no confidence has
been done with an ulterior motive to usurp the office of
the appellant. It was alleged that atleast three
members whose names were mentioned in the Motion
for No Confidence had not signed the motion/notice
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requesting the Collector to call a meeting. The
appellant made the following prayers in the writ
petition :-
“(i) Issue an appropriate writ, order or direction in the nature of certiorari quashing the impugned notice of intent to bring no- confidence motion against the petitioner;
(ii) Issue a writ, order or direction or writ in the nature of certiorari quashing the notice dated 31st October, 2012, issued by respondent No.3, as contained in Annexure No.1 to the writ petition.
(iii) Issue a writ, order or direction or writ in the nature of mandamus directing the respondent No.3 to verify the genuineness of the signature of the member’s on the notice to bring motion against the petition dated 30th October, 2012,
(iv) Issue a writ, order or direction or writ in the nature of mandamus commanding the opposite parties to let the petitioner to continue on the office of Adhyaksha, Zila Panchayat Sitapur of Tehsil & District Sitapur.
(v) Issues an ad-interim mandamus to the above effect.
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(vi) Issue any other appropriate writ, order or direction in favour of the petitioner as the Hon’ble Court may deem fit in the circumstances of the case. And
(vii) Award the costs of the petition to the petitioner.”
6. The High Court on 21st November, 2012 directed
the District Judge or any Additional District Judge
nominated by him to hold an enquiry to ascertain
genuineness of the affidavits and signatures of
members and to submit a report thereon before the
next date of hearing. It was also directed that further
proceedings of “No Confidence Motion” shall remain in
abeyance. The matter was to be listed on 20th
December, 2012. The report was duly submitted, which
indicated that 33 Members had admitted their
signatures appearing on the notice, and the affidavits,
submitted in connection with the motion of no
confidence. It was also stated that “among those
members, in respect of whom signatures and affidavits
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were doubted, the report of Deputy Director (Pralekh)
mentions that Zila Panchayat Member Mr. Vijay Kumar
has also proved to have been signed and submitted the
notice and the affidavit. Accordingly, 34 Zila Panchayat
Members are found to have applied for bringing in the
motion of no confidence.” Taking note of the aforesaid
report, the High Court dismissed the writ petition with
the following observations:
“As the requirement of valid signature for carrying out the No Confidence Motion is only 31, whereas in the enquiry report it has been found to be 34, now nothing would survive in this writ petition. Hence, it is dismissed.”
7. On 6th February, 2013, the Collector, Sitapur
issued notice fixing 22nd February, 2013 for
consideration of the Motion of No Confidence.
8. Aggrieved by the judgment of the High Court
dated 5th February, 2013, the appellant moved this
Court through S.L.P.(C) No.8542 of 2013.
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9. Mr. Shanti Bhushan, learned senior counsel
appearing for the appellant submitted that the High
Court had wrongly relied upon the report submitted by
the Additional District Judge without giving the
appellant any opportunity to submit any objection to
the report. This apart, in view of the provisions
contained in Article 243C(2)of the Constitution of India,
no provision has been made for No Confidence Motion
in Panchayat elections. It was submitted by Mr. Shanti
Bhushan that the aforesaid issues with regard to the
applicability of scope and ambit of Article 243 of the
Constitution of India, even though specifically raised
the writ petition and argued before the High Court have
neither been noticed nor considered. Taking note of the
aforesaid submissions, this Court passed the following
order :-
“If that be so, in our opinion, the remedy of the petitioner would be to seek review of the judgment of the High Court rather than to challenge the same by way of this special leave petition.”
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10. The prayer made by Mr. Shanti Bhushan that the
operation of the impugned order be stayed for two
weeks to enable the appellant to approach the High
Court by way of review petition was declined. It was,
however, made clear that the result of the meeting,
which was scheduled to be held on 22nd February, 2013,
shall not be declared for a further period of two weeks.
11. Thereafter, the petitioner filed Review Petition
No. 103 of 2013 before the High Court. The appellant
stated that members owning allegiance to the
Samajwadi Party led by Smt. Madhu Gupta, W/o Shri
Hari Om Gupta – Respondent No.5, were not able to
muster any signature for the initiation of the Motion
and, therefore, appended forged signature of several
Members on the notice of intent to move the Motion of
No Confidence. These forged signatures were used by
the Samajwadi Party to induce other Members to join
for giving the notice for moving the Motion of No
Confidence. It was stated that the very initiation of the
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Motion was a fraud on the system and against the
settled democratic principles. The act of forgery of
signatures was committed on the instance of
Respondent No. 5 and her supporters. Therefore, the
initiation of Motion of No Confidence was invalid and
illegal. The appellant pointed out that in the earlier writ
petition, it was specifically pleaded that in terms of
Article 243N, the provision of Section 28 have been
rendered otiose. The provision contained in Section 28
of the Act, being inconsistent with the constitutional
scheme, which does not comprehend the removal of
Adhyaksh of Zila Panchayat, mid term and as such, the
Motion otherwise also could not be permitted to be
carried. It was further stated that “in view of the
provisions of Article 243C(ii) of the Constitution of India,
there being no provision in the Panchayat election for
Motion of No Confidence whether Section 28 of the
Panchayatiraj Adhiniyam would continue to operate in
view of Article 243N”.
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12. Upon completion of the pleadings, the High Court
by an elaborate judgment has dismissed the Review
Petition by the impugned order dated 4th July, 2013. On
10th July, 2013, the District Magistrate, Sitapur fixed a
meeting for counting of votes on 12th July, 2013.
Aggrieved by the judgment of the High Court, the
appellant filed SLP in this Court on 11th July, 2013. The
matter was mentioned in Court at 10.30 A.M. before the
Chief Justice of India. A direction was issued by the
Chief Justice of India to the Registry to place the matter
before this bench at the end of the list. In the
meantime, No Confidence Motion was passed against
the appellant with 33 votes in favour of the No
Confidence Motion and 23 against with 6 votes being
declared invalid. The counting was supervised by the
Civil Judge, Sitapur. The representative of the
petitioner/appellant was present and had stated that he
is satisfied with the counting of votes. There has been
no challenge to the result of the No Confidence Motion,
with regard to the counting of votes. On 12th July, 2013,
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at about 12.15 P.M., this Court issued notice and
directed that “in the meanwhile, status quo, as it exists
today, shall be maintained”. Since Respondent No.5
had filed a caveat on 11th July, 2013 at about 11.00 A.M.
and no notice had been given to her before hearing the
Special Leave Petition, she filed an application seeking
recall of the aforesaid order dated 12th July, 2013. It
was claimed that Respondent No. 5 sought recall on the
following grounds:-
(i) No notice was given to Respondent before hearing and passing Order dated 12.07.2013.
(ii) Counting of votes was already done and the no confidence Order was passed well before passing the Order dated 12.07.2013 by this Hon’ble Court.
(iii) Present SLP is not maintainable as per the settled law laid down by this Hon’ble Court namely that an SLP is not maintainable against the dismissal of review filed before the HC after dismissal of SLP.
(iv) In any case the SLP is also not maintainable as the issue raised in the SLP is already covered by the judgment of this Hon’ble
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Court in Bhanumati and Ors. V. State of U.P. & Ors. reported in 2010 (12) SCC 1.
13. Whilst the matter was pending, on 23rd July, 2013,
the petitioner filed Contempt Petition No. 287 of 2013
for violating the orders of this Court dated 12th July,
2013. It is stated that Respondent No.5 admittedly
made false statement in the application to recall the
order dated 12th July, 2013. The order of this Court
was communicated whilst the meeting for counting of
votes was still in progress. The appellant states that
one of the newspapers “Amar Ujala” has reported that
the result had been declared at 1.15 P.M.
14. Respondent No. 5 was impleaded as Respondent
No. 4 in the aforesaid Contempt Petition. However,
notice of contempt was issued only against official
Respondent Nos. 1, 2 and 3. I.A. No. 8 was filed on
18th November, 2013 pointing out that in spite of No
Confidence Motion having been passed, the appellant
has continued to take policy decisions which were not
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only prejudicial to public interest but would also create
several problems for Zila Panchayat, in case the
present appeal is dismissed. The aforesaid application
came up for hearing on 19th November, 2013. It was
pointed out on behalf of Respondent No. 5 that the
appellant had issued a Notice of Meeting on 8th
November, 2013 of the meeting of the Zila Panchayat,
Sitapur to be held on 20th November, 2013 at 11.30
A.M. to take decision on Subject Nos. 1 to 16
enumerated in Annexure A3 to the Interlocutory
Application.
15. On the other hand, it was submitted on behalf of
the appellant that the notice merely indicates the
subjects on which decisions are required to be taken for
the development work within the Zila Panchayat. It was
submitted that the appellant ought to be permitted to
take necessary decisions. However, during the course
of deliberations, Mr. Shanti Bhushan had very fairly
submitted that the appellant will voluntarily not preside
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over the aforesaid meeting, rather the Collector may be
requested to chair the meeting. A direction was,
therefore, issued that the District Magistrate, Sitapur
would chair the meeting on 8th November, 2013. It was
made clear that the issuance of the aforesaid direction
will not in any manner vary/alter the status quo order
passed by this Court on 12th July, 2013, which was
directed to continue. Submissions of the parties in the
appeal were heard on 3rd December, 2013, 5th
December, 2013 and 11th December, 2013 when the
judgment was reserved.
16. Very detailed and elaborate submissions have
been made by the learned counsel for the parties,
which can be briefly summed up as follows:-
(i) At the outset, Dr. Rajiv Dhawan submitted
that the Special Leave Petition is not
maintainable as it is directed only against the
judgment rendered by the High Court in
Review Petition No. 103 of 2013. In support
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of the submissions, learned senior counsel
relied on judgments of this Court in State of
Assam Vs. Ripa Sarma 1 and Suseel
Finance & Leasing Co. Vs. M. Lata &
Ors.2. Dr. Dhawan also submitted that even
otherwise, the SLP deserves to be dismissed
as the matter is squarely covered against the
petitioner/appellant by the judgment of this
Court in Bhanumati & Ors. Vs. State of
Uttar Pradesh through its Principal
Secretary & Ors. 3 Relying on the aforesaid
judgment, it was submitted by Dr. Dhawan
that the petitioner can not even be heard on
the proposition that Section 28 of the Act is
inconsistent with Part IX of the Constitution.
Mr. Ashok Desai, learned senior counsel also
submitted that in view of the law laid down in
Bhanumati & Ors. (supra), the issue raised
herein is no longer res integra. Learned 1 (2013) 3 SCC 63 2 (2004) 13 SCC 675 3 (2010) 12 SCC 1
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senior counsel also submitted that the SLP
against the judgment of the High Court
rendered in the Review Petition would not be
maintainable without challenging the
judgment which was sought to be reviewed.
(ii) Mr. Shanti Bhushan has submitted that the
issue raised in the present appeal is of vital
importance, i.e., whether Section 28 of the
Act, which provides for bringing No
Confidence Motion against the Chairman of
Zila Panchayat is valid in so far as it is
inconsistent with Part IX of the Constitution of
India. Therefore, this Court will have to
determine whether the impugned provision
falls within the legislative competence of the
State Legislature. The Court will also have to
decide as to whether the impugned provision
is inconsistent with Article 243N of the
Constitution of India?
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(iii) It is submitted by the learned senior counsel
that the provision of No Confidence Motion
for removing the Chairman or Adhyaksha of
Zila Panchayat is inconsistent with Part IX of
the Constitution. He submits that Part IX of
the Constitution containing Articles 243A to
243O were inserted wide the Constitution
(73rd Amendment Act, 1992) w.e.f. 24th April,
1993. The aforesaid articles have laid down
exhaustive provisions for self-governance at
Panchayat level. This includes election of
Panchayat Members and its Chairman as well
as their disqualification. However, no
provision is made for bringing a No
Confidence Motion against the Chairperson of
Panchayat. Article 243C(v) provides that the
Chairperson of a Panchayat at the village
level shall be elected in such a manner as the
Legislature of a State may, by law, provide.
Article 243F provides that Panchayat can
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make law for disqualification of Panchayat
Members. Sections 18, 19 and 29 of the Act,
which provides for composition of Zila
Panchayat, election of Adhyaksha and
removal of Adhyaksha respectively are in
consonance with the aforesaid Articles of the
Constitution of India. Section 19 of the
aforesaid Act provides for election of
Adhyaksha by elected members of the Zila
Panchayat from amongst themselves.
Section 29(1) of the Act enumerates the
grounds for removal of Adhyaksha but does
not include the provision for bringing a
Motion of No Confidence against the
Chairman.
(iv) Learned senior counsel further submitted
that the provision contained in Section 28(1)
of the Act is repugnant to Part IX of the
Constitution. Mr. Shanti Bhushan submits
that in any event, the provisions contained in
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Section 28 of the Act could not have
continued after expiry of one year of the
enactment of the 73rd Amendment of the
Constitution of India, which came into effect
from 24th April, 1993. Such continuance
would be inconsistent with the provisions
contained in Article 243N of the Constitution
of India.
(v) Learned senior counsel further submitted
that Article 243D for the first time introduced
reservation of seats for Scheduled Castes,
Scheduled Tribes as well as ladies both in the
election of members of Panchayat as well as
for the office of Chairperson. It is submitted
that the provision of “No Confidence” like
Section 28 of the Act can frustrate the
provision for such reservation. SC, ST and
ladies always being in minority in Panchayat,
a Chairperson from the reserved category
can easily be removed from the said office by
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majority of general category Panchayat
members. Such a result was not envisaged
by the provisions contained in Article 243D.
It is further submitted that Part IX of the
Constitution has exhaustively specified the
areas for which a State Legislature, as local
self-governance falls in the State List, can
make laws in order to have complete
decentralization of the governance. This,
according to the learned senior counsel was
the main objective of the 73rd Amendment
Act which does not provide for any law to be
made by the State Legislature for bringing a
No Confidence Motion against the
Chairperson/Adhyaksha/Zila Panchayat.
(vi) According to Mr. Bhushan, if there had been
no existing provision for No Confidence like
Section 28 in the Act, then after 73rd
amendment in the Constitution, the State
Legislature could not have brought such a
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provision as it is not competent to do so. The
provision, according to Mr. Bhushan, is likely
to be struck down as the powers vested in
the elected body are sought to be taken over
and vested in the executive, which would be
opposed to the basic structure of the
Constitution of India. Mr. Bhushan
emphasized that by permitting the provisions
in Section 28 to continue, the State
Legislature and Executive are trying to
deprive the elected representatives of their
fundamental rights enshrined in Part III and
Part IX of the Constitution of India. Relying
on the judgment of this Court in I.R. Coelho
Vs. Union of India 4 . He has submitted that
fundamental rights include within itself the
right to choose. The aforesaid right to
choose would continue till the tenure of the
representative of the people for which he has
4 (2007) 2 SCC 1
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been elected is exhausted. The provision in
Section 28 permits such tenure to be
curtailed, which would infringe the
fundamental right of the voters that elected
such a member. Giving numerous examples
from different Articles of the Constitution of
India, it is submitted that provision of No
Confidence Motion has been specifically
provided wherever it was intended. As
example, he points out Articles 67(b), 90(c),
94(c) providing for No Confidence Motion for
the removal of Vice President, Deputy
Chairman of the Council of States and the
Speaker or Deputy Speaker of the House of
people respectively. He also points out that
there are offices/posts in the Constitution,
which are filled up through a process of
election but the persons so elected can not
be removed by way of moving a Motion for
No Confidence. For example, he relies on
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Article 80(4), 81(1)(a) and Article 54.
Therefore, Rajya Sabha Members, Lok Sabha
Members and President of India can not be
removed by moving a Motion for No
Confidence. Mr. Bhushan submits that the
question here is as to whether the No
Confidence provisions contained in the Act
can continue after the amendment of the
Constitution. A provision for moving a Motion
for No Confidence is in other words the right
to recall of an elected member by the voters.
The Constitution may or may not provide for
moving a Motion for No Confidence. He
submitted that provision for moving the
Motion for No Confidence is not necessarily
part of democracy. In fact, right to recall an
elected member has not been legally
recognized. In support of this submission, he
makes a reference to Article 243N read with
Article 243(c)(iv) and (v) and in particular,
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sub-clause 5(b). He further submits that the
reservation was introduced for the first time
by 73rd amendment, which incorporated
Article 243 in the Constitution of India w.e.f.
24th April, 1993. He, thereafter, outlined the
various provisions for reservation of seats as
contained in Article 243D. It is emphasized
that the provision contained in Article
243D(ii) makes it mandatory that not less
than one third of the total number of seats
reserved under Clause 1 shall be reserved for
ladies belonging to the Scheduled Castes or
as the case may be, the Scheduled Tribes.
Articles 243F(1)(a) and Article 243F(1)(b)
which correspond to Article 102 and 103
provides for disqualification for being chosen
as, and for being a member of a Panchayat.
Mr. Bhushan submitted that the Constitution
provides for removal and consequential
disqualification. This would not apply to a
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vote of No Confidence. This would
tantamount to giving the voters a right to
recall which does not exist in law in so far as
Panchayat Adhyaksha is concerned. Learned
senior counsel further submitted that Article
243 makes provision for reservation, to
advance the aim of our Constitution for the
upliftment of the poor sections of the society.
Therefore, the Parliament has taken extra
care to ensure that such members of the
weaker society once elected should not be
removed by the strongest segment of the
society by bringing a Motion of No
Confidence. He reiterated that wherever it
was felt necessary, the Parliament had
provided for moving a Motion of No
Confidence. He has made a specific
reference to Articles 89, 90, 93, 94(c), 80(iv),
81, 54, 61, 66 and 67(b).
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(vii) In support of the submission that Section 28
of the Act is repugnant to Part IX of the
Constitution of India, in particular, Article
243N. The learned senior counsel relied on a
number of judgments of this Court:-
Deep Chand Vs. State of U.P.5, Zaverbhai
Amaidas Vs. State of Bombay6, N.
Bhargawan Pillai Vs. State of Kerala7,
State of U.P. Vs. Synthetics and
Chemicals Ltd.8, Babu Parasu Kaikadi Vs.
Babu9, Nirmaljeet Kaur Vs. State of
M.P.10, Zee Telefilms Ltd. Vs. Union of
India11, Board of Control for Cricket in
India Vs. Netaji Cricket Club12
(viii) Learned senior counsel then submitted that
the judgment in Bhanumati & Ors. (supra)
is per incuriam as the issue with regard to the 5 (1959) Supp. 2 SCR 8 6 (1955) 1 SCR 799 7 (2004) 13 SCC 217 8 (1991) 4 SCC 139 9 (2004) 1 SCC 681 10 (2004) 7 SCC 558 11 (2005) 4 SCC 649 12 (2005) 4 SCC 741
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reservation had not been considered at all.
The judgment also does not consider the
provisions where specifically Motion for No
Confidence has not been provided. It is also
submitted that most of the judgment is
obiter. In fact, Mr. Bhushan submitted that
the judgment is a treatise in law and should
be given the same status.
(ix) Mr. Bhushan then addressed us on the issue
as to whether the SLP would be maintainable
against the judgment rendered in review
without challenging the judgment of which
the review was sought. The learned senior
counsel submitted that firstly the petitioner
had challenged the main writ petition by way
of SLP No. 8542 of 2013. The same was
disposed of with opportunity to file review
petition before the High Court after noticing
the objections raised by the petitioner, which
were not considered by the High Court. The
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earlier judgment of the High Court in the writ
petition clearly merged in the judgment of
the High Court dismissing the review petition.
Therefore, it was necessary only, in the
peculiar facts of this case, to challenge only
the judgment of the High Court in the review
petition. It is submitted by Mr. Shanti
Bhushan that Section 114 of the CPC contains
no limits on the circumstances under which
the Court can review its own judgment. The
section merely states that the person
aggrieved may apply for a review of
judgment to the Court, which passed the
decree or made the order, and the Court may
make such order on it as it thinks fit. So far
as the High Court is concerned, it would have
inherent powers to review any decision.
(x) Learned senior counsel elaborated that
Section 114 CPC gives full powers to the
Court to pass any order in the interest of
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justice. It can not be curtailed by the Rules
made by the High Court or the Supreme
Court. These Rules can be amended by the
High Court or the Supreme Court but Section
114 can only be amended by the Parliament.
He points out that Section 121 and 122,
which permits the High Court to make their
own rules on the procedure to be followed in
the High Court as well as in the Civil Court
subject to their superintendence. Learned
senior counsel further submitted that even
Order 47 Rule 1 does not curtail the power to
review which is untrammeled. According to
Mr. Bhushan, Section 114 is incorporated in
Order 47 Rule 1 as it provides that review can
be made by the Courts either on facts as well
as on law. The Court has a power to rehear
the entire matter in order to do complete
justice between the parties. Mr.
Bhushan further pointed out that Section 151
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CPC is also part of the same scheme to do
complete justice between the parties. It is
emphasized that the powers of the Courts
have not been curtailed by the Code of Civil
Procedure. In fact, it is well known that the
provisions of Code of Civil Procedure are a
hand maiden to justice. He, therefore,
submitted that full play should be given to
the expression “or for any other sufficient
reason” to ensure that the Court can do
complete justice. The principle of Ejusdem
Generis should not be applied for interpreting
these provisions. Learned senior counsel
relied on Board of Cricket Control (supra).
He relied on Paragraphs 89, 90 and 91.
learned senior counsel also relied on S.
Nagaraj & Ors. Vs. State of Karnataka &
Anr.13 He submits finally that all these
judgments show that justice is above all.
13 (1993) Supp. 4 SCC 595
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Therefore, no constraints can be put on the
power to review of the Court. Mr. Bhushan
also relied on Green View Tea &
Industries Vs. Collector, Golaghat, Assam
& Anr. 14
(xi) Mr. Bhushan has submitted that grounds for
challenging the theories of the Act of the
anvil of Article 243 or will be read into
Prayers 1and 2(i) wherein a specific
declaration is sought that the provision is
ultra vires to the Constitution of India. Mr.
Bhushan then referred to Article 243N. He
reiterated that the provision in Section 28
ceased to exist after one year. Therefore, it
was not necessary to plead as Section 28
would ipso facto be rendered
unconstitutional. He reiterated on the basis
of Paragraphs 20 and 21 that necessary
averments have been made that provision for
14 (2004) 4 SCC 122
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No Confidence Motion is not provided for in
Part IX of the Constitution of India.
Therefore, if Paragraph 28 and Paragraph 31
are read with Ground F, it would clearly
indicate that the removal under the Act can
only be under Section 29 which does not
provide for moving a Motion for No
Confidence.
(xii) Coming back to the submission that Section
28 is inconsistent with Part IX of the
Constitution of India, he submits that Part IX
is a complete code in relation to Panchayats.
Therefore, State Legislature can not make a
provision inconsistent to Part IX. Similar
power has been reserved for the Stated
Legislature as exceptions as enumerated in
Articles 243a, 243C(iv) & (v). He further
submitted that Article 243f, 243G and 243H
only give limited powers to the State
Legislature. This clearly show that Part IX is a
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complete code. Therefore, unless power is
specifically conferred on the State
Legislature, it would not be competent to
legislate on matters which are specifically
dealt with in Part IX. He also refers to Articles
243I (ii), (iii) & (iv), J(iv) and K to emphasise
that even in these Articles no provision
existed for moving a Motion for No
Confidence. Finally, it is submitted by Mr.
Shanti Bhushan that since the issues raised in
the appeal entail interpretation of the
provisions of the Constitution of India, the
matter needs to be referred to at-least five
judges.
(xiii) Mr. Ashok Desai, learned senior counsel
appearing for Respondent No. 5 has
submitted that admittedly the petitioner does
not enjoy the confidence of the majority of
the members of the Panchayat. She has not
even challenged the result of the No
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Confidence vote. He has given an elaborate
explanation of all the proceedings, which we
have recounted earlier.
(xiv) Countering the submissions of Mr. Shanti
Bhushan that the Petitioner belongs to the
Scheduled Casts, therefore, she is entitled to
special protection, Mr. Ashok Desai has
submitted that this issue was not raised in
the writ petition or even in the review petition
and is sought to be raised for the first time
before this Court. He further pointed out that
the petitioner did not contest the election of
Adhyaksha as a member of Scheduled Castes
but as a lady candidate for whom the seat
was reserved. He further submitted that the
present case is, in any event, squarely
covered by the judgment of this Court in
Bhanumati & Ors. (supra). Therefore,
there is no need for embarking on a fresh
reconsideration of all the issues. He has
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submitted that the submission of Mr. Shanti
Bhushan that the earlier judgment was
confined to the amendment of Section 28 and
not the original statute is a result of
misreading of judgment. The judgment of
this Court in Bhanumati & Ors. (supra)
clearly applies in the facts and circumstances
of this case and, therefore, the Special Leave
Petition deserves to be dismissed. Learned
senior counsel elaborated that the
submission with regard to Section 28 of the
Act being inconsistent with Part IX of the
Constitution deserves to be rejected outright.
This submission can only be considered on
the basis of precise pleadings in the present
case. Except for making a statement that the
provision in the act is inconsistent with Part
IX of the Constitution, no other reasons are
given.
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(xv) This apart, Section 28 can not be said to be
contrary to the foundational principles of
democracy. These provisions are referring to
Sections 17, 18, 21 and 28 of the Act. The
learned senior counsel submitted that the
aforesaid provisions are to ensure that the
Adhyaksha always enjoys confidence of the
constituency while in power during the term
for which such a person is elected.
(xvi) Mr. P.N. Mishra appearing for Respondent
No.1 to 4 submitted that the Special Leave
Petition deserves to be dismissed on the
short ground that it is filed only against the
judgment rendered by the High Court in
review petition. He has relied on judgment of
this Court in Shanker Motiram Nale Vs.
Shiolalsing Gannusing Rajput 15 . He also
relied on an unreported judgment in
Sandhya Educational Society & Anr. Vs.
15 (1994) 2 SCC 753
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Union of India & Ors. [SLP(C) No. 2429 of
2012] to the same effect. He submitted that
the powers of review would not permit this
Court to reopen the entire issue and to
rehear the entire matter on merits. The
review is limited to the provision contained in
Section 114 CPC read with Order 47 Rule 1.
He submits that under this provision, review
is limited only to circumstances where review
is sought on discovery of new and important
matter; or where evidence could not be
produced in spite of exercise of due diligence
or on account of some mistake or error
apparent on the face of the record. He
submits that the expression “or for any other
sufficient reason” would not permit the Court
to reopen the entire issue, which has already
been judicially determined. This apart,
according to the learned counsel, the
petitioner has failed to show that injustice
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has been done to her in the face of the fact
that majority of the members of her
constituency have voted in favour of the No
Confidence Motion. Learned senior counsel
further submitted that it is a matter of record
that the No Confidence Motion was not
challenged on merits. Therefore, the SLP
deserves to be dismissed.
(xvii)Mr. Shanti Bhushan in reply submitted that
these submissions of Mr. Ashok Desai and
Mr. Mishra are fallacious as no Act of
Parliament can interfere with the powers of
this Court under Article 136. In the event,
this Court holds that SLP is only against the
judgment of review and is not maintainable,
it would tantamount to amending Article 136
of the Constitution of India. The learned
senior counsel submitted that the discretion
of this Court cannot be whittled down let
alone taken away as suggested by the
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learned senior counsel appearing for the
respondents. Even on facts, Mr. Bhushan
submitted that the main judgment was
challenged. In the judgment relied upon by
Mr. Mishra in State of Assam Vs. Ripa
Sarma (supra), the impugned judgment had
not been challenged. Therefore, this Court
said that no SLP would be maintainable only
against the judgment of the High Court
rendered in a review petition, without
challenging the main judgment. He reiterated
that the judgment in Bhanumati & Ors.
(supra) is mostly “obiter”. It is also per
incuriam as reservation for Scheduled Castes
and Scheduled Tribes had not been taken
into consideration.
17. We have considered the submissions made by the
learned counsel for the parties.
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18. We are not able to accept the submission of
Mr. Shanti Bhushan that the provision contained in
Section 28 of the Act are, in any manner, inconsistent
with the provisions contained in Part IX, in particular,
Article 243N of the Constitution of India.
19. Section 19 of the Act provides that in every Zila
Panchayat, an Adhyaksha shall be elected by the
elected members of the Zila Panchayat through
amongst themselves. Section 19-A was introduced by
U. P. Act No.9 of 1994 providing for reservation of the
offices of Adhyaksha, for persons belonging to
Scheduled Casts and Scheduled Tribes and the
Backward Classes. It is, however, provided that the
number of offices of Adhyaksha, so reserved, shall bear,
as nearly as may be the same proportion to the total
number of such offices in the State as the population of
the Scheduled Castes, Scheduled Tribes and the
Backward Classes in the State, bears to the total
population of the State. The Section even provides that
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the offices so reserved shall be allotted by rotation to
different Zila Panchayats in the State in such manner as
may be prescribed by the State Government. But the
reservation for the Backward Classes shall not exceed
27% of the total number of offices of the Adhyakshas in
the State. Section 19-A(2) is important in the present
context which provides that “not less than one-third of
the offices shall be reserved for the ladies belonging to
the Scheduled Castes, Scheduled Tribes or the
Backward Classes as the case may be.” Under this
Section, on a seat reserved for the aforesaid categories
of Scheduled Castes, Scheduled Tribes and the
Backward Classes, a person belonging to that category
would be elected from a particular Panchayat in which
reservation is made on the basis of the roster provided
in Section 19-A(3). Section 20 of the Act provides that a
Zila Panchayat shall continue for five years from the
date appointed for its first meeting and no longer. It is
also provided that Section 20(2) that the term of office
of a member of a Zila Panchayat shall expire with the
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term of Zila Panchayat unless otherwise determined
under the provisions of the Act. Section 21 provides
that save as otherwise provided in this Act, the term of
office of the Adhyaksha shall commence on his election
and with the term of Zila Panchayat. Section 23
provides for disqualification for corrupt practices, which
is not applicable in the present case. Section 24
provides for resignation of Adhyaksha, again not
applicable in the present case. Section 25 relates to
filing of casual vacancy, again not applicable in this
case. Section 26 provides for disqualification for being a
member or an Adhyaksha in case a person has incurred
any disqualification for being elected as a member of
the Panchayat.
20. The whole debate in this case centres around
Section 28, which provides for a Motion of No
Confidence in Adhyaksha. The section provides detailed
procedure with regard to the issuance of written notice
of intent to make the motion, in such form as may be
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prescribed, signed by not less than one-half of the total
number of the elected members of the Zila Panchayat
for the time being. Such notice together with the copy
of the proposed motion has to be delivered to the
Collector having jurisdiction over the Zila Panchayat.
Therefore, the Collector shall convene a meeting of the
Zila Panchayat for consideration of the motion on a
date appointed by him which shall not be later than 30
days the date from which the notice was delivered to
him. The Collector is required to give a notice to the
elected members of not less than 15 days of such
meeting in the manner prescribed. The meeting has to
be presided over by the District Judge or a Civil Judicial
Officer not below the rank of a Civil Judge. Interestingly,
the debate on the motion cannot be adjourned by
virtue of provisions contained in Section 28(7). Sub-
section (8) further provides that the debate on the No
Confidence Motion shall automatically terminate on the
expiration of 2 hours from the time appointed for the
commencement of the meeting, if it is not concluded
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earlier. Either at the end of 2 hours or earlier, the
motion has to be put to vote. Further more, the
Presiding Officer would be either District Judge or a
Judicial Officer is not permitted to speak on the merits
of the motion, and also not entitled to vote. Sub-section
(11) provides that “if the motion is carried with the
support of (more than half) of the total number of
(elected members) of the Zila Panchayat for the time
being”. In our opinion, the aforesaid provision contained
in Section 28 is, in no manner, inconsistent with the
provisions contained in Article 243N. To accept the
submission of Mr. Bhushan of inconsistency would be
contrary to the fundamental right of democracy that
those who elect can also remove elected person by
expressing No Confidence Motion for the elected
person. Undoubtedly, such No Confidence Motion can
only be passed upon observing the procedure
prescribed under the relevant statute, in the present
case the Act.
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21. We are unable to accept the submission of
Mr. Bhushan that removal of Adhyaksha can only be on
the grounds of misconduct as provided under Section
29 of the Act. The aforesaid Section provides that a
procedure for removing an Adhyaksha who is found
guilty of misconduct in the discharge of his/her duties.
This Section, in no manner, either overrides the
provisions contained in Section 28 or is in conflict with
the same.
22. We also do not agree with the submission of Mr.
Bhushan that Section 28 could not have continued after
expiry of one year of the enactment of 73rd Amendment
of the Constitution of India, which came into effect
on 24th April, 1993. Such an eventuality would have
arisen only in case it was found that Section 28 is
inconsistent with any provision of Part IX of the
Constitution. Merely because Article 243F is silent with
regard to the removal of an Adhyaksha on the basis of
a Motion of No Confidence would not render the
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provision inconsistent with the Article 243 of the
Constitution of India.
23. We also do not find any merit in the submission of
Mr. Bhushan that the petitioner being a Scheduled
Caste Lady cannot be removed through a vote of No
Confidence. We do not find any merit that the
provisions contained in Section 28 would frustrate the
provisions for reservation for Scheduled Caste Ladies.
Even if an Adhyaksha belonging to one of the reserved
categories, Scheduled Castes, Scheduled Tribes and
other Backward Classes is removed on the basis of the
vote of No Confidence, she can only be replaced by a
candidate belonging to one of the reserved categories.
Therefore, the submission of Mr. Shanti Bhushan
seems to be focused only on the petitioner, in
particular, and not on the candidates elected from the
reserved categories, in general. The submission is
wholly devoid of any merit and is hereby rejected.
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24. We are entirely in agreement with Mr. Shanti
Bhushan that Part IX of the Constitution has made
provisions for self-governance at Panchayat level,
including the election of Panchayat Members and its
Chairman. Thus, ushering in complete decentralization
of the Government and transferring the power to the
grass roots level bodies; such as the Panchayats at the
village, intermediate and District level, in accordance
with Article 243C of the Constitution. Article 243C is as
under:
“243C. Composition of Panchayats. - (1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State. (2) All the seats in a Panchayat shall be filled by persons chosen by direct election from
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territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) The Legislature of a State may, by law, provide for the representation— (a) of the Chairpersons of the Panchayats at
the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level;
(b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
(c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat;
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(d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within— (i) a Panchayat area at the
intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats. (5) The Chairperson of—
(a) a panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and
(b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof.”
This Article as well as some others, such as
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Articles 243-A, 243-C(5), 243-D(4), 243-D(6), 243-F(1),
(6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2), (4) of the
Constitution etc make provision for the State to enact
necessary legislation to implement the provisions in
Part IX of the Constitution of India. Therefore, we are
not able to agree with the submission of Mr. Bhushan
that State Legislature will have no power to make
provision for no-confidence motion against the
Adhyaksha of Zila Panchayat.
25. We are also unable to agree with the submission
of Mr. Bhushan that a person once elected
to the position of Adhyaksha would be permitted to
continue in office till the expiry of the five years terms,
even though he/she no longer enjoys the confidence of
the electorate. To avoid such catastrophe, a provision
for no-confidence, as observed earlier, has been made
in Section 28 of the Act. The extreme submission made
by Mr. Bhushan, if accepted, would destroy the
foundational precepts of democracy that a person who
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is elected by the members of the Zila Panchayat can
only remain in power so long as the majority support is
with such person.
26. We also do not find any merit in the submission of
Mr. Bhushan that permitting the provision contained in
Section 28 of the Act to remain on the statute book
would enable the executive to deprive the elected
representatives of their fundamental rights enshrined in
Part III and Part IX of the Constitution of India. In our
opinion, the ratio of the judgment in I.R.Coelho
(supra) relied upon by Mr. Bhushan is wholly
inapplicable in the facts and circumstances of this case.
There is no interference whatsoever in the right of the
electorate to choose. Rather Section 28 ensures that an
elected representative can only stay in power so long
as such person enjoys the support of the majority of the
elected members of the Zila Panchayat. In the present
case, at the time of election, the petitioner was the
chosen one, but, at the time when the Motion of No
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Confidence in the petitioner was passed, she was not
wanted. Therefore, the right to chose of the electorate,
is very much alive as a consequence of the provision
contained in Section 28.
27. We are unable to accept the submission of
Mr. Bhushan that the provisions contained in Section 28
of the Act cannot be sustained in the eyes of law as it
fails to satisfy the twin test of reasonable classification
and rational nexus with the object sought to be
achieved. In support of this submission, Mr. Bhushan
has relied on the judgment of this Court in D.S. Nakara
vs. Union of India16. We fail to see how the provisions
contained in Section 28 of the Act would take away the
autonomy of the Panchayati Raj Institutions. In our
opinion, the judgments relied upon by Mr. Bhushan in
support of the submissions that provisions of No
Confidence Motion in Section 28 of the Act would put
the executive authorities in the State in control of
16 (1983) 1 SCC 305
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Village Panchayats or District Panchayats. Apart from
the use of superlatives, that the party now in power is
trying to remove all the office holders of Panchayats in
U.P. belonging to the opposite party, no other material
has been placed on the record.
28. It is true that in the Constitution, Article 67B
provides for removal of the Vice-President by a
resolution of the Council of States as provided therein
passed by the majority of all the then members of the
Council and agreed to by the House of People. It is also
correct that under Article 90C, the Deputy Chairman of
the Council of States can be removed from his office on
a resolution of the Council passed by all the majority
members of the then Council. Similarly, Article 94
provides that a member of holding office as Speaker or
Deputy Speakers of the House of People may be
removed from his office by a resolution of the House of
People passed by a majority of all the then members of
the House.
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29. It is also true that there are certain positions in the
Constitution, which are filled up through election but
individuals so elected cannot be removed by way of No
Confidence Motion, e.g. Rajya Sabha Members, Lok
Sabha Members and the President of India. We are,
however, unable to accept the submission of Mr.
Bhushan that Part IX of the Constitution of India has
placed office of an Adhyaksha of a Zila Panchayat on
the same pedestal as the President of India. Article
243F empowers the States to enact any law for a
person who shall be disqualified for being chosen as a
member of a Panchayat. This would also include a
member of a Panchayat, who is subsequently appointed
as Adhyaksha of a Zila Panchayat. There is no
prohibition under Article 243F disenabling any State
Legislature for enacting that an elected Adhyaksha
shall remain in office only so long as such elected
person enjoys the majority support of the elected
members of the Zila Panchayat. Therefore, we have no
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hesitation in rejecting the aforesaid submissions of Mr.
Shanti Bhushan.
30. The submissions of Mr. Bhushan on depriving a
candidate belonging to the reserved category of a
position to which he or she has been elected on the
basis of reservation are wholly fallacious. The seat for
the office of Adhyaksha of Zila Panchayat was reserved
for women candidates, i.e., all women candidates. It
was not specifically reserved for Ladies belonging to the
reserved categories of Scheduled Castes, Scheduled
Tribes and the Backward Classes. The petitioner
contested as a Lady Candidate and not as a candidate
belonging to any reserved category and was elected on
a seat reserved for Ladies generally.
31. Having said all this, we would like to point out that
in normal circumstances the present SLP would not
have been entertained. Dr. Rajiv Dhawan and Mr. Ashok
Desai had pointed out at the very initial hearing that
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the SLP would not be maintainable as it challenges only
the judgment of the High Court rendered in review
petition. The main judgment dated 5th February, 2013
rendered in W.P.(C) No.9654 of 2012 which has been
reviewed by the High Court in the impugned order has
not been challenged. As a pure statement of law, the
aforesaid proposition is unexceptionable. However, in
the present case, we have been persuaded to entertain
the present SLP in view of the order passed by this
Court on 19th February, 2013. In Ripa Sarma
case (supra), it was not disputed before this Court that
the judgment and order dated 20th November, 2007
passed in Ripa Sarma (supra) was not challenged by
way of an SLP before this Court. Relying on Order 47
Rule 7 of the Code of Civil Procedure, 1908 and the
earlier judgments of this Court it was held that :
“In view of the above, the law seems to be well settled that in the absence of a challenge to the main judgment, the special leave petition filed challenging only the subsequent order rejecting the review petition, would not be maintainable.”
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32. With regard to the second submission of
Dr. Dhawan and Mr. Ashok Desai that the issue raised
in the present proceeding is no longer res integra in
view of the law laid down by this Court in Bhanumati
(supra), we are of the opinion that the submission
deserves to be accepted, in so far as the matter is
covered by the ratio laid down in Bhanumati (supra).
33. A careful perusal of the judgment of this Court in
Bhanumati (supra) would show that this Court had
considered the provisions contained in all the Articles
Part IX of the Constitution, in all its hues and colours.
However, it appears that the issue with regard to the
adverse impact of the provision in Section 28 of the Act
on the reservation for Scheduled Castes, Scheduled
Tribes and other Backward Classes was neither argued
nor considered. We have, therefore, examined the issue
raised by Mr. Bhushan.
34. In our opinion, the provision under Section 28A of
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the Act in no manner dilutes or nullifies the protection
given to the candidates belonging to Scheduled Castes,
Scheduled Tribes and Backward Classes in the 73rd
Amendment of the Constitution of India. Therefore, we
accept the submission of Dr. Dhawan and Mr. Ashok
Desai that in view of the law laid down in Bhanumati’s
case (supra), the issue is no longer res integra.
35. As noticed earlier, we have been persuaded to
entertain the Special Leave Petition as Mr. Bhushan had
highlighted that permitting the Vote of No Confidence
as a ground for disqualifying an elected Zila Panchayat
Adhyaksha, Zila Panchayat would leave a candidate,
elected from the reserved categories of Scheduled
Castes/ Scheduled Tribes, vulnerable to unjustified
attacks from the elected members of the general
category. This issue was not raised before the High
Court either in original writ petition being W.P. No. 9654
of 2012 nor was it raised before the High Court in the
Review Petition. However, in view of the seminal
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importance of the issue raised, we had entertained the
Special Leave Petition. Having said that, it must be
pointed out that the raising of such an issue is neither
justified nor relevant in the facts of the present case.
As pointed out earlier, the petitioner herein had
contested the election as an Adhyaksha, Zila Panchayat
from a seat reserved for Ladies. Merely because she
happens to belong to the reserved category, it can not
be permitted to be argued, that the provision with
regard to the reservation for the members of the
Scheduled Castes/Scheduled Tribes/Backward Classes
has been in any manner diluted, let alone nullified. It
has been specifically noted in the Statement of Objects
and Reasons of the 73rd Amendment as follows:-
“Though the Panchayati Raj institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people’s bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and Women, inadequate devolution of powers and lack of financial resources.
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2. Article 40 of the Constitution which enshrines one of the directive principles of State Policy lays down that the State shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj institutions to impart certainty, continuity and strength to them.”
36. The provisions of the 73rd Constitutional
amendment are to ensure that Panchayati Raj
Institutions acquire “the status and dignity of viable and
responsive people’s bodies”. The provisions are not
meant to provide an all pervasive protective shield to
an Adhyaksha, Zila Panchayat, even in cases of loss of
confidence of the constituents. Provision in Section 28,
therefore, cannot be said to be repugnant to Part IX of
the Constitution of India.
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37. In our opinion, the amendment as well as the
main provision in Section 28 is in absolute accord with
the vision explicitly enunciated in the Preamble of the
Constitution of India. In fact, the spirit which led to
ultimately encoding the goals of “WE THE PEOPLE” in
the Preamble of the Constitution of India, permeates all
other provisions of the Constitution of India. The
fundamental aim of the Constitution of India is to give
power to the People. Guiding spirit of the Constitution
is “WE THE PEOPLE OF INDIA”. In India, the People are
supreme, through the Constitution of India, and not the
elected Representatives. Therefore, in our opinion, the
provision for right to recall through the Vote of No
Confidence is in no manner repugnant to any of the
provisions of the Constitution of India.
38. Upon examination of the entire Scheme of the
73rd Amendment, in the context of framing of the
Constitution of India, this Court in Bhanumati & Ors.
(supra), observed as follows:-
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“54. The argument that as a result of the impugned amendment stability and dignity of the Panchayati Raj institutions has been undermined, is also not well founded. As a result of no-confidence motion the Chairperson of a panchayat loses his position as a Chairperson but he remains a member, and the continuance of panchayat as an institution is not affected in the least.”
We are in respectful agreement with aforesaid
conclusion.
39. We reiterate the view earlier expressed by this
Court in Bhanumati & Ors. (supra), wherein this
Court observed as follows:-
“57. It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj institutions and to impart certainty, continuity and strength to them. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no- confidence motion is passed against the Chairperson of a panchayat, he/she ceases to be a Chairperson, but continues to be a member of the panchayat and the panchayat continues with a newly-elected Chairperson. Therefore, there is no institutional setback or impediment to the continuity or stability of the Panchayati Raj institutions.
58. These institutions must run on democratic principles. In democracy all
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persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no- confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India.”
40. The whole edifice of the challenge to the
constitutionality of Section 28 is built on the status of
the petitioner as a member belonging to the reserved
category. It has nothing to do with the continuance,
stability, dignity and the status of the Panchayat
Institutions. In our opinion, the personal desire, of the
petitioner to cling on to the office of Adhyaksha is
camouflaged as a constitutional issue. The provision of
No Confidence Motion, in our opinion, is not only
consistent with Part IX of the Constitution, but is also
foundational for ensuring transparency and
accountability of the elected representatives, including
Panchayat Adhyakshas. The provision sends out a clear
message that an elected Panchayat Adhyaksha can
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continue to function as such only so long as he/she
enjoys the confidence of the constituents.
Is Bhanumati & Ors. per incuriam ?
41. This submission again, in our opinion, is not well
founded. The only ground urged in support of the
submission by Mr. Shanti Bhushan was that this Court
in Bhanumati & Ors. (supra) had not considered the
provision with regard to special protection to be given
to the members of the Scheduled Castes, Scheduled
Tribes and the Backward Classes. Firstly, such a
submission was never made before this Court in
Bhanumati & Ors. (supra). Secondly, as we have
already pointed out earlier, the issue with regard to
reservation for Scheduled Castes, Scheduled Tribes and
the Backward Classes, does not arise in the facts of this
case as the petitioner had not been elected to the office
of Adhyaksha of Zila Panchayat reserved for Scheduled
Castes and Scheduled Tribes. Mr. Ashok Desai has
placed before us enclosure to Government Order
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No.2746/33-1-2010-37G/2000 dated 15th September,
2010 indicating reservation for the year 2010 for the
office of Adhyaksha of Zila Panchayat, District wise in
the State of Uttar Pradesh. The order is divided into two
columns: Districts’ reserved for Schedule Caste Lady
and Districts’ reserved for Ladies. Extract of the
aforesaid order is as follows:-
Districts’ reserved for Schedule Caste Lady
Districts’ reserved for Ladies
S.No. District S.No .
District
1 Chatrapati Sahuji Maharajnagar
1 Allahabad
2 Sant Ravidas Nagar (Bhadohi)
2 Sitapur
3 Jaunpur 3 Hardoi 4 Ghajipur 4 Lakhimpur Khiri 5 Sant Kabir Nagar 5 Azamgadh
42. It is a matter of record that the petitioner was
elected as Panchayat Adhyaksha of Sitapur District
Reserved for Ladies, it is not reserved for a Schedule
Caste Lady. Therefore, we are not able to accept the
submission of Mr. Bhushan.
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43. We also do not accept the submission of
Mr. Bhushan that the aforesaid judgment needs
reconsideration. A perusal of the judgment would show
that this Court traced the history leading upto the
insertion of Article 40 of the Constitution of India. The
Court examined the relevant commentaries of many
learned authors, Indian as well as Foreign; Constituent
Assembly Debates; and concluded as follows :
“13. The Constitution’s quest for an inclusive governance voiced in the Preamble is not consistent with panchayat being treated merely as a unit of self-government and only as part of directive principle. If the relevant Constituent Assembly Debates are perused one finds that even that constitutional provision about panchayat was inducted after strenuous efforts by some of the members. From the debates we do not fail to discern a substantial difference of opinion between one set of members who wanted to finalise the Constitution solely on the parliamentary model by totally ignoring the importance of panchayat principles and another group of members who wanted to mould our Constitution on Gandhian principles of Village Panchayat.”
44. The Court emphasized that Dr. Rajendra Prasad
was the strongest critic of the Draft Constitution, who
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had opined that “the village has been and will even
continue to be our unit in this country.” (Para 15). The
Court further notices the opinion of Mr. M.A. Ayangar
and Mr. N.G. Ranga, both of whom suggested some
amendments to the Draft Constitution. The Court also
notices that a similar opinion was expressed by
Mr. S.C. Mazumdar, who had struck a balance between
Gandhian Principles and the Parliamentary model of the
Constitution. The insertion of Article 40 was accepted
by Dr. Ambedkar. This Court further notices the opinion
of Seth Govind Das from the Central Provinces and
Berar (Constituent Assembly Debates Vol. VII, PP.523-
24) (See Paras 12 to 20).
45. Thereafter, the Court notices that “in other
representative democracies of the world committed to
a written Constitution and Rule of Law, the principles of
self-Government are also part of the Constitutional
doctrine.” The Court emphasized that under
the 73rd Amendment of the Constitution, Panchayats
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become “Institution of self-governance, which was
previously a mere unit under Article 40”. It was
emphasized that the 73rd Amendment heralded a new
era, which is a turning point in the history of local self-
governance (Para 22). It was also emphasized that the
73rd Amendment is very powerful “tool of social
engineering” (Para 24). We reiterate the opinion of this
Court that as 74% of the Indian population live in
villages, it is necessary to ensure that the power of
governance should vest in the smallest units of the
Panchayat having its hierarchy as provided under
various Panchayat Acts throughout the country. The
judgment analyses the changes introduced by the 73rd
Amendment and concludes as follows :
“34. The changes introduced by the Seventy- third Amendment of the Constitution have given Panchayati Raj institutions a constitutional status as a result of which it has become permanent in the Indian political system as a third Government. On a careful reading of this amendment, it appears that under Article 243-B of the Constitution, it has been mandated that there shall be panchayat at the village, intermediate and district levels
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in accordance with the provisions of Part IX of the Constitution.”
46. This Court concluded upon examination of the
Constitutional scheme introduced by
the 73rd Amendment as follows:
“39. Thus, the composition of the panchayat, its function, its election and various other aspects of its administration are now provided in great detail under the Constitution with provisions enabling the State Legislature to enact laws to implement the constitutional mandate. Thus, formation of panchayat and its functioning is now a vital part of the constitutional scheme under Part IX of the Constitution. Obviously, such a system can only thrive on the confidence of the people, on those who comprise the system.”
47. In our opinion, the provision for removing an
elected representative such as Panchayat Adhyaksha is
of fundamental importance to ensure the democratic
functioning of the Institution as well as to ensure the
transparency and accountability in the functions
performed by the elected representatives.
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48. We also do not agree with Mr. Bhushan that the
issue with regard to the constitutionality of Section 28
of the Act was not considered by this Court in
Bhanumati & Ors. (supra). The submission made by
the counsel for the petitioner therein is noticed as
follows:
“40. In the background of these provisions, learned counsel for the appellants argued that the provision of no-confidence, being not in Part IX of the Constitution is contrary to the constitutional scheme of things and would run contrary to the avowed purpose of the constitutional amendment which is meant to lend stability and dignity to Panchayati Raj institutions. It was further argued that reducing the period from “two years” to “one year” before a no-confidence motion can be brought, further unsettles the running of the panchayat. It was further urged that under the impugned amendment that such a no- confidence motion can be carried on the basis of a simple majority instead of two- thirds majority dilutes the concept of stability.”
From this it is evident that the provision of No
Confidence Motion in Section 28 was challenged on
three grounds:
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(a) It would be repugnant to the Scheme of the 73rd
Amendment. (b) It would unsettle the running of the Panchayat. (c) It would dilute the concept of stability.
49. Upon consideration of the relevant provisions
contained in various sub-articles of Article 243 and in
particular, Article 243C(v), this Court concludes as
under:
“41. This Court is not at all persuaded to accept this argument on various grounds discussed below. A Constitution is not to give all details of the provisions contemplated under the scheme of amendment. In the said amendment, under various articles, like Articles 243-A, 243-C(1), (5), 243-D(4), 243- D(6), 243-F(1), (6), 243-G, 243-H, 243-I(2), 243-J, 243-K(2), (4) of the Constitution, the legislature of the State has been empowered to make law to implement the constitutional provisions.
43. Therefore, the argument that the provision of no-confidence motion against the Chairman, being not in the Constitution, cannot be provided in the statute, is wholly unacceptable when the Constitution specifically enables the State Legislature to provide the details of election of the Chairperson.”
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The Court also mentions that the statutory
provision of No Confidence Motion against the
Chairperson is a pre-constitutional provision and was
there in Section 15 of the 1961 Act (Para 44). After
taking into consideration Article 243N of the
Constitution of India, it is observed as follows:-
“45. It is clear that the provision for no- confidence motion against the Chairperson was never repealed by any competent legislature as being inconsistent with any of the provisions of Part IX. On the other hand by subsequent statutory provisions the said provision of no-confidence has been confirmed with some ancillary changes but the essence of the no-confidence provision was continued. This Court is clearly of the opinion that the provision of no-confidence is not inconsistent with Part IX of the Constitution.”
50. In the face of these findings, it would not be
possible to accept the submission of Mr. Bhushan that
the judgment in Bhanumati & Ors. (supra) is either
per incuriam or requires reconsideration.
51. Under Article 243N, any provision of law relating to
Panchayats in force immediately before the 73rd
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Amendment, which is inconsistent with Part IX
continues to be enforced until amended or repealed. In
the absence of such amendment or repeal, the
inconsistent provision will continue until the expiration
of one year from the commencement of the
Constitution (73rd Amendment) Act, 1993. It is a matter
of record that the State of Uttar Pradesh enacted U.P.
Panchayat Law (Amendment) Act, 1994 on 22nd April,
1994 to give effect to the provisions of Part IX of the
Constitution. The pre-existing provision of No
Confidence was not repealed. It was amended
subsequently by the Amendment Act of 1998 (U.P. Act
No. 20 of 1998). There was a further amendment by
the Amendment Act of 2007 (U.P. Act No. 4 of 2007).
By this amendment, the period for moving a No
Confidence Motion was reduced from two years to one
year. Furthermore the requirement that for a Motion of
No Confidence to be carried, it had to be supported by
a majority of “not less than two third” was reduced to
“more than half”. It was these amendment changes
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brought about by the Amendment Act of 2007, which
was challenged by the petitioners in the case of
Bhanumati & Ors. (supra). The continuous of the
provision of No Confidence Motion was not even
challenged. In spite of the fact that the challenge was
limited only to the amendment, this Court examined
the question as to whether provision for bringing a
Motion of No Confidence in Section 28 of the 1961 Act
was repugnant or inconsistent with Part IX of the
Constitution of India. Ultimately, in Paragraph 51, this
Court records the following opinion:-
“51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-à-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by the Seventy-third Constitutional Amendment by making detailed provision for democratic decentralisation and self-government on the principle of grass-root democracy cannot be interpreted to exclude the provision of no- confidence motion in respect of the office of the Chairperson of the panchayat just because of its silence on that aspect.”
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We are in respectful agreement with the aforesaid
opinion.
52. The Court thereafter notices the submission that
the position of Panchayat Adhyaksha is comparable
with that of the President of India. On this analogy, it
was submitted that the office of Chairperson, i.e.
Panchayat Adhyaksha should have the same immunity.
This Court rejected the submission with the observation
that “this is an argument of desperation and has been
advanced, with respect, without any regard to the vast
difference in constitutional status and position between
the two posts.” Mr. Bhushan has made the same
submission before us. We would like to add here, that
even by stretching the imagination beyond all
reasonable bounds, we are unable to accept the
submission of Mr. Bhushan that Chairman of a District
Panchayat should be put on the same pedestal as the
President of India.
53. Mr. Shanti Bhushan had also submitted that since
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the issues raised herein pertained to the interpretation
of the Constitution of India, the matter needs to be
referred to the five Judges as provided in Article 145(3)
of the Constitution of India read with Order VII Rule 2 of
the Supreme Court Rules, 1966.
54. We are of the opinion that no substantial question
of law arises as envisaged under Article 145(3) of the
Constitution of India as to the interpretation of the
Constitution of India, in the facts and circumstances of
this case. The entire issue has been elaborately, and
with erudition, dilated upon by this Court in Bhanumati
& Ors. (supra). We also do not find any force in the
submission of Mr. Bhushan that there is any occasion
for reconsideration of the judgment of this Court in
Bhanumati & Ors. (supra).
55. Mr. Bhushan has relied on numerous judgments of
this Court in support of his submissions. Let us now
consider the same.
56. On the issue of repugnancy, Mr. Bhushan has cited
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following judgments:
(1) I.R.Coelho vs. Union of India (supra) –
In our opinion, the reliance on the aforesaid
judgment is wholly misplaced as the right to choose of
the constituents is not curtailed by Section 28 of the
Act. It is only the right of an elected
Chairman/Adhyaksha to continue, who has lost the
confidence of the electorate that has been curtailed.
(2) Deep Chand vs. State of U.P. (supra) –
In this case, this Court culled out the law
pertaining to the rule of repugnancy. The three tests of
inconsistency or repugnancy as formulated by Nicholas
in his Australian Constitution 2nd Edition have been
noticed which are as under:
“(1) There may be inconsistency in the actual terms of the competing statutes;
(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and
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(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter.”
57. The aforesaid three rules have been accepted by
this Court in Ch. Tika Ramji Vs. State of U.P. 17
Similar test was laid down by this Court in, Zaverbhai
Amaidas Vs. State of Bombay (supra) as follows:
“(1) Whether there is direct conflict between the two provisions;
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject- matter replacing the Act of the State Legislature and
(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
58. In our opinion, the provision contained in
Section 28 can not be said to be repugnant to
the 73rd Amendment on the basis of the aforesaid tests
laid down by this Court.
59. On the issue of per incuriam, Mr. Bhushan has
17 (1956) SCR 393
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cited following judgments:
(1) N. Bhargawan Pillai Vs. State of Kerala (supra)
–
Mr. Bhushan had relied on observations made by
this Court in Paragraph 14 of the judgment. It was held
that the judgment in the case of Bore Gowda Vs.
State of Karnataka 18 was per incuriam as it did not
consider the impact of Section 18 of the Probation of
Offenders Act, 1958.
In Bhanumati & Ors. (supra), it can not be said
that any relevant provision of the Constitution or the
Act had not been taken into consideration.
(2) State of U.P. Vs. Synthetics and Chemicals Ltd.
(supra)
The observations made in Paragraph 86 in the
earlier judgment of Synthetics and Chemicals Ltd. &
Ors. Vs. State of U.P. & Ors. 19 were found to be per
18 (2000) 10 SCC 620 19 (1990 1 SCC 109
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incuriam. The aforesaid observations would not be
applicable in the present case as no such legitimate
criticism can be made against the judgment of this
Court in Bhanumati & Ors. (supra).
(3) Babu Parasu Kaikadi Vs. Babu (supra)
This judgment also reiterated the well known
principle of per incuriam. It was held that the judgment
in Dhondiram Tatoba Kadam Vs. Ramchandra
Balwantrao Dubal (since deceased) by His LRs. &
Anr. 20 was per incuriam as it had not noticed the earlier
binding precedent of a coordinate Bench and also
having not considered the mandatory provisions as
contained in Sections 15 and 29 of the Bombay
Tenancy and Agricultural Lands Act, 1948 (67 of 1948).
The well known principle with regard to a judgment not
being a binding precedent as stated in Halsbury’s Laws
of England, 4th Edn., Vol. 26 is as under:-
“A decision is given per incuriam when the court has acted in ignorance of a previous
20 (1994) 3 SCC 366
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decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.”
The same principle has been reiterated by this
Court in State of U.P. Vs. Synthetics and Chemicals
Ltd. (supra):-
“40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.”
(emphasis supplied)
In our opinion, the judgment in Bhanumati &
Ors. (supra) can not be said per incuriam on the
applicability of the aforesaid tests.
(4) Zee Telefilms Ltd. Vs. Union of India (supra)
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In this case, again this Court reiterated that a
decision is an authority for the question of law
determined by it and that it should not be read as a
statute. A decision is not an authority for the
proposition which did not call for its consideration.
These observations again are of no assistance to the
petitioner.
(5) Nirmaljeet Kaur Vs. State of M.P.
In this case also, this Court has reiterated the
principles earlier enunciated. Thus, this judgment is
again of no help to the petitioner.
60. On the submission with regard to the
Validity/Legality of a Legislative Act, reliance was
placed upon:
D.S.Nakara vs. Union of India21; Union of
India vs. G.Ganayutham22; Bharat Petroleum
Corporation Ltd. vs. Maddula Ratnavalli23 and
21 (1983) 1 SCC 305 22 (1997) 7 SCC 463 23 (2007) 6 SCC 81
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State of A.P. v/s McDowell & Co. 24 . In our
opinion, all these judgments are inapplicable to
the facts of this case.
61. On the submission with regard to
Arbitrary/discretionary/unguided power to executive
authority, Mr. Bhushan relied upon following judgments:
Senior Superintendent of Post Offices vs. Izhar
Hussain 25 , Khoday Distilleries Ltd. vs. State of
Karnataka 26 , Maganlal Chhagalal (P) Ltd. vs.
Municipal Corporation of Greater Bombay 27
Director of Industries vs. Deep Chand Agarwal 28 .
In our opinion, these judgments have no application
whatsoever either to the legal issue or to the facts of
this case.
62. We have no hesitation in accepting the submission
of Mr. Bhushan that the High Court or this Court, in 24 (1996) 3 SCC 709 25 (1989) 4 SCC 318 26 (1996) 10 SCC 304 27 (1974) 2 SCC 402 28 (1980) 2 SCC 332
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exercise of its powers of review can reopen the case
and rehear the entire matter. But we must hasten to
add that whilst exercising such power the court cannot
be oblivious of the provisions contained in Order 47
Rule 1 of CPC as well as the rules framed by the High
Courts and this Court. The limits within which the
Courts can exercise the powers of review have been
well settled in a catena of judgments. All the
judgments have in fact been considered by the High
Court in Pages 16 to 23. The High Court has also
considered the judgment in S. Nagaraj & Ors.
Vs. State of Karnataka & Anr. (supra), which
reiterates the principle that
“19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its
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order the courts culled out such power to avoid abuse of process or miscarriage of justice……………..”
63. These principles are far too well entrenched in the
Indian jurisprudence, to warrant reiteration. However,
for the sake of completion, we may notice that Mr.
Bhushan had relied upon Board of Control for
Cricket in India v/s Netaji Cricket Club (supra), and
Green View Tea & Industries (supra). It would be
useful to reiterate the following excerpts:
In the case of Board of Control for Cricket in
India (supra), it was observed that:
“90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words “sufficient reason” in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”.
This court in Green View Tea & Industries
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(supra) reiterated the view adopted by it in S.
Nagaraj & Ors (supra). Therefore, the ratio of Green
View Tea is not applicable in this case.
64. In view of the observations made in the aforesaid
judgments, this Court would not be justified in holding
that the High Court has erred in law in not reviewing its
earlier judgment.
65. This apart, we have examined the entire issue
threadbare ourselves as the issue with regard to the
adverse impact on the candidates belonging to the
reserves categories has not been raised before the High
Court nor considered by it. In the earlier round, the
issue was also neither raised nor considered by this
Court. When the order dated 19th February, 2013 was
passed, the issue with regard to reservation was also
not canvassed. But now that the issue had been raised,
we thought it appropriate to examine the issue to put
an end to the litigation between the parties.
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66. In view of the above, the appeal is accordingly
dismissed.
Contempt Petition No.287 of 2013 in CIVIL APPEAL NO………………. OF 2014 (Arising out of SLP (C) No.22035 of 2013)
67. This Petition was filed by the Petitioner/Appellant,
seeking initiation of contempt proceedings against
alleged contemnors/respondent for disobeying the
order of status quo dated 12th July, 2013 passed by this
Court in the aforesaid Civil Appeal.
68. In view of the judgment passed by this Court in
Civil Appeal No……………… of 2014 (Arising out of SLP
(C) No.22035 of 2013), this Petition is dismissed as
having become infructuous.
CIVIL APPEAL NO……………OF 2014 (Arising out of SLP(C) No.29740 of 2013
69. This Civil Appeal was filed by Smt. Rukmini Devi,
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challenging final order and judgment dated 19th August,
2013 passed by the High Court of Judicature at
Allahabad, Lucknow Bench in Writ Petition No. (MB)
5999 of 2013.
70. The issues raised in this civil appeal are identical
to those that we have examined in Civil Appeal
No……………… of 2014 (Arising out of SLP (C) No.22035
of 2013). Therefore, in view of the judgment in the Civil
Appeal No……………… of 2014 (Arising out of SLP (C)
No.22035 of 2013), this appeal is also dismissed.
……………………………….J. [Surinder Singh
Nijjar]
………………………………………….…..J. [Fakkir Mohamed Ibrahim
Kalifulla]
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New Delhi; March 28, 2014.
89