Hon'ble Saeed-Uz-Zaman Siddiqi,J.
1.Instant writ petition under Article 226 of the Constitution of India, has been preferred against the motion of no-confidence from the members of Kshetra Panchayat, constituted under the Uttar Pradesh Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (in short the Act).
2.The petitioner was elected as Pramukh of Kshetra Panchayat, Bihar, District Pratapgarh and administered oath of the Office on 18.3.2011 and certificate was issued indicating his status on 22.12.2010 a copy of which is annexed as Annexure No.1 to the writ petition.
3.The Kshetra Panchayat constituted under the Act, has been conferred jurisdiction to discharge its obligation under the Act for over all development and supervisory work of the rural area falling in the district.
The Kshetra Panchayat is constituted under Section 6 of the Act which contains Pradhan of the Gram Panchayat and elected members. The term of the Office of Kshetra Panchayat is 5 years under Section 8 of the Act from the date appointed for its first meeting and no longer.
Under Section 10 of the Act, it shall be obligatory for State Government to make necessary arrangement for the Constitution of Kshetra Panchayat for every Khand.
The motion of no-confidence against the Pramukh, may be moved after expiry of one year from the date appoint from its first meeting in view of the provisions contained in sub-section (13) of Section 15 of the Act.
4.Sri J.N. Mathur, learned Senior Counsel, apprised the Court that earlier, period for motion was two years but by an amendment in the year 2007, by Act No.44 of 2007, it was reduced to one year.
It has further been submitted that the U.P. Kshetra Panchayat and Zila Panchayat (Amendment) Bill, 2011 was passed by both the Houses of State Legislature in the year 2011, again substituting the period of one year by two years.
Learned Senior Counsel informed that the House of State Legislative Assembly had proposed the bill on 10.8.2011, whereas, the State Legislative Council has re-affirmed the Bill on 11.8.2011 and on the very next day and, it was sent to His Excellency, the Governor for assent in compliance of Article 200 of the Constitution. The submission is that till date, His Excellency, the Governor has neither granted the assent nor returned the same keeping in view the mandate of Article 200 of the Constitution.
5.During the course of argument, it has not been disputed that the Bill in the U.P. State Legislative Assembly, was introduced on 10.8.2011 and passed by the House on 11.8.2011. The proceeding has been filed as Annexure No.7 to the writ petition.
6.The requisition for motion of no-confidence in pursuance of Section 15 (supra), was moved on 9.4.2012 of the Kshetra Panchayat Bihar District Pratapgarh by 75 members. In consequence thereof, the District Magistrate, Pratapgarh, by the impugned order dated 11.4.2012, directed the S.D.M., Tahsil Kunda, District Pratapgarh to convene a meeting of Kshetra Panchayat on 4.5.2012 for discussion.
7.While assailing the impugned order, Sri J.N. Mathur, learned Senior Counsel for the petitioner has raised two-fold arguments. First, the impugned requisition does not assign reason or discloses the grounds on which the motion of no-confidence proposed, is moved. It only reveals that signatories or the members of Kshetra Panchayat have given a notice with regard to motion of no-confidence along with a copy of resolution. Secondly, the proposed Bill Amending sub-section 13 of Section 15 of the Act, was passed by both the Houses of the State Legislature on 10th and 11th August, 2011. According to petitioner's counsel, on 12th August, 2011, it was sent to His Excellency, the Governor for assent but till date, neither it has been returned with or without assent. Hence keeping in view the lapse of time, this Court may issue appropriate direction to opposite party No.4 to pursue for appropriate order with regard to Amending Bill of 2011 from His Excellency, the Governor of the State.
8.While assailing the impugned order the first limb of argument of Sri J.N. Mathur, learned Senior Counsel is that, non-disclosure of grounds in the requisition for motion of no-confidence, moved by the members of the Kshetra Panchayat, makes it unlawful and incompetence for consideration as a motion of no-confidence. Learned counsel while inviting attention to sub-section (6) and (7) of Section 15 of the Act, submits that there cannot be debate on the basis of impugned requisition or motion of no-confidence. Submission is that in democratic process and being an elected representative, the petitioner has got right to know the allegation or charges which is the foundation of the motion of no-confidence.
9.On the other hand, Sri H.P. Srivastava, learned Additional Chief Standing Counsel submits that for the purpose of motion of no-confidence, it is not necessary to move a requisition containing charges or factual foundation. In case members of Kshetra Panchayat move motion of no-confidence, expressing their lack of confidence in their Kshetra Pramukh for any reason whatsoever, in democratic process, loss of confidence in the leader of House, itself is a matter of debate, requires no further explanation. To substantiate his argument, Sri H.P. Srivastava, relied upon the cases reported in [1991 UPLBEC 505]: Haji Ghafoor Bukhsh. Vs. State of U.P. and others; (1994) 2 SCC 706: Babubhai Muljibhai Patel. Vs. Nandlal Khodidas Barot and others; (1992) 4 SCC 80: Mohan Lal Tripathi. Vs. District Magistrate, Raibareilly & others; (2004) 5 SCC 409: Ramesh Mehta Vs. Sanwal Chand Singhvi & others; (2010) 12 SCC 1: Bhanumati & others. Vs. State of Uttar Pradesh & others; (2010) 7 SCC 202: K. Krishnamurti (Dr.) & others. Vs. Union of India & another and (2011) 9 SCC 573: Pratap Chandra Mehta Vs. State Bar Council of Madhya Pradesh & others.
10.In Black's Law Dictionary, the word, 'debate' has been defined as under:
Pro-con debate. A debate that adheres to the parliamentary principle that speeches should alternate between opposing viewpoint. Sometimes those seeking the floor on one side outnumber those on the other side in which case the chair may allow two (or more) speeches in a row on the same side of the question."
11.From the dictionary meaning, of the debate, it appears that formal consideration of motion on merit in the form of speeches for, against or otherwise, addressing the motion, shall be sufficient compliance of statutory provisions and during the course of discussion or speech, members may express their views for or against the motion. According to dictionary meaning, there may be limited debate or controlled debate that is in letter and spirit of sub-section (6), (7) and (8) of Section 15 of the Act.
12.Sub-section (7) speaks for full debate on the motion of no-confidence for which the members express their views with regard to lack of confidence in the Pramukh of the Kshetra Panchayat. Sub-section (7) and (8) speaks for full bloom debate on the motion of no-confidence and every member has got right to address for, against or otherwise during the course of discussion or debate.
13.The right to move motion or participate in debate is a statutory right in the members conferred by Section 15 of the Act. The provisions (supra), used the word, motion and does not speaks for motion containing charges. Legislature to their wisdom has conferred powers on the members of Kshetra Panchayat to move requisition in prescribed format for motion of no-confidence. Once, Legislature to their wisdom has not provided to disclose charges or the allegations, then it is not permissible for the Court to apply principles of reading down.
14.It is well settled law that in case the language of statute is clear and unambiguous, then casus omisus cannot be supplied, vide 2006 (2) SCC 670, Vemareddy Kumaraswamy Reddy and another VS. State of A.P.; (2004) 11 SCC 625, Delhi Financial Corporation and others Vs. Rajeev Anand and others; AIR 1953 SC 148, Nalinakhya Bysacik Vs. Shyam Sunder Haldar and 2001 (8) SCC 61, Dental Council of India Vs. Hari Prakash.
15.The elected representatives are accountable to their electorate and electorate choose their members as well as Pramukh. It is right of elected representatives to show their lack of confidence by moving motion of no-confidence accordance with the statutory provisions. This is inherent philosophy in the policy of motion of no-confidence.
16.The democracy is a concept and political philosophy and an ideal practice by resorting to governance by representatives of the people elected directly or indirectly. It is neither fundamental nor common law but statutory right to remove elected representative and in absence of any constitutional restriction, it is within the power of members of elected body to move motion of no-confidence in accordance with statutory provisions. The philosophy of motion of no-confidence has been dealt with and considered by Hon'ble Supreme Court in the case of Mohan Lal Tripathi (supra).
17.In the case of Babubhai Muljibhai Patel (supra), their lordships while considering the significance of motion of no-confidence, held that even if there is provision with regard to disclosure of ground, motion of no-confidence may be moved without setting up the ground or charges. It is held that motion of no-confidence or a censure motion are different facets of political philosophy. In a censure motion, it has to disclose the reason whereas, in matters of motion of no-confidence, it is suffice to say that members lack their confidence. To quote relevant portion from para 19 of the case of Babubhai Muljibhai Patel (supra), is reproduced as under:
It is no doubt true that according to the form prescribed the ground for the, motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follow therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although aground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members. We may in the above context refer to page 591 of Practice & Procedure of Parliament, Second Ed. by Kaul and Shakdher. wherein it is observed as under :
"A no-confidence motion in the Council of Ministers is distinct from a- censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no-confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no-confidence motion."
18.In one other case, relied upon by Sri H.P. Srivastava, learned Additional Chief Standing Counsel reported in Pratap Chandra Mehta (supra), the aforesaid proposition of law has been reiterated and their lordships held that motion of no-confidence cannot be equated in law to removal relatable to a disciplinary action or as a censure. It is stricto sensu not removal from office, but a removal resulting from loss of confidence, to quote relevant para 76 and 77 of Pratap Chandra Mehta's case (supra) as under:
76. It needs to be noticed at the very threshold of consideration of this submission that `no confidence motion' cannot be equated in law to removal relatable to a disciplinary action or as a censure. It is stricto senso not removal from office, but a removal resulting from loss of confidence. It is relatable to no confidence and is not removal relatable to the conduct or improper behaviour of the elected person. Even the concept of `term' under the Rules, is referable to and is controlled by a super-imposed limitation of no confidence. This tenure cannot be compared to a statutory tenure as is commonly understood in the service jurisprudence.
77. The distinction between removal by way of `no confidence motion' and removal as a result of disciplinary action or censure is quite well accepted in law. They are incapable of being inter-changed in their application and must essentially operate in separate fields. The Court has always prioritized harmonious functioning of the State Bar Council. In Afjal Imam v. State of Bihar, the recall of a Mayor and the re-election of a different Mayor in his place has been held to implicitly shorten the term of the appointees of the previous Mayor, if such is in the interest of smooth functioning of the body."
[Afjal Imam v. State of Bihar and others, [JT 2011 (5) 19]
19.The other case relied upon by the learned Additional Chief Standing Counsel reiterated the aforesaid proposition of law. Motion of no-confidence expressed by the members of elected body itself is a matter of debate hence it is not necessary to disclose the charges while moving requisition of no-confidence. Persons holding public office as a leader of elected body, cannot equate themselves with the Government employees or bureaucracy. They are elected to discharge public obligations till the confidence reposed in them by the people continue. The moment the people loose their confidence in the elected representative holding a public office or a member of elected body such public representative should relinquish the public office. That is why, in some of the countries apart from the provisions with regard to no-confidence motion or for absence of confidence, there is provision for recall of elected representative for the purity of system. Election for five years also does not mean that the elected representative has got blanket power to move on his/her own way without taking care of public interest.
20.Of course, sometimes, the motion of no-confidence may be passed by the members of elected body but that is a part and parcel of democratic polity and for that, a provision may be made for recall of elected representative by the electorate.
21.Coming to second limb of argument with regard to relief claimed by the petitioner for issuance of a direction to respondent No.4 to pursue the matter pending with His Excellency, the Governor of State, which also seems to be not sustainable. 22.In case the argument advanced by the petitioner's counsel is accepted, it shall amount to judicial review of the conduct of the Governor which seems to be forbidden under the law. 23.Under Article 200 of the Constitution, whenever a bill is sent for assent of the Governor of the State, it shall be obligatory for the Governor to declare either he assents to the bill or that he withholds the assent therefrom or that he reserves the Bill for the consideration of the President. In the present case, all three steps seem to have not been taken. Then what is the option? The option was very well available to the State Government to pursue the matter with His Excellency, the Governor of State by submitting reminders. Nothing has been brought on record by the petitioner to indicate the persuasion made by the State Government approaching His Excellency, the Governor of State. Of course, there is change of the Government but ultimately, burden lies on the petitioner to establish the factual position and cause of action for interference by the Court.
24.Admittedly, U.P. Panchayat Laws (Amendment) Act, 2007 was upheld by this Court. The Civil Appeal No.4135-4152 of 2010 [arising out of SLP (C) Nos.3802-3819 of 2009] was also dismissed by the judgment and order dated 4.5.2010. Meaning thereby, reduction of period from two year to one year was upheld by Hon'ble Supreme Court.
25.What prompted the Government to increase the period again, for two years within a year of judgment of Hon'ble Supreme Court (supra), is not borne out from the record. Legislative power may be exercised on justifiable ground but not in arbitrary manner. In case wrong precedent is set up by one Government while discharging their constitutional functions in due course of time, it shall be repeated by the subsequent Governments. That is why, in Mahatma Gandhi's views, 'mean should justify the end. Right means, correct approach, fair thinking and intention to secure public interest should be paramount consideration for discharge of constitutional obligations by the Legislative, Executive and Judiciary. One incorrect precedent causes pain and suffering for centuries to come.
26.In view of the above, the writ petition is devoid of merit and is dismissed in limine.
No orders as to costs.
[Justice Saeed-Uz-Zaman Siddiqui] [Justice Devi Prasad Singh] Order Date :- 1.5.2012 Rajneesh AR-PS)