Dharam Singh Negi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This appeal is preferred by the fourth respondent in WPMS No.3105 of 2018 aggrieved by the order passed by learned Single Judge dated 30.04.2019 allowing the writ petition, and in quashing the order impugned therein dated 09.10.2018. The respondent-writ petitioner had invoked the jurisdiction of this Court seeking a writ of certiorari to call for the records, and to quash the order dated 09.10.2018 passed by the second respondent directing the third respondent to proceed in accordance with Section 62 of the Uttarakhand Panchayat Raj Act, 2016.

Facts, to the limited extent necessary, are that the petitioner, consequent upon his election as a member of Kshetra Panchayat from 29 Tiloth-II revenue village, was later elected as the Pramukh of the Kshetra Panchayat Bhatwari, District Uttarakhashi. The petitioner admits, in the writ affidavit, that in January, 2018, the Nagar Palika Parishad Barahat, District Uttarkashi was re-organized, and Tiloth-II revenue village was merged and incorporated in the Nagar Palika Parishad, Barahat, Uttarkashi. The second respondent, vide proceedings dated 09.10.2018, informed the third respondent that the respondent-writ petitioner no longer remained in the voter list in Tiloth village Panchayat, and the said electoral list had been transferred to the Nagar Palika Parishad Bhatwari, District Uttarkashi; and he became ineligible to be a member of the Kshetra Panchayat and, consequently, to be a Block Pramukh. The second respondent directed the third respondent to proceed in accordance with Section 62 of the Uttarakhand Panchayat Raj Act, 2016.

It is this order dated 09.10.2018 which was subjected to challenge in the writ petition, primarily on the ground that the petitioner can be only said to suffer from the disqualification under Section 53(4); Section 53(5) prescribes the authority to decide the dis-qualification which, in terms of the Government Notification, is the Sub Divisional Magistrate; neither the second nor the third respondents are prescribed as the authority under Section 53(5) to decide whether the petitioner has suffered disqualification; action can be taken, for disqualification of the petitioner, only by the Sub-Divisional Magistrate as the Prescribed Authority; Section 62 of the Uttarakhand Panchayat Raj Act, 2016, in terms of which the competent authority is the third respondent, has no application; and the third respondent lacks jurisdiction to take any action against the petitioner in this regard.

In the order under appeal, the learned Single Judge noted that village Tiloth in Bhatwari Block was brought within the ambit of Barahat Nagar Palika, District Uttarkashi, by notification dated 05.01.2018; when the village was merged with the Nagar Palika, the petitioner was a member of the Panchayat; it was contended that he ceased to be a member under Section 53(4); the contention, urged on behalf of respondents in the writ petition, was that, as soon as village Tiloth of Block Bhatwari was brought within the municipal area, and was taken out of the Block, the petitioner ceased to be a member of the Panchayat; and, as a consequence thereof, he also ceased to be the Block Pramukh.

After extracting Section 53 of the Uttarakhand Panchayat Raj Act, 2016, the learned Single Judge observed that Section 53(1) dealt with the condition of the disabilities which a member can suffer; it was contended, on behalf of the respondent, that Section 53(5) would apply only when a member suffered from the disqualification under Section 53(1), and not otherwise; the respondents had contended that the procedure prescribed under Section 62 of the Uttarakhand Panchayat Raj Act, 2016 was applicable for removal of the petitioner from membership; the Appendix, in Entry 13, refers to the Prescribed Authority under Section 53(5) to be the Sub-Divisional Magistrate; and Entry 14 prescribes the authority, under Section 62, to be the Chief Development Officer.

The learned Single Judge, thereafter, opined that the contention that Section 53(5) should be confined only to the discrepancy under Section 53(1) was not tenable; the contention that Section 53(4) did not amount to a discrepancy, unlike Section 53(1), would result in the Prescribed Authority under Section 53(5) not to be the competent authority to take action; this contention was not tenable; the discrepancy of cessation of membership, as also from the office of membership of the panchayat, suffered by the petitioner was on account of inclusion of village Tiloth, Block Bhatwari, in the municipal area; such a discrepancy would fall within the ambit of a discrepancy covered by Section 53(4), which forms part and parcel of the provisions contained under Section 53; the provisions, contained under Section 53(4), which resulted in cessation of membership, and consequent removal from the office of Block Pramukh, cannot be read in isolation; any cessation of office, as a consequence of the implication of Section 53(4), would also amount to a disability suffered under Section 53 of the Act; it would not amount to a discrepancy under Section 62; the legislature has specifically classified the nature of the discrepancy which Section 62 deals with; the discrepancy, in the case on hand, did not fall under Section 62; and, since the Prescribed Authority under Section 53(5) was the Sub-Divisional Magistrate, the Chief Development Officer lacked jurisdiction to take action under Section 62 of the Act.

The learned Single Judge further observed that the impugned order dated 09.10.2018 was not an independent decision of either of the prescribed authorities under the Act; it was a memorandum, issued by the third respondent, seeking a direction for action to be taken from the second respondent, which was not contemplated under the Act for taking action either under Section 53(5) or Section 62; no such order could have been passed by the second respondent directing action to be taken under Section 62 of the Act; and the impugned order dated 09.10.2018, and the earlier letter dated 22.09.2018, addressed by the Chief Development Officer to the Director seeking his clarification, was without jurisdiction as the Sub Divisional Magistrate was the Prescribed Authority.

Mr. Ravi Babulkar, learned counsel for the appellant-fourth respondent, would submit that Sub-Sections (1) to (3) of Section 53 of the Act, prescribes the disqualifications; unlike Sub-Sections (1) to (3) of Section 53, Section 53(4) does not use the word "disqualification"; it relates to cessation of membership of the Kshetra Panchayat as a consequence of the entry relating to that member having been deleted from the electoral roll of a territorial constituency of the Kshetra Panchayat; in the present case, Tiloth revenue village (which was hitherto a territorial constituency of Bhatwari Kshettra Panchayat) was merged with Barahat Nagar Palika, and ceased to exist as revenue village thereafter; as a result, the respondent-writ petitioner ceased to be a member of the territorial constituency of the Bhatwari kshetra panchayat; consequently, he also ceased to be the Block Pramukh; and Section 62 of the Act, which relates to a situation where a Pramukh is not able to discharge his functions owing to absence or illness or any "other cause", would require the Chief Development Officer to take action, and not the Sub-Divisional Magistrate.

On the other hand, Mr. Abijay Negi, learned counsel holding brief of Mr. Sandeep Kothari, learned counsel for the respondent-writ petitioner, would submit that Section 53(4) also relates to disqualification of membership; consequently, it is only the Sub-Divisional Magistrate (i.e. the Prescribed Authority) who is entitled to take action with respect to such dis-qualification; where a statute requires something to be done in a particular way, then it must be done in that way or not at all; it is only the Sub-Divisional Magistrate who is entitled to decide such disqualification, and not the Chief Development Officer; and the proposed action of the Chief Development Officer, to disqualify the petitioner as the Block Pramukh is without jurisdiction. Learned counsel would rely on Sunil Kumar Vs. State of U.P. and others : 2004 (1)UPLBEC 258.

Before examining the rival contentions, it is necessary to take note of relevant provisions of the 2016 Act, since the dispute in this writ petition mainly revolves around the scope and ambit of Section 53 and 62 of the Act. It is useful to extract the said provisions in their entirety.

"53. Disqualifications for membership Kshettra Panchayat- (1) A person shall be disqualified for being chosen as and for being a member of a Kshettra Panchayat, if he-

(a) is so disqualified by or under any law for the time being in force for the purposes of election of the State Legislature;

Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;

(b) he have salaried servant of Gram Panchayat/Kshettra Panchayat/Zila Panchayat.;

(c) holds any office of profit under a State Government or the Central Government or a local authority or controlled by any State Government or Central Government or any Board, bodes or corporation owned or controlled by any State Government or Central Government in which Aaganbadi Assistant, Attendance, Secretary of Cooperative Committee and salary paid employees and working employees on honorarium under the State and Central sponsored schemes shall be include;

(d) has been dismissed from the service of a State Government, the Central Government or a local authority for misconduct;

(e) is in arrears of any tax, fee rate or any other dues payable by him to the Kshettra Panchayat for such period as may be prescribed or has inspire of being require to do so by Kshettra Panchayat failed to deliver to it any record or property belonging to it which has come into his possession by virtue of his holding any office under it;

(f) is Chairman and vice chairman of any Nagar Nikay;

(g) is an undercharged insolvent;

(h) has been convicted of an offence involving moral turpitude;

(i) has been sentenced to imprisonment for a term exceeding three months for contravention of any order made under the Essential Commodities Act, 1955;

(j) has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under the Essential Supplies (Temporary Powers) Act, 1946 or the U.P. Controlled of Supplies (Temporary Powers) Act, 1947;

(k) has been sentenced to imprisonment for a term exceeding three months under the U.P. Excise Act, 1910;

(l) has been convicted of any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985;

(m) has been convicted of an election offence.

(n) has been convicted of an offence under the U.P. Removal of Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955;

(o) has been removed for office under section 138 unless such period, as has been provided in that behalf in the said section or such lesser period as the State Government may have ordered in a particular case has elapsed;

Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record or property, as the case may be;

Provided also that a disqualification under any of the clauses referred to in the first proviso may, in the manner prescribed, be removed by the State Government.

(p) In place of women member/ Pramuks/senior Pramukh/ junior Up Pramukh if her husband or other family members or relative shall preside the meetings and discharged the duties of Kshettra Panchayat and declared faulty than said women and concerning person who is presiding meetings and discharged the duties, both shall be disqualified for forthcoming general election of three level of Panchayat.

(2) Disqualification due to corruption - An authority competent to decide election disputes under this Act or the rules made thereunder may declare any candidate found to have committed any corrupt practice to be incapable, for any period not exceeding five years from the date of declaration, of being chosen as a member of a Kshettra Panchayt, or elected as a Pramukh of a Kshettra Panchayat or of being appointed or retained in any office or place in the gift or disposal of a Kshettra Panchayat.

(3) Disqualification of no toilets: (a) if any person convicted by the appropriate court under the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 than he shall be disqualified to fight Panchayat election.

(b) If there is no toilet established in the house of those persons residing under the jurisdiction of the concerned Panchayat, they shall be disqualified for candidature of the Panchayat election.

(4) Cessation of membership - (i) A member of Kshettra Panchayat shall cease to be such member if the entry relating to that member is deleted from the electoral roll for a territorial constituency of Khettra Panchayat.

(ii) Where any person ceases to be a member of a Kshettra Panchayat under sub-section (1) he shall also cease to hold any office to which he may have been elected, nominated or appointed by reasons of his being a member thereof.

(5) Decision on question as to disqualification - If any question arises as to whether a person has become subject to any disqualification mentioned in any section of under this Act, the question shall be referred to the prescribed authority for the decision and his decision shall, subject to the result of any appeal as may be prescribed, be final;

(6) Prohibition of holding more than one seat-simultaneously of Panchayats- Any person may not be candidate in the election from one or more territorial constituencies election areas in the Kshettra Panchayat and nor he may hold one or more post in Kshetra Panchayat.

Arrangement in absence of Pramukh of Kshettra Panchayat -When the Pramukh is unable to discharge his functions owing to absence, illness or any other cause, and the office of Up-Pramukhs are vacant, or when the Up-Pramukh, if, acting under the provision of this Act, during a vacancy in the office of Pramukh is unable to discharge his functions owing to absence, illness or any other cause, the prescribed authority, may, by order, make such arrangement, as he thinks fit, for the discharge of the functions of the Pramukh, until the date on which the Pramukh as the case may be resumes his duties."

Section 53(1) specifies several disqualifications with respect to a person to be chosen as, and for being, a member of the Kshetra panchayat. It is not in dispute that the respondent-writ petitioner does not fall within any of the disqualifications enumerated under clauses (a) to (e) of Section 53(1) of the Act. Besides, the disqualification under Section 53(1), Section 53(2) relates to disqualification due to corruption, and Section 53(3) prescribes the disqualification for not having toilets. Section 53(5) bears the heading "Decision on question as to disqualification", and thereunder, if any question arises as to whether a person has become subject to any disqualifications mentioned in any Section under this Act, the question is required to be referred to the Prescribed Authority for his decision.

The Sub Divisional Magistrate is the prescribed authority to determine the disqualification under the Uttarakhand Panchayat Raj Act, 2016. Unlike clauses (1) to (3) of Section 53 of the Act, which enumerates different disqualifications, Section 53(4) bears the heading "Cessation of membership" and, under sub-section (i) thereof, a member of the Kshetra Panchayat shall cease to be such a member if the entry, relating to that member, is deleted from the electoral roll of a territorial constituency of the Kshetra Panchayat. The territorial constituency, for a member of the kshetra panchayat, is the village panchayat. Therefore, in terms of Clause(i) of Section 53 (4), if the entry relating to the member is deleted from the electoral roll of the village panchayat, he then ceases to be a member of the Kshetra Panchayat. It is not in dispute, and has in fact been admitted by the petitioner in his writ affidavit, that Tiloth Gram panchayat has ceased to exist, consequent upon Tiloth revenue village having been merged with the Barahat Nagar Palika in Uttarkashi District.

Since the very existence of the revenue village, from which the petitioner was elected as a member of the kshetra panchayat, has itself come to an end, consequent on its merger with the Barahat Nagar Palika, the entire electoral roll of the said revenue village now forms part of the electoral rolls of the Barahat Nagar Palika i.e. a Part IX institution has now merged with an institution under Part IX-A of the Constitution, as a result of which the identity of the village panchayat no longer exists. Consequently a member, elected from such a village panchayat, would cease to remain a member of the kshetra panchayat under Clause (i) of Section 53(4) of the Act. Thereafter in terms of Clause (ii) of Section 53(4), such a person, who has ceased to be a member of the Kshettra panchayat under Section 53(4)(i), would also cease to hold any office to which he may have been elected, nominated or appointed by reason of his being a member thereof. The respondent-writ petitioner was elected as the Block Pramukh only because he was a member of the kshettra panchayat; and as he ceased to be a member of the Kshetra Panchayat under Section 53(4)(i), he would cease to hold office of the Block Pramukh under clause (ii) of Section 53(4) of the Act. Cessation of membership under Section 53(4) is a natural consequence of the name, of the member of the kshetra panchayat, being deleted from the electoral roll of the territorial constituency of the kshetra panchayat i.e. the electoral roll of the village panchayat.

Unlike clauses (1) to (3) of Section 53 where there may be a dispute as to whether or not the elected member suffers from a disqualification, in the present case, it is evident from the very assertion of the petitioner, in his writ affidavit, that he has ceased to be a member of the Batwari kshetra panchayat, since Tiloth Gram panchayat, from which he was elected, has since being merged with the Barahat Nagar Palika (Municipality).

Section 62 relates to a situation where a block pramukh is unable to discharge his functions owing to absence, illness or any other cause. This provision deals with the inability of the Pramukh to discharge his functions, unlike Section 53(4) which deals with cessation of membership. It is difficult for us to hold that the words "any other cause" in Section 62 would bring within its ambit a situation where a person ceases to be a member of the kshetra panchayat, and consequently as the Block Pramukh. Section 62 applies to situations where, on account of certain factors, the Block Pramukh is unable to discharge his function. It has no application to situations where he either ceases to be a Block Pramukh permanently or is held disqualified from continuing as a Pramukh of the Kshettra Panchayat. The language used in Section 62 reflects its interim character, for it provides for a temporary arrangement to be made only till the date on which Pramukh resumes his duties. Once the Pramukh ceases to be a member of the Kshetra Panchayat, and consequently as the Block Pramukh, the cessation is permanent and, unlike Section 62, is not temporary in character. Reading the words "any other cause" in such a manner, as to bring within its ambit any cause other than absence or illness, may also require the disqualification, under clauses (1) to (3) of Section 53, to also be brought within the ambit of Section 62 of the Act. This is impermissible.

In Sunil Kumar vs. State of U.P. and others, (2004) 1 UPLBEC 258, a group of villages were excluded from one block and merged with another. Elections were directed to be held for both the Blocks. An order was passed indicating that the petitioner ceased to be a Pramukh of Vikram Jot block as his election as a member from a constituency fell within the newly created block. Questioning this action, the petitioner invoked the jurisdiction of the Allahabad High Court. It is in this context that the Division Bench of the Allahabad High Court referred to the legal maxim "Expressio unius est exclusio alterius" meaning thereby that, if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following any other course is not permissible. After referring to Taylor vs. Taylor : 1876 (1) Ch D 426 and Nazir Ahmed vs. King Emperor : AIR 1936 PC 253, and several other judgments following the law laid down therein, the Division Bench of Allahabad High Court observed that it was also settled proposition of law that, what cannot be done "per directum is not permissible to be done per obliguum", meaning thereby that whatever is prohibited by the law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud" meaning thereby that when anything is prohibited, everything by which it is reached is prohibited. After referring to the judgment of the Supreme Court in Jagir Singh Vs. Ranbir Singh : AIR 1979 SC 381, and to the observation in Fox vs. Bishop of Chester : (1824) 2 B 7C 635, the Division Bench of the Allahabad High Court held that to carry out effectively the object of a statute, it must be so considered as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.

Section 13(O) of the U.P. Kshettra Panchayat and Zilla Panchayat Adhiniyam, 1961 provided for disqualification for being a member of the Kshetra Panchayat, if the said individual was not registered in the electoral roll in any territorial constituency of the Kshettra panchayat. The Division Bench of the Allahabad High Court held that the petitioner was not registered in the electoral rolls for any territorial constituency of the Vikaram Jot kshetra panchayat, and he could not claim to continue in the said post; while the State Government cannot curtail the tenure of an elected member by passing an executive order, in the instant case an executive order had been passed to give effect to the legal provisions in the changed circumstances after carving out new blocks; the order passed by the authorities was to ensure compliance with the statutory provisions, and not in violation thereof; and as the petitioner had incurred disqualification, under Section 13(O) of the 1961 Act, he could not claim that fresh elections should not be held, and he should be permitted to complete his tenure.

Unlike under the U.P. Act, where a person not registered in the electoral rolls of any territorial constituency is disqualified from being a member, the language of Section 53(4) of the 2016 Act is more emphatic, and a person would cease to be a member of the Kshetra panchayat, if his name is deleted from the electoral rolls of the territorial constituency of such a Kshetra panchayat which, in the present case, is the Tiloth Village Panchayat. As the Village Panchayat has itself ceased to exist, the electoral rolls of the said Village Panchayat would not survive its existence being brought to an end consequent upon its merger with the Barahat Nagar Palika.

As there is no allegation that the petitioner suffers from any disqualification, under clauses (1) to (3) of Section 53 of the Act, Section 53(5) has no application. There is no dispute that the respondent-writ petitioner has ceased to be a member of the Kshetra Panchayat, not because he suffered any disqualification under clauses (1) to (3) of Section 53 of the Act, but because the Tiloth Gram Panchayat, from where he was elected as a member of the Kshetra Panchayat, has itself ceased to exist. As the village panchayat is itself no longer in existence, the question of a member from such a non-existent village panchayat continuing as a member of the kshetra panchayat, and consequently as the Block Pramukh, would not arise. As no other conclusion is possible regarding cessation of membership of the petitioner, under clauses (i) and (ii) of Section 53(4), firstly as a member of the Kshetra Panchayat and thereafter as its Block Pramukh, it matters little whether such an order is passed under Section 53(5) or under Section 62 of the Act.

The facts, in the present case, speak for themselves. As the petitioner has ceased to be a member, and to hold office of the Block Pramukh, under Section 53(4) of the Act this Court would not exercise its discretionary jurisdiction, under Article 226 of the Constitution of India, to interfere with the impugned order, and to hold that the Sub-Divisional Magistrate alone can exercise jurisdiction. Cessation of membership, under Section 53(4), is automatic. The moment his name is removed from the electoral roll of a territorial constituency (in the present case a Village Panchayat), a member of the Kshetra Panchayat ceases to remain such a member and, consequently, also as a Block Pramukh. As the cessation is automatic, it does not, unlike a case of dis-qualification, require an order to be passed, and the only action which is required to be taken is to fill up the vacancy caused as a result of such cessation of membership. Even if the respondent-writ petitioner's contention is presumed to have some basis, the Sub-Divisional Magistrate can pass no other order but to declare that the petitioner has ceased to be a member and the block pramukh. Since such a conclusion is inevitable, this Court would not interfere merely for the very same order to be passed again later.

The order under appeal is, therefore, set aside. The respondent shall forthwith take necessary action to fill-up the vacancy, caused as a result of the cessation of membership of the respondent-writ petitioner, at the earliest and in accordance with law.

The Special Appeal is, accordingly, disposed of. No costs.