Prem Ballabh Brijwasi vs Kedar Palariya And Others

Alok Kumar Verma, J

This writ petition has been filed by the petitioner, who had contested the election of a Member of Zila Panchayat from the Constituency (General)

No.26, Amritpur, District Nainital. The result of the election was declared on 21.10.2019. Dr. Kedar Palariya, the respondent no.1, objected to the

nomination of the petitioner. The Returning Officer, vide letter dated 27.09.2019, accepted the nomination of the petitioner and rejected the objections

of the respondent no.1. The petitioner was declared elected from the said constituency. The respondent No.1 filed a Writ Petition No.3244 of 2019

(M/S), ‘Dr. Kedar Palariya vs. Union of India’. The said writ petition was disposed of on 07.01.2020 with the following observations:

“7. Evidently, the qualification of the private respondent no.6 is not recognized in the State of Uttarakhand as equivalent to the High School.

However, this fact shall be considered by the concerned authority or the Election Tribunal in an election petition, in case such an election petition is

filed by the petitionerâ€​

On 10.07.2020, Dr. Kedar Palariya, the respondent no.1, filed an Election Petition No.1 of 2020, ‘Dr. Kedar Palariya vs. Prem Ballabh and

others’, before the District Judge, Nainital. The learned District Judge, vide its order dated 20.02.2021, had decided the issue no.1, issue of

limitation, in favour of Dr. Kedar Palariya. Against the order dated 20.02.2021, the present petitioner filed a Writ Petition No.497 of 2021 (M/S) Prem

Ballabh Brijwasi vs. Dr. Kedar Palariya. The said writ petition was decided on 31.03.2021 as follows :

“… . While dismissing this writ petition so far it relates to the limited issue of limitation, I hold that the learned District Judge by the impugned order

has rightly decided the aspect of limitation and had rightly held that the election petition, which was preferred by the election petitioner/respondent

no.1, was within time with a slight clarification, only to the effect that observation made in the paragraphs as quoted above will not create any

impediment for the petitioner so far it relates to the petitioner contentions on the issue of the institution of election petition before the District Judge, in

the absence of their being prior a reference made by the District Magistrate, as per the provisions contained under Section 131-H (10) of the Act and

also as per the ratio, which had been laid down by the Coordinate Bench of this Court in a bunch of writ petition with a leading Writ Petition No. 3350

of 2019, “Bhupendra Singh vs. State of Uttarakhand and othersâ€. The said question would still be left open to be argued and decided by the

learned District Judge before venturing into the merits of the election petitionâ€​.

The learned District Judge, Nainital framed issue no.4 to the effect that whether the election petition is barred by the proviso to Section 131-H(10)

of the Uttarakhand Panchayati Raj Act, 2016 (hereinafter referred to as, ’the Act, 2016’). The said issue was decided vide order dated

12.04.2021 in favour of Dr. Kedar Palariya. Feeling aggrieved by the order dated 12.04.2021, the present writ petition has been filed to set aside the

order dated 12.04.2021.

During the course of the arguments in this writ petition, the learned Single Judge found that in an earlier judgment dated 19.08.2020, passed in Writ

Petition No.3350 of 2019 (M/S), ‘Bhupendra Singh vs. State of Uttarkhand and others’ and batch, the learned Single Judge (Coordinate Bench

of this High Court) has held,

“27. Since in the entire Act, there is no provision providing for the mode and manner of making reference of election dispute to the District Judge,

therefore, with a view to remove any doubt, which may be raised later, in the interest of justice, this Court by exercising its extraordinary powers

under Article 226 of the Constitution of India, provides that petitioners, who are aggrieved by the result of election of Members and Office Bearers of

Kshettra Panchayat or Zila Panchayats can raise an election dispute by presenting the Written Petition before the District Magistrate and the District

Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall thereafter enter into such reference………...â€​

A Special Appeal No.179 of 2020, ‘Kamaljeet Kaur vs. Uma Tripathi and others’ was filed against the judgment of the learned Single Judge

dated 19.08.2020. The said appeal was dismissed on 23.09.2020. The learned counsel for both the parties submitted that the said special appeal was

filed on the different grounds.

In the instant writ petition, the learned Single Judge observed on 09.06.2021;

“8. This Court is of the view, that if Section 131-H itself is taken into consideration in its totality, the preference of an Election Petition,

contemplated therein by an aggrieved person, has been independently splitted in its applicability in relation to the election of Office of “Pradhan, up-

pradhan or as a Member of Gram Panchayatâ€, which is in much distinction to the office of “Pramukh, Up-pramukh or member of Kshettra

Panchayat, Chairman and Vice Chairman or member of Zila Panchayatâ€, which is contemplated under Sub-section (10) of Section 131-H. Meaning

thereby, Section 131-H(1), the Election Petition contemplated therein is altogether independent, to the Election Petition, provided under Sub-section

(10) of Section 131-H.

Hence, as per the opinion of this Court, the legislature must have mentioned the office of authority, who would be competent to make a reference

of an Election Petition under Sub-section (10) of Section 131-H, so far it related to giving challenge to the Election of Pramukh, Up-pramukh or

members of Kshettra Panchayat or Chairman, Vice Chairman or Members of Zila Panchayat. But unfortunately, the legislature in its specific terms

and intention had not specified any authority or the office, who would be competent to make a reference, unlike the provisions provided under Sub-

section (1) of Section 131-H, so far it related to the election of Pradhan or Up-pradhan or Gram Panchayat.

Hence, I am of the view that there is a vacuum in the legislature with regard to the area of reference for challenging the election under Sub-

section (10) of Section 131-H.

Hence, I am of the view that in the absence of there being any referring authority, defined or provided under Section 131-H (10), as it has been

done in relation to the Election Petitions, pertaining to the office of Pradhan or Up-Pradhan, the Coordinate Bench while exercising its extra ordinary

jurisdiction under Article 226 of the Constitution of India, could not have acquired or adorned to itself a legislative competence, to vest a power of

reference on the “District Magistrateâ€​, when and where there is a challenge given to the election of members of Zila or Kshettra Panchayat,

as it has been observed in para 27, which is extracted hereunder :-

“27. Since in the entire Act, there is no provision providing for the mode & manner of making reference of election dispute to the District Judge,

therefore, with a view to remove any doubt, which may be raised later, in the interest of justice, this Court by exercising its extraordinary

powers under Article 226 of Constitution of India, provides that petitioners, who are aggrieved by the result of election of 8 Members

and Office Bearers of Kshettra Panchayat or Zila Panchayats can raise an election dispute by presenting the Written Petition before the

District Magistrate and the District Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall

thereafter enter into such reference. It would be incumbent upon the District Magistrate to refer the election dispute to the District Judge as early

as possible; but, not later than 48 hours from the date of such presentation. It is further provided that limitation would stop running, the moment, the

Written Petition is presented before the District Judge.â€​

With all humility and reverence at my command, I am in respectful disagreement with the view taken by the Co-ordinate Bench, in the judgment,

which was rendered on 19th August, 2020, in a Bunch of Writ Petitions, with the leading Writ Petition (M/S) No. 3350 of 2019, Bhupendra Singh

Vs. State of Uttarakhand and others.â€​

The learned Single judge, then, referred the matter to a larger Bench by formulating the following questions :-

“1. As to who would be the competent authority under Section 131-H(10), for the purpose to make a reference for institution of Election Petition

under Section 131-H(10), for challenging the election of the members of Zila Panchayat because in the legislature, there is a vacuum which still

persists?

As to whether the Writ Court under Article 226 of the Constitution of India, can adorn to itself a legislative power to vest an authority for making

the reference with the District Magistrate for questioning an election to members of the Zila Panchayat?

As to whether under Article 226 of the Constitution of India, High Court, can create or grant a power on a particular authority, not contemplated

under the Act, or beyond the provisions of Act?â€​

Heard Mr. Piyush Garg, the learned counsel for the petitioner and Mr. Amar Murti Shukla, the learned counsel for the respondent no.1 and perused

the materials on record.

Mr. Piyush Garg, the learned counsel for the petitioner, submitted that the Courts do not legislate but the Courts do interpret the law in a purposive

manner. The approach of the Court should be object-oriented. He submitted that the text and context are the bases of interpretation. The intention of

the Legislature has to be gathered from the Act, 2016 itself. The doctrine of casus omissus is to be supplied in the case of clear necessity and when

reason for it is found within the four corners of the statute itself. In support of his submissions, he relied upon the judgment of the Hon’ble

Supreme Court in Tirath Singh vs. Bachittar Singh and others, (1955) 2 SCR 457, Singareni Collieries Company Limited Vs.Vemuganti Ramakrishan

Rao and others, (2013) 8 SCC 789, Badshah vs. Urmila Badshah Godse and another, (2014) 1 SCC 188 and Indian Performing Rights Society Ltd. vs.

Sanjay Dalia and another, (2015) 10 SCC 161.

Mr. Piyush Garg, the learned counsel for the petitioner further submitted that the word “District Magistrate†is referred under Section 131 of

the Act, 2016. Therefore, the intention of the Legislature is clear that the “District Magistrate†should be referring authority under Section 131-

H(10) of the Act, 2016.

On the other hand, Mr. Amar Murti Shukla, the learned counsel for the respondent no.1, submitted that the Court should give effect to plain words.

The words occurred in a statute must be given their “literal†or “ordinary meaningâ€. The Court cannot read anything into a statutory provision

which is plain and unambiguous. Therefore, “District Magistrateâ€​, cannot be the referring authority under Section 131-H(10) Of the Act, 2016.

In order to decide the questions, which are referred to this Bench, it is necessary to refer to the provisions of Section 131 and Section 131-H of the

Act, 2016. Section 131 and Section 131-H of the Act, 2016 read as under :

Section 131. “(1) Subject to the supervision and control of the State Election Commission, the District Magistrate shall supervise the conduct of all

elections of Chairman and Vice-chairman and Members of Panchayat in the district and shall perform all related functions to it.

(2) Every local authority and the management of every educational institution receiving grant-in-aid from the State Government in the district shall,

when so required by the District Magistrate, make available to him or to any other officer appointed by the District Magistrate as Election Officer,

Assistant Election Officer in accordance with the direction issued by the State Election Commission, such staff as may be necessary for the

performance of any duties in connection with such election.

(3) The State Election Commission may likewise require all or any of the local authorities and the managements of all or any of such institutions as

aforesaid in the state to make available to any officer referred to in sub-section (2) such staff as may be necessary for the performance of any duties

in connection with such elections and they shall comply with every such requisition.

(4) Where any employee of any local authority or institution referred to in sub-section (2) or sub section (3) is appointed to perform any duty in

connection with such elections, he shall be bound to perform such duty.â€​

Section 131H. “(1) The election of a person as Pradhan or Up-Pradhan or as member of a Gram Panchayat shall not be called in question except

by an application presented to such authority within such time and in such manner as may be prescribed, on the ground:-

(a) that this election has not been free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the

election; or

(b) that the result of the election has been materially affected-

(i) by the acceptance or rejection of any nomination in improper manner, or

(ii) by gross failure to comply with the provisions of this Act or the rules framed there under.

(2) The following shall be deemed to be corrupt practice of bribery or undue influence for the purpose of this Act-

(a) bribery, namely:-

(i) a person to stand or not to stand or to withdraw from being a candidate at an election; or

(ii) with objective of inducing any elector to vote or refrain voting of an election direct or indirect or to any person for the thing that:-

(1) a person for having so stood or not stood, for having withdrawn his candidature;

(2) an elector for having voted as refrained from voting for this purpose: to propose or promise of any seat or reward on the part of a candidate is any

other person what so ever with the connivance as served.

(b) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the

connivance of the candidate with the free exercise of any electoral right:

Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested with injury of any kind including social

ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will, be rendered

an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector

within the meaning of this clause.

(3) The application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may

be prescribed;

Explanation:- Any person, who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to

be a candidate at the election.

(4) The authority to whom the application under sub-section (1) is made shall, in the matter of-

(i) hearing of the application and the procedure to be followed at such hearing,

(ii) setting aside the election or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to

the petitioner have such powers and authority as may be prescribed.

(5) Without prejudice to the generality of the powers to be prescribed under sub-section (4) the rules may be provided for summarily hearing and

disposal of an application under sub-section (1).

(6) Any party aggrieved by an order of the prescribed authority who shall be Assistant Collector (first class)/Pargana Magistrate of concerned

Tehsil/Pargana upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of

such order or any one or more on the following grounds, namely:-

(a) that the prescribed authority has exercised such jurisdiction not vested in it by law;

(b) that the prescribed authority has failed to exercise a such jurisdiction so vested;

(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity.

(7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or

Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer.

(8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order

of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may

appear to it to be just and convenient.

(9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising

authority passed under this section, shall be final.

(10) If any question arises that any person is legally elected as a Pramukh, Up-Pramukh or member of Kshettra Panchayat or

Chairman, Vice-Chairman or Member of Zila Panchayat or not or he is eligible to be such Pramukh, Up-Pramukh or Member of

Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat or not then that question shall be referred to Judge

which means District Judge and its include any other subordinate Civil Judge nominated on ad hoc by District Judge under it, in

prescribed manner, whose decision shall be binding and final.

If Judge decides that any person is not legally elected as a Pramukh, Up-Pramukh or Member of Kshettra Panchayat or Chairman,

Vice-Chairman or Member of Zila Panchayat or he is not eligible to be such Pramukh, Up-Pramukh or Member of Kshettra Panchayat

or Chairman, Vice-Chairman or Member of Zila Panchayat then he shall not remain as a Pramukh, Up-Pramukh or Member of Kshettra

Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat from the date of such decision.

Explanation:- Duration fixed for submitting the objection regarding the election of any person in the three tier Panchayat General

Election, 2019 shall commence from the date of commencement of this Act.

The function of the judiciary begins when the function of the Legislature ends. The ultimate interpretation of a statute is the province of the Court.

A statute is an edict of the Legislature. Therefore, the first and primary rule of interpretation of a statue is that the intention of the Legislature

must be found in the words used by the Legislature itself. Each word, phrase or sentence is to be construed in the light of general purpose of the Act

itself. Where the words of a statute are plain and unambiguous effect must be given to them. The literal rule of interpretation is that words should be

read in their ordinary, natural and grammatical meaning. It is trite saying that the object of interpretation a statute is to ascertain the intention of the

Legislature, enacting it. Where the meaning of the statue is clear and sensible, interpolation is improper, since the primary source of the legislative

intent is in the language of the statute. But, no doubt it is the duty of the Court to try and harmonize the various provisions of an Act, passed by the

Legislature.

In S. Narayanaswami vs G. Pannerselvam and others, (1972) AIR SC 2284, the Hon’ble Supreme Court has held that the object of

interpretation and of “constructionâ€​ (which may be broader than “Interpretationâ€​) is to discover the intention of the law makers in every case.

This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning

can be resorted to only if the language used is contradictory, ambiguous or leads really to absurd results.

In Raghunath Rai Bareja and another vs Punjab National Bank and others, (2007) 2 SCC 230, the Hon’ble Supreme Court observed, “The

literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or

twisting its language.

We may mention here that the literal rule of interpretation is not only followed by judges and lawyers, but it is also followed by the layman in his

ordinary life. To give an illustration, if a person says “this is a pencilâ€, then he means that it is a pencil; and it is not that when he says that the

object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what

we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand

each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant,

then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply

that we mean what we say and we say what we mean.â€​

It is well settled that in exceptional cases, departure can be made from the literal rule of the interpretation by adopting a purposive interpretation,

Heydon’s mischief rule. Heydon’s case (1584) 3 CO Rep7a:76ER637 is considered a landmark case as it was the first case to use what

would come to be called the “mischief rule†for purposive interpretation. This case became the historical source of purposive interpretation. In

Heydon’s case, it was said that for the true interpretation of a statute, four things have to be considered:

i) What was the common law before the making of the Act;

ii) What was the mischief and defect for which the common law did not provide;

iii) What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth;

iv) The true reason of the remedy; and then the office of the judges is to make such construction as shall suppress the mischief and advance the

remedy.

In Controller of Estate Duty, Gujarat vs. Kantilal Trikamlal, (1976) 4 SCC 643, the Hon’ble Justice V.R. Krishnaiyer observed, “Law, to a

large extent, lives in the language even if it expands with the spirit of the statuteâ€​.

In Bai Tahira A vs. Ali Hussain Fissalli Chothia and another, (1979) 2 SCC 316, the Hon’ble Justice V.R. Krishnaiyer observed, “Law is

dynamic and its meaning cannot be pedantic but purposeful.â€​

In Shakuntala Sawhney vs. Kaushalya Sawhney, (1980) 1 SCC 63, the Hon’ble Supreme Court observed, “The purpose of law and justice

(Dharma) is promotion of cohesion and not production of fissionâ€​.

In Tirath Singh vs Bachittar Singh and Others (supra), the Hon’ble Supreme Court observed that it is a rule of interpretation well-

established that, “where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the

apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put

upon it which modifies the meaning of the words, and even the structure of the sentence.

In MSR Leathers vs. S. Palaniappan, (2013) 1 SCC 177, the Hon’ble Supreme Court held, “One of the salutary principles of interpretation

of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an

interpretation which defeats such object; purposive interpretation as a sound principle for the Courts to adopt while interpreting statutory provisionsâ€​.

In Badshah vs Urmila Badshah Godse & another (supra), the Hon’ble Suprme Court has held that the court as the interpreter of law is

supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision â€" libre recherché

scientifique i.e. “free scientific researchâ€. The Hon’ble Supreme Court has held that while interpreting a statute the court may not only take

into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in

Heydon case [(1584) 3 Co Rep 7a : 76 ER 637] which became the historical source of purposive interpretation. The court would also invoke the legal

maxim construction of ut res magis valeat quam pereat in such cases i.e. where alternative constructions are possible the court must give effect to

that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block

in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be

avoided. The Hon’ble Supreme Court held that, “We should avoid a construction which would reduce the legislation to futility and should

accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.â€​

In Singareni Collieries Co. Limited vs. Vemuganti Ramakrishan Rao & others (supra), the Hon’ble Supreme Court has held that

casus omissus can be supplied in the case of the clear necessity and when reason for it is found within the four corners of the statute itself.

In Indian Performing Rights Society Limited vs. Sanjay Dalia and another (supra,) the Hon’ble Supreme Court has held that it is

settled proposition of law that the interpretation of the provisions has to be such which prevents mischief. The said principle was explained in

Heydon's case [Heydon's case, (1584) 3 Co Rep 7a : 76 ER 637] . According to the mischief rule, four points are required to be taken into

consideration. While interpreting a statute, the problem or mischief that the statute was designed to remedy should first be identified and then a

construction that suppresses the problem and advances the remedy should be adopted. The Hon’ble Supreme Court observed, “Heydon's

mischief rule has been referred to in Interpretation of Statutes by Justice G.P. Singh, 12th Edn., at pp. 124-25 thus:

“(b) Rule in Heydon's case; purposive construction: mischief rule

When the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words ‘of all

statutes in general (be they penal or beneficial, restrictive or enlarging of the common law)’ is the rule laid down in Heydon's case which has now

attained the status of a classic (Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907] ). The rule which is also known as “purposive

construction†or “mischief rule†(Anderton v. Ryan [1985 AC 560 : (1985) 2 WLR 968 : (1985) 2 All ER 355 (HL)] ), enables consideration of

four matters in construing an Act: (i) What was the law before the making of the Act; (ii) What was the mischief or defect for which the law did not

provide; (iii) What is the remedy that the Act has provided; and (iv) What is the reason of the remedy. The rule then directs that the courts must

adopt that construction which “shall suppress the mischief and advance the remedyâ€. The rule was explained in Bengal Immunity Co. Ltd. v.

State of Bihar [AIR 1955 SC 661] by S.R. Das, C.J. as follows: (AIR p. 674, para 22)

‘22. It is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon's case was decided that: (ER

p. 638)

“… for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things

are to be discerned and considered:

1st: What was the common law before the making of the Act.

2nd: What was the mischief and defect for which the common law did not provide.

3rd: What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth, and

4th: The true reason of the remedy;

and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress

subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according

to the true intent of the makers of the Act, pro bono publico.’ (Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661] ).â€​

The Hon’ble Supreme Court observed, “32. Justice G.P. Singh inP rinciples of Statutory Interpretation, 12th Edn., has observed that regard

be had to the subject and object of the Act. The court's effort is to harmonise the words of the statute with the subject of enactment and the object the

legislature has in view. When two interpretations are feasible, the court will prefer the one which advances the remedy and suppresses the mischief as

envisioned. The relevant portion is extracted below:

“As stated earlier (Chapter 1, Title 2 ‘Intention of the Legislature’, text and Notes 57 to 69, pp. 14 to 17) and as approved by the Supreme

Court:

‘9. … “the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the

subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological

propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained.â€​’

(Workmen v. Dimakuchi Tea Estate [AIR 1958 SC 353] , AIR p. 356, para 9.) The courts have declined “to be bound by the letter, when it

frustrates the patent purposes of the statuteâ€​. (Cabell v. Markham [148 F 2d 737 (2d Cir 1945)] ), (Judge Learned Hand). In the words of Shah, J.:

‘8. … It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they

best harmonise with the object of the statute and which effectuate the object of the legislature.’

(New India Sugar Mills Ltd. v. CST [AIR 1963 SC 1207] , AIR p. 1213, para 8.) Therefore when two interpretations are feasible the court will

prefer that which advances the remedy and suppresses the mischief as the legislature envisioned. (Carew & Co. Ltd. v. Union of India [(1975) 2 SCC

791] , SCC p. 804, para 40.) The Court should adopt an object-oriented approach keeping in mind the principle that legislative futility is to be ruled out

so long as interpretative possibility permits. [Busching Schmitz (P) Ltd. v. P.T. Menghani [(1977) 2 SCC 835] , SCC pp. 843-44, para 17.] The

object-oriented approach, however, cannot be carried to the extent of doing violence to the plain language used by rewriting the section or substituting

words in place of the actual words used by the legislature. (CIT v. N.C. Budharaja and Co. [1994 Supp (1) SCC 280] , SCC p. 288, para 13.)â€​

The Hon’ble Supreme Court observed, “33. InB usching Schmitz (P) Ltd. v. P.T. Menghani [(1977) 2 SCC 835] , it has been observed that

purposive interpretation may be made having regard to the object of the provisions and to avoid any obvious lacuna.

The learned author Justice G.P. Singh in Interpretation of Statutes, 12th Edn. has also observed that it is the court's duty to avoid hardship,

inconvenience, injustice, absurdity and anomaly while selecting out of different interpretations. The doctrine must be applied with great care and in

case absurd inconvenience is to be caused that interpretation has to be avoided. Cases of individual hardship or injustice have no bearing for enacting

the natural construction. The relevant discussion at pp.132-33 and 140-42 is extracted hereunder:

“(a) Hardship, inconvenience, injustice, absurdity and anomaly to be avoided

In selecting out of different interpretations ‘the court will adopt that which is just, reasonable and sensible rather than that which is none of those

things’ (Holmes v. Bradfield Rural District Council [(1949) 2 KB 1 : (1949) 1 All ER 381 (DC)] , All ER p. 384) as it may be presumed ‘that

the legislature should have used the word in that interpretation which least offends our sense of justice’. (Simms v. Registrar of Probates [1900

AC 323 (PC)] , AC p. 335.) If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the

instrument, it may be departed from so as to avoid that absurdity and inconsistency. (Grey v. Pearson [(1857) LR 6 HL Cas 61 : (1843-60) All ER

Rep 21] , HLC p. 106.) Similarly, a construction giving rise to anomalies should be avoided. (N.T. Veluswami Thevar v. G. Raja Nainar [AIR 1959

SC 422] , AIR SC pp. 427 and 428.) As approved by Venkatarama Aiyar, J.:

‘7. … Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent

purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it

which modifies the meaning of the words, and even the structure of the sentence.’ (Tirath Singh v. Bachittar Singh [AIR 1955 SC 830] , AIR

p. 833, para 7.)â€​

“Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. ‘The

argument ab inconvenienti’, said Lord Moulton, ‘is one which requires to be used with great caution’. (Vacher & Sons Ltd. v. London

Society of Compositors [1913 AC 107 : (1911-13) All ER Rep 241 (HL)] .) Explaining why great caution is necessary Lord Moulton further observed:

(AC p. 130)

‘… There is a danger that it may degenerate into mere judicial criticism of the propriety of the Acts of legislature. We have to interpret statutes

according to the language used therein, and, though occasionally the respective consequences of two rival interpretations may guide us in our choice

between them, it can only be where, taking the Act as a whole, and viewing it in connection with the existing state of the law at the time of the passing

of the Act, we can satisfy ourselves that the words can have been used in the sense to which the argument points.’

(Vacher & Sons Ltd. v. London Society of Compositors [1913 AC 107 : (1911-13) All ER Rep 241 (HL)] .) According to Brett, L.J., the

inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an ‘absurd

inconvenience’. Moreover, individual cases of hardship or injustice have no bearing for rejecting the natural construction (Young & Co. v. Royal

Leamington Spa Corpn. [(1883) LR 8 AC 517 (HL)] ), and it is only when the natural construction leads to some general hardship or injustice and

some other construction is reasonably open that the natural construction may be departed from. It is often found that laws enacted for the general

advantage do result in individual hardship; for example laws of Limitation, Registration, Attestation although enacted for the public benefit, may work

injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such cases.

(Lucy v. W.T. Henleys Telegraph Works Co. Ltd. [(1970) 1 QB 393 : (1969) 3 WLR 588 : (1969) 3 All ER 456 (CA)] ) ‘It is the duty of all courts

of justice’, said Lord Campbell, ‘to take care for the general good of the community, that hard cases do not make bad law’. (East India

Co. v. Oditchurn Paul [(1850) 7 Moo PCC 85 : 13 ER 811] .) ‘Absurdity’ according to Willes, J., should be understood ‘in the same sense

as repugnance that is to say something which would be so absurd with reference to the other words of the statute as to amount to a repugnance’.

(Christophersen v. Lotingae [(1864) 33 LJ CP 121] .) ‘Absurdity’, said Lord Greene, M.R., ‘like public policy, is a very unruly horse’.

(Grundt v. Great Boulder Proprietary Mines Ltd. [1948 Ch 145 : (1948) 1 All ER 21 (CA)] ) He proceeded to add:

‘There is one rule, I think which is clear … that, although the absurdity or the non-absurdity of one conclusion as compared with another may be,

and very often is, of assistance to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which has to be applied

with great care, remembering that Judges may be fallible in this question of an absurdity and in any event it must not be applied so as to result in

twisting language into a meaning which it cannot bear. It is a doctrine which must not be used to rewrite the language in a way different from that in

which it was originally framed.’

(Grundt v. Great Boulder Proprietary Mines Ltd. [1948 Ch 145 : (1948) 1 All ER 21 (CA)] , Ch pp. 159-60.) The alternative construction

contended for must be such which does not put an undue strain on the words used; (Kanailal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907] )

and does not require recasting of the Act or any part of it. It must be possible to spell the meaning contended for out of the words actually used.

(Shamrao V. Parulekar v. District Magistrate, Thana [AIR 1952 SC 324 : 1952 Cri L J 1503] .)

No doubt in cases of ambiguity that construction which better serves the ends of fairness and justice will be accepted, but otherwise it is for the

legislature in forming its policy to consider these elements. (IRC v. Mutual Investment Co. Ltd. [1967 AC 587 : (1966) 3 WLR 740 : (1966) 3 All ER

265 (PC)] ) If no alternative construction is open, the court cannot ignore a statutory provision ‘to relieve what it considers a distress resulting from

its operation; a statute has to be given effect to whether the court likes it or not’. (Martin Burn Ltd. v. Corpn. of Calcutta [AIR 1966 SC 529] .)

The function of the court is to find out what is legal and not what is right. (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC

447] .) It is presumed that a legislative body intends which is the necessary effect of its enactments; the object, the purpose and the intention of the

enactment is the same; it need not be expressed in any recital or Preamble; and it is not competent for any court judicially to ascribe any part of the

legal operation of the statute to inadvertence.

(Kariapper v. Wijesinha [1968 AC 717 : (1967) 3 WLR 1460 : (1967) 3 All ER 485 (PC)] .)

The courts should as far as possible avoid a construction which results in anomalies. (N.T. Veluswami Thevar v. G. Raja Nainar [AIR 1959 SC 422]

.)â€​

Bennion on Statutory Interpretation has mentioned law to the same effect under Section 312 and has observed that there is a presumption that

absurd result is not intended and in Section 314 it has been observed that the court has to avoid an inconvenient result while interpreting a provision. It

was stated that it can be presumed that Parliament intends that while construing an enactment the court will avoid a construction that is unworkable or

impracticable, inconvenient, anomalous or illogical as the same is unlikely to be intended by Parliament. In Rosali V. v. TAICO Bank [(2009) 17 SCC

690 : (2011) 2 SCC (Civ) 626], this Court referring to Halsbury's commonsense construction rule held that it is a well-settled principle of law that

commonsense construction rule should be taken recourse in certain cases.â€​

Now, we come back to the present matter. In the instant matter, we are concerned with the “referring authority†who would be competent to

make a reference of election petition to a Judge under Section 131-H(10) of the Act, 2016.

The State of Uttarakahnd was carved out from the erstwhile State of Uttar Pradesh on 09.11.2000 by an Act of Parliament, namely, The Uttar

Pradesh Reorganization Act, 2000. The composite State of Uttar Pradesh enacted two Acts, which deal with three different tier of the

“Panchayatâ€. For the “Gram Panchayat Levelâ€, it was the Uttar Pradesh Panchayat Raj Act, 1947 and for the intermediate level i.e. Block

level and District level, it was the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961. Under these two Acts, the Rules were framed.

According to the provisions of the Uttar Pradesh Reorganisation Act, 2000, the laws which were earlier in force in the State of Uttar Pradesh

continued to be applicable in the State of Uttarakhand until they are altered, repealed or amended by the Legislature of the State of Uttarakhand.

These two Acts, namely, the Uttar Pradesh Panchayat Raj Act, 1947 and the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961

were repealed by Section 194 of the Act, 2016. The Act, 2016 was amended vide Amendment Act No.9 of 2020. By the said Amendment Act, inter

alia, a new clause (Clause no. 35) to Section 2 of the Act, 2016 is substituted, namely, (35) “Rules†means rules made under this Act but until

such rules are not promulgated, rules means rules promulgated under the Uttar Pradesh Panchayati Raj Act, 1947 and the Uttar Pradesh Kshettra

Panchayat and Zila Panchayat Act, 1961.

The Act, 2016 gives power to the State Government to frame Rules. Admittedly, the Rules, under the Act, 2016, have not been framed as yet.

In the Principal Act, 2016, there was no provision regarding the forum for filing the Election Petition. The Act, 2016 was amended by the

Amendment Act No.18 of 2020. By the said Amendment Act, inter alia, a new Section, namely, Section 131-H was inserted.

By the Amendment Act No.18 of 2020, the ambiguity regarding the forum for filing the Election Petition has been removed. However, an

ambiguity is still present regarding the “referring authorityâ€. The “referring authority†has not been defined in this Act. Section 131-H (10)

stipulates that if any question arises regarding the election, the said question shall be “referred to judgeâ€. However, it is not clear, who would be

competent authority to make a reference to the Judge for institution of Election Petition under this provision.

Section 131 of the Act, 2016 casts a duty on the District Magistrate to supervise the conduct of all elections of Chairman or Vice-chairman and

Members of Panchayat in the district and shall perform all related functions to it.

The Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994 (hereinafter referred to as, “the Rulesâ€)

was framed under Section 237 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam read with sub-section (1) and clauses (a) &

(b) of sub-section (2) of Section 27 of the said Act.

According to Rule 3 of the Rules, 1994, if any dispute arises as to whether a person is a member of the Zila Panchayat, the application shall be

presented to the District Magistrate and the District Magistrate shall refer the application along with the entire records to the State Government for

decision. In sub-rule (3) of Rule 3 of the Rules, 1994, word “District Magistrate†has been used as a referring authority. Rule 3 of the Rules, 1994

provides:

“3. Manner of raising disputes under Section 27 (1). - If any dispute arises as to whether a person is a member of the Zila Panchayat under

clause (a) of sub-section (1) of Section 18, the same may be raised by any person whose name is registered as an elector in the Electoral roll for the

territorial constituency of the concerned Zila Panchayat.

(2) The application shall specify the ground on which the dispute is raised and shall be presented to the District Magistrate by the person making the

application and if there are more signatories to it by any or all of them.

(3) The District Magistrate shall, as soon thereafter as may be, refer the application along with the entire records and his own

comments to the State Government for decisions.

(4) The State Government may, after such enquiry as it considers necessary and after affording a reasonable opportunity of hearing to the parties,

pass such order as it considers just and proper.â€​

In the case of Reserve Bank of India vs.Peerless General Finance & Investment Co, (1987) 1 SCC 424, the Hon’ble Supreme Court observed

:

“A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section

by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the

statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the

statute is looked at without the glasses, provided by the context. With these glasses we must look at the Act as a whole and discover what each

section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no

word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.â€​

The Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of

the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation.

Section 131-H(10) stipulates that if any question arises regarding the election, the question shall be “referred to judgeâ€. Here, intention of the

Legislature is that if any question regarding the election arises, the said question shall be referred to a Judge. Therefore, while giving interpretation to

Section 131-H(10), the Court should adopt an object-oriented approach. In these circumstances, the Court as the interpreter of law is supposed to

supply casus omissus, which is not intentional, to correct uncertainty and for harmonize results. Therefore, in view of Section 131 of the Act, and Rule

3 of the Rules, 1994, the “District Magistrateâ€, comes within the four corners of law. Consequently, we hold that the “District Magistrateâ€

would be referring authority under Section 131-H (10) of the Act, 2016.

The learned Single Judge has referred the question number 2 and 3 to a larger Bench in light of the facts of the present case. Therefore, in relation

to question number 2 and 3, we limit ourselves accordingly.

The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle

disputes in accordance with the existing law. It means that one organ of the State should not perform a function that essentially belongs to another

organ.

In P. Ramachandra Rao vs. State of Karnataka, AIR 2002 SC 1856, the Hon’ble Supreme Court held that the Courts can declare the law,

they can interpret the law, they can remove obvious lacunae and fill the gaps, but they cannot entrench upon in the field of legislation properly meant

for the legislature.

In Divisional Manager, Aravali Golf Club and another vs. Chander Hass and another, (2008) 1 SCC 683, the Hon’ble Supreme Court held that

judges must exercise judicial restraint and must not encroach into the executive or legislative domain. The Hon’ble Supreme Court held that if

there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it.

Conclusion:

We answer the reference holding that:

(1) As regarding the first question, “District Magistrate†would be competent to make a reference for institution of Election Petition under Section

131 H(10), for challenging the election of the members of Zila Panchayat.

(2) As regarding the second and the third question, we may answer, in the facts of the present dispute, that Courts expound the law, they do not

legislate. Therefore, the Writ Court under Article 226 of the Constitution of India, cannot adorn to itself a legislative power to vest an authority for

making the reference with the District Magistrate for questioning an election to members of the Zila Panchayat, and under Article 226 of the

Constitution of India, High Court, cannot create or grant a power on a particular authority, not contemplated under the Act, or beyond the provisions of

Act.

Let the writ petition be now placed before the appropriate Bench for further orders.