Smt. Lakshmamma vs State Of Karnataka

These intra-court appeals, essentially involving similar questions relating to the provisions contained in Section 49 of the Karnataka Gram Swaraj

and Panchayat Raj Act, 1993 (‘the Act of 1993’) and the motion of no-confidence brought thereunder, have been considered together; and are

taken up for disposal by this common judgment.

In a brief outline of the subject matter of these appeals, it may be pointed out that most of the appeals in this group of matters are directed against

the common order dated 28.02.2018, as passed in a batch of writ petitions led by W.P.Nos.1935-1936/2018 (LB-RES) wherein, the learned Single

Judge of this Court, while rejecting the contentions against the validity of sub-section (2) of Section 49 of the Act of 1993 and against the legality of

the proceedings for consideration of respective motions of no-confidence, declined to interfere with the impugned motions and notices of meetings for

consideration of such motions of no-confidence; and in two writ petitions (W.P.Nos.3434/2018 and 3435/2018), allowed the Gram Panchayat

concerned to go ahead with the meetings to be notified afresh for consideration of motion of no-confidence. A few other appeals (W.A.Nos.

990/2018, 1010/2018, 1016/2018, 1282-1283/2018 and 1270/2018) are directed against the orders subsequently passed by the learned Single Judge of

this Court disposing of the respective writ petitions in terms of the aforesaid lead order dated 28.02.2018, while 8 other appeals in this group of matters

(W.A.Nos.1014/2018, 1015/2018, 1060/2018, 1073/2018, 1080/2018, 1253/2018, 1224/2018 and 1254/2018) are directed against the interim orders

passed by the learned Single Judge in pending writ petitions subsequent to the aforesaid lead order dated 28.02.2018, providing that the proceedings

pursuant to the notices of such meetings for consideration of motion of no-confidence shall remain subject to the result of the writ petitions. One of the

appeal in this group (W.A.No.1065/2018) is directed against the order dated 27.02.2018, whereby the learned Single Judge dismissed the writ petition

only on the ground that the meeting for consideration of the motion of no- confidence had already been convened and the proceedings stood

concluded.

It may also be pointed out that in view of different stage and status of the proceedings related with these matters, this Court, while taking up these

appeals for consideration, has passed different interim orders of the nature that the resolution of no-confidence passed were not to be given effect to

and status quo as existing prior to passing of the resolution was to be maintained, whereas in some of these matters, it is also provided that the

concerned appellant would not be taking any decision having financial implication as regards Panchayat in question, but may carry out necessary day

to day activities. In some of the cases where meetings for consideration of motion of no-confidence or even for fresh election were to be convened, it

was provided that the slated meetings may be proceeded with, but the resolution thereof shall not be given effect to.

Having regard to the circumstances of these cases and the questions involved, these intra-court appeals were taken up for hearing in priority and

we have heard multifarious arguments of the learned counsel appearing for the respective parties at length.

In essence, the questions on the validity of sub-section

(2) of Section 49 and in the alternative, the interpretation of the provisions of Section 49 of the Act of 1993 are involved as the main plank in these

matters. Hence, appropriate it would be to reproduce Section 49 of the Act of 1993 at the outset and as under:

“49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat.- (1) Every Adhyaksha or Upadhyaksha of Grama

Panchayat shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less

than two thirds of the total number of members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the

procedure as may be prescribed:

Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-half1 of the total number of members and

at least ten days notice has been given of the intention to move the resolution:

2Provided further that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved within the first thirty

months3 from the date of his election:

Provided also that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by a

Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within two years4

from the date of the decision of the Grama Panchayat.

5(2) Notwithstanding anything contained in sub-section (1), no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall

be moved except on specific allegation of misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or

project of the panchayat or of misappropriating funds or other assets of the panchayat during the term of his membership or otherwise indulging in

corruption or misconduct in the course of exercising his functions"".

Relevant facts and background:

Having regard to the questions involved in these matters, the Constitutional and Legislative background concerning the provisions in question could

be taken note of, in brief, as follows: With 73rd Amendment to the Constitution of India in the year 1992, a constitutional recognition came to be

conferred on the Panchayats i.e., Grama Panchayats, Taluka Panchayats and Zilla Panchayats.

The Grama Panchayats are the smallest but basic units in the hierarchy of democratic institutions constituted for the purpose of local self governance.

In terms of the said Constitutional Amendment, the Karnataka Panchayat Raj Act, 1993 (Act No.14 of 1993) has been amended from time to time,

the last of which being by way of the Karnataka Act No.44 of 2015, as a result whereof, the enactment has been re-named as the “Karnataka

Gram Swaraj and Panchayat Raj Act, 1993â€, (hereafter also referred to as ‘the Act of 1993’). By this very Act No.44 of 2015, significant

changes have been brought about in Section 49 of the principal Act, which form the core of contentions in these appeals.

A glance at the relevant provisions of the Act of 1993 is pertinent. The Grama Panchayats are constituted under Section 5, by elections as notified

by the State Election Commission; Section 44 provides for the election of Adhyakshas and Upadhyakshas from amongst the elected members of the

Gram Panchayat concerned and Section 45 prescribes the procedure for such election; Section 46 prescribes the term of office of Adhyaksha and

Upadhyaksha as five years from the date of election or till they cease to be members of Grama Panchayat, whichever is earlier; Section 48 provides

for the removal of Adhyaksha and Upadhyaksha by the Government, inter alia, on the ground of misconduct. As noticed, Section 49 provides for

removal of Adhyaksha and Upadhyaksha by the Grama Panchayat through democratic process i.e., by way of a motion of no-confidence. It is noticed

that Section 50 mandates that the procedure for the meeting of Grama Panchatyat shall be as prescribed by the Rules. Various other provisions are

not required to be elaborated upon in this judgment.

For the operation and working of Section 49, the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of

Grama Panchayat) Rules, 1994 (hereafter referred to as ‘the Rules of 1994’) have been promulgated, their latest amendment being under the

Notification dated 21.08.2018, as issued during the pendency of these appeals. The relevant aspects concerning such Rules of 1994 shall be examined

hereafter, a little later.

The facts relevant for the present purpose are that the General Elections to the Grama Panchayats in the State, for the period 2015-2020, were held

by the State Election Commission during the month of June 2015; and immediately thereafter, Adhyakshas and Upadhyakshas came to be elected by

the respective Grama Panchayats. After the 2015 amendment by way of the Act No. 44 of 2015, various motions of no-confidence against

Adhyaksha or Upadhyaksha were moved in various Grama Panchayats with reference to the aforesaid sub-section (2) of Section 49 of the Act of

1993 on the premise that the non-obstante clause thereof has removed all the constraints and restrictions prescribed in sub-section (1) and the three

provisos thereto. The Adhyakshas and Upadhyakshas concerned, being aggrieved by the initiation or passing of such motions of no-confidence, filed

the writ petitions in this Court; with few of them questioning the vires of sub-section (2), as well.

After service of notice, the State entered appearance through the learned Additional Advocate General and other respondents too entered

appearance through their respective counsel. During the pendency of the writ petitions, the State Government issued a Circular No.RDP 887 GPA

2017 dated 07.02.2018, purportedly laying down certain guidelines and procedure for regulating the motion moved under sub-section (2) of Section 49,

pending contemplated amendment to the Rules of 1994. The learned Single Judge on 18.01.2018, after hearing both the sides, had permitted the

concerned Grama Panchayats to proceed with the meetings for consideration of the respective motions of no-confidence with a rider that the results

thereof, should be placed before the Court in a sealed cover.

Thereafter, the learned Single Judge proceeded to dispose of the writ petitions by way of the impugned order dated 28.02.2018, while holding, inter

alia, that the effect of the non-obstante clause of sub-section (2) of Section 49 is confined to second and third provisos to sub-section (1) of Section 49

and therefore, a motion of no-confidence under sub-section (2) is permissible at any time after the election of Adhyaksha or Upadhayaksha,

notwithstanding the moratorium of thirty months and two years respectively, as provided under the said provisos to sub-section (1) but, subject to the

compliance of the requirement of ten days’ prior notice of meeting being signed by one-half of the total number of members, and also two-third of

the total number of members passing the resolution for such removal.

The learned Single Judge though noticed the apparent inconsistency in Section 49 with insertion of sub-section (2) ibid., but rejected the

contentions against its validity; and considered it just and proper to read down the provisions by applying the rule of purposive construction. The

learned Single Judge observed as under:-

“18. In the opinion of this Court, the provisions of sub-section (2) of Section 49 of the Act does not completely eclipse, supersede or override the

entire provisions of sub-section (1) of Section 49, but the non-obstante Clause intends to override only restrictions of moratorium period of 30 months

and two years respectively in Second and Third Proviso to Section 49(1) of the Act. It is to be harmoniously read as an adjunct and further Proviso to

Section 49(1) of the Act to meet with the specific contingencies of misuse or abuse of power or authority, misappropriation of funds or corruption etc.

where the Members of the Grama Panchayat can take up the motion for

‘No Confidence’ of such elected Adhyaksha/Upadhyaksha notwithstanding the restriction of initial moratorium period of 30 months or two

years provided in Second and Third Proviso in sub-section 49(1) of the Act.â€​

The learned Single Judge summarised his conclusions in the following:-

“37. On a conjoint, combined and harmonious reading of Section 49(1) of the Act, the following conclusions can be deduced:-

(I) Notice for such Resolutions can be moved only by one half of the total number of Members after a ten days’ notice.

(II) No such ‘No Confidence Motion’ can be moved against Adhyaksha/Upadhyaksha within the first 30 months from the date of their election

except under the specified circumstances under Section 49(2) of the Act.

(III) Where such a ‘No Confidence Motion’ has failed once, a similar Resolution for ‘No Confidence’ against them cannot be moved

within two years from the said failure, except under the specified circumstances under Section 49(2) of the Act;

(IV) No Resolution, overriding the aforesaid period of restrictions provided in Second and Third Proviso of sub-section (1) can be moved unless they

contain specific allegations of misuse or abuse of power or authority or misappropriation of funds or corruption, etc., as per Section 49(2) of the Act.

(V) A motion for ‘No Confidence’ under sub-section (2) of Section 49 of the Act though can be moved on specific grounds only, ultimately

remains a ‘No confidence motion’ to be considered by all the Members of the Grama Panchayat and it remains subject to mode and method for

its consideration as per sub-section

(1) viz. that is also is required to be moved by one half or more of the total number of Members and is required to be passed by more than 2/3rd of the

total number of Members in order to become operative and effective.

(VI) The restriction provided in Second and Third Proviso of Section 49(1) of the Act, namely, the initial moratorium period of 30 months and

restriction of two years, if once such motion fails is the only thing intended to be overridden by the non obstante Clause of Section 49(2) of the Act.

(VII) In other words, in the specified circumstances in Section 49 (2) of the Act, such a motion can be moved even within 30 months of the election to

their Office and even within two years of the previous failure of one such Resolution.

(VIII) This is the purpose for providing a non obstante Clause in sub-section (2) of Section 49 of the Act, because the contingencies provided for

removing Adhyaksha/ Upadhyaksha and in resorting to sub-section

(2) are of grave nature and in the cases of misuse or abuse of power or authority or misappropriation of funds or corruption, etc. by the elected

Adhyaksha/Upadhyaksha, the Members need not wait for the restrictions of periods envisaged in Second and Third Proviso of Section 49(1) of the

Act, namely for a period of 30 months and two years respectively and on the specific allegations of misuse or abuse of power or authority or

misappropriation of funds or corruption, etc. they can resort to Section 49(2) of the Act and pass such Resolution with 2/3rd majority.

(IX) The purpose is obvious that if an elected Adhyaksha/Upadhyaksha is found to be indulging in corrupt activities or misuse or abuse of power or

authority, he/she should not be tolerated necessarily by the mandate of law

for a period of 30 months or for the next two years. If the Members can make the specific allegations against him/her, notwithstanding the restrictions

contained in Second and Third Proviso of Section 49(1) of the Act, they can resort to Section 49(2) of the Act and move such a ‘No Confidence

Motion’. It is the restrictions envisaged in the Second and Third Provisos of Section 49(1) of the Act which are sought to be overridden by the non

obstante Clause at the beginning of the Section 49 (2) of the Act.

(X) If a motion for No-Confidence even though moved under Section 49(2) of the Act does not contain specific allegations against the elected

Adhyaksha/Upadhyaksha of a Grama Panchayat, such a motion will fall under Section 49(1) and shall be subject to the restriction prescribed under

Section 49(1) of the Act and can be considered by the Members under Section 49(1) of the Act.â€​

The learned Single Judge further clarified and emphasised as under:-

“40. The democratic way of removing the elected persons from the Office by expression of ‘No Confidence’ in them is the essential feature

of any democracy and therefore such elected persons cannot seek a permanent or a tenure fixation to their elected Offices, even if the majority of the

Members electing them to that office, lose their confidence in them and intend to remove them just by count of heads or votes. The majority rule or

the Numbers game is qui vive of the Democracy.â€​

The writ petitions considered together were disposed of accordingly. As noticed, one of the writ petitions was decided even a day before the said

common order on the ground that the meeting had taken place and requisite resolution had been passed. Some other writ petitions were decided later,

while following the said common order dated 28.02.2018, whereas in the fresh petitions filed by the similarly circumstanced persons, the learned Single

Judge provided in the prayer for interim relief only this much that the proceedings of the meeting/s shall remain subject to the decision of the writ

petitions. Questioning the orders aforesaid, the aggrieved parties have preferred these intra-court appeals.

It may also be pointed out that during the pendency of the writ petitions decided by the common order dated 28.02.2018, the learned Single Judge

had made the following interim order in some of the matters on 08.02.2018:

“13. After hearing the learned counsels today at length, it is found appropriate that the Resolution of ‘No-Confidence’ passed in the Gram

panchayat involved in the present writ petitions, shall not be given effect to as of now and the status-quo as it existed prior to passing of the said

Resolution shall be maintained by the concerned Gram Panchayat and this status will remain subject to the final decision of the present writ

petitions.â€​

After taking note of the aforesaid and the overall circumstances, this Court had granted interim relief in some of these appeals, as indicated

hereinbefore.

Rival Submissions

Learned counsel appearing for the appellants in these appeals have advanced multifarious contentions while assailing the validity of the said sub-

section (2) of Section 49 of the Act of 1993 as also the proceedings for consideration of the motions of no-confidence as moved. Put in brief, the

relevant part of the material contentions on behalf of the appellants are as follows:

(a) The Legislature had initially provided certain safeguards to the Adhyaksha and Upadhyaksha of Grama Panchayats by enacting a proviso to sub-

section (1) of Section 49 as it originally existed; later, on the basis of experience, these safeguards are enhanced by introducing second and third

provisos to sub-section

(1) by Act No.29 of 1997 w.e.f. 20.10.1997; later, further safeguards came to be provided by amending all the three provisos to sub- section (1), and

by introducing sub-section (2) which requires specific allegations of misuse/abuse of power or misappropriation of funds/property or

corruption/misconduct, as a sine qua non for moving any motion of no-confidence; therefore, the non-obstante clause with which sub-section (2)

begins should be read not as diluting the protection otherwise provided under sub-section (1) and the three provisos thereto, but in addition thereto, as

requiring the specific allegations also, for moving any and every motion of no-confidence contemplated under Section 49.

(b) Alternatively, sub-section (2) of Section 49 should be struck down as being ultra vires since it is unworkable and arbitrary, specially in the absence

of a corresponding amendment to the Rules of 1994, which have been promulgated keeping in view only sub-section (1) of Section 49 as it originally

existed, notwithstanding the Circular dated 07.02.2018 which is only an executive instruction having no force of law and which apparently is

prospective in operation; an executive instruction cannot be a substitute for the Rules, which the Act requires.

(c) The Rules of 1994 having been promulgated long before the 2015 Amendment, are applicable only to the motions under sub-section (1) of Section

49; Sub-Rule (7) of Rule 3 prohibits any debate on the motion of no-confidence; the motions under sub-section (2) by their very nature need to be

debated and therefore, even the August 2018 Amendment to these Rules does not make sub-section (2) workable; even otherwise also, the text of the

said amendment is not happily worded.

(d) The amendment Act 44 of 2015 whereby, Section 49 was amended, does not match with the Bill as introduced in the Legislature, for giving effect

to the recommendation of the Ramesh Kumar Committee; sub-section (2) of Section 49 is violative of sub-section (1) and therefore, the same is ultra

vires; sub-section (2) is unconstitutional since it legalises character assassination of Adhyaksha or Upadhyaksha concerned after their stigmatic

removal on the unsubstantiated allegations; it is more like a conviction without trial; the right to reputation being part of personal liberty [vide

Subramanian Swamy Vs. Union of India: (2016) 7 SCC 221] is put at stake by sub-section (2) and therefore, the same is violative of Articles 14 and

21 of the Constitution of India.

(e) Sub-section (2) of Section 49 of the Act of 1993 has no parallel in any other enactments relating to removal of elected persons only on the ground

of unsubstantiated allegations; there are no pari materia provisions for the removal of Adhyaksha and Upadhyaksha of Taluka Panchayats and Zilla

Panchayats though all these persons constitute one homogeneous class and therefore sub-section (2) of Section 49 which singles out Adhyaksha and

Upadhyaksha of Grama Panchayats alone for discriminatory treatment falls foul of Article 14 of the Constitution of India.

Learned Additional Advocate General, consistent with his stand before the learned Single Judge, submitted that the Legislature taking note of the

abuse of the provision for motion of no-confidence, came up with 2015 Amendment, inter alia, to the provisions of Section 49 by enacting certain

rigors in its sub-section

(1) and by introducing sub-section (2) to provide for securing the functional tenure of the elected Adhyakshas and Upadhyakshas of Grama

Panchayats, who otherwise were running the risk of being removed by the motions moved whimsically and fancifully. He also placed on record the

Notification dated 21.08.2018, whereby the relevant provisions of the Rules of 1994 have been amended, purportedly for the better working of sub-

section (2) of Section 49.

Learned counsel appearing for the opposing private parties have also opposed the submissions made on behalf of the appellants and have put forth

multifarious contentions. In brief, the relevant part of the material contentions on behalf of the respondents could be summarized as follows:

(a) Sub-section (2) which was inserted by Act No.44 of 2015 with the non-obstante clause ""notwithstanding anything contained in sub-section (1)

clearly overrides the entire sub-section

(1) including the three provisos thereto; in other words, the intention of the Legislature is to ensure that the holders of the democratic institutions such

as Grama Panchayat shall not take undue protection given to them under sub-section (1) for indulging in misuse or abuse of their powers during the

periods of moratorium, as prescribed under the second and third provisos thereto.

(b) A conjoint and harmonious reading of both sub-sections

(1) and (2) of Section 49 makes the position clear that in normal circumstances, the Adhyaksha and Upadhyaksha shall not be removed within the

moratorium period of initial 30 months under the second proviso or a moratorium period of two years under the third proviso to sub-section (1);

however if they either misuse their office or indulge in corruption, they can be removed even during the said moratorium periods, but only on the

grounds specified in sub-section

(2) . But for such harmonious interpretation of sub-section (1) and sub-section (2) of Section 49, it may amount to giving a carta blanche to the

unscrupulous Adhyaksha or Upadhyaksha to indulge in misuse/abuse of their office/position.

(c) In all these cases, the motions of no-confidence are moved after the expiry of 30 months; there is no case wherein the second motion of no-

confidence is moved so as to attract the bar of two year moratorium period prescribed under third proviso to sub-section (1) of Section 49; therefore,

all these cases fall under sub-section (2) read with sub-section (1) and the first proviso thereto. That being so, the challenge to the vires of sub-section

(2) does not merit consideration. The counsel have relied upon various decisions of the Apex Court in support of the submission as to how a non-

obstante clause should be interpreted including that in Chandavarkar Sita Ratna Rao Vs. Ashalatha S Guram: (1986) 4 SCC 447.

(d) The counsel for the respondents have also repelled the contention of the appellants that sub-section (2) is unconstitutional because of its

unworkability and gross arbitrariness. In support of their contentions, the learned counsel have relied upon the decision in the case of State of Andhra

Pradesh Vs. Mcdowell & Co.: (1996) 3 SCC 709, wherein it is held that a legislation can be struck down only on constitutional grounds and that the

arbitrariness or unworkability is not one of them.

(e) Sub-section (1) of Section 49 provides for a motion of no-confidence simplicitor, whereas sub-section (2) provides for a motion on fault grounds;

the object of sub-section (2) is essentially to show zero tolerance to any abuse or misuse of power, corruption and misconduct of Adhyaksha and

Upadhyaksha, regardless of the protection of their tenure afforded under the second and third provisos to sub-section (1); going by the literal

interpretation, sub-section (2) starts with a non-obstante clause, and as such, it was never intended to be yet another proviso to sub-section (1); if the

Legislature had intended that sub-section (2) should have the effect of an additional proviso, it would have accordingly added the fourth proviso to sub-

section (1) and the non-obstante clause would not have been enacted in sub-section (2) at all.

Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of

the view that even when sub-section (2) of Section 49 of the Act of 1993 cannot be considered workable for want of necessary rules at present, the

same cannot be held invalid; and the principal contentions urged on behalf of the appellants cannot be accepted. We are further clearly of the view

that the impugned proceedings for consideration of motions of no-confidence deserve to be upheld with reference to sub-section (1) of the Section 49

of the Act of 1993; and the interim orders as passed in the pending writ petitions also call for no interference.

The object and scope of Section 49 of the Act of 1993

As noticed, the questions involved in these matters are on the validity of sub-section (2) of Section 49 ibid. and the operation of Section 49 as

existing. For dealing with such questions, appropriate it would be to take note of the scope and object of Section 49 and the brief history of its

development and modulation.

Under the scheme of Act of 1993, the Grama Panchayats, Taluka Panchayats and Zilla Panchayats are constituted in the three-tier-hierarchy, as

democratic institutions. Section 49 of the Act of 1993 provides for the removal of Adhyaksha and Upadhyaksha of Grama Panchayats by motion of

no-confidence; similarly, Section 140 and Section 179, inter alia,

provide for the removal of Adhyaksha and Upadhyaksha of Taluka Panchayats and of Zilla Panchayats, respectively.

Section 49, as it originally stood in the year 1993, provided that an Adhyaksha or Upadhayaksha shall be deemed to have vacated his office on the

passing of a resolution by the two-third majority of the members of the Grama Panchayat, expressing no-confidence in him. The only proviso to

Section 49 as it was originally enacted had prescribed that the ten days prior notice of such a resolution should be signed by not less than one-third of

the total number of the members of the Grama Panchayat concerned.

It is noticed that after the recommendations of Haranhalli Ramaswamy Committee, the Act of 1993 came to be amended by Amendment Act

No.29 of 1997 w.e.f. 20.10.1997, making substantial modifications, inter alia, to the provisions of Section 49 providing for a greater stability to these

offices, while minimizing the potential abuse of the democratic process of removal. Hence, the second and third provisos came to be introduced.

The second proviso was introduced as under:

Provided further that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved within one year from the

date of his election:

And, the third proviso was introduced as under:

Provided also that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by a

Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within one year from

the date of the decision of the Grama Panchayat"".

Thus, in the initial one year, there could not have been any motion of no-confidence at all; similarly, there could not have been another such motion of

no-confidence for a period of one year, once the earlier one having been moved, had failed.

Subsequently, after the recommendation of Ramesh Kumar Committee, the Karnataka Legislature enacted Amendment Act No.44 of 2015

further amending various provisions of the Act of 1993 w.e.f. 25.02.2016; by the said amendment, extensive changes were made in the provisions of

Section 49.

By the said Act No. 44 of 2015, the first proviso was amended to read as under:

Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-half of the total number of members and

at least ten days notice has been given of the intention to move the resolution"".

Thus, by the said amendment, earlier requirement of one-third of the members signing the notice of resolution came to be altered to one-half.

Similarly, the second proviso was amended to read as under:

Provided further that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved within the first thirty

months from the date of his election:

Thus, by amendment to this proviso, the earlier moratorium period of one year came to be increased to two and a half years, within which no such

motion of no-confidence can be moved.

The third proviso was also amended to read as under:

Provided also that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by a

Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within two years

from the date of the decision of the Grama Panchayat"".

Thus, the moratorium of initial one year came to be increased to two years, within which there cannot be another motion of no- confidence, the earlier

one having been moved and having failed.

In addition to altering the three provisos to sub-section

(1) as mentioned above, the 2015 amendment added sub-section

(2) to Section 49, which reads as under:

Notwithstanding anything contained in sub-section (1), no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be

moved except on specific allegation of misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or

project of the panchayat or of misappropriating funds or other assets of the panchayat during the term of his membership or otherwise indulging in

corruption or misconduct in the course of exercising his functions"".

The said sub-section (2) now added provides for the removal of Adhyaksha and Upadhyaksha of the Grama Panchayats by motion of no-confidence

only on the allegation of misuse/abuse of power/authority or misappropriation of Panchayat funds/assets and corruption or misconduct. This sub-

section apparently starts with a non-obstante clause, but its validity and interpretation is the subject of consideration in these appeals.

As to the constitutionality of Section 49 (2)

In some of these writ appeals, wherein the vires of sub-section (2) of Section 49 is called in question, the learned counsel appearing for the writ

petitioners have contended that right to reputation is a part of personal liberty which is guaranteed under Article 21 of the Constitution of India vide

Subramanian Swamy Vs.

Union of India: (2016) 7 SCC 221; sub-section (2) of Section 49 of the Act of 1993, to the extent it authorises the stigmatic removal of Adhyaksha and

Upadhyaksha of Grama Panchayats per se on unsubstantiated allegations, is arbitrary and is violative of Article 21 of the Constitution of India. Per

contra, the counsel appearing on the other side have repelled the said contention, while relying upon the decision in the case of State of Andhra

Pradesh Vs. Mcdowell and Co. : (1996) 3 SCC 709 (para 43) wherein, the Apex Court has ruled that a legislation cannot be struck down on the

ground of arbitrariness.

Though it may be pointed out that in view of the progressive view of the Hon’ble Supreme Court, particularly in the case of Shayara Bano Vs.

Union of India : AIR 2017 SC 4609 (para 281), the direct applicability of the Mcdowell’s case (supra) may remain in question, but such an aspect

relating with the arbitrariness or unreasonableness is not required to be dilated in these matters for the simple reason that the provisions contained in

sub-section (2) of Section 49 ibid., founded on the democratic principles and on the principles of probity in public life do not appear to be per se

unreasonable or arbitrary.

The contention that sub-section (2) of Section 49 provides for stigmatic removal of unsubstantiated allegations and hence, it is violative of Article

21 of the Constitution of India, is too farfetched an argument. When an elected member of the Grama Panchayat chooses to become its Adhyaksha or

Upadhyaksha, he does so with the specific knowledge that he would always remain answerable to any question raised on his conduct, particularly in

view of the office held by him.

The right to reputation even when it is guaranteed as a Fundamental Right under Article 21 of the Constitution of India, is not an absolute right; the

said right can be controlled or regulated in accordance with “the procedure established by law†i.e., “due process of lawâ€. Even the removal

of Adhyaksha and Upadhyaksha in terms of sub-section (1) or sub-section (2) of Section 49 is in accordance with the procedure established by law,

within the meaning of Article 21. The Apex Court in the case of Indira Nehru Gandhi Vs. Raj Narain : (1975) Suppl. SCC 1, has held that the

democratic principles are a basic feature of the Constitution. The Legislature has enacted these principles in Section 49 for the removal of the

incumbents of these offices and the same is in the larger public interest, to which the personal interest i.e., right to reputation of an individual has to

yield. Therefore, the injury to the personal interest, if any, of the incumbents of these offices cannot be a ground for invalidating the statutory

provisions in question.

The contention of the appellants that the text of sub-section (2) of Section 49 does not match with the text of the Legislative Bill that was founded

on the recommendations of Ramesh Kumar Committee and, therefore, the said Section is unconstitutional, is legally misconceived. Even if the said

contention is assumed to be true, its factual foundation has not been established by producing the necessary material. That apart, there is no legal

requirement in our constitutional jurisprudence that the text of the Statute should match with that of the Legislative Bill. Therefore, the said contention

being bereft of any legal basis, is liable to be rejected.

The next contention advanced on behalf of the appellants that sub-section (2) of Section 49 is ultra vires for it offends the pith and substance of

sub-section (1) of Section 49, is again devoid of any legal substance. A legislation cannot be struck down on the ground that it offends the provisions

of the other legislation. Similarly, a provision of an enactment cannot be struck down only on the ground that it is repugnant or incongruous to any

other provision of the said enactment. In fact, in the same enactment, there may be provisions which are repugnant to each other, but that repugnancy

per se is not a ground for invalidating such provisions by judicial verdict. A situation like that falls in the domain of ‘Interpretation of Statutes’

and such provisions ordinarily call for a harmonious construction for resolving the conflict. Therefore, this contention too is liable to be rejected.

It has also been contended that sub-section (2) of Section 49 does not have a parallel in any other enactment and further, the Adhyakshas and

Upadhyakshas of Taluka Panchayats and Zilla Panchayats do not suffer any such provision which the writ petitioners do and, therefore, the said

provision is liable to be struck down as being discriminatory and hence, violating Article 14 of the Constitution. This argument wrongly assumes that

the Adhyakshas and Upadhyakshas of Grama Panchayats are the equals of their counter-parts of Taluka Panchayats and Zilla Panchayats. In the

scheme of the Act of 1993 and particularly looking to the powers and authority assigned, they do not constitute one single homogeneous class.

Therefore, there being no foundation for invoking Article 14 on the ground of discriminatory treatment, this contention too fails.

For what has been discussed hereinabove, the contention that sub-section (2) of Section 49 is invalid piece of legislation is required to be, and is

hereby, rejected.

Even when sub-section (2) of Section 49; and for that matter, the entire Section 49 is held to be valid and intra vires, the question still remains

about the operation and workability of the provisions contained therein. These and co-related aspects may now be taken up for consideration.

The construction of Section 49

Section 49 of the Act is held to have vested a right in the members of Grama Panchayat to move a motion of no-confidence for the removal of

Adhyaksha and Upadhyaksha, subject to certain restrictions and qualifications [vide Siddanagouda Vs. State and others: (2005) 1 KLJ 230]. It is

relevant to note that the legislative process during the period between 1993 and 2015 providing for the removal of Adhyaksha and Upadhyaksha of

Grama Panchayats, shows a progressive control over this right of the elected members so as to provide a balance as regards the tenure to an elected

Adhyaksha or Upadhyaksha without being under constant threat of facing motions of no-confidence vis-Ã -vis the rights of elected members of the

Panchayat to remove an Adhyaksha or Upadhyaksha in the reasonable and prescribed manner, if the said incumbent ceases to enjoy the confidence

of the House. This becomes apparent by the texts of Amendments, as noticed hereinbefore.

So far as the other provision for removal of Adhyaksha and Upadhyaksha, particularly that contained in Section 48 of the Act of 1993 is

concerned, it provides for removal of Adhyaksha and Upadhyaksha by the Government on the administrative side, on the ground of ‘proved

misconduct’ or ‘persistent remiss’, in accordance with the procedure prescribed therein. Such a process, by its very nature, requires holding

of the necessary inquiry before the Government removes an elected representative. These aspects of the matter need not be elaborated upon for the

simple reason that the provisions of Section 48 and Section 49 operate in different fields and are in fact mutually exclusive even when their result may

be the same i.e., removal.

The question still remains as to the construction of the provisions contained in Section 49 ibid. In this regard, in our view, the process of reading

down as adopted by the learned Single Judge appears to be the correct approach so as to maintain the provisions as existing on the Statute and at the

same time making them workable towards the true intent and purpose.

Though learned counsel for the appellants, with reference to some of the decided cases on the principles of statutory interpretation, have

endeavoured to argue that the process, as adopted by the learned Single Judge, is practically of reading the words in the Statute or omitting the words

therefrom, which practically amount to legislation, but in our view, these submissions do not merit acceptance because if any other interpretation is

taken on the scheme of Section 49 of the Act, it would practically lead to the result as if a motion of no-confidence can never be moved except when

half of the members choose to level specific allegations. This nature blanket ban on the rights of the members of Gram Panchayat to move the motion

of no-confidence may not stand in conformity and compatibility with the norms of a democratic institution. Therefore, in our view, the process of

reading down, as taken recourse of by the learned Single Judge, in the peculiar circumstances of the case, cannot be faulted at and deserves to be

upheld. The contentions against the process of interpretation adopted by the learned Single Judge are, therefore, rejected.

It is also significant to notice, as observed hereinbefore, that even while inserting sub-section (2) to Section 49, by the very same Amendment Act,

i.e., Act No.44 of 2015, the length of time of moratorium periods, as provided in the second and third provisos to sub-section (1), were modified. If the

intention of the legislature was to do away with the whole of sub-section (1) of Section 49, there was no such necessity of amendment to the said

provisos. Such contemporaneous amendment of the provisos is also a strong indicator of the legislative intent that sub-section (2) was inserted in

Section 49 so as to provide an additional right to the members of Gram Panchayat to move a motion of no-confidence on specific allegations

irrespective of the said moratorium periods. Else, the general right of the members to move a motion of no confidence without stating any reason, per

sub-section (1), was neither intended to be taken away nor has been taken away. This, in our view, is the only appropriate way of interpreting the

provisions as existing, particularly looking to the purport and object thereof.

The operation of sub-section (2) of Section 49:

Even when the aforesaid process of interpretation is applied so as to ensure the true operation of sub-section (1) as also sub-section (2) of Section

49, the question as regards workability of sub-section (2) of Section 49 still remains.

It is pertinent to mention that the Rules of 1994 as originally promulgated are applicable only to the motions moved under sub-section (1) of Section

49; and sub-section (2), having been enacted long thereafter, was not within the contemplation of the said Rules as originally promulgated. These

Rules have been amended by Notification No.GPA 257 GPA 2017 dated 21.08.2018, whereby some mechanism is sought to be provided for the

motions moved under sub-section (2), although the same leaves much to be desired. Sub-rule (7) of Rule 3 of these Rules prohibits any debate on the

motion of no-confidence. The said provision reads as under :

“(7) As soon as the meeting convened under sub-rule (2) commences, the Assistant Commissioner shall read to the members of the Grama

Panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debateâ€​.

By virtue of August 2018 Amendment (supra), these Rules are made applicable even to the motions moved under sub-section (2) in which

‘specific allegations’ are a pre-requisite. By their very nature, a debate becomes inevitable on such motions under sub-section (2). Unless and

until a comprehensive set of Rules as applicable to these motions is promulgated, this newly added sub-section (2) will continue to remain unworkable.

The Government Circular No.RDP 887 GPA 2017 dated 07.02.2018, being only of executive instructions, cannot be a substitute for the Rules.

In the passing, we may only observe that the procedure for meetings could even otherwise be prescribed by virtue of Rules under Section 50 of

the Act of 1993 that reads as under:

“50. Procedure at meetings- The procedure at a meeting of the Grama Panchayat shall be as prescribed.â€​

All other aspects being within the domain of the Legislature and the rule making power of the Government, we do not wish to elaborate further in

this regard. Suffice it to conclude that sub-section (2) of Section 49 in the present form, for want of requisite and specific Rules, is unworkable but, for

the interpretation adopted by the learned Single Judge and approved in this judgment, sub-section (1) of Section 49 remains operational; and the said

sub-section (1) is neither eclipsed nor nullified.

Motions of no-confidence involved in the present cases:

Most of the motions of no-confidence, as involved in the present cases, have already been put to the floor of the concerned Houses and, it is

pointed out that most of such motions have been adopted. Such motions of no-confidence have been found by the learned Single Judge to be

conforming to all the requirements of sub-section (1) of Section 49. No cogent and convincing reason has been placed before us in any of these

matters that the motion of no-confidence is not in conformity with the other requirements of sub-section (1) of Section 49. That being the position, the

resolutions adopted on such motions deserve to be taken to their logical conclusion. In the pending writ petitions, of course, the validity of the notice of

motion per sub-section (1) of Section 49 may be examined, if any question in that regard is raised and to this extent, we would leave the matter open

for examination in the pending writ petitions.

CONCLUSION:

For what has been discussed hereinabove, we are clearly of the view that these intra-court appeals deserve to be dismissed and the orders

impugned, as passed by the learned Single Judge, deserve to be upheld except the observations occurring in paragraph 37(V) of the order dated

28.02.2018, where the learned Single Judge has observed that the motion of no-confidence under sub-section (2) of Section 49 would remain subject

to mode and method for its consideration as per sub-section (1). Such mode and method would only relate to the requirement of the number of

members for moving the motion and for adopting the resolution on that basis. However, the procedure and method for consideration of the motion

under sub-section (2) of Section 49 shall have to be provided by separately promulgated Rules and any such motion under sub-section (2) of Section

49 of the Act of 1993 cannot be proceeded under the Rules of 1994, even as amended by the notification dated 21.08.2018.

However, as held hereinabove, the motions of no-confidence in the decided writ petitions shall be deemed to be those moved under sub-section (1)

of Section 49 and cannot be considered invalid. Hence, the directions in the impugned order dated 28.02.2018 and other orders passed on that basis

remain unexceptionable and call for no interference.

With the observations foregoing, these intra-court appeals fail and are, therefore, dismissed.

The interim orders passed in the respective cases stand vacated.

No costs.