# Anuj Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Writ C No. 31153 of 2022
- **Bench:** Mrs. Sunita Agarwal, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-kumar-anr-v-state-of-u-p-ors-49821
- **Pages:** 17

## Headnote

C.S.C., Sri Atiqur Rahman Siddiqui, Sri
Rakesh Pande (Sr. Advocate)

A.
Local
body
Law
-
UP
Kshettra
Panchayat and Zila Panchayat Act, 1961 -
Section 15(13) - No confidence motion
against
Pramukh
-
Amendment
on
04.10.2022 - Caveat of not receiving
notice of no confidence within period of
'one year' was changed by 'two years' -
Applicability
-
Prospective
or
retrospective - Held, general rule against
retrospective operation of statute does
not apply to amendments in procedural
provisions/statute - Action of the Collector
concerned
in
cancelling
the
motion
expressing want of confidence in the
Pramukh of Kshettra Panchayat received by
him, 'within two years' 'of the assumption of
office by the Pramukh' cannot be said to be
illegal. (Para 44 and 59)
368 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Interpretation of Statute - Rules
against retrospectivity - Applicability -
Distinction
between
procedural
and
substantive provisions drawn - Exception
to the rules explained - Held, it is
fundamental rule that no statute shall be
construed so as to have a retrospective
operation, unless its language is such as
plainly to require such a construction. A
statute is not to be construed so as to
have a greater retrospective operation
than its language renders necessary -
Held
further,
rigid
rule
against
retrospectivity does not apply in relation
to
procedural
provisions.
There
is
distinction
between
procedural
and
substantive provisions for the purpose of
application
of
rule
relating
to
retrospectivity
-
Indeed,
a
general
presumption is that the statutory change
in procedure applies to pending as well as
future proceedings. (Para 33, 35 and 36)

C. Interpretation of Statute - Literal rules
- Applicability - Any interpretation of
statute which leads to absurdity should be
avoided.
It
is
presumed
that
the
legislature does not intend an absurdity,
or that absurd consequences shall follow
from its enactment - If by applying the
literal
rule
of
interpretation,
the
construction is being absurd then it should
be avoided. (Para 45)

Writ petition dismissed. (E-1)

List of Cases cited :-

## Text

_Characters 0–39,903 of 57,138. This is a partial read: ask again with offset=39903 for what follows._

3 All. Anuj Kumar & Anr. Vs. State of U.P. & Ors.
367
scheme and the property held by a
"Family" in different locations or different
places/cities would be clubbed while
applying the land or property holding test
to determine EWS status. The EWS scheme
enjoins the officer who issues EWS
certificate to do so only after careful
verification of the relevant documents
following due process as prescribed by the
respective
State/Union
Territory.
The
appointing authorities are also enjoined to
include a clause in the offer of appointment
to the candidate belonging to EWS as
follows:-

"The appointment is provisional
and is subject to the Income and asset
certificate being verified through the
proper channels and if the verification
reveals that the claim to belong to EWS is
fake/false the services will be terminated
forthwith without assigning any further
reasons and without prejudice to such
further action as may be taken under the
provisions of the Indian Penal Code for
production of fake/false certificate."

17. The EWS scheme also specifically
mentions that the instructions should be
strictly followed so that it may not be
possible for an unscrupulous person to seek
employment on the basis of false claim and
if any person gets an appointment on the
basis of such false claim, his/her services
shall be terminated invoking conditions
contained in the offer of appointment.

18. Any vacillation or dilution of the
strict provisions of the EWS scheme
regarding issuance of EWS certificate
would hit the root of the very purpose of
the EWS scheme rendering such an act
abhorrent to the scheme of the Constitution
of India.

19. For all the reasons aforestated, we
do not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
----------
(2023) 3 ILRA 367
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ C No. 31153 of 2022
Alongwith
other connected cases

Anuj Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sunil Kumar Singh, Sri Awadhesh Kumar
Malviya, Sri G.K. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Atiqur Rahman Siddiqui, Sri
Rakesh Pande (Sr. Advocate)

A.
Local
body
Law
-
UP
Kshettra
Panchayat and Zila Panchayat Act, 1961 -
Section 15(13) - No confidence motion
against
Pramukh
-
Amendment
on
04.10.2022 - Caveat of not receiving
notice of no confidence within period of
'one year' was changed by 'two years' -
Applicability
-
Prospective
or
retrospective - Held, general rule against
retrospective operation of statute does
not apply to amendments in procedural
provisions/statute - Action of the Collector
concerned
in
cancelling
the
motion
expressing want of confidence in the
Pramukh of Kshettra Panchayat received by
him, 'within two years' 'of the assumption of
office by the Pramukh' cannot be said to be
illegal. (Para 44 and 59)
368 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Interpretation of Statute - Rules
against retrospectivity - Applicability -
Distinction
between
procedural
and
substantive provisions drawn - Exception
to the rules explained - Held, it is
fundamental rule that no statute shall be
construed so as to have a retrospective
operation, unless its language is such as
plainly to require such a construction. A
statute is not to be construed so as to
have a greater retrospective operation
than its language renders necessary -
Held
further,
rigid
rule
against
retrospectivity does not apply in relation
to
procedural
provisions.
There
is
distinction
between
procedural
and
substantive provisions for the purpose of
application
of
rule
relating
to
retrospectivity
-
Indeed,
a
general
presumption is that the statutory change
in procedure applies to pending as well as
future proceedings. (Para 33, 35 and 36)

C. Interpretation of Statute - Literal rules
- Applicability - Any interpretation of
statute which leads to absurdity should be
avoided.
It
is
presumed
that
the
legislature does not intend an absurdity,
or that absurd consequences shall follow
from its enactment - If by applying the
literal
rule
of
interpretation,
the
construction is being absurd then it should
be avoided. (Para 45)

Writ petition dismissed. (E-1)

List of Cases cited :-

1. Isha Valimohamed & anr. Vs V. Haji Gulam
Mohamad & Haji Dad Trust ; 1974 (2) SCC 484

2. Bansidhar & ors. Vs St. of Raj. & ors.; 2. 1989
(2) SCC 557

3. Vikas Trivedi & ors. Vs St. of U.P. & ors.;
2013 (8) ADJ 523

4. Municipal Council Palai Vs T.J. Joseph; 1963
AIR SC 1561

5. Zile Singh Vs St. of Har.; 2004 (8) SCC 1

6. Bhagat Ram Sharma Vs U.O.I.; 1988 (Supp)
SCC 30

7. St. of Rajasthan Vs Mangilal Pindwal; 1996
(5) SCC 60

8. Fibre Boards Private Limited, Banglore Vs
Commissioner of Income Tax, Banglore; 2015
(10) SCC 333

9. Cheveti Venkannya Yadav Vs St. of Telangana
& ors.; 2017 (1) SCC 283

10. Dharam Dutt & ors. Vs U.O.I. & ors.; 2004
(1) SCC 712

11. Mohan Lal Tripathi Vs D.M., Rae Bareilly;
1992 (4) SCC 80

12. Writ Petition No.7717 of 2020; Smt. Geetha
Pandit Rao Vs The St. Of Karnataka

13. Trimbak Damodhar Rajpurkar Vs Assaram
Hiraman Patil & Ors.; AIR 1966 SC 1758

14. Gajraj Singh & ors. Vs St. Transport
Appellate Tribunal & ors.; 1997 (1) SCC
650

15. Vijay Vs St. of Mah.; 2006 (6) SCC 289

16. University of Kerala & ors. Vs Merlin J.N. &
anr. etc. etc.; 2022 (9) SCC 389

17. N. T. Devin Katti Vs Karnataka Public Service
Commission; 1990 (3) SCC 157

18. Civil Appeal No.8919 of 2012; Ajay Makan
Vs Adesh Kumar Gupta

19. Criminal Appeal No.34 of 2020; Shilpa Mittal
Vs NET Delhi

20. P. Suseela & ors. Vs University Grants
Commission & ors.; 2015 (8) SCC 129

21. Bhanumati Vs St. of U.P. & ors.; 21. 2010
(12) SCC 1

22. Vikas Trivedi Vs St. of U.P. & ors. 2013 (8)
ADJ 523 (FB); 2013 SCC Online Alld 14264
3 All. Anuj Kumar & Anr. Vs. State of U.P. & Ors.
369
23. Writ Petition No.3171 (MB) of 2012; Radhey
Shyam Maurya Vs St. of U.P. decided on
01.05.2012

24. Anand Gopal Vs St. of Bom; AIR 1958 SC
915

25. Commissioner of Police, Delhi & anr. Vs
Dhaval Singh; AIR 1999 SC 2326

26. Mohan Lal Tripathi Vs D.M., Rae Bareilly;
1992 (4) SCC 80

27. Usha Bharti Vs St. of U.P.; 2014 (7) SCC 663

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Vipin Chandra Dixit, J.)

1. Heard Sri Navin Sinha learned
Senior Advocate assisted by Sri Saiful
Islam Siddiqui and Ms. Tahira Kazmi, Sri
Rakesh Pandey, learned Senior Advocate
assisted by Sri Ramesh Chandra Tiwari and
Sri G.K. Singh, learned Senior Advocate
assisted by Sri Sunil Kumar Singh, learned
counsels appearing for the petitioners; Sri
Ajit Kumar Singh, learned Additional
Advocate
General
assisted
by
Sri
Sudhanshu Srivastava, learned Additional
Chief Standing Counsel on behalf of the
State and Sri Ashok Khare, learned Senior
Advocate assisted by Sri K.S. Kushwaha
and Sri B.K. Shukla, Sri Sanjeev Kumar
Tyagi, Sri Prabhakar Dubey, Sri A.R.
Siddiqui, learned counsels appearing for
the private-respondents

2. In this batch of writ petition, a
common
question
arises
about
the
applicability of the amendment brought by
the Ordinance No.8 of 2022, in Section 15
(13) of U.P. Kshettra Panchayat and Zila
Panchayat Act, 1961, (in short as 'the Act'
1961') whereby the period of "one year"
prescribed therein has been substituted to
"two years". The said amendment has been
enforced on 04.10.2022 and published in
the official gazette dated 06.10.2022. In all
the connected matters, the application to
make the motion of No Confidence was
received
by
the
District
Magistrate/
Collector concerned, in accordance with
sub-section (2) of Section 15 and the date
to convene the meeting for consideration of
the motion had been fixed prior to the
enforcement of the amendment. But before
the motion could be tabled, due to the
amendment brought by the Ordinance in
Sub-Section (13) of Section 15, the
Collector concerned passed individual
orders that the motion cannot be carried out
in view of the amendments. The motion of
No-Confidencce were, thus, cancelled.

3. Challenging the said action of the
Collector concerned, it was argued by Sri
Navin Sinha learned Senior Counsel that
the application to make a motion of NoConfidence was duly received by the
Collector. The date of the meeting was
intimated to the elected members, the
meeting was adjourned for one or other
reasons and before the date fixed for the
adjourned meeting, the amendment by way
of Ordinance No.8 of 2022 has been
brought into force. The date of enforcement
of the ordinance is 04.10.2022. The elected
members, who moved the motion of NoConfidence have a right to bring the said
motion. The requirements of Section 15 (2)
and (3) to carry out the motion of NoConfidence had been fulfilled, summary
enquiry by the Collector concerned had
been concluded, the right accrued to the
elected
members
to
carry
out
NoConfidence motion after the scrutiny of the
notice of intention in writing, in the form
prescribed under the rule framed under the
1961 Act, cannot be taken away. The
Ordinance No.8 of 2022 does not express
370 INDIAN LAW REPORTS ALLAHABAD SERIES
intention to make the substituted provisions
retrospective. The repeal/substitution of
sub-section (13) of Section 15 can only be
given prospective effect. Section 6(c) of the
General Clauses Act' 1897 has been pressed
before us to submit that where any statutory
provisions/Act or regulation is repealed by
any enactment made, unless a different
intention appears, the repeal shall not affect
any right, privilege, obligation or liability
acquired, accrued, or incurred under the
enactment so repealed. It was argued that
the right to bring No-Confidence Motion
by elected members has been accrued in
their favour with the steps taken by them in
exercise of their right. The applications
moved by the elected members before the
repeal of the old provisions/enactment of
new provisions is the expression of NoConfidence which has to be brought to its
logical end by convening a meeting for the
purpose.

4. The aid of the decision of the Apex
Court in Isha Valimohamed & another
Vs. V. Haji Gulam Mohamad & Haji
Dad Trust1; Bansidhar & others Vs.
State of Rajasthan & others2 has been
taken, to place the effect of the repeal in
view of Section 6 of the General Clauses
Act, to assert that an accrued right would
survive the repeal of that enactment as the
right accrued are saved unless they are
taken away expressly.

5. It was argued that it would have
been another case, had the right conferred
upon the members by Section 15 to bring
No-Confidence Motion not been exercised
and the repeal was made effective. Even
otherwise, it is held in a catena of decisions
of this Court that the provisions of Section
15 (3) of the Act' 1961 are mandatory in
nature, the Collector has no option but to
fix a meeting to carry out No-Confidence
Motion, after scrutiny of the written notice
of intention, delivered to him in accordance
with sub-section (2) of Section 15. The Full
Bench decision in Vikas Trivedi & others
Vs. State of U.P. & others3 has been relied
to substantiate the said submissions. It was
argued that the Collector could not have
withheld the motion brought by the elected
members or cancel the same on account of
changes in the then existing laws.

6. Sri Rakesh Pande learned Senior
Advocate adding to the submission of Sri
Navin Sinha, learned Senior Counsel would
argue that the No-Confidence Motion in the
cases before us was moved by the elected
members after one year of assumption of
office of the Pramukh, Kshettra Panchayat.
The motion was brought in accordance
with sub-section (2) of Section 15, the
meeting fixed by the Collector was
postponed, the old provisions providing
period of 'one year' has been substituted
wef 04.10.2022 by an ordinance which was
notified on 06.10.2022. It is a case of
substitution of the old provisions and not a
case of repeal or saving. The normal rule is
that the substituted provisions are to be
considered
prospective
in
nature;
retrospectivity by implication is only an
exception. Section 15 is a substantive
provision prescribing the entire structure of
process for No-Confidence Motion. Section
15(11) amended by the Ordinance No.8 of
2022 is procedural whereas Section 15 (13)
is substantive. The rider or prohibition on
the
power
of
the
District
Magistrate/Collector under Section 15(13)
is to receive notice of a motion within the
prescribed
period
therein,
from
the
assumption of office by a Pramukh and not
to proceed with it. At the relevant point of
time, the date, when the motion of NoConfidence was delivered to the Collector
or received by him, the period prescribed
3 All. Anuj Kumar & Anr. Vs. State of U.P. & Ors.
371
was "one year", which was adhered to by
the elected members. Once the motion is
moved, the substituted provisions of subsection (13) prescribing 'two years' instead
of old provision of 'one year' would have
no application, either to reject or return the
motion of No-Confidence moved by the
elected members presuming that the
Collector has no power to receive it after
the amendment. The undisputed position is
that when the motion was moved, the
Collector was well within its power to
receive and process the same. Moreover,
once the motion has been processed, the
substitution
provisions
will
have
no
application, in as much as, presumption is
about the prospectivity of the substituted
provisions
and
against
the
implied
retrospectivity. Reliance is placed on the
decision of the Apex Court in Municipal
Council Palai Vs. T.J. Joseph4; to
substantiate the above noted submissions.

7. The arguments of Sri Navin Sinha
and Sri Rakesh Pande learned Senior
Counsels have been adopted by Sri G.K.
Singh learned Senior Advocate appearing
for the petitioner in the connected matters.

8. Sri Ajit Kumar Singh learned
Additional Advocate General for the State
respondents would submit, in rebuttal, that
the question is not as to whether the
Ordinance to substitute the provisions of
Section 15(13) of the Act' 1961 is
retrospective or not. It was contended that
the Ordinance brought substitution of the
existing provisions. The words used in the
Ordinance
No.8
of
2022
"shall
be
substituted" have been highlighted with the
aid of decision of the Apex Court in Zile
Singh Vs. State of Haryana5 to assert that
the substitution by amendment Act deleted
the old provisions and made the new
provisions operative. The old ceases to
exists and new rule comes into existence.
The substitution is different from "supersession" or "repeal". With the substitution
of one text in the Statute, the pre-existing
text cannot be kept alive.

9. Reference has further been made to
the decisions of the Apex Court in Bhagat
Ram Sharma Vs. Union of India6, State
of Rajasthan Vs. Mangilal Pindwal7,
Fibre Boards Private Limited, Banglore
Vs.
Commissioner
of
Income
Tax,
Banglore8, Cheveti Venkannya Yadav
Vs. State of Telangana & others9 and
Dharam Dutt & others Vs. Union of
India & others10 to substantiate the said
submissions.

10. With the aid of the decision in
Mohan Lal Tripathi Vs. District Magistrate,
Rae Bareilly11, it was argued that the right
to remove an elected representative stem
out of the statute and its existence can be
decided on the basis of the provisions of
the Act. In the facts of that case, reduction
of period from 'two years' to 'one year'
during which vote of No-Confidence
Motion
could
be
tabled
against
a
President of the Municipal Board by
Ordinance, which later became Act, was
challenged on the ground that there was
absence of any discernible and rational
principle and the legislature had resorted
to as "spoils system", the amendment was
thus, constitutionally invalid. It was held
therein that but for lack of legislative
competence or for being arbitrary, a
legislative action cannot be struck down
on
the
ground
of
malafide.
The
amendment about the period during
which a No-Confidence Motion could be
brought against the elected President is a
matter of legislative policy, the wisdom
of which cannot be scanned by the Apex
Court.
372 INDIAN LAW REPORTS ALLAHABAD SERIES

11. It was also argued by the learned
Additional Advocate General that the Apex
Court has noted therein that the right to
continue
in
office
of
an
elected
representative is neither a fundamental
right nor a common law right, but a special
right created by the statute or a political
right or privilege and not a natural or
absolute or vested right. Similarly, the right
to remove an elected official from his office
before his or her term expires is a statutory
right, which can be exercised only within
the limits of the statute, i.e. within the
ambit of the existing provisions prevailing
on the date of exercise of the right to move
the No-Confidence Motion. As in the
instant case, the right to move NoConfidence Motion conferred upon the
elected members has been altered by the
legislative amendment brought within the
legislative
competence,
No-Confidence
Motion cannot be carried out as the elected
members have lost their right to carry out
the No-Confidence Motion on or after
04.10.2022.

12. Reliance has further been placed
on the decision of the Karnatka High Court
in Smt. Geetha Pandit Rao vs The State
Of Karnataka12 to submit that in a
challenge to the amendment brought by the
State of Karnataka to reduce the period for
moving No-Confidence Motion against
President/Vice President of Zila Panchayat
from '30 months' to '15 months' under the
Ordinance No.2 of 2020, the question
considered by the Karnatka High Court was
as to whether the impugned amendment to
the Act and rules are prospective or
retrospective in nature. Considering the
decision of the Apex Court with regard to
the
interpretation
to
the
word
"substitution", it was held therein that the
amendment which is procedural in nature is
retrospective in nature and not prospective
as the 'vested right' or 'accrued right' of the
member of the Zila Panchayat to retain the
elected office would begun from the date of
their assumption of office as member of
Zila Panchayat. The reduction in the period
to bring No-Confidence Motion against an
elected President/Vice President of Zila
Panchayat from '30 months' to '15 months'
under the Ordinance No.2 of 2020 would
be operative from the date of assumption of
the office by such President/Vice President.

13. Reliance has been placed therein
on the decision of the Apex Court in
Mohan Lal Tripathi (supra) to hold that
the provisions of No-Confidence Motion,
the recall of the elected representative, so
long it is in accordance with law, cannot be
assailed on abstract law of democracy. The
challenge to the validity of the Ordinance
in curtailing the period barring NoConfidence
motion
by
the
elected
representative, thus, was turned down.

14. On the same analogy, it was
argued by the learned Additional Advocate
General, that by interpretation of the
amendment in sub-section (13) of Section
15, it may be held that the elected
representative has a 'vested right' or
'accrued right' to remain in his elected
office for a period of 'two years' which
would begun from the date of his
assumption of office as Pramukh, Kshettra
Panchayat and in that view of the matter,
the amendment with that perspective has to
be given retrospectivity. From another
angle, on the right of elected members to
bring No-Confidence Motion, it may be
held that they have left with no right to
carry out the No-Confidence Motion after
the amendment wef 04.2.2010, as the
Collector is prohibited from proceedings
with the same. The submission thus, is that
from both the angles, No-Confidence
3 All. Anuj Kumar & Anr. Vs. State of U.P. & Ors.
373
Motion moved by the petitioners, the
elected members of the Kshettra Panchayat,
cannot be carried out. The District
Magistrate/Collector, therefore, cannot be
said to have committed any illegality in
cancelling the motion of No-Confidence
brought by them.

15. Sri Ashok Khare learned Senior
Advocate
appearing
for
the
elected
Pramukhs has relied on the decision of the
Apex Court in Trimbak Damodhar
Rajpurkar Vs. Assaram Hiraman Patil
& Ors.13 to elaborate and would submit
that the expression of the right of elected
member to bring the motion has to be given
its true meaning in terms of the scheme of
the statute. It was argued that the right to
bring a No-Confidence Motion under
Section 15 would not be a "vested right" or
"right accrued" only on the motion being
received by the Collector. Such a right
accrued only on the motion being put to
vote, i.e. on the date of discussion on
voting by the elected members on the
motion of No-Confidence. Before such a
right could be accrued upon the elected
members, the amendment came into force.
Sub-section (1) of Section 15 only speaks
of a contingent right by stating that a
motion expressing want of confidence in
Pramukh of a Kshettra Panchayat may be
made, in accordance with the procedure
laid down in the sub section (2) to (13)
followed thereafter. The written notice of
intention to make the motion though
received and scrutinized by the Collector
but after the amendment brought in subsection (13) of Section 15, it became
impossible
for
the
District
Magistrate/Collector to process the motion
of intention. There is no discretion with the
District Magistrate to carry out the motion
of No-Confidence as restriction by the
legislature has been put in place on the
power of the District Magistrate to process
the No-Confidence Motion, for a period of
'two years', against an elected Pramukh
from the date of his assumption of the
office.

16. The discussion in
Trimbak
Damodhar Rajpurkar (supra) has been
placed before us, as an instance, to argue
that on the same analogy, it was held
therein that the right of landlord to eject the
tenant was subject to termination of
tenancy under the Amendment Act. Unless
and until the notice was served upon the
tenant with the intention to terminate the
tenancy, no right to eject the tenant could
be accrued in favour of the landlord, under
the unamended provisions by serving a
notice to vacate the premises on expiry of
the tenure of the lease.

17. Sri S.K. Tyagi learned counsel
appearing for the elected representatives,
has relied upon the decisions of the Apex
Court in Gajraj Singh and others versus
State Transport Appellate Tribunal and
others14,
Vijay
Vs.
State
of
Maharashtra15; University of Kerala &
others Vs. Merlin J.N. & another etc.
etc16 to assert that purposive interpretation
has to be given to an enactment or an
amendment, depending upon the scheme of
the enactment, the legislative intend to
bring the amendment. If a legislation
confers a benefit on some persons but
without
inflicting
a
corresponding
detriment on some other persons or on the
public generally, and where to confer such
benefit
appears
to
have
been
the
legislature's object, then the presumption
would be that such a legislation, giving it a
purposive construction, would warrant it to
be
given
a
retrospective
effect.
A
procedural provision has to be interpreted
keeping in mind of the above principle to
374 INDIAN LAW REPORTS ALLAHABAD SERIES
give it retrospectivity, to apply on the
pending applications.

18.
In
rejoinder,
learned
Senior
Counsels for the petitioners would submit
that the answer to the issue pertaining to
impossibility of action on the part of the
Collector after amendment, as agitated by
Sri Ashok Khare learned Senior Counsel
for the elected Pramukh, lies in the
provision of the Section 6 of the General
Clauses Act, which saves the right of the
elected members to carry out the NoConfidence Motion moved by them prior to
the
amendment.
The
doctrine
of
impossibility cannot be invoked in the facts
and circumstances of the case, in as much
as, the elected members have right to
effectuate the motion. Reference has been
made to the decision of the Apex Court in
N. T. Devin Katti vs. Karnataka Public
Service Commission17 to draw an analogy
that a person who has applied for selection
against the post has a vested right to be
considered for selection in accordance with
the existing rule or order applicable on the
date of the application. He cannot be
deprived of the limited right of being
considered for selection in accordance with
the rules as they existed on the date of
advertisement, on the amendment of the
rules during the pendency of the selection
unless the amended rules are retrospective
in nature.

19. Learned counsels for the Staterespondents adding to their submissions, as
noted above hereinabove, relied upon the
decisions of the Apex Court in Ajay
Makan Vs. Adesh Kumar Gupta18,
Shilpa Mittal Vs. NET Delhi19 to place
the principles of interpretation of statute, to
assert
that
for
giving
purposive
interpretation, it has to be kept in mind that
interpretation is best which makes the
textual interpretation match the contextual.
Reference has also placed to the decision of
the Apex Court in P. Suseela and others
Vs. University Grants Commission and
others20 to narrate the distinction between
an 'existing right' and the 'vested right' and
the circumstances in which such rights can
be
asserted
in
case
of
amendment/substitution of the existing
provisions.

20. Having heard learned counsel for
the parties and perused the record.

21. To deal with the rival arguments of
the learned counsel for the parties, we are
required to understand the legislative
scheme, the set up in which Section 15 has
been put in place in the Act' 1961.

22. With the introduction of Article
243 to 243-O, by the Constitution 73rd
Amendment Act' 1992 w.e.f. 24.04.1993,
the word "Panchayat" has been defined in
Article 243 (d) to mean an institution (by
whatever name called) of self government
constituted under Article 243-B for the
rural areas. As per Article 243-B, the
Panchayats are constituted in every State, at
the village level, intermediate and district
level in accordance with the provisions of
Part IX of the Constitution of India. Prior to
the Constitution (73rd Amendment) Act'
1992, the constitutional provisions relating
to Panchayat were confined to Article 40,
in the Directive principles of State policy.

23. The introduction of Article 243 to
243-O provided for self governance in the
pyramidical
structure
of
local
self
government. Under the 73rd Amendment of
the Constitution, Panchayat became an
`institution of self governance' which was
previously a mere unit under Article 40.
Decentralization is perceived as a pre-
3 All. Anuj Kumar & Anr. Vs. State of U.P. & Ors.
375
condition for preservation of the basic
values of a free society. The 73rd
amendment has been termed as a very
powerful `tool of social engineering' which
has unleashed tremendous potential of
social transformation to bring about a seachange in the age-old, oppressive, anti
human
tradition
of
Indian
society.
(Reference Bhanumati Vs. State of U.P. &
others21). It was observed by the Apex
Court in paragraph No.26 therein as under:-

"26.In
other
representative
democracies of the world committed to a
written Constitution and rule of law, the
principles of self Government are also part
of the Constitutional doctrine. It has been
accepted in the American Constitution that
the right to local self- Government is
treated as inherent in cities and towns. Such
rights cannot be taken away even by
legislature. The following excerpts from
American
Jurisprudence
are
very
instructive:-

"Stated differently, it has been
laid down as a binding principle of law in
these jurisdictions that a statute which
attempts to take away from a municipal
corporation its power of self-Government,
except as to matters which are of concern
to the State as a whole, is in excess of the
power
of
the
legislature
and
is
consequently void. Under this theory, the
principle of home rule, or the right of selfGovernment as to local affairs, is deemed
to have existed before the constitution."

24. The democratically organized unit
have been conferred power of governance
and the purpose as envisioned is to instill a
sense of satisfaction in the people at the
grass root level. With this idea of
decentralization of power, giving it at the
hands of the people at the grassroot level,
the Constitution requires the State to make
law
providing
for
structure
of
the
Panchayat, the concept of Gram Sabha, the
composition of Panchayats, reservation of
seats, term of Panchyats, disqualification
for membership, powers, authority and
responsibility
of
Panchayats
and
conferment of power to impose taxes,
duties, toll and fees, election to the
Panchayats and creation of bar for courts to
interfere in electoral matter, under Article
243 to 243-O.

25. The Act' 1961 was enacted for
establishment of Kshettra Panchayat and
Zila Panchayat in the districts of U.P. to
undertake certain government function at
Kshettra and district level, respectively in
furtherance of the principle of democratic
decentralization of government function
and
for
ensuring,
proper
Municipal
Government in rural areas, and to correlate
the powers and functions of Gram Sabhas
under the U.P. Panchayat Raj Act' 1947,
with
Kshettra
Panchayats
and
Zila
Panchayats.
The
Act
provides
for
constitution and incorporation of Kshettra
Panchayats, Composition, election to the
office of Pramukhs, tenure of Pramukh,
disqualifications
for
membership
of
Kshettra Panchayat and the method for
motion of No-Confidence. The term of the
office of Pramukh of Kshettra Panchayat
which shall commence upon his election,
shall extend upto the term of the Kshettra
Panchayat (as per Section 9) which shall be
for five years from the date appointed for
the first meeting of Kshettra Panchayat.
The elected Pramukh, thus, retains his
office until the expiry of the term of the
Kshettra
Panchayat,
subject
to
disqualifications and a motion of NoConfidence.

26. Section 15(1) confers a right on
the members of the Kshettra Panchayat to
376 INDIAN LAW REPORTS ALLAHABAD SERIES
bring a motion expressing want of
confidence in the Pramukh. The motion so
made is to be proceeded in accordance with
the procedure laid down in sub-sections (2)
to (13) of Section 15. The provisions of
sub-sections (2) to (13) as is evident are
procedural in nature, as they provide the
manner in which the motion of NoConfidence
brought
by
the
elected
members would be received by the
Collector and shall be carried out. The Full
Bench of this Court in Vikas Trivedi Vs
State of U.P. others 2013 (8) ADJ 523
(FB); 2013 SCC Online Alld 14264 has
held that Section 15 of the 1961' Act is a
statutory provision recognizing the right of
an elected members to bring the motion of
No-Confidence against the Pramukh. The
Collector is entrusted with public duty to
issue notice.

27. A Division Bench of this Court in
Radhey Shyam Maurya Vs. State of
U.P.22 decided on 01.05.2012 while
considering the legislative aspect of the
motion of No-Confidence under Section 15
of the 1961' Act, has held that no ground
has to be disclosed while moving the
motion. It was held that the right to motion
or to participate in the debate is a statutory
right in the members, conferred by Section
15 of the Act. The legislature to its wisdom
has conferred power on the members of the
Kshettra Panchayats to move requisition in
the prescribed format for motion of NoConfidence. The elected representative are
accountable
to
their
electorate
and
electorate chose their members as well as
Pramukh. It is the right of the elected
representatives to show their lack of
confidence by moving motion of NoConfidence
in
accordance
with
the
statutory provisions. This is inherent
philosophy in the policy of the motion of
No Confidence. Election for five years does
not mean that the elected representative has
got blanket power to move on his/her own
way without taking care of public interest.
Persons holding public office as a leader of
elected body are elected to discharge public
obligation and can continue till the
confidence reposed in them by the people.

28. The Full Bench in Vikas Trivedi
(supra)
having
noted
the
above
observations of the Division Bench has put
a note of caution that all provisions of the
statute are required to be complied with and
there is no discretion in the authorities and
they are not free to disregard the provisions
of statute to carry out No-Confidence
motion at their whims. The question before
the Full Bench was, however, with regard
to the mandatory or directory nature of the
prescribed procedure, the requirement of
giving notice by the Collector under
Section 15(3) (ii) in the prescribed form as
required by the rule.

29. The above noted observations
about the import of Section 15 of the 1961'
Act, are relevant to understand that the
provisions of Section 15 are procedural
provisions and the right to carry out a
motion of No-Confidence brought by the
elected members against the Pramukh of
Kshettra Panchayat has to be, exercised
within the framework of the statute. The
statutory provisions are to be followed
strictly.

30. We may further note that while
sub-section (1) of Section 15 confers
statutory right upon the elected members of
Kshettra Panchayat to bring a motion
expressing want of confidence in the
Pramukh of a Kshettra Panchayat, the said
right is curtailed by sub-section (13) of
Section 15 itself which provides a caveat
that no notice of motion under Section 15
3 All. Anuj Kumar & Anr. Vs. State of U.P. & Ors.
377
shall be received within the time prescribed
therein of the assumption of office by the
Pramukh. This time period prescribed in
sub-section (13), which was 'one year' has
been substituted by Ordinance No.8 of
2022 w.e.f. 4.10.2022 to 'two years' of the
assumption of office by a Pramukh. The
Collector concerned is, thus, prohibited
from receiving a motion expressing want of
confidence in a Pramukh of Kshettra
Panchayat within 'two years' of his
assumption of office since the date of
enforcement of the amendment which is
04.10.2022.

31. The dispute is that whether the
substitution of words "two years" in place
of "one year' would operate prospectively
or retrospectively. The argument of learned
counsels for the petitioners is that once the
motion of No Confidence has been
received by the Collector, having been
moved
by
the
elected
members
in
accordance with the provisions of subsection (1) & (2) of Section 15, there was
no option before the Collector but to
proceed, to carryout the motion, in
accordance with the provisions of subsection (5) to (11) of Section 15, as the date
fixed by the Collector, after scrutiny of the
written motion, to consider the motion of
No-Confidence had been adjourned and the
amendments were brought in between. The
submission is that with the moving of the
motion of No-Confidence, the elected
members have exercised their right to vote
in the meeting to be convened by the
Collector in accordance with the procedure
prescribed in the Section 15. With the right
exercised by the elected members created a
further right in favour of them which is a
"vested right" or "right accrued/acquired".
The effect of repeal without any saving
clause of the existing provisions, would
imply the application of the substituted
provisions
as
prospective.
With
the
substitution of the old provisions, the
normal rule is to give prospective effect to
the new provisions and the retrospectivity,
by implication is an exception. There is
presumption against implied retrospectivity,
with the effect of repeal, the 'accrued right'
would survive by virtue of Section 6 of the
General Clauses Act, unless they are taken
away expressly. We are, thus, required to
consider the effect of the right exercised by
the petitioner/elected members, which is a
statutory right, by bringing the motion of
No-Confidence, before the Collector in the
prescribed format.

32. Having noted above that the
provisions of Section 15 are based on
democratic principles, in order to preserve
the rule of self-governance at the grassroot
level, and that they are procedural in
nature, we are first required to consider the
principles of application of procedural
amendments.

33. It is fundamental rule that no
statute shall be construed so as to have a
retrospective operation, unless its language
is such as plainly to require such a
construction. A statute is not to be
construed so as to have a greater
retrospective operation than its language
renders necessary. Generally, there is strong
presumption that a legislature does not
intent to impose a new liability in respect
of something that has already happened,
because
generally
it
would
not
be
reasonable for a legislature to do that. But
this presumption may be overcome not
only by express words in the Act but also
by circumstances sufficiently strong to
displace it.

34. The principle applied by the Court
in construing legislation as expressed in
378 INDIAN LAW REPORTS ALLAHABAD SERIES
Craies on Legislation 9th Edition is that
retrospective application is to be rebuttably
presumed
not
to
be
intended,
that
retrospectivity should be avoided except
where necessary. However, this rule both
fundamentally and in a straightforward
manner cannot be applied as a number of
difficulties arise in determining its precise
extent and how to apply it. One of such is
in determining whether a statute is
retrospective concerns the possibility of
action under a statute which has effect not
only for the future but is brought about in
part by reference to past events i.e. future
action in relation to past events. A further
necessary distinction is that retrospective
operation is one matter, interference with
existing rights is another. As noted in the
Craise on Legislation 9th Edition at
placitum 10.3.7 in Chapter 10:-

"Distinction
between
retrospectivity and affecting existing
rights

A further necessary distinction
between what is and is not retrospectivity is
illustrated in the following passage of the
judgment of Buckley L.J. In West v
Gwynne

Retrospective operation is one
matter. Interference with existing rights is
another. If an Act provides that as at a
past date the law shall be taken to have
been that which it was not, that Act I
understand to be retrospective. That is not
this case...... As a matter of principle an
Act
of
Parliament
is
not
without
sufficient
reason
taken
to
be
retrospective. There is, so to speak, a
presumption that it speaks only as to the
future. But there is no like presumption
that an Act is not intended to interfere
with existing rights. Most Acts of
Parliament, in fact, do interfere with
existing rights."

35. However this rigid rule against
retrospectivity does not apply in relation to
procedural provisions. There is distinction
between
procedural
and
substantive
provisions for the purpose of application of
rule relating to retrospectivity. As noted in
'Craise at placitum 10.3.9 at page No.436,'
the nature of exception and its justification
are clearly encapsulated in the passage
from the speech of Lord Brightman in
noted in Craise on Legislation (9th
Edition):-

"Apart from the provisions of the
interpretation statutes, there is at common
law a prima facie rule of construction that a
statute
should
not
be
interpreted
retrospectively so as to impair an existing
rights or obligation unless that result is
unavoidable on the language used. A statute
is retrospective if it takes away or impairs a
vested right acquired under existing laws,
or creates a new obligation, or imposes a
new duty, or attaches a new disability, in
regard to events already past.