# others. 2. 1998 (89) R.D. page 578 Santosh Kumar and others v. U.P. Sanchalak Chakbandi, Faizabad & others

- **Citation:** (2006) 1 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-13
- **Case number:** Judgment dated 28.9.1999 passed in writ petition No.26527 of 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/others-2-1998-89-r-d-page-578-santosh-kumar-and-others-v-u-p-sanchalak-40642
- **Pages:** 19

## Headnote

Sri Yogesh Kumar Saxena
Sri B.D. Mandhyan
Sri P.K. Mishra
Sri Aditya Narain
Sri Anil Kumar
Sri Satish Mandhyan
Sri Chandra Shekhar Singh
S.C.

U.P.
Kshetriya
Punchayat
and
Zila
Panchayat Adhiniyam 1961, U.P. Act no.
13g
1961-Section
27-A(1)
(4)
as
Amended by G.A. Amendment Act No. 9
of 1994 where the provision of section
27-A (1) (6) are ultra vires of the
constitution ? Held -'No'-neither it is
violation of fundamental right of part 9
of the constitution- the provisions of
section
27-A
(1)
being
enacted
in
exercise of power given state-by nature
of act 245 and 246 of the constitutionhence the petitioner who was adhyaksha
of
zila
Parishad-subsequently
being
elected as M.L.A. has no power to held
the
office
of
Adhyakasha
of
Zila
Parishad.

Held Para 40 and 41

It is well settled that when vires of an
enactment
is
challenged
the
every
attempt should be made to interpret
various provisions by putting a liberal
construction upon a relevant legislative
entry and effort should be made to
extend the meaning of the relevant
words to their reasonable connotation to
preserve the power of legislature. In the
circumstances, we come to a conclusion
that the legislature has the power to
legislate and provisions of section 27-A
(1) (b) of the U.P. Kshetriya Panchayat
and Zila Panchayats Adhinium is not in
any way violative of any fundamental
rights. The member are governed by
various provision of stature. The maxim
'expressio unisest exclusio alterius' is
not applicable to the facts of the present
case. The language of the statute is
plain, simple and meaning is very clear.
The enactment of section 27- A (1) (b) of
the Act is not ultra vires of the
Constitution. We are of the view that the
provisions of the Act are consistent with
policy and object of the Constitution. Any
other interpretation will only amount to
shifting the State legislature from its
power to legislate.

For the reasons already discussed, we
hold that Section 27- A (1)(b) is not ultra
viures
of
the
Constitution.
It
is
enactment and cannot be struck down
.The enactment is neither violative of the
fundamental rights or part IX of the
Constitution, we hold that the provisions
of Section 27-A (1)(b) is enacted in
exercise of power given to the State by
virtue of Articles 245 and 246 read with
Entry 5 List II as well as Article 243-C
(3) of the Constitution of India. The
petitioner has no rights to hold the office
of the Adhyaksh of Zila Panchayat after
his election to the office, as a M.L.A.
after
the
result
was
declared
and
published in the official gazette.
Case law discussed:
AIR 1990 SC -1747
2001 (G) SCC - 558
2001 (3) SCC 359
2004 (0) SCC 391
2003 (A) SCC 695
1999 (4) SCC 197
2003 (8) SCC 369
PIR 2001 SC 1098
PIR 1983 SC 299
AIR 1954 SC 686
PIR 1982 SC 983
1997 (2) UPLBEC 918
JJ 2003 (A) SC-35
PIR 1975 SC 2299
AIR 1954 SC 314
AIR 1961 SC 21
AIR 1960 PANJ 341
AIR 1942 FC 72
AIR 1950 SC 27
AIR 1951 SC 318
1992 (Supp.)(2) SCC 651
1995 (Supp.) (2) SCC 197
AIR 1999 SC 826
AIR 1954 SC 210
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

## Text

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216 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
to the Deputy Director of Consolidation
to proceed to hear the parties on merits in
the event of Condonation of delay on the
same day or thereafter."

41. None of the counsel are in a
position to inform whether, the Revision
no.707 and 812 are still pending or not
before
the
Deputy
Director
of
Consolidation. Since the matter is old one
and contesting party respondent no.2 is a
widowed lady, we direct the respondent
no.1 to hear and decide the revisions, if
not already decided, within a period of
two months from the date of production
of certified copy of this order.

42.

We
decide
Question-A.
"Whether
the
Deputy
Director
of
Consolidation can exercise revisional
jurisdiction under section 48 against the
appealable
order
passed
by
the
Consolidation Officer where no appeal
has been filed?" -- Answer in affirmative.

C. Deputy
Director
of
Consolidation can exercise revisional
jurisdiction under section 48 in respect to
an appealable order passed by the
Consolidation officer where no appeal has
been filed. We decide the question - B.
Whether the decisions of learned Single
Judges in:-

1.
1995 R.D. Page 534 Damodar
Prasad vs. Deputy Director of
Consolidation,
Allahabad
and
others.
2.
1998 (89) R.D. page 578 Santosh
Kumar
and
others
vs.
U.P.
Sanchalak Chakbandi, Faizabad &
others.
3.
1999 (90) R.D. page 363 Ranjeet
and others vs. Deputy Director of
Consolidation Balia and others.
4.
2000 R.D. page 608 Hari Har Ram
vs.
Deputy
Director
of
Consolidation Ballia and others.
5.
Judgment dated 28.9.1999 passed
in writ petition No.26527 of 1999
Rama Shanker Singh and others
vs.
Deputy
Director
of
Consolidation,
Varanasi
and
another.
lays down correct law or the view
taken by the learned Single Judge in
following cases lay down the correct
law?" --- Answer no.

43. Decisions of Learned Single
Judges in the cases of Damodar Prasad
(supra), Santosh Kumar and others
(supra), Ranjeet and others (supra), Hari
Har Ram (supra) and Rama Shanker
Singh and others (supra) do not lay
down correct law and hereby overruled.
The correct law is as expounded by
Learned Single Judges in the case of Ram
Das (supra) and Ram Saran (supra).

The writ petition is hereby dismissed.
No order as to costs. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2006

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE POONAM SRIVASTAVA, J.

Civil Misc. Writ Petition No. 14451 Of
2002

Hari Om Yadav

...Petitioner
Versus
State of U.P. through its Chief Secretary,
Sachivalaya Lucknow
...Respondent

Counsel for the Petitioner:
Sri S.P. Gupta
Sri Yashwant Varma
1 All] Hari Om Yadav V. State of U.P.
217
Counsel for the Respondent:
Sri Yogesh Kumar Saxena
Sri B.D. Mandhyan
Sri P.K. Mishra
Sri Aditya Narain
Sri Anil Kumar
Sri Satish Mandhyan
Sri Chandra Shekhar Singh
S.C.

U.P.
Kshetriya
Punchayat
and
Zila
Panchayat Adhiniyam 1961, U.P. Act no.
13g
1961-Section
27-A(1)
(4)
as
Amended by G.A. Amendment Act No. 9
of 1994 where the provision of section
27-A (1) (6) are ultra vires of the
constitution ? Held -'No'-neither it is
violation of fundamental right of part 9
of the constitution- the provisions of
section
27-A
(1)
being
enacted
in
exercise of power given state-by nature
of act 245 and 246 of the constitutionhence the petitioner who was adhyaksha
of
zila
Parishad-subsequently
being
elected as M.L.A. has no power to held
the
office
of
Adhyakasha
of
Zila
Parishad.

Held Para 40 and 41

It is well settled that when vires of an
enactment
is
challenged
the
every
attempt should be made to interpret
various provisions by putting a liberal
construction upon a relevant legislative
entry and effort should be made to
extend the meaning of the relevant
words to their reasonable connotation to
preserve the power of legislature. In the
circumstances, we come to a conclusion
that the legislature has the power to
legislate and provisions of section 27-A
(1) (b) of the U.P. Kshetriya Panchayat
and Zila Panchayats Adhinium is not in
any way violative of any fundamental
rights. The member are governed by
various provision of stature. The maxim
'expressio unisest exclusio alterius' is
not applicable to the facts of the present
case. The language of the statute is
plain, simple and meaning is very clear.
The enactment of section 27- A (1) (b) of
the Act is not ultra vires of the
Constitution. We are of the view that the
provisions of the Act are consistent with
policy and object of the Constitution. Any
other interpretation will only amount to
shifting the State legislature from its
power to legislate.

For the reasons already discussed, we
hold that Section 27- A (1)(b) is not ultra
viures
of
the
Constitution.
It
is
enactment and cannot be struck down
.The enactment is neither violative of the
fundamental rights or part IX of the
Constitution, we hold that the provisions
of Section 27-A (1)(b) is enacted in
exercise of power given to the State by
virtue of Articles 245 and 246 read with
Entry 5 List II as well as Article 243-C
(3) of the Constitution of India. The
petitioner has no rights to hold the office
of the Adhyaksh of Zila Panchayat after
his election to the office, as a M.L.A.
after
the
result
was
declared
and
published in the official gazette.
Case law discussed:
AIR 1990 SC -1747
2001 (G) SCC - 558
2001 (3) SCC 359
2004 (0) SCC 391
2003 (A) SCC 695
1999 (4) SCC 197
2003 (8) SCC 369
PIR 2001 SC 1098
PIR 1983 SC 299
AIR 1954 SC 686
PIR 1982 SC 983
1997 (2) UPLBEC 918
JJ 2003 (A) SC-35
PIR 1975 SC 2299
AIR 1954 SC 314
AIR 1961 SC 21
AIR 1960 PANJ 341
AIR 1942 FC 72
AIR 1950 SC 27
AIR 1951 SC 318
1992 (Supp.)(2) SCC 651
1995 (Supp.) (2) SCC 197
AIR 1999 SC 826
AIR 1954 SC 210
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(Delivered by Hon'ble S.Rafat Alam, J.)

1. In the instant petition sole
petitioner
has
challenged
the
constitutional validity of Section 27-A of
the U.P. Kshetriya Panchayats and Zila
Panchayats Adhiniyam, 1961 U.P. Act
No. 53 of 1961 (hereinafter referred to as
'1961 Act'), which imposes bar on
legislatures and holders of certain offices
becoming and continuing as Pramukh, Up
Pramukh, Adhyaksh and Upadhyaksh.

2. Heard Shri S.P. Gupta, Senior
Advocate, assisted by Mr. Yashwant
Verma, learned counsel for the petitioner,
Shri Chandra Shekhar Singh, learned
Standing Counsel appearing for the State,
Shri
P.K.
Mishra,
learned
counsel
appearing
for
the
State
Election
Commission, Shri B.D. Madhyan, learned
Senior Advocate assisted by Shri Satish
Madhyan,
learned
Senior
Counsel
appearing for Shri Brijendra Singh son of
Ram Bharosey Lal, newly impleaded
respondent, who has filed Impleadment
application as he is elected member from
ward
No.
22
of
Zila
Panchayat,
Firozabad. He has staked his claim to the
office of Adhyaksh, which has become
vacant on account of previous Adhyaksh
namely, Hari Om Yadav, petitioner
having been elected as Member of
Legislative
Assembly,
(hereinafter
referred to as 'M.L.A.').

3. Counter and rejoinder affidavits
have been exchanged. As the parties have
agreed that the writ petition may be
decided finally, we have proceeded to
hear counsel for the respective parties to
decide the case finally.

4. The facts, giving rise to the
instant dispute, are that on 19.5.2000 the
petitioner was elected as a member of Zila
Panchayat, Firozabad. Thereafter on 6th
August,
2000
he
was
elected
as
Adhyaksh, Zila Panchayat, Firozabad.
The petitioner while still in office of
Adhyaksh contested the election for the
membership of 14th Legislative Assembly
of
U.P.
from
the
constituency
of
Shikohabad. The elections were held in
February,2002 and he was elected on
24.2.2002. The result was published in the
Gazette of Uttar Pradesh. As a result of
election of the petitioner as a member of
14th legislative Assembly of Uttar Pradesh
by operation of law under Section 27-A
(1) (b) of 1961 Act a casual vacancy
occurred in the office of Pramukh of Zila
Panchayat at Firozabad. This has given
rise to the present writ petition assailing
the constitutional validity of Section 27-A
by the petitioner on the ground that it is
unconstitutional, being in conflict with the
scheme of Part IX of the Constitution of
India. The petitioner besides seeking
declaration of Section 27-A of 1961 Act
as unconstitutional and inoperative after
enforcement of Part IX of the Constitution
of India has further prayed for mandamus
restraining
the
respondents
from
enforcing the provision of Section 27-A
of 1961 Act in respect of the petitioner.

5. A Division Bench of this Court
had passed an interim order on 30th April,
2000 directing that the casual vacancy in
the office of Adhyaksh that may have
occurred due to election of the petitioner
to the legislative Assembly shall not be
filled up.

6. The argument on behalf of the
petitioner is that the institutions like Zila
Panchayats are local Self Government at
the village level. There are other similar
institutions at the intermediate and district
1 All] Hari Om Yadav V. State of U.P.
219
level such as municipalities including
municipal
corporations.
The
main
emphasis of the arguments of the
petitioner is that after the insertion and
enforcement of Part IX of the Constitution
of India by virtue of the Seventy Third
Amendment
Act
of
1992,
these
institutions became Self Government.

7. The argument advanced by Shri
S.P. Gupta, learned Senior Counsel for
the petitioner is that the institutions such
as
Panchayats
at
village
level,
intermediate level, district level and
municipalities
including
municipal
corporation became permanent features of
governance by insertion of Par IX and IXA of the Constition, Severnty Third
Amendment, 1992. These institutions
were
previously
creatures
of
State
Legislation. On number of occasions,
their existence depended on the discretion
of the State Government to supersede or
dissolve them but later by making
provisions
regarding
Constitution,
composition, powers and functions of
these bodies; after the insertion of Part IX
and IX-A of the Constitution, the position
stands altered. After Seventy Third
Amendment
their
existence
and
continuance
are
now
matters
of
governance under the Constitution. These
local self-bodies are now constitutional
bodies
in
fulfillment
of
directive
principles
of
Article
40
of
the
Constitution of India. These constituents
at the local level now constitute third tier
of a government. It has been submitted
that the Chairperson of Panchayat is
constitutional
and
is
an
essential
component of the Panchayat. He has tried
to draw a parlance between Adhyaksh of
Panchayat to that of the Speaker or
Deputy Speaker of the Parliament of the
State Legislature.

8. Shri S.P. Gupta, learned Senior
Counsel has argued that Article 243 (C )
(iv) provides that the Chairperson and
members of Panchayat, whether or not
chosen by direct election, shall have a
right to vote in the meeting of the
Panchayat.
Similarly,
under
the
constitutional scheme the membership of
M.L.A., whether has a right to vote, is not
inconsistent with the composition of the
Panchayat.
Thus,
the
necessary
conclusion is that the Constitutionalone
prescribes qualification for eligibility of
Chairperson of Panchayat at intermediate
level and district level, as laid down by
the Constitution, and the requirement is
that he or she should be a member of
Panchayat. The disqualification is laid
down in Article 243 (F), but this is in
regard to a member of a Panchayat but no
such disqualification is prescribed by the
Constitution for the Chairperson. It is,
therefore, submitted that Adhayaksh,
being a constitutional component of the
Pancayat, the State enactment cannot take
away the right of the petitioner from
continuing as such. It has further been
argued that whenever the intention of the
Constitution is that a person, who happens
to hold more than one office should
discontinue in one, then there is a specific
provision creating a clear bar in the
Constitution.

9. Shri S.P. Gupta, learned Senior
Advocate after referring to Article 59 of
the Constitution of India further urged if
the intention of the Constitution was that
a
person
elected
as
Adhyaksh
of
Panchayat shall not continue to hold two
offices
simultaneously
then
the
Constitution should have specifically
mentioned as it is provided in Article 59,
which restricts the president to continue
as a member of two houses, which is not
220 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
provided
in
Chapter IX. Argument
proceeds that there is no such bar in the
Constitution to hold the office of M.L.A.
and a member of Zila Panchayat and,
therefore, by enactment, debarring an
Adhyaksh to continue in his office, a
M.L.A., is contrary to the scheme
provided in Par IX and IX-A of the
Constitution. The enactment requiring the
Chairperson not to continue in the office
of Adhyaksh should be held to be
unconstitutional
and
the
restriction
imposed by the State Legislature on the
basis of Section 27-A(1)(b) of the 1961
Act, being inconsistent with the scheme
of the Constitution, is invalid and ultra
vires to the provisions of the Constitution.

10. Lastly, it has been argued by the
learned counsel that it is necessary to
examine the provisions of Section 27-A
(1) (b) from another angle. The principle
of interpretation of statute is that if a
provision is not made in the statute, which
may have been otherwise made, it should
be construed that the intention is that the
said provision is not contemplated in that
statute. To highlight his arguments
reliance has been placed on the following
decisions of the Hon'ble Apex Court in
the cases of: -

1.
Gwalior Rayons Silk Mfg. (Wvg.) Co.
Ltd. vs. Custodian of Vested Forests,
Palghat and another, AIR 1990 SC
1747; and
2.
Vijayalakshmamma and another vs.
B.T. Shanker, (2001) 4 SCC 558

11. The petitioner further urged that
consequent upon the enforcement of the
provisions of Part IX of the Constitution
further changes were made. The Zila
Parishad
was
substituted
by
Zila
Panchayat and the new Act was called
U.P. Kshetriaya Panchayats and Zila
Parishad Adhiniyam, 1961. On the advent
of Part IX of the Constitution many other
changes in the old Zila Parishad were
made by the U.P. Panchayat Laws
(Amendment Act, 1994). On the basis of
the aforesaid arguments learned counsel
for the petitioner has concluded that no
law can be made by legislature laying
down disqualification of a chairperson by
the State enactment, as has been done in
the instant case, since Part IX is silent
regarding disqualification of a person to
continue as adhyaksh Zila Panchayat
subsequent to his being elected as an
M.L.A. OR M.P.

12. In support of the aforesaid
submission
learned
Senior
Counsel
appearing for the petitioner relied upon
the following judgments of the Hon'ble
Apex Court in the cases of:-

1.
Oxford University Press vs. C.I.T.,
(2001) 3 SCC 359 (paragraphs 46
and 49);
2.
Krishi Utpadan Mandi Samiti and
others vs. Pilibhit Pant nagar Berj
Limited and another, (2004) 1 SCC
391 (paragraph 24) ;
3.
Union of India vs. Shiv Dayal Soin
and Sons (P) Limited and others,
(2003) 4 SCC 695; and
4.
Orissa
State
Ware
Housing
Corporation vs. C.I.T., (1999) 4 SCC
197 (para 17).

13. He further, referring to the
judgments of the Hon'ble Apex Court in
above
cases,
urged
that since
the
Constitution is silent in respect of any
restriction for holding the dual office of
Adhyaksh Zila Panchayat and Member of
Legislative
Assembly,
it
should be
construed that as a member of Zila
1 All] Hari Om Yadav V. State of U.P.
221
Panchayat the petitioner does not cease to
continue as a member after he is elected
as an M.L.A. or M.P. Similarly since
Constitution is silent regarding Adhyaksh
as well, the State legislature cannot
impose a restriction not contemplated by
the Constitution. Therefore, the provisions
of Section 27-A (b) of the Act is in direct
conflict and is inconsistent with the
Constitution of India and is liable to be
struck down. It is also submitted that
besides the impugned provisions of the
Act being unconstitutional, the same is
arbitrary, undemocratic and leaves the
elected Adhyaksh of Zila Panchayat
without any choice after he is elected as
Member of legislative Assembly.

14. Shri Chandra Shekhar Singh,
learned Standing Counsel has filed a
detailed counter affidavit and refuted each
and every argument of Shri S.P. Gupta.
The submission of the learned Standing
Counsel is that Article 245 of the
Constitution
specifically
clothes
the
legislature of the State to legislate subject
to the provisions of the Constitution and
similarly Article 246 deals with the
distribution of the legislative powers
between
the
Union
and
the
State
Legislature with the reference to the
different
list
in
Seventh
Schedule.
Learned Standing Counsel in support of
his submission also refers and relies to the
following judgments of the Hon'ble Apex
Court as well as this Court:-
1.
Javed and others vs. State of
Haryana and others, (2003) 8 SCC
369 ;
2.
Anukjul Chandra Pradhan vs. Union
of India, AIR 1999 SC 2814
3.
State of Punjab vs. Bhajan Singh,
AIR 2001 SC 1098 ;
4.
Mahendra Kumar Shastri vs. Union
of India, AIR 1983 SC 299;
5.
J. Prasad vs. Mukhaiya, AIR 1954
SC 686;
6.
N.P. Ponnuswami vs. Returning
officer namkhal Constituency, AIR
1952 SC 64 ;
7.
Jyoti Basu vs. Debi Ghosal, AIR
1982 SC 983; and
8.
State of U.P. vs. C.O.D., Cheoki,
(1997) 2 UPLBEC 793 (SC);
9.
Buddhan Chowdhary vs. State of
Bihar, 1955 SC 191;
10. Bar Council of U.P. vs. State of
U.P.,1973 SC 231;
11. Abdul Quayyum vs. State of U.P.,
(1998) 2 UPLBEC 918;
12. State of U.P. and others vs. Pradhan
Kshettra Samiti and others, 1995 (2)
UPLBEC 874; and
13. Bipin Chandra Purshottam Das
Patel vs. State of Gujrat and others;
JT 2003(4) SC 35.

15. Contention of the Staterespondent
is
that
subject
to
the
provisions of this Constitution the object
of Articles 245 and 246 is only to
distribute the legislative powers and not to
exempt them from any of the limitations,
which are imposed by the other provisions
of the Constitution upon legislative
powers, though each legislature in India
has plenary powers, both Union and State
Legislature have their powers but the
same is limited by (a) the fundamental
rights guaranteed by the Constitution(b).
The limitation imposed by the entries in
the legislative list in the 7th Schedule as to
the subject matter on which state
legislature
may
legislate;(c)
other
mandatory provision of the Constitution,
which expressly imposes limitation upon
the powers of legislature such as Article
286, 301 303 of the Constitution. Learned
standing Counsel emphasized that the
powers to legislate cannot be fettered by
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
anything outside the purview of the
Constitution. Articles 243-c do not
provide any restriction on the legislative
powers of the State legislature. On plain
reading of two provisions of Article 243C and 245, it is clear that it cannot be read
that the intention of the Constitution was
to impose any limitation on the legislative
powers of the State. The phrase 'subject
to the provisions of this Constitution .....;
cannot be read while interpreting Article
243-C as if it imposes a limitation on the
legislative powers of the state, which is
otherwise available by virtue of Article
245, 246 read with entry 5 list II. It is
correct that entry 5 list II empowers the
State legislature to legislate with respect
to
any
subject
relating
to
local
government including the Constitution of
such local authority. The constitution of
Panchayat, as provided in Article 243-B,
and composition of Panchayat in Article
243-C does not limit the powers of State
legislature. In fact, it includes the
ancillary
powers
for
the
election,
nomination and other matters including
disqualification for holding the post of
Chairperson of a local authority as well as
the
settlement
of
dispute
arising
therefrom. The legislative powers of the
State has not been curtailed by Chapter IX
of the Constitution. In fact by introducing
73rd Amendment it was to give effect to
the idea, as intended in Article 40 of the
Constitution. Learned Standing Counsel
has placed reliance on a number of
decisions decided by the Hon'ble Apex
Court including Javed and others vs.
State of Haryana, (supra) on the basis of
the aforesaid decision it has been argued
by the learned Standing Counsel that the
purpose of Section 27-A (b) is that a
person should hold only one office so that
he can effectively discharge his duties and
may not be treated as mere status symbol.
Section 56 (2) & 58 of the Act prescribes
duty of Adhyaksh of Panchayat, which is
of such a nature, that it requires the
Adhyaksh to be constantly present and a
complete involvement in the affairs of the
Panchayat. Admittedly, if the Adhyaksh is
elected as a Member of Legislative
Assembly or Member of Parliament, he
will be burdened by double responsibility.
It is the bounded duty to look after the
welfare of his constituency and in the
circumstances, it would be next to
impossible to hold the dual charge.

16. Learned standing Counsel has
also emphasized that the Court should
draw the presumption that the legislature
was well within its competence in putting
an embargo on an elected Member of
Legislative Assembly to continue as
Adhyaksh Zila Parchayat. The court
should not give a restrictive meaning to
the provision of the Act under challenge.

17. Counter affidavit has also been
filed by Shri Satish Madhyan, Advocate
on behalf of newly impleaded respondent,
who is also a member of Panchayat and is
claimant for the post of Adhyaksh. As the
petitioner is liable to vacate the seat of
Adhyaksh after being elected M.L.A. He
has supported the arguments of the
learned Standing Counsel.

18.

We
have
given
careful
consideration to the arguments advanced
on both sides and gone through various
decisions cited on behalf of the petitioner
as well as on behalf of the State. Before
proceeding
to
discuss
the
rival
submissions made on behalf of the parties
it would be useful to have a close look to
the various provisions cited by the learned
counsel for the parties and which are
1 All] Hari Om Yadav V. State of U.P.
223
necessary for the consideration of the
issues raised by them.

19. In order to impart certainly,
continuity and strength to certain basic
and essential features of the Panchayat
Raj institution under 73rd Amendment of
the Constitution, Article 243 to 243-O
was enacted, which came into force on
24.4.1993, inserting Part IX of the
Constitution relating to Panchayat. Some
of the Articles relevant for the purposes of
present dispute, referred to by the learned
counsel for the parties, are reproduced
below : -
"243-B. constitution of Panchayats -
(1) There shall be constituted in every
State, Pnachayats at the village,
intermediate and district levels in
accordance with the provisions of
this par
(2) Notwithstanding anything in clause
(1), Panchayats at the intermediate
level may not be constituted in
accordance with law State having
population not exceeding twenty
lakhs.
243-C. Composition of Panchayats -
(1) Subject to the provisions of this Part,
the Legislature of a State may, by law,
make provisions with respect to the
composition of Panchayats;

Provided that the ration between the
population of the territorial area of a
Panchayat at any level and the number of
seats in such Panchayat to be filled by
election shall, so far as practicable, be
the same throughout the State.
(2) All the seats in a Panchayat shall be
filled by persons chosen by direct election
from territorial constituencies in the
Panchayat area and for this purpose,
each Panchayat area shall be divided into
territorial constituencies in such manner
that the ration between the population of
each constituency and the number of seats
allotted to it shall, so far as practicable,
be the same throughout the Panchayat
area.

(3) The Legislature of a State may, by
law, provide for the representation -
(a) of
the
Chairpersons
of
the
Panchayats at the village level, in the
Panchayats at the intermediate level, or
in the case of a State not having
Panchayats at the intermediate level, in
the Panchayats at the district level;
(b) of
the
Chairpersons
of
the
Panchayats at the intermediate level, in
the Panchayats at the district level;
(c) of the members of the House of the
People
and
the
Members
of
the
Legislative
Assembly
of
the
State
representing
constituencies
which
comprise wholly or partly a Panchayat
area at a level other that the village level,
in such Panchayat;
(d) of the members of the Council of
States and the Members of the Legislative
Council of the State, where they are
registered as electors within : -
(i) a Panchayat area at the intermediate
level, in Panchayat at the intermediate
level;
(ii) a Panchayat area at the district
level, in Panchayat at the district level.

(4) The Chairperson of a Panchayat and
other members of a Panchayat whether or
not chosen by district election from
territorial constituencies in the Panchayat
area shall have the right to vote in the
meetings of the Panchayats.

(5) The Chairperson of -

(a) A Panchayat at the village level
shall be elected in such manner as the
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Legislative of a State may, by law,
provide, and

(b) A Panchayat at the intermediate
level or district level shall be elected by,
and from amongst, the elected members
thereof."

"243-D. Reservation of seats. -
(1) Seats shall be reserved for -

(a) the Scheduled castes; and

(b) the Scheduled tribes,
in every Panchayat and the number of
seats so reserved shall bear, as nearly as
may be, the same proportion to election in
that Panchayat as the population of the
Scheduled Castes in that Panchayat area
or of the Scheduled Tribes in that
Panchayat area bears to the total
population of that area and seats may be
allotted
by
rotation
to
different
constituencies in a Panchayat.

(2) Not less than one-third of the total
number of seats reserved under clause (1)
shall be reserved for women belonging to
the Scheduled Castes or, as the case may
be, the Scheduled Tribes.

(3) Not less than one-third (including the
number of seats reserved for women
belonging to the Scheduled Castes and the
Scheduled Tribes) of the total number of
seats to be filled by direct election in
every Panchayat shall be reserved for
women and such seats may be allotted by
rotation to different constituencies in a
Panchayat.

(4) The offices of the Chairpersons in
the Panchayat at the village or any other
level shall be reserved for the Scheduled
Castes, the Scheduled Tribes and women
in such manner as the Legislature of a
State may, by law, provide.

Provided that the number of offices of
Chairpersons reserved for the Scheduled
Caste and the Scheduled Tribes in the
Panchayats at each level in any State
shall bear, as nearly as may be, the same
proportion to the total number of such
offices in the Panchayats at each level as
the population of the Scheduled Castes in
the State or of the Scheduled Tribes in the
State bears to the total population of the
State :

Provided further that not less than onethird of the total number of offices of
Chairpersons in the Panchayats at each
level shall be reserved for women :

Provided also that the number of offices
reserved under this clause shall be
allotted
by
rotation
to
different
Panchayats at each level.

(5) That reservation of seats under
clauses (1) and (2) and the reservation of
office of Chairpersons (other than the
reservation for women) under clause (4)
shall cease to have effect on the
expiration of the period specified in
Article 334.

(6) Nothing in this Part shall prevent the
Legislature of a State from making any
provision for reservation of seats in any
Panchayat or offices of Chairpersons in
the Panchayats at any level in favour of
backward class of citizens."

"243-F.
Disqualifications
for
membership (1)
A person shall be
disqualified for being chosen as, and for
being, a member of a Panchayat -

(a) if he is so disqualified by or
under any law for the time being in force
for the purposes of elections of the
Legislature of the State concerned
1 All] Hari Om Yadav V. State of U.P.
225
Provided that no persons shall be
disqualified on the ground that he is less
than twenty-five years of age, if he has
attained the age of twenty-one years;

(b) if he is so disqualified by or
under any law made by the Legislature of
the State.

(2) Subject to the provisions of any law
made by the Legislature of a State, the
conditions of service and tenure of office
of the State Election Commissioner shall
be such as the Governor may by rule
determine;

(3) The Governor of a State shall, when
so requested by the State Election
Commission, make available to the State
Election Commission such staff as may be
necessary for the discharge of the
functions conferred on the State Election
Commission by clause (1) ;
(4) Subject to the provisions of this
Constitution, the Legislature of a State
may, by law, make provision with respect
to all matters relating to, or in connection
with, elections to the Panchayats."

"245.
(1) Subject to the provisions of
this Constitution, Parliament may make
laws for the whole or any part of the
territory of India, and the Legislature of a
State may make laws for the whole or any
part of the State.

(2) No law made by Parliament shall be
deemed to be invalid on the ground that it
would have extra-territorial operation.

246. (1) Notwithstanding
anything
in
clauses (2) and (3) parliament has
exclusive power to make laws with respect
to any of the matters enumerated in List I
in
the
Seventh
Schedule
(in
this
Constitution referred to as the "Union of
India").

(2) Notwithstanding any thing in clause
(3), Parliament, and subject to clause (1),
the Legislature of any State ...... also,
have power to make laws with respect to
any of the matters enumerated in List III
in
the
Seventh
Schedule
(in
this
Constitution referred to as the "Union
List").

(3) Subject to clauses (1) and (2), the
legislature of any State .............. has
exclusive power to make laws for such
State or any part thereof with respect to
any of the matters enumerated in list II in
the Seventh Schedule (in the Constitution,
referred to as the "State List").

(4) Parliament has power to make laws
with respect to any matter for any part of
the territory of India not included in a
State notwithstanding that such matter is
a matter enumerated in the State List."

20. As per provisions, contained in
Part IX, and in order to bring the State
Legislature
consistent
with
73rd
Amendment of the Constitution the U.P.
Legislature vide U.P. Amendment Act
No.9 of 1994 made major amendments in
1961 Act, which shall be dealt with by the
Court later on as the context would
require. Presently, Section 27-A of the
1961 Act, which was inserted vide U.P.
Act no. 6 of 1969 i.e. almost more than 30
years earlier when the present writ
petition was filed and constitutional
validity whereof has been assailed by the
petitioner in the present writ petition,
would be necessary to be reproduced as
under: -

"Section 27-A. Bar to legislators
and holders of certain offices becoming
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
or continuing as Pramukh, up Pramukh,
Adhayksh
or
Upadhyaksh-(1)

Notwithstanding anything contained
in Sections 7,19 and 27 -

(a) a person shall be disqualified
for being elected at, and for being, a
Pramukh, Up Pramukh, Adhyaksh or
Upadhyaksh if he is -

(i) a member of Parliament or of
the State legislature; or

(ii) Nagar Pramukh or Up-Nagar
Pramukh of a Nagar Mahapalika, or

(iii) President or Vice Precident of a
Municipal Board, or

(iv) Chairman of a Town Area
Committee or President as a Notified
Area Committee;

(b) If a person after his election as
Pramukh, Up Pramukh, Adhyaksh or
Upadhyaksh is subsequently elected or
nominated to any of the offices mentioned
in sub-clause (i) to (iv) of clause (a), he
shall, on the date of first publication in
the Gazette of India or of Uttar Pradesh
of the declaration of his election or his
nomination cease to hold the office of
Pramukh, Up Pramukh, Adhyaksh or
Upadhyaksh and a casual vacancy shall
thereupon occur in the office of Pramukh,
as the case may be;

(c) No question or dispute as to
whether a person has ceased to hold the
office of Adhyaksh or Upadhyaksh under
clause (b) shall be referred to or be raised
before the Judge under Section 27;

(d) No suit in respect of any
question or dispute as to whether a
person has ceased to hold the office of
Pramukh, Up Pramukh, Adhyaksh or
Upadhyasksh under clause (b); shall lie in
any civil court.
(2) Notwithstanding
any
judgment,
decree or order of any Court or tribunal
to the contrary, where any person after
his election as Pramukh, Up Pramukh,
Adhyaksh
or
Upadhyasksh
is
subsequently, at any time before the
thirtieth day of April, 1969, elected or
nominated to any of the offices mentioned
in sub-clause (i) to (iv) of clause (a) of
sub Section (1) and continues immediately
before the said date to hold such office he
shall on the said date, cease to hold the
office
of
Pramukh,
Up
Pramukh,
Adhyaksh or Upadhyasksh and a casual
vacancy shall thereupon occur in the
office
of
Pramukh,
Up
Pramukh,
Adhyaksh or Upadhyasksh, as the case
may be, and the provisions of clauses (c)
and (d) of the said sub section shall apply
in relation to such cessation as they apply
in relation to cessation under clause (d)
of that sub Section, and any reference
pending before the Judge, under Section
27 or any suit pending in any civil court
immediately before the said date in
respect of any such question or dispute
shall abate."

21. In the constitutional scheme of
the Indian democracy, governed by the
rule of law stands in a hierarchy. The
hierarchal structure of the legal order of
the State is that the constitution is at the
highest
level
within
national
law.
Thereafter comes the statute enacted by
the parliament and State legislature. Then
comes
the
delegated
legislature
or
subordinate legislation namely, rules and
regulations framed thereunder thereunder
and at the lowest pedestal, is the ececutive
orders issued by the executive wing of the
State.

Some
fundamental
principles
governing
interpretation
of
the
Constitution and testing constitutionality
of the statute are as under: -
1 All] Hari Om Yadav V. State of U.P.
227
"1. By way of precedence the Courts
have been cautioned and are guided by
following rules in discharging solemn
duty while considering constitutionality of
legislative enactment:

"The constitutional validity of a
statute depends entirely on the existence
of the legislative power of the expressed
provision in Article 13, apart from the
limitation of the legislature, is not subject
to any other prohitition." (Smt. Indira
Nehru Vs. Raj Narain, AIR 1975 SC
2299).

2.
There is a presumption in favour of
constitutionality (V.M. Syed Mohd. &
Co. vs. State of Andhra Pradesh, AIR
1954
SC
314;
and
Madhubhai
Amathalal Gandhi vs. Union of India,
AIR 1961 SC 21.

3.
All circumstances, which might lead
to the statute, being upheld, must be
presumed by the Court and must be
shown not to exceed by the person
challenging the validity of the Act. [AIR
1960 Punjab 341 (Full Bench)

4.
Where the validity of the statute is
questioned
and
there
are
two
interpretations, one of which would make
the law valid and the other void, the
former must be referred and the validity
of the law must be upheld. (AIR 1942
Federal Court 72 In re. The Hindu
Women Rightes to Property Act).

5.
The statute cannot be declared
unconstitutional merely because in the
opinion of the Court it violates one or
more of the principles of liberty or the
spirit
the
constitution
unless
such
principles and that spirits are found in
terms of the constitution. (A.K. Gopalan
vs. State of Madras- Opposite Party,
Union of India-Intervener AIR 1950 SC
27).

6.
In pronouncing the constitutional
validity of the statute the Court is in
concern with the wisdom or unwisdom,
justice or injustice or the law. If that
which is based into law is within the
scope of the power conferred upon the
legislature and violate no restriction upon
that power, the law must be upheld
whatever a Court may think of it. (The
State of Bombay and another vs. F.N.
Balsara, AIR 1951 SC 318).

7.
The Constitution is the conclusive
instrument
by
which
powers
are
affirmatively
created
or
negatively
restricted. The only relevant test for the
validity of a statute made under Article
245 is whether the legislation is within the
scope of the affirmative grant of power or
is forbidden by some provision of the
Constitution. (para 133)

.......It is only where a piece of
legislation
clearly
infringes
a
constitutional provision or in dubitably
overrides a constitutional purpose or
mandate or prohibition that Courts can
interfere. (para 462)

......Ordinarily laws have to answer two
tests for their validity: (1) The law must
be within the legislature competence of
the legislature as defined and specified in
offend against the provisions of Article 13
(1) and (2) of the Constitution. (para 692)
Smt. Indira Nehru Gandhi vs. Raj
Narain (supra).

8.
"While examining the constitutional
validity of laws the principle that is
applied is that if it is possible to construe
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
a statute so that its validity can be
sustained against a constitutional attack it
should be so construed and that when part
of a statute is valid and part is void, the
valid part must be separated from the
invalid
part.........(para
66)
Kihoto
Hollohan vs. Zachilluhu and others,
1992 Supp. (2) SCC 651"

22. Without burdening this judgment
with catena of decisions of the Hon'ble
Apex Court on the aforesaid line, we now
proceed to deal with the contention of the
learned counsel for the petitioner that
Section 27-A of the 1961 Act is
unconstitutional
and
invalid,
being
violative of Part IX of the Constitution of
India.

23. As noted above, the precise
contention of the learned counsel for the
petitioner may be summarized as under:-

"1. Part IX of the Constitution is a
complete code in respect to Panchayat Raj
institution
and
whatever
should
be
possessed
by
the
Panchayat
Raj
institution,
it
has
been
specifically
mentioned in the various provisions of
Part
IX
of
the
Constitution
and
something, which is not provided, should
be deemed to be prohibited. Since Article
243
(F)
does
not
provide
any
disqualification
with
respect
to
the
Chairperson of the Constitution, the said
enactment cannot take away the right of
the petitioner to function as Chairperson
of Zila Panchayat. In other right of the
petitioner to function as Chairperson of
Zila Panchayat. In other words, what is
submitted is that since there is no such
disqualification, as provided in Section
27-A of the 1961 Act provided in Part IX
of the Constitution in regard to the
Chairperson of the Zila Panchayat and
Kshetra Panchayat, the said legislature, by
necessary implication, be deemed to be
lacking legislative competence to provide
a disqualification on its own.