# Shyam Narayan Ram v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-20
- **Case number:** Writ-C No. 16538 of 2018
- **Bench:** Rajesh Bindal, C.J. Manoj Kumar Gupta, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-narayan-ram-v-state-of-u-p-ors-49656
- **Pages:** 19

## Headnote

Sri
M.C.
Chaturvedi,
Addl.
Advocate
General, Sri Vineet Pandey, Chief Standing
Counsel, Sri Sudhanshu Srivastava, Addl.
Chief Standing Counsel, Sri Saiful Islam
Siddiqui

A. Local body - Constitution of India -
Article 243-B - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Section 15 - Kshettra Panchayat - No
Confidence Motion - Oath of office could
not be taken by the members - Effect on
membership - Held, such an elected
member will not cease to be elected
member nor his seat would be deemed to
be vacant - The elected members do not
cease
to
hold
their
office
for
not
subscribing to the oath of office. (Para 23
and 31)

B. Local body - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Elected members - Meaning - Elected
members are those who are chosen by
direct
election
from
territorial
constituencies in the Panchayat area.
(Para 31)

C. Local body - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Section 15 - Kshettra Panchayat - No
subscription of oath of office by the
members - Entitlement of such members
to sign no confidence motion and vote in
the meeting for no confidence motion -
Held, A meeting held for considering
motion of no confidence is a special
meeting with specific purpose and is
distinct from a meeting of a Kshettra
Panchayat held for transacting its ordinary
business. An elected member even if has
not subscribed to oath is entitled to
participate in a meeting of no confidence,
although
would
not
be
entitled
to
participate
in
the
meeting
held
for
transacting the ordinary business of the
Kshettra Panchayat. (Para 40 and 42)

D. Lacuna in legislation - How to be
dealt
with
-
The
legislative
casus
omissus cannot be supplied by process
of judicial interpretation - High Court
hoped that necessary corrective steps
will be taken without further delay.
(Para 26 and 30)
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
291
E. Interpretation of statute - Statutory
Interpretation - Maxim 'ut res magis
valeat quam pereat' - A statute or any
enacting provision therein must be so
construed as to make it effective and
operative. (Para 41)

Reference decided. (E-1)

List of Cases cited :-

## Text

_Characters 0–39,900 of 60,355. This is a partial read: ask again with offset=39900 for what follows._

290 INDIAN LAW REPORTS ALLAHABAD SERIES
valuable mineral deposits have frittered
away and have reduced substantially over
the aforesaid area over a period of four
years. For the said purpose it is open for the
Chief Secretary to either conduct the
inquiry himself or form a three member
committee of responsible senior officers of
which one should be of the rank of
Principal Secretary to hold the said inquiry.

27. Let an inquiry report be submitted
to the Senior Registrar of this Court within
three months from today.

28. This case shall be listed for the
said purpose alone on 25.04.2023 before
the appropriate Court.

29. Let a copy of the order be sent by
the Office to the Chief Secretary of the
State within 10 days.
----------
(2023) 2 ILRA 290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 16538 of 2018

Shyam Narayan Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan (Sr. Advocate), Sri
Udyaan
Nandan,
Sri
Kamlesh
Kumar
Tripathi

Counsel for the Respondents:
Sri
M.C.
Chaturvedi,
Addl.
Advocate
General, Sri Vineet Pandey, Chief Standing
Counsel, Sri Sudhanshu Srivastava, Addl.
Chief Standing Counsel, Sri Saiful Islam
Siddiqui

A. Local body - Constitution of India -
Article 243-B - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Section 15 - Kshettra Panchayat - No
Confidence Motion - Oath of office could
not be taken by the members - Effect on
membership - Held, such an elected
member will not cease to be elected
member nor his seat would be deemed to
be vacant - The elected members do not
cease
to
hold
their
office
for
not
subscribing to the oath of office. (Para 23
and 31)

B. Local body - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Elected members - Meaning - Elected
members are those who are chosen by
direct
election
from
territorial
constituencies in the Panchayat area.
(Para 31)

C. Local body - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Section 15 - Kshettra Panchayat - No
subscription of oath of office by the
members - Entitlement of such members
to sign no confidence motion and vote in
the meeting for no confidence motion -
Held, A meeting held for considering
motion of no confidence is a special
meeting with specific purpose and is
distinct from a meeting of a Kshettra
Panchayat held for transacting its ordinary
business. An elected member even if has
not subscribed to oath is entitled to
participate in a meeting of no confidence,
although
would
not
be
entitled
to
participate
in
the
meeting
held
for
transacting the ordinary business of the
Kshettra Panchayat. (Para 40 and 42)

D. Lacuna in legislation - How to be
dealt
with
-
The
legislative
casus
omissus cannot be supplied by process
of judicial interpretation - High Court
hoped that necessary corrective steps
will be taken without further delay.
(Para 26 and 30)
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
291
E. Interpretation of statute - Statutory
Interpretation - Maxim 'ut res magis
valeat quam pereat' - A statute or any
enacting provision therein must be so
construed as to make it effective and
operative. (Para 41)

Reference decided. (E-1)

List of Cases cited :-

1. Shyam Narayan Ram Vs St. of U.P. & ors.;
2019 (2) ADJ 21
2. Ram Pal Singh Vs St. of U.P. & ors.; (2018) 6
SCC 692
3. Smt. Kamla Devi Vs St. of U.P. & ors.; 2004
(8) ADJ 525
4. Alka Devi Vs St. of U.P. & ors.; 2014 (10) ADJ
179
5. K.C. Chandy Vs R. Balakrishna Pillai; AIR
1986 KER 116
6. M/s Unique Butyle Tube Industries Pvt. Ltd.
Vs U.P. Financial Corporation & ors.; AIR 2003
SC 2103
7. D.R Venkatchalam & ors. etc. Vs Dy.
Transport Commissioner & ors. etc.; AIR 1977
SC 842
8. Commissioner of Sales Tax, U.P. Lucknow Vs
M/s Parson Tools & Plants, Kanpur; (1975) 4
SCC 22
9. Manchester Ship Canal Co. Vs Manchester
Racecourse Co.; (1904) 2 Ch 352. pp. 360, 361
10. Whitney v. IRC, (1926) AC 37, p. 52
11. CIT v. S. Teja Singh, AIR 1959 SC 352, p.
356 : 1959 Supp (1) SCR 394
12. Gursahai v. CIT, AIR 1963 SC 1062, p.
1065: (1963) 3 SCR 893
13. Sodhi Transport Co. v. St. of U.P., (1986) 2
SCC 486, p. 492: AIR 1986 SC 1099
14. Tinsukhia Electric Supply Co. Ltd. v. St. of
Assam
(Delivered by Hon'ble Rajesh Bindal, C.J.,
Hon'ble Manoj Kumar Gupta, J.
&
Hon'ble Jayant Banerji, J.)

1. The present Reference to Larger
Bench emanates from an order dated
7.12.2018 passed by a Division Bench in
Shyam Narayan Ram Vs. State of U.P.
and others having its genesis in the
divided opinion of their Lordships of
Supreme Court in Ram Pal Singh Vs.
State of U.P. and others. The question
referred to the Larger Bench is-

"whether the elected members of
the Kshettra Panchayat, who have not taken
or subscribed to the oath of office as
member before taking their seats in the
house are entitled to sign the notice of
intention to bring a 'no confidence motion'
against the Pramukh and to participate and
vote
in
the
meeting
held
for
the
consideration of such a no confidence
motion."

INTRODUCTION

2. The background facts in which the
aforesaid issue had arisen before the
Division Bench was that the petitioner
therein was an elected Pramukh of a
Kshettra Panchayat, which had a total
strength of 120 members. A motion of no
confidence was moved against him by 81
members. It was successfully passed in the
meeting of Kshettra Panchayat held for the
purpose. In the meeting, 79 members
participated, out of which, 74 voted in
favour of the motion. The no confidence
motion passed against the petitioner was
subject matter of challenge in the writ
petition before this Court on the ground
that out of total elected members, only 69
had subscribed to oath of office and the
remaining 51 had not taken oath. Large
number of those members (13 members),
who had not taken oath, were signatory to
292 INDIAN LAW REPORTS ALLAHABAD SERIES
the notice of intention to bring no
confidence
motion
and
had
also
participated in the meeting in which the no
confidence motion was passed. It was
contended that the elected members who
had not subscribed to oath, were not
entitled to sign the notice and/or participate
in the meeting. If these elected members
are excluded, the no confidence motion was
not signed by more than half of the total
number of elected members. Thus, the noconfidence motion was not validly passed.

3. Before we proceed further, it would
be useful to advert to the facts of Ram Pal
Singh's case (supra) and the divergence of
opinion noted by the Division Bench of this
Court in Shyam Narayan Ram's case
(supra) resulting in Reference to Larger
Bench.

FACTS OF THE CASE OF RAM
PAL SINGH

4. Kshettra Panchayat, Jasrana,
District Firozabad comprised of 63 elected
members. The first meeting of the Kshettra
Panchayat took place on 18.03.2016, in
which the petitioner therein - Ram Pal
Singh was elected as Pramukh. He
subscribed to oath of office in the said
meeting. He thereafter administered oath of
office to the elected members except 17
who were not present. Contrary to it, the
version of the private respondents (elected
members) was that all 63 elected members
took oath of office. In due course of time, a
no confidence motion was moved against
Ram Pal Singh by 39 elected members,
including 13 members, who had allegedly
not taken oath of office. The no confidence
motion was challenged on the ground that
13
elected
members,
who
had
not
subscribed to oath, were not entitled to sign
the notice of intention to bring no
confidence motion and if they are excluded,
the motion was signed by only 26 elected
members, which is less than half of the
total number of 63 elected members and
would thus fail.

5. The judgement in Ram Pal Singh's
case (supra) is by Hon. Madan B. Lokur, J
and Hon. Deepak Gupta, J. Their Lordships
of the Supreme Court were unanimous in
holding that great degree of sanctity is to be
attached to the oath of office and also in
holding that in the absence of any
disqualification prescribed, omission to
take oath of allegiance, does not ipso facto
result in any ineligibility or disqualification
or vacation of seat of an elected member.
However, there is conflict of opinion on the
following aspects:-

(a) Hon. Madan B. Lokur, J. has
held that there is no prohibition for an
elected member from being signatory to a
no confidence motion, while Hon. Deepak
Gupta, J. has held that such an elected
member cannot sign a no confidence
motion.

(b) Whereas Hon. Madan B.
Lokur, J. has left undecided the issue as to
whether the proceedings of no confidence
motion is legislative function or nonlegislative function of an elected member
of a Kshettra Panchayat except for
observing that in absence of such members,
the motion might get defeated, Hon.
Deepak Gupta, J. has held that it is part of
the proceedings of a Panchayat and
therefore such members cannot participate
or vote in the meeting held for considering
motion of no-confidence.

(c) Albeit Hon. Madan B. Lokur,
J. had relied on the law laid down by a
Division Bench of this Court in Smt.
Kamla Devi Vs. State of U.P. and others
in a case deciding similar issues in holding
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
293
that there is no bar in an elected member
signing the No Confidence Motion, but
Hon. Deepak Gupta, J. has held that the
said judgement does not lay down the
correct position of law. In Kamla Devi's
case (supra), it has been held that (i) no
disqualification is attached to an elected
member not subscribing to oath of office
(ii) such a member is entitled to sign the
notice of intention to bring no confidence
motion, and (iii) entitled to participate in
the meeting of no confidence.

6. Barring the points on which there is
conflict in opinion, the law laid down by
Supreme Court in Ram Pal Singh's case
(supra) is binding on this Court.

SUBMISSIONS

7. Sri Shashi Nandan, learned Senior
Counsel appearing for the petitioner
submitted that the procedure relating to no
confidence motion as provided under
Section 15 of the U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961
(hereinafter referred to as 'the Act') cannot
be split in holding that an elected member
who has not subscribed to oath, is not
entitled to participate in the meeting of no
confidence but can sign the notice of
intention to make the motion. In other
words, his submission is that an elected
member, who has not subscribed to oath of
office, if cannot participate in the meeting
of no confidence, he or she also cannot sign
the notice. He further submitted that under
Section 15(13) notice of motion of no
confidence could not be given within one
year of the assumption of office by a
Pramukh. The period of one year under
Section 15 commences w.e.f. the date of
assumption of office and not from the date
of election. The date of assumption of
office means the date on which the
Pramukh takes oath of office and not the
date on which he is declared elected. In
support of his submission, he has placed
reliance on a Division Bench judgement of
this Court in Alka Devi Vs. State of U.P.
and others. It is thus contended that an
elected member who has not subscribed to
oath of office cannot be treated to have
assumed office as elected member and is
consequently dis-entitled to bring a motion
of no confidence or to participate in such
proceedings. He took aid of Section 79 of
the Act to buttress his submission. He also
emphasized on the sanctity of oath of
affirmation to office by placing reliance on
a Full Bench judgment of Kerala High
Court
in
K.C.
Chandy
Vs.
R.
Balakrishna Pillai.

8. On the other hand, Sri M.C.
Chaturvedi, learned Additional Advocate
General appearing for the State tried to
draw
distinction
between
a
Kshettra
Panchayat and an elected member of a
Kshettra Panchayat. He submitted that a
Kshettra Panchayat is constituted under
Section 6 and consists of a Pramukh, all
Pradhans of Gram Panchayat in the Khand,
elected members, members of the house of
people
and
members
of
legislative
assembly of the State representing the
constituencies which comprise wholly or
partially the Khand and the members of the
Council of State and the Members of the
State
Legislative
Council
who
are
registered as electors within the Khand.
Section 6(2) of the Act permits only elected
members to participate in a motion of no
confidence against the Pramukh and it goes
to show that a motion of no confidence is
not a proceeding of Kshettra Panchayat,
therefore, in such proceedings even those
elected members, who had not subscribed
to oath of office, can participate. He has
also referred to Sections 62 and 65 of the
294 INDIAN LAW REPORTS ALLAHABAD SERIES
Act to support his contention. Elaborating
his submission, he points out that a meeting
for considering motion of no confidence is
convened
by
Collector,
whereas
the
meeting for transacting business of the
Kshettra
Panchayat
is
convened
by
Pramukh. The meeting of no confidence
motion is to be held at the office of the
Kshettra Panchayat and wherein only the
motion of no confidence is put up for
debate and there could be no other agenda,
whereas in ordinary meeting of Kshettra
Panchayat convened for transacting its
business, the meeting could be held at a
place other than the office of Kshettra
Panchayat and in such meeting there is no
restriction relating to the number of items
on the agenda. He has placed reliance on
the judgement of the Supreme Court in
Pashupati Nath Sukul (supra) and the
judgement of this Court in Smt. Kamla
Devi (supra).

RELEVANT
PROVISIONS
OF
THE CONSTITUTION AND THE ACT

9. Before we proceed to analyse the
issues involved, a bird's eye view of the
relevant enactments is essential. By the
Constitution (Seventy-Third Amendment)
Act, 1992, Part IX was inserted dealing
with the Panchayats. Article 243 defines
Panchayat
as
an
institution
of
self
government constituted under Article 243B for the rural areas. The word 'Panchayat'
is an umbrella term which takes within its
ambit Panchayats at (a) village level (b)
intermediate level and (c) district level.
Article 243-C provides for composition of
Panchayats and states that subject to the
provisions of Part IX, the Legislature of a
State may, by law, make provisions with
respect to the composition of Panchayats.
Clause (2) of Article 243-C provides that
all 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
shall
be
divided
into
territorial
constituencies. Clause (5) enjoins that the
Chairperson
of
a
Panchayat
at
the
intermediate level shall be elected by, and
from
amongst,
the
elected
members
thereof. Article 243-E provides for the
duration of Panchayat etc. and it stipulates
that
every
Panchayat,
unless
sooner
dissolved under any law for the time being
in force, shall continue for five years from
the date appointed for its first meeting and
no longer. The powers, authority and
responsibility of Panchayats is taken care
of by Article 243-G. These are endowed
upon the Panchayats by law made by
Legislature of State to enable them to
function as institutions of self government.
It may authorize them to levy, collect and
appropriate such taxes, duties, tolls and
fees as prescribed by law made by
Legislature of a State. Article 243-K
provides for superintendence, direction and
control of the preparation of electoral rolls
and the conduct of all elections to the
Panchayat by a State Election Commission.
No election to any Panchayat can be called
in question except by an election petition in
view of the bar imposed by Article 243-O.

10. Kshettra Panchayat is a Panchayat
at the Intermediate level as contemplated
under Article 243-B of the Constitution.
The U.P. (Kshettra Panchayats and Zila
Panchayats)
Adhiniyam,
1961
is
a
complete code relating to incorporation,
constitution and source of powers and
functions and conduct of business of a
Kshettra Panchayat. The provisions of the
Act were extensively amended by U.P. Act
No.21 of 1995 to bring the same in line
with
the
Constitution
(Seventy-Third
Amendment) Act, 1992.
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
295

11. Under Section 5 of the Act, there
shall be a Kshettra Panchayat for every
Khand bearing the name of that Khand. It is
a body corporate. The composition of
Kshettra Panchayat is provided under
Section 6 of the Act, which is as follows:-

"6. Composition of Kshettra
Panchayat- (1) A Kshettra Panchayat shall
consist of a Pramukh, who shall be its
Chairperson and -

(a) all the Pradhans of the Gram
Panchayats in the Khand;

(b) elected members, who shall
be chosen by direct election from the
territorial constituencies in the Panchayat
area and for this purpose the Panchayat
area shall be divided into territorial
constituencies in such manner that, so far
as practicable, each territorial constituency
shall have a population of two thousand:

Provided that in the hill Districts
of Nainital, Almora, Pithoragarh, Tehri,
Pauri, Dehradun, Chamoli or Uttarkashi,
the State Government may declare an area
within a radius of one kilometer (diameter
of two kilometers) from the center of the
village specified by it in this behalf, to be a
territorial constituency though such area
may have a population of less than two
thousand:

Provided further that in the
territorial constituency of a Kshettra
Panchayat, no territorial constituency of a
constituent Gram Panchayat shall be
included in part.

(c) 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 the Khand;

(d) the members of the Council of
States and the members of the State
Legislative Council who are registered as
electors within the Khand.

(2) The members of Kshettra
Panchayat mentioned in clauses (a), (c) and
(d) of sub-section (1) shall be entitled to
take part in the proceedings and vote at the
meetings of the Kshettra Panchayat except
in matters of election of, and on a motion
of no confidence against, the Pramukh or
the [***].

(3) Each territorial constituency
referred to in clause (b) of sub-section (1)
shall be represented by one member.

(4) Every elected member of the
Zila Panchayat representing, constituency
which comprises, wholly or partly, and
Kshettra Panchayat, shall be entitled to take
part and express his views in the meetings
of such Kshettra Panchayat as a special
invitee but shall have no right to vote in
such meetings."

12. Section 7 provides that in every
Kshettra Panchayat, there shall be a
Pramukh to be elected by the elected
members of the Kshettra Panchayat from
amongst themselves. The term of the
Kshettra Panchayat and its members is
provided under Section 8. It states that
every Kshettra Panchayat shall unless
sooner dissolved under this Act, continue
for five years from the date appointed for
its first meeting and no longer. Under
Section 9, the term of Pramukh shall
commence upon his election and shall
extend upto the term of the Kshettra
Panchayat. Section 11 deals with the
resignation of Pramukh and a member and
Section 13 deals with disqualifications
from membership of Kshettra Panchayat.
Section 15 deals with motion of no
confidence in Pramukh and is reproduced
below:-

"15. Motion of non-confidence
in Pramukh or [***]- (1) A motion
expressing want of confidence in the
296 INDIAN LAW REPORTS ALLAHABAD SERIES
Pramukh or any [***] of a Kshettra
Panchayat may be made and proceeded
with in accordance with the procedure laid
down in the following sub-sections.

(2) A written notice of intention
to make the motion in such form as may be
prescribed, signed by at least half of the
total number of elected members of the
Kshettra Panchayat for the time being
together with a copy of the proposed
motion, shall be delivered in person, by any
one of the members signing the notice, to
the Collector having jurisdiction over the
Kshettra Panchayat.

(3)
The
collector
shall
thereupon:-

(i) convene a meeting of the
Kshettra Panchayat for the consideration of
the motion at the office of the Kshettra
Panchayat on a date appointed by him,
which shall not be later than thirty days
from the date on which the notice under
sub-section (2) was delivered to him; and

(ii) give to the elected member of
the Kshettra Panchayat notice of not less
than fifteen days of such meeting in such

______________

manner as may be prescribed.

Explanation.- In computing the
period of thirty days specified in this subsection, the period during which a stay
order, if any, issued by a Competent
Court on a petition filed against the
motion made under this section is in force
plus such further time as may be required
in the issue of fresh notices of the
meeting to the members, shall be
excluded.

(4) The sub-divisional officer of
the sub-division in which the Kshettra
Panchayat exercises jurisdiction shall
preside at such meeting:

Provided that if the Kshettra
Panchayat exercises jurisdiction in more
than one sub-division or the subdivisional officer cannot for any reason
preside, any stipendiary additional or
assistant collector named by the Collector
shall preside at the meeting:

(4-A) If within an hour from the
time appointed for the meeting such
officer is not present to preside at the
meeting,
the
meeting
shall
stand
adjourned to the date and time to be
appointed by him under sub-section(4-B).

(4-B) If the officer mentioned in
sub-section (4) is unable to preside at the
meeting, he may, after recording his
reasons, adjourn the meeting to such
other date and time as he may appoint,
but not later than 25 days from the date
appointed for the meeting under subsection (3). He shall without delay inform
the
Collector
in
writing
of
the
adjournment
of
the
meeting.
The
Collector shall give to the members at
least ten days notice of the next meeting
in the manner prescribed under subsection (3).

(5) Save as provided in subsections (4-A) and (4-B), a meeting
convened for the purpose of considering a
motion under this section, shall not be
adjourned.

(6) As soon as the meeting
convened under this section commences,
the Presiding Officer shall read to the
Kshettra Panchayat the motion for the
consideration of which the meeting has
been convened and declare it to be open
for debate.

(7) No debate on the motion
under this section shall be adjourned.

(8)
Such
debate
shall
automatically terminate on the expiration of
two hours from the time appointed for the
commencement of the meeting, if it is not
concluded earlier. On the conclusion of the
debate or on the expiration of the said
period of two hours, whichever is earlier,
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
297
the motion shall be put to vote which shall
be held in the prescribed manner by secret
ballot.

(9) The Presiding Officer shall
not speak on the merits of the motion and
he shall not be entitled to vote thereon.

(10) A copy of the minutes of the
meeting, together with a copy of the motion
and the result of the voting thereon, shall be
forwarded forthwith on the termination of
the meeting by the Presiding Officer to the
State
Government
and
to
the
Zila
Panchayat having jurisdiction.

(11) If the motion is carried with
the support of [more than half] of the total
number of elected members of the Kshettra
Panchayat for the time being-

(a) the Presiding Officer shall
cause the fact to be published by affixing a
notice thereof on the notice board of the
office of the Kshettra Panchayat and also
by notifying the same in the Gazette; and

(b) the Pramukh or [***], as the
case may be, shall cease to hold office as
such and vacate the same on and from the
date next following that on which the said
notice is fixed on the notice board of the
office of the Kshettra Panchayat.

(12) If the motion is not carried
as aforesaid or if the meeting could not
be held for want of quorum, no notice of
any subsequent motion expressing want
of confidence in the same Pramukh or
[***] shall be received until after the
expiration of one year from the date of
such meeting.

(13) No notice of a motion under
this section shall be received within [one
year] of the assumption of office by a
Pramukh or [***], as the case may be."

13. Section 16 deals with removal of
Pramukh by the State Government and is as
follows:-

"16. Removal of Pramukh or
[***].- (1) If in the opinion of the State
Government the Pramukh or any [*** ] of a
Kshettra Panchayat willfully omits or
refuses to perform his duties and functions
under this Act, or abuses the powers vested
in him or is found to be guilty of
misconduct in the discharge of his duties or
becomes
physically
or
mentally
incapacitated for performing his duties, the
State Government may, after giving the
Pramukh or such [***] as the case may be,
a reasonable opportunity for explanation
and after consulting the Adhyaksha of the
Zila Panchayat concerned in the matter and
taking into consideration his opinion, if
received within thirty days from the date of
the dispatch of the communication for such
consultation,
by
order,
remove
such
Pramukh or [***], as the case may be, from
office, and such order shall be final and not
open to be questioned in a Court of law:

Provided that where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pramukh or
[*** ] is prima facie found to have
committed
financial
and
other
irregularities, such Pramukh or [***] shall
cease to exercise and perform the financial
and administrative powers and functions,
which shall, until he is exonerated of the
charges in the final enquiry, be exercised
and performed by a committee consisting
of three elected members of the Kshettra
Panchayat appointed in this behalf by the
State Government.

(2) A Pramukh or [***], removed
from his officer under this section, shall not
be eligible for re-election as Pramukh or
[***] for a period of three years from the
date of his removal."

14. Section 84 deals with the manner
in which meetings of Kshettra Panchayat
298 INDIAN LAW REPORTS ALLAHABAD SERIES
are convened and held and it reads as
follows:-

"84.
Meetings
of
Kshettra
Panchayat.- (1) A Kshettra Panchayat
shall meet for the transaction of business at
least once in every two months:

Provided that the date to be
appointed for the first meeting of a Kshettra
Panchayat, shall be within thirty days from
the date of its constitution.

(2) The Pramukh, [***], may
convene a meeting of the Kshettra
Panchayat whenever he thinks fit and shall,
upon a requisition made in writing by not
less than one-fifth of the members of the
Kshettra Panchayat and served on the
Pramukh or sent by registered post
acknowledgment due addressed to the
Kshettra Panchayat at its office, convene a
meeting of the Kshettra Panchayat within a
period of one month from the date of the
service or receipt of such requisition.

(3) A meeting may be adjourned
until the next or any subsequent day and
adjourned
meeting
may
be
further
adjourned in the like manner.

(4) Every meeting shall be held at
the office of the Kshettra Panchayat or at
some other convenient place of which
notice has been duly given."

15. Section 85 deals with the
procedure etc. of meetings of Kshettra
Panchayat which shall be same as specified
under Section 62 in case of meetings of
Zila Panchayat and reads thus:-

"62. Procedure of meetings,
etc.- The following matters relating to
meetings of Zila Panchayat shall be
governed by rules-

(a) transaction of business at the
meeting;

(b) quorum for transaction of
business;

(c) presiding over the meeting in
the absence of Adhyaksha and the [*** ];

(d)
asking
of
questions
by
members;

(e) publicity of meeting;

(f) maintaining of order at the
meeting;

(g) decision by vote;

(h) minute book and resolutions;

(i) right of Government servants,
persons
authorized
by
the
State
Government and other persons to attend
and take part in discussions;

(j) right of Zila Panchayat to
require attendance of servants of the State
Government to attend in the meetings;

(k) right of officers of the Zila
Panchayat in regard to meetings;

(l) right of the Zila Panchayat to
require reports, returns; etc. from the
Mukhya Adhikari; and

(m)
other
incidental
matters
which need or ought to be prescribed."

16. Section 15 of the Act, which deals
with motion of no confidence envisages (i)
bringing of a motion of no confidence by giving
a written notice of intention in the prescribed
form signed by at least half of the total number
of elected members of the Kshettra Panchayat
for the time being, and (ii) the motion being
carried with the support of more than half of the
total number of elected members of the
Kshettra Panchayat for the time being.

ISSUES

17. For better analysis, the main issue
referred to the larger Bench can be further
subdivided into following four issues:

(i) who are elected members?
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
299

(ii) what is the effect of an
elected member not subscribing to oath of
office?

(iii) whether an elected member,
who has not subscribed to oath of office,
can sign no confidence motion,

(iv) whether an elected member,
who had not subscribed to oath of office
can participate and vote in the meeting
convened
for
consideration
of
no
confidence motion.

ISSUES (i) & (ii):

18. The expression 'elected member'
is not defined in the Act. However, we get
clue from Section 6 as to whom the
expression 'elected members' refers to.
According to it, elected members are those
who are chosen by direct election from the
territorial constituencies in the Panchayat
area. Section 6 of the Act draws a clear
distinction between members who are
directly elected on basis of adult suffrage
and those who become members of
Kshettra Panchayat by virtue of their office
viz, all the Pradhans of the Gram
Panchayats in the Khand; members of the
House
of
People;
the
members
of
Legislative
Assembly
of
the
State
representing constituencies which comprise
wholly or partly the Khand; the members of
the Council of States and the members of
the State Legislative Council who are
registered as electors within the Khand.
However, these ex-officio members are
debarred from participating in matters of
election of, and or a motion of no
confidence, of the Pramukh.

19. The State Government in exercise
of its rule making power under Section 237
of the Act has framed Rules governing oath
of office of Adhyaksha or Pramukh etc.
called
'the
Uttar
Pradesh
Kshettra
Panchayats and Zila Panchayats (Oath of
Office of Adhyaksha or Pramukh etc.)
Rules, 1994 (hereinafter referred to as 'the
Rules'). Rule 2 (2) defines members to
mean in case of Kshettra Panchayat,
Members elected under clause (b) of subsection (1) of Section 6 of the Act.

20. Rule 3 of the said Rules, which is
relevant for our purpose, is extracted
below:-

"3. Manner of taking oath or
affirmation.- (1) An Adhyaksha of a Zila
Panchayat before taking his seat for the
first time as Adhyaksha shall make or
subscribe oath or affirmation before the
District Magistrate in the form set out for
the purpose in the Appendix.

(2) A Pramukh of a Kshettra
Panchayat before taking his seat for the
first time as Pramukh shall make or
subscribe oath or affirmation before the
Sub-Divisional Officer or such other officer
appointed by the District Magistrate in this
behalf in the form set out for the purpose in
the Appendix.

(3)
The
members
of
Zila
Panchayat and Kshettra Panchayat before
taking their seats for the first time as such
members shall make or subscribe oath or
affirmation, in the case of member of Zila
Panchayat before the Adhyaksha and in his
absence before the Mukhya Adhikari and in
the case of members of the Kshettra
Panchayat before the Pramukh and in his
absence before the Khand Vikas Adhikari,
in the form set out in the Appendix."

21. Rule 3 prescribes that members of
Kshettra Panchayat before taking their seats
for the first time as such members shall
make or subscribe to oath or affirmation
before the Pramukh and in his absence,
before the Khand Vikas Adhikari in the
300 INDIAN LAW REPORTS ALLAHABAD SERIES
form set out in the Appendix. An elected
member, who does not subscribe to oath or
affirmation, cannot take a seat in the
Kshettra Panchayat and, therefore, cannot
participate in the proceedings of the House.
However, no other adverse consequence is
provided under the Act or the Rules for not
subscribing to the oath or affirmation. Such
a member does not cease to be an elected
member for not subscribing to oath of
office. The definition of 'members' is not
restricted to those who subscribe to oath,
but simply refers to those elected under
Clause (b) of sub-section (1) of Section 6
of the Act, whether they have taken oath or
not.

22. The conclusion is consistent with
the unanimous view of Supreme Court in
Ram Pal Singh's case (supra). The
relevant part of the observations made in
this regard are as follows:-

Hon. Madan B. Lokur, J. while
dealing with the said aspect held as
follows:-

"2. The Adhiniyam does not
define the expression ''elected member'. For
the purposes of the present petition we are
proceeding on the basis that an ''elected
member' is a person who has been duly
elected. The ''elected member' might or
might not have taken the oath of office in
terms of the Uttar Pradesh Kshettra
Panchayats and Zila Panchayats (Oath of
Office of Adhyaksha or Pramukh Etc.)
Rules, 1994 (hereinafter referred to as the
Rules). We say this even though there is
some sanctity attached to taking the oath of
office, which we will advert to later.

6. In other words, a person duly
elected to a Kshettra Panchayat under
Section 6(1)(b) of the Adhiniyam is
described as and remains an ''elected
member' and if that ''elected member' does
not take the oath of office, he or she does
not cease to be an ''elected member'. The
only consequence is that the ''elected
member' cannot take a seat in the Kshettra
Panchayat and therefore cannot participate
in the proceedings of the Panchayat. The
significance of this discussion will be
apparent hereafter."

 (emphasis supplied by us)

Hon. Deepak Gupta, J. taking
the same view observed as follows:-

"2. ......... Rule 2(2) of the U.P.
Kshettra Panchayats and Zila Panchayats
(Oath of Office of Adhyaksha or Pramukh
Etc.) Rules, 1994 (hereinafter referred to as
''the Rules') defines ''Members'. In case of
Kshettra Panchayat, ''Members' means
those persons elected under clause (b) of
sub-section (1) of Section 6 of the U.P.
Kshettra Panchayats and Zila Panchayats
Adhiniyam,1961
(for
short
"the
Adhiniyam"). The Adhiniyam provides that
a Kshettra Panchayat shall consist of a
Pramukh, who shall be its Chairperson and
elected members, who shall be chosen by
direct
election
from
territorial
constituencies in the Panchayat areas. It is
out of these elected members that a
Pramukh is elected in terms of Section
6(1)(b) of the Adhiniyam. According to
Rule 3(3) of the Rules, which has been set
out in the judgment of my learned brother,
a member of the Kshettra Panchayat, before
taking his seat for the first time as such
member, shall make or subscribe oath or
affirmation before the Pramukh and in his
absence before the Khand Vikas Adhikari
in the form set out in the appendix to the
Adhiniyam. Rule 3(3), therefore, envisages
that before taking seat for the first time the
member must make or subscribe oath or
affirmation (emphasis supplied). The words
''first sitting' have to be given some
significance and the significance is that
these elected members can vote without
2 All. Shyam Narayan Ram Vs. State of U.P. & Ors.
301
taking oath only while electing the
Pramukh from amongst themselves because
thereafter, the Pramukh administers oath to
them and then, the sitting of the House
takes place.

3. The language of Rule 3
indicates that a member must subscribe to
the oath before he can take part in the
sitting of the Panchayat. No doubt, an
elected member continues to be member
because no disqualification has been
provided for not taking oath, but the
seminal issue is whether such member can
take part in the proceedings of the
Panchayat. Reference in this regard has
been made to the judgment of this Court in
the case of Pashupati Nath Sukul v. Nem
Chandra Jain and others, (1984) 2 SCC
404, judgment of the Calcutta High Court
in the case of Bhupendra Nath Basi vs.
Ranjit Singh, AIR 194 Cal. 152 and the
judgment of the Allahabad High Court in
the case of Kamla Devi v. State of U.P. and
others, 2014 (8) ADJ 525."

 (emphasis supplied by us)

23. In taking the above view, it has
been noted by the Supreme Court that the
only consequence provided in the Statue
for not taking oath by an elected member is
that he cannot take seat in the House. No
other adverse consequence is provided in
the statute and consequently, it has been
held that such an elected member will not
cease to be elected member nor his seat
would be deemed to be vacant.

POSITION
IN
OTHER
ANALOGOUS STATUTES

24. In contrast, in some of the cognate
legislations, it is specifically provided that
such a member or office bearer will be
deemed to have vacated his seat. In this
context, we may note Section 12-E of the
U.P. Panchayat Raj Act, 1947 wherein the
above consequence is provided:-

"12-E. Oath of office.- (1) Every
person shall, before entering upon any
office referred to in Sections 11-A, 12, 43
or 44, make and subscribe before such
authority as may be prescribed on oath or
affirmation in the form to be prescribed.

(2) Any member who declines or
otherwise refuses to make and subscribe
such oath or affirmation as aforesaid shall
be deemed to have vacated the office
forthwith."

25. Likewise, under Section 85(2) of
the U.P. Municipal Corporation Act, 1959,
similar prohibition is contained and the said
provision is extracted below:-

"85. Oath of allegiance to be
taken by the Mayor and Members.- (2)
Any person who having been elected a
Corporator or Mayor [***]6 or co-opted a
Member of the Development Committee
fails to make within three months of the
date
on
which his
term
of
office
commences or at one of the first three
meetings of the Corporation held after the
said date, whichever is later, the oath or
affirmation laid down in and required to be
taken by sub-section (1) shall cease to hold
his office and his seat shall be deemed to
have become vacant."

26. The legislative casus omissus
cannot be supplied by process of judicial
interpretation. In M/s Unique Butyle Tube
Industries Pvt. Ltd. Vs. U.P. Financial
Corporation and others, the Supreme
Court while dealing with plea of casus
omissus has observed as follows:-

"11. It is well settled principle in
law that the Court cannot read anything
302 INDIAN LAW REPORTS ALLAHABAD SERIES
into a statutory provision which is plain and
unambiguous. A statute is an edict of the
legislature. The language employed in a
statute is the determinative factor of
legislative intent. The first and primary rule
of construction is that the intention of the
Legislation must be found in the words
used by the Legislature itself. The question
is not what may be supposed and has been
intended but what has been said. "Statutes
should be construed not as theorems of
Euclid". Judge Learned Hand said, "but
words must be construed with some
imagination of the purposes which lie
behind them". (See Lenigh Valley Coal Co.
v. Yensavage 218 FR 547).