# RAM PAL SINGH v. STATE OF U.P. & ORS

- **Citation:** [2018] 3 S.C.R. 971
- **Court:** Supreme Court of India
- **Decided:** 2018-04-24
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-pal-singh-v-state-of-u-p-ors-32735
- **Pages:** 23

## Headnote

Uttar Pradesh Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961:
ss. 6(1)(b) and 15 r/w r. 3(3) of Uttar Pradesh Kshettra
Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or
Pramukh Etc.) Rules, 1994 - No confidence motion against
'Pramukh' of Kshetra Panchayat - Moved by 39 elected members -
Plea of the 'Pramukh' (petitioner) that the requisition for no
confidence motion was not maintainable in view of s. 15 because
the same can be considered to have been signed only by 26 elected
members (i.e. less than half the total number i.e. 63 elected members)
as 13 elected members who had not taken oath of office could not
have signed or moved the motion - Held: Per Madan Lokur, J: There
is nothing in law to indicate that elected member ceases to be a
member if he/she does not take oath - That apart, if 13 members
cannot be considered as elected members, they also cannot be
considered or counted for the purpose of composition or counting
total strength of Kshettra Panchayat - If number of signatories
drop by 13, the total member of the elected members would also
drop by 13 - Thus no-confidence motion was a numerically valid
requisition - In the facts of the case it is held that all the 63 members
had taken oath of office before moving the motion - Thus 13
members were elected members and were entitled to sign the motion
- Per Deepak Gupta, J: Members who have not taken oath cannot
move and be a signatory to such a no-confidence motion - If they
are not entitled to vote at such motion (having not taken oath) cannot
be held entitled or eligible to sign such motion - However, the
question whether certain members had taken oath or not is disputed,
and since the petitioner has failed to prove that such members had
not taken oath, the petition is liable to be dismissed.
[2018] 3 S.C.R. 971
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[2018] 3 S.C.R.
Oath:
Oath of office - By persons holding public office - Sanctity
of - Held: Oath cannot be rendered meaningless - Legislature is
advised to provide consequences for not subscribing to such oath
- In order to avoid controversy as to whether oath was taken or
not, advice to maintain record of the same.
Dismissing the petition, the Court
HELD:
Per Madan B. Lokur, J.:
1.1 It is not correct on the part of the petitioner to contend
that for the purposes of signing the No Confidence Motion, the
13 elected members are not elected members but for the
purposes of the composition of the Kshettra Panchayat they are
elected members thereby maintaining the strength of the Kshettra
Panchayat at 63. If they are not elected members for the purposes
of signing the No Confidence Motion, then the number of
signatories to the No Confidence Motion would drop from 39 to
26. Correspondingly, the number of elected members of the
Kshettra Panchayat would also get reduced from 63 to 50.
Consequently, it would have to be concluded that since 26 out of
50 elected members of the Kshettra Panchayat have signed the
No Confidence Motion, more than 50% of the elected members.
If the 13 elected members are not elected members for one
purpose, they cannot have a different status for another purpose.
Their status must remain the same as that of an elected member
(or not an elected member) both at the time of signing the No
Confidence Motion and for the composition of the Kshettra
Panchayat. [Paras 21, 22][982-B-E]
1.2 In the facts of the case, all 63 elected members of the
Kshettra Panchayat took the oath of office on 18th March, 2018
and no communication was sent on 28th March, 2018 to or
received by any of the 17 elected members of the Kshettra
Panchayat who were alleged not to have taken oath of office on
18th March, 2018. Consequently, the No Confidence Motion
against the petitioner was a numerically valid requisition having
been signed by more than 50% of the elected members of the
Kshettra Panchayat. [Para 25][983-C]
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1.3 There is nothing in the law to indicate that an elected
membe

## Text

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RAM PAL SINGH
v.
STATE OF U.P. & ORS.
(Petition for Special Leave to Appeal (Civil) No. 31990 of 2017)
APRIL 24, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Uttar Pradesh Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961:
ss. 6(1)(b) and 15 r/w r. 3(3) of Uttar Pradesh Kshettra
Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or
Pramukh Etc.) Rules, 1994 - No confidence motion against
'Pramukh' of Kshetra Panchayat - Moved by 39 elected members -
Plea of the 'Pramukh' (petitioner) that the requisition for no
confidence motion was not maintainable in view of s. 15 because
the same can be considered to have been signed only by 26 elected
members (i.e. less than half the total number i.e. 63 elected members)
as 13 elected members who had not taken oath of office could not
have signed or moved the motion - Held: Per Madan Lokur, J: There
is nothing in law to indicate that elected member ceases to be a
member if he/she does not take oath - That apart, if 13 members
cannot be considered as elected members, they also cannot be
considered or counted for the purpose of composition or counting
total strength of Kshettra Panchayat - If number of signatories
drop by 13, the total member of the elected members would also
drop by 13 - Thus no-confidence motion was a numerically valid
requisition - In the facts of the case it is held that all the 63 members
had taken oath of office before moving the motion - Thus 13
members were elected members and were entitled to sign the motion
- Per Deepak Gupta, J: Members who have not taken oath cannot
move and be a signatory to such a no-confidence motion - If they
are not entitled to vote at such motion (having not taken oath) cannot
be held entitled or eligible to sign such motion - However, the
question whether certain members had taken oath or not is disputed,
and since the petitioner has failed to prove that such members had
not taken oath, the petition is liable to be dismissed.
[2018] 3 S.C.R. 971
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Oath:
Oath of office - By persons holding public office - Sanctity
of - Held: Oath cannot be rendered meaningless - Legislature is
advised to provide consequences for not subscribing to such oath
- In order to avoid controversy as to whether oath was taken or
not, advice to maintain record of the same.
Dismissing the petition, the Court
HELD:
Per Madan B. Lokur, J.:
1.1 It is not correct on the part of the petitioner to contend
that for the purposes of signing the No Confidence Motion, the
13 elected members are not elected members but for the
purposes of the composition of the Kshettra Panchayat they are
elected members thereby maintaining the strength of the Kshettra
Panchayat at 63. If they are not elected members for the purposes
of signing the No Confidence Motion, then the number of
signatories to the No Confidence Motion would drop from 39 to
26. Correspondingly, the number of elected members of the
Kshettra Panchayat would also get reduced from 63 to 50.
Consequently, it would have to be concluded that since 26 out of
50 elected members of the Kshettra Panchayat have signed the
No Confidence Motion, more than 50% of the elected members.
If the 13 elected members are not elected members for one
purpose, they cannot have a different status for another purpose.
Their status must remain the same as that of an elected member
(or not an elected member) both at the time of signing the No
Confidence Motion and for the composition of the Kshettra
Panchayat. [Paras 21, 22][982-B-E]
1.2 In the facts of the case, all 63 elected members of the
Kshettra Panchayat took the oath of office on 18th March, 2018
and no communication was sent on 28th March, 2018 to or
received by any of the 17 elected members of the Kshettra
Panchayat who were alleged not to have taken oath of office on
18th March, 2018. Consequently, the No Confidence Motion
against the petitioner was a numerically valid requisition having
been signed by more than 50% of the elected members of the
Kshettra Panchayat. [Para 25][983-C]
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1.3 There is nothing in the law to indicate that an elected
member ceases to be a member of the Kshettra Panchayat if he
or she does not take the oath of office. Though it is strange and
illogical that the 13 elected members could sign the No
Confidence Motion even though they had not taken the oath of
office but they could not actually vote in the Panchayat because
they were not entitled to a seat in the Panchayat, not having taken
the oath of office. However, there is no challenge to the provisions
of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats
Adhiniyam,1961. Therefore, if the requisition for the No
Confidence Motion was numerically valid, the discussion on that
would take place in the Panchayat and the requisition would meet
its appropriate fate. [Paras 23, 24][982-F-H; 983-A]
1.4 The 13 signatories to No Confidence Motion against
the petitioner were elected members of the Kshettra Panchayat
and were entitled to sign the No Confidence Motion and that
there was no infirmity in this regard. [Para 37][988-A]
Bhupindra Nath Basu v. Ranajit Singh Bahadur A.I.R.
1914 Calcutta 152; Pashupati Nath Sukul v. Nem
Chandra Jain & Ors. (1984) 2 SCC 404 : [1984] 1
SCR 939; Smt. Kamla Devi v. State of U.P. & Ors. 2014
(8) ADJ 525 - referred to.
In re Mayor of Penryn 1 Strange 582 = 93 E.R. 714;
Rex v. Swyer 1 Strange 582 = 93 E.R. 714 - referred
to.
2.1 Subscribing to the oath of office is not being taken
very seriously. It must be appreciated that taking the oath of
office is not a mere ritual but there is a degree of seriousness
and sanctity attached to it. Different laws provide different
consequences (some quite mild) for not taking the oath of office.
Since subscribing to the oath of office is a solemn occasion, failure
to do so ought to result in serious consequences, such as the
seat being declared vacant after a specified time. Elected
representatives be visited with serious consequences for not
taking the oath of office within a specified time, mainly because
even the Constitution attaches a great degree of solemnity to
the oath of office. [Paras 33, 34][986-B-C; 987-C]
RAM PAL SINGH v. STATE OF U.P. & ORS.
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2.2 Apart from requiring elected representatives of a
Panchayat attaching seriousness to taking the oath of office, an
unimpeachable record of the elected representatives taking the
oath of office should be maintained by the concerned officials of
the State Government. Unless the sanctity of the oath of office is
appreciated and appropriate documentation kept, situations such
as the present where a dispute is raised whether an elected
member of a body has taken the oath of office, will continue to be
faced. Such controversies are completely avoidable. [Para
36][987-E-G]
Per Deepak Gupta, J.: (Concurring with Conclusion)
1.1 Rule 3(3) of Uttar Pradesh Kshettra Panchayats and
Zila Panchayats (Oath of office of Adhyaksha or Pramukh etc.)
Rules, 1994 prescribes that before taking their seat for the first
time, the members must subscribe oath or affirmation. If he does
not take oath, he does not cease to be a member but, at the same
time, he cannot take part in the business of the House. A motion
of no confidence is part of the proceedings of the Panchayat, as
such a motion is governed by the provisions of the Adhiniyam
and, therefore, this is part of the business of the Panchayat. An
elected member who has not taken oath, cannot move and be a
signatory to such a no confidence motion. Such motion has to be
moved in terms of Section 15 of the Adhiniyam. Those members
who have not taken oath and are, therefore, not entitled to vote
at such no confidence motion, cannot be held to be entitled or
eligible to sign such motion. Otherwise, it would lead to a very
odd situation where such members can sign a motion but cannot
vote when the said motion is put to vote. This could not have
been the intention of the Legislature. Section 15(12) and (13) of
the Adhiniyam provide that a no-confidence motion cannot be
moved within one year of the election having taken place or within
a year of the rejection of the motion. Therefore, members who
have not taken oath, do not have a right to vote for the noconfidence motion, cannot be permitted to sign such a motion.
[Para 10][992-C-F]
1.2 However, there are disputed questions of facts as to
whether certain members had taken oath or not, which questions
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cannot be decided at this stage and the petitioner has failed to
discharge the heavy burden on him to prove that these members
have not taken oath. [Para 12][993-A-B]
Pashupati Nath Sukul v. Nem Chandra Jain & Ors.
(1984) 2 SCC 404 : [1984] 1 SCR 939; Bhupendra
Nath Basu v. Ranjit Singh AIR 1914 Cal.152 - held
inapplicable
Kamla Devi v. State of U.P & Ors. 2014 (8) ADJ 525 -
held not good law
Mayor of Penryn 93 ER 714 [Kings Bench]; Rex v.
Swyer 109 E.R. 531 (Kings Bench) - referred to
2. Various articles of the Constitution of India and various
other laws provide that persons holding public office must
subscribe to an oath of allegiance. This oath cannot be rendered
meaningless and the Legislature would be well advised to provide
consequences for not subscribing to such an oath of office. To
avoid such controversy in future, it would also be advisable if the
swearing in/oath taking is videographed so that no such dispute
arises in future. [Para 12][975-B-C]
Case Law Reference
In the Judgment of Madan B. Lokur, J.
A.I.R. 1914 Calcutta 152 referred to
Para 27
[1984] 1 SCR 939
 referred to
Para 29
2014 (8) ADJ 525
 referred to
Para 31
In the Judgment of Deepak Gupta, J.
[1984] 1 SCR 939
held inapplicable
Para 3
AIR 1914 Cal.152
held inapplicable
Para 3
2014 (8) ADJ 525
held not good law
Para 3
CIVIL APPELLATE JURISDICTION: Petition for Special Leave
to Appeal (Civil) No. 31990 of 2017.
From the Judgment and Order dated 12.09.2017 of the High Court
of Judicature at Allahabad in WC No. 41252 of 2017.
RAM PAL SINGH v. STATE OF U.P. & ORS.
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Mukul Rohatgi, Sr. Adv., Shantwanu Singh, Ms. Vamshi Rao,
Ms. Misha, Surinder Dutt Sharma, Meghsham S. Bhangle, Murari Babu
Sharma, Ashok Kumar Singh, Kaushal Yadav, Nandlal Kumar Mishra,
Dr. Ajay Kumar, Kamlesh Kumar Maurya, Mrs. Sunita Yadav,
Ali Mushtaq Nawashish, Mahendra Singh, Tuhin Lavania, Praveen
Agrawal, R. K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, Rameshwar
Prasad Goyal, Advs. for the Appellant.
Ms. Aishwarya Bhati, AAG, P. S. Patwalia, S. R. Singh, Pradeep
Kant, Sr. Advs., Bhanwar Pal Singh Jadon, Ms. Harshika Verma, Umesh
Gupta, Ram Anugarh Singh, Manoj K. Mishra, Rajeev Kumar Dubey,
Amit Kumar Singh, Adarsh Upadhyay, Garvesh Gabra, Gaurav Agrawal,
Ms. Vimlesh Kumar Shukla, Ms. Parul Shukla, E. C. Agrawala, Himanshu
Satija, Sunil Murarka, Rajesh Kumar, Adbhut Pathak, R. K. Singh,
Praveen Swarup, Varinder Kumar Sharma, P. K. Singh, Neeraj
Srivastava, Vijay Pal, Ajay Singh, Divyanshu Sahay, Sanjay Goel, Sunny
Choudhary, Ms. Preetika Dwivedi, Santosh Krishnan, Parmatma Singh,
Ram Anugrah, Vipin Singhania, Ms. Manju Gupta, Advs. for the
Respondents.
The following two Judgments of the Court were delivered by
MADAN B. LOKUR, J. 1. Pursuant to a Notification issued
by the State Election Commission, U.P. on 21st September, 2015 elections
were held to the Kshettra Panchayat, Jasrana, District Ferozabad (U.P.)
on 7th February, 2016. Apparently, the results were declared on the
same day by the State Election Commission and 63 candidates were
declared elected. It may be mentioned that the elections were held
under the provisions of the Uttar Pradesh Kshettra Panchayats and Zila
Panchayats Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam).
An elected member
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.
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3. Rule 2(2) of the Rules defines 'Members' in the following terms,
which is also without reference to taking the oath of office:
"2(2) "Members" means in case of Zila Panchayats Members
elected under clause (b) of sub-section (1) of Section 18 and in
case of Kshettra Panchayat Members elected under clause (b)
of sub-section (1) of Section 6 of the Act."
4. Section 6(1) of the Adhiniyam provides that a Kshettra
Panchayat shall consist of a Pramukh, who shall be its Chairperson.
Section 6(1)(b) provides that all the Pradhans of the Gram Panchayats
in the Khand shall constitute the Kshettra Panchayat. Section 6(1)(b)
provides that 'elected members' of the Kshettra Panchayat shall be
chosen by direct election from territorial constituencies in the Panchayat
areas. In other words, it appears that despite the sanctity attached to
taking the oath of office, an 'elected member' is one who is elected to
the Kshettra Panchayat in accordance with Section 6(1)(b) of the
Adhiniyam regardless of whether she or he takes the oath of office.
5. The only adverse consequence of an 'elected member' not
taking the oath of office is provided in Rule 3(3) of the Rules. The adverse
consequence is that if the member of the Kshettra Panchayat does not
make or subscribe the oath or affirmation, then he or she cannot take
the seat in the Kshettra Panchayat. Rule 3(3) reads :
 "3(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."
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.
RAM PAL SINGH v. STATE OF U.P. & ORS.
[MADAN B. LOKUR, J.]
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Taking the oath of office
7. After the result of the elections was notified by the State
Election Commission, the first meeting of the Kshettra Panchayat took
place on 18th March, 2016. In this meeting, the 'elected members' elected
the petitioner (Ram Pal Singh) as the Pramukh. He subscribed to the
oath of office before the Sub-Divisional Magistrate/appointee of the
District Magistrate. Thereafter, the version advanced by the petitioner
is that he administered the oath of office to the 'elected members' except
17 elected members who were not present. On the other hand, the version
advanced by the contesting private respondents (elected members) as
well as the State of U.P. is to the effect that all 63 elected members took
the oath of office. We need to decide this factual controversy.
8. In this regard, we have been shown two documents in the first
instance, one by the petitioner and another by the contesting private
respondents (elected members). According to the document produced
by the petitioner, the Sub Divisional Officer/Pramukh reported that in
the proceedings of the Kshettra Panchayat of 18th March, 2016 of the
elected members 17 of them did not take the oath of office. The other
document has been filed by the private contesting respondents to the
effect that proceedings were held on 18th March, 2016 in which they
participated but there is an interpolation in the document to the effect
that 17 elected members did not take the oath of office. The submission
is that they could have participated in the proceedings only after they
had subscribed to the oath of office.
9. Accordingly, we have two conflicting versions of the proceedings
of 18th March, 2016. The submission of the petitioner is that the 17
elected members did not take the oath of office and did not participate in
the proceedings held on 18th March, 2016. The submission of the private
contesting respondents is that did take the oath of office, they were
entitled to and did participate in the proceedings of 18th March, 2016 and
an interpolation has been made in the record of proceedings only to
suggest that they did not take the oath of office. Learned counsel for
the contesting private respondents made an additional submission and
drew our attention to the averments made in the counter affidavit to the
effect that these elected members were paid their daily allowance as
well as their travelling allowance for subsequent meetings and this
payment could have been made only if they had attended the meetings
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of the Kshettra Panchayat after taking the oath of office. This averment
has not been specifically denied by anybody.
10. In view of this serious factual controversy, we are of opinion
that it would be appropriate to rely on the counter affidavit filed by the
State. It is stated in the counter affidavit that in a communication of 12th
January, 2018 issued by the office of the Block Development Officer, it
is stated that all 63 members of the Kshettra Panchayat had taken the
oath of office on 18th March, 2016.
11. Our attention has also been drawn to a communication dated
11th January, 2018 issued by the Deputy Collector, Shikhohabad. This
communication is in the nature of an inquiry into the events of 18th March,
2016 and it is addressed to the Chief Development Officer, District
Ferozabad. In the communication, it is stated inter alia, that a perusal
of the attendance register of 18th March, 2016 indicates that all 63
members of the Kshettra Panchayat had signed it. Further, oath was
also taken by all the elected members on 18th March, 2016. The
conclusion of the Deputy Collector, therefore, is quite clear that all the
elected members of the Kshettra Panchayat had taken the oath of office
on 18th March, 2016. There is nothing to suggest that the affidavit filed
by the State is false or that the report referred to above is incorrect.
12. The petitioner has relied upon two other documents in support
of his case that 17 elected members did not take the oath of office on
18th March, 2016. The first such document is a communication of 28th
March, 2016 issued by the Block Development Officer, Jasrana,
addressed to the 17 elected members requiring them to remain present
in his office on 31st March, 2016 to take the oath of office and fill the
requisite form confirming that oath of office has been taken.
13. As a follow up to the communication dated 28th March, 2016
reference was made by the petitioner to another document dated 31st
March, 2016 in which it is stated that 3 of the 17 elected members took
the oath of office. This document also requires the Assistant Development
Officer (West) to take appropriate steps for completing the formalities
of oath being taken by the remaining 14 elected members.
14. On the other hand, in the communication/report of 11th January,
2018 the Deputy Collector, Shekohabad, has specifically stated that there
is nothing on record to suggest that any communication was sent to the
17 elected members on 28th March, 2016. There is no record of the
RAM PAL SINGH v. STATE OF U.P. & ORS.
[MADAN B. LOKUR, J.]
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communication having been despatched nor is there any document
showing receipt of the communication by the 17 elected members. It
appears that the Block Development Officer, Jasrana, was also contacted
but he was unable to give any evidence or proof of any official record of
the communication of 28th March, 2016.
15. In the communication of 12th January, 2018 sent from the
office of the Block Development Officer, Jasrana, to the District
Panchayat Raj Office, Ferozabad, it is stated that no receipt or despatch
relating to the communication of 28th March, 2016 is available on record.
 16. The counter affidavit filed on behalf of the State confirms
that there is nothing on the record of the Kshettra Panchayat to indicate
that any communication dated 28th March, 2016 was sent to the 17 elected
members. We accept the submission and categorical averment of the
State based on the record and conclude that no communication dated
28th March, 2016 was sent to the 17 elected members for taking oath of
office.
17. It was then submitted by learned counsel for the petitioner
that if in fact no communication was sent on 28th March, 2016 there was
no reason for 3 of the 17 elected members to take the oath of office on
31st March, 2016 since they had earlier taken the oath of office on 18th
March, 2016. It is not necessary for us to go into this issue and it is
entirely for the 3 elected members to explain why they took the oath of
office once again on 31st March, 2016 having already taken the oath of
office on 18th March, 2016.
18. Our conclusion in this regard is that all 63 elected members of
the Kshettra Panchayat took the oath of office on 18th March, 2016.
No Confidence Motion
19. As time went by, it appears that there was a souring of relations
between the petitioner and other elected members of the Kshettra
Panchayat. Consequently, a No Confidence Motion was moved against
the petitioner on 12th June, 2017. The No Confidence Motion was moved
by 39 elected members including 13 elected members who had allegedly
not taken the oath of office. It was therefore submitted by the petitioner
that the No Confidence Motion was signed by only 26 elected members
which is less than half the total number of 63 elected members of the
Kshettra Panchayat. As such, in view of Section 15 of the Adhiniyam
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the No Confidence Motion was not maintainable in law and the requisition
deserved to be rejected at the threshold. This provision reads as follows:-
15. Motion of non-confidence in Pramukh- (1) A motion
expressing want of confidence in the 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) to (10) XXX XXX XXX
(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, (sic) 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
(sic) 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 (sic)
as the case may be.
20. We find a fallacy and a dichotomy in the submission of learned
counsel for the petitioner with regard to the status of elected members
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of the Kshettra Panchayat who have allegedly not taken the oath of
office.
21. The fallacy and dichotomy arises in this manner: either the 13
elected members continue to be elected members of the Kshettra
Panchayat, despite their not having taken the oath of office or they cease
to be elected members of the Kshettra Panchayat. If they are not elected
members for the purposes of signing the No Confidence Motion, then
the number of signatories to the No Confidence Motion would drop from
39 to 26. Correspondingly, the number of elected members of the Kshettra
Panchayat would also get reduced from 63 to 50. Consequently, it would
have to be concluded that since 26 out of 50 elected members of the
Kshettra Panchayat have signed the No Confidence Motion, more than
50% of the elected members. Therefore, the No Confidence Motion
would be maintainable under the provisions of Section 15 of the
Adhiniyam.
22. In other words, it is not correct on the part of learned counsel
for the petitioner to contend that for the purposes of signing the No
Confidence Motion, the 13 elected members are not elected members
but for the purposes of the composition of the Kshettra Panchayat they
are elected members thereby maintaining the strength of the Kshettra
Panchayat at 63. If the 13 elected members are not elected members
for one purpose, they cannot have a different status for another purpose.
Their status must remain the same as that of an elected member (or not
an elected member) both at the time of signing the No Confidence Motion
and for the composition of the Kshettra Panchayat.
23. That apart, there is nothing in the law to indicate that an elected
member ceases to be a member of the Kshettra Panchayat if he or she
does not take the oath of office.
24. To get over this fallacy and dichotomy, it was submitted by
learned counsel for the petitioner that it would be strange and illogical
that the 13 elected members could sign the No Confidence Motion even
though they had not taken the oath of office but they could not actually
vote in the Panchayat because they were not entitled to a seat in the
Panchayat, not having taken the oath of office. While this may appear
to be illogical and irrational, there is no challenge to the provisions of the
Adhiniyam and we must proceed on the basis that if the requisition for
the No Confidence Motion was numerically valid, the discussion on that
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would take place in the Panchayat and the requisition would meet its
appropriate fate. We, therefore, reject this contention of the learned
counsel for the petitioner.
25. Although we are loathe to adjudicate on factual disputes, we
have been compelled to do so in this particular case due to the nature of
the conflicting claims and the fact that we are concerned with
democratically elected representatives of a Kshettra Panchayat. That
being said, our conclusion on facts is that all 63 elected members of the
Kshettra Panchayat took the oath of office on 18th March, 2018 and no
communication was sent on 28th March, 2018 to or received by any of
the 17 elected members of the Kshettra Panchayat who were alleged
not to have taken oath of office on 18th March, 2018. Consequently, the
No Confidence Motion against the petitioner was a numerically valid
requisition having been signed by more than 50% of the elected members
of the Kshettra Panchayat.
Position in law
26. The legal position having been settled for over 100 years, we
see no dire necessity or any necessity at all of over-turning the law laid
down.
27. In Bhupindra Nath Basu v. Ranajit Singh Bahadur1 the
question related to the election of two non-official additional members
of the Council of the Governor-General. It was alleged that two electors
had not taken the oath of allegiance and therefore the election of the
non-official additional members was void. An unsuccessful candidate in
the election questioned the validity of the election and sought the
recounting of votes after excluding the votes of two electors who had
not taken the oath of allegiance.
28. The Calcutta High Court referred to In re Mayor of Penryn2
and Rex v. Swyer3 which noted that a person is admitted to a public
office (which requires the oath of allegiance) only when that oath is
taken. However, the relevant Regulation did not address this issue. It
was held that for the purpose of performing 'legislative functions'
conferred by the Regulation, it was a necessary requirement that the
oath of allegiance is taken. The mere fact of omission to take an oath of
 1 A.I.R. 1914 Calcutta 152
 2 1 Strange 582 = 93 E.R. 714
 3 10 B. & C. 486 = 8 L.J. (o.s.) K.B. 221 = 109 E.R. 531
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allegiance did not ipso facto cause a member to vacate his seat.
Additionally, Regulation 8(1)(b) gave discretion to the Governor-General
to declare a seat as void if the elected person fails to take the oath of
allegiance. In the cited case, the Governor-General had not exercised
such an option. Therefore, the mere fact that two elected members did
not take the oath of allegiance did not result in their participation in the
electoral process as illegal.
29. A somewhat similar situation arose in Pashupati Nath Sukul
v. Nem Chandra Jain & Ors.4 In this case, a member of a Legislative
Assembly who had not taken the oath of office had proposed a candidate
for election to the Rajya Sabha. Approving the law laid down in
Bhupindra Nath Basu this Court held that as long as the name of the
elected member appears in the notification published under the provisions
of Section 73 of the Representation of the People Act, 1951 that member
can take part in all 'non-legislative activities' of an elected member.
Reference was made to Article 188 of the Constitution which provides
that every member of the Legislative Assembly shall, before taking his
seat, make and subscribe an oath or affirmation according to the form
set out for the purpose in the Third Schedule of the Constitution.
Article 188 of the Constitution reads as follows:
"Every member of the Legislative Assembly or the Legislative
Council of a State shall, before taking his seat, make and subscribe
before the Governor, or some person appointed in that behalf by
him, an oath or affirmation according to the form set out for the
purpose in the Third Schedule."
In this context, it was held by this Court in paragraph 20 of the
Report as follows :
"We are of the view that an elected member who has not taken
oath but whose name appears in the notification published under
Section 73 of the Act can take part in all non-legislative activities
of an elected member. The right of voting at an election to the
Rajya Sabha can also be exercised by him. In this case since it is
not disputed that the name of the proposer had been included
before the date on which he proposed the name of the appellant
as a candidate in the notification published under Section 73 of
the Act and in the electoral roll maintained under Section 152 of
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the Act, it should be held that there was no infirmity in the
nomination. ...... ."
30. In view of the above, it was held that since the name of the
proposer appeared in the notification published under Section 73 of the
Representation of the People Act, 1951 there was no infirmity in the
nomination of the candidate to the Rajya Sabha.
31. The decision of the Calcutta High Court as well as of this
Court were referred to and relied upon in Smt. Kamla Devi v. State of
U.P. & Ors.5 In this case a somewhat similar situation as in the present
proceedings before us had arisen. A No Confidence Motion was signed
and carried against the Block Pramukh. Challenging this, the submission
of the Block Pramukh was that 11 elected members of the Kshettra
Panchayat had not subscribed to the oath of office after being elected.
Therefore, they were ineligible to participate in the meeting convened
for the No Confidence Motion and to cast their vote. It was contented
that these 11 elected members could not be treated as members of the
Kshettra Panchayat and if their votes are disregarded, the No Confidence
Motion would fail. The Allahabad High Court rejected the contention
following the decisions mentioned above.
32. Learned counsel for the petitioner sought to make a distinction
between the performance of 'legislative functions' and 'non-legislative
functions' of an elected member of the Kshettra Panchayat. It was
submitted that the Kshettra Panchayat does not have any legislative
functions and its duties and responsibilities are circumscribed by Chapter
IX of the Constitution. The submission of learned counsel may not be
strictly correct since the Panchayat can be empowered by the State
Legislature to levy, collect and appropriate taxes, duties, tolls and fees.
However, without going into this issue, the broad intent of the decision of
the Calcutta High Court, the Allahabad High Court as well as this Court
is that if an elected member does not take the oath of office, he or she
cannot participate in the proceedings of the Kshettra Panchayat, unless
there is something to the contrary in a statute, which is not the case
here. Consequently, there is no prohibition against an elected member
from being a signatory to a No Confidence Motion. It is quite possible
that in the absence of the signatory to the No Confidence Motion - an
elected member - the No Confidence Motion might get defeated in the
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Panchayat due to his or her inability to vote, but that is not relevant for
our purposes.
Sanctity of oath of office
33. The case law that has emerged over the years suggests that
subscribing to the oath of office is not being taken very seriously. It
must be appreciated that taking the oath of office is not a mere ritual but
there is a degree of seriousness and sanctity attached to it. Different
laws provide different consequences (some quite mild) for not taking
the oath of office. We have already referred to the Adhiniyam and the
Rules. We are of opinion that since subscribing to the oath of office is a
solemn occasion, failure to do so ought to result in serious consequences,
such as the seat being declared vacant after a specified time. In fact,
Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section
40 as follows:
"40. Oath or affirmation to be made by members - (1)
Notwithstanding anything contained in the Oaths Act, 1969
(Central Act X of 1969), every person who is elected to be a
member or who becomes a member shall, before taking his seat,
make, at a meeting of the Panchayat an oath or affirmation in the
following form, namely:-
 "I, A.B, having been elected a member/having become a
member of this Village Panchayat/Panchayat Union Council/
District Panchayat do swear in the name of God/solemnly
affirm that I will bear true faith and allegiance to the Constitution
of India as by law established, that I will uphold the sovereignty
and integrity of India and that I will faithfully discharge the
duty upon which I am about to enter".
(2) Any person who, having been elected to be a member or who,
having become a member, fails to make within three months of
the date on which his term of office commences or at one of the
first three meetings held after the said date, whichever is later,
the oath or affirmation laid down in sub-section (1), shall cease to
hold his office and his seat shall be deemed to have become vacant.
(3) Any person who has been elected to be a member or who has
become a member shall not take his seat at meeting of the
Panchayat or do any act as such member unless he has made the
oath or affirmation as laid down in sub-section (1).
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(4) Notwithstanding anything contained in sub-section (3), the
President or the Chairman of a Panchayat or the member of a
Committee constituted under this Act, who has not made the oath
or affirmation as a member, shall be entitled to act as such
President, Chairman or member provided he makes the oath or
affirmation and takes his seat at the first meeting of the Panchayat
which he attends within two months after he is elected or appointed
as, or becomes entitled to exercise the functions of the President,
Chairman or member, as the case may be."
34. We are of the view that elected representatives be visited
with serious consequences for not taking the oath of office within a
specified time, mainly because even the Constitution attaches a great
degree of solemnity to the oath of office. For example, Article 60 of the
Constitution provides that before entering upon his office, the President
shall make and subscribe the oath or affirmation. Similarly, Article 69 of
the Constitution requires the Vice President to make and subscribe the
oath or affirmation before entering upon his office.
35. Article 84 of the Constitution requires that a person shall not
be qualified to be chosen to fill a seat in Parliament unless he makes and
subscribes the oath or affirmation according to the forms set out for the
purpose in the Third Schedule. We have already referred to the oath or
affirmation by a member of the Legislative Assembly or the Legislative
Council as required by Article 188 of the Constitution. If the Constitution
has attached importance to the oath of office, why cannot legislations
provide something similar to what Tamil Nadu has?
36. Additionally, it should be appreciated that apart from requiring
elected representatives of a Panchayat attaching seriousness to taking
the oath of office, an unimpeachable record of the elected representatives
taking the oath of office should be maintained by the concerned officials
of the State Government. Unless the sanctity of the oath of office is
appreciated and appropriate documentation kept, we will continue to be
faced with situations such as the present where a dispute is raised
whether an elected member of a body has taken the oath of office.
Such controversies are completely avoidable.
Conclusion
37. In view of the factual conclusions that we have arrived at as
well as the law on the subject, we have no hesitation in holding that the
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13 signatories to No Confidence Motion against the petitioner were
elected members of the Kshettra Panchayat and were entitled to sign
the No Confidence Motion and that there was no infirmity in this regard.
38. The petition is accordingly dismissed and interim orders
vacated. There will be no order as to costs.
DEEPAK GUPTA, J. 1.I have perused the erudite judgment of
my esteemed brother. Though I agree with the conclusion that the petition
should be dismissed and interim order be vacated, I am unable to pursue
myself to agree with my learned brother on the issue "whether an elected
member of a Kshettra Panchayat, who has not subscribed to the oath of
office, can sign or move a no-confidence motion against Pramukh of the
Kshettra Panchayat".
2. The facts as well as the relevant rules and provisions of law
have been set out in detail in the judgment of my learned brother, which
I need not refer to in detail. Rule 2(2) of the U.P.