# SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS

- **Citation:** [2019] 8 S.C.R. 151
- **Court:** Supreme Court of India
- **Decided:** 2019-05-01
- **Case number:** Civil Appeal No.4547 of 2019
- **Bench:** A.M. Khanwilkar, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/seema-sarkar-v-executive-officer-and-ors-34059
- **Pages:** 32

## Headnote

Panchayat: Inclusion or exclusion of the Member of the House
of Parliament (MP) representing the Union Territory of Andaman
and Nicobar Islands, who is also an ex-officio member of the
Panchayat Samiti, for reckoning the quorum of a special meeting
regarding motion of no confidence against the Pramukh of the Little
Andaman Panchayat Samiti - Held: The quorum of the special
meeting ought to be of not less than two-thirds of the "total number
of membership of the Panchayat Samiti" which includes all the
members of the Panchayat Samiti - be it directly elected or
ex-officio members, as the case may be - A conjoint reading of
s.117, r.9(3)(b) and also r.21 of the Rules shows that they, in no
way, exclude any member of the Panchayat Samiti much less the
members referred to in s.107(3) of the Regulation - Not even by
necessary implication - If the legislature had intended to exclude
the latter category from the process of 'No Confidence Motion', it
would have expressly limited it to only the elected members of the
Panchayat Samiti, as is done at the stage of election of the
chairperson - Whereas, the provision makes it incumbent that not
less than two-thirds of the "total number" of members of the
Panchayat Samiti must participate and vote - This is the legislative
intent which cannot be whittled down by some overstretched
interpretative process including by relying on the common law
principle that only the body of persons, who had elected the Pramukh
or Up-Pramukh, alone can initiate such a process - Thus, the
Member of the House of Parliament (MP) being the member of the
Samiti is entitled to participate in the special meeting to consider a
'No Confidence Motion' and also vote on that motion - Andaman
and Nicobar Islands (Panchayats) Regulation, 1994 - ss.107,
117 - Andaman and Nicobar Islands (Panchayats Administration)
Rules 1997 - rr. 9, 21 - Interpretation of statutes - Constitution of
India - Art.243C.
[2019] 8 S.C.R. 151
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Allowing the appeal, the Court
HELD: 1. The composition of intermediate level Panchayat
can be culled out from Article 243C. Clause (1) makes it amply
clear that the legislature of a State is free to make a law with
respect to the composition of Panchayat subject to the provisions of Part-IX of the Constitution. Clause (2) of the Article
243C makes it clear that all the seats in the Panchayat shall be
filled up by persons chosen by direct election from the territorial
constituencies in the Panchayat area. Clause (3) of the Article is
an enabling clause permitting the legislature of a State to make a
law to provide for the representation of other persons who are
not directly elected from the territorial constituencies in the
Panchayat area. Clause (4) deals with the right to vote in the
meetings of the chairperson of a Panchayat or other members of
the Panchayat whether or not chosen by direct election from the
territorial constituencies in the Panchayat area. Clause (5) deals
with the manner in which the chairperson of a Panchayat is elected
at the village level, intermediate level or district level, as the
case may be. [Para 12] [167-E-H; 168-A]
2. The chairperson of a Panchayat at intermediate level is
required to be elected by, and from amongst, the elected
members thereof. There is marked distinction between the
member of the Panchayat chosen by direct election from the
territorial constituencies in the Panchayat area referred to in
clause (2) via-a-vis other persons referred to in sub-clauses (a)
to (d) of clause (3) of Article 243C, who may also represent as
per the law made by the State Legislature. Thus understood, there
is little doubt that the election of chairperson is by the former
category of the members of the Panchayat, namely, directly elected
from the territorial constituencies in the Panchayat area and one
from amongst them is then elected as a chairperson. There is no
express provision in the Constitution dealing with

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SEEMA SARKAR
v.
EXECUTIVE OFFICER AND ORS.
(Civil Appeal No.4547 of 2019)
MAY 01, 2019
 [A.M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Panchayat: Inclusion or exclusion of the Member of the House
of Parliament (MP) representing the Union Territory of Andaman
and Nicobar Islands, who is also an ex-officio member of the
Panchayat Samiti, for reckoning the quorum of a special meeting
regarding motion of no confidence against the Pramukh of the Little
Andaman Panchayat Samiti - Held: The quorum of the special
meeting ought to be of not less than two-thirds of the "total number
of membership of the Panchayat Samiti" which includes all the
members of the Panchayat Samiti - be it directly elected or
ex-officio members, as the case may be - A conjoint reading of
s.117, r.9(3)(b) and also r.21 of the Rules shows that they, in no
way, exclude any member of the Panchayat Samiti much less the
members referred to in s.107(3) of the Regulation - Not even by
necessary implication - If the legislature had intended to exclude
the latter category from the process of 'No Confidence Motion', it
would have expressly limited it to only the elected members of the
Panchayat Samiti, as is done at the stage of election of the
chairperson - Whereas, the provision makes it incumbent that not
less than two-thirds of the "total number" of members of the
Panchayat Samiti must participate and vote - This is the legislative
intent which cannot be whittled down by some overstretched
interpretative process including by relying on the common law
principle that only the body of persons, who had elected the Pramukh
or Up-Pramukh, alone can initiate such a process - Thus, the
Member of the House of Parliament (MP) being the member of the
Samiti is entitled to participate in the special meeting to consider a
'No Confidence Motion' and also vote on that motion - Andaman
and Nicobar Islands (Panchayats) Regulation, 1994 - ss.107,
117 - Andaman and Nicobar Islands (Panchayats Administration)
Rules 1997 - rr. 9, 21 - Interpretation of statutes - Constitution of
India - Art.243C.
[2019] 8 S.C.R. 151
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
Allowing the appeal, the Court
HELD: 1. The composition of intermediate level Panchayat
can be culled out from Article 243C. Clause (1) makes it amply
clear that the legislature of a State is free to make a law with
respect to the composition of Panchayat subject to the provisions of Part-IX of the Constitution. Clause (2) of the Article
243C makes it clear that all the seats in the Panchayat shall be
filled up by persons chosen by direct election from the territorial
constituencies in the Panchayat area. Clause (3) of the Article is
an enabling clause permitting the legislature of a State to make a
law to provide for the representation of other persons who are
not directly elected from the territorial constituencies in the
Panchayat area. Clause (4) deals with the right to vote in the
meetings of the chairperson of a Panchayat or other members of
the Panchayat whether or not chosen by direct election from the
territorial constituencies in the Panchayat area. Clause (5) deals
with the manner in which the chairperson of a Panchayat is elected
at the village level, intermediate level or district level, as the
case may be. [Para 12] [167-E-H; 168-A]
2. The chairperson of a Panchayat at intermediate level is
required to be elected by, and from amongst, the elected
members thereof. There is marked distinction between the
member of the Panchayat chosen by direct election from the
territorial constituencies in the Panchayat area referred to in
clause (2) via-a-vis other persons referred to in sub-clauses (a)
to (d) of clause (3) of Article 243C, who may also represent as
per the law made by the State Legislature. Thus understood, there
is little doubt that the election of chairperson is by the former
category of the members of the Panchayat, namely, directly elected
from the territorial constituencies in the Panchayat area and one
from amongst them is then elected as a chairperson. There is no
express provision in the Constitution dealing with the removal
of a chairperson of the Panchayat Samiti. However, a law on the
said subject is already in place in the form of the Regulation as
also the Rules concerning Panchayat administration. The
Constitution itself enables the State Legislature to make a law
on the subject of composition of Panchayats, including regarding
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election of the Pramukh, subject to the provisions contained in
Part-IX of the Constitution. [Paras 13, 15] [168-B-D, G-H;
169-A-B]]
3. The Regulation as well as the Rules specifically provided
for the subject of motion of no confidence, how such motion should
be moved and the manner in which it is required to be carried
forward. Section 106 of the Regulation speaks about the
constitution of the Panchayat Samiti. The composition of the
Panchayat Samiti has been predicated in Section 107. This
provision is in four parts. The first clause [(clause (1)] is a
general provision envisaging that every Panchayat Samiti shall
consist of such number of seats as the administrator may by
notification determine. Clause (2) postulates that the seats in
the Panchayat Samiti as determined shall be filled up by persons
chosen by direct election from the territorial constituencies in
the manner prescribed. Clause (3) refers to the persons who shall
also be represented in the Panchayat Samiti other than the
persons chosen by direct election referred to in clause (2). This
clause (3) is again split in two parts: the first referring to the
proportion of the representation given to the representatives of
the Gram Panchayat in the Panchayat Samiti; and the second
referring to the member of the House of Parliament
representing the Union Territory. As regards the latter, it has
been explicitly provided that such member shall have the right
to vote in the meeting of the Panchayat Samiti. The fourth clause
is not significant for dealing with the issue on hand.
[Para 16] [169-B-F]
4. A plain reading of Section 112 of the Regulation states
that the election of the Pramukh and Up-Pramukh is "by" the
elected members of the Panchayat Samiti and the one who is
elected as such, is "from amongst them". Even the expression
used in Article 243C(5)(b) is "elected by, and from amongst, the
elected members thereof". This dispensation is in consonance
with the constitutional scheme of democratic decentralization and
self-Government on the principle of grass-root democracy. In that
sense, the other members of the Panchayat Samiti (other than
those chosen by direct election from the territorial
constituencies in the Panchayat area) referred to in Article
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243C(3) have no say in the matter of electing the Pramukh or
Up-Pramukh of the Panchayat Samiti, though they may generally
have the right to vote in the meeting of the Panchayat Samiti on
other matters. [Para 18] [171-D-F]
5. Sections 107 and 112 are a facsimile of Article 243C and
also within the framework provided therein. Although the other
member(s) who have been given representation in the Panchayat
Samiti have no say in the election of the Pramukh or Up-Pramukh
of the Panchayat Samiti, it does not follow that they are not
eligible to remain present and vote in the special meeting
regarding the motion of no confidence against the Pramukh or
Up-Pramukh of the Panchayat Samiti. The Constitution is
completely silent on the subject of removal of the Pramukh or
the Up-Pramukh of the Panchayat Samiti, including regarding the
manner in which a 'Motion of No Confidence' against them could
be moved and carried forward. [Para 19] [171-F-H; 172-A]
6. Section 117 is explicit as to who can move the motion
and the manner in which the same is required to be carried
forward to its logical end. As per this provision, the other
members having representation on the Panchayat Samiti, who
are not directly elected from the territorial constituencies in the
Panchayat area have no right to vote during the election of the
Pramukh or Up-Pramukh of the Panchayat Samiti, it does not
follow that they are not or cease to be members of the Panchayat
Samiti. Whereas, in terms of Section 107 which specifies the
composition of the Panchayat Samiti, they are plainly recognized
as members of the Panchayat Samiti during the relevant period.
Those persons may not be directly elected from the territorial
constituencies in the Panchayat area but nevertheless, are
people's representatives, being elected as Pradhans of the
concerned Gram Panchayat within the area of the Panchayat
Samiti, or as the Member of the House of Parliament
representing the Union Territory. It would have been a different
matter if Section 117 had constricted the right to vote on a
motion of no confidence only to the members directly elected
from the territorial constituencies in the Gram Panchayat area,
referred to in Section 107(2) of the Regulation. To put it
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differently, merely because the law permits only the directly
elected members to vote during the election of Pramukh, that
ipso facto would not follow that the other members (other than
the elected members) of the Panchayat Samiti are ineligible to
vote on a 'No Confidence Motion'. [Para 20] [172--G-H;
173-A-C]
7. Besides the explicit provisions in the Regulation, even
the statutory Rules make it unstintingly intelligible that the other
(ex-officio) member(s) of the Panchayat Samiti can also remain
present and participate in the special meeting to consider a
motion of no confidence against the Pramukh. The stated Rules
are framed in exercise of the power to make rules in terms of
Section 202. Clause (ak) of Section 202(2) enables the
Administrator to frame rules in respect of the notice for moving
a motion of no confidence against the Pramukh or Up-Pramukh
as per Section 117(1) of the Regulation. Further, clause (al)
permits framing of rules regarding the time and place of
meetings of the Panchayat Samitis and the procedure for such
meetings under sub-section (1) of Section 121; and clause (am)
deals with the manner in which a member of Panchayat Samiti
may move resolution(s) and put question(s) to the Pramukh and
Up-Pramukh under sub-section (2) of Section 121. The statutory
rules framed under Section 202 expressly provide for the
quorum of the meetings of the Panchayat Samiti. Rule 21
specifically deals with the motion of no confidence against the
Pramukh or Up-Pramukh. The provisions in the Regulation and
the Rules distinctly deal with the manner in which a motion of
'No Confidence' should be moved and carried forward to its
logical end. In that sense, the central issue is about the purport
of the mechanism provided in the Regulation and the Rules on
the subject of 'No Confidence Motion'. From the legislative
scheme it is noticed that as and when the special meeting to
consider the 'No Confidence Motion' proceeds, Section 117(2)
mandates that the motion may be treated as carried out only if a
majority of not less than two-thirds of the "total number" of
members of the Panchayat Samiti vote in favour of removal of the
Pramukh or Up-Pramukh, as the case may be. A similar position
is restated in Rule 21 of the Rules. [Paras 21-23] [173-D-F,
174-F; 175-G-H; 176-A]
SEEMA SARKAR v. EXECUTIVE OFFICER AND ORS.
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8. Rule 9(3)(b) stipulates that two-thirds of the "total
membership" of a Panchayat Samiti shall be a sufficient quorum
for a special meeting of the Panchayat Samiti in reference to
Section 117(1) of the Regulation to move a motion of no
confidence against the Pramukh or Up-Pramukh. Thus, the
quorum specified is not less than two-thirds of the "total membership". The emphasis is on the expression "total membership",
which includes the other (ex-officio) member(s) referred to in
Section 107(3) of the Regulation having representation on the
Panchayat Samiti and not limited to members chosen by direct
election from territorial constituencies in the Panchayat area as
referred to in Section 107(2) of the Regulation. The governing
provisions predicate that the special meeting must be attended
by not less than two-thirds of the "total membership" of the
Panchayat Samiti and the 'No Confidence Motion' must be
carried out by not less than two-thirds of the "total number" of
members of the Panchayat Samiti present and voting. This is the
twin requirement. If so, the 'No Confidence Motion' is required
to be considered in the special meeting of the Panchayat Samiti
as a whole and not limited to members directly elected from the
territorial constituencies in the Panchayat area. Thus understood,
the total membership of the Little Andaman Samiti being six,
two-thirds thereof would be four. If the members present at the
scheduled place and time of the meeting were only three,
obviously the Executive Officer was justified in dissolving the
meeting for want of quorum. [Paras 24, 25] [176-B-D, F-H]
9. Who can vote on the 'No Confidence Motion'.
9.1 The fact that Article 243C(5)(b) postulates that the
chairperson of the Panchayat Samiti at the intermediate level shall
be elected by, and from amongst, the elected members thereof,
it does not follow that the process of removal of such chairperson should be limited to voting by the elected members. The law
on the removal of the Pramukh or Up-Pramukh by means of 'No
Confidence Motion' has been enacted by the State Legislature.
That permits "all" the members of the Panchayat Samiti to
participate in the discussion and vote on the motion of no
confidence. A conjoint reading of Section 117, Rule 9(3)(b) and
also Rule 21 of the Rules shows that they, in no way, exclude any
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member of the Panchayat Samiti much less the members referred
to in Section 107(3) of the Regulation. Not even by necessary
implication. Taking any other view would result in re-writing of
the provisions to read as - the motion of no confidence must be
carried out by a majority of not less than two-thirds of the total
number of "directly elected" members of the Panchayat Samiti
mentioned in Section 107(2), present and voting. The State
Legislature was conscious of the marked distinction between the
category of members constituting the Panchayat Samiti. Section
107(2) refers to a category of persons chosen by direct election
from the territorial constituencies, in contradistinction to the other
category of persons mentioned in Section 107(3), the
constituent of the Panchayat Samiti. If the legislature had intended
to exclude the latter category from the process of 'No
Confidence Motion', it would have expressly limited it to only
the elected members [former category ascribable to Section
107(2)] of the Panchayat Samiti, as is done at the stage of
election of the chairperson. [Para 26] [177-C-G]
9.2 In the instant case, neither Article 243C nor the
Regulation made by the State Legislature or the Rules framed
thereunder expressly exclude the other members of the Panchayat
Samiti referred to in Section 107(3) of the Regulation from
exercising their vote on a 'Motion of No Confidence'. It is a well
established position that the right to elect, and including the right
to be elected and continue on the elected post, is a statutory
right. Further, the mode and manner of election to any post could
be different from the scheme for removal of a person from that
post, as restated in paragraph 10 of the same reported decision.
The provisions in the Regulation under consideration in no way
exclude the MP, muchless expressly, from participating in the
special meeting and vote on the 'No Confidence Motion'. As a
matter of fact, the provision in the Regulation under
consideration is an inclusive one and explicitly permits all (total)
members to participate in the special meeting and vote on the
'No Confidence Motion' against the Pramukh or Up-Pramukh,
as the case may be. The category of persons referred to in
Section 107(3) of the Regulation are also, in one sense, elected
representatives (though not by direct election from territorial
constituencies in the Panchayat area) and, therefore, their
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participation and voting on the 'No Confidence Motion' has been
expressly permitted by the Regulation and the Rules. That
cannot be undermined on the basis of the common law principle,
so long as the governing statutory provisions are in the field.
[Paras 28, 29, 32] [178-H; 179-A-B, F; 181-B-C]
Mohan Lal Tripathi v. District Magistrate, Rai Bareilly
and Ors.(1992) 4 SCC 80 : [1992] 3 SCR 338
- relied on.
Ramesh Mehta v. Sanwal Chand Singhvi and Ors.
(2004) 5 SCC 409 : [2004] 1 Suppl. SCR 418 ; State
of Karnataka and Ors. v. Lakshmappa Kallappa
Balaganur and Ors. (2001) 3 KLJ 498 ; Pratap
Chandra Mehta v. State Bar Council of Madhya
Pradesh and Ors. (2011) 9 SCC 573 : [2011] 11 SCR
965 - distinguished.
Justice K.S. Puttaswamy and Anr. v. Union of India and
Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569 ; Bhanumati
and Ors. v. State of Uttar Pradesh through its Principal
Secretary and Ors. (2010) 12 SCC 1 : [2010] 7 SCR
585 ; Usha Bharti v. State of Uttar Pradesh and Ors.
(2014) 7 SCC 663 : [2014] 4 SCR 1076 ; Delhi
Transport Corporation v. D.T.C. Mazdoor Congress and
Ors. (1991) 1 Suppl. SCC 600 : [1990] 1 Suppl. SCR
142; Vipulbhai M. Chaudhary v. Gujarat Cooperative
Milk Marketing Federation Limited and Ors. (2015) 8
SCC 1 : [2015] 3 SCR 997 - referred to.
Case Law Reference
[2004] 1 Suppl. SCR 418 distinguished
Para 6
(2001) 3 KLJ 498
 distinguished
Para 6
[2017] 10 SCR 569
 referred to
Para 30
[2010] 7 SCR 585
 referred to
Para 30
[2014] 4 SCR 1076
 referred to
Para 30
[1990] 1 Suppl. SCR 142 referred to
Para 30
[2015] 3 SCR 997
 referred to
Para 31
[2011] 11 SCR 965
 distinguished
Para 32
[1992] 3 SCR 338
 relied on
Para 32
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4547
of 2019
From the Judgment and Order dated 13.12.2017 of the High Court
of Calcutta, Bench at Port Blair in Misc. Application No. 26 of 2017
Nachiketa Joshi, Anil Seth, Mohd. Asad Khan, Aayush Anand,
Ms. Suchita Joshi, Advs. for the Appellant.
Aman Lekhi, ASG, Ms. Shraddha Deshmukh, Arvind K. Sharjma,
R. Chandrachud, Karan Sharma, Nitin Thukral, Ms. Mrinal Kanti
Mondal, K.V. Jagdishvaran, Ms. G. Indira, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. The conundrum in this appeal is about the inclusion or
exclusion of the Member of the House of Parliament (for short "MP")
representing the Union Territory of Andaman and Nicobar Islands, who
is also an ex-officio member of the Panchayat Samiti, for reckoning the
quorum of a special meeting regarding motion of no confidence against
the Pramukh of the Little Andaman Panchayat Samiti (for short the
"said Samiti") and also whether he/she can exercise his/her vote on the
'No Confidence Motion' within the meaning of the provisions of Andaman
and Nicobar Islands (Panchayats) Regulation, 1994 (for short
"Regulation") and the Andaman and Nicobar Islands (Panchayats
Administration Rules) 1997 (for short "the Rules").
3. A 'No Confidence Motion' dated 19th December, 2007 was
moved by respondent No.6 against the appellant (Pramukh of the said
Samiti). The said Samiti consisted of six members i.e. five directly elected
members from territorial constituencies in the Panchayat area and one
MP representing the Union Territory. A meeting for discussion of the
'No Confidence Motion' was scheduled on 2nd January, 2017 at 3.00
PM in the Conference Hall of the Panchayat Samiti. That notice was
duly served to all the members. But only 3 elected members remained
present at the scheduled time (3.00 PM) and place of the meeting. As
the quorum was not complete, the members waited upto one hour i.e.
upto 4.00 PM. Eventually, the meeting came to be dissolved by the
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Executive Officer for want of quorum of four members, in view of
Section 107 of the Regulation. The Executive Officer issued
communication in that behalf on 2nd July, 2017 which reads thus:
 "No.3-131/PS/HB/2016-17/535
 OFFICE OF THE PANCHAYAT SAMITY
 HUT BAY, LITTLE ANDAMAN
 **************
 Hut Bay dated the 2nd Jan. 2017
To,
The Deputy Commissioner,
South Andaman, Port Blair.
Sub: Report on No Confidence Motion against Smt. Sima Sarkar,
Pramukh, Panchayat Samiti, Little Andaman-Reg.
Sir,
 The re-scheduled special meeting on No Confidence Motion
was held on 02/01/2017 at 3:00 pm in the Conference hall of
Panchayat Samiti. The notice was served to 5 elected members
and a Member of Parliament, Andaman and Nicobar
Administration. After serving notice to Member of Parliament as
per Panchayat Regulation 1994 under chapter X at serial no.107
the members of the Panchayat Samiti, Hut Bay become six and
2/3rd majority is 4.
 The meeting was fixed at 3:00 pm and waited upto 1 hour i.e.,
upto 4:00 pm but only 3 members were attended but to fulfill
Quorum 4 member is must hence for want of Quorum meeting
dissolved.
 The extract of proceeding of the meeting is enclosed herewith
for your kind reference.
 Encl: A/A
 Yours Faithfully
Executive Officer
Panchayat Samiti
 Little Andaman"
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4. The respondent No.6 assailed the said decision by way of Writ
Petition No.14 of 2017 before the High Court at Calcutta, Civil
Appellate Jurisdiction, Circuit Bench at Port Blair. Respondent No.6
asserted that the MP had no right to participate in the special meeting
regarding a 'No Confidence Motion' nor was he entitled to vote thereat.
Respondent No.6 prayed for the following reliefs in the said writ
petition:
"In the fact and circumstance mentioned herein above, your
petitioner respectfully prays that YOUR LORDSHIP may be
graciously pleased to issue:-
A. A writ in the nature of certiorari quashing the proceedings dated
02.01.2017 wherein the Executive Officer, Panchayat Samiti,
Little Andaman dated held that quorum required is four
members and as such no confidence motion not be proceeded.
B. A writ in the Mandamus directing the respondent no.1 to call for
a meeting of moving the no confidence against the private
respondent no.1 and further direct the Up-Pramukh i.e. the
respondent no.4 to preside over the meeting to complete the
process without casting to vote in the said meeting.
C. A writ in the nature of the Certiorari directing the respondent
authorities to transmit the case records before this Hon'ble Court
so that after pursuing the same conscionable justice may be
rendered your petitioner and directing the respondent no.1 to
consider the case of the letter of the petitioner dated 19.12.2016
and 02.01.2017.
D. Rule NISI in terms of prayer A&B above.
E. Cost of the incidents to this writ application.
F. Any other order/orders of further order/orders as your Lordship
may deem fit and proper."
5. The writ petition was heard by the learned Single Judge of the
High Court who negatived the stand of respondent No.6 and thus
dismissed the writ petition. The learned Single Judge held that the
quorum for a special meeting to consider the motion of no confidence
against the Pramukh, being two-thirds of the "total membership",
minimum four members of the Panchayat Samiti ought to have remained
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[A.M. KHANWILKAR, J.]
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present. Presence of only three members at the meeting, therefore, did
not constitute quorum. Further, the MP being the member of the said
Samiti was entitled to participate in the special meeting to consider a no
confidence motion and also vote on that motion. As a result, the writ
petition came to be rejected.
6. Respondent No.6 carried the matter before the Division Bench
by way of writ appeal, being M.A. No.26 of 2017. The Division Bench
reversed both the conclusions reached by the learned Single Judge and
instead, opined that the MP representing the Union Territory was not
eligible to participate in the special meeting and vote on a 'No
Confidence Motion' for removal of the Pramukh or Up-Pramukh of the
Panchayat Samiti. For arriving at that conclusion, the Division Bench
adverted to Sections 107(3), 112(1), 115 and 117 of the Regulation and
Rules 9(3) and 21 of the Rules. Additionally, the Division Bench placed
reliance on the decisions in Ramesh Mehta Vs. Sanwal Chand Singhvi
and Ors.1 and State of Karnataka and Ors. Vs. Lakshmappa
Kallappa Balaganur and Ors.2 The Division Bench also adverted to
Articles 243(d), 243B and 243C, especially clauses (3), (4) and (5) of
Article 243C of the Constitution of India and opined as follows:
"....Panchayats have been included in the Constitution of the India
by the Constitution (73rd amendment) Act, 1992. The purpose of
amendment appears to be that it was felt that in every State there
should be a panchayats at the village, intermediate and district
levels as a part of self governance. Article 243 (d) of the
Constitution defines Panchayat to mean an institution by whatever
name called of self government constituted under Article 243 B
for the rural areas. Article 243 C deals with composition of
Panchayat. 243 C (3) permits the legislation of the State by law to
provides for representation. Article 243 (C) (4) provides that the
Chairperson of the Panchayat and other members of the Panchayat
whether or not chosen by direct election from territorial
constituencies in the Panchayat area shall have the right to vote
in the meetings of the panchayats. The Chairperson of a Panchayat
at the intermediate level or district level under Article 243 (C) (5)
(b) shall be elected by and from amongst the elected members
thereof. Article 243 (C) (4) is similar to Regulation 107 (3) (b)
which provides that the member of the House of Parliament
1 (2004) 5 SCC 409
2(2001) 3 KLJ 498
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representing the Union Territory shall also be represented in the
Panchayat Samiti with a right to vote in the meetings of the
Panchayat Samiti. It has to be seen from the Regulations whether
or not the Regulations intend to treat the Member of Parliament
at par with the elected members of the Panchayat to participate
in the proceedings initiated for removal of the Pramukh of the
Panchayat.
 Although the Regulations and the Rules do not appear to
have made any distinction between "person" and "member" which
appear to have been used at places interchangeably but regard
must be had to the very object for which a member of Parliament
is included in the Panchayat Samiti with a right to vote. The
presence of the Member of Parliament is not required for the
purpose of electing the Pramukh and Up-Pramukh as the
Regulations clearly use the phrase "by and from amongst elected
members of the Panchayat Samiti" and the Member of Parliament
is not treated at par with the elected members for the purpose of
election of such office bearers.
xxx
 xxx
xxx
 xxx
xxx
 In view of the law laid down in the aforesaid decisions on
interpretation on similar rules and/or regulations, we are of the
opinion that the Member of Parliament cannot be treated at par
with an elected member of the Panchayat Samity for the purpose
of removal of Pramukh and Up-pramukh. In the relevant Rules
and Regulations in relation to a motion of no confidence wherever
the word 'member' is used, it would only mean elected members
and not nominated members even though such nominated member
may have a right to vote in other proceedings. All members who
have selected Pramukh and Up-pramukh are all elected members
of the Samiti unlike the nominated members and in matters
concerning motion of no confidence in our view it is only those
members who have been directly elected shall have the right to
remove Pramukh and Up-Pramukh as the said office bearers have
been elected by and from amongst the elected members of
Panchayat Samiti. There is a clear distinction between the two
classes of members and they cannot be treated at par in matters
relating to no confidence motion to remove Pramukh or
Up-Pramukh."
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7. Having thus held, the Division Bench proceeded to allow the
appeal filed by respondent No.6 and consequently granted relief as
prayed for in the writ petition - of setting aside the decision of the
Executive Officer dated 2nd January, 2017. The High Court also directed
the Executive Officer, Panchayat Samiti, Little Andaman to proceed in
accordance with law in light of the observations made in the said
judgment.
8. Feeling aggrieved, the appellant has filed this appeal by special
leave. The appellant moved the Court for urgent consideration of the
matter on 22nd December, 2017 before the Vacation Bench of this Court
when notice came to be issued. However, during the pendency of this
appeal, the Deputy Commissioner, acting upon the directions issued by
the Division Bench of the High Court not only proceeded to remove the
appellant from the post of Pramukh of the Little Andaman Panchayat
Samiti on 26th December, 2017 but also intended to proceed to fill up the
vacancy arising from the removal of the appellant, by scheduling a fresh
election on 19th January, 2018. The appellant, therefore, urgently moved
this Court for appropriate orders on 15th January, 2018, when the
following order came to be passed:
"Learned counsel who have entered appearance on behalf of the
respondents, pray for a week's time to file the counter affidavit.
Learned counsel appearing for the petitioner does not intend to
file the rejoinder affidavit.
As a pure question of law emerges, let the matter be listed on
29th January, 2018. Any election held in the meantime, shall
be subject to the result of this special leave petition."
 (emphasis supplied)
9. Resultantly, the meeting scheduled on 19th January, 2018,
proceeded to elect respondent No.6 as Pramukh of Little Andaman
Panchayat Samiti. As the matter also involved applicability of Articles
243C and 243R of the Constitution of India, this Court on 31st January,
2018, requested the learned Attorney General for India to assist the
Court. Pursuant to the said request, the learned Attorney General for
India appeared in the proceedings and is now represented by Mr. Aman
Lekhi, Additional Solicitor General of India.
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10. We have heard Mr. Purushaindra Kaurav, learned senior
counsel appearing for the appellant, Mr. Aman Lekhi, learned Additional
Solicitor General of India, Ms. G. Indira, learned counsel appearing for
respondent No.1 and Mr. R. Chandrachud, learned counsel appearing
for respondent No.6.
11. By the Constitution 73rd Amendment Act, 1992, which came
into force from 24th April, 1993, Part-IX of the Constitution of India
came to be amended. It envisaged a detailed mechanism for democratic
decentralization of the self-Government on the principle of grass-root
democracy. It may be useful to advert to the Statement of Objects and
Reasons necessitating such amendment, which reads thus:
 "THE CONSTITUTION (SEVENTY-THIRD AMENDMENT)
ACT, 1992
Statement of Objects and Reasons appended to the Constitution
(Seventy-second Amendment) Bill, 1991 which was enacted as
the Constitution (Seventy-third Amendment) Act, 1992
 Though the Panchayati Raj institutions have been in existence
for a long time, it has been observed that these institutions have
not been able to acquire the status and dignity of viable and
responsive people's bodies due to a number of reasons including
absence of regular elections, prolonged supersessions, insufficient
representation of weaker sections like Scheduled Casts, Scheduled
Tribes and women, inadequate devolution of powers and lack of
financial resources.
 2. Article 40 of the Constitution which enshrines one of the
directive principles of State Policy lays down that the State shall
take steps to organize Village Panchayats and endow them with
such powers and authority as may be necessary to enable them
to function as units of self-government. In the light of the
experience in the last forty years and in view of the shortcomings
which have been observed, it is considered that there is an
imperative need to enshrine in the Constitution certain basic and
essential features of Panchayati Raj institutions to impart certainty,
continuity and strength to them."
 By virtue of this amendment, Panchayat has been defined
to mean an institution (by whatever name called) of selfSEEMA SARKAR v. EXECUTIVE OFFICER AND ORS.
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Government constituted under Article 243B for the rural areas.
Article 243B reads thus:
"243B. Constitution of Panchayats.-(1) There shall be
constituted in every State, Panchayats at the village, intermediate
and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the
intermediate level may not be constituted in a State having a
population not exceeding twenty lakhs."
It may be apposite to reproduce Article 243C which deals with
composition of Panchayats. The same reads thus:
"243C. 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 ratio 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 ratio 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
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which comprise wholly or partly a Panchayat area at a level other
than 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 direct 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 Legislature 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."
12. In the present case, we are concerned with an intermediate
level Panchayat. The composition of such Panchayat can be culled out
from Article 243C. Clause (1) makes it amply clear that the legislature
of a State is free to make a law with respect to the composition of
Panchayat subject to the provisions of Part-IX of the Constitution. In
the present case, we are not so much concerned about the composition
of Panchayat, except to notice that clause (2) of the said Article makes
it clear that all the seats in the Panchayat shall be filled up by persons
chosen by direct election from the territorial constituencies in the
Panchayat area. Clause (3) of the Article is an enabling clause
permitting the legislature of a State to make a law to provide for the
representation of other persons who are not directly elected from the
territorial constituencies in the Panchayat area. Clause (4) deals with
the right to vote in the meetings of the chairperson of a Panchayat or
other members of the Panchayat whether or not chosen by direct
election from the territorial constituencies in the Panchayat area. Clause
(5) deals with the manner in which the chairperson of a Panchayat is
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elected at the village level, intermediate level or district level, as the
case may be.
13. The chairperson of a Panchayat at intermediate level is
required to be elected by, and from amongst, the elected members thereof.
On a conjoint reading of the provisions referred to above, it is crystal
clear that there is marked distinction between the member of the
Panchayat chosen by direct election from the territorial constituencies
in the Panchayat area referred to in clause (2) vis-a-vis other persons
referred to in sub-clauses (a) to (d) of clause (3) of Article 243C, who
may also represent as per the law made by the State Legislature. Thus
understood, there is little doubt that the election of chairperson is by the
former category of the members of the Panchayat, namely, directly
elected from the territorial constituencies in the Panchayat area and one
from amongst them is then elected as a chairperson. Notably, there is no
express provision in the Constitution dealing with the removal of a
chairperson of the Panchayat Samiti.
14. Taking cue from the absence of such a provision in the
Constitution, it was argued by the learned ASG that it being a case of
constitutional silence by interpretative process, the Court must hold that
the MP, not being directly elected from the territorial constituencies in
the Panchayat area and only a representative in the Panchayat Samiti
by virtue of law made in terms of Article 243C(3), is neither entitled to
participate in a special meeting concerning a 'No Confidence Motion'
nor eligible to vote thereat. For, only the body of members directly elected
from the territorial constituencies in the Panchayat area which had elected
the Chairperson/Pramukh, would alone be competent to vote on a 'No
Confidence Motion'. The concomitant is that the Member of Parliament
(MP), though a member of the Panchayat Samiti, is not competent to
participate in the special meeting and vote on a 'No Confidence
Motion'.
15. This argument is not wholly accurate. In our opinion, that
approach may become necessary only if the legislature of the State also
had chosen to remain silent by not enacting any law on the subject of
removal of the Pramukh or Up-Pramukh of the Panchayat Samiti.
Indisputably, however, a law on the said subject is already in place in the
form of the Regulation as also the Rules concerning Panchayat
administration. The Constitution itself enables the State Legislature to
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make a law on the subject of composition of Panchayats, including
regarding election of the Pramukh, subject to the provisions contained in
Part-IX of the Constitution.