# USHA BHARTI v. STATE OF U.P. & ORS

- **Citation:** [2014] 4 S.C.R. 1076
- **Court:** Supreme Court of India
- **Decided:** 2014-03-28
- **Case number:** Civil Appeal No. 4197 of 2014
- **Bench:** Surinder Singh Nijjar, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/usha-bharti-v-state-of-u-p-ors-29820
- **Pages:** 62

## Headnote

UP. KSHETTRA PANCHAYAT & ZILA PANCHAYAT
C ACT, 1961:
s. 28 - Motion of No Confidence - Adhyaksh of the Zita
Panchayat - Removal of - Held: s.28 ensures that an elected
representative can only stay in power so long as such person
enjoys the support of the majority of the elected members of
D the Zita Panchayat - No doubt, there are certain positions in
the Constitution, which are filled up through election but
individuals so elected cannot be removed by way of No
Confidence Motion, e.g. Rajya Sabha Members, Lok Sabha
Members and the President of India, however, Part IX of the
E Constitution of India has not placed office of an Adhyaksha
of a Zita Panchayat on the same pedestal as the President
of India - There is no prohibition under Article 243F
disenabling any State Legislature for enacting that an elected
Adhyaksha shall remain in office only so long as such elected
F person enjoys the majority support of the elected members
of the Zita Panchayat - Issue with regard to the constitutionality
of s.28 of the Act was considered by Supreme Court in
Bhanumati case - In the face of the findings therein, it cannot
be said that the judgment in Bhanumati was either per
G incuriam or required reconsideration - Constitution of India,
1950 - Articles 243C, 243F, 243N - Election laws.
s.28 - Whether repugnant to Part IX of the Constitution
of India - Held: The provisions of Part IX are to ensure that
H
1076
USHA BHARTI v. STATE OF U.P. & ORS.
1077
Panchayati Raj Institutions acquire "the status and dignity of A
viable and responsive people's bodies" - The provisions are
not meant to provide an all pervasive protective shield to an
Adhyaksha, Zita Panchayat, even in cases of loss of
confidence of the constituents - Provision in s. 28, therefore,
cannot be said to be repugnant to Part IX of the Constitution
B
of India.
s. 28 - Reservation for Scheduled Caste Ladies -
Removal of Scheduled Caste Ladies from the post of
Adhyaksha - Held: The provisions contained in s.28 does not C
frustrate the provisions for reservation for Scheduled Caste
Ladies - Even if an Adhyaksha belonging to one of the
reserved categories, Scheduled Castes, Scheduled Tribes
and other Backward Classes is removed on the basis of the
vote of No Confidence, she can only be replaced by a
candidate belonging to one of the reserved categories - Plea D
that s. 28 deprive a candidate belonging to the reserved
category of a position to which he or she has been elected
on the basis of reservation is wholly fallacious - Appellant had
contested the election as an Adhyaksha, Zila Panchayat from
a seat reserved for Ladies - Merely because she happened E
to belong to the reserved category, it cannot be said that the
provision with regard to the reservation for the members of the
Scheduled Castes/Scheduled Tribes/Backward Classes has
been in any manner diluted.
CODE OF CIVIL PROCEDURE, 1908: Order 47 r.1 -
Scope of - Held: High Court or Supreme Court, in exercise
F
of its powers of review can reopen the case and rehear the
entire matter - But whilst exercising such power, the court
cannot be oblivious of the provisions contained in Order 47 G
Rule 1 of CPC as well as the rules framed by the High Courts
and Supreme Court.
The appellant contested the election held in October,
2010 for becoming a Member of the Zila Panchayat and
was elected. On 12th December, 2010, the appellant was H
1078
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A elected as Adhyaksh of the Zila Panchayat. On 30th
October, 2012, a notice of proposed Motion of No
Confidence was given to the Collector, Sitapur for calling
a meeting under Section 28 of the U.P. Kshettra
Panchayat & Zila Panchayat Act, 1961 signed by 37
B members. Aggrieved, the appellant filed a writ petition on
various grounds alleging that the Motion for No
Confidence was done with an ulterior motive to usurp the
office of the appellant. It was alleged that atleast three
members whose names were mentioned in the Motion for
c No Confidence had not signed the

## Text

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[2014] 4 S.C.R. 1076
A
USHA BHARTI
B
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 4197 of 2014)
MARCH 28, 2014
[SURINDER SINGH NIJJAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
UP. KSHETTRA PANCHAYAT & ZILA PANCHAYAT
C ACT, 1961:
s. 28 - Motion of No Confidence - Adhyaksh of the Zita
Panchayat - Removal of - Held: s.28 ensures that an elected
representative can only stay in power so long as such person
enjoys the support of the majority of the elected members of
D the Zita Panchayat - No doubt, there are certain positions in
the Constitution, which are filled up through election but
individuals so elected cannot be removed by way of No
Confidence Motion, e.g. Rajya Sabha Members, Lok Sabha
Members and the President of India, however, Part IX of the
E Constitution of India has not placed office of an Adhyaksha
of a Zita Panchayat on the same pedestal as the President
of India - There is no prohibition under Article 243F
disenabling any State Legislature for enacting that an elected
Adhyaksha shall remain in office only so long as such elected
F person enjoys the majority support of the elected members
of the Zita Panchayat - Issue with regard to the constitutionality
of s.28 of the Act was considered by Supreme Court in
Bhanumati case - In the face of the findings therein, it cannot
be said that the judgment in Bhanumati was either per
G incuriam or required reconsideration - Constitution of India,
1950 - Articles 243C, 243F, 243N - Election laws.
s.28 - Whether repugnant to Part IX of the Constitution
of India - Held: The provisions of Part IX are to ensure that
H
1076
USHA BHARTI v. STATE OF U.P. & ORS.
1077
Panchayati Raj Institutions acquire "the status and dignity of A
viable and responsive people's bodies" - The provisions are
not meant to provide an all pervasive protective shield to an
Adhyaksha, Zita Panchayat, even in cases of loss of
confidence of the constituents - Provision in s. 28, therefore,
cannot be said to be repugnant to Part IX of the Constitution
B
of India.
s. 28 - Reservation for Scheduled Caste Ladies -
Removal of Scheduled Caste Ladies from the post of
Adhyaksha - Held: The provisions contained in s.28 does not C
frustrate the provisions for reservation for Scheduled Caste
Ladies - Even if an Adhyaksha belonging to one of the
reserved categories, Scheduled Castes, Scheduled Tribes
and other Backward Classes is removed on the basis of the
vote of No Confidence, she can only be replaced by a
candidate belonging to one of the reserved categories - Plea D
that s. 28 deprive a candidate belonging to the reserved
category of a position to which he or she has been elected
on the basis of reservation is wholly fallacious - Appellant had
contested the election as an Adhyaksha, Zila Panchayat from
a seat reserved for Ladies - Merely because she happened E
to belong to the reserved category, it cannot be said that the
provision with regard to the reservation for the members of the
Scheduled Castes/Scheduled Tribes/Backward Classes has
been in any manner diluted.
CODE OF CIVIL PROCEDURE, 1908: Order 47 r.1 -
Scope of - Held: High Court or Supreme Court, in exercise
F
of its powers of review can reopen the case and rehear the
entire matter - But whilst exercising such power, the court
cannot be oblivious of the provisions contained in Order 47 G
Rule 1 of CPC as well as the rules framed by the High Courts
and Supreme Court.
The appellant contested the election held in October,
2010 for becoming a Member of the Zila Panchayat and
was elected. On 12th December, 2010, the appellant was H
1078
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A elected as Adhyaksh of the Zila Panchayat. On 30th
October, 2012, a notice of proposed Motion of No
Confidence was given to the Collector, Sitapur for calling
a meeting under Section 28 of the U.P. Kshettra
Panchayat & Zila Panchayat Act, 1961 signed by 37
B members. Aggrieved, the appellant filed a writ petition on
various grounds alleging that the Motion for No
Confidence was done with an ulterior motive to usurp the
office of the appellant. It was alleged that atleast three
members whose names were mentioned in the Motion for
c No Confidence had not signed the motion/notice for
requesting the Collector to call a meeting. An enquiry was
held on the direction of the High Court to ascertain
genuinessness of the affidavits and signatures of the
members. The report was duly submitted, which indicated
0 that 33 Members had admitted their signatures appearing
on the notice and the affidavits. The High Court
accordingly dismissed the writ petition. The appellant
filed SLP. Meanwhile, on 06.02.2013, the Collector issued
notice fixing 22.02.2013 for consideration of the Motion
of No confidence. The Supreme Court held that the
E remedy of the petitioner (Appellant) would be to seek
review of the judgment of the High Court rather than to
challenge the same by way of SLP. The prayer that the
operation of the impugned order be stayed for two weeks
to enable the appellant to approach the High Court by
F way of review petition was declined. It was, however,
made clear that the result of the meeting, which was
scheduled to be held on 22nd February, 2013, would not
be declared for a further period of two weeks. Thereafter,
the appellant filed review petition before the High Court.
G The High Court dismissed the review petition. On 10th
July, 2013, the District Magistrate, fixed a meeting for
counting of votes on 12th July, 2013.
· Aggrieved by the judgment of the High Court, the
H appellant filed instant SLP. In the meantime, No
USHA BHARTI v. STATE OF U.P. & ORS.
1079
Confidence Motion was passed against the appellant with
A
33 votes in favour of the No Confidence Motion and 23
against with 6 votes being declared invalid. There was no
challenge to the result of the No Confidence Motion, with
regard to the counting of votes. On 12th Ju~y. 2013, the
Supreme Court issued notice and directed that "in the
B
meanwhile, status quo shall be maintained". Whilst the
matter was pending, on 23rd July, 2013, the appellant filed
Contempt Petition for violating the orders dated 12th July,
2013. I.A. was filed on 18th November, 2013 pointing out
that in spite of No Gonfidence Motion having been c
passed, the appellant has continued to take policy
decisions which were not only prejudicial to public
interest but would also create several problems for Zila
Panchayat, in case the instant appeal is dismissed. A
direction was issued that the District Magistrate would
0
chair the meeting on 8th November, 2013 and the
issuance of the said direction would not in any manner
vary/alter the status quo order passed on 12th July, 2Ci13,
which was directed to continue.
Dismissing the writ petition and the contempt petition
E
and the appeal, the Court
F
HELD: 1. The provision contained in Section 28 of
the U.P. Kushettra Panchayat and Zila Panchayat Act,
1961 Act is in no manner, inconsistent with the provisions
contained in Part IX, in particular, Article 243N of the
Constitution of India. Section 19 of the 1961 Act provides
that in every Zila Panchayat, an Adhyaksha shall be
elected by the elected members of the Zila Panchayat
through amongst themselves. Section 19-A was
G
introduced by U. P. Act No.9 of 1994 providing for
reservation of the offices of Adhyaksha, for persons
belonging to Scheduled Casts and Scheduled Tribes and
the Backward Classes. Section 19-A(2) provides that "not
'less than one-third of the offices shall be reserved for the
H
1080
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A ladies belonging to the Scheduled Castes, Scheduled
Tribes or the Backward Classes as the case may be."
Under this Section, on a seat reserved for the said
categories of Scheduled Castes, Scheduled Tribes and
the Backward Classes, a person belonging to that
B category would be elected from a particular Panchayat
in which reservation is made on the basis of the roster
provided in Section 19-A(3). Section 20 of the Act
provides that a Zila Panchayat shall continue for five
years from the date appointed for its first meeting and no
C longer. It is also provided that Section 20(2) that the term
of office of a member of a Zila Panchayat shall expire with
the term of Zila Panchayat unless otherwise determined
under the provisions of the Act. Section 21 provides that
save as otherwise provided in this Act, the term of office
of the Adhyaksha shall commence on his election and
D with the term of Zila Panchayat. Section 26 provides for
disqualification for being a member or an Adhyaksha in
case a person has incurred any disqualification for being
elected as a member of the Panchayat. [Paras 18 and 19]
E [1110-E-G; 1111-B-G]
2. Section 28 provides for a Motion of No Confidence
in Adhyaksha. The section provides detailed procedure
with regard to the issuance of written notice of intent to
make the motion, in such form as may be prescribed,
F signed by not less than one-half of the total number of
the elected members of the Zila Panchayat for the time
being. Such notice together with the copy of the
proposed motion has to be delivered to the Collector
having jurisdiction over the Zila Panchayat. Therefore, the
G Collector shall convene a meeting of the Zila Panchayat
for consideration of the motion on a date appointed by
him which shall not be later than 30 days the date from
which the notice was delivered to him. The Collector is
required to give a notice to the elected members of not
H less than 15 days of such meeting in the manner
USHA BHARTI v. STATE OF U.P. & ORS.
1081
prescribed. The meeting has to be presided over by the
District Judge or a Civil Judicial Officer not below the
rank of a Civil Judge. The debate on the motion cannot
be adjourned by virtue of provisions contained in
Section 28(7). Sub-section (8) further provides that the
debate on the No Confidence Motion shall automatically
terminate on the expiration of 2 hours from the time
appointed for the commencement of the meeting, if it is
not concluded earlier. Either at the end of 2 hours or
ear'iier, the motion has to be put to vote. Further more, the
Presiding Officer who is either District Judge or a Judicial
Officer is not permitted to speak on the merits of the
motion, and also not entitled to vote. Sub-section (11)
provides that "if the motion is carried with the support of
(more than half) of the total number of (elected members)
of the Zila Panchayat for the time being". The said
provision contained in Section 28 is, in no manner,
inconsistent with the provisions contained in Article
243N. To accept the submission of inconsistency would
be contrary to the fundamental right of democracy that
those who elect can also remove elected person by
expressing No Confidence Motion for the elected person.
Undoubtedly, such No Confidence Motion can only be
passed upon observing the procedure prescribed under
the relevant statute, in the instant case the Act. [Para 20]
[1111-G-H; [1112-A-G]
3. Section 29 provides for a procedure for removing
an Adhyaksha who is found guilty of misconduct in the
discharge of his/her duties. This Section, in no manner,
either overrides the provisions contained in Section 28
A
B
c
D
E
F
or is in conflict with the same. [Para 21] [1112-H; [1113G
A-8]
4. It is wrong to state that Section 28 could not have
continued after expiry of one year of the enactment of
73rd Amendment of the Constitution of India, which came
H
1082
SUPREME COURT REPORTS
[2014) 4 S.C.R.
,,.,.
~ A into effec~ on 24th April, 1993. Such an eventuality would
have arisen only in case it was found that Section 28 is
inconsistent with any provision of Part IX of the
Constitution. Merely because Article 243F is silent with
regard to the removal of an Adhyaksha on the basis of a
B Motion of No Confidence would not render the provision
inconsistent with the Article 243 of the Constitution of
India. [Para 22] [1113-B-D]
5. The provisions contained in Section 28 does not
C frustrate the provisions for reservation for Scheduled
Caste Ladies. Even if an Adhyaksha belonging to one of
the reserved categories, Scheduled Castes, Scheduled
Tribes and other Backward Classes is removed on the
basis of the vote of No Confidence, she can only be
replaced by a candidate belonging to one of the reserved
D categories. [Para 23] [1113-E-F]
6. Part IX of the Constitution has made provisions for
self-governance at Panchayat level, including the election
of Panchayat Members and its Chairman. Thus, ushering
E in complete decentralization of the Government and
transferring the power to the grass roots level bodies;
such as the Panchayats at the village, intermediate and
District level, in accordance with Article 243C of the
Constitution. Article 243 C as well as some others, such
F as Articles 243-A, 243-C(5), 243-0(4), 243-0(6), 243-F(1), (6),
243-G, 243-H, 243-1(2), 243-J, 243-K(2), (4) of the
Constitution etc make provision for the State to enact
necessary legislation to implement the provisions in Part
IX of the Constitution of India. It is wrong to say that State
G Legislature will have no power to make provision for noconfidence motion against the Adhyaksha of Zila
Panchayat. [Para 24) [1113-G-H; 1114-A; 1115-F-G]
7. It is also wrong to say that a person once elected
to the position of Adhyaksha would be permitted to
H continue in office till the expiry of the five years terms,
USHA BHARTI v. STATE OF U.P. & ORS.
1083
even though he/she no longer enjoys the confidence of A
the electorate. To avoid such catastrophe, a provision for
no-confidence, has been made in Section 28 of the Act.
Such contentions, if accepted, would destroy the
foundational precepts of democracy that a person who
is elected by the members of the Zila Panchayat can only
B
remain in power so long as the majority support is with
such person. [Para 25) [1116-A-C]
8. There is no interference whatsoever in the right of
the electorate to choose. Rather Section 28 ensures that
an elected representative can only stay in power so long
C
as such person enjoys the support of the majority of the
elected members of the Zila Panchayat. In the instant
case, at the time of election, the appellant was the chosen
one, but, at the time when the Motion of No Confidence
in the appellant was passed, she was not wanted.
D
Therefore, the right to choose the electorate, is very much
alive as a consequence of the provision contained in
Section 28. [Para 26) [1116-E-F]
/.R. Coelho v. Union of India (2007) 2 SCC 1: 2007 (1)
SCR 706 - held inapplicable
E
D.S.Nakara vs. Union of India (1983) 1 SCC 305: 1983
(2) SCR 165 - referred to.
9. It is wrong to state that the provisions contained
in Section 28 of the Act cannot be sustained in the eyes
F
of law as it fails to satisfy the twin test of reasonable
classification and rational nexus with the object sought
to be achieved. [Para 27) [1116-G-H]
10. It is true that in the Constitution, Article 678
provides for removal of the Vice-President by a resolution
G
of the Council of States as provided therein passed by
the majority of all the then members of the Council and
agreed to by the House of People. It is also correct that
under Article 90C, the Deputy Chairman of the Council of
States can be removed from his office on a resolution of
H
1084
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A the Council passed by all the majority members of the
then Council. Similarly, Article 94 provides that a member
of holding office as Speaker or Deputy Speakers of the
House of People may be removed from his office by a
resolution of the House of People passed by a majority
B of all the then members of the House. It is also true that
there are certain positions in the Constitution, which are
filled up through election but individuals so elected
cannot be removed by way of No Confidence Motion, e.g.
Rajya Sabha Members, .Lok Sabha Members and the
C President of India. It is wrong to state that Part IX of the
Constitution of India has placed office of an Adhyaksha
of a Zila Panchayat on the same pedestal as the President
of India. Article 243F empowers the States to enact any
law for a person who shall be disqualified for being
0 chosen as a member of a Panchayat. This would also
include a member of a Panchayat, who is subsequently
appointed as Adhyaksha of a Zila Panchayat. There is no
prohibition under Article 243F disenabling any State
Legislature for enacting that an elected Adhyaksha shall
remain in office only so long as such elected person
E enjoy.s the majority support of the elected members of the
Zila Panchayat. [Paras 28, 29] [1117-F-G; 1118-A-B]
11. The seat for the office of Adhyaksha of Zila
Panchayat was reserved for women candidates, i.e., all
F women candidates. It was not specifically reserved for
Ladies belonging to the reserved categories of
Scheduled Castes, Scheduled Tribes and the Backward
Classes. The appellant contested as a Lady Candidate
and not as a candidate belonging to any reserved
category and was elected on a seat reserved for Ladies
G generally. [Para 30] [1118-C-D]
12. The provision under Section 28A of the Act in no
manner dilutes or nullifies the protection given to the
candidates belonging to Scheduled Castes, Scheduled
H Tribes and Backward Classes in the 73rd Amendment of
USHA BHARTI v. STATE OF U.P. & ORS.
1085
the Constitution of India. [Para 34] [1119-F]
A
13. The appellant had contested the election as an
Adhyaksha, Zila Panchayat from a seat reserved for
Ladies. Merely because she happens to belong to the
reserved category, it cannot be permitted to be argued,
8
that the provision with regard to the reservation for the
members of the Scheduled Castes/Scheduled Tribes/
Backward Classes has been in any manner diluted, let
alone nullified. [Para 35] [1120-C-D]
14. The provisions of the 73rd Constitutional
C
amendment are to ensure that Panchayati Raj Institutions
acquire "the status and dignity of viable and responsive
people's bodies". The provisions are not meant to
provide an all pervasive protective shield to an
Adhyaksha, Zila Panchayat, even in cases of loss of D
confidence of the constituents. Provision in Section 28,
th~refore, cannot be said to be repugnant to Part IX of the
Con~titution of India. [Para 36] [1121-A-B]
15. The amendment as well as the main provision in
Section 28 is in absolute accord with the vision explicitly
enunciated in the Preamble of the Constitution of India.
In fact, the spirit which led to ultimately encoding the
goals of "WE THE PEOPLE" in the Preamble of the
Constitution of India, permeates all other provisions of
the Constitution of India. The fundamental aim of the
Constitution of India is to give power to the People.
Guiding spirit of the Constitution is "WE THE PEOPLE
E
F
OF INDIA". In India, the People are supreme, through the
Constitution
of
India,
and
not
the
elected
Representatives. Therefore, the provision for right to
G
recall through the Vote of No Confidence is in no manner
repugnant to any of the provisions of the Constitution of
India. [Para 37] [1121-C-E]
16. The whole edifice of the challenge to the
H
1086
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A ··constitutionality of Section 28 is built on the status of the
appellant as a member belonging to the reserved
category. It has nothing to do with the continuance,
stability, dignity. and the status of the Panchayat
Institutions. The personal desire, of the appellant to cling
B on to the office of Adhyaksha is camouflaged as a
constitutional issue. The ·provision of No Confidence
Motion, is not only consistent with Part IX of the
Constitu~ion, but is also foundational for ensuring
transparency and accountability of the elected
c representatives, including Panchayat Adhyakshas. The
provision sends out a clear message that an elected
Panchayat Adhyaksha can continue to function as such
only so long as he/she enjoys the confidence of the
constituents. [Para 40] [1122-F-H; 1123-A]
D
17. The submission that *Bhanumati case is per
incuriam is not well founded. The ground that the Court
in *Bhanumati case had not considered the provision
with regard to special protection to be given to the
members of the Scheduled Castes, Scheduled Tribes
E and the Backward Classes was never made before in
*Bhanumati case. Secondly, the issue with regard to
reservation for Scheduled Castes, Scheduled Tribes and
the Backward Classes, does not arise in the facts of this
case as the appellant had not been elected to the office
F of Adhyaksha of Zila Panchayat reserved for Scheduled
Castes and Scheduled Tribes. The provision for
removing an elected representative such as Panchayat
Adhyaksha is of fundamental importance to ensure the
democratic functioning of the Institution as well as to
G ensure the transparency and accountability in the
functions performed by the elected representatives. In
*Bhanumati case, the Court also mentions that the
statutory provision of No Confidence Motion against the
Chairperson is a pre-constitutional provision and was
H there in Section 15 of the 1961 Act. In the face of these
USHA BHARTI v. STATE OF U.P. & ORS.
1087
findings, it would not be possible to accept the
A
submission that the judgment in *Bhanumati case is
either per incuriam or requires reconsideration. [Paras 41,
47, 49 and 50) [1123-8-0;1126-BC; 1127-F-G; 1128-B-C)
*Bhanumati & Ors. v. State of Uttar Pradesh through its
8
Principal Secretary & Ors. (2010) 12 SCC 1: 2010 (7) SCR
585 - relied on.
18. Under Article 243N, any provision of law relating
to Panchayats in force immediately before the 73rd
Amendment, which is inconsistent with Part IX continues
C
to be enforced until amended or repealed. In the absence
of such amendment or repeal, the inconsistent provision
will continue until the expiration of one year from the
commencement of th~ Constitution (73rd Amendment)
Act, 1993. The State of Uttar Pradesh enacted U.P.
D
Panchayat Law (Amendment) Act, 1994 on 22nd April,
1994 to give effect to the provisions of Part IX of the
Constitution. The pre-existing provision of No Confidence
was not repealed. It was amended subsequently by the
Amendment Act of 1998 (U.P. Act No. 20 of 1998). There
E
was a further amendment by the Amendment Act of 2007
(U.P. Act No. 4 of 2007). By this amendment, the period
for moving a No Confidence Motion was reduced from
two years to one year. Furthermore the requirement that
for a Motion of No Confidence to be carried, it had to be
F
supported by a majority of "not less than two third" was
reduced to "more than half". It was these amendment
changes brought about by the Amendment Act of 2007,
which was challenged in the case of *Bhanumati & Ors.
The continuous of the provision of No Confidence Motion
G
was not even challenged. In spite of the fact that the
challenge was limited only to the amendment, this Court
examined the question as to whether provision for
bringing a Motion of No Confidence in Section 28 of the
1961 Act was repugnant or inconsistent with Part IX of H
1088
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A the Constitution of India. The Court thereafter noticed the
submission that the position of Panchayat Adhyaksha is
comparable with that of the President of India. This Court
rejected the submission with the observation that "this
is an argument of desperation and has been advanced,
B with respect, without any regard to the vast difference in
constitutional status and position between the two
posts." Even by stretching the imagination beyond all
reasonable bounds, Chairman of a District Panchayat
cannot be put on the same pedestal as the President of
c India. [Paras 51, 52) [1128-C-H; 1129-A, E-G]
19. No substantial question of law has arisen as
envisaged under Article 145(3) of the Constitution of India
as to the interpretation of the Constitution of India, in the
facts and circumstances of this case. The entire issue has
D been elaborately, and with erudition, dilated upon by this
Court in Bhanumati & Ors. There is no occasion for
reconsideration of the judgment of this Court in
Bhanumati & Ors. [Para 54) [1130-A-C]
E
Board of Control for Cricket in India v. Netaji Cricket Club
F
(2005) 4 SCC 741: 2005 (1) SCR 173; S. Nagaraj & Ors. v.
State of Karnataka & Anr. (1993) Supp. 4 SCC 595: 1993
(2) Suppl. SCR 1; Green View Tea & Industries v. Collector,
Go/aghat, Assam & Anr. (2004) 4 SCC 122 - relied on.
Deep Chand v. State of UP. (1959) Supp. 2 SCR 8; Ch.
Tika Ramji v. State of UP. (1956) SCR 393; Zaverbhai
Amaidas v. State of Bombay (1955) 1 SCR 799; Synthetics
and Chemicals Ltd. & Ors. v. State of UP. & Ors. (1990 1
SCC 109: 1989 (1) Suppl. SCR 623; Zee Te/efilms Ltd. v.
G Union of India (2005) 4 SCC 649: 2005 (1) SCR 913;
Nirmaljeet Kaur v. State of M.P. (2004) 7 SCC 558: 2004 (3)
Suppl. SCR 1006; Bharat Petroleum Corporation Ltd. v.
Maddu/a Ratnavalli (2007) 6 SCC 81: 2007 (5) SCR 997;
Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC
H 304: 1995 (6) Suppl. SCR 759; Magan/al Chhagalal (P) Ltd.
USHA BHARTI v. STATE OF U.P. & ORS.
1089
v. Municipal Corporation of Greater Bombay (1974) 2 SCC
A
402: 1975 (1) SCR 1; Director of Industries v. Deep Chand
Agarwal (1980) 2 SCC 332: 1980 (2) SCR 1015 - held
inapplicable
20. The High Court or this Court, in exercise of its
8
powers of review can reopen the case and rehear the
entire matter. But whilst exercising such power the court
cannot be oblivious of the provisions contained in Order
47 Rule 1 of CPC as well as the rules framed by the High
Courts and this Court. The High Court has not erred in
C
law in not reviewing its earlier judgment. [Paras 62, 64)
[1134-D-E; 1136-A]
State of Assam v. Ripa Sarma (2013) 3 SCC 63: 2013
(4) SCR 151; Suseel Finance & Leasing Co. v. M. Lata &
Ors. (2004) 13 SCC 675; Bore Gowda v. State of Kamataka
D
(2000) 10 SCC 620; N. Bhargawan Pillai v. State of Kera/a
(2004) 13 sec 217: 2004 (1) Suppl. SCR 444; State of U.P.
v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139; Babu
Parasu Kaikadi Vs. Babu (2004) 1 SCC 681: 2003 (4) Suppl.
SCR 1153; Shanker Motiram Nale v. Shiolalsing Gannusing
E
Rajput (1994) 2 SCC 753; Dhondiram Tatoba Kadam v.
Ramchandra Balwantrao Dubai (since deceased) by His LRs.
& Anr. (1994) 3 SCC 366: 1993 (1) Suppl. SCR 419; Union
df India vs.I Cf. Ganayutham (1997) 7 SCC 463: 1997 (3)
Suppl. SCR 549; State of A.P. vis McDowell & Co. (1996) 3
F
SCC 709: 1996 (3) SCR 721; Senior Superintendent of Post
Offices vs. lzhar Hussain (1989) 4 SCC 318: 1989 (3) SCR
796 - referred to.
Case Law Reference:
2013 (4) SCR 151
referred to
G
Para 16
(2004) 13 sec 675
referred to
Para 16
2010 (7) SCR 585
relied on
Para 16
2007 (1) SCR 706
held inapplicable Para 26
H
1090
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
(1959) Supp. 2 SCR 8
held inapplicable Para 16
(1955) 1 SCR 799
held inapplicable Para 16
2004 (1) Suppl. SCR 444
refer-red to
Para 16
B
(1991) 4 sec 139
referred to
Para 16
2003 (4) Suppl. SCR 1153
referred to
Para 16
2004 (3) Suppl. SCR 1006
held inapplicable Para 16
2005 (1) SCR 913
held inapplicable Para 16
c
2005 (1) SCR 173
relied on
Para 16
1993 (2) Suppl. SCR 1
relied on
Para 16
(2004) 4 sec 122
relied on
Para 16
D
(1994) 2 sec 753
referred to
Para 16
1983 (2) SCR 165
referred to
Para 27
(1956) SCR 393
held inapplicable Para 57
E
(2000) 1 o sec 620
referred to
Para 59
1989 (1) Suppl. SCR 623
held inapplicable Para 59
1993 (1) Suppl. SCR 419
referred to
Para 59
F
1983 (2) SCR 165
referred to
Para 60
1997 (3) Suppl. SCR 549
referred to
Para 60
2007 (5) SCR 997
referred to
Para 60
1996 (3) SCR 721
referred to
Para 61
G
1989 (3) SCR 796
referred to
Para 61
1995 (6) Suppl. SCR 759
held inapplicable Para 61
1975 (1) SCR 1
held inapplicable Para 61
H
1980 (2) SCR 1015
held inapplicable Para 61
-··
USHA BHARTI v. STATE OF U.P. & ORS.
1091
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
A
4197 of 2014.
From the Judgment and Order dated 04.07.2013 of the
High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow in Review Petition No. 103 of 2013 in Re: W.P. No.
9654/MB/2012.
WITH
Contempt Petition (Civil) No. 287 of 2013 in C.A. No.
4197 of 2014.
Civil Appeal No. 4199 of 2014.
Kamini Jaiswal, Rohit Kumar Singh for the Appellant.
Niraj Gupta, Gaurav Mehrotra, Rajeev Maheshwaranand
B
c
Roy, Sanjay Kumar Visen, Rakesh Kumar Singh, Prem
Prakash, Yash Pal Dhingra, Abhisth Kumar for the
D
Respondents.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. Leave granted.
2. These appeals are directed against the judgment and
order passed by the High. Court of Judicature at Allahabad
(Lucknow Bench) in Review Petition No.103 of 2013 on 4th July,
2013 dismissing the review petition filed by the appellant.
E
3. Since the issues raised in these appeals are pristinely
F
legal, it would not be necessary to make a detailed reference
to the facts, leading to the filing of the present appeals. Even
otherwise, the High Court in the impugned judgment has made
an elaborate survey of the facts. Therefore, it is unnecessary
to repeat the same. However, the foundational facts for
G
challenging the impugned judgment of the High Court are
recapitulated for ready reference.
4. The appellant successfully contested the election held
in October, 2010 for becoming a Member of the Zila Panchayat,
Sitapur, U.P. 62 candidates were elected as the Members of
H
1092
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A the Zila Panchayat including the appellant and respondents 5
to 37. On 12th December, 2010, the appellant was elected as
Adhyaksh of the Zila Panchayat, Sitapur. On 30th October,
2012, a notice of proposed Motion of No Confidence was given
to the Collector, Sitapur for calling a meeting under Section 28
B of the U. P. Kshettra Panchayat & Zila Panchayat Act, 1961 (for
short 'the Act'). The notice calling for a Motion of No Confidence
was signed by 37 members. The legal requirement under
Section 28(2) is that a motion expressing want of confidence
in the Adhyaksh must be signed by not less than half of the total
c number of elected members. On 31st October, 2012, the
Collector, Sitapur issued a notice informing the elected
members that a meeting for considering the Motion of No
Confidence will be held on 23rd November, 2012.
5. Aggrieved by the issuance of said notice, the appellant
D filed Writ Petition No.9654 of 2012 on various grounds alleging
that the motion for no confidence has been done with an ulterior
motive to usurp the office of the appellant. It was alleged that
atleast three members whose names were mentioned in the
Motion for No Confidence had not signed the motion/notice
E requesting the Collector to call a meeting. The appellant made
the following prayers in the writ petition :-
F
G
H
"(i)
Issue an appropriate writ, order or direction in the
nature of certiorari quashing the impugned notice
of intent to bring no-confidence motion against the
petitioner;
(ii)
Issue a writ, order or direction or writ in the nature
of certiorari quashing the notice dated 31st
October, 2012, issued by respondent No.3, as
contained in Annexure No.1 to the writ petition.
(iii)
Issue a writ, order or direction or writ in the nature
of mandamus directing the respondent No.3 to
verify the genuineness of the signature of the
member's on the notice to bring motion against the
USHA BHARTI v. STATE OF U.P. & ORS.
1093
[SURINDER SINGH NIJJAR, J.]
petition dated 30th October, 2012,
(iv)
Issue a writ, order or direction or writ in the nature
of mandamus commanding the opposite parties to
let the petitioner to continue on the office of
Adhyaksha, Zila Panchayat Sitapur of Tehsil &
District Sitapur.
(v)
Issues an ad-interim mandamus to the above
effect.
(vi)
Issue any other appropriate writ, order or direction
in favour of the petitioner as the Hon'ble Court may
deem fit in the circumstances of the case.
And
(vii)
Award the costs of the petition to the petitioner."
6. The High Court on 21st November, 2012 directed the
District Judge or any Additional District Judge nominated by
him to hold an enquiry to ascertain genuineness of the affidavits
and signatures of members and to submit a report thereon
before the next date of hearing. It was also directed that further
proceedings of "No Confidence Motion" shall remain in
abeyance .. The matter was to be listed on 20th December,
2012. The report was duly submitted, which indicated that 33
Members had admitted their signatures appearing on the
notice, and the affidavits, submitted in connection with the
motion of no confidence. It was also stated that "among those
members, in respect of whom signatures and affidavits were
doubted, the report of Deputy Director (Pralekh) mentions that
Zila Panchayat Member Mr. Vijay Kumar has also proved to
have been signed and submitted the notice and the affidavit.
Accordingly, 34 Zila Panchayat Members are found to have
applied for bringing in the motion of no confidence." Taking note
of the aforesaid report, the High Court dismissed the writ
petition with the following observations:
A
B
c
D
E
F
F
H
1094
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A
"As the requirement of valid signature for carrying out the
No Confidence Motion is only 31, whereas in the enquiry
report it has been found to be 34, now nothing would
survive in this writ petition. Hence, it is dismissed."
8
7. On 6th February, 2013, the Collector, Sitapur issued
notice fixing 22nd February, 2013 for consideration of the
Motion of No Confidence.
8. Aggrieved by the judgment of the High Court dated 5th
February, 2013, the appellant moved this Court through
C S.L.P.(C) No.8542 of 2013.
9. Mr. Shanti Bhushan, learned senior counsel appearing
for the appellant submitted that the High Court had wrongly
relied upon the report submitted by the Additional District
o Judge without giving the appellant any opportunity to submit any
objection to the report. This apart, in view of the provisions
contained in Article 243C(2)of the Constitution of India, no
provision has been made for No Confidence Motion in
Panchayat elections. It was submitted by Mr. Shanti Bhushan
E that the aforesaid issues with regard to the applicability of
scope and ambit of Article 243 of the Constitution of India, even
though specifically raised the writ petition and argued before
the High Court have neither been noticed nor considered.
Taking note of the aforesaid submissions, this Court passed
F the following order :-
G
"If that be so, in our opinion, the remedy of the petitioner
would be to seek review of the judgment of the High Court
rather than to challenge the same by way of this special
leave petition."
10. The prayer made by Mr. Shanti Bhushan that the
operation of the impugned order be stayed for two weeks to
enable the appellant to approach the High Court by way of
review petition was declined. It was, however, made clear that
H the result of the meeting, which was scheduled to be held on
USHA BHARTI v. STATE OF U.P. & ORS.
1095
[SURINDER SINGH NIJJAR, J.]
22nd February, 2013, shall not be declared for a further period
A
of two weeks.
11. Thereafter, the petitioner filed Review Petition No. 103
of 2013 before the High Court. The appellant stated that
members owning allegiance to the Samajwadi Party led by
8
Smt. Madhu Gupta, W/o Shri Hari Om Gupta - Respondent
No.5, were not able to muster any signature for the initiation of
the Motion and, therefore, appended forged signature of
several Members on the notice of intent to move the Motion of
No Confidence. These forged signatures were used by the
Samajwadi Party to induce other Members to join for giving the
C
notice for moving the Motion of No Confidence. It was stated
that the very initiation of the Motion was a fraud on the system
and against the settled democratic principles. The act of forgery
of signatures was committed on the instance of Respondent
No. 5 and her supporters. Therefore, the initiation of Motion of D
No Confidence was invalid and illegal. The appellant pointed
out that in the earlier writ petition, it was specifically pleaded
that in terms of Article 243N, the provision of Section 28 have
been rendered otiose. The provision contained in Section 28
of the Act, being inconsistent with the constitutional scheme,
E
which does not comprehend the removal of Adhyaksh of Zila
Panchayat, mid term and as such, the Motion otherwise also
could not be permitted to be carried. It was further stated that
"in view of the provisions of Article 243C(ii) of the Constitution
of India, there being no provision in the Panchayat election for
F
Motion of No Confidence whether Section 28 of the
Panchayatiraj Adhiniyam would continue to operate in view of
Article 243N".
12. Upon completion of the pleadings, the High Court by
G
an elaborate judgment has dismissed the Review Petition by
the impugned order dated 4th July, 2013. On 10th July, 2013,
the District Magistrate, Sitapur fixed a meeting for counting of
votes on 12th July, 2013. Aggrieved by the judgment of the High
Court, the appellant filed SLP in this Court on 11th July, 2013.
H
1096
SUPREME COURT REPORTS
[2014] 4 S.C.R.
A The matter was mentioned in Court at 10.30 A.M. before the
Chief Justice of India. A direction was issued by the Chief
Justice of India to the Registry to place the matter before this
bench at the end of the list. In the meantime, No Confidence
Motion was passed against the appellant with 33 votes in
B favour of the No Confidence Motion and 23 against with 6 votes
being declared invalid. The counting was supervised by the Civil
Judge, Sitapur. The representative of the petitioner/appellant
was present and had stated that he is satisfied with the
counting of votes. There has been no challenge to the result of
c the No Confidence Motion, with regard to the counting of votes.
On 12th July, 2013, at about 12.15 P.M., this Court issued
notice and directed that "in the meanwhile, status quo, as it
exists today, shall be maintained''. Since Respondent No.5 had
filed a caveat on 11th July, 2013 at about 11.00 A.M. and no
0
notice had been given to her before hearing the Special Leave
Petition, she filed an application seeking recall of the aforesaid
order dated 12th July, 2013. It wa9 claimed that Respondent
No. 5 sought recall on the following grounds:-
(i)
No notice was given to Respondent before hearing
E
and passing Order dated 12.07.2013.
F
G
H
(ii)
Counting of votes was already done and the no
confidence Order was passed well before passing
the Order dated 12.07.2013 by this Hon'ble Court.
(iii)
Present SLP is not maintainable as per the settled
law laid down by this Hon'ble Court namely that an
SLP is not maintainable against the dismissal of
review filed before the HC after dismissal of SLP.
(iv)
In any case the SLP is also not maintainable as the
issue raised in the SLP is already covered by the
judgment of this Hon'ble Court in Bhanumati and
Ors. V. State of UP. & Ors. reported in 2010 (12)
sec 1.
USHA BHARTI v. STATE OF U.P. & ORS.
1097
[SURINDER SINGH NIJJAR, J.]
13. Whilst the matter was pending, on 23rd July, 2013, the
A
petitioner filed Contempt Petition No. 287 of 2013 for violating
the orders of this Court dated 12th July, 2013. It is stated that
Respondent No.5 admittedly made false statement in the
application to recall the order dated 12th July, 2013. The order
of this Court was communicated whilst the meeting for counting
B
of votes was still in progress. The appellant states that one of
the newspapers "Amar Ujala" has reported that the result had
been declared at 1.15 P.M.
14. Respondent No. 5 was impleaded as Respondent No.
4 in the aforesaid Contempt Petition. However, notice of
C
contempt was issued only against official Respondent Nos. 1 ,
2 and 3. I.A. No. 8 was filed on 18th November, 2013 pointing
out that in spite of No Confidence Motion having been passed,
the appellant has continued to take policy decisions which were
not only prejudicial to public interest but would also create
D
several problems for Zila Panchayat, in case the present appeal
is dismissed. The aforesaid application came up for hearing
on 19th November, 2013. It was pointed out on behalf of
Respondent No.