Supreme Court of India
USHA BHARTIversusSTATE OF U.P. & ORS.
- Citation
- 2014 INSC 224
- Decided
- 28 March 2014
- Disposal
- Dismissed
- Bench
- S S NIJJAR
Holding
Section 28 is not inconsistent with Part IX, does not dilute reservation, and is constitutionally valid; the SLP is dismissed.
Summary
Usha Bharti, elected as Adhyaksh of the Zila Panchayat, Sitapur, challenged a motion of no confidence moved by 37 members under Section 28 of the Uttar Pradesh Kshettra Panchayat & Zila Panchayat Act, 1961. The High Court dismissed her writ petition and later her review petition, prompting a Special Leave Petition before this Court. The principal issues were whether Section 28 is repugnant to Part IX of the Constitution, particularly Article 243N, and whether it infringes reservation provisions for Scheduled Caste/Tribe/Backward Class women. The Supreme Court held that Section 28 is constitutionally valid, does not violate reservation, and is consistent with the 73rd Amendment. It also ruled that the SLP challenging only the review order is not maintainable. Consequently, the appeal and the related contempt petition were dismissed.
Issues considered
- Whether Section 28 of the U.P. Kshettra Panchayat & Zila Panchayat Act, 1961 is repugnant to Part IX of the Constitution, especially Article 243N.
- Whether Section 28 frustrates the reservation provisions for Scheduled Caste, Scheduled Tribe and Backward Class women.
- Whether Section 28 can continue to operate after the commencement of the 73rd Constitutional Amendment.
- Whether a Special Leave Petition challenging only the High Court's order dismissing a review petition is maintainable.
- Whether the High Court’s exercise of review powers is limited by Order 47 Rule 1 of the Code of Civil Procedure.
Legislation cited
- Code of Civil Procedure, 1908s. 114, s. Order 47 Rule 1
- U.P. Kshettra Panchayat & Zila Panchayat Act, 1961s. 19, s. 19-A, s. 20, s. 21, s. 26, s. 28, s. 28A, s. 29
Subjects
Section 28No Confidence MotionPanchayati RajReservationArticle 243N73rd AmendmentConstitutionalitySpecial Leave PetitionReview PetitionCode of Civil Procedure
Judgment
[2014] 4 S.C.R. 1076
A USHA BHARTI
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 4197 of 2014)
MARCH 28, 2014
B
[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.
F
CODE OF CIVIL PROCEDURE, 1908: Order 47 r.1 -
Scope of - Held: High Court or Supreme Court, in exercise
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
that 33 Members had admitted their signatures appearing
0
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
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 F
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 A
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 B
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 c
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 D
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
E
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]
F
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
or is in conflict with the same. [Para 21] [1112-H; [1113- G
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 no-
confidence 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
chosen as a member of a Panchayat. This would also
0
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
E
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
F
Constitution of India is to give power to the People.
Guiding spirit of the Constitution is "WE THE PEOPLE
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
(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.
F 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:
G
2013 (4) SCR 151 referred to 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
(1991) 4 sec 139 referred to Para 16
B
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) 1o sec 620 referred to Para 59
1989 (1) Suppl. SCR 623 held inapplicable Para 59
1993 (1) Suppl. SCR 419 referred to Para 59
1983 (2) SCR 165 referred to Para 60
F
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.
B
9654/MB/2012.
WITH
Contempt Petition (Civil) No. 287 of 2013 in C.A. No.
4197 of 2014.
Civil Appeal No. 4199 of 2014. c
Kamini Jaiswal, Rohit Kumar Singh for the Appellant.
Niraj Gupta, Gaurav Mehrotra, Rajeev Maheshwaranand
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.
E
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.
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 :-
"(i) Issue an appropriate writ, order or direction in the
nature of certiorari quashing the impugned notice
F 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
G 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
H 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, A
(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 & B
District Sitapur.
(v) Issues an ad-interim mandamus to the above
effect.
(vi) Issue any other appropriate writ, order or direction c
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." D
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 E
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
F
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.
F
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:
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 :-
"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."
G
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
notice had been given to her before hearing the Special Leave
0
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.
(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.
F (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.
G (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.
H
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. 5 that the appellant had issued a Notice of
Meeting on 8th November, 2013 of the meeting of the Zila E
Panchayat, Sitapur to be held on 20th November, 2013 at
11.30 A. M. to take decision on Subject Nos. 1 to 16 enumerated
in Annexure A3 to the Interlocutory Application.
15. On the other hand, it was submitted on behalf of the
F
appellant that the notice merely indicates the subjects on which
decisions are required to be taken for the development work
within the Zila Panchayat. It was submitted that the appellant
ought to be permitted to take necessary decisions. However,
during the course of deliberations, Mr. Shanti Bhushan had very
fairly submitted that the appellant will voluntarily not preside over G
the aforesaid meeting, rather the Collector may be requested
to chair the meeting. A direction was, therefore, issued that the
District Magistrate, Sitapur would chair the meeting on 8th
November, 2013. It was made clear that the issuance of the
aforesaid direction will not in any manner vary/alter the status H
1098 SUPREME COURT REPORTS [2014] 4 S.C.R.
A quo order passed by this Court on 12th July, 2013, which was
directed to continue. Submissions of the parties in the appeal
were heard on 3rd December, 2013, 5th December, 2013 and
11th December, 2013 when the judgment was reserved.
16. Very detailed and elaborate submissions have been
8
made by the learned counsel for the parties, which can be
briefly summed up as follows:-
(i) At the outset, Dr. Rajiv Dhawan submitted that the
Special Leave Petition is not maintainable as it is
C directed only against the judgment rendered by the
High Court in Review Petition No. 103 of 2013. In
support of the submissions, learned senior counsel
relied on judgments of this Court in State of Assam
Vs.· Ripa Sarma 1 and Susee/ Finance & Leasing
D Co. Vs. M. La ta & Ors. 2 . Dr. Dhawan also
submitted that even otherwise, the SLP deserves
to be dismissed as the matter is squarely covered
against the petitioner/appellant by the judgment of
this Court in Bhanumati & Ors. Vs. State of Uttar
E Pradesh through its Principal Secretary & Ors. 3
Relying on the aforesaid judgment, it was submitted
by Dr. Dhawan that the petitioner can not even be
heard ~n the proposition that Section 28 of the Act
is inconsistent with Part IX of the Constitution. Mr.
F Ashok Desai, learned senior counsel also
submitted that in view of the law laid down in
Bhanumati & Ors. (supra), the issue raised herein
is· no longer res integra. Learned senior counsel
also submitted that the SLP against the judgment
of the High Court rendered in the Review Petition
G
would not be maintainable without challenging the ·
judgment which was sought to be reviewed.
1. (2013) 3 sec 63.
2. (2004) 13 sec 675.
H 3. (2010) 12 sec 1.
USHA BHARTI v. STATE OF U.P. & ORS. 1099
[SURINDER SINGH NIJJAR, J.]
(ii) Mr. Shanti Bhushan has submitted that the issue A
raised in the present appeal is of vital importance,
i.e., whether Section 28 of the Act, which provides
for bringing No Confidence Motion against the
Chairman of Zila Panchayat is valid in so far as it
is inconsistent with Part IX of the Constitution of B
India. Therefore, this Court will have to determine
whether the impugned provision falls within the
legislative competence of the State Legislature.
The Court will also have to decide as to whether the
impugned provision is inconsistent with Article c
243N of the Constitution of India?
(iii) It is submitted by the learned senior counsel that the
provision of No Confidence Motion for removing the
Chairman or Adhyaksha of Zila Panchayat is
inconsistent with Part IX of the Constitution. He D
submits that Part IX of the Constitution containing
Articles 243A to 2430 were inserted wide the
Constitution (73rd Amendment Act, 1992) w.e.f.
24th April, 1993. The aforesaid articles have laid
down exhaustive provisions for self-governance at E
Panchayat level. This includes election of
Panchayat Members and its Chairman as well as
their disqualification. Hoyvever, no provision is
made for bringing a No Confidence Motion against
the Chairperson of Panchayat. Article 243C(v) F
provides that the Chairperson of a Panchayat at the
village level shall be elected in such a manner as
the Legislature of a State may, by law, provide.
Article 243F provides that Panchayat can make law
for disqualification of Panchayat Members. G
Sections 18, 19 and 29 of the Act, which provides
for composition of Zila Panchayat, election of
Adhyaksha and removal of Adhyaksha respectively
are in consonance with-{hl\ aforesaid Articles of th_~
Constitution of India. Section 19 of the aforesaid H
1100 SUPREME COURT REPORTS [2014) 4 S.C.R.
A Act provides for election of Adhyaksha by elected
members of the Zfla Panchayat from amongst
themselves. Section 29(1) of the Act enumerates
the grounds for removal of Adhyaksha but does not
include the provision for bringing a Motion of No
B Confidence against the Chairman.
(iv) Learned senior counsel further submitted that the
provision contained in Section 28(1) of the Act is
repugnant to Part IX of the Cons.titution. Mr. Shanti
Bhushan submits that in any event, the provisions
c contained in Section 28 of the Act could not have
continued after expiry of one year of the enactment
of the 73rd Amendment of the Constitution of India,
which came into effect from 24th April, 1993. Such
continuance would be inconsistent with the
0 provisions contained in Article 243N of the
Constitution of India.
(v) Learned senior counsel further submitted that
Article 2430 for the first time introduced
E reservation of seats for Scheduled Castes,
Scheduled Tribes as well as ladies both in the
election of members of Panchayat as well as for the
office of Chairperson. It is submitted that the
provision of "No Confidence" like Section 28 of the
F Act can frustrate the provision for such reservation.
SC, ST and ladies always being in minority in
Panchayat, a Chairperson from the reserved
category can easily be removed from the said
office by majority of general category Panchayat
members. Such a result was not envisaged by the
G
provisions contained in Article 2430. It is further
submitted that Part IX of the Constitution has
exhaustively specified the areas for-which a State
Legislature, as local self-governance falls in the
State List, can make laws in order to have
H
USHA BHARTI v. STATE OF U.P. & ORS. 1101
[SURINDER SINGH NIJJAR, J.]
complete decentralization of the governance. This, A
according to the learned senior counsel was the
main objective of the 73rd Amendment Act which
does not provide for any law to be made by the
State Legislature for bringing a No Confidence
Motion against the Chairperson/Adhyak$ha/Zila B
Panchayat.
(vi) According to Mr. Bhushan, if there had been no
existing provision for No Confidence like Section
28 in the Act, then after 73rd amendment in the C
Constitution, the State Legislature could not have
brought such a provision as it is not competent to
do so. The provision, according to Mr. Bhushan, is
likely to be struck down as the powers vested in the
elected body are sought to be taken over and
vested in the executive, which would be opposed D
to the basic structure of the Constitution of India.
Mr. Bhushan emphasized that by permitting the
provisions in Section 28 to continue, the State
Legislature and Executive are trying to deprive the
elected representatives of their fundamental rights E
enshrined in Part Ill and Part IX of the Constitution
of India. Relying on the judgment of this Court in /.R.
Coelho Vs. Union of lndia 4 • He has submitted that
fundamental rights include within itself the right to
choose. The aforesaid right to choose would F
continue till the tenure of the representative of the
people for which he has been elected is exhausted.
The provision in Section 28 permits such tenure to
be curtailed, which would infringe the fundamental
right of the voters that elected such a member. G
Giving numerous examples from different Articles
of the Constitution of India, it is submitted that
provision of No Confidence Motion has been
specifically provided wherever it was intended. As/
4. (2007) 2 sec 1. H
1102 SUPREME COURT REPORTS [2014] 4 S.C.R.
A example, he points out Articles 67(b), 90(c), 94(c)
providing for No Confidence Motion for the removal
of Vice President, Deputy Chairman of the Council
of States and the Speaker or Deputy Speaker of
the House of people respectively. He also points out
B that there are offices/posts in the Constitution, which
are filled up through a process of election but the.
persons so elected can not be removed by way of
moving a Motion for No Confidence. For example,
he· relies on Article 80(4), 81(1)(a) and Article 54.
c Therefore, Rajya Sabha Members, Lok Sabha
Members and President of India can not be
removed by moving a Motion for No Confidence.
· Mr. Bhushan submits that the question here is as
to whether the No Confide.nee provisions contained
in the Act can continue after the amendment of the
D
Constitution. A provision for moving a Motion for No
Confidence is in other words the right to recall of
an elected member by the voters. The Constitution
may or may not provide for moving a Motion for No
Confidence. He submitted that provision for moving
E the Motion for No Confidence is not necessarily part .
of democracy. In fact, right to recall an elected
member has not been legally recognized. In support
of this submission, he makes a reference to Article
243N read with Article 243(c)(iv) and (v) and in
F particular, sub-clause 5(b). He further submits that
the reservation was introduced for the first time by
73rd amendment, which incorporated Article 243 in
the Constitution of India w.e.f. 24th April, 1993. He,
thereafter, outlined the various provisions for
G reservation of seats as contained in Article 243D.
It is emphasized that the provision contained in
Article 243D(ii) makes it mandatory that not less
than one third of the total number of seats reserved
under Clause 1 shall be reserved for ladies
H belonging to the Scheduled Castes or as the case
USHA BHARTI v. STATE OF U.P. & ORS. 1103
[SURINDER SINGH NIJJAR, J.]
may be, the Scheduled Tribes. Articles 243F(1 )(a) A
and Article 243F(1)(b) which correspond to Article
102 and 103 provides for disqualification for being
chosen as, and for being a member of a Panchayat.
Mr. Bhushan submitted that the Constitution·
provides for removal and consequential B
disqualification. This would not apply to a vote of
No Confidence. This would tantamount to giving the
voters a right to recall which does not exist in law
in so far as Panchayat Adhyaksha is concerned.
Learned senior counsel further submitted that c
Article 243 makes provision for reservation, to
advance the aim of our Constitution for the
upliftment of the poor sections of the society.
Therefore, the Parliament has taken extra care to
ensure that such members of the weaker society
0
once elected should not be removed by the
strongest segment of the society by bringing a
Motion of No Confidence. He reiterated that
wherever .it was felt necessary, the Parliament had
provided for moving a Motion of No Confidence. He
E
has made a specific reference to Articles 89, 90,
93, 94(c), 80(iv), 81, 54, 61, 66 and 67(b).
(vii) In support of the submission that Section 28 of the
Act is repugnant to Part IX of the Constitution of
India, in particular, Article 243N. The learned senior F
counsel relied on a number of judgments of this
Court:-
Deep Chand Vs. State of U.P. 5, Zaverbhai
Amaidas Vs. State of Bombay6, N. Bhargawan
Pillai Vs. State of Kera/a 7, State of U. P. Vs. G
Synthetics and Chemicals Ltd. 8 , Babu Parasu
------
5. (19590 Supp. 2 SCR 8.
6. (1955) 1 SCR 799.
7. (2004) 13 SCR 217.
8. (1991) 4 sec 139. H
1104 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Kaikadi Vs. Babu 9, Nirmaljeet Kaur Vs. State of
M.P. 10, Zee Telefilms Ltd. Vs. Union of lndia 11 ,
Board of Control for Cricket in India Vs. Netaji
Cricket Club 12
(viii) Learned senior counsel then submitted that the
B judgment in Bhanumati & Ors. (supra) is per
incuriam as the issue with regard to the reservation
had not been considered at all. The judgment also
does not consider the provisions where specifically
Motion for No Confidence has not been provided.
c It is also submitted that most of the judgment is
obiter. In fact, Mr. Bhushan submitted that the
judgment is a treatise in law and should be given
the same status.
D (ix) Mr. Bhushan then addressed us on the issue as to
whether the SLP would be maintainable against the
judgment rendered in review without challenging the
judgment of which the review was sought. The
learned senior counsel submitted that firstly the
E petitioner had challenged the main writ petition by
way of SLP No. 8542 of 2013. The same was
disposed of with opportunity to file review petition
before the High Court after noticing the objections
raised by the petitioner, which were not considered
by the High Court. The earlier judgment of the High
F
Court in the writ petition clearly merged in the
judgment of the High Court dismissing the review
petition. Therefore, it was necessary only, in the
peculiar facts of this case, to challenge only the
judgment of the High Court in the review petition. It
G is submitted by Mr. Shanti .Bhushan that Section
9. (2004) 1 sec 681.
10. (2004) 7 sec 558.
11. (2005) 4 sec 649.
H 12. (2005) 4 sec 741.
USHA BHARTI v. STATE OF U:P. &-ORS. 1105
[SURINDER SINGH NIJJAR, J.]
114 of the CPC contains no limits on the A
circumstances under which the Court can review its
own judgment. The section merely states that the
person aggrieved may apply for a review of
judgment to the Court, which passed the decree or
made the order, and the Court may make such order B
on it as it thinks fit. So far as the High Court is
concerned, it would have inherent powers to review
any decision.
(x) Learned senior counsel elaborated that Section C
114 CPC gives full powers to the Court to pass any
order in the interest of justice. It can not be curtailed
by the Rules made by the High Court or the
Supreme Court. These Rules can be amended by
the High Court or the Supreme Court but Section
114 can only be amended by the Parliament. He D
points out that Section 121 and 122, which permits
the High Court to make their own rules on the
procedure to be followed in the High Court as well
as in the Civil Court subject to their
superintendence. Learned senior counsel further E
submitted that even Order 47 Rule 1 does not curtail
the power to review which is untrammeled.
According to Mr. Bhushan, Section 114 is
incorporated in Order 47 Rule 1 as it provides that
review can be made by the Courts either on facts F
as well as on law. The Court has a power to rehear
the entire matter in order to do complete justice
between the parties. Mr. Bhushan further pointed
out that Section 151 CPC is also part of the same
scheme to do complete justice between the parties. G
It is emphasized that the powers of the Courts have
not been curtailed by the Code of Civil Procedure.
In fact, it is well known that the provisions of Code
of Civil Procedure are a hand maiden to justice. He,
therefore, submitted that full play should be given H
1106 SUPREME COURT REPORTS [2014] 4 S.C.R.
A to the expression "or for any other sufficient reason"
to ensure that the Court can do complete justice.
The principle of Ejusdem Generis should not be
applied for interpreting these provisions. Learned
senior counsel relied on Board of Cricket Control
B (supra). He relied on Paragraphs 89, 90 and 91.
learned senior counsel also relied on S. Nagaraj
& Ors. Vs. State of Kamataka & Anr. 13 He submits
finally that all these judgments show that justice is
above all. Therefore, no constraints can be put on
c the power to review of the Court. Mr. Bhushan also
relied on Green View Tea & Industries Vs.
Collector, Golaghat, Assam & Anr. 14
(xi) Mr. Bhushan has submitted that grounds for
challenging the theories of the Act of the anvil of
D Article 243 or will be read into Prayers 1and 2(i)
wherein a specific declaration is sought that the
provision is ultra vires to the Constitution of India.
Mr. Bhushan then referred to Article 243N. He
reiterated that the provision in Section 28 ceased
E to exist after one year. Therefore, it was not
necessary to plead as Section 28 would ipso facto
be rendered unconstitutional. He reiterated on the
basis of Paragraphs 20 and 21 that necessary
averments have been made that provision for No
F Confidence Motion is not provided for in Part IX of
the Constitution of India. Therefore, if Paragraph 28
and Paragraph 31 are read with Ground F, it would
clearly indicate that the removal under the Act can
only be under Section 29 which does not provide
G for moving a Motion for No Confidence.
(xii) Coming back to the submission that Section 28 is
inconsistent with Part IX of the Constitution of India;
13. (1993) Supp. 4 sec 595.
H 14. (2004) 4 sec 122.
USHA BHARTI v. STATE OF U.P. & ORS. 1107
[SURINDER SINGH NIJJAR, J.]
he submits that Part IX is a complete code in A
relation to Panchayats. Therefore, State Legislature
can not make a provision inconsistent to Part IX.
Similar power has been reserved fo·r the Stated
Legislature as exceptions as enumerated in
Articles 243a, 243C(iv) & (v). He further submitted B
that Article 243f, 243G and 243H only give limited
powers to the State Legislature. This clearly show
that Part IX is a complete code. Therefore, unless
power is specifically conferred on the State
Legislature, it would not be competent to legislate c
on matters which are specifically dealt with in Part
IX. He also refers to Articles 2431 (ii), (iii) & (iv), J(iv)
and K to emphasise that even in these Articles no
provision existed for moving a Motion for No
Confidence. Finally, it is submitted by Mr. Shanti D
Bhushan that since the issues raised in the appeal
entail interpretation of the provisions of the
Constitution of India, the matter needs to be
referred to at-least five judges.
(xiii) Mr. Ashok Desai, learned senior counsel appearing E
for Respondent No. 5 has submitted that admittedly
the petitioner does not enjoy the confidence of the
majority of the members of the Panchayat. She has
not even challenged the result of the No Confidence
vote. He has given an elaborate explanation of all F
the proceedings, which we have recounted earlier.
(xiv) Countering the submissions of Mr. Shanti Bhushan
that the Petitioner belongs to the Scheduled Casts,
therefore, she is entitled to special protection, Mr. G
Ashok Desai has submitted that this issue was not
raised in the writ petition or even in the revie._w
petition and is sought to be raised for the first time
before this Court. He further pointed out that the
petitioner did not contest the election of Adhyaksha
H
1108 SUPREME COURT REPORTS [2014] 4 S.C.R.
A as a member of Scheduled Castes but as a lady
candidate for whom the seat was reserved. He
further submitted that the present case is, in any
event, squarely covered by the judgment of this
Court in Bhanumati & Ors. (supra). Therefore, there
B is no need for embarking on a fresh
reconsideration of all the issues. He has submitted
that the submission of Mr. Shanti Bhushan that the
earlier judgment was confined to the amendment of
Section 28 and not the original statute is a result
c of misreading of judgment. The judgment of this
Court in Bhanumati & Ors. (supra) clearly applies
in the facts and circumstances of this case and,
therefore, the Special Leave Petition deserves to
be dismissed. Learned senior counsel elaborated
that the submission with regard to Section 28 of the
D
Act being inconsistent with Part IX of the
Constitution deserves to be rejected outright. This
submission can only be considered on the basis of
precise pleadings in the present case. Except for
making a statement that the provision in the act is
E inconsistent with Part IX of the Constitution, no
other reasons are given.
(xv) This apart, Section 28 can not be said to be
contrary to the foundational principles of democracy.
F These provisions are referring to Sections 17, 18,
21 and 28 of the Act. The learned senior counsel
submitted that the aforesaid provisions are to
ensure that the Adhyaksha always enjoys
confidence of the constituency while in power during
G the term for which such a person is elected.
(xvi) Mr. P.N. Mishra appearing for Respondent No.1 to
4 submitted that the Special Leave Petition
deserves to be dismissed on the short ground that
it is filed only against the judgment rendered by the
H
USHA BHARTI v. STATE OF U.P. & ORS. 1109
[SURINDER SINGH NIJJAR, J.]
High Court in review petition. He has relied on A
judgment of this Court in Shanker Motiram Nale
Vs. Shiolalsing Gannusing Rajput15• He also relied
on an unreported judgment in Sandhya
Educational Society & Anr. Vs. Union of India &
Ors. [SLP(C) No. 2429 of 2012] to the same effect. B
He submitted that the powers of review would not
permit this Court to reopen the entire issue and to
rehear the entire matter on merits. The review is
limited to the provision contained in Section 114
CPC read with Order 47 Rule 1. He submits that c
under this provision, review is limited only to
circumstances where review is sought on discovery
of new and important matter; or where evidence
could not be produced in spite of exercise of due
diligence or on account of some mistake or error 0
apparent on the face of the record. He submits that
the expression "or for any other sufficient reason"
would not permit the Court to reopen the entire
issue, which has already been judicially
determined. This apart, according to the learned
counsel, the petitioner has failed to show that
E
injustice has been done to her in the face of the fact
that majority of the members of her constituency
have voted in favour of the No Confidence Motion.
Learned senior counsel further submitted that it is
a matter of record that the No Confidence Motion F
was not challenged on merits. Therefore, the SLP
deserves to be dismissed.
(xvii) Mr. Shanti Bhushan in reply submitted "that these
submissions of Mr. Ashok Desai and Mr. Mishra are G
fallacious as no Act of Parliament can interfere with
the powers of this Court under Article 136. In the
event, this Court holds that SLP is only against the
judgment of review and is not maintainable, it would
------
15. (1994) 2 sec 753. H
1110 SUPREME COURT REPORTS [2014] 4 S.C.R.
A tantamount to amending Article 136 of the
Constitution of India. The learned senior counsel
submitted that the discretion of this Court cannot be
whittled down let alone taken away as suggested
by the learned senior counsel appearing for the
B respondents. Even on facts, Mr. Bhushan submitted
that the main judgment was challenged. In the
judgm!'!nt relied upon by Mr. Mishra in State of
Assam Vs. Ripa Sarma (supra), the impugned
judgment had not been challenged. Therefore, this
c Court said that no SLP would be maintainable only
against the judgment of the High Court rendered in
a review petition, without challenging the main ·
judgment. He reiterated. that the judgment in
Bhanumati & Ors. (supra) is mostly "obiter". It is
also per incuriam as reservation for Scheduled
D
Castes and Scheduled Tribes had not been taken
into consideration.
17. We have considered the submissions made by the
learned counsel for the parties.
E
18. We are not able to accept the submission of Mr. Shanti
Bhushan that the provision contain.ed in Section 28 of the Act
are, in any manner, inconsistent with the provisions contained
in Part IX, in particular, Article 243N of the Constitution of India.
F 19. Section 19 of the 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 introduced by U. P. Act No.9 of 1994
providing for reservation of the offices of Adhyaksha, for
G persons belonging to Scheduled Casts and Scheduled Tribes
and the Backward Classes. It is, however, provided that the
number of offices of Adhyaksha, so reserved, shall bear, as
nearly as may be the same proportion to the total number of
such offices in the State as the population of the Scheduled
H Castes, Scheduled Tribes and the Backward Classes in the
USHA BHARTI v. STATE OF U.P. & ORS. 1111
[SURINDER SINGH NIJJAR, J.]
State, bears to the total population of the State. The Section A
even provides that the offices so reserved shall be allotted by
rotation to different Zila Panchayats in the State in such manner
as may be prescribed by the State Government. But the
reservation for the Backward Classes shall not exceed 27% of
the total number of offices of the Adhyakshas in the State. B
Section 19-A(2) is important in the present context which
provides that "not less- than one-third of the offices shall be
reserved for the 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 aforesaid c
categories of Scheduled Castes, Scheduled Tribes and the
Backward Classes, a person belonging to that 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 Zita Panchayat shall
0
continue for five years from the date appointed for its first
meeting and no 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 Zita 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 E
of the Adhyaksha shall commence on his election and with the
term of Zila Panchayat. Section 23 provides for disqualification
for corrupt practices, which is not applicable in the present case.
Section 24 provides for resignation of Adhyaksha, again not
applicable in the present case. Section 25 relates to filing of F
casual vacancy, again not applicable in this case. Section 26
provides for dist{ualification for being a member or an
Adhyaksha in case a person has· incurred any disqualification
for being elected as a member of the Panchayat.
G
20. The whole debate in this case centres around Section
28, which provides for a Motion of No Confidence in
Adhyaksha. The section provides deta.iled procedure with
regard to the issuance of written notice of intent to make the
motion, in such form as may be prescribed, signed by not less H
1112 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 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 Collector shall convene a meeting of the Zila Panchayat for
B 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 less than 15 days of such
meeting in the manner prescribed. The meeting has to be
c presided over by the District Judge or a Civil Judicial Officer
not below the rank of a Civil Judge. Interestingly, the debate
on the mofion 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
D 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 earlier, the motion has
to be put to vote. Further more, the Presiding Officer would be
either District Judge or a Judicial Officer is not permitted to
speak on the merits of the motion, and also not entitled to vote.
E 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". In our
opinion, the aforesaid provision contained in Section 28 is, in
no manner, inconsistent with the provisions contained in Article
F 243N. To accept the submission of Mr. Bhushan 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
G passed upon observing the procedure prescribed under the
relevant statute, in the present case the Act.
21. We are unable to accept the submission of Mr.
Bhushan that removal of Adhyaksha can only be on the grounds
H of misconduct as provided under Section 29 of the Act. The
USHA BHARTI v. STATE OF U.P. & ORS. 1113
[SURINDER SINGH NIJJAR, J.]
aforesaid Section provides that a procedure for removing an A
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 or is in conflict with the
same.
B
22. We also do not agree with the submission of Mr.
Bhushan 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 into effect on 24th April, 1993.
Such an eventuality would have arisen only in case it was found C
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 Motion
of No Confidence would not render the provision inconsistent
with the Article 243 of the Constitution of India.
D
23. We also do not find any merit in the submission of Mr.
Bhushan that the petitioner being a Scheduled Caste Lady
cannot be removed through a vote of No Confidence. We do
not find any merit that the provisions contained in Section 28
would frustrate the provisions for reservation for Scheduled E
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
belongirrg to one of the reserved categories. Therefore, the F
submission of Mr. Shanti Bhushan seems to be focused only
on the petitioner, in particular, and not on the candidates elected
from the reserved categories, in general. The submission is
wholly devoid of any merit and is hereby rejected.
24. We are entirely in agreement with Mr. Shanti Bhushan G
that 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 in
complete decentralization of the Government and transferring
the power to the grass roots level bodies; such as the H
1114 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Panchayats at the village, intermediate and District level, in
accordance with Article 243C of the Constitution. Article 243C
is as under:
."243C. Composition of Panchayats. -
B (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
c 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
D 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
E 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
F
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;
G (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
H members of the Legislative Assembly of the State
USHA BHARTI v. STATE OF U.P. & ORS. 1115
[SURINOER SINGH NIJJAR, J.]
representing constituencies which comprise wholly A
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, B
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 C
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
D
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 E
law, provide; and
(b) a Panchayat at the intermediate level or district level
shall be elected by, and from amongst, the elected
members thereof."
F
This Article as well as some others, such 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. G
Therefore, we are not able to agree with the submission of Mr.
Bhushan that State Legislature will have no power to make
provision for no-confidence motion against the Adhyaksha of
Zila Panchayat.
H
1116 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 25. We are also unable to agree with the submission of
Mr. Bhushan that a person once elected to the position of
Adhyaksha would be permitted to continue in office till the expiry
of the five years terms, even though he/she no longer enjoys
the confidence of the electorate. To avoid such catastrophe, a
B provision for no-confidence, as observed earlier, has been
made in Section 28 of the Act. The extreme submission made
by Mr. Bhushan, if accepted, would destroy the foundational
precepts of democracy that a person who is elected by the
members of the Zila Panchayat can only remain in power so
c long as the majority support is with such person.
26. We also do not find any merit in the submission of Mr.
Bhushan that permitting the provision contained in Section 28
of the Act to remain on the statute book would enable the
executive to deprive the elected representatives of their ·
D fundamental rights enshrined in Part Ill and Part IX of the
Constitution of India. In our opinion, the ratio of the judgment in
I. R. Coelho (supra) relied upon by Mr. Bhushan is wholly
inapplicable in the facts and circumstances of this case. There
is no interference whatsoever in the right of the electorate to
E choose. Rather Section 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
the Zita Panchayat. In the present case, at the time of election,
the petitioner was the chosen one, but, at the time when the
F Motion of No Confidence in the petitioner was passed, she was
not wanted. Therefore, the right to chose of the electorate, is
very much alive as a consequence of the provision contained
in Section 28.
G 27. We are unable to accept the submission of Mr.
Bhushan that the provisions contained in Section 28 of the Act
cannot be sustained in the eyes of law as it fails to satisfy the
twin test of reasonable classification and rational nexus with the
object sought to be achieved. In support of this submission, Mr.
Bhushan has relied on the judgment of this Court in 0. S.
H
USHA BHARTI v. STATE OF U.P. & ORS. 1117
[SURINDER SINGH NIJJAR, J.]
Nakara vs. Union of Jndiarn We fail to see how the provisions A
contained in Section 28 of the Act would take away the
autonomy of the Panchayati Raj Institutions. In our opinion, the
judgments relied upon by Mr. Bhushan in support of the
submissions that provisions of No Confidence Motion in
Section 28 of the Act would put the executive authorities in the 8
State in control of Village Panchayats or District Panchayats.
Apart from the use of superlatives, that the party now in power
is trying to remove all the office holders of Panchayats in U.P.
belonging to the opposite party, no other material has been
placed on the record. c
28. It is true that in the Constitution, Article 678 provides
for removal of the Vice-President by a resolution 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 D
Chairman of the Council of States can be removed from his
office on a resolution of 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 E
resolution of the House of People passed by a majority of all
the then members of the House.
29. It is also true that there are certain positions in the
Constitution, which are filled up through ele:ction but individuals F
so elected cannot be removed by way of No Confidence
Motion, e.g. Rajya Sabha Members, Lok Sabha Members and
the President of India. We are, however, unable to accept the
submission of Mr. Bhushan that Part IX of the Constitution of
India has placed office of an Adhyaksha of a Zila Panchayat G
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 chosen as a member of a Panchayat.
This would also include a member of a Panchayat, who is
16. (1983) 1 sec 305. H
1118 SUPREME COURT REPORTS (2014] 4 S.C.R.
A 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 enjoys the majority
support of the elected members of the Zila Panchayat.
B Therefore, we have no hesitation in rejecting the aforesaid
submissions of Mr. Shanti Bhushan.
30. The submissions of Mr. Bhushan on depriving a
candidate belonging to the reserved category of a position to
which he or she has been elected on the basis of reservation
C are wholly fallacious. The seat for the office of Adhyaksha of
Zila Panchayat was reserved for women candidates, i.e., all
women candidates. It was not specifically reserved for Ladies
belonging to the reserved categories of Scheduled Castes,
Scheduled Tribes and the Backward Classes. The petitioner
D contested as a Lady Candidate and not as a candidate
belonging to any reserved category and was elected on a seat
reserved for Ladies generally.
31. Having said all this, we would like to point out that in
E normal circumstances the present SLP would not have been
entertained. Dr. Rajiv Dhawan and Mr. Ashok Desai had
pointed out at the very initial hearing that the SLP would not
be maintainable as it challenges only the judgment of the High
Court rendered in review petition. The main judgment dated 5th
February, 2013 rendered in W.P.(C) No.9654 of 2012 which
F has been reviewed by the High Court in the impugned order
has not been challenged. As a pure statement of law, the
aforesaid proposition is unexceptionable. However, in the
present case, we have been persuaded to entertain the present
SLP in view of the order passed by this Court on 19th February,
G 2013. In Ripa Sarma case (supra), itwas not disputed before
this Court that the judgment and order dated 20th November,
2007 passed in Ripa Sarma (supra) was not challenged by
way of an SLP before this Court. Relying on Order 47 Rule 7
of the Code of Civil Procedure, 1908 and the earlier judgments
H of this Court it was held that :
USHA BHARTI v. STATE OF U.P. & ORS. 1119
[SURINDER SINGH NIJJAR, J.]
"In view of the above, the law seems to be well settled that A
in the absence of a challenge to the main judgment, the
special leave petition filed challenging only the subsequent
order rejecting the review petition, would not be
maintainable."
B
32. With regard to the second submission of Dr. Dhawan
and Mr. Ashok Desai that the issue raised in the present
proceeding is no longer res integra in view of the law laid down
by this Court in Bhanumati (supra), we are of the opinion that
the submission deserves to be accepted, in so far as the matter c
is covered by the ratio laid down in Bhanumati (supra).
33. A careful perusal of the judgment of this Court in
Bhanumati (supra) would show that this Court had considered
the provisions contained in all the Articles Part IX of the
Constitution, in all its hues and colours. However, it appears D
that the issue with regard to the adverse impact of the provision
in Section 28 of the Act on the reservation for Scheduled
Castes, Scheduled Tribes and other Backward Classes was
neither argued nor considered. We have, therefore, examined
the issue raised by Mr. Bhushan. E
34. In our opinion, 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 Tribes
and Backward Classes in the 73rd Amendment of the F
Constitution of India. Therefore, we accept the submission of
Dr. Dhawan and Mr. Ashok Desai that in view of the law laid
down in Bhanumati's case (supra), the issue is no longer res
integra.
35. As noticed earlier, we have been persuaded to G
entertain the Special Leave Petition as Mr. Bhushan had
highlighted that permitting the Vote of No Confidence as a
ground for disqualifying an elected Zila Panchayat Adhyaksha,
Zila Panchayat would leave a candidate, elected from the
reserved categories of Scheduled Castes/ Scheduled Tribes, H
1120 SUPREME COURT REPORTS [2014] 4 S.C.R.
A vulnerable to unjustified attacks from the elected members of
the general category. This issue was not raised before the High
Court either in original writ petition being W.P. No. 9654 of 2012
nor was it raised before the High Court in the Review Petition.
However, in view of the seminal importance of the issue raised,
B we had entertained the Special Leave Petition. Having said
that, it must be pointed out that the raising of such an issue is
neither justified nor relevant in the facts of the present case. As
pointed out earlier, the petitioner herein had contested the
election as an Adhyaksha, Zila Panchayat from a seat reserved
c for Ladies. Merely because she happens to belong to the
reserved category, it can not be permitted to be argued, 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. It has been
specifically noted in the Statement of Objects and Reasons of
0
the 73rd Amendment as follows:-
"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
E 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 Castes, Scheduled Tribes
and Women, inadequate devolution of powers and lack of
F 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 organise Village Panchayats and
endow them with such powers and authority as may be
G 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
H features of Panchayati Raj institutions to impart certainty,
USHA BHARTI v. STATE OF U.P. & ORS. 1121
[SURINDER SINGH NIJJAR, J.)
continuity and strength to them." A
36. The provisions of the 73rd Constitutional 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
B
shield to ari Adhyaksha, Zila Panchayat, even in cases of loss
of confidence of the constituents. Provision in Section 28,
therefore, cannot be said to be repugnant to Part IX of the
Constitution of India.
37. IA our opinion, the amendment as well as the main c
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. 0
The fundamental aim of the Constitution of India is to give power
to the People. Guiding spirit of the Constitution is "WE THE
PEOPLE OF INDIA". In India, the People are supreme, through
the Constitution of India, and not the elected Representatives.
Therefore, in our opinion, the provision for right to recall through
the Vote of No Confidence is in no manner repugnant to any
E
of the provisions of the Constitution of India.
38. Upon examination of the entire Scheme of the 73rd
Amendment, in the context of framing of the Constitution of India,
this Court in Bhanumati & Ors. (supra), observed as follows:- F
"54. The argument that as a result of the impugned
amendment stability and dignity of the Panchayati Raj
institutions has been undermined, is also not well founded.
As a result of no-confidence motion the Chairperson of a
panchayat loses his position as a Chairperson but he G
remains a member, and the continuance of panchayat as
an institution is not affected in the least."
Vve are in respectful agreement with aforesaid conclusion.
39. We reiterate the view earlier expressed by this Court H
1122 SUPREME COURT REPORTS [2014] 4 S.C.R.
A in Bhanumati & Ors. (supra), wherein this Court observed as
follows:-
. "57. It has already been pointed out that the object and the
reasons of Part IX are to lend status and dignity to
Panchayati Raj institutions and to impart certainty,
B continuity and strength to them. The learned counsel for the
appellant unfortunately, in his argument, missed the
distinction between an individual and an institution. If a no-
confidence motion is passed against the Chairperson of
a panchayat, he/she ceases to be a Chairperson, but
c continues to be a member of the panchayat and the
panchayat continues with a newly-elected Chairperson.
Therefore, there is no institutional setback or impediment
to the continuity or stability of the Panchayati Raj
institutions.
D 58. These institutions must run on democratic principles.
In democracy all persons heading public bodies can
continue provided they enjoy the confidence of the persons
who comprise such bodies. This is the essence of
democratic republicanism. This explains why this provision
E of no-confidence motion was there in the Act of 1961 even
prior to the Seventy-third Constitution Amendment and has
been continued even thereafter. Similar provisions are
there in different States in India."
40. The whole edifice of the challenge to the
F constitutionality of Section 28 is built on the status of the
petitioner 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. In our opinion, the personal
desire, of the petitioner to cling on to the office of Adhyaksha
G is camouflaged as a constitutional issue. The provision of No
Confidence Motion, in our opinion, is not only consistent with
Part IX of the Constitution, but is also foundational for ensuring
transparency and accountability of the elected representatives,
including Panchayat Adhyakshas. The provision sends out a
clear message that an elected Panchayat Adhyaksha can
H
USHA BHARTI v. STATE OF U.P. & ORS. 1123
[SURINDER SINGH NIJJAR, J.]
continue to function as such only so long as he/she enjoys the A
confidence of the constituents.
Is Bhanumati & Ors. per incuriam ?
41. This submission again, in our opinion, is not well
founded. The only ground urged in support of the submission
B
by Mr. Shanti Bhushan was that this Court in Bhanumati & Ors.
(supra) had not considered the provision with regard to special
protection to be given to the members of the Scheduled
Castes, Scheduled Tribes and the Backward Classes. Firstly,
such a submission was never made before this Court in
Bhanumati & Ors. (supra). Secondly, as we have already C
pointed out earlier, 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 petitioner
had not been elected to the office of Adhyaksha of Zila
Panchayat reserved for Scheduled Castes and Scheduled D
Tribes. Mr. Ashok Desai has placed before us enclosure to
Government Order No.2746/33-1-2010-37G/2000 dated 15th
September, 2010 indicating reservation for the year 2010 for
the office of Adhyaksha of Zila Panchayat, District wise in the
State of Uttar Pradesh. The order is divided into two columns: E
Districts' reserved for Schedule Caste Lady and Districts'
reserved for Ladies. Extract of the aforesaid order is as
follows:-
Districts' reserved for Districts' reserved for
Schedule Caste Lad~ Ladies F
S.No. District S.No. District
1 Chatrapati Sahuji .1 Allahabad
Maharajnagar
2 Sant Ravidas Nagar 2 Sitapur G
(Bhadohi)
3 Jaunpur 3 Hardoi
4 Ghajipur 4 Lakhimpur Khiri
5 Sant Kabir Nagar 5 Azamgadh
H
1124 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 42. It is a matter of record that the petitioner was elected
as Panchayat Adhyaksha of Sitapur District Reserved for
Ladies, it is not reserved for a Schedule Caste Lady. Therefore,
we are not able to accept the submission of Mr. Bhushan.
43. We also do not accept the submission of Mr. Bhushan
8
that the aforesaid judgment needs reconsideration. A perusal
of the judgment would show that this Court traced the history
leading upto the insertion of Article 40 of the Constitution of
India. The Court examined the relevant commentaries of many
learned authors, Indian as well as Foreign; Constituent
C Assembly Debates; and concluded as follows :
"13. The Constitution's quest for an inclusive governance
voiced in the Preamble is not consistent with panchayat
being treated merely as a unit of self-government and only
D as part of directive principle. If the relevant Constituent
Assembly Debates are perused one finds that even that
constitutional provision about panchayat was inducted after
strenuous efforts by some of the members. From. the
debates we do not fail to discern a substantial difference
E of opinion between one set of members who wanted to
finalise the Constitution solely on the parliamentary model
by totally ignoring the importance of panchayat principles
and another group of members who wanted to mould our
Constitution on Gandhian principles of Village Panchayat."
F 44. The Court emphasized that Dr. Rajendra Prasad was
the strongest critic of the Draft Constitution, who had opined
that "the village has been and will even continue to be our unit
in this country." (Para 15). The Court further notices the opinion
of Mr. M.A. Ayangar and Mr. N.G. Ranga, both of whom
G suggested some amendments to the Draft Constitution. The
Court also notices that a similar opinion was expressed by Mr.
S.C. Mazumdar, who had struck a balance between Gandhian
Principles and the Parliamentary model of the Constitution. The
insertion of Article 40 was accepted by Dr. Ambedkar. This
H Court further notices the opinion of Seth Govind Das from the
USHA BHARTI v. STATE OF U.P. & ORS. 1125
[SURINDER SINGH NIJJAR, J.]
Central Provinces and Berar (Constituent Assembly Debates A
Vol. VII, PP.523-24) (See Paras 12 to 20).
45. Thereafter, the Court notices that "in other
representative democracies of the world committed to a written
Constitution and Rule of Law, the principles of self-Government
B
are also part of the Constitutional doctrLne." The Court
emphasized that under the 73rd Amendment of the Constitution,
Panchayats become "Institution of self-governance, which was
previously a mere unit under Article 40". It was emphasized that
the 73rd Amendment heralded a new era, which is a turning
point in the history of local self-governance (Para 22). It was c
also emphasized that the 73rd Amendment is very powerful
"tool of social engineering" (Para 24). We reiterate the opinion
of this Court that as 74% of the Indian population live in villages,
it is necessary to ensure that the power of governance should
vest in the smallest units of the Panchayat having its hierarchy D
as provided under various Panchayat Acts throughout the
country. The judgment analyses the changes introduced by the
73rd Amendment and concludes as follows :
"34. The changes introduced by the Seventy-third E
Amendment of the Constitution have given Panchayati Raj
institutions a constitutional status as a result of which it has
become permanent in the Indian political system as a third
Government. On a careful reading of this amendment, it
appears that under Article 243-B of the Constitution, it has
F
been mandated that there shall be panchayat at the village,
intermediate and district levels in accordance with the
provisions of Part IX of the Constitution."
46. This Court concluded upon examination of the
Constitutional scheme introduced by the 73rd Amendment as G
follows:
"39. Thus, the composition of the panchayat, its function,
its election and various other aspects of its administration
are now provided in great detail under the Constitution with H
1126 SUPREME COURT REPORTS [2014) 4 S.C.R.
A provisions enabling the State Legislature to enact laws to
implement the constitutional mandate. Thus, formation of
panchayat and its functioning is now a vital part of the
constitutional scheme under Part IX of the Constitution.
Obviously, such a system can only thrive on the confidence
B of the people, on those who comprise the system."
47. In our opinion, 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 ensure the transparency and
C accountability in the functions performed by the elected
representatives.
48. We also do not agree with Mr. Bhushan that the issue
with regard to the constitutionality of Section 28 of the Act was
D not considered by this Court in Bhanumati & Ors. (supra). The
submission made by the counsel for the petitioner therein is
noticed as follows:
"40. In the background of these provisions, learned
counsel for the appellants argued that the provision of no-
E
confidence, being not in Part IX of the Constitution is
contrary to the constitutional scheme of things and would
run contrary to the avowed purpose of the constitutional
amendment which is meant to lend stability and dignity to
Panchayati Raj institutions. It was further argued that
F reducing the period from "two years" to "one year" before
a no-confidence motion can be brought, further unsettles
the running ofthe panchayat. It was further urged that under
the impugned amendment that such a no-confidence
motion can be carried on the basis of a simple majority
G instead of two-thirds majority dilutes the concept of
stability."
From this it is evident that the provision of No Confidence
Motion in Section 28 was challenged on three grounds:
H
USHA BHARTI v. STATE OF U.P. & ORS. 1127
[SURINOER SINGH NIJJAR, J.]
(a) It would be repugnant to the Scheme of the 73rd A
Amendment.
(b) It would unsettle the running of the Panchayat.
(c) It would dilute the concept of stability.
B
49. Upon consideration of the relevant provisions contained
in various sub-articles of Article 243 and in particular, Article
243C(v), this Court concludes as under:
"41. This Court is not at all persuaded to accept this C
argument on various grounds discussed below. A
Constitution is not to give all details of the provisions
contemplated under the scheme of amendment. In the said
amendment, under various articles, like Articles 243-A,
243-C(1 ), (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, 0
the legislature of the State has been empowered to make
law to implement the constitutional provisions.
43. Therefore, the argument that the provision of no-
confidence motion against the Chairman, being not in the E
Constitution, cannot be provided in the statute, is wholly
unacceptable when the Constitution specifically enables
the State Legislature to provide the details of election of
the Chairperson."
The Court also mentions that the statutory provision of No F
Confidence Motion against the Chairperson is a pre-
constitutional provision and was there in Section 15 of the 1961
Act (Para 44). After taking into consideration Article 243N of
the Constitution of India, it is observed as follows:-
G
"45. It is.clear that the provision for no-confidence motion
against the Chairperson was never repealed by any
competent legislature as being inconsistent with any of the
provisions of Part IX. On the other hand by subsequent
statutory provisions the said provision of no-confidence H
1128 SUPREME COURT REPORTS [2014] 4 S.C.R.
A has been confirmed with some ancillary changes but the
essence of the no-confidence provision was continued.
This Court is clearly of the opinion that the provision of no-
confiden ce is not inconsistent with Part IX of the
Constitution."
B 50. In the face of these findings, it would not be possible
to accept the submission of Mr. Bhushan that the judgment in
Bhanumati & Ors. (supra) is either per incuriam or requires
reconsideration.
C 51. Under Article 243N, any provision of law relating to
Panchayats in force immediately before the 73rd Amendment,
which is inconsistent with Part IX continues to be enforced until
amended or repealed. In the absence of such amendment or
repeal, the inconsistent provision will continue until the expiration
o of one year from the commencement of the Constitution (73rd
Amendment) Act, 1993. It is a matter of record that the State
of Uttar Pradesh enacted U.P. 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
E Confidence was not repealed. It was amended subsequently
by the Amendment Act of 1998 (U.P. Act No. 20 of 1998). There
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
F year. Furthermore the requirement that for a Motion of No
Confidence to be carried, it had to be 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 by the
petitioners in the case of Bhanumati & Ors. (supra). The
G continuous of the provision of No Confidence Motion 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
H
USHA BHARTI v. STATE OF U.P. & ORS. 1129
[SURINDER SINGH NIJJAR, J.]
inconsistent with Part IX of the Constitution of India. Ultimately, A
in Paragraph 51, this Court records the following opinion:-
"51. Many issues in our constitutional jurisprudence
evolved out of this doctrine of silence. The basic structure
doctrine vis-a-vis Article 368 of the Constitution emerged B
out of this concept of silence in the Constitution. A
Constitution which professes to be democratic and
republican in character and which brings about a
revolutionary change by the Seventy-third Constitutional
Amendment by making detailed provision for democratic C
decentralisation and self-government on the principle of
grass-root democracy cannot be interpreted to exclude the
provision of no-confidence motion in respect of the office
of the Chairperson of the panchayat just because of its
silence on that aspect."
D
We are in respectful agreement with the aforesaid opinion.
52. The Court thereafter notices the submission that the
position of Panchayat Adhyaksha is comparable with that of the
President of India. On this analogy, it was submitted that the E
office of Chairperson, i.e. Panchayat Adhyaksha should have
the same immunity. This Court rejected the submission with the
observation that "this is an argument of desperation and has
been advanced, with respect, without any regard to. the vast
difference in constitutional status and position between the two
F
posts." Mr. Bhushan h;:is made the same submission before
us. We would like to add here, that even by stretching the
imagination beyond all reasonable bounds, we are unable to
accept the submission of Mr. Bhushan that Chairman of a
District Panchayat should be put on the same pedestal as the
President of India. G
53. Mr. Shanti Bhushan had also submitted that since the
issues raised herein pertained to the interpretation of the
Constitution of India, the matter needs to be referred to the five
Judges as provided in Article 145(3) of the Constitution of India H
1130 SUPREME COURT REPORTS (2014] 4 S.C.R.
A read with Order VII Rule 2 of the Supreme Court Rules, 1966.
54. We are of the opinion that no substantial question of
law arises 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
8
been elaborately, and with erudition, dilated upon by this Court
in Bhanumati & Ors. (supra). We also do not find any force in
the submission of Mr. Bhushan that there is any occasion for
reconsideration -of the judgment of this Court in Bhanumati &
C · Ors. (supra).
55. Mr. Bhushan has relied on numerous judgments of this
Court in support of his submissions. Let us now consider the
same.
o 56. On the issue of repugnancy, Mr. Bhushan has Cited
following judgments:
(1) /.R.Coelho vs. Union of India (supra) -
In our opinion, the reliance on the aforesaid judgment is
E wholly misplaced as the right to choose of the constituents is
not curtailed by Section 28 of the Act. It is only the right of an
elected Chairman/Adhyaksha to continue, who has lost the
confidence of the electorate that has been curtailed.
(2) Deep Chand vs. State of UP. (supra) -
F
In this case, this Court culled out the law pertaining to the
rule of repugnancy. The three tests of inconsistency or
repugnancy as formulated by Nicholas in his Australian
Constitution 2nd Edition have been noticed which are as under:
G
"(1) There may be inconsistency in the actual terms of the
competing statutes;
(2) Though there may be no direct conflict, a State law may
be inoperative because the Commonwealth law, or the award
H
USHA BHARTI v. STATE OF U.P. & ORS. 1131
[SURINDER SINGH NIJJAR, J.]
of the Commonwealth Court, is intended to be a complete A
exhaustive code; and
(3) Even in the absence of intention, a conflict may arise
when both State and Commonwealth seek to exercise their
powers over the same subject-matter."
B
57. The aforesaid three rules have been accepted by this
Court in Ch. Tika Ramji Vs. State of U.P. 17 Similar test was
laid down by this Court in, Zaverbhai Amaidas Vs. State of
Bombay (supra) as follows:
c
"(1) Whether there is direct conflict between the two
provisions;
(2) Whether Parliament intended to lay down an exhaustive
code in respect of the subject-matter replacing the Act of
the State Legislature and D
(3) Whether the law made by Parliament and the law made
by the State Legislature occupy the same field.
58. In our opinion, the provision contained in Section 28
E
can not be said to be repugnant to the 73rd Amendment on
the basis of the aforesaid tests laid down by this Court.
59. On the issue of per incuriam, Mr. Bhushan has cited
following judgments:
F
(1) N. Bhargawan Pillai Vs. State of Kera/a (supra) -
Mr. Bhushan had relied on observations made by this Court
in Paragraph 14 of the judgment. It was held that the judgment
in the case of Bore Gowda Vs. State of Karnataka 18 was per
incuriam as it did not consider the impact of Section 18 of the G
Probation of Offenders Act, 1958.
17. (1956) SCR 39~.
1a. (2000J 10 sec 620. H
1132 SUPREME COURT REPORTS [2014] 4 S.C.R.
A In Bhanumati & Ors. (supra), it can not be said that any
relevant provision of the Constitution or the Act had not been
taken into consideration.
(2) State of U.P. Vs. Synthetics and Chemicals Ltd.
(supra)
8
The observations made in Paragraph 86 in the earlier
judgment of Synthetics and Chemicals Ltd. & Ors. Vs. State
of UP. & Ors. 19 were found to be per incuriam. The aforesaid
observations would not be applicable in the present case as
C no such legitimate criticism can be made against the judgment
of this Court in Bhanumati & Ors. (supra).
(3) Babu Parasu Kaikadi Vs. Babu (supra)
This judgment also reiterated the well known principle of
D per incuriam. It was h.eld that the judgment in Ohondiram Tatoba
Kadam Vs. Ramchandra Balwantrao Dubai (since deceased)
by His LRs. & Anr. 20 was per incuriam as. it had not noticed
the earlier. binding precedent of a coordinate Bench and also
having not cons.idered the mandatory provisions as contained
E in Sections 15 and 29 of the Bombay Tenancy and Agricultural
Lands Act, 1948 (67 of 1948). The well known principle with
regard to a judgment not being a binding precedent as stated
in Halsbury's Laws of England, 4th Edn., Vol. 26 is as under:-
F "A decision is given per incuriam when the court has acted
in ignorance of a previous decision of its own or of a court
of coordinate jurisdiction which covered the case before
it, in which case it must decide which case to follow; or
when it has acted in ignorance of a House of Lords
decision, in which case it must follow that decision; or when
G
the decision is given in ignorance of the terms of a statute
or rule having statutory force."
19. (1990) 1 sec 109.
H 20. (1994) 3 sec 366.
USHA BHARTI v. STATE OF U.P. & ORS. 1133
[SURINDER SINGH NIJJAR, J.]
The same P.rincipl~ has been reiterated by this Court in A
State of UP. Vs. Synthetics and Chemicals Ltd. (supra):-
"40. 'lncuria' literally means 'carelessness'. In practice per
incuriam appears to mean per ignoratium. English courts
have developed this principle in relaxation of the rule of B
stare decisis. The 'quotable in law' is avoided and ignored
if it is rendered, ··in ignoratium of a statute or other binding
authority'. (Young v. Bristol Aeroplane Co. Ltd.) Same has
been accepted, approved and adopted by this Court while
interpreting Article 141 of the Constitution which embodies C
the doctrine of precedents as a matter of law,"
(emphasis supplied)
In our opinion, the judgment in Bhanumati & Ors. (supra)
can not be said per incuriam on the applicability of the
aforesaid tests. D
(4) Zee Telefilms Ltd. Vs. Union of India (supra)
In this case, again this Court reiterated that a decision is
an authority for the question of law determined by it and that it
should not be read as a statute. A decision is not an authority E
for the proposition which did not call for its consideration. These
observations again are of no assistance to the petitioner.
(5) Nirmaljeet Kaur Vs. State of M.P.
In this case also, this Court has reiterated the principles F
earlier enunciated. Thus, this judgment is again of no help to
the petitioner.
60. On the submission with regard to the Validity/Legality
of a Legislative Act, reliance was placed upon:
G
2
D.S. NakfHa vs. Union of lndia 1; Union of India vs.
G. Ganayutham 22; Bharat Petroleum Corporation Ltd. vs.
21. (1983) 1 sec 305. /
22. (1997) sec 463. H
1134 SUPREME COURT REPORTS [2014) 4 S.C.R.
A Maddula Ratnaval/P- 3 and State of A.P. vis McDowell & Co. 24•
In our opinion, all these judgments are inapplicable to the facts
of this case.
61. On the submission with regard to Arbitrary/
B discretionary/unguided power to executive authority, Mr.
Bhushan relied upon following judgments: Senior
Superintendent of Post Offices vs. /zhar Hussain 25, Khoday
Distilleries Ltd. vs. State of Kamataka 26, Magan/al Chhaga/a/
(P) Ltd. vs. Municipal Corporation of Greater Bombay2 7
Director of Industries vs. Deep Chand Agarwa/28 . In our
C opinion, these judgments have no application whatsoever either
to the legal issue or to the facts of this case.
62. We have no hesitation in accepting the submission of
Mr. Bhushan that the High Court or this Court, in exercise of its
o powers of review can reopen the case and rehear the entire
matter. But we must hasten to add that 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 limits within which the Courts
E can exercise the powers of review have been well settled in a
catena of judgments. All the judgments have in fact been
considered by the High Court in Pages 16 to 23. The High
Court has also considered the judgment in S. Nagaraj & Ors.
Vs. State of Karnataka & Anr. (supra), which reiterates the
F principle that
"19. Review literally and even judicially means re-
examination or re-consideration. Basic philosophy inherent
in it is the universal acceptance of human fallibility. Yet in
G 23. (2007) 6 sec 81.
24. (1996) 3 sec 709.
2s. (1989) 4 sec 318.
26. (1996) 1o sec 304.
27. (1974) 2 sec 402.
H 28. (19BO) 2 sec 332.
USHA BHARTI v. STATE OF U.P. & ORS. 1135
[SURINDER SINGH NIJJAR, J.]
the realm of law the courts and even the statutes lean A
strongly in favour of finality of decision legally and properly
made. Exceptions both statutorily and judicially have been
carved out to correct accidental mistakes or miscarriage
of justice. Even when there was no statutory provision and
no rules were framed by the highest court indicating the B
circumstances in which it could rectify its order the courts
culled out such power to avoid abuse of process or
miscarriage of justice ................. "
63. These principles are far too well entrenched in the
Indian jurisprudence, to warrant reiteration. However, for the C
sake of completion, we may notice that Mr. Bhushan had relied
upon Board of Control for Cricket in India vis Netaji Cricket
Club (supra), and Green View Tea & Industries (supra). It would
be useful to reiterate the following excerpts:
D
In the case of Board of Control for Cricket in India (supra),
it was observed that:
"90. Thus, a mistake on the part of the court which would
include a mistake in the nature of the undertaking may also
E
call for a review of the order. An application for review
would also be maintainable if there exists sufficient reason
therefore. What would constitute sufficient reason would
depend on the facts and circumstances of the case. The
words "sufficient reason" in Order 47 Rule 1 of the Code
are wide enough to include a misconception of fact or law F
by a court or even an advocate. An application for review
may be necessitated by way of invoking the doctrine "actus
curiae neminem gravabit".
This court in Green View Tea & Industries (supra) G
reiterated the view adopted by it in S. Nagaraj & Ors. (supra).
Therefore, the ratio of Green View Tea is not applicable in this
case.
H
1136 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 64. In view of the observations made in the aforesaid
judgments, this Court would not be justified in holding that the
High Court has erred in law in not reviewing its earlier judgment.
65. This apart, we have examined the entire issue
B threadbare ourselves as the issue with regard to the adverse
impact on the candidates belonging to the reserves categories
has not been raised before the High Court nor considered by
it. In the earlier round, the issue was also neither raised nor
considered by this Court. When the order dated 19th February,
C 2013 was passed, the issue with regard to reservation was also
not canvassed. But now that the issue had been raised, we
thought it appropriate to examine the issue to put an end to the
litigation between the parties.
66. In view of the above, the appeal is accordingly
D dismissed.
Contempt Petition No.287 of 2013 in CIVIL APPEAL
NO ......... OF 2014 (Arising out of SLP (C) No.22035 of
2013)
E 67. This Petition was filed by the Petitioner/Appellant,
seeking initiation of contempt proceedings against alleged
contemnors/respondent for disobeying the order of status quo
dated 12th July, 2013 passed by this Court in the aforesaid Civil
Appeal.
F
68. In view of the judgment passed by this Court in Civil
Appeal No. 4197 of 2014 (Arising out of SLP (C) No.22035 of
2013), this Petition is dismissed as having become infructuous.
G CIVIL APPEAL NO 4199 OF 2014 (Arising out of SLP(C)
No.29740 of 2013
69. This Civil Appeal was filed by Smt. Rukmini Devi,
challenging final order and judgment dated 19th August, 2013
H
USHA BHARTI v. STATE OF U.P. & ORS. 1137
[SURINDER SINGH NIJJAR, J.]
passed by the High Court of Judicature at Allahabad, Lucknow A
Bench in Writ Petition No. (MB) 5999 of 2013.
70. The issues raised in this civil appeal are identical to
those that we have examined in Civil Appeal No. 4197 of 2014
(Arising out of SLP (C) No.22035 of 2013). Therefore, in view B
of the judgment in the Civil Appeal No. 4197 of 2014 (Arising
out of SLP (C) No.22035 of 2013), this appeal is also
dismissed.
Devika Gujral Matters dismissed.
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