RAM PAL SINGH versus STATE OF U.P. & ORS. on 24 April 2018

[2018] 3 S.C.R. 971

RAM PAL SINGH

v.

STATE OF U.P. & ORS.

(Petition for Special Leave to Appeal (Civil) No. 31990 of 2017)

APRIL 24, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Uttar Pradesh Kshettra Panchayats and Zila PanchayatsAdhiniyam, 1961:

ss. 6(1)(b) and 15 r/w r. 3(3) of Uttar Pradesh KshettraPanchayats and Zila Panchayats (Oath of Office of Adhyaksha orPramukh Etc.) Rules, 1994 – No confidence motion against‘Pramukh’ of Kshetra Panchayat – Moved by 39 elected members –Plea of the ‘Pramukh’ (petitioner) that the requisition for noconfidence motion was not maintainable in view of s. 15 becausethe same can be considered to have been signed only by 26 electedmembers (i.e. less than half the total number i.e. 63 elected members)as 13 elected members who had not taken oath of office could nothave signed or moved the motion – Held: Per Madan Lokur, J:Thereis nothing in law to indicate that elected member ceases to be amember if he/she does not take oath – That apart, if 13 memberscannot be considered as elected members, they also cannot beconsidered or counted for the purpose of composition or countingtotal strength of Kshettra Panchayat – If number of signatoriesdrop by 13, the total member of the elected members would alsodrop by 13 – Thus no-confidence motion was a numerically validrequisition – In the facts of the case it is held that all the 63 membershad taken oath of office before moving the motion – Thus 13members were elected members and were entitled to sign the motion– Per Deepak Gupta, J:Members who have not taken oath cannotmove and be a signatory to such a no-confidence motion – If theyare not entitled to vote at such motion (having not taken oath) cannotbe held entitled or eligible to sign such motion – However, thequestion whether certain members had taken oath or not is disputed,and since the petitioner has failed to prove that such members hadnot taken oath, the petition is liable to be dismissed.

971

A

B

CDEF

G

H

AOath:

Oath of office – By persons holding public office – Sanctityof – Held: Oath cannot be rendered meaningless – Legislature isadvised to provide consequences for not subscribing to such oath– In order to avoid controversy as to whether oath was taken orBnot, advice to maintain record of the same.

Dismissing the petition, the Court

HELD:

Per Madan B. Lokur, J.:C

1.1 It is not correct on the part of the petitioner to contendthat for the purposes of signing the No Confidence Motion, the13 elected members are not elected members but for thepurposes of the composition of the Kshettra Panchayat they areelected members thereby maintaining the strength of the KshettraDPanchayat at 63. If they are not elected members for the purposesof signing the No Confidence Motion, then the number ofsignatories to the No Confidence Motion would drop from 39 to26. Correspondingly, the number of elected members of theKshettra Panchayat would also get reduced from 63 to 50.Consequently, it would have to be concluded that since 26 out ofE50 elected members of the Kshettra Panchayat have signed theNo Confidence Motion, more than 50% of the elected members.If the 13 elected members are not elected members for onepurpose, they cannot have a different status for another purpose.Their status must remain the same as that of an elected member(or not an elected member) both at the time of signing the NoFConfidence Motion and for the composition of the KshettraPanchayat. [Paras 21, 22][982-B-E]

1.2 In the facts of the case, all 63 elected members of theKshettra Panchayat took the oath of office on 18[th] March, 2018and no communication was sent on 28[th] March, 2018 to orGreceived by any of the 17 elected members of the KshettraPanchayat who were alleged not to have taken oath of office on18[th] March, 2018. Consequently, the No Confidence Motionagainst the petitioner was a numerically valid requisition havingbeen signed by more than 50% of the elected members of theHKshettra Panchayat. [Para 25][983-C]

1.3 There is nothing in the law to indicate that an electedmember ceases to be a member of the Kshettra Panchayat if heor she does not take the oath of office. Though it is strange andillogical that the 13 elected members could sign the NoConfidence Motion even though they had not taken the oath ofoffice but they could not actually vote in the Panchayat becausethey were not entitled to a seat in the Panchayat, not having takenthe oath of office. However, there is no challenge to the provisionsof the Uttar Pradesh Kshettra Panchayats and Zila PanchayatsAdhiniyam,1961. Therefore, if the requisition for the NoConfidence Motion was numerically valid, the discussion on thatwould take place in the Panchayat and the requisition would meetits appropriate fate. [Paras 23, 24][982-F-H; 983-A]

1.4 The 13 signatories to No Confidence Motion againstthe petitioner were elected members of the Kshettra Panchayatand were entitled to sign the No Confidence Motion and thatthere was no infirmity in this regard. [Para 37][988-A]

Bhupindra Nath Basu v. Ranajit Singh Bahadur A.I.R.1914 Calcutta 152; Pashupati Nath Sukul v. NemChandra Jain & Ors. (1984) 2 SCC 404 : [1984] 1SCR 939; Smt. Kamla Devi v. State of U.P. & Ors. 2014(8) ADJ 525 – referred to.

In re Mayor of Penryn 1 Strange 582 = 93 E.R. 714;Rex v. Swyer 1 Strange 582 = 93 E.R. 714 – referredto.

2.1 Subscribing to the oath of office is not being takenvery seriously. It must be appreciated that taking the oath ofoffice is not a mere ritual but there is a degree of seriousnessand sanctity attached to it. Different laws provide differentconsequences (some quite mild) for not taking the oath of office.Since subscribing to the oath of office is a solemn occasion, failureto do so ought to result in serious consequences, such as theseat being declared vacant after a specified time. Electedrepresentatives be visited with serious consequences for nottaking the oath of office within a specified time, mainly becauseeven the Constitution attaches a great degree of solemnity tothe oath of office. [Paras 33, 34][986-B-C; 987-C]

A

B

C

D

E

F

G

H

A

A2.2 Apart from requiring elected representatives of aPanchayat attaching seriousness to taking the oath of office, anunimpeachable record of the elected representatives taking theoath of office should be maintained by the concerned officials ofthe State Government. Unless the sanctity of the oath of office isappreciated and appropriate documentation kept, situations suchBas the present where a dispute is raised whether an electedmember of a body has taken the oath of office, will continue to befaced. Such controversies are completely avoidable. [Para36][987-E-G]

Per Deepak Gupta, J.: (Concurring with Conclusion)C

Per Deepak Gupta, J.: (Concurring with Conclusion)C

1.1 Rule 3(3) of Uttar Pradesh Kshettra Panchayats andZila Panchayats (Oath of office of Adhyaksha or Pramukh etc.)Rules, 1994 prescribes that before taking their seat for the firsttime, the members must subscribe oath or affirmation. If he doesnot take oath, he does not cease to be a member but, at the sameDtime, he cannot take part in the business of the House. A motionof no confidence is part of the proceedings of the Panchayat, assuch a motion is governed by the provisions of the Adhiniyamand, therefore, this is part of the business of the Panchayat. Anelected member who has not taken oath, cannot move and be aEsignatory to such a no confidence motion. Such motion has to bemoved in terms of Section 15 of the Adhiniyam. Those memberswho have not taken oath and are, therefore, not entitled to voteat such no confidence motion, cannot be held to be entitled oreligible to sign such motion. Otherwise, it would lead to a veryodd situation where such members can sign a motion but cannotFvote when the said motion is put to vote. This could not havebeen the intention of the Legislature. Section 15(12) and (13) ofthe Adhiniyam provide that a no-confidence motion cannot bemoved within one year of the election having taken place or withina year of the rejection of the motion. Therefore, members whoGhave not taken oath, do not have a right to vote for the no-confidence motion, cannot be permitted to sign such a motion.[Para 10][992-C-F]

1.2 However, there are disputed questions of facts as towhether certain members had taken oath or not, which questions H

A

cannot be decided at this stage and the petitioner has failed todischarge the heavy burden on him to prove that these membershave not taken oath. [Para 12][993-A-B]

Pashupati Nath Sukul v. Nem Chandra Jain & Ors.(1984) 2 SCC 404 : [1984] 1 SCR 939; BhupendraNath Basu v. Ranjit Singh AIR 1914 Cal.152 – heldinapplicable B

Kamla Devi v. State of U.P & Ors. 2014 (8) ADJ 525 –held not good law Mayor of Penryn 93 ER 714 [Kings Bench]; Rex v.

C

Swyer 109 E.R. 531 (Kings Bench) – referred to

2. Various articles of the Constitution of India and variousother laws provide that persons holding public office mustsubscribe to an oath of allegiance. This oath cannot be renderedmeaningless and the Legislature would be well advised to provideconsequences for not subscribing to such an oath of office. ToDavoid such controversy in future, it would also be advisable if theswearing in/oath taking is videographed so that no such disputearises in future. [Para 12][975-B-C]

Case Law Reference

E

In the Judgment of Madan B. Lokur, J.

From the Judgment and Order dated 12.09.2017 of the High Courtof Judicature at Allahabad in WC No. 41252 of 2017.

H

A

AMukul Rohatgi, Sr. Adv., Shantwanu Singh, Ms. Vamshi Rao,Ms. Misha, Surinder Dutt Sharma, Meghsham S. Bhangle, Murari BabuSharma, Ashok Kumar Singh, Kaushal Yadav, Nandlal Kumar Mishra,Dr. Ajay Kumar, Kamlesh Kumar Maurya, Mrs. Sunita Yadav,Ali Mushtaq Nawashish, Mahendra Singh, Tuhin Lavania, PraveenAgrawal, R. K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, RameshwarBPrasad Goyal, Advs. for the Appellant.

Ms. Aishwarya Bhati, AAG, P. S. Patwalia, S. R. Singh, PradeepKant, Sr. Advs., Bhanwar Pal Singh Jadon, Ms. Harshika Verma, UmeshGupta, Ram Anugarh Singh, Manoj K. Mishra, Rajeev Kumar Dubey,Amit Kumar Singh, Adarsh Upadhyay, Garvesh Gabra, Gaurav Agrawal,CMs. Vimlesh Kumar Shukla, Ms. Parul Shukla, E. C. Agrawala, HimanshuSatija, Sunil Murarka, Rajesh Kumar, Adbhut Pathak, R. K. Singh,Praveen Swarup, Varinder Kumar Sharma, P. K. Singh, NeerajSrivastava, Vijay Pal, Ajay Singh, Divyanshu Sahay, Sanjay Goel, SunnyChoudhary, Ms. Preetika Dwivedi, Santosh Krishnan, Parmatma Singh,DRam Anugrah, Vipin Singhania, Ms. Manju Gupta, Advs. for theRespondents.

The following two Judgments of the Court were delivered by

The following two Judgments of the Court were delivered by MADAN B. LOKUR, J. 1. Pursuant to a Notification issuedby the State Election Commission, U.P. on 21[st] September, 2015 electionsEwere held to the Kshettra Panchayat, Jasrana, District Ferozabad (U.P.)on 7[th] February, 2016. Apparently, the results were declared on thesame day by the State Election Commission and 63 candidates weredeclared elected. It may be mentioned that the elections were heldunder the provisions of the Uttar Pradesh Kshettra Panchayats and ZilaFPanchayats Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam).

An elected member

2. The Adhiniyam does not define the expression ‘electedmember’. For the purposes of the present petition we are proceedingon the basis that an ‘elected member’ is a person who has been dulyGelected. The ‘elected member’ might or might not have taken the oathof office in terms of the Uttar Pradesh Kshettra Panchayats and ZilaPanchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules,1994 (hereinafter referred to as the Rules). We say this even thoughthere is some sanctity attached to taking the oath of office, which wewill advert to later.H

3. Rule 2(2) of the Rules defines ‘Members’ in the following terms,which is also without reference to taking the oath of office:

“2(2) “Members” means in case of Zila Panchayats Memberselected under clause (b) of sub-section (1) of Section 18 and incase of Kshettra Panchayat Members elected under clause (b)of sub-section (1) of Section 6 of the Act.”

4. Section 6(1) of the Adhiniyam provides that a KshettraPanchayat shall consist of a Pramukh, who shall be its Chairperson.Section 6(1)(b) provides that all the Pradhans of the Gram Panchayatsin the Khand shall constitute the Kshettra Panchayat. Section 6(1)(b)provides that ‘elected members’ of the Kshettra Panchayat shall bechosen by direct election from territorial constituencies in the Panchayatareas. In other words, it appears that despite the sanctity attached totaking the oath of office, an ‘elected member’ is one who is elected tothe Kshettra Panchayat in accordance with Section 6(1)(b) of theAdhiniyam regardless of whether she or he takes the oath of office.

5. The only adverse consequence of an ‘elected member’ nottaking the oath of office is provided in Rule 3(3) of the Rules. The adverseconsequence is that if the member of the Kshettra Panchayat does notmake or subscribe the oath or affirmation, then he or she cannot takethe seat in the Kshettra Panchayat. Rule 3(3) reads :

“3(3). The members of Zila Panchayat and Kshettra Panchayatbefore taking their seats for the first time as such members shallmake or subscribe oath or affirmation in the case of member ofZila Panchayat before the Adhyaksha and in his absence beforethe Mukhya Adhikari and in the case of members of the KshettraPanchayat before the Pramukh and in his absence before theKhand Vikas Adhikari in the form set out in the Appendix.”

6. In other words, a person duly elected to a Kshettra Panchayatunder Section 6(1)(b) of the Adhiniyam is described as and remains an‘elected member’ and if that ‘elected member’ does not take the oath ofoffice, he or she does not cease to be an ‘elected member’. The onlyconsequence is that the ‘elected member’ cannot take a seat in theKshettra Panchayat and therefore cannot participate in the proceedingsof the Panchayat. The significance of this discussion will be apparenthereafter.

A

B

C

D

E

F

G

H

ATaking the oath of office

A

B

C

D

E

F

G

H

978SUPREME COURT REPORTS

ATaking the oath of office

7. After the result of the elections was notified by the StateElection Commission, the first meeting of the Kshettra Panchayat tookplace on 18[th] March, 2016. In this meeting, the ‘elected members’ electedthe petitioner (Ram Pal Singh) as the Pramukh. He subscribed to theBoath of office before the Sub-Divisional Magistrate/appointee of theDistrict Magistrate. Thereafter, the version advanced by the petitioneris that he administered the oath of office to the ‘elected members’ except17 elected members who were not present. On the other hand, the versionadvanced by the contesting private respondents (elected members) aswell as the State of U.P. is to the effect that all 63 elected members tookCthe oath of office. We need to decide this factual controversy.

8. In this regard, we have been shown two documents in the firstinstance, one by the petitioner and another by the contesting privaterespondents (elected members). According to the document producedby the petitioner, the Sub Divisional Officer/Pramukh reported that inDthe proceedings of the Kshettra Panchayat of 18[th] March, 2016 of theelected members 17 of them did not take the oath of office. The otherdocument has been filed by the private contesting respondents to theeffect that proceedings were held on 18[th] March, 2016 in which theyparticipated but there is an interpolation in the document to the effectEthat 17 elected members did not take the oath of office. The submissionis that they could have participated in the proceedings only after theyhad subscribed to the oath of office.

9. Accordingly, we have two conflicting versions of the proceedingsof 18[th] March, 2016. The submission of the petitioner is that the 17Felected members did not take the oath of office and did not participate inthe proceedings held on 18[th] March, 2016. The submission of the privatecontesting respondents is that did take the oath of office, they wereentitled to and did participate in the proceedings of 18[th] March, 2016 andan interpolation has been made in the record of proceedings only tosuggest that they did not take the oath of office. Learned counsel forGthe contesting private respondents made an additional submission anddrew our attention to the averments made in the counter affidavit to theeffect that these elected members were paid their daily allowance aswell as their travelling allowance for subsequent meetings and thispayment could have been made only if they had attended the meetings H

of the Kshettra Panchayat after taking the oath of office. This avermenthas not been specifically denied by anybody.

10. In view of this serious factual controversy, we are of opinionthat it would be appropriate to rely on the counter affidavit filed by theState. It is stated in the counter affidavit that in a communication of 12[th]January, 2018 issued by the office of the Block Development Officer, itis stated that all 63 members of the Kshettra Panchayat had taken theoath of office on 18[th] March, 2016.

11. Our attention has also been drawn to a communication dated11[th] January, 2018 issued by the Deputy Collector, Shikhohabad. Thiscommunication is in the nature of an inquiry into the events of 18[th] March,2016 and it is addressed to the Chief Development Officer, DistrictFerozabad. In the communication, it is stated inter alia, that a perusalof the attendance register of 18[th] March, 2016 indicates that all 63members of the Kshettra Panchayat had signed it. Further, oath wasalso taken by all the elected members on 18[th] March, 2016. Theconclusion of the Deputy Collector, therefore, is quite clear that all theelected members of the Kshettra Panchayat had taken the oath of officeon 18[th] March, 2016. There is nothing to suggest that the affidavit filedby the State is false or that the report referred to above is incorrect.

12. The petitioner has relied upon two other documents in supportof his case that 17 elected members did not take the oath of office on18[th] March, 2016. The first such document is a communication of 28[th]March, 2016 issued by the Block Development Officer, Jasrana,addressed to the 17 elected members requiring them to remain presentin his office on 31[st ]March, 2016 to take the oath of office and fill therequisite form confirming that oath of office has been taken.

13. As a follow up to the communication dated 28[th] March, 2016reference was made by the petitioner to another document dated 31[st]March, 2016 in which it is stated that 3 of the 17 elected members tookthe oath of office. This document also requires the Assistant DevelopmentOfficer (West) to take appropriate steps for completing the formalitiesof oath being taken by the remaining 14 elected members.

14. On the other hand, in the communication/report of 11[th] January,2018 the Deputy Collector, Shekohabad, has specifically stated that thereis nothing on record to suggest that any communication was sent to the17 elected members on 28[th] March, 2016. There is no record of the AB

C

D

E

F

G

H

Acommunication having been despatched nor is there any documentshowing receipt of the communication by the 17 elected members. Itappears that the Block Development Officer, Jasrana, was also contactedbut he was unable to give any evidence or proof of any official record ofthe communication of 28[th] March, 2016.

15. In the communication of 12[th] January, 2018 sent from theoffice of the Block Development Officer, Jasrana, to the DistrictPanchayat Raj Office, Ferozabad, it is stated that no receipt or despatchrelating to the communication of 28[th] March, 2016 is available on record.

B

16. The counter affidavit filed on behalf of the State confirmsCthat there is nothing on the record of the Kshettra Panchayat to indicatethat any communication dated 28[th] March, 2016 was sent to the 17 electedmembers. We accept the submission and categorical averment of theState based on the record and conclude that no communication dated28[th] March, 2016 was sent to the 17 elected members for taking oath ofoffice.D

17. It was then submitted by learned counsel for the petitionerthat if in fact no communication was sent on 28[th] March, 2016 there wasno reason for 3 of the 17 elected members to take the oath of office on31[st] March, 2016 since they had earlier taken the oath of office on 18[th]March, 2016. It is not necessary for us to go into this issue and it isEentirely for the 3 elected members to explain why they took the oath ofoffice once again on 31[st] March, 2016 having already taken the oath ofoffice on 18[th] March, 2016.

18. Our conclusion in this regard is that all 63 elected members ofthe Kshettra Panchayat took the oath of office on 18[th] March, 2016.

F

No Confidence Motion

19. As time went by, it appears that there was a souring of relationsbetween the petitioner and other elected members of the KshettraPanchayat. Consequently, a No Confidence Motion was moved againstthe petitioner on 12[th] June, 2017. The No Confidence Motion was movedGby 39 elected members including 13 elected members who had allegedlynot taken the oath of office. It was therefore submitted by the petitionerthat the No Confidence Motion was signed by only 26 elected memberswhich is less than half the total number of 63 elected members of theKshettra Panchayat. As such, in view of Section 15 of the Adhiniyam H

the No Confidence Motion was not maintainable in law and the requisitiondeserved to be rejected at the threshold. This provision reads as follows:-

15. Motion of non-confidence in Pramukh- (1) A motionexpressing want of confidence in the Pramukh or any of a KshettraPanchayat may be made and proceeded with in accordance withthe procedure laid down in the following sub-sections.

(2) A written notice of intention to make the motion in such formas may be prescribed, signed by at least half of the total numberof elected members of the Kshettra Panchayat for the time beingtogether with a copy of the proposed motion, shall be delivered inperson, by any one of the members signing the notice, to theCollector having jurisdiction over the Kshettra Panchayat.

(3) to (10) XXX XXX XXX

(11) If the motion is carried with the support of more than half ofthe total number of elected members of the Kshettra Panchayatfor the time being –

(a) the Presiding Officer shall cause the fact to be publishedby affixing a notice thereof on the notice board of the officeof the Kshettra Panchayat and also by notifying the samein the Gazette, and (b) the Pramukh or as the case may be, (sic) shall cease tohold office as such and vacate the same on and from thedate next following that on which the said notice is fixed onthe notice board of the office of the Kshettra Panchayat.

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

(13) No notice of a motion under this section shall be receivedwithin one year of the assumption of office by a Pramukh or (sic)as the case may be.

20. We find a fallacy and a dichotomy in the submission of learnedcounsel for the petitioner with regard to the status of elected members A

B

C

D

E

F

G

H

Aof the Kshettra Panchayat who have allegedly not taken the oath ofoffice.

21. The fallacy and dichotomy arises in this manner: either the 13elected members continue to be elected members of the KshettraPanchayat, despite their not having taken the oath of office or they ceaseBto be elected members of the Kshettra Panchayat. If they are not electedmembers for the purposes of signing the No Confidence Motion, thenthe number of signatories to the No Confidence Motion would drop from39 to 26. Correspondingly, the number of elected members of the KshettraPanchayat would also get reduced from 63 to 50. Consequently, it wouldhave to be concluded that since 26 out of 50 elected members of theCKshettra Panchayat have signed the No Confidence Motion, more than50% of the elected members. Therefore, the No Confidence Motionwould be maintainable under the provisions of Section 15 of theAdhiniyam.

22. In other words, it is not correct on the part of learned counselDfor the petitioner to contend that for the purposes of signing the NoConfidence Motion, the 13 elected members are not elected membersbut for the purposes of the composition of the Kshettra Panchayat theyare elected members thereby maintaining the strength of the KshettraPanchayat at 63. If the 13 elected members are not elected membersEfor one purpose, they cannot have a different status for another purpose.Their status must remain the same as that of an elected member (or notan elected member) both at the time of signing the No Confidence Motionand for the composition of the Kshettra Panchayat.

23. That apart, there is nothing in the law to indicate that an electedFmember ceases to be a member of the Kshettra Panchayat if he or shedoes not take the oath of office.

24. To get over this fallacy and dichotomy, it was submitted bylearned counsel for the petitioner that it would be strange and illogicalthat the 13 elected members could sign the No Confidence Motion evenGthough they had not taken the oath of office but they could not actuallyvote in the Panchayat because they were not entitled to a seat in thePanchayat, not having taken the oath of office. While this may appearto be illogical and irrational, there is no challenge to the provisions of theAdhiniyam and we must proceed on the basis that if the requisition forthe No Confidence Motion was numerically valid, the discussion on that H

would take place in the Panchayat and the requisition would meet itsappropriate fate. We, therefore, reject this contention of the learnedcounsel for the petitioner.

25. Although we are loathe to adjudicate on factual disputes, wehave been compelled to do so in this particular case due to the nature ofthe conflicting claims and the fact that we are concerned withdemocratically elected representatives of a Kshettra Panchayat. Thatbeing said, our conclusion on facts is that all 63 elected members of theKshettra Panchayat took the oath of office on 18[th] March, 2018 and nocommunication was sent on 28[th] March, 2018 to or received by any ofthe 17 elected members of the Kshettra Panchayat who were allegednot to have taken oath of office on 18[th] March, 2018. Consequently, theNo Confidence Motion against the petitioner was a numerically validrequisition having been signed by more than 50% of the elected membersof the Kshettra Panchayat.

Position in law

26. The legal position having been settled for over 100 years, wesee no dire necessity or any necessity at all of over-turning the law laiddown.

27. In Bhupindra Nath Basu v. Ranajit Singh Bahadur[1]thequestion related to the election of two non-official additional membersof the Council of the Governor-General. It was alleged that two electorshad not taken the oath of allegiance and therefore the election of thenon-official additional members was void. An unsuccessful candidate inthe election questioned the validity of the election and sought therecounting of votes after excluding the votes of two electors who hadnot taken the oath of allegiance.

28. The Calcutta High Court referred to In re Mayor of Penryn[2]and Rex v. Swyer[3] which noted that a person is admitted to a publicoffice (which requires the oath of allegiance) only when that oath istaken. However, the relevant Regulation did not address this issue. Itwas held that for the purpose of performing ‘legislative functions’conferred by the Regulation, it was a necessary requirement that theoath of allegiance is taken. The mere fact of omission to take an oath of 1 A.I.R. 1914 Calcutta 152 2 1 Strange 582 = 93 E.R. 714 3 10 B. & C. 486 = 8 L.J. (o.s.) K.B. 221 = 109 E.R. 531

A

B

C

D

EF

G

H

Aallegiance did not ipso facto cause a member to vacate his seat.Additionally, Regulation 8(1)(b) gave discretion to the Governor-Generalto declare a seat as void if the elected person fails to take the oath ofallegiance. In the cited case, the Governor-General had not exercisedsuch an option. Therefore, the mere fact that two elected members didnot take the oath of allegiance did not result in their participation in theBelectoral process as illegal.

29. A somewhat similar situation arose in Pashupati Nath Sukulv. Nem Chandra Jain & Ors.[4] In this case, a member of a LegislativeAssembly who had not taken the oath of office had proposed a candidatefor election to the Rajya Sabha. Approving the law laid down inCBhupindra Nath Basu this Court held that as long as the name of theelected member appears in the notification published under the provisionsof Section 73 of the Representation of the People Act, 1951 that membercan take part in all ‘non-legislative activities’ of an elected member.Reference was made to Article 188 of the Constitution which providesDthat every member of the Legislative Assembly shall, before taking hisseat, make and subscribe an oath or affirmation according to the formset out for the purpose in the Third Schedule of the Constitution.

Article 188 of the Constitution reads as follows:

“Every member of the Legislative Assembly or the LegislativeECouncil of a State shall, before taking his seat, make and subscribebefore the Governor, or some person appointed in that behalf byhim, an oath or affirmation according to the form set out for thepurpose in the Third Schedule.”

In this context, it was held by this Court in paragraph 20 of theFReport as follows :

“We are of the view that an elected member who has not takenoath but whose name appears in the notification published underSection 73 of the Act can take part in all non-legislative activitiesof an elected member. The right of voting at an election to theGRajya Sabha can also be exercised by him. In this case since it isnot disputed that the name of the proposer had been includedbefore the date on which he proposed the name of the appellantas a candidate in the notification published under Section 73 ofthe Act and in the electoral roll maintained under Section 152 of H 4 (1984) 2 SCC 404

the Act, it should be held that there was no infirmity in thenomination. …… .”

30. In view of the above, it was held that since the name of theproposer appeared in the notification published under Section 73 of theRepresentation of the People Act, 1951 there was no infirmity in thenomination of the candidate to the Rajya Sabha.

31. The decision of the Calcutta High Court as well as of thisCourt were referred to and relied upon in Smt. Kamla Devi v. State ofU.P. & Ors.[5] In this case a somewhat similar situation as in the presentproceedings before us had arisen. A No Confidence Motion was signedand carried against the Block Pramukh. Challenging this, the submissionof the Block Pramukh was that 11 elected members of the KshettraPanchayat had not subscribed to the oath of office after being elected.Therefore, they were ineligible to participate in the meeting convenedfor the No Confidence Motion and to cast their vote. It was contentedthat these 11 elected members could not be treated as members of theKshettra Panchayat and if their votes are disregarded, the No ConfidenceMotion would fail. The Allahabad High Court rejected the contentionfollowing the decisions mentioned above.

32. Learned counsel for the petitioner sought to make a distinctionbetween the performance of ‘legislative functions’ and ‘non-legislativefunctions’ of an elected member of the Kshettra Panchayat. It wassubmitted that the Kshettra Panchayat does not have any legislativefunctions and its duties and responsibilities are circumscribed by ChapterIX of the Constitution. The submission of learned counsel may not bestrictly correct since the Panchayat can be empowered by the StateLegislature to levy, collect and appropriate taxes, duties, tolls and fees.However, without going into this issue, the broad intent of the decision ofthe Calcutta High Court, the Allahabad High Court as well as this Courtis that if an elected member does not take the oath of office, he or shecannot participate in the proceedings of the Kshettra Panchayat, unlessthere is something to the contrary in a statute, which is not the casehere. Consequently, there is no prohibition against an elected memberfrom being a signatory to a No Confidence Motion. It is quite possiblethat in the absence of the signatory to the No Confidence Motion – anelected member – the No Confidence Motion might get defeated in the 5 2014 (8) ADJ 525

A

B

C

D

E

F

G

H

APanchayat due to his or her inability to vote, but that is not relevant forour purposes.

Sanctity of oath of office

33. The case law that has emerged over the years suggests thatsubscribing to the oath of office is not being taken very seriously. ItBmust be appreciated that taking the oath of office is not a mere ritual butthere is a degree of seriousness and sanctity attached to it. Differentlaws provide different consequences (some quite mild) for not takingthe oath of office. We have already referred to the Adhiniyam and theRules. We are of opinion that since subscribing to the oath of office is aCsolemn occasion, failure to do so ought to result in serious consequences,such as the seat being declared vacant after a specified time. In fact,Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section40 as follows:

“40. Oath or affirmation to be made by members - (1)DNotwithstanding anything contained in the Oaths Act, 1969(Central Act X of 1969), every person who is elected to be amember or who becomes a member shall, before taking his seat,make, at a meeting of the Panchayat an oath or affirmation in thefollowing form, namely:- E “I, A.B, having been elected a member/having become amember of this Village Panchayat/Panchayat Union Council/District Panchayat do swear in the name of God/solemnlyaffirm that I will bear true faith and allegiance to the Constitutionof India as by law established, that I will uphold the sovereigntyand integrity of India and that I will faithfully discharge theFduty upon which I am about to enter”.

E

(2) Any person who, having been elected to be a member or who,having become a member, fails to make within three months ofthe date on which his term of office commences or at one of thefirst three meetings held after the said date, whichever is later,Gthe oath or affirmation laid down in sub-section (1), shall cease tohold his office and his seat shall be deemed to have become vacant.

(3) Any person who has been elected to be a member or who hasbecome a member shall not take his seat at meeting of thePanchayat or do any act as such member unless he has made theHoath or affirmation as laid down in sub-section (1).

(4) Notwithstanding anything contained in sub-section (3), thePresident or the Chairman of a Panchayat or the member of aCommittee constituted under this Act, who has not made the oathor affirmation as a member, shall be entitled to act as suchPresident, Chairman or member provided he makes the oath oraffirmation and takes his seat at the first meeting of the Panchayatwhich he attends within two months after he is elected or appointedas, or becomes entitled to exercise the functions of the President,Chairman or member, as the case may be.”

34. We are of the view that elected representatives be visitedwith serious consequences for not taking the oath of office within aspecified time, mainly because even the Constitution attaches a greatdegree of solemnity to the oath of office. For example, Article 60 of theConstitution provides that before entering upon his office, the Presidentshall make and subscribe the oath or affirmation. Similarly, Article 69 ofthe Constitution requires the Vice President to make and subscribe theoath or affirmation before entering upon his office.

35. Article 84 of the Constitution requires that a person shall notbe qualified to be chosen to fill a seat in Parliament unless he makes andsubscribes the oath or affirmation according to the forms set out for thepurpose in the Third Schedule. We have already referred to the oath oraffirmation by a member of the Legislative Assembly or the LegislativeCouncil as required by Article 188 of the Constitution. If the Constitutionhas attached importance to the oath of office, why cannot legislationsprovide something similar to what Tamil Nadu has?

36. Additionally, it should be appreciated that apart from requiringelected representatives of a Panchayat attaching seriousness to takingthe oath of office, an unimpeachable record of the elected representativestaking the oath of office should be maintained by the concerned officialsof the State Government. Unless the sanctity of the oath of office isappreciated and appropriate documentation kept, we will continue to befaced with situations such as the present where a dispute is raisedwhether an elected member of a body has taken the oath of office.Such controversies are completely avoidable.

Conclusion

37. In view of the factual conclusions that we have arrived at aswell as the law on the subject, we have no hesitation in holding that the A

B

C

D

E

F

G

H

A13 signatories to No Confidence Motion against the petitioner wereelected members of the Kshettra Panchayat and were entitled to signthe No Confidence Motion and that there was no infirmity in this regard.

38. The petition is accordingly dismissed and interim ordersvacated. There will be no order as to costs.

B

DEEPAK GUPTA, J. 1.I have perused the erudite judgment ofmy esteemed brother. Though I agree with the conclusion that the petitionshould be dismissed and interim order be vacated, I am unable to pursuemyself to agree with my learned brother on the issue “whether an electedmember of a Kshettra Panchayat, who has not subscribed to the oath ofCoffice, can sign or move a no-confidence motion against Pramukh of theKshettra Panchayat”.

2. The facts as well as the relevant rules and provisions of lawhave been set out in detail in the judgment of my learned brother, whichI need not refer to in detail. Rule 2(2) of the U.P. Kshettra PanchayatsDand Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.)Rules, 1994 (hereinafter referred to as ‘the Rules’) defines ‘Members’.In case of Kshettra Panchayat, ‘Members’ means those persons electedunder clause (b) of sub-section (1) of Section 6 of the U.P. KshettraPanchayats and Zila Panchayats Adhiniyam,1961 (for short “theAdhiniyam”). The Adhiniyam provides that a Kshettra Panchayat shallEconsist of a Pramukh, who shall be its Chairperson and elected members,who shall be chosen by direct election from territorial constituencies inthe Panchayat areas. It is out of these elected members that a Pramukhis elected in terms of Section 6(1)(b) of the Adhiniyam. According toRule 3(3) of the Rules, which has been set out in the judgment of myFlearned brother, a member of the Kshettra Panchayat, before taking hisseat for the first time as such member, shall make or subscribe oath oraffirmation before the Pramukh and in his absence before the KhandVikas Adhikari in the form set out in the appendix to the Adhiniyam.Rule 3(3), therefore, envisages that before taking seat for the first timethe member must make or subscribe oath or affirmation (emphasisGsupplied). The words ‘first sitting’ have to be given some significanceand the significance is that these elected members can vote withouttaking oath only while electing the Pramukh from amongst themselvesbecause thereafter, the Pramukh administers oath to them and then, thesitting of the House takes place.

H

3. The language of Rule 3 indicates that a member must subscribeto the oath before he can take part in the sitting of the Panchayat. Nodoubt, an elected member continues to be member because nodisqualification has been provided for not taking oath, but the seminalissue is whether such member can take part in the proceedings of thePanchayat. Reference in this regard has been made to the judgment ofthis Court in the case of Pashupati Nath Sukul v. Nem Chandra Jain& Ors.[1], judgment of the Calcutta High Court in the case of BhupendraNath Basu v. Ranjit Singh[2] and the judgment of the Allahabad HighCourt in the case of Kamla Devi v. State of U.P & Ors.[3]

4. Before dealing with these judgments, I feel that it would beapposite to deal with two judgments referred to by the Calcutta HighCourt in Bhupendra Nath Basu’s case (supra). The first judgment isthe case of the Mayor of Penryn[4]. In this case, the Mayor of Penrynwas elected to the office but had not subscribed to the oath and withoutbeing sworn in, he had exercised the power of the office of Mayor. Ona writ of quo warranto being entertained, it was found that though theMayor had been duly elected, since he had acted as a Mayor withouthaving subscribed to the oath, he had usurped the power of Mayor anda judgment ousting him from office was passed. It had been urged thatat best a writ of mandamus be issued directing him to take oath, but thisprayer was rejected on the ground that once the Mayor had usurped theoffice, judgment had to be pronounced against him.

5. Judgment in Rex v. Swyer[5] is not very relevant. In this case itwas held that the period of the office of the Mayor would commenceonly from the date he took oath.

6. The Calcutta High Court in Bhupendra Nath Basu’s case(supra) was dealing with a case where election was held for the non-official additional members to the Governor General’s Council from theconstituency of the non-official members of the Bengal LegislativeCouncil. There were four candidates in the election and the petitionerBhupendra Nath Basu got 17 votes and was at 3[rd] place. The successful 1 (1984) 2 SCC 404 2 AIR 1914 Cal.152

3 2014 (8) ADJ 525

4 93 ER 714 [ Kings Bench]

5 109 E.R. 531 (Kings Bench)

AB

C

D

E

F

G

H

Acandidates, viz. Moharaja Ranajit Singh Bahadur and Surendra NathBanerjee had secured 18 and 22 votes respectively. Petitioner BhupendraNath Basu first filed an appeal before the Governor General in Council,which was rejected and thereafter, he filed a suit before the High Courtquestioning the validity of the election mainly on the ground that two ofthe members of the Bengal Legislative Council who had cast their votes,Bhad not taken oath of allegiance and, therefore, their votes should beexcluded. The Calcutta High Court, on the basis of the regulations relatingto elections in question, held that the voters had a right of exercisingtheir vote even by means of registered letters and, therefore, even ifthey were elected and not subscribed to the oath of office, they couldCtake part in the elections to the non-official members of the GovernorGeneral in Council. The High Court observed as follows:

“It is only for the purpose of exercising the legislative functionsgoverned by the regulations and by the Act that the oath ofallegiance is required.”

D

7. In the case of Pashupati Nath Sukul (supra), election to theU.P. State Legislative Assembly took place and the Election Commissionof India, on 9[th] June, 1980 notified the names of the elected members. Anotification was issued that they would take oath as required under Article188 of the Constitution at the session of the Assembly which had beenEsummoned on 27[th] June, 1980. In the meantime, the Election Commissionissued a notification on 17[th] June, 1980 calling upon the elected membersto elect a person for filling up vacancy in the Rajya Sabha. Nominationswere to take place on 24[th] June, 1980; polling, if necessary, on 4[th] July,1980. One of the objections taken against the nomination of PashupatiNath Sukul was that his name had been proposed by a person, who hadFnot taken oath as member of the Legislative Assembly. Various othergrounds were taken with which we are not concerned but, this Court,after discussing the entire law held as follows:

“20. We are of the view that an elected member who has nottaken oath but whose name appears in the notification publishedGunder Section 73 of the Act can take part in all non-legislativeactivities of an elected member. The right of voting at an electionto the Rajya Sabha can also be exercised by him.....”

8. However, it would be pertinent to refer to certain otherobservations of the apex Court in the same case:

H

“18 ………..Now the question is whether the making of oath oraffirmation is a condition precedent for being eligible to act as aproposer of a valid nomination for election to the Rajya Sabha.The rule contained in Article 193 of the Constitution, as statedearlier, is that a member elected to a Legislative Assembly cannotsit and vote in the House before making oath or affirmation. Thewords ‘sitting and voting’ in Article 193 of the Constitution implythe summoning of the House under Article 174 of the Constitutionby the Governor to meet at such time and place as he thinks fitand the holding of the meeting of the House pursuant to the saidsummons or an adjourned meeting. An elected member incursthe penalty for contravening Article 193 of the Constitution onlywhen he sits and votes at such a meeting of the House. Invariablythere is an interval of time between the constitution of a Houseafter a general election as provided by Section 73 of the Act andthe summoning of the first meeting of the House. During thatinterval an elected member of the Assembly whose name appearsin the notification issued under Section 73 of the Act is entitled toall the privileges, salaries and allowances of a member of theLegislative Assembly, one of them being the right to function asan elector at an election held for filling a seat in the Rajya Sabha.That is the effect of Section 73 of the Act which says that on thepublication of the notification under it the House shall be deemedto have been constituted. The election in question does not forma part of the legislative proceedings of the House carried on at itsmeeting. Nor the vote cast at such an election is a vote given inthe House on any issue arising before the House. The Speakerhas no control over the election. The election is held by theReturning Officer appointed for the purpose.”

9. When we read both the observations together, it is obvious thata member who is elected to a House, does not cease to be a memberonly because he had not subscribed to the oath unless there is a specificprovision in this regard. However, both from the judgments of this Courtand the Calcutta High Court, it is apparent that such an elected memberwho has not taken oath, can only take part in those proceedings whichare not proceedings of the House. The Calcutta High Court was dealingwith the election of non-official members of the Governor General inCouncil. The voters were the members of the Bengal Legislative Council ABC

DEF

G

H

Aand, therefore, the election to the House of the Governor General inCouncil had no connection with the business of the Bengal LegislativeCouncil. As far as the judgment of this Court is concerned, the membersof the Legislative Assembly, who had not taken oath, were taking part inelections to the Rajya Sabha, which was definitely not part of the businessof the Legislative Assembly.B

10. As far as the present case is concerned, as pointed out earlier,Rule 3(3) prescribes that before taking their seat for the first time, themembers must subscribe oath or affirmation. What is the consequenceof a member not taking oath? He does not cease to be a member but, atthe same time, he cannot take part in the business of the House. In myCview, a motion of no confidence is part of the proceedings of thePanchayat, as such a motion is governed by the provisions of theAdhiniyam and, therefore, this is part of the business of the Panchayat.An elected member who has not taken oath, cannot move and be asignatory to such a no confidence motion. Such motion has to be movedDin terms of Section 15 of the Adhiniyam. In my view, those memberswho have not taken oath and are, therefore, not entitled to vote at suchno confidence motion, cannot be held to be entitled or eligible to signsuch motion. Otherwise, it would lead to a very odd situation wheresuch members can sign a motion but cannot vote when the said motionis put to vote. This could not have been the intention of the Legislature.ESection 15 (12) and (13) of the Adhiniyam provide that a no-confidencemotion cannot be moved within one year of the election having takenplace or within a year of the rejection of the motion. Thus, the Legislatureintended that a no-confidence motion should not be moved at drop of ahat. Therefore, according to me, members who have not taken oathFand, therefore, do not have a right to vote for the no-confidence motioncannot be permitted to sign such a motion.

11. As far as the judgment of the Allahabad High Court in KamlaDevi (supra) is concerned, that only purports to follow the judgment ofthis Court. Considering the fact that my view is different, neither theGCalcutta High Court judgment nor the judgment of this Court is applicableto the facts of the instant case. The judgment of the Allahabad HighCourt, according to me, does not lay down the correct position of law.

12. I, therefore, respectfully differ with my respected learnedbrother on the question as to whether the signing of a no- confidenceHmotion is part of the business of the House. However, I am in agreement with my learned brother that the petition ought to be dismissed. Thereare disputed question of facts as to whether certain members had takenoath or not, which questions cannot be decided at this stage and thepetitioner has failed to discharge the heavy burden on him to prove thatthese members have not taken oath. I also agree with my learned brotherthat sanctity must be attached to the oath. Various articles of theConstitution of India and various other laws provide that persons holdingpublic office must subscribe to an oath of allegiance. This oath cannotbe rendered meaningless and the Legislature would be well advised toprovide consequences for not subscribing to such an oath of office. Toavoid such controversy in future, it would also be advisable if the swearingin/oath taking is videographed so that no such dispute arises in future.

Kalpana K. Tripathy

Petition dismissed.

A

B

C

D

E

F

G

H