SHIPRA BANIK Vs. EXECUTIVE OFFICER AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the order passed by a learned Single Judge on 14th June, 2017 in WP No. 014 of 2017 refusing to quash the impugned order/ decision dated 2nd January 2017 of the Executive officer, Panchayat Samiti, Little Andaman by which the said officer adjourned the meeting on the ground of absence of quorum.

(2.) The Panchayat Samiti, Little Andaman consists of six members including a Member of Parliament. At the scheduled meeting only three members were present. The said officer conducting the meeting held that quorum requirement of 2/3rd of the members under Rule 9 (3) of the Andaman and Nicobar Island (Panchayat Administration Rules, 1997) i.e. four members has not been fulfilled. The meeting was 'dissolved'.

(3.) Mrs. Nag, learned counsel appearing on behalf of the appellant/petitioner submits that under Regulation 107 (3) (b) of the Andaman and Nicobar Island (Panchayats) Regulations 1994 (hereinafter referred to as the said regulations) although Pradhans of the Gram Panchayat who are appointed by rotation and a Member of the Parliament is part of composition of Panchayat Samiti and both of them may have a right to vote in the meeting of the Panchayat, however, under Regulation 112 the Pradhan has to be elected from amongst the elected members of the Panchayat Samiti which does not include the Member of Parliament. Mrs. Nag has referred to Regulation 115 which deals with oath of office. It is submitted that under the said Regulation after the first meeting of Panchayat Samiti every member is required to take oath of office before the Deputy Commissioner in the form prescribed in the First Schedule and no member of Panchayat Samiti who has not taken such oath shall vote or take part in the proceedings of any meeting of the Panchayat Samiti. The learned Counsel also refers to Regulation 117 which lays down that the Motion of No Confidence may be moved by any member of the Panchayat Samiti against the Pramukh. The motion to succeed is to be carried by a majority of not less than 2/3rd of total number of members of the Panchayat Samiti. It is submitted that since Pramukh is elected by the Samiti without the presence of a non elected member being the Member of the Parliament, the removal should also follow the same rule. Mrs. Nag submits that since Regulation 112 is quite clear in laying down that the election of the Pramukh and Up-Pramukh only 'by and from' amongst elected members of the Panchayat Samiti and any of such member would be disqualified to take part in the proceeding of any meeting of the Panchayat Samiti if he fails to take oath after the first meeting of the Panchayat Samiti it is only natural that members totally unconnected with election and the selection of the Pramukh cannot have any say in a No Confidence Motion for removal of the said office-bearer. It is submitted that while the nominated members may have right to vote in relation to all other matters concerning the Panchayat Samiti but in respect of No Confidence Motion it is only the members who are elected members of the Panchayat Samiti would constitute quorum under Regulation 107 (2) of the said Regulations. The expression in any proceedings under Regulation 115 (1) and the words any member of Panchayat Samiti in Regulation 117 (1) according to the learned counsel would mean only elected members of a Panchayat Samiti in relation to a No Confidence Motion. Mrs. Nag, learned counsel refers to Article 243 R of the Constitution of India and submits that the present Regulations are to be read in consonance with Article 243 R of the Constitution which debars a nominated member from exercising right to vote in the meetings of the municipality. Mrs. Nag has referred to a decision of the Hon'ble Supreme Court in the case of Ramesh Mehta vs. Sanwal Chand Singhvi and others, 2004 5 SCC 409 and a Division Bench judgement of the Karnataka High Court in the case of State of Karnataka and another vs. Lakshmappa Kallappa Balaganjr and another, 2001 3 KarLJ 498 to argue that only elected members of the Panchayat who have right to elect the Pramukh are entitled to move the No Confidence Motion and exercise their right to vote in such motion. It is only those members who would constitute quorum. Mrs. Nag contends that in Ramesh Mehta the Hon'ble Supreme Court has categorically stated that only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality.