No Confidence Motion – Right of MP to Vote as Ex Offico member – Whether the Member of the House of Parliament (for short “MP”) representing the Union Territory of Andaman and Nicobar Islands, who is also an ex­officio member of the Panchayat Samiti, for reckoning the quorum of a special meeting regarding motion of no confidence against the Pramukh of the Little Andaman Panchayat Samiti (for short the “said Samiti”) and also whether he/she can exercise his/her vote on the ‘No Confidence Motion’ within the meaning of the provisions of Andaman and Nicobar Islands (Panchayats) Regulation, 1994 (for short “Regulation”) and the Andaman and Nicobar Islands (Panchayats Administration Rules) 1997 (for short “the Rules”).? – Apex court held yes- A ‘No Confidence Motion’ dated 19th December, 2007 was moved by respondent No.6 against the appellant (Pramukh of the said Samiti). The said Samiti consisted of six members i.e. five directly elected members from territorial constituencies in the Panchayat area and one MP representing the Union Territory. A meeting for discussion of the ‘No Confidence Motion’ was scheduled on 2nd January, 2017 at 3.00 PM in the Conference Hall of the Panchayat Samiti. That notice was duly served to all the members. But only 3 elected members remained present at the scheduled time (3.00 PM) and place of the meeting. As the quorum was not complete, the members waited upto one hour i.e. upto 4.00 PM. Eventually, the meeting came to be dissolved by the Executive Officer for want of quorum of four members, in view of Section 107 of the 3 Regulation. – we conclude that the Division Bench committed manifest error in setting aside the decision of the Executive Officer dated 2nd January, 2017 declaring that the meeting stood dissolved for want of quorum. Instead, we uphold the said decision of the Executive Officer having held that the quorum of the special meeting ought to be of not less 40 than two­thirds of the “total number of membership of the Panchayat Samiti” which includes all the members of the Panchayat Samiti ­ be it directly elected or ex­officio members, as the case may be. So understood, the quorum of the special meeting has been justly recorded as four members. However, as only three members had remained present at the scheduled time and place, the Executive Officer had no option except to dissolve the meeting convened on 2nd January, 2017. For the same reason, the motion of no confidence against the appellant, in law, could not have proceeded further. 34. Resultantly, the follow up action taken against the appellant, asking him to step down, therefore, also would be non est in law. This Court, vide order dated 15th January, 2018, had made it clear that the consequential election to fill in the vacancy arisen due to removal of the appellant, would be subject to the outcome of this petition. Accordingly, we hold that all steps taken after the order of the Executive Officer dated 2nd January, 2017 be treated as non est in terms of this order.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2019
(Arising out of SLP(Civil) No.36952 of 2017)
Seema Sarkar …..Appellant(s)
:Versus:
Executive Officer and Ors. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.

  1. Leave granted.
  2. The conundrum in this appeal is about the inclusion or
    exclusion of the Member of the House of Parliament (for short
    “MP”) representing the Union Territory of Andaman and
    Nicobar Islands, who is also an ex­officio member of the
    Panchayat Samiti, for reckoning the quorum of a special
    meeting regarding motion of no confidence against the
    Pramukh of the Little Andaman Panchayat Samiti (for short
    the “said Samiti”) and also whether he/she can exercise
    2
    his/her vote on the ‘No Confidence Motion’ within the meaning
    of the provisions of Andaman and Nicobar Islands
    (Panchayats) Regulation, 1994 (for short “Regulation”) and the
    Andaman and Nicobar Islands (Panchayats Administration
    Rules) 1997 (for short “the Rules”).
  3. A ‘No Confidence Motion’ dated 19th December, 2007 was
    moved by respondent No.6 against the appellant (Pramukh of
    the said Samiti). The said Samiti consisted of six members i.e.
    five directly elected members from territorial constituencies in
    the Panchayat area and one MP representing the Union
    Territory. A meeting for discussion of the ‘No Confidence
    Motion’ was scheduled on 2nd January, 2017 at 3.00 PM in
    the Conference Hall of the Panchayat Samiti. That notice was
    duly served to all the members. But only 3 elected members
    remained present at the scheduled time (3.00 PM) and place of
    the meeting. As the quorum was not complete, the members
    waited upto one hour i.e. upto 4.00 PM. Eventually, the
    meeting came to be dissolved by the Executive Officer for want
    of quorum of four members, in view of Section 107 of the
    3
    Regulation. The Executive Officer issued communication in
    that behalf on 2nd July, 2017 which reads thus:
    “No.3­131/PS/HB/2016­17/535
    OFFICE OF THE PANCHAYAT SAMITY
    HUT BAY, LITTLE ANDAMAN

Hut Bay dated the 2nd Jan. 2017
To,
The Deputy Commissioner,
South Andaman, Port Blair.
Sub: Report on No Confidence Motion against Smt. Sima Sarkar,
Pramukh, Panchayat Samiti, Little Andaman­Reg.
Sir,
The re­scheduled special meeting on No Confidence
Motion was held on 02/01/2017 at 3:00 pm in the
Conference hall of Panchayat Samiti. The notice was served
to 5 elected members and a Member of Parliament,
Andaman and Nicobar Administration. After serving notice
to Member of Parliament as per Panchayat Regulation 1994
under chapter X at serial no.107 the members of the
Panchayat Samiti, Hut Bay become six and 2/3rd majority is

  1. The meeting was fixed at 3:00 pm and waited upto 1
    hour i.e., upto 4:00 pm but only 3 members were attended
    but to fulfill Quorum 4 member is must hence for want of
    Quorum meeting dissolved.
    The extract of proceeding of the meeting is enclosed
    herewith for your kind reference.
    Encl: A/A
    Yours Faithfully
    Executive Officer
    Panchayat Samiti
    Little Andaman”
    4
  2. The respondent No.6 assailed the said decision by way of
    Writ Petition No.14 of 2017 before the High Court at Calcutta,
    Civil Appellate Jurisdiction, Circuit Bench at Port Blair.
    Respondent No.6 asserted that the MP had no right to
    participate in the special meeting regarding a ‘No Confidence
    Motion’ nor was he entitled to vote thereat. Respondent No.6
    prayed for the following reliefs in the said writ petition:
    “In the fact and circumstance mentioned herein above, your
    petitioner respectfully prays that YOUR LORDSHIP may be
    graciously pleased to issue:­
    A. A writ in the nature of certiorari quashing the
    proceedings dated 02.01.2017 wherein the Executive
    Officer, Panchayat Samiti, Little Andaman dated held
    that quorum required is four members and as such no
    confidence motion not be proceeded.
    B. A writ in the Mandamus directing the respondent no.1
    to call for a meeting of moving the no confidence
    against the private respondent no.1 and further direct
    the Up­Pramukh i.e. the respondent no.4 to preside
    over the meeting to complete the process without
    casting to vote in the said meeting.
    C. A writ in the nature of the Certiorari directing the
    respondent authorities to transmit the case records
    before this Hon’ble Court so that after pursuing the
    same conscionable justice may be rendered your
    petitioner and directing the respondent no.1 to
    consider the case of the letter of the petitioner dated
    19.12.2016 and 02.01.2017.
    D. Rule NISI in terms of prayer A&B above.
    E. Cost of the incidents to this writ application.
    F. Any other order/orders of further order/orders as your
    Lordship may deem fit and proper.”
    5
  3. The writ petition was heard by the learned Single Judge
    of the High Court who negatived the stand of respondent No.6
    and thus dismissed the writ petition. The learned Single Judge
    held that the quorum for a special meeting to consider the
    motion of no confidence against the Pramukh, being twothirds of the “total membership”, minimum four members of
    the Panchayat Samiti ought to have remained present.
    Presence of only three members at the meeting, therefore, did
    not constitute quorum. Further, the MP being the member of
    the said Samiti was entitled to participate in the special
    meeting to consider a no confidence motion and also vote on
    that motion. As a result, the writ petition came to be rejected.
  4. Respondent No.6 carried the matter before the Division
    Bench by way of writ appeal, being M.A. No.26 of 2017. The
    Division Bench reversed both the conclusions reached by the
    learned Single Judge and instead, opined that the MP
    representing the Union Territory was not eligible to participate
    in the special meeting and vote on a ‘No Confidence Motion’
    for removal of the Pramukh or Up­Pramukh of the Panchayat
    6
    Samiti. For arriving at that conclusion, the Division Bench
    adverted to Sections 107(3), 112(1), 115 and 117 of the
    Regulation and Rules 9(3) and 21 of the Rules. Additionally,
    the Division Bench placed reliance on the decisions in
    Ramesh Mehta Vs. Sanwal Chand Singhvi and Ors.1
    and
    State of Karnataka and Ors. Vs. Lakshmappa Kallappa
    Balaganur and Ors.2
    The Division Bench also adverted to
    Articles 243(d), 243B and 243C, especially clauses (3), (4) and
    (5) of Article 243C of the Constitution of India and opined as
    follows:
    “….Panchayats have been included in the Constitution of
    the India by the Constitution (73rd amendment) Act, 1992.
    The purpose of amendment appears to be that it was felt
    that in every State there should be a panchayats at the
    village, intermediate and district levels as a part of self
    governance. Article 243 (d) of the Constitution defines
    Panchayat to mean an institution by whatever name called
    of self government constituted under Article 243 B for the
    rural areas. Article 243 C deals with composition of
    Panchayat. 243 C (3) permits the legislation of the State by
    law to provides for representation. Article 243 (C) (4)
    provides that the Chairperson of the Panchayat and other
    members of the Panchayat whether or not chosen by direct
    election from territorial constituencies in the Panchayat
    area shall have the right to vote in the meetings of the
    panchayats. The Chairperson of a Panchayat at the
    intermediate level or district level under Article 243 (C) (5)
    1
    (2004) 5 SCC 409
    2
    (2001) 3 KLJ 498
    7
    (b) shall be elected by and from amongst the elected
    members thereof. Article 243 (C) (4) is similar to Regulation
    107 (3) (b) which provides that the member of the House of
    Parliament representing the Union Territory shall also be
    represented in the Panchayat Samiti with a right to vote in
    the meetings of the Panchayat Samiti. It has to be seen from
    the Regulations whether or not the Regulations intend to
    treat the Member of Parliament at par with the elected
    members of the Panchayat to participate in the proceedings
    initiated for removal of the Pramukh of the Panchayat.
    Although the Regulations and the Rules do not
    appear to have made any distinction between “person” and
    “member” which appear to have been used at places
    interchangeably but regard must be had to the very object
    for which a member of Parliament is included in the
    Panchayat Samiti with a right to vote. The presence of the
    Member of Parliament is not required for the purpose of
    electing the Pramukh and Up­Pramukh as the Regulations
    clearly use the phrase “by and from amongst elected
    members of the Panchayat Samiti” and the Member of
    Parliament is not treated at par with the elected members
    for the purpose of election of such office bearers.
    xxx xxx xxx xxx xxx
    In view of the law laid down in the aforesaid decisions
    on interpretation on similar rules and/or regulations, we
    are of the opinion that the Member of Parliament cannot be
    treated at par with an elected member of the Panchayat
    Samity for the purpose of removal of Pramukh and Uppramukh. In the relevant Rules and Regulations in relation
    to a motion of no confidence wherever the word ‘member’ is
    used, it would only mean elected members and not
    nominated members even though such nominated member
    may have a right to vote in other proceedings. All members
    who have selected Pramukh and Up­pramukh are all elected
    members of the Samiti unlike the nominated members and
    in matters concerning motion of no confidence in our view it
    is only those members who have been directly elected shall
    have the right to remove Pramukh and Up­Pramukh as the
    said office bearers have been elected by and from amongst
    the elected members of Panchayat Samiti. There is a clear
    distinction between the two classes of members and they
    8
    cannot be treated at par in matters relating to no confidence
    motion to remove Pramukh or Up­Pramukh.”
  5. Having thus held, the Division Bench proceeded to allow
    the appeal filed by respondent No.6 and consequently granted
    relief as prayed for in the writ petition ­ of setting aside the
    decision of the Executive Officer dated 2nd January, 2017. The
    High Court also directed the Executive Officer, Panchayat
    Samiti, Little Andaman to proceed in accordance with law in
    light of the observations made in the said judgment.
  6. Feeling aggrieved, the appellant has filed this appeal by
    special leave. The appellant moved the Court for urgent
    consideration of the matter on 22nd December, 2017 before the
    Vacation Bench of this Court when notice came to be issued.
    However, during the pendency of this appeal, the Deputy
    Commissioner, acting upon the directions issued by the
    Division Bench of the High Court not only proceeded to remove
    the appellant from the post of Pramukh of the Little Andaman
    Panchayat Samiti on 26th December, 2017 but also intended to
    proceed to fill up the vacancy arising from the removal of the
    9
    appellant, by scheduling a fresh election on 19th January,
  7. The appellant, therefore, urgently moved this Court for
    appropriate orders on 15th January, 2018, when the following
    order came to be passed:
    “Learned counsel who have entered appearance on behalf of
    the respondents, pray for a week’s time to file the counter
    affidavit.
    Learned counsel appearing for the petitioner does not intend
    to file the rejoinder affidavit.
    As a pure question of law emerges, let the matter be listed on
    29th January, 2018. Any election held in the meantime,
    shall be subject to the result of this special leave
    petition.”
    (emphasis supplied)
  8. Resultantly, the meeting scheduled on 19th January,
    2018, proceeded to elect respondent No.6 as Pramukh of Little
    Andaman Panchayat Samiti. As the matter also involved
    applicability of Articles 243C and 243R of the Constitution of
    India, this Court on 31st January, 2018, requested the learned
    Attorney General for India to assist the Court. Pursuant to the
    said request, the learned Attorney General for India appeared
    in the proceedings and is now represented by Mr. Aman Lekhi,
    Additional Solicitor General of India.
    10
  9. We have heard Mr. Purushaindra Kaurav, learned senior
    counsel appearing for the appellant, Mr. Aman Lekhi, learned
    Additional Solicitor General of India, Ms. G. Indira, learned
    counsel appearing for respondent No.1 and Mr. R.
    Chandrachud, learned counsel appearing for respondent No.6.
  10. By the Constitution 73rd Amendment Act, 1992, which
    came into force from 24th April, 1993, Part­IX of the
    Constitution of India came to be amended. It envisaged a
    detailed mechanism for democratic decentralization of the selfGovernment on the principle of grass­root democracy. It may
    be useful to advert to the Statement of Objects and Reasons
    necessitating such amendment, which reads thus:
    “THE CONSTITUTION (SEVENTY­THIRD AMENDMENT)
    ACT, 1992
    Statement of Objects and Reasons appended to the
    Constitution (Seventy­second Amendment) Bill, 1991 which
    was enacted as the Constitution (Seventy­third Amendment)
    Act, 1992
    Though the Panchayati Raj institutions have been in
    existence for a long time, it has been observed that these
    institutions have not been able to acquire the status and
    dignity of viable and responsive people’s bodies due to a
    number of reasons including absence of regular elections,
    prolonged supersessions, insufficient representation of
    weaker sections like Scheduled Casts, Scheduled Tribes and
    women, inadequate devolution of powers and lack of
    financial resources.
    11
  11. Article 40 of the Constitution which enshrines one
    of the directive principles of State Policy lays down that the
    State shall take steps to organize Village Panchayats and
    endow them with such powers and authority as may be
    necessary to enable them to function as units of selfgovernment. In the light of the experience in the last forty
    years and in view of the shortcomings which have been
    observed, it is considered that there is an imperative need to
    enshrine in the Constitution certain basic and essential
    features of Panchayati Raj institutions to impart certainty,
    continuity and strength to them.”
    By virtue of this amendment, Panchayat has been defined to
    mean an institution (by whatever name called) of selfGovernment constituted under Article 243B for the rural
    areas. Article 243B reads thus:
    “243B. Constitution of Panchayats.­(1) There shall be
    constituted in every State, Panchayats at the village,
    intermediate and district levels in accordance with the
    provisions of this Part.
    (2) Notwithstanding anything in clause (1), Panchayats at the
    intermediate level may not be constituted in a State having a
    population not exceeding twenty lakhs.”
    It may be apposite to reproduce Article 243C which deals with
    composition of Panchayats. The same reads thus:
    “243C. Composition of Panchayats.­(1) Subject to the
    provisions of this Part, the Legislature of a State may, by
    law, make provisions with respect to the composition of
    Panchayats:
    Provided that the ratio between the population of the
    territorial area of a Panchayat at any level and the number of
    seats in such Panchayat to be filled by election shall, so far
    as practicable, be the same throughout the State.
    12
    (2) All the seats in a Panchayat shall be filled by
    persons chosen by direct election from territorial
    constituencies in the Panchayat area and, for this purpose,
    each Panchayat area shall be divided into territorial
    constituencies in such manner that the ratio between the
    population of each constituency and the number of seats
    allotted to it shall, so far as practicable, be the same
    throughout the Panchayat area.
    (3) The Legislature of a State may, by law, provide for
    the representation­
    (a) of the Chairpersons of the Panchayats at the
    village level, in the Panchayats at the
    intermediate level or, in the case of a State not
    having Panchayats at the intermediate level, in
    the Panchayats at the district level;
    (b) of the Chairpersons of the Panchayats at the
    intermediate level, in the Panchayats at the
    district level;
    (c) of the members of the House of the People
    and the members of the Legislative Assembly of
    the State representing constituencies which
    comprise wholly or partly a Panchayat area at a
    level other than the village level, in such
    Panchayat;
    (d) of the members of the Council of States and
    the members of the Legislative Council of the
    State, where they are registered as electors
    within­
    (i) a Panchayat area at the intermediate level, in
    Panchayat at the intermediate level;
    (ii) A Panchayat area at the district level, in
    Panchayat at the district level.
    (4) The Chairperson of a Panchayat and other
    members of a Panchayat whether or not chosen by direct
    election from territorial constituencies in the Panchayat area
    13
    shall have the right to vote in the meetings of the
    Panchayats.
    (5) The Chairperson of­
    (a) a Panchayat at the village level shall be elected in
    such manner as the Legislature of a State may, by
    law, provide; and
    (b) a Panchayat at the intermediate level or district
    level shall be elected by, and from amongst, the
    elected members thereof.”
  12. In the present case, we are concerned with an
    intermediate level Panchayat. The composition of such
    Panchayat can be culled out from Article 243C. Clause (1)
    makes it amply clear that the legislature of a State is free to
    make a law with respect to the composition of Panchayat
    subject to the provisions of Part­IX of the Constitution. In the
    present case, we are not so much concerned about the
    composition of Panchayat, except to notice that clause (2) of
    the said Article makes it clear that all the seats in the
    Panchayat shall be filled up by persons chosen by direct
    election from the territorial constituencies in the Panchayat
    area. Clause (3) of the Article is an enabling clause permitting
    the legislature of a State to make a law to provide for the
    representation of other persons who are not directly elected
    14
    from the territorial constituencies in the Panchayat area.
    Clause (4) deals with the right to vote in the meetings of the
    chairperson of a Panchayat or other members of the
    Panchayat whether or not chosen by direct election from the
    territorial constituencies in the Panchayat area. Clause (5)
    deals with the manner in which the chairperson of a
    Panchayat is elected at the village level, intermediate level or
    district level, as the case may be.
  13. The chairperson of a Panchayat at intermediate level is
    required to be elected by, and from amongst, the elected
    members thereof. On a conjoint reading of the provisions
    referred to above, it is crystal clear that there is marked
    distinction between the member of the Panchayat chosen by
    direct election from the territorial constituencies in the
    Panchayat area referred to in clause (2) vis­a­vis other persons
    referred to in sub­clauses (a) to (d) of clause (3) of Article
    243C, who may also represent as per the law made by the
    State Legislature. Thus understood, there is little doubt that
    the election of chairperson is by the former category of the
    15
    members of the Panchayat, namely, directly elected from the
    territorial constituencies in the Panchayat area and one from
    amongst them is then elected as a chairperson. Notably, there
    is no express provision in the Constitution dealing with the
    removal of a chairperson of the Panchayat Samiti.
  14. Taking cue from the absence of such a provision in the
    Constitution, it was argued by the learned ASG that it being a
    case of constitutional silence by interpretative process, the
    Court must hold that the MP, not being directly elected from
    the territorial constituencies in the Panchayat area and only a
    representative in the Panchayat Samiti by virtue of law made
    in terms of Article 243C(3), is neither entitled to participate in
    a special meeting concerning a ‘No Confidence Motion’ nor
    eligible to vote thereat. For, only the body of members directly
    elected from the territorial constituencies in the Panchayat
    area which had elected the Chairperson/Pramukh, would
    alone be competent to vote on a ‘No Confidence Motion’. The
    concomitant is that the Member of Parliament (MP), though a
    member of the Panchayat Samiti, is not competent to
    16
    participate in the special meeting and vote on a ‘No Confidence
    Motion’.
  15. This argument is not wholly accurate. In our opinion,
    that approach may become necessary only if the legislature of
    the State also had chosen to remain silent by not enacting any
    law on the subject of removal of the Pramukh or Up­Pramukh
    of the Panchayat Samiti. Indisputably, however, a law on the
    said subject is already in place in the form of the Regulation
    as also the Rules concerning Panchayat administration. The
    Constitution itself enables the State Legislature to make a law
    on the subject of composition of Panchayats, including
    regarding election of the Pramukh, subject to the provisions
    contained in Part­IX of the Constitution. The law, as made in
    the form of the Regulation, is not the subject matter of
    challenge before us either on the ground of being in excess of
    legislative competence or transcending the sphere of matters
    referred to in Part­IX of the Constitution.
  16. Concededly, the Regulation as well as the Rules
    specifically provided for the subject of motion of no confidence,
    17
    how such motion should be moved and the manner in which it
    is required to be carried forward. Section 106 of the Regulation
    speaks about the constitution of the Panchayat Samiti. The
    composition of the Panchayat Samiti has been predicated in
    Section 107. This provision is in four parts. The first clause
    [(clause (1)] is a general provision envisaging that every
    Panchayat Samiti shall consist of such number of seats as the
    administrator may by notification determine. Clause (2)
    postulates that the seats in the Panchayat Samiti as
    determined shall be filled up by persons chosen by direct
    election from the territorial constituencies in the manner
    prescribed. Clause (3) refers to the persons who shall also be
    represented in the Panchayat Samiti other than the persons
    chosen by direct election referred to in clause (2). This clause
    (3) is again split in two parts: the first referring to the
    proportion of the representation given to the representatives of
    the Gram Panchayat in the Panchayat Samiti; and the second
    referring to the member of the House of Parliament
    representing the Union Territory. As regards the latter, it has
    18
    been explicitly provided that such member shall have the right
    to vote in the meeting of the Panchayat Samiti. The fourth
    clause is not significant for dealing with the issue on hand.
    Section 107 of the Regulation reads thus:
    “107. (1) Every Panchayat Samiti shall consist of such
    number of seats as the Administrator may by notification
    determine.
    (2) The seats in the Panchayat Samiti shall be filled by
    person chosen by direct election from the Territorial
    Constituencies in such manner that the ratio between the
    population of each constituency and the number of seats
    allotted to it shall so far as practicable be the same
    throughout the Panchayat Samiti area.
    (3) The following persons shall also be represented in the
    Panchayat Samiti, namely:­
    (a) a proportion of the Pradhans of the Gram
    Panchayat in the Panchayat Samiti to be
    determined by order of the Administrator and
    by rotation for such period as may be
    prescribed: Provided that while nominating the
    Pradhans by rotation the Administrator shall
    ensure that as far as possible all the Pradhans
    are given the opportunity or being represented
    in the Panchayat Samiti atleast once during its
    duration: and
    (b) the member of the House of Parliament
    representing the Union Territory.
    Who shall have the right to vote in the
    meeting of the Panchayat Samiti.
    (4) The provisions of sub­sections (5),(6),(7) and (8) of section
    11 shall so far as may be apply to the Panchayat Samiti as
    19
    they apply to a Gram Panchayat subject to the modification
    that for the words ‘Gram Panchayat’ wherever they occur,
    the words ‘Panchayat Samiti’ had been substituted.”
    (emphasis supplied)
  17. The other relevant provision in the Regulation is Section
    112, which deals with election of Pramukh and Up­Pramukh.
    The same reads thus:
    “112. (1) On the constitution of a Panchayat Samiti for the
    first time under this Regulation or on the expiry of the term
    of a Panchayat Samiti or on its reconstitution, a meeting
    shall be called on the date fixed by the Deputy
    Commissioner for the election of the Pramukh and the UpPramukh by and from amongst the elected members of the
    Panchayat Samiti.
    (2) The Deputy Commissioner shall preside at such meeting
    but not have the right to vote.
    (3) No business other than the election of the Pramukh and
    Up­Pramukh shall be transacted at such meeting.
    (4) In case of equality of votes, the result of the election shall
    be decided by lots drawn in the presence of the Deputy
    Commissioner in such manner as he may determine.
    (5) Subject to any general or special order of the
    Administrator, the Deputy Commissioner shall reserve.
    (a) the number of offices of Pramukhs in the Panchayat
    Samitis for the Scheduled Tribes which shall bear as
    nearly as may be, the same proportion to the total
    number of such offices in the Panchayat Simitis as the
    population of the Scheduled Tribes in the area of the
    Union Territory to which this Regulation applies bears
    to the total population of such area;
    (b) not less than one­third of the total number of offices
    of Pramukh in the Panchayat Samitis for women;
    Provided that the offices reserved under this subsection shall be allotted by the Election Commission by
    20
    rotation different Panchayat Samitis in such manner as may
    be prescribed.”
  18. Even this provision seems to be in conformity with the
    letter and spirit of Article 243C. On a plain reading of this
    provision, it is noticed that the election of the Pramukh and
    Up­Pramukh is “by” the elected members of the Panchayat
    Samiti and the one who is elected as such, is “from amongst
    them”. Even the expression used in Article 243C(5)(b) is
    “elected by, and from amongst, the elected members thereof”.
    This dispensation is in consonance with the constitutional
    scheme of democratic decentralization and self­Government on
    the principle of grass­root democracy. In that sense, the other
    members of the Panchayat Samiti (other than those chosen by
    direct election from the territorial constituencies in the
    Panchayat area) referred to in Article 243C(3) have no say in
    the matter of electing the Pramukh or Up­Pramukh of the
    Panchayat Samiti, though they may generally have the right to
    vote in the meeting of the Panchayat Samiti on other matters.
  19. Sections 107 and 112 are a facsimile of Article 243C and
    also within the framework provided therein. Although the
    21
    other member(s) who have been given representation in the
    Panchayat Samiti have no say in the election of the Pramukh
    or Up­Pramukh of the Panchayat Samiti, it does not follow
    that they are not eligible to remain present and vote in the
    special meeting regarding the motion of no confidence against
    the Pramukh or Up­Pramukh of the Panchayat Samiti. As
    aforementioned, the Constitution is completely silent on the
    subject of removal of the Pramukh or the Up­Pramukh of the
    Panchayat Samiti, including regarding the manner in which a
    ‘Motion of No Confidence’ against them could be moved and
    carried forward. That subject has been articulated in the form
    of Section 117 of the Regulation, which reads thus:
    “117 (1) A motion of no confidence may be moved by any
    member of a Panchayat Samiti against the Pramukh or the
    Upa­Pramukh after such notice thereof as may be
    prescribed.
    (2) If the motion is carried by a majority of not less than
    two thirds of the total number of members of the
    Panchayat Samiti, the Pramukh or Upa­pramukh, as the
    case may be shall cease to hold office after a period of three
    days from the date on which the motion is carried unless he
    has resigned earlier.
    (3) Notwithstanding anything contained in this Regulation,
    the Pramukh or Upa­Pramukh shall not preside over a
    meeting in which a motion of no confidence is discuss
    22
    against him but he shall have the right to speak or
    otherwise take part in the proceedings of such meeting.”
    (emphasis supplied)
  20. Thus, an unambiguous provision has been made in the
    Regulation regarding the ‘No Confidence Motion’ against the
    Pramukh or Up­Pramukh of the Panchayat Samiti. The
    validity of the said provision is not the subject matter of this
    appeal. As a result, we do not wish to dilate on the argument
    which may indirectly, if not directly, question the validity of
    the provision. Suffice is to observe that we are not dealing
    with a case where the Regulation made by the State legislature
    is also silent on the subject of motion of no confidence or
    removal of Pramukh or Up­Pramukh of the Panchayat Samiti.
    The provision is explicit as to who can move the motion and
    the manner in which the same is required to be carried
    forward to its logical end. As per this provision, the other
    members having representation on the Panchayat Samiti, who
    are not directly elected from the territorial constituencies in
    the Panchayat area have no right to vote during the election of
    the Pramukh or Up­Pramukh of the Panchayat Samiti, it does
    23
    not follow that they are not or cease to be members of the
    Panchayat Samiti. Whereas, in terms of Section 107 which
    specifies the composition of the Panchayat Samiti, they are
    plainly recognized as members of the Panchayat Samiti during
    the relevant period. Those persons may not be directly elected
    from the territorial constituencies in the Panchayat area but
    nevertheless, are people’s representatives, being elected as
    Pradhans of the concerned Gram Panchayat within the area of
    the Panchayat Samiti, or as the Member of the House of
    Parliament representing the Union Territory. It would have
    been a different matter if Section 117 had constricted the right
    to vote on a motion of no confidence only to the members
    directly elected from the territorial constituencies in the Gram
    Panchayat area, referred to in Section 107(2) of the Regulation.
    To put it differently, merely because the law permits only the
    directly elected members to vote during the election of
    Pramukh, that ipso facto would not follow that the other
    members (other than the elected members) of the Panchayat
    Samiti are ineligible to vote on a ‘No Confidence Motion’.
    24
  21. Besides the explicit provisions in the Regulation, even the
    statutory Rules make it unstintingly intelligible that the other
    (ex­officio) member(s) of the Panchayat Samiti can also remain
    present and participate in the special meeting to consider a
    motion of no confidence against the Pramukh. The stated
    Rules are framed in exercise of the power to make rules in
    terms of Section 202. Clause (ak) of Section 202 (2) enables
    the Administrator to frame rules in respect of the notice for
    moving a motion of no confidence against the Pramukh or UpPramukh as per Section 117(1) of the Regulation. Further,
    clause (al) permits framing of rules regarding the time and
    place of meetings of the Panchayat Samitis and the procedure
    for such meetings under sub­section (1) of Section 121; and
    clause (am) deals with the manner in which a member of
    Panchayat Samiti may move resolution(s) and put question(s)
    to the Pramukh and Up­Pramukh under sub­section (2) of
    Section 121. The statutory rules framed under Section 202
    expressly provide for the quorum of the meetings of the
    25
    Panchayat Samiti. Rule 9 as applicable to Panchayat Samiti
    reads thus:
    “9. Quorum.­ The following shall be the quorum required
    for meetings of Gram Sabha, Gram Panchayat, Panchayat
    Samiti, Zilla Parishad for the kinds of meetings in each
    Panchayat:
    xxx xxx xxx xxx xxx
    (3) Panchayat Samiti.­ (a) Two­thirds of the total
    membership of a Panchayat Samiti shall be sufficient
    quorum for an ordinary meeting of a Panchayat Samiti­,
    (b) Not less than two­thirds of the total membership is
    necessary for a special meeting called for the purpose
    under sub­section (1) of section 117 of the Regulation to
    move a motion of no confidence against the Pramukh and
    Up­Pramukh. However, to carry the motion under subsection (2) of section 117, a majority of not less than twothirds of the membership of the Panchayat Samiti present
    and voting is necessary.
    xxx xxx xxx xxx xxx”
    (emphasis supplied)
    It will be useful to advert to Rule 10, which reads thus:
    “10. Adjournment of meeting for want of quorum. ­(1) If,
    within one hour from the time appointed for holding a
    meeting of a Panchayat quorum is not present, the meeting
    may be adjourned and may be held on another date to be
    fixed by the Chairperson or the Vice­Chairperson of the
    Presiding member as the case may be. The members shall
    be informed of the date, place and time of the adjourned
    meeting by a fresh three day’s notice in Form­2. No quorum
    shall be necessary for such adjourned meeting. No business
    other than that included in the list of business for
    transaction at the original meeting shall be brought before
    an adjourned meeting.
    26
    (2). In determining the quorum, fraction of one half and
    above be counted one, and less than half shall be ignored.”
  22. Rule 21 specifically deals with the motion of no
    confidence against the Pramukh or Up­Pramukh. The same
    reads thus:
    “21. Pramukh and Up­Pramukh: (1) A motion of no
    confidence against the Pramukh or the Up­Pramukh may be
    moved by any member of a Panchayat Samiti, after giving 7
    days notice. The notice shall be in Form 4. The notice shall
    be addressed to the Pramukh and shall be delivered to him
    and in his absence to the Up­Pramukh or in the absence of
    both, to the Executive Officer. The Pramukh or in his
    absence the Up­Pramukh or in the absence of both, the
    Executive Officer shall call a special meeting of the
    Panchayat Samiti within 15 days from the date of moving
    the notice of no confidence by serving notice to the
    Pramukh, Up­Pramukh and all the members of the
    Panchayat Samiti, in Form 1­A enclosing therewith a copy
    of the no confidence motion moved by the member.
    (2) The Pramukh or the Up­Pramukh shall not preside over
    the meeting but shall have a right to speak or otherwise
    take part in the proceedings of the meeting. The meeting
    shall be presided over by the Pramukh if the motion is
    against the Up­Pramukh and if the motion is against the
    Pramukh the meeting will be presided over by the UpPramukh. In the absence of both the Pramukh and UpPramukh, the members assembled shall elect one from
    among themselves to preside over the meeting. A quorum of
    not less than two­thirds of the total membership of the
    Panchayat Samiti is necessary for the meeting. Within
    one hour from the appointed time, if there is no quorum,
    the no confidence motion shall deemed to have not been
    carried and the meeting shall be dissolved. The Executive
    Officer shall send the report of the dissolution of the
    meeting for want of quorum to the concerned Assistant
    Commissioner, the Deputy Commissioner (Director of
    27
    Panchayat Elections), the Chief Executive Officer of the Zilla
    Parishad and also the Secretary (Panchayat) of the
    Administration.
    (3) If the motion is carried by a majority of not less than
    two­thirds of the total membership of the Panchayat
    Samiti present and voting, the Pramukh or the UpPramukh or both, as the case may be, shall cease to hold
    office after a period of three days from the date on which the
    motion is carried unless the Pramukh or the Up­Pramukh
    or both, as the case may be, have resigned earlier.”
    (emphasis supplied)
  23. To put it differently, the provisions in the Regulation and
    the Rules distinctly deal with the manner in which a motion of
    ‘No Confidence’ should be moved and carried forward to its
    logical end. In that sense, the central issue is about the
    purport of the mechanism provided in the Regulation and the
    Rules on the subject of ‘No Confidence Motion’. From the
    legislative scheme it is noticed that as and when the special
    meeting to consider the ‘No Confidence Motion’ proceeds,
    Section 117(2) mandates that the motion may be treated as
    carried out only if a majority of not less than two­thirds of the
    “total number” of members of the Panchayat Samiti vote in
    favour of removal of the Pramukh or Up­Pramukh, as the case
    may be. A similar position is restated in Rule 21 of the Rules.
    28
  24. Indeed, the provisions in the Regulation do not provide
    for the quorum of the special meeting. That is, however,
    prescribed in the form of Rule 9. Rule 9(3)(b) stipulates that
    two­thirds of the “total membership” of a Panchayat Samiti
    shall be a sufficient quorum for a special meeting of the
    Panchayat Samiti in reference to Section 117(1) of the
    Regulation to move a motion of no confidence against the
    Pramukh or Up­Pramukh. Thus, the quorum specified is not
    less than two­thirds of the “total membership”. The emphasis
    is on the expression “total membership”, which includes the
    other (ex­officio) member(s) referred to in Section 107(3) of the
    Regulation having representation on the Panchayat Samiti
    and not limited to members chosen by direct election from
    territorial constituencies in the Panchayat area as referred to
    in Section 107(2) of the Regulation. Thus understood, all
    members of the Panchayat Samiti are expected to remain
    present and participate in the special meeting and the quorum
    of the meeting is to be determined on the basis of “total
    number” of members in the Panchayat Samiti.
    29
  25. The question as to whether the other member(s) (other
    than directly elected) who can participate in the special
    meeting, have the right to vote on the ‘No Confidence Motion’.
    That would depend on the legislative scheme and intent
    manifest from the express provisions permitting them to do so.
    The usefulness of their presence at such a special meeting, to
    consider the motion of no confidence, cannot and need not be
    speculated. The governing provisions predicate that the special
    meeting must be attended by not less than two­thirds of the
    “total membership” of the Panchayat Samiti and the ‘No
    Confidence Motion’ must be carried out by not less than twothirds of the “total number” of members of the Panchayat
    Samiti present and voting. This is the twin requirement. If so,
    the ‘No Confidence Motion’ is required to be considered in the
    special meeting of the Panchayat Samiti as a whole and not
    limited to members directly elected from the territorial
    constituencies in the Panchayat area. Thus understood, the
    total membership of the Little Andaman Samiti being six, twothirds thereof would be four. If the members present at the
    30
    scheduled place and time of the meeting were only three,
    obviously the Executive Officer was justified in dissolving the
    meeting for want of quorum.
  26. That takes us to the question as to who can vote on the
    ‘No Confidence Motion’. Indubitably, the language of Section
    117 of the Regulation envisages that the motion is required to
    be carried by a majority of not less two­thirds of the “total
    number” of members of the Panchayat Samiti present and
    voting. A similar mandate flows from Rule 9 read with Rule 21
    of the Rules. The question is whether the law as enacted in the
    form of Section 117 of the Regulation, in any way, deviates
    from the scheme of Part­IX of the Constitution. Our answer is
    an emphatic “NO”. The fact that Article 243C(5)(b) postulates
    that the chairperson of the Panchayat Samiti at the
    intermediate level shall be elected by, and from amongst, the
    elected members thereof, it does not follow that the process of
    removal of such chairperson should be limited to voting by the
    elected members. The law on the removal of the Pramukh or
    Up­Pramukh by means of ‘No Confidence Motion’ has been
    31
    enacted by the State Legislature. That permits “all” the
    members of the Panchayat Samiti to participate in the
    discussion and vote on the motion of no confidence. On
    conjoint reading of Section 117, Rule 9(3)(b) and also Rule 21
    of the Rules, in our opinion, they, in no way, exclude any
    member of the Panchayat Samiti muchless the members
    referred to in Section 107(3) of the Regulation. Not even by
    necessary implication. Taking any other view would result in
    re­writing of the provisions to read as ­ the motion of no
    confidence must be carried out by a majority of not less than
    two­thirds of the total number of “directly elected” members of
    the Panchayat Samiti mentioned in Section 107(2), present
    and voting. We must presume that the State Legislature was
    conscious of the marked distinction between the category of
    members constituting the Panchayat Samiti. As is evident
    from Section 107(2), it refers to a category of persons chosen
    by direct election from the territorial constituencies, in
    contradistinction to the other category of persons mentioned
    in Section 107(3), the constituent of the Panchayat Samiti. If
    32
    the legislature had intended to exclude the latter category from
    the process of ‘No Confidence Motion’, it would have expressly
    limited it to only the elected members [former category
    ascribable to Section 107(2)] of the Panchayat Samiti, as is
    done at the stage of election of the chairperson. Whereas, the
    provision makes it incumbent that not less than two­thirds of
    the “total number” of members of the Panchayat Samiti must
    participate and vote. This is the legislative intent which cannot
    be whittled down by some overstretched interpretative process
    including by relying on the common law principle that only the
    body of persons, who had elected the Pramukh or UpPramukh, alone can initiate such a process.
  27. The Division Bench of the High Court relied upon the
    decision in Ramesh Mehta (supra). In that case, this Court
    was called upon to answer whether, in counting the “whole
    number of members” on the Municipal Board in terms of Rule
    3(9) of the Rajasthan Municipalities (Motion of No­confidence
    against the Chairman or Vice­Chairman) Rules, 1974,
    “nominated members” have to be taken into consideration.
    33
    For answering that question, the Court adverted to Article
    243R, which deals with the composition of municipalities. The
    dispensation prescribed with regard to Panchayats in Article
    243C is somewhat different from the one specified in Article
    243R for Municipalities. As regards the Panchayats, in terms
    of Article 243C(3), only persons referred to in sub­clauses (a)
    to (d) thereof, can represent in the Panchayat Samiti as per the
    law made by the State Legislature in that behalf. The category
    of persons referred to in the said sub­clauses are all directly
    elected at different levels ­ be it Panchayat or the House of the
    People and the members of the legislative assembly of the
    State or the Council of States and the members of the
    legislative council of the State. Whereas, in the composition of
    Municipalities, persons having special knowledge or
    experience in municipal administration can also be
    nominated, who obviously may not be elected people’s
    representatives. The latter, therefore, has been expressly
    denuded of a right to vote in the meetings of the
    Municipalities, as per the proviso to Article 243R(2). Similar
    34
    exclusion is not made in respect of the other categories of
    members of the Municipality referred to in sub­clauses (ii) to
    (iv) of Article 243R(2)(a). In short, the question considered in
    the said case was very specific as to whether the voting rights
    of the “nominated members” in a Municipal Board can be
    reckoned for computing a majority required for a motion of no
    confidence against the Chairman or Vice­Chairman of the
    Board. The Court considered the statutory provisions as
    applicable to that case i.e., Section 9 of the Rajasthan
    Municipalities Act, 1959, as amended. It then concluded that
    there was no indication therein that a right to vote is created
    in the “nominated members”. In other words, they cannot
    exercise voting rights.
  28. In the present case, neither Article 243C nor the
    Regulation made by the State Legislature or the Rules framed
    thereunder expressly exclude the other members of the
    Panchayat Samiti referred to in Section 107(3) of the
    Regulation from exercising their vote on a ‘Motion of No
    Confidence’. It is a well established position that the right to
    35
    elect, and including the right to be elected and continue on the
    elected post, is a statutory right. Further, the mode and
    manner of election to any post could be different from the
    scheme for removal of a person from that post, as restated in
    paragraph 10 of the same reported decision. It reads thus:
    “10. There is no dispute with the proposition that the
    right to elect and the right to be elected is a statutory
    right and that the mode and manner of election to any
    post could be different from the scheme of removal of a
    person from that post. xxx xxx xxx”
    (emphasis supplied)
  29. The High Court had also adverted to the decision of the
    Karnataka High Court in State of Karnataka and Ors.
    (supra). Even this decision will be of no avail. For, the High
    Court considered the specific provisions contained in the
    Karnataka Panchayat Raj Act, 1993 and construed them to
    mean that they expressly exclude the right to participate in the
    proceedings and vote on a ‘No Confidence Motion’ against the
    Adhyaksha or Up­Adhyaksha. The observations in the said
    decision, therefore, are contextual and in reference to the
    express provision in the Karnataka Panchayat Raj Act in the
    36
    form of Sections 120(2), 140(3), 159(2) and 179(3). As
    aforesaid, the provisions in the Regulation under
    consideration in no way exclude the MP, muchless expressly,
    from participating in the special meeting and vote on the ‘No
    Confidence Motion’. As a matter of fact, the provision in the
    Regulation under consideration is an inclusive one and
    explicitly permits all (total) members to participate in the
    special meeting and vote on the ‘No Confidence Motion’ against
    the Pramukh or Up­Pramukh, as the case may be.
  30. A priori, the argument of Mr. Lekhi that the
    interpretation will offend the principle of ut res magis valeat
    quam pereat and make Article 243C(5)(b) unworkable, does
    not commend us. As aforesaid, Article 243C makes no
    mention about the manner and mode by which the
    Chairperson of the Panchayat Samiti can be removed by way
    of a ‘No Confidence Motion’. Whereas, the State Legislature
    has been empowered to make a law on that subject. As is
    noticed from the stated Regulation, the same explicitly deals
    with the mechanism for moving a ‘No Confidence Motion’
    37
    against the Pramukh or Up­Pramukh, as the case may be; and
    more particularly, as per the rules framed under the said
    Regulation. The validity of the said provisions has not been
    put in issue. In such a situation, the argument regarding
    constitutional silence or its efficacy need not detain us. For the
    same reason, we do not wish to dilate on the exposition in
    Justice K.S. Puttaswamy and Anr. Vs. Union of India and
    Ors.3
    , Bhanumati and Ors. Vs. State of Uttar Pradesh
    through its Principal Secretary and Ors.4
    , Usha Bharti
    Vs. State of Uttar Pradesh and Ors.5 and Delhi Transport
    Corporation Vs. D.T.C. Mazdoor Congress and Ors.6
  31. Learned ASG has invited our attention also to the
    decision in Vipulbhai M. Chaudhary Vs. Gujarat
    Cooperative Milk Marketing Federation Limited and Ors.7
    ,
    dealing with the question of permissibility of removal of the
    Chairperson/elected office bearers by motion of no confidence.
    The exposition in the said decision, that if a person has been
    3
    (2017) 10 SCC 1 (page 516­519)
    4
    (2010) 12 SCC 1 (para 51)
    5
    (2014) 7 SCC 663 (para 34)
    6
    (1991) Supp.(1) SCC 600 (para 255)
    7
    (2015) 8 SCC 1 (para 20)
    38
    elected to an office through democratic process and when such
    person loses the confidence of the representatives who elected
    him, then those representatives should necessarily have a
    democratic right to remove such an office bearer in whom they
    do not have confidence, will not take the matter any further
    in the wake of express provisions contained in the Regulation
    of 1994 and the Rules of 1997, to which we have elaborately
    adverted hitherto.
  32. For the same reason, even the decision in Pratap
    Chandra Mehta Vs. State Bar Council of Madhya Pradesh
    and Ors.8
    , will be of no avail for interpreting or applying the
    provisions in the Regulation and the Rules under
    consideration. Our attention was also invited to the decision in
    Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly
    and Ors.9
    Emphasis was placed on the observations in
    paragraph 4 of this decision. As a matter of fact, the dictum in
    this decision would reinforce the view that we have taken, as it
    is observed in the said paragraph that a provision in the
    8
    (2011) 9 SCC 573 (para 22, 26, 46)
    9
    (1992) 4 SCC 80 (para 4)
    39
    statute for recall of an elected representative has to be tested
    not on general or vague notions but on practical possibility
    and electoral feasibility of entrusting the power of recall to a
    body which is representative in character and is capable to
    projecting the views of the electorate. We have already noted
    that the category of persons referred to in Section 107(3) of the
    Regulation are also, in one sense, elected representatives
    (though not by direct election from territorial constituencies in
    the Panchayat area) and, therefore, their participation and
    voting on the ‘No Confidence Motion’ has been expressly
    permitted by the Regulation and the Rules. That cannot be
    undermined on the basis of the common law principle, so long
    as the governing statutory provisions are in the field.
  33. For the above reasons, we conclude that the Division
    Bench committed manifest error in setting aside the decision
    of the Executive Officer dated 2nd January, 2017 declaring that
    the meeting stood dissolved for want of quorum. Instead, we
    uphold the said decision of the Executive Officer having held
    that the quorum of the special meeting ought to be of not less
    40
    than two­thirds of the “total number of membership of the
    Panchayat Samiti” which includes all the members of the
    Panchayat Samiti ­ be it directly elected or ex­officio members,
    as the case may be. So understood, the quorum of the special
    meeting has been justly recorded as four members. However,
    as only three members had remained present at the scheduled
    time and place, the Executive Officer had no option except to
    dissolve the meeting convened on 2nd January, 2017. For the
    same reason, the motion of no confidence against the
    appellant, in law, could not have proceeded further.
  34. Resultantly, the follow up action taken against the
    appellant, asking him to step down, therefore, also would be
    non est in law. This Court, vide order dated 15th January,
    2018, had made it clear that the consequential election to fill
    in the vacancy arisen due to removal of the appellant, would
    be subject to the outcome of this petition. Accordingly, we hold
    that all steps taken after the order of the Executive Officer
    dated 2nd January, 2017 be treated as non est in terms of this
    order.
    41
  35. As a result, we allow this appeal, set aside the impugned
    judgment and order passed by the High Court in M.A. No.26 of
    2017, and instead, we dismiss the writ petition filed by
    respondent No.6, and to do complete justice, we direct
    restitution of the appellant to the post of Pramukh of the Little
    Andaman Panchayat Samiti as his tenure would otherwise
    have expired in September, 2020. The District Administration
    shall take follow up steps forthwith and ensure compliance of
    the directions not later than one week from the date of receipt
    of a copy of this order and submit compliance report in the
    Registry of this Court.
  36. The appeal is allowed in the above terms. No order as to
    costs. All pending applications stand disposed of.
    …………………………..….J.
    (A.M. Khanwilkar)
    …………………………..….J.
    (Ajay Rastogi)
    New Delhi;
    May 01, 2019.