Achada Ahmad Haji, N. Barkathulla, and Yousef Mydan v. Administrator, Union Territory of Lakshadweep, Kavaratty, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938** ## **W.P(C).No.13881 of 2016 (I)** **---------------------------------------** ## **PETITIONER(S):** ## **-------------** **1. ACHADA AHMAD HAJI, AGED 71, S/O.LATE BADISHAH, PRESIDENT-CUM-CHIEF-COUNSELLOR, LAKSHADWEEP DISTRICT PANCHAYAT, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **2. N.BARKATHULLA, AGED 44, S/O.NALLAKOYA, VICE-PRESIDENT-CUM-CHIEF-COUNSELLOR, LAKSHADWEEP DISTRICT PANCHAYAT, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **3. YOUSEF MYDAN, AGED 69, S/O.KOJEN KOYA, VICE-PRESIDENT-CUM-CHIEF-COUNSELLOR, LAKSHADWEEP DISTRICT PANCHAYAT, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR** ## **RESPONDENT(S):--------------** **1. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **2. THE SECRETARY OF PANCHAYATS, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **3. THE ADDITIONAL DISTRICT MAGISTRATE, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **- 2 -** **WP(C).No. 13881 of 2016 (I)** **4. THE DIRECTOR OF PANCHAYATS, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** **5. THE CHIEF EXECUTIVE OFFICER, DISTRICT PANCHAYAT, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555.** - **Addl. 6. FATHIMA A. AOUGOTHI BIDHARUGE, D/O IBRAHIM, AGED 49, ALOODI, MINICOY, UNION TERRITORY OF LAKSHADWEEP, PIN 685 559.** - **ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 07.04.2016 IN I.A.NO.5074 OF 2016.** **R1 TO R5 BY STANDING COUNSEL SRI.S.RADHAKRISHNAN. R6 BY ADVS. SRI.T.KRISHNANUNNI (SR.)** **SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.K.H.ANSAR SRI.JOSEPH KURIAN VALLAMATTAM OBSERVER ADV. SRI.S.M.ALTHAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2016, ALONG WITH WPC. 14950/2016-P, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** ## **WP(C).No.13881 of 2016 (I)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:------------------------** **EXT.P1 : A TRUE COPY OF THE NOTICE OF NO-CONFIDENCE MOTION ISSUED ON 09-02-2016 BY P.P.MUSTHAFA, MEMBER OF THE DISTRICT PANCHAYAT, AGATHI, AGAINST THE PRESIDENT CUM CHIEF COUNSELLOR (PCC), SHRI ACHADA AHMAD HAJI. EXT.P2 : A TRUE COPY OF THE NOTICE OF NO CONFIDENCE MOTION ISSUED ON 9-2-2016 BY NOORJAHAN K.K., MEMBER OF THE DISTRICT PANCHAYAT, KAVARATTI, AGAINST THE VICE PRESIDENT CUM COUNSELLOR (VPC), SHRI M.YOUSEF. EXT.P3 : A TRUE COPY OF THE NOTICE OF NO CONFIDENCE MOTION ISSUED ON 9-2-2016 BY MOHAMMED KOYA P., MEMBER OF THE DISTRICT PANCHAYAT, AGATHI AGAINST THE VICE PRESIDENT CUM COUNSELLOR (VPC), SHRI. N.BARKATHULLA. EXT.P4 : A TRUE COPY OF F.NO.6/3/20156-LDP(A)(1)/84 DATED 23-2-2016 WHEREBY NOTICE FOR CONVENING A MEETING TO DISCUSS THE NO CONFIDENCE MOTION WAS ISSUED BY THE VICE PRESIDENT CUM COUNSELLOR (VPC) EXT.P5 : A TRUE COPY OF F.NO.6/3/20156-LDP(A)(1)/85 DATED 23-3-2016 WHEREBY NOTICE FOR CONVENING A MEETING TO DISCUSS THE NO CONFIDENCE MOTION WAS ISSUED BY THE PRESIDENT CUM CHIEF COUNSELLOR (PCC) EXT.P6 : A TRUE COPY OF F.NO.6/3/20156-LDP(A) (1)/86 DATED 23-3-2016 WHEREBY NOTICE FOR CONVENING A MEETING TO DISCUSS THE NO CONFIDENCE MOTION WAS ISSUED BY THE PRESIDENT CUM CHIEF COUNSELLOR (PCC)** **EXT.P7 : A TRUE COPY OF THE OP CARD NO.4675 DATED 22-3-2016 ISSUED BY THE DIRECTORATE OF HEALTH SERVICES, KAVARATTI. EXT.P8 : A TRUE COPY OF THE COMPLAINT LODGED BY SMT.L.SABEENA, DISTRICT PANCHAYAT MEMBER OF ANDROTH ON 22-3-2016. EXT.P9 : A TRUE COPY OF THE REPORT SUBMITTED BY THE FIRST PETITIONER VIDE F.NO.6/3/2016-LDP (CA)/PART DATED 22-3-2016 TO THE FIRST RESPONDENT. EXT.P10 : A TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT VIDE F.NO.5/2/2016-DOP DATED 23-3-2016 EXT.P11 : A TRUE COPY OF THE NOTICE VIDE F.NO.1/1/2016-LR/366 DATED 26.3.2016 ISSUED BY THE THIRD RESPONDENT.** **WP(C).No.13881 of 2016 (I)** ## **- 2 -** **EXT.P12 : A TRUE COPY OF THE REPORT SUBMITTED BY THE 1ST PETITIONER VIDE F.NO.6/3/2016 LDP(CA)/PART DATED 28-3-2016 TO THE FIRST RESPONDENT.** **EXT.P13 : A TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT VIDE F.NO.5/5/2015-DOP DATED 27-11-2015.** **RESPONDENT(S)' EXHIBITS:-------------------------** **EXT.R1(a) : TRUE COPY OF THE REPORT SUBMITTED BY THE CHIEF EXECUTIVE OFFICER DATED 22.03.2016.** **EXT.R1(b) : TRUE COPY OF THE APPLICATION SUBMITTED BY MR.MUNEER DATED 21.03.2016.** **EXT.R1(c) : TRUE COPY OF THE REPORT OF THE MEETING HELD ON 18.4.2016. EXT.R1(d) : TRUE COPY OF THE ORDER F.NO.5/2/2016 - DOP DATED 23.04.2016. EXT.R6(a) : TRUE COPY OF THE REQUEST SUBMITTED ON 21.03.2016.** **EXT.R6(b) : TRUE COPY OF THE PHOTOGRAPH.** **EXT.R6(c) : TRUE COPY OF THE PHOTOGRAPH.** **EXT.R6(d) : TRUE COPY OF THE COMPLAINT DATED 22.03.2016.** **EXT.R6(e) : TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT PANCHAYATH MEETING HELD ON 18.04.2016.** **EXT.R6(f) : TRUE COPY OF THE JUDGMENT DATED 15.04.2016 IN W.A.NO.832/2016.** **Vku/[ true copy ]** ## “ **C.R.”** K. Vinod Chandran, J ----------------------------------------------------------------W.P.(C) Nos.13881 of 2016-I & 14950 of 2016-P ----------------------------------------------------------------Dated this the 29[th] day of June, 2016 ## **JUDGMENT** The petitioners in both the above writ petitions are aggrieved with the convening of a meeting of The District Panchayat Council for considering a 'no-confidence motion' against the President-cum-Chief Counsellor and two Vice-Presidents-cum-Counsellors; on 18.04.2016. The petitioners in W.P.(C) No.13881 of 2016 are the said office bearers of the District Panchayat, against whom the no-confidence motion was moved. The petitioner in W.P.(C) No.14950 of 2016 is a member of the District Panchayat, who assail the convening of the meeting at the initial and subsequent stage. 2. The brief facts to be noticed are that the no-confidence motions were moved as per Exhibits P1, P2 and P3 [the documents are now referred from W.P.(C) No.14950 of 2016]. The meeting for considering the no-confidence motion was convened on 22.03.2016 as per Exhibits P4 to P6 notices. WP(C).13881 of 2016 & - 2 - 14950 of 2016 Admittedly the motions could not be considered for reason of the proceedings being disrupted by the unruly behaviour of the members. Both factions assert the other having created the pandemonium to frustrate the successful carrying on of the meeting and a fair consideration of the no-confidence motion. The further proceedings taken by the Secretary, on the orders issued by the Administrator of the Union Territory, also has been impugned in the above writ petitions. 3. On the filing of the first writ petition, a learned Single Judge had in W.P.(C) No.13881 of 2016 appointed an Advocate as an Observer in the meeting and the no-confidence motion tabled was directed to be considered; however, subject to the result of the writ petition. An appeal was filed from the above interim order; in which a Division Bench of this Court directed that the no-confidence motion if passed in the meeting convened, fresh election to the offices of the President and Vice-Presidents shall not be conducted till the writ petitions are finally heard and disposed of. It is contented that the noconfidence motions were carried successfully, in the meeting WP(C).13881 of 2016 & - 3 - 14950 of 2016 held on 18.04.2016. What remains is, the consideration of the grounds raised herein against the convening of the meeting, especially since this Court has made the decision of the meeting; subject to the result of the writ petition. 4. W.P(C).No.14950 of 2016 was filed by a member of the District Panchayat, contending that even the initial notices issued at Exhibits P4 to P6, were against the provision for convening a meeting for consideration of the no-confidence motion as available in Rule 41 of the Lakshadweep Panchayats Business Rules, 1998 [for brevity “LPBR 1998”]. Obviously the District Panchayat member has filed the above writ petition since the President and two Vice-Presidents who issued such notices could not have challenged the same. In such circumstances, the said question has to be answered first. The adjourned meeting would depend on the decision on the first count. 5. The learned Counsel appearing for the petitioner in the said writ petition would refer to sub-rule (2) of Rule 41 of LPBR 1998, brought out by the Administration of the Union Territory of Lakshadweep to contend that the proviso indicates WP(C).13881 of 2016 & - 4 - 14950 of 2016 that the notice for the meeting in which the no-confidence motion is to be considered should be issued within fifteen days of the receipt of the notice of no-confidence motion, and not less than twenty days notice should be given to the members. The 35 days referred to in sub-clause (2) takes into account the 15 days period within which the notice of a meeting has to be issued and the requirement of minimum of 20 days to the members. Herein, the no-confidence motion at Exhibits P1 to P3 were dated 09.02.2016 and the notice for meeting at Exhibits P4 to P6 were dated 23.02.2016, within fifteen days. The meeting convened as per Exhibits P4 to P6 notices ought to have been within 20 days from 23.02.2016. The meeting convened by Exhibit P4 to P6 notices were on 22.03.2016, outside the 35 days time provided and, hence, the meeting itself is illegal, is the argument. The subsequent proceedings also, hence, would be rendered nugatory contends the petitioners. As to the subsequent meeting convened, it is also argued that the Administrator could not have made an authorisation, as is found in Exhibit P7 in W.P.(C) No.14950 of 2016, since Regulation 67 requires such WP(C).13881 of 2016 & - 5 - 14950 of 2016 ## authorisation to be by a notification. 6. Sub-rule (2) of Rule 41 reads as under: “(2) On receipt of the notice of no confidence motion, the President-Cum-Chief Counsellor or the Vice President-Cum-Counsellor, as the case may be, shall convene a meeting of the Panchayat to consider the notice of no confidence motion within thirty five days after issue of the notice for the meeting: Provided that the notice for the meeting shall be issued within fifteen days of the receipt of the notice of no confidence motion and not less than twenty days before the date of the meeting”. The argument is that prior to amendment, sub-rule (2) of Rule 41 provided for convening of a meeting within 15 days from the date of receipt of notice of no-confidence motion. Sub-rule (2) of Rule 44 provided that at least 20 days notice of a meeting should be given to the members for every meeting of a District Panchayat. This anomaly was sought to be rectified by an amendment and hence the intention was only that a notice should be issued within 15 days with not less than 20 days notice to the members and the meeting be convened within 35 days of the motion itself, WP(C).13881 of 2016 & - 6 - 14950 of 2016 goes the argument. 7. The primary fallacy in the said argument, is that if the notice of the meeting is issued on the 15[th] day from the date of no-confidence motion, then there could be no meeting convened within 35 days; giving the members at least 20 days notice; even assuming that the notice is served on the very next day. The meeting, in that event invariably will have to be after 35 days. The amendment, true, was to get over the anomaly in the provisions as it existed, which directed notice for convening of a meeting of no-confidence motion within 15 days from the date of the motion; while the meeting itself could be convened only with 20 days notice to the members. In considering the amended rules, it cannot be said that the intention of the rule maker, with reference to the unamended rule, has to be looked at, in the absence of any ambiguity. It is trite that when there is no anomaly in the rule, there is no warrant for this Court to ferret out an intention, so as to bring in an interpretation, which is not in consonance with the plain language employed in the rule. 8. A plain reading of the rule would indicate that there WP(C).13881 of 2016 & - 7 - 14950 of 2016 are two notices referred to in the sub-clause; one the notice of no-confidence motion and then the notice of meeting; the latter for consideration of the no-confidence motion. The clear mandate in the amended sub-rule (2) of Rule 41 is that upon notice of no-confidence motion, the President or the Vice-President, as the case may be, should convene a meeting, for consideration of the no-confidence motion, within 35 days of the issue of the notice for the meeting. The notice, referred to in the earlier part of the rule, is of the no-confidence motion and the later part refers to the notice for the meeting, where the motion is to be tabled. Hence, the convening of the meeting within 35 days is to be taken as the period commencing from the issue of the notice for the meeting. The proviso only insists that the notice for the meeting should be issued within 15 days from the notice of no-confidence motion and the members should be given at least 20 days notice. This would result in an unequivocal mandate to hold a metting to table the no-confidence motion within 50 days of the notice of motion. Going by the above interpretation, this Court does not find any reason to interfere with Exhibits P4 to P6 WP(C).13881 of 2016 & - 8 - 14950 of 2016 notices. The challenge to the convening of the initial meeting, raised by the member, to scuttle the no-confidence motion itself, is hence reppelled. 9. The meeting convened was disrupted and hence the second meeting was convened by the administration; which is also challenged. The order of authorisation passed by the Administrator, is in exercise of the powers conferred by Regulations 60, 64 and 65 of The Lakshadweep Panchayats Regulation, 1994 [for brevity “Regulations of 1994”]. The Additional District Magistrate, Union Territory of Lakshadweep was authorised to convene the meeting of the District Panchayat to vote, on the no-confidence motion. The petitioners also challenge the notice issued by the A.D.M convening the meeting of the Panchayat on 18.04.2016. The petitioners refer to Regulations 60, 64 and 65 to contend that only on a wilful or persistent default, as is contemplated under Regulation 65, could there be usurpation of the powers by the Administrator. The meeting for consideration of no-confidence motion convened on 22.03.2016 having not gone through, the WP(C).13881 of 2016 & - 9 - 14950 of 2016 functionaries of the Panchayat, i.e., the President and Vice-Presidents, ought to have been given breathing time to further convene a meeting. The authorisation issued by the Administrator is on the very next day, ie: 23.03.2016 and the A.D.M also, allegedly in haste, issued a notice dated 26.03.2016. This attempt, to pre-empt the functionaries authorised under the Regulations to act, would be an usurpation of power conferred by the Constitution of India and the Regulations, which has to be struck down by this Court, urge the petitioners. 10. It is also contended that this would result in disruption of the democratic process and an authorisation as per the Regulations of 1994 could have been attempted only in the circumstance of sub-clause (5) of Regulation 29 coming into operation, i.e., when the offices of the Chairperson and Vice-Chairperson having been vacated simultaneously. When the no-confidence motion itself was not considered, the powers assumed by the Administrator is a clear usurpation of the powers. It is also contended that as per Article 243C(5)(b) of the WP(C).13881 of 2016 & - 10 - 14950 of 2016 Constitution of India, the election of a Chairperson of a Panchayat can only be, 'by and from' amongst the elected members of the Panchayat. Hence, there cannot be any participation of the Vice-President of the Village (Dweep) Panchayats in the election and as a consequence, they cannot participate in the no-confidence motion also. 11. The learned Senior Counsel appearing for the party respondents and the learned Standing Counsel for the Lakshadweep Administration would contend that the power exercised by the Administrator is under Regulation 60 and the mere reference to Regulations 64 and 65 would not render ineffective the orders issued. Regulations 64 and 65 refer to a wilful and persistent default by the Panchayat in the performance of any duty imposed on it by the Regulation and would not really confer any power on the Administrator to authorise an officer to convene a meeting to consider a no-confidence motion. Such power is sourced from Regulation 60, where the Administrator has over all control over the affairs of the Panchayat. The reliance placed on Regulation 75 and the mandate insisted, of a WP(C).13881 of 2016 & - 11 - 14950 of 2016 notification, would only be applicable when the Administrator authorizes any subordinate officer to carry out the powers which could be exercised by the Administrator under the Regulations. Herein, the power to convene a meeting is not one which could normally be exercised by the Administrator. The necessity to invoke Regulation 60 arose only due to the break-down of the constitutional machinery and the democratic process being hampered. The power to issue a notice of meeting, to consider the no-confidence motion, is definitely on the President and Vice-President and only on the break-down of such machinery has the overall control been exercised by the Administrator under Regulation 60. 12. The constitution of the District Panchayat as per the Regulations, is a total of 36 [Thirty six]. Twenty five [25] of the members in the District Panchayat are elected by direct election. The Chairpersons/Pradhans of the Village (Dweep) Committees, by virtue of that status, are members of the District Panchayat. The Member of Parliament too is a member of the District Panchayat. Though the petitioners in W.P.(C) No.13881 WP(C).13881 of 2016 & - 12 - 14950 of 2016 of 2016 seek for a declaration that the Member of Parliament does not have the right to vote in the meeting convened for discussing a no-confidence motion, it is an admitted fact that even without his vote the motion is seen to have been carried in the meeting convened. Hence, that question need not be addressed for the further reason that even the Regulations do not provide for a voting right to the Member of Parliament. 13. As rightly pointed out by the learned Senior Counsel, Regulation 64 confers on the Administrator or the officer authorised by him, specific powers as enumerated under sub-clauses (a) and (b). Regulation 65 also deals with willful and persistent default in the performance of any duty imposed on the Panchayat, which initially requires an order, in writing, fixing a period for the performance of that duty; failing which alone the Administrator or the authorised officer could take upon himself the performance of the duty cast on the Panchayat. This is not what has been done under Exhibit P8 in W.P.(C) No14950 of 2016. Regulation 75 requires a notification, only when the Administrator intends to delegate the power conferred on him by WP(C).13881 of 2016 & - 13 - 14950 of 2016 the Regulation. Admittedly the Regulations confer power to convene a meeting, for consideration of the no-confidence motion, on the President and Vice-President of the Panchayat. The invocation of such power, by the Administrator could only be sourced to Regulation 60, which confers on the Administrator the power of overall control on the Panchayat. The exercise of such power has to be tested on the facts emanating. 14. The parties representing the two factions have conflicting contentions as to who disrupted the meeting on 22.03.2016. In this context, it has to be noticed that the opposition who moved the no-confidence motion, had absolutely no reason to disrupt the meeting. It was only in the interest of the President and the Vice-Presidents, that the decision be deferred, so as to enable them to continue in office. In any event, since factual questions are involved, this Court would not look at who actually caused the disruption. Nor would such an examination be relevant. It is an admitted position that the meeting convened on 22.03.2016 was disrupted and the no-confidence motion could not be considered or put to vote. The Chief Executive WP(C).13881 of 2016 & - 14 - 14950 of 2016 Officer of the District Panchayat had, by communication dated 22.03.2016, submitted three reports with video recording of the meeting of the District Panchayat convened on 22.03.2016, to the Administrator. 15. The Administrator had considered the report and also had viewed the visual clippings of what ensued at the meeting. Without looking at who caused the disruption; it is disclosed that there were fisticuffs exchanged between the members, objects thrown at each other as also the furniture and the public address system damaged. The situation having become uncontrollable, the President-cum-Chief Counsellor declared the meeting as adjourned without specifying a time and date for re-convening the meeting. The President is also said to have filed a request before the Administrator, which is produced at Exhibit P9 in W.P.(C) No.13881 of 2016. The President, in the said communication, categorically stated that the meeting was disrupted by reason of the unruly behaviour of the members, lending credence to the reports made by the Chief Executive Officer of the District Panchayat. The President also expressed WP(C).13881 of 2016 & - 15 - 14950 of 2016 his helplessness in conducting the meeting and putting the no-confidence motion to vote. 16. By Exhibit P9, the Administrator was informed that the no-confidence motion can be convened “once the things are settled”. This effectively frustrates the democratic process and the intention, obviously, was to continue in office, when the sword of no-confidence motion was hanging over the heads of the President and the Vice-Presidents. Such an indefinite adjournment would go against the constitutional scheme of ensuring that a democratically elected body, considers the no-confidence motion; against its elected office bearers, which has to be placed and considered in a properly convened meeting and put to vote with all expediency. The entire thrust of Rule 41(2) is to ensure the convening of a meeting, for consideration of no-confidence motion, within 50 days of such motion being moved. The mandate of the provisions would be defeated by an indefinite adjournment; which the petitioners' Counsel seeks to support on grounds of hospitalisation of a member, the vacancy in one of the elected seats and so on and WP(C).13881 of 2016 & - 16 - 14950 of 2016 so forth. These are not sufficient reasons for keeping in abeyance a no-confidence motion when the persons against whom such motion is moved are continued in office; that too at the helm of affairs. 17. It is precisely such a situation that Regulation 60 takes into account and the Administrator has acted within the powers conferred on him by the Regulations to ensure convening of the meeting at the earliest. There can be no infirmity found in the Administrator having invoked such powers and authorised a person under Exhibit P7 [in W.P.(C) 14950 of 2016], who, in turn, convened the meeting on 18.04.2016 by Exhibit P8 produced therein. The meeting was attended by all members too. 18. The situation of vacation of office of the Chairperson and Vice-Chairperson as pointed out from clause (5) of Regulation 29 has not yet arrived. True, the President and Vice-Presidents were in office and it was on them; a duty was cast to convene a meeting for considering the no-confidence motion. The President who had convened the meeting and who WP(C).13881 of 2016 & - 17 - 14950 of 2016 had chaired it, had adjourned it without specifying a date for consideration of the no-confidence motion. The President had also expressed his helplessness before the Administrator in peacefully conducting the meeting and putting to vote the no-confidence motion. The President against whom the no-confidence motion was moved, sought indefinite adjournment of the meeting, keeping in abeyance the no-confidence motion. This essentially puts the constitutional machinery in jeopardy and the Administrator rightly stepped in to convene the meeting so as to take up the issue of no-confidence motion. This Court does not find any reason to interfere with the same. 19. The next ground urged by the petitioners, though not specifically pleaded, is the illegality of having participated those members of the Village (Dweep) Panchayats, who have been permitted to be included in the District Panchayat for reason only of a law framed; to provide for such representation. The said ground is urged on the strength of the constitutional provisions contained in Article 243C of the Constitution of India. The respondents, both official and private, quickly retorted that WP(C).13881 of 2016 & - 18 - 14950 of 2016 there is no pleading to that effect. The official respondents also specifically point to the law made by the State in terms of Article 243C, wherein the participation of such members on representation, in the meetings of the Panchayat, have been permitted to vote, in consonance with the constitutional provisions. Without a challenge to the said regulation; it is urged no such contention can be taken. 20. The ground of constitutional infirmity pointed out by the petitioner cannot be ignored by this Court on such technicalities. It is trite that the plea based only on the constitutional provision could be raised at any stage and this Court, a creature of the Constitution, would have to definitely consider it. This Court would not, on mere technical grounds, permit consequences, which would directly be in violation of the constitutional provisions. 21. Article 243C (1) permits the legislature of a State to make provisions with respect to composition of District Panchayats. The number of seats in each Panchayat to be filled up by election, throughout the State is to be the same; as far as WP(C).13881 of 2016 & - 19 - 14950 of 2016 practical, on the basis of a ratio as against the population of the territorial area of a Panchayat. The seats in the District Panchayat so determined shall be filled by “direct election” from the territorial constituencies in the Panchayat area as per Article 243C(2), and the Panchayat shall be divided into territorial constituencies in the same manner as the ratio provided under Article 243C(1). Article 243C(3) confers on the State legislature the power to make a law so as to provide for representation _inter alia_ of the Chairpersons/Pradhans of the Panchayats at the village level and the intermediate level in the Panchayats at the District level [we are not concerned with the intermediate level, since Lakshadweep, a Union Territory, has only the Village (Dweep) Panchayat and the Panchayat at the District level]. On these provisions, there is absolutely no dispute. 22. The District Panchayat has 25 seats determined as per the ratio, to which “direct election” is conducted. The President has promulgated the Lakshadweep Panchayats Regulation, 1994, which provides for representation by the 2[nd] proviso to sub-clause 3 of Regulation 8 [Chapter III], which is WP(C).13881 of 2016 & - 20 - 14950 of 2016 ## extracted hereunder: “Provided that the number of seats to be filled by persons chosen by direct election in the district Panchayat shall be determined at the rate of one seat for every two thousand and five hundred of population of a Village (Dweep) Panchayat and if the remainder is more than one thousand two hundred and fifty then the number of such seats shall be measured by one: Provided further that atleast one seat shall be allotted to a Village (Dweep) Panchayat. (3) The following persons shall be represented in the district Panchayat, namely:- (a) The Pradhans of the Village (Dweep) Panchayats. (b) The member of the House of People representing the Union territory. who shall have the right to vote at the meetings of the district Panchayat.” The 10 seats filled, in the representative capacity are the Chairpersons/Pradhans of the ten Village (Dweep) Panchayats. A solitary seat is also occupied by the member of the House of People. The dispute centers around whether the members included in the Panchayat,in a representative capacity being the Pradhans of the Village (Dweep) Panchayat and the member of the House of People would be entitled to vote in the no WP(C).13881 of 2016 & - 21 - 14950 of 2016 confidence motion or not. The petitioners in W.P.(C).No. 13881 of 2016 have sought for a declaration that the Member of Parliament does not have the right to vote in the meeting convened for discussing the motion of no-confidence. Admittedly the Member of Parliament has not voted in the meeting. There is also no prayer against the Pradhans of the Village(Dweep) Panchayats voting in the meeting so convened; but however, as already held; this Court cannot ignore the argument raised on the basis of the constitutional provisions. 23. The dispute has to be resolved on an understanding of Article 243C (4) and (5); which are extracted hereunder: . (4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall 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.” WP(C).13881 of 2016 & - 22 - 14950 of 2016 24. Sub-Article (4) provides that all the members of a Panchayat, including the Chairpersons 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 Panchayat. This is what has been provided in sub-clause 3 of Regulation 8 as extracted herein above. There can hence be no dispute that all the members of the District Panchayat being, (i) the directly elected members, (ii) those Pradhans of the Village Panchayats, and (iii) the member of House of People; the latter two of whom are entitled for representation in the District Panchayats; are entitled to vote in all meetings. A decision taken by the Panchayat shall be one taken by the majority of all these members. 25. Regulation 24 of the Regulations of 1994 provides for the participation of such members, who have been included in the District Panchayat on representation, from the Village (Dweep) Panchayats; to vote in the election of the President-cum-Chief Counsellors and the Vice President-cumCounsellors of the Panchayat. Regulation 24 is extracted WP(C).13881 of 2016 & - 23 - 14950 of 2016 ## hereunder: “24. At the first meeting of the district Panchayat to be called on a date fixed by the Administrator after each general election, the members including those referred to in Clause (a) sub-section (3) of Section 8 of the district Panchayat shall elect from amongst elected members referred to in the second and third provisos of sub-section (2) of section 8 a President-cum-Chief-Counsellor and two Vice-president-cum-Counsellors.” 26. This is the regulation which the respondents contend has not been challenged; which clothes the members, who are in the Panchayat, by virtue of the law permitting such representation, to vote in the election of the President and Vice President. According to the petitioners, this is in direct conflict with Article 234C(5) of the Constitution of India. 27. Article 234C(5)(a) provides for the Chairperson of a Panchayat at the Village level to be elected in such manner as the Legislature of a State may provide. Here, it is to be noticed that in the Village (Dweep) Panchayat, there are only persons, who are directly elected from the territorial areas, the Panchayat is divided into, for the purpose of such election. Article 234C(5) (b) mandates that the Chairperson/President of a Panchayat at WP(C).13881 of 2016 & - 24 - 14950 of 2016 the District level shall be elected 'by and from amongst' the elected members thereof. The election of the Vice-Presidents-cum-Counsellors is not regulated by the provision. The Chairperson of a Panchayat even according to the respondents, can be elected only from amongst the elected members thereof, which means those 25 members who are directly elected from the territorial areas to which the Panchayat is divided for the purpose of constituting the District Panchayat. The Chairperson and Vice Chairpersons now elected also are from among those members. 28. The Constitution provides that the election has to be from “amongst them” and also “by the elected members thereof”. The electoral college hence consists of only 25 members, who are directly elected to the District Panchayats. Sub-article (4) is worded in such a manner permitting all members of the Panchayat, to vote in the meetings of the Panchayat; necessitating a decision by majority, from amongst the entire members constituting the District Panchayat; those directly elected and those occupying seats by virtue of WP(C).13881 of 2016 & - 25 - 14950 of 2016 representation. However a clear distinction is drawn in subArticle (5) in so far as the election of a Chairperson in a Panchayat at the intermediate level or District level; confining the nominations to be **from** amongst those elected members thereof and **by** only those elected members thereof. This definitely indicates an exclusion of those members, who are in the Panchayat by virtue of the law made by the Union Territory permitting representation of the Chairpersons of the Village (Dweep) Panchayats and the House of People to be excluded, in so far as the election of the Chairperson to the District Panchayat is concerned. Such representation by law is also permitted by Article 243C(3). 29. If election is confined 'from amongst and by' the directly elected members, it goes without saying that the noconfidence motion could only be voted on; by the elected members. Otherwise it would bring in absurd consequences. This could also create a stalemate where the representatives from the Village (Dweep) Panchayats are heavily loaded in favour of one party, who does not have a majority as amongst WP(C).13881 of 2016 & - 26 - 14950 of 2016 the directly elected persons. In this context, the reliance placed by the learned Standing Counsel for the Union Territory, on the proviso to article 243L assumes relevance. The proviso reads as under: “Provided that the President may, by public notification, direct that the provisions of this part shall apply to any Union Territory or part thereof subject to such exceptions and modifications as he may specify in the notification”. 30. The learned Standing Counsel produced before me, across the bar, a Notification bearing No. S.O. 325(E) Issued by the Ministry of Home Affairs dated 23.04.1994, wherein the President has made certain exceptions and modifications to Article 243C, in exercise of the powers conferred by the proviso to Article 243L. As per clause (ii) of the notification, the words “ _by, and from amongst, the elected members thereof”_ was substituted with the words _“from amongst the elected members thereof by the Chairpersons of Village (Dweep) Panchayats and such elected members”_ in clause (5) WP(C).13881 of 2016 & - 27 - 14950 of 2016 of Article 243C. In such circumstance though the Chairperson can only be elected from amongst the elected members, the electorate would be comprised of the elected members and the representatives from the Village (Dweep) Panchayats. 31. The learned Counsel for the petitioners then would argue that such a notification cannot alter the specific restriction made in the Constitution or expand the electorate radically; by including those who were not intended to be included. In that context the decision of the Constitution Bench of the Hon'ble Supreme Court reported in _**Puranlal Lakhanpal v. President of India**_ **[AIR 1961 SC 1519]** , placed before me by the learned Senior Counsel would assume significance. The power of modification, conferred on the President; in identical terms as in the proviso to Article 243L; under Article 370(1)(d) was examined and it was found that in the context of the Constitution, the Court must give the widest effect to the meaning of the word 'modification' used in the Article and in that sense it includes an amendment. The challenge before the Supreme Court was in the modification made to Article 81; WP(C).13881 of 2016 & - 28 - 14950 of 2016 insofar as Its application to the State of Jammu and Kashmir, providing for appointment of representatives of the State in the House of the People by the President, on the recommendation of the Legislature of the State. An elector in the parliamentary constituency of Delhi,asserted his right to stand for elections since Article 81 provided for direct election from the territorial constituencies in the State. Relying on observations made by the Supreme Court in _**In re Delhi Laws Act case**_ **[1951 SCR 747]** it was argued that “modification” only means “alterations without radical transformation” and does not involve any “material or substantial alteration”. The provision for an indirect election as against the clear mandate of direct election in the Constitution, was argued as doing violence to the constitutional mandate. Looking at the object behind enacting Article 370(1), recognising the special position of the State of Jammu and Kashmir, it was held so: “We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power - 29 - WP(C).13881 of 2016 & 14950 of 2016 is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word “modification” in Art.370 (1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir.” 32. True Article 370 provides a special position, to the State of Jammu and Kashmir. The Union Territories also are distinct in their administration, from the States. The proviso to Article 243L, clearly confers on the President, the power to make modifications and exceptions in the application of the constitutional provisions in that Part, to such territories under his WP(C).13881 of 2016 & - 30 - 14950 of 2016 direct sway. It is not for this Court to whittle down the powers so granted by the Constitution itself and hold the provisions applicable to the Union Territory; ignoring the powers conferred on the President. In its application to the Union Territory of Lakshadweep, Article 243C(5)(b), the President thought it fit to include the representatives from the Village (Dweep) Panjayats also to be part of the electorate. This is evidenced from the notification above referred and the Regulations of 1994. Such representatives, Pradhans of the Village (Dweep) Panjayats, thus are part of the electorate, to elect the President of the District Panchayat. Then necessarily they are to be participated in the meeting convened to consider a no-confidence motion. Admittedly the President did not provide for any exception insofar as the member of the House of People is concerned and he/she is not to be included in the electorate so modified, by the above referred notification. Admittedly such member has not voted in the no-confidence motion. 33. As a consequence, the result of the no-confidence motion, which was considered in the meeting held on 18.04.2016 WP(C).13881 of 2016 & - 31 - 14950 of 2016 on the supervision of the Advocate Commissioner, shall be given effect to. The consequences of the decision will follow and the elections will have to be conducted to the offices, which have been vacated as per the result of the no-confidence motion. The writ petitions would stand dismissed. The parties will suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]