USHA BHARTI v. STATE OF U.P. & ORS.

A has been confirmed with some ancillary changes but the essence of the no-confidence provision was continued. This Court is clearly of the opinion that the provision of no- confiden ce is not inconsistent with Part IX of the Constitution."

50Copy pinpoint50. In the face of these findings, it would not be possible to accept the submission of Mr. Bhushan that the judgment in Bhanumati & Ors. (supra) is either per incuriam or requires reconsideration.

51Copy pinpoint51. Under Article 243N, any provision of law relating to Panchayats in force immediately before the 73rd Amendment, which is inconsistent with Part IX continues to be enforced until amended or repealed. In the absence of such amendment or repeal, the inconsistent provision will continue until the expiration o of one year from the commencement of the Constitution (73rd Amendment) Act, 1993. It is a matter of record that the State of Uttar Pradesh enacted U.P. Panchayat Law (Amendment) Act, 1994 on 22nd April, 1994 to give effect to the provisions of Part IX of the Constitution. The pre-existing provision of No E Confidence was not repealed. It was amended subsequently by the Amendment Act of 1998 (U.P. Act No. 20 of 1998). There was a further amendment by the Amendment Act of 2007 (U.P. Act No. 4 of 2007). By this amendment, the period for moving a No Confidence Motion was reduced from two years to one F year. Furthermore the requirement that for a Motion of No Confidence to be carried, it had to be supported by a majority of "not less than two third" was reduced to "more than half'. It was these amendment changes brought about by the Amendment Act of 2007, which was challenged by the petitioners in the case of Bhanumati & Ors. (supra). The G continuous of the provision of No Confidence Motion was not even challenged. In spite of the fact that the challenge was limited only to the amendment, this Court examined the question as to whether provision for bringing a Motion of No Confidence in Section 28 of the 1961 Act was repugnant or H

USHA BHARTI v. STATE OF U.P. & ORS. 1129 [SURINDER SINGH NIJJAR, J.] inconsistent with Part IX of the Constitution of India. Ultimately, A in Paragraph 51, this Court records the following opinion:-

"51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-a-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by the Seventy-third Constitutional Amendment by making detailed provision for democratic decentralisation and self-government on the principle of grass-root democracy cannot be interpreted to exclude the provision of no-confidence motion in respect of the office of the Chairperson of the panchayat just because of its silence on that aspect." D We are in respectful agreement with the aforesaid opinion.

52Copy pinpoint52. The Court thereafter notices the submission that the position of Panchayat Adhyaksha is comparable with that of the President of India. On this analogy, it was submitted that the office of Chairperson, i.e. Panchayat Adhyaksha should have the same immunity. This Court rejected the submission with the observation that "this is an argument of desperation and has been advanced, with respect, without any regard to. the vast difference in constitutional status and position between the two posts." Mr. Bhushan h;:is made the same submission before us. We would like to add here, that even by stretching the imagination beyond all reasonable bounds, we are unable to accept the submission of Mr. Bhushan that Chairman of a District Panchayat should be put on the same pedestal as the President of India. G

53Copy pinpoint53. Mr. Shanti Bhushan had also submitted that since the issues raised herein pertained to the interpretation of the Constitution of India, the matter needs to be referred to the five Judges as provided in Article 145(3) of the Constitution of India H

p. 1130 Copy page pinpoint

A read with Order VII Rule 2 of the Supreme Court Rules, 1966.

54Copy pinpoint54. We are of the opinion that no substantial question of law arises as envisaged under Article 145(3) of the Constitution of India as to the interpretation of the Constitution of India, in the facts and circumstances of this case. The entire issue has 8 been elaborately, and with erudition, dilated upon by this Court in Bhanumati & Ors. (supra). We also do not find any force in the submission of Mr. Bhushan that there is any occasion for reconsideration -of the judgment of this Court in Bhanumati & C · Ors. (supra).

55Copy pinpoint55. Mr. Bhushan has relied on numerous judgments of this Court in support of his submissions. Let us now consider the same.

o 56. On the issue of repugnancy, Mr. Bhushan has Cited following judgments:

(1) /.R.Coelho vs. Union of India (supra) -

In our opinion, the reliance on the aforesaid judgment is E wholly misplaced as the right to choose of the constituents is not curtailed by Section 28 of the Act. It is only the right of an elected Chairman/Adhyaksha to continue, who has lost the confidence of the electorate that has been curtailed.

(2) Deep Chand vs. State of UP. (supra) - F In this case, this Court culled out the law pertaining to the rule of repugnancy. The three tests of inconsistency or repugnancy as formulated by Nicholas in his Australian Constitution 2nd Edition have been noticed which are as under: G "(1) There may be inconsistency in the actual terms of the competing statutes;

(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award H

USHA BHARTI v. STATE OF U.P. & ORS. 1131 [SURINDER SINGH NIJJAR, J.] of the Commonwealth Court, is intended to be a complete A exhaustive code; and

(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter." B

57Copy pinpoint57. The aforesaid three rules have been accepted by this Court in Ch. Tika Ramji Vs. State of U.P. 17 Similar test was laid down by this Court in, Zaverbhai Amaidas Vs. State of Bombay (supra) as follows: c "(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature and D

(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.

58Copy pinpoint58. In our opinion, the provision contained in Section 28 E can not be said to be repugnant to the 73rd Amendment on the basis of the aforesaid tests laid down by this Court.

59Copy pinpoint59. On the issue of per incuriam, Mr. Bhushan has cited following judgments: F (1) N. Bhargawan Pillai Vs. State of Kera/a (supra) -

Mr. Bhushan had relied on observations made by this Court in Paragraph 14 of the judgment. It was held that the judgment in the case of Bore Gowda Vs. State of Karnataka 18 was per incuriam as it did not consider the impact of Section 18 of the G Probation of Offenders Act, 1958.

17. (1956) SCR 39~.

1a. (2000J 10 sec 620. H

p. 1132 Copy page pinpoint

A In Bhanumati & Ors. (supra), it can not be said that any relevant provision of the Constitution or the Act had not been taken into consideration.

(2) State of U.P. Vs. Synthetics and Chemicals Ltd. (supra) 8 The observations made in Paragraph 86 in the earlier judgment of Synthetics and Chemicals Ltd. & Ors. Vs. State of UP. & Ors. 19 were found to be per incuriam. The aforesaid observations would not be applicable in the present case as no such legitimate criticism can be made against the judgment of this Court in Bhanumati & Ors. (supra).

(3) Babu Parasu Kaikadi Vs. Babu (supra)

This judgment also reiterated the well known principle of per incuriam. It was h.eld that the judgment in Ohondiram Tatoba Kadam Vs. Ramchandra Balwantrao Dubai (since deceased) by His LRs. & Anr. 20 was per incuriam as. it had not noticed the earlier. binding precedent of a coordinate Bench and also having not cons.idered the mandatory provisions as contained in Sections 15 and 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 (67 of 1948). The well known principle with regard to a judgment not being a binding precedent as stated in Halsbury's Laws of England, 4th Edn., Vol. 26 is as under:-

F "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when G the decision is given in ignorance of the terms of a statute or rule having statutory force."

19. (1990) 1 sec 109.

H 20. (1994) 3 sec 366.

USHA BHARTI v. STATE OF U.P. & ORS. 1133 [SURINDER SINGH NIJJAR, J.] The same P.rincipl~ has been reiterated by this Court in A State of UP. Vs. Synthetics and Chemicals Ltd. (supra):-

"40. 'lncuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, ··in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law,"

(emphasis supplied) In our opinion, the judgment in Bhanumati & Ors. (supra) can not be said per incuriam on the applicability of the aforesaid tests. D (4) Zee Telefilms Ltd. Vs. Union of India (supra)

In this case, again this Court reiterated that a decision is an authority for the question of law determined by it and that it should not be read as a statute. A decision is not an authority for the proposition which did not call for its consideration. These observations again are of no assistance to the petitioner.

(5) Nirmaljeet Kaur Vs. State of M.P.

In this case also, this Court has reiterated the principles earlier enunciated. Thus, this judgment is again of no help to the petitioner.

60Copy pinpoint60. On the submission with regard to the Validity/Legality of a Legislative Act, reliance was placed upon: G 2 D.S. NakfHa vs. Union of lndia 1; Union of India vs. G. Ganayutham 22; Bharat Petroleum Corporation Ltd. vs.

21. (1983) 1sec 305. /

22. (1997) sec 463. H

p. 1134 Copy page pinpoint

A Maddula Ratnaval/P- 3 and State of A.P. vis McDowell & Co. 24• In our opinion, all these judgments are inapplicable to the facts of this case.

61Copy pinpoint61. On the submission with regard to Arbitrary/ B discretionary/unguided power to executive authority, Mr. Bhushan relied upon following judgments: Senior Superintendent of Post Offices vs. /zhar Hussain 25, Khoday Distilleries Ltd. vs. State of Kamataka 26, Magan/al Chhaga/a/ (P) Ltd. vs. Municipal Corporation of Greater Bombay2 7 Director of Industries vs. Deep Chand Agarwa/28 . In our C opinion, these judgments have no application whatsoever either to the legal issue or to the facts of this case.

62Copy pinpoint62. We have no hesitation in accepting the submission of Mr. Bhushan that the High Court or this Court, in exercise of its o powers of review can reopen the case and rehear the entire matter. But we must hasten to add that whilst exercising such power the court cannot be oblivious of the provisions contained in Order 47 Rule 1 of CPC as well as the rules framed by the High Courts and this Court. The limits within which the Courts E can exercise the powers of review have been well settled in a catena of judgments. All the judgments have in fact been considered by the High Court in Pages 16 to 23. The High Court has also considered the judgment in S. Nagaraj & Ors. Vs. State of Karnataka & Anr. (supra), which reiterates the F principle that

"19. Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in

G 23. (2007) 6 sec 81.

24. (1996) 3 sec 709. 2s. (1989) 4 sec 318.

26. (1996) 1o sec 304.

27. (1974) 2 sec 402.

H 28. (19BO) 2 sec 332.

USHA BHARTI v. STATE OF U.P. & ORS. 1135 [SURINDER SINGH NIJJAR, J.] the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice ................. "

63Copy pinpoint63. These principles are far too well entrenched in the Indian jurisprudence, to warrant reiteration. However, for the sake of completion, we may notice that Mr. Bhushan had relied upon Board of Control for Cricket in India vis Netaji Cricket Club (supra), and Green View Tea & Industries (supra). It would be useful to reiterate the following excerpts: D In the case of Board of Control for Cricket in India (supra), it was observed that:

"90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".

This court in Green View Tea & Industries (supra) G reiterated the view adopted by it in S. Nagaraj & Ors. (supra). Therefore, the ratio of Green View Tea is not applicable in this case.

p. 1136 Copy page pinpoint

64Copy pinpoint64. In view of the observations made in the aforesaid judgments, this Court would not be justified in holding that the High Court has erred in law in not reviewing its earlier judgment.

65Copy pinpoint65. This apart, we have examined the entire issue B threadbare ourselves as the issue with regard to the adverse impact on the candidates belonging to the reserves categories has not been raised before the High Court nor considered by it. In the earlier round, the issue was also neither raised nor considered by this Court. When the order dated 19th February, C 2013 was passed, the issue with regard to reservation was also not canvassed. But now that the issue had been raised, we thought it appropriate to examine the issue to put an end to the litigation between the parties.

66Copy pinpoint66. In view of the above, the appeal is accordingly D dismissed.

Contempt Petition No.287 of 2013 in CIVIL APPEAL NO ......... OF 2014 (Arising out of SLP (C) No.22035 of 2013)

67Copy pinpoint67. This Petition was filed by the Petitioner/Appellant, seeking initiation of contempt proceedings against alleged contemnors/respondent for disobeying the order of status quo dated 12th July, 2013 passed by this Court in the aforesaid Civil Appeal. F

68Copy pinpoint68. In view of the judgment passed by this Court in Civil Appeal No. 4197 of 2014 (Arising out of SLP (C) No.22035 of 2013), this Petition is dismissed as having become infructuous.

G CIVIL APPEAL NO 4199 OF 2014 (Arising out of SLP(C) No.29740 of 2013

69Copy pinpoint69. This Civil Appeal was filed by Smt. Rukmini Devi, challenging final order and judgment dated 19th August, 2013

USHA BHARTI v. STATE OF U.P. & ORS. 1137 [SURINDER SINGH NIJJAR, J.] passed by the High Court of Judicature at Allahabad, Lucknow A Bench in Writ Petition No. (MB) 5999 of 2013.

70Copy pinpoint70. The issues raised in this civil appeal are identical to those that we have examined in Civil Appeal No. 4197 of 2014 (Arising out of SLP (C) No.22035 of 2013). Therefore, in view B of the judgment in the Civil Appeal No. 4197 of 2014 (Arising out of SLP (C) No.22035 of 2013), this appeal is also dismissed. Devika Gujral Matters dismissed.