(M/S) vs "7. Evidently
2021 Latest Caselaw 3216 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL


THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK
                     AND
  THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA



        WRIT PETITION NO. 1076 of 2021 (M/S)


                       23RD AUGUST, 2021


Between:

Prem Ballabh Brijwasi                                    ...Petitioner


and


Kedar Palariya and others                               ...Respondents

Counsel for the petitioner : Mr. Piyush Garg.

Counsel for the respondent: Mr. Amar Murti Shukla. no.1

The Court made the following:

JUDGMENT : (per Hon'ble Sri Justice Alok Kumar Verma)

This writ petition has been filed by the

petitioner, who had contested the election of a Member of

Zila Panchayat from the Constituency (General) No.26,

Amritpur, District Nainital. The result of the election was

declared on 21.10.2019. Dr. Kedar Palariya, the

respondent no.1, objected to the nomination of the

petitioner. The Returning Officer, vide letter dated

27.09.2019, accepted the nomination of the petitioner and

rejected the objections of the respondent no.1. The

petitioner was declared elected from the said constituency.

The respondent No.1 filed a Writ Petition No.3244 of 2019

(M/S), 'Dr. Kedar Palariya vs. Union of India'. The said writ

petition was disposed of on 07.01.2020 with the following

observations:

"7. Evidently, the qualification of the private respondent no.6 is not recognized in the State of Uttarakhand as equivalent to the High School. However, this fact shall be considered by the concerned authority or the Election Tribunal in an election petition, in case such an election petition is filed by the petitioner"

2. On 10.07.2020, Dr. Kedar Palariya, the

respondent no.1, filed an Election Petition No.1 of 2020,

'Dr. Kedar Palariya vs. Prem Ballabh and others', before

the District Judge, Nainital. The learned District Judge,

vide its order dated 20.02.2021, had decided the issue

no.1, issue of limitation, in favour of Dr. Kedar Palariya.

Against the order dated 20.02.2021, the present petitioner

filed a Writ Petition No.497 of 2021 (M/S) Prem Ballabh

Brijwasi vs. Dr. Kedar Palariya. The said writ petition was

decided on 31.03.2021 as follows :

"... . While dismissing this writ petition so far it relates to the limited issue of limitation, I hold that the learned District Judge by the impugned order has rightly decided the aspect of limitation

and had rightly held that the election petition, which was preferred by the election petitioner/respondent no.1, was within time with a slight clarification, only to the effect that observation made in the paragraphs as quoted above will not create any impediment for the petitioner so far it relates to the petitioner contentions on the issue of the institution of election petition before the District Judge, in the absence of their being prior a reference made by the District Magistrate, as per the provisions contained under Section 131-H (10) of the Act and also as per the ratio, which had been laid down by the Coordinate Bench of this Court in a bunch of writ petition with a leading Writ Petition No. 3350 of 2019, "Bhupendra Singh vs. State of Uttarakhand and others". The said question would still be left open to be argued and decided by the learned District Judge before venturing into the merits of the election petition".

3. The learned District Judge, Nainital framed

issue no.4 to the effect that whether the election petition

is barred by the proviso to Section 131-H(10) of the

Uttarakhand Panchayati Raj Act, 2016 (hereinafter

referred to as, 'the Act, 2016'). The said issue was decided

vide order dated 12.04.2021 in favour of Dr. Kedar

Palariya. Feeling aggrieved by the order dated 12.04.2021,

the present writ petition has been filed to set aside the

order dated 12.04.2021.

4. During the course of the arguments in this

writ petition, the learned Single Judge found that in an

earlier judgment dated 19.08.2020, passed in Writ Petition

No.3350 of 2019 (M/S), 'Bhupendra Singh vs. State of

Uttarkhand and others' and batch, the learned Single

Judge (Coordinate Bench of this High Court) has held,

"27. Since in the entire Act, there is no provision providing for the mode and manner of making reference of election dispute to the District Judge, therefore, with a view to remove any doubt, which may be raised later, in the interest of justice, this Court by exercising its extraordinary powers under Article 226 of the Constitution of India, provides that petitioners, who are aggrieved by the result of election of Members and Office Bearers of Kshettra Panchayat or Zila Panchayats can raise an election dispute by presenting the Written Petition before the District Magistrate and the District Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall thereafter enter into such reference............"

5. A Special Appeal No.179 of 2020, 'Kamaljeet

Kaur vs. Uma Tripathi and others' was filed against the

judgment of the learned Single Judge dated 19.08.2020.

The said appeal was dismissed on 23.09.2020. The learned

counsel for both the parties submitted that the said special

appeal was filed on the different grounds.

6. In the instant writ petition, the learned Single

Judge observed on 09.06.2021;

"8. This Court is of the view, that if Section 131-H itself is taken into consideration in its totality, the preference of an Election Petition, contemplated therein by an aggrieved person, has been independently splitted in its applicability in relation to the election of Office of "Pradhan, up-pradhan or as a Member of Gram Panchayat", which is in much distinction to the office of "Pramukh, Up-pramukh or member of Kshettra Panchayat, Chairman and Vice Chairman or member of Zila Panchayat", which is contemplated under Sub-section (10) of Section 131-H. Meaning thereby, Section 131-H (1), the Election Petition contemplated therein is altogether independent, to the Election Petition, provided under Sub-section (10) of Section 131- H.

9. Hence, as per the opinion of this Court, the legislature must have mentioned the office of authority, who would be competent to make a reference of an Election Petition under Sub- section (10) of Section 131-H, so far it related to giving challenge to the Election of Pramukh, Up-

pramukh or members of Kshettra Panchayat or Chairman, Vice Chairman or Members of Zila Panchayat. But unfortunately, the legislature in its specific terms and intention had not specified any authority or the office, who would be competent to make a reference, unlike the provisions provided under Sub-section (1) of

Section 131-H, so far it related to the election of Pradhan or Up-pradhan or Gram Panchayat.

10. Hence, I am of the view that there is a vacuum in the legislature with regard to the area of reference for challenging the election under Sub-section (10) of Section 131-H.

11. Hence, I am of the view that in the absence of there being any referring authority, defined or provided under Section 131-H (10), as it has been done in relation to the Election Petitions, pertaining to the office of Pradhan or Up- Pradhan, the Coordinate Bench while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India, could not have acquired or adorned to itself a legislative competence, to vest a power of reference on the "District Magistrate", when and where there is a challenge given to the election of members of Zila or Kshettra Panchayat, as it has been observed in para 27, which is extracted hereunder :-

"27. Since in the entire Act, there is no provision providing for the mode & manner of making reference of election dispute to the District Judge, therefore, with a view to remove any doubt, which may be raised later, in the interest of justice, this Court by exercising its extraordinary powers under Article 226 of Constitution of India, provides that petitioners, who are aggrieved by the result of election of 8 Members and Office Bearers of Kshettra Panchayat or Zila Panchayats can raise an

election dispute by presenting the Written Petition before the District Magistrate and the District Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall thereafter enter into such reference. It would be incumbent upon the District Magistrate to refer the election dispute to the District Judge as early as possible; but, not later than 48 hours from the date of such presentation. It is further provided that limitation would stop running, the moment, the Written Petition is presented before the District Judge."

12. With all humility and reverence at my command, I am in respectful disagreement with the view taken by the Co-ordinate Bench, in the judgment, which was rendered on 19th August, 2020, in a Bunch of Writ Petitions, with the leading Writ Petition (M/S) No. 3350 of 2019, Bhupendra Singh Vs. State of Uttarakhand and others."

7. The learned Single judge, then, referred the

matter to a larger Bench by formulating the following

questions :-

"1. As to who would be the competent authority under Section 131-H(10), for the purpose to make a reference for institution of Election Petition under Section 131-H(10), for challenging the election of the members of Zila Panchayat because in the legislature, there is a vacuum which still persists?

2. As to whether the Writ Court under Article 226 of the Constitution of India, can adorn to itself a legislative power to vest an authority for making the reference with the District Magistrate for questioning an election to members of the Zila Panchayat?

3. As to whether under Article 226 of the Constitution of India, High Court, can create or grant a power on a particular authority, not contemplated under the Act, or beyond the provisions of Act?"

8. Heard Mr. Piyush Garg, the learned counsel for

the petitioner and Mr. Amar Murti Shukla, the learned

counsel for the respondent no.1 and perused the materials

on record.

9. Mr. Piyush Garg, the learned counsel for the

petitioner, submitted that the Courts do not legislate but

the Courts do interpret the law in a purposive manner. The

approach of the Court should be object-oriented. He

submitted that the text and context are the bases of

interpretation. The intention of the Legislature has to be

gathered from the Act, 2016 itself. The doctrine of casus

omissus is to be supplied in the case of clear necessity and

when reason for it is found within the four corners of the

statute itself. In support of his submissions, he relied upon

the judgment of the Hon'ble Supreme Court in Tirath

Singh vs. Bachittar Singh and others, (1955) 2 SCR

457, Singareni Collieries Company Limited Vs.

Vemuganti Ramakrishan Rao and others, (2013) 8

SCC 789, Badshah vs. Urmila Badshah Godse and

another, (2014) 1 SCC 188 and Indian Performing

Rights Society Ltd. vs. Sanjay Dalia and another,

(2015) 10 SCC 161.

10. Mr. Piyush Garg, the learned counsel for the

petitioner further submitted that the word "District

Magistrate" is referred under Section 131 of the Act, 2016.

Therefore, the intention of the Legislature is clear that the

"District Magistrate" should be referring authority under

Section 131-H(10) of the Act, 2016.

11. On the other hand, Mr. Amar Murti Shukla, the

learned counsel for the respondent no.1, submitted that

the Court should give effect to plain words. The words

occurred in a statute must be given their "literal" or

"ordinary meaning". The Court cannot read anything into a

statutory provision which is plain and unambiguous.

Therefore, "District Magistrate", cannot be the referring

authority under Section 131-H(10) Of the Act, 2016.

12. In order to decide the questions, which are

referred to this Bench, it is necessary to refer to the

provisions of Section 131 and Section 131-H of the Act,

2016. Section 131 and Section 131-H of the Act, 2016

read as under :

Section 131. "(1) Subject to the supervision and control of the State Election Commission, the District Magistrate shall supervise the conduct of all elections of Chairman and Vice-chairman and Members of Panchayat in the district and shall perform all related functions to it.

(2) Every local authority and the management of every educational institution receiving grant-in-aid from the State Government in the district shall, when so required by the District Magistrate, make available to him or to any other officer appointed by the District Magistrate as Election Officer, Assistant Election Officer in accordance with the direction issued by the State Election Commission, such staff as may be necessary for the performance of any duties in connection with such election.

(3) The State Election Commission may likewise require all or any of the local authorities and the managements of all or any of such institutions as aforesaid in the state to make available to any officer referred to in sub-section (2) such staff as may be necessary for the performance of any duties in connection with such elections and they shall comply with every such requisition.

(4) Where any employee of any local authority or institution referred to in sub-section (2) or sub section (3) is appointed to perform any duty in connection with such elections, he shall be bound to perform such duty."

Section 131H. "(1) The election of a person as Pradhan or Up-Pradhan or as member of a Gram Panchayat shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed, on the ground:-

(a) that this election has not been free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election; or

(b) that the result of the election has been materially affected-

(i) by the acceptance or rejection of any nomination in improper manner, or

(ii) by gross failure to comply with the provisions of this Act or the rules framed there under.

(2) The following shall be deemed to be corrupt practice of bribery or undue influence for the purpose of this Act-

(a) bribery, namely:-

(i) a person to stand or not to stand or to withdraw from being a candidate at an election; or

(ii) with objective of inducing any elector to vote or refrain voting of an election direct or indirect or to any person for the thing that:-

(1) a person for having so stood or not stood, for having withdrawn his candidature;

(2) an elector for having voted as refrained from voting for this purpose:

to propose or promise of any seat or reward on the part of a candidate is any other person what so ever with the connivance as served.

(b) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right:

Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will, be rendered an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.

(3) The application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed;

Explanation:- Any person, who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to be a candidate at the election.

(4) The authority to whom the application under sub-section (1) is made shall, in the matter of-

(i) hearing of the application and the procedure to be followed at such hearing,

(ii) setting aside the election or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner have such powers and authority as may be prescribed.

(5) Without prejudice to the generality of the powers to be prescribed under sub-section (4) the rules may be provided for summarily hearing and disposal of an application under sub-section (1).

(6) Any party aggrieved by an order of the prescribed authority who shall be Assistant Collector (first class)/Pargana Magistrate of concerned Tehsil/Pargana upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order or any one or more on the following grounds, namely:-

(a) that the prescribed authority has exercised such jurisdiction not vested in it by law;

(b) that the prescribed authority has failed to exercise a such jurisdiction so vested;

(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity.

(7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer.

(8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient.

(9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final.

(10) If any question arises that any person is legally elected as a Pramukh, Up- Pramukh or member of Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat or not or he is eligible to be such Pramukh, Up-Pramukh or Member of

Kshettra Panchayat or Chairman, Vice- Chairman or Member of Zila Panchayat or not then that question shall be referred to Judge which means District Judge and its include any other subordinate Civil Judge nominated on ad hoc by District Judge under it, in prescribed manner, whose decision shall be binding and final.

If Judge decides that any person is not legally elected as a Pramukh, Up- Pramukh or Member of Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat or he is not eligible to be such Pramukh, Up-Pramukh or Member of Kshettra Panchayat or Chairman, Vice- Chairman or Member of Zila Panchayat then he shall not remain as a Pramukh, Up- Pramukh or Member of Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat from the date of such decision.

Explanation:- Duration fixed for submitting the objection regarding the election of any person in the three tier Panchayat General Election, 2019 shall commence from the date of commencement of this Act.

13. The function of the judiciary begins when the

function of the Legislature ends. The ultimate

interpretation of a statute is the province of the Court.

14. A statute is an edict of the Legislature.

Therefore, the first and primary rule of interpretation of a

statue is that the intention of the Legislature must be

found in the words used by the Legislature itself. Each

word, phrase or sentence is to be construed in the light of

general purpose of the Act itself. Where the words of a

statute are plain and unambiguous effect must be given to

them. The literal rule of interpretation is that words should

be read in their ordinary, natural and grammatical

meaning. It is trite saying that the object of interpretation

a statute is to ascertain the intention of the Legislature,

enacting it. Where the meaning of the statue is clear and

sensible, interpolation is improper, since the primary

source of the legislative intent is in the language of the

statute. But, no doubt it is the duty of the Court to try and

harmonize the various provisions of an Act, passed by the

Legislature.

15. In S. Narayanaswami vs G. Pannerselvam

and others, (1972) AIR SC 2284, the Hon'ble Supreme

Court has held that the object of interpretation and of

"construction" (which may be broader than

"Interpretation") is to discover the intention of the law

makers in every case. This object can, obviously, be best

achieved by first looking at the language used in the

relevant provisions. Other methods of extracting the

meaning can be resorted to only if the language used is

contradictory, ambiguous or leads really to absurd results.

16. In Raghunath Rai Bareja and another vs

Punjab National Bank and others, (2007) 2 SCC 230,

the Hon'ble Supreme Court observed, "The literal rule of

interpretation really means that there should be no

interpretation. In other words, we should read the statute

as it is, without distorting or twisting its language.

We may mention here that the literal rule of

interpretation is not only followed by judges and lawyers,

but it is also followed by the layman in his ordinary life. To

give an illustration, if a person says "this is a pencil", then

he means that it is a pencil; and it is not that when he

says that the object is a pencil, he means that it is a

horse, donkey or an elephant. In other words, the literal

rule of interpretation simply means that we mean what we

say and we say what we mean. If we do not follow the

literal rule of interpretation, social life will become

impossible, and we will not understand each other. If we

say that a certain object is a book, then we mean it is a

book. If we say it is a book, but we mean it is a horse,

table or an elephant, then we will not be able to

communicate with each other. Life will become impossible.

Hence, the meaning of the literal rule of interpretation is

simply that we mean what we say and we say what we

mean."

17. It is well settled that in exceptional cases,

departure can be made from the literal rule of the

interpretation by adopting a purposive interpretation,

Heydon's mischief rule. Heydon's case (1584) 3 CO

Rep7a:76ER637 is considered a landmark case as it was

the first case to use what would come to be called the

"mischief rule" for purposive interpretation. This case

became the historical source of purposive interpretation.

In Heydon's case, it was said that for the true

interpretation of a statute, four things have to be

considered:

i) What was the common law before the making of the Act;

ii) What was the mischief and defect for which the common law did not provide;

iii) What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth;

iv) The true reason of the remedy; and then the office of the judges is to make such construction as shall suppress the mischief and advance the remedy.

18. In Controller of Estate Duty, Gujarat vs.

Kantilal Trikamlal, (1976) 4 SCC 643, the Hon'ble

Justice V.R. Krishnaiyer observed, "Law, to a large extent,

lives in the language even if it expands with the spirit of

the statute".

19. In Bai Tahira A vs. Ali Hussain Fissalli

Chothia and another, (1979) 2 SCC 316, the Hon'ble

Justice V.R. Krishnaiyer observed, "Law is dynamic and its

meaning cannot be pedantic but purposeful."

20. In Shakuntala Sawhney vs. Kaushalya

Sawhney, (1980) 1 SCC 63, the Hon'ble Supreme Court

observed, "The purpose of law and justice (Dharma) is

promotion of cohesion and not production of fission".

21. In Tirath Singh vs Bachittar Singh and

Others (supra), the Hon'ble Supreme Court observed

that it is a rule of interpretation well-established that,

"where the language of a statute, in its ordinary meaning

and grammatical construction, leads to a manifest

contradiction of the apparent purpose of the enactment, or

to some inconvenience or absurdity, hardship or injustice,

presumably not intended, a construction may be put upon

it which modifies the meaning of the words, and even the

structure of the sentence.

22. In MSR Leathers vs. S. Palaniappan, (2013)

1 SCC 177, the Hon'ble Supreme Court held, "One of the

salutary principles of interpretation of statutes is to adopt

an interpretation which promotes and advances the object

sought to be achieved by the legislation, in preference to

an interpretation which defeats such object; purposive

interpretation as a sound principle for the Courts to adopt

while interpreting statutory provisions".

23. In Badshah vs Urmila Badshah Godse &

another (supra), the Hon'ble Suprme Court has held that

the court as the interpreter of law is supposed to supply

omissions, correct uncertainties, and harmonise results

with justice through a method of free decision -- libre

recherché scientifique i.e. "free scientific research". The

Hon'ble Supreme Court has held that while interpreting a

statute the court may not only take into consideration the

purpose for which the statute was enacted, but also the

mischief it seeks to suppress. It is this mischief rule, first

propounded in Heydon case [(1584) 3 Co Rep 7a : 76 ER

637] which became the historical source of purposive

interpretation. The court would also invoke the legal

maxim construction of ut res magis valeat quam pereat in

such cases i.e. where alternative constructions are

possible the court must give effect to that which will be

responsible for the smooth working of the system for

which the statute has been enacted rather than one which

will put a road block in its way. If the choice is between

two interpretations, the narrower of which would fail to

achieve the manifest purpose of the legislation should be

avoided. The Hon'ble Supreme Court held that, "We should

avoid a construction which would reduce the legislation to

futility and should accept the bolder construction based on

the view that Parliament would legislate only for the

purpose of bringing about an effective result."

24. In Singareni Collieries Co. Limited vs.

Vemuganti Ramakrishan Rao & others (supra), the

Hon'ble Supreme Court has held that casus omissus can

be supplied in the case of the clear necessity and when

reason for it is found within the four corners of the statute

itself.

25. In Indian Performing Rights Society Limited

vs. Sanjay Dalia and another (supra), the Hon'ble

Supreme Court has held that it is settled proposition of law

that the interpretation of the provisions has to be such

which prevents mischief. The said principle was explained

in Heydon's case [Heydon's case, (1584) 3 Co Rep 7a : 76

ER 637] . According to the mischief rule, four points are

required to be taken into consideration. While interpreting

a statute, the problem or mischief that the statute was

designed to remedy should first be identified and then a

construction that suppresses the problem and advances

the remedy should be adopted. The Hon'ble Supreme

Court observed, "Heydon's mischief rule has been referred

to in Interpretation of Statutes by Justice G.P. Singh, 12th

Edn., at pp. 124-25 thus:

"(b) Rule in Heydon's case; purposive construction: mischief rule When the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words 'of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law)' is the rule laid down in Heydon's case which has now attained the status of a classic (Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907] ). The rule which is also known as "purposive construction" or "mischief rule"

(Anderton v. Ryan [1985 AC 560 : (1985) 2 WLR 968 : (1985) 2 All ER 355 (HL)] ), enables consideration of four matters in construing an Act: (i) What was the law before the making of the Act; (ii) What was the mischief or defect for which the law did not provide; (iii) What is the remedy that the Act has provided; and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which "shall suppress the mischief and advance the remedy". The rule was explained in Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661] by S.R. Das, C.J. as follows: (AIR p. 674, para

22) '22. It is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon's case was decided that: (ER p. 638)

"... for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

1st: What was the common law before the making of the Act.

2nd: What was the mischief and defect for which the common law did not provide.

3rd: What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth, and

4th: The true reason of the remedy;

and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.' (Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661] )."

The Hon'ble Supreme Court observed, "32. Justice G.P. Singh in Principles of Statutory Interpretation, 12th Edn., has observed that regard be had to the subject and object of the Act. The court's effort is to harmonise the words of the statute with

the subject of enactment and the object the legislature has in view. When two interpretations are feasible, the court will prefer the one which advances the remedy and suppresses the mischief as envisioned. The relevant portion is extracted below: "As stated earlier (Chapter 1, Title 2 'Intention of the Legislature', text and Notes 57 to 69, pp. 14 to 17) and as approved by the Supreme Court:

'9. ... "the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."' (Workmen v. Dimakuchi Tea Estate [AIR 1958 SC 353] , AIR p. 356, para 9.) The courts have declined "to be bound by the letter, when it frustrates the patent purposes of the statute".

(Cabell v. Markham [148 F 2d 737 (2d Cir 1945)] ), (Judge Learned Hand). In the words of Shah, J.:

'8.   ...    It    is        a     recognised         rule    of
interpretation         of         statutes      that       the

expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the

statute and which effectuate the object of the legislature.' (New India Sugar Mills Ltd. v. CST [AIR 1963 SC 1207] , AIR p. 1213, para 8.) Therefore when two interpretations are feasible the court will prefer that which advances the remedy and suppresses the mischief as the legislature envisioned. (Carew & Co. Ltd. v. Union of India [(1975) 2 SCC 791] , SCC p. 804, para 40.) The Court should adopt an object-oriented approach keeping in mind the principle that legislative futility is to be ruled out so long as interpretative possibility permits.

[Busching Schmitz (P) Ltd. v. P.T.

Menghani [(1977) 2 SCC 835] , SCC pp. 843-44, para 17.] The object-oriented approach, however, cannot be carried to the extent of doing violence to the plain language used by rewriting the section or substituting words in place of the actual words used by the legislature. (CIT v. N.C. Budharaja and Co. [1994 Supp (1) SCC 280] , SCC p. 288, para 13.)"

The Hon'ble Supreme Court observed, "33. In Busching Schmitz (P) Ltd. v. P.T. Menghani [(1977) 2 SCC 835] , it has been observed that purposive interpretation may be made having regard to the object of the provisions and to avoid any obvious lacuna.

34. The learned author Justice G.P. Singh in Interpretation of Statutes, 12th Edn. has also observed that it is the court's duty to avoid hardship, inconvenience, injustice,

absurdity and anomaly while selecting out of different interpretations. The doctrine must be applied with great care and in case absurd inconvenience is to be caused that interpretation has to be avoided. Cases of individual hardship or injustice have no bearing for enacting the natural construction. The relevant discussion at pp. 132-33 and 140-42 is extracted hereunder: "(a) Hardship, inconvenience, injustice, absurdity and anomaly to be avoided In selecting out of different interpretations 'the court will adopt that which is just, reasonable and sensible rather than that which is none of those things' (Holmes v. Bradfield Rural District Council [(1949) 2 KB 1 : (1949) 1 All ER 381 (DC)] , All ER p. 384) as it may be presumed 'that the legislature should have used the word in that interpretation which least offends our sense of justice'. (Simms v. Registrar of Probates [1900 AC 323 (PC)] , AC p. 335.) If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity and inconsistency. (Grey v. Pearson [(1857) LR 6 HL Cas 61 : (1843-60) All ER Rep 21] , HLC p. 106.) Similarly, a construction giving rise to anomalies should be avoided.

(N.T. Veluswami Thevar v. G. Raja Nainar [AIR 1959 SC 422] , AIR SC pp. 427 and 428.) As approved by Venkatarama Aiyar, J.:

'7. ... Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.' (Tirath Singh v. Bachittar Singh [AIR 1955 SC 830] , AIR p. 833, para 7.)"

"Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. 'The argument ab inconvenienti', said Lord Moulton, 'is one which requires to be used with great caution'. (Vacher & Sons Ltd. v. London Society of Compositors [1913 AC 107 :

(1911-13) All ER Rep 241 (HL)] .) Explaining why great caution is necessary Lord Moulton further observed: (AC p. 130) '... There is a danger that it may degenerate into mere judicial criticism of the propriety of the Acts of legislature. We have to interpret statutes according to the language used therein, and, though occasionally the respective consequences of two rival interpretations may guide us in our choice between them, it can only be where, taking the Act as a whole, and viewing it in connection with the existing state of the law at the time of the passing

of the Act, we can satisfy ourselves that the words can have been used in the sense to which the argument points.' (Vacher & Sons Ltd. v. London Society of Compositors [1913 AC 107 : (1911-13) All ER Rep 241 (HL)] .) According to Brett, L.J., the inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an 'absurd inconvenience'. Moreover, individual cases of hardship or injustice have no bearing for rejecting the natural construction (Young & Co. v. Royal Leamington Spa Corpn. [(1883) LR 8 AC 517 (HL)] ), and it is only when the natural construction leads to some general hardship or injustice and some other construction is reasonably open that the natural construction may be departed from. It is often found that laws enacted for the general advantage do result in individual hardship; for example laws of Limitation, Registration, Attestation although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such cases. (Lucy v. W.T. Henleys Telegraph Works Co. Ltd. [(1970) 1 QB 393 : (1969) 3 WLR 588 : (1969) 3 All ER 456 (CA)] ) 'It is the duty of all courts of justice', said Lord Campbell, 'to take care for the general good of the community, that hard cases do not make

bad law'. (East India Co. v. Oditchurn Paul [(1850) 7 Moo PCC 85 : 13 ER 811] .) 'Absurdity' according to Willes, J., should be understood 'in the same sense as repugnance that is to say something which would be so absurd with reference to the other words of the statute as to amount to a repugnance'. (Christophersen v. Lotingae [(1864) 33 LJ CP 121] .) 'Absurdity', said Lord Greene, M.R., 'like public policy, is a very unruly horse'. (Grundt v. Great Boulder Proprietary Mines Ltd. [1948 Ch 145 : (1948) 1 All ER 21 (CA)] ) He proceeded to add:

'There is one rule, I think which is clear ... that, although the absurdity or the non- absurdity of one conclusion as compared with another may be, and very often is, of assistance to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which has to be applied with great care, remembering that Judges may be fallible in this question of an absurdity and in any event it must not be applied so as to result in twisting language into a meaning which it cannot bear. It is a doctrine which must not be used to rewrite the language in a way different from that in which it was originally framed.' (Grundt v. Great Boulder Proprietary Mines Ltd. [1948 Ch 145 : (1948) 1 All ER 21 (CA)] , Ch pp. 159-60.) The alternative construction contended for must be such which does not put an undue strain on the

words used; (Kanailal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907] ) and does not require recasting of the Act or any part of it. It must be possible to spell the meaning contended for out of the words actually used. (Shamrao V.

Parulekar v. District Magistrate, Thana [AIR 1952 SC 324 : 1952 Cri L J 1503] .) No doubt in cases of ambiguity that construction which better serves the ends of fairness and justice will be accepted, but otherwise it is for the legislature in forming its policy to consider these elements. (IRC v. Mutual Investment Co. Ltd. [1967 AC 587 : (1966) 3 WLR 740 : (1966) 3 All ER 265 (PC)] ) If no alternative construction is open, the court cannot ignore a statutory provision 'to relieve what it considers a distress resulting from its operation; a statute has to be given effect to whether the court likes it or not'. (Martin Burn Ltd. v. Corpn. of Calcutta [AIR 1966 SC 529] .) The function of the court is to find out what is legal and not what is right. (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] .) It is presumed that a legislative body intends which is the necessary effect of its enactments; the object, the purpose and the intention of the enactment is the same; it need not be expressed in any recital or Preamble; and it is not competent for any court judicially to ascribe any part of the legal operation of the statute to

inadvertence.

(Kariapper v. Wijesinha [1968 AC 717 : (1967) 3 WLR 1460 : (1967) 3 All ER 485 (PC)] .) The courts should as far as possible avoid a construction which results in anomalies.

              (N.T.       Veluswami     Thevar v. G.        Raja
              Nainar [AIR 1959 SC 422] .)"
              35. Bennion               on           Statutory

Interpretation has mentioned law to the same effect under Section 312 and has observed that there is a presumption that absurd result is not intended and in Section 314 it has been observed that the court has to avoid an inconvenient result while interpreting a provision. It was stated that it can be presumed that Parliament intends that while construing an enactment the court will avoid a construction that is unworkable or impracticable, inconvenient, anomalous or illogical as the same is unlikely to be intended by Parliament. In Rosali V. v. TAICO Bank [(2009) 17 SCC 690 : (2011) 2 SCC (Civ) 626], this Court referring to Halsbury's commonsense construction rule held that it is a well- settled principle of law that commonsense construction rule should be taken recourse in certain cases."

26. Now, we come back to the present matter. In

the instant matter, we are concerned with the "referring

authority" who would be competent to make a reference of

election petition to a Judge under Section 131-H(10) of

the Act, 2016.

27. The State of Uttarakahnd was carved out from

the erstwhile State of Uttar Pradesh on 09.11.2000 by an

Act of Parliament, namely, The Uttar Pradesh

Reorganization Act, 2000. The composite State of Uttar

Pradesh enacted two Acts, which deal with three different

tier of the "Panchayat". For the "Gram Panchayat Level", it

was the Uttar Pradesh Panchayat Raj Act, 1947 and for the

intermediate level i.e. Block level and District level, it was

the Uttar Pradesh Kshettra Panchayat and Zila Panchayat

Act, 1961. Under these two Acts, the Rules were framed.

According to the provisions of the Uttar Pradesh

Reorganisation Act, 2000, the laws which were earlier in

force in the State of Uttar Pradesh continued to be

applicable in the State of Uttarakhand until they are

altered, repealed or amended by the Legislature of the

State of Uttarakhand.

28. These two Acts, namely, the Uttar Pradesh

Panchayat Raj Act, 1947 and the Uttar Pradesh Kshettra

Panchayat and Zila Panchayat Act, 1961 were repealed by

Section 194 of the Act, 2016. The Act, 2016 was amended

vide Amendment Act No.9 of 2020. By the said

Amendment Act, inter alia, a new clause (Clause no. 35)

to Section 2 of the Act, 2016 is substituted, namely,

(35) "Rules" means rules made under this Act

but until such rules are not promulgated, rules

means rules promulgated under the Uttar

Pradesh Panchayati Raj Act, 1947 and the Uttar

Pradesh Kshettra Panchayat and Zila Panchayat

Act, 1961.

29. The Act, 2016 gives power to the State

Government to frame Rules. Admittedly, the Rules, under

the Act, 2016, have not been framed as yet.

30. In the Principal Act, 2016, there was no

provision regarding the forum for filing the Election

Petition. The Act, 2016 was amended by the Amendment

Act No.18 of 2020. By the said Amendment Act, inter alia,

a new Section, namely, Section 131-H was inserted.

31. By the Amendment Act No.18 of 2020, the

ambiguity regarding the forum for filing the Election

Petition has been removed. However, an ambiguity is still

present regarding the "referring authority". The "referring

authority" has not been defined in this Act. Section 131-H

(10) stipulates that if any question arises regarding the

election, the said question shall be "referred to judge".

However, it is not clear, who would be competent

authority to make a reference to the Judge for institution

of Election Petition under this provision.

32. Section 131 of the Act, 2016 casts a duty on the

District Magistrate to supervise the conduct of all elections

of Chairman or Vice-chairman and Members of Panchayat

in the district and shall perform all related functions to it.

33. The Uttar Pradesh Zila Panchayats (Settlement

of Disputes Relating to Membership) Rules, 1994

(hereinafter referred to as, "the Rules") was framed under

Section 237 of the Uttar Pradesh Kshettra Panchayats and

Zila Panchayats Adhiniyam read with sub-section (1) and

clauses (a) & (b) of sub-section (2) of Section 27 of the

said Act.

34. According to Rule 3 of the Rules, 1994, if any

dispute arises as to whether a person is a member of the

Zila Panchayat, the application shall be presented to the

District Magistrate and the District Magistrate shall refer

the application along with the entire records to the State

Government for decision. In sub-rule (3) of Rule 3 of the

Rules, 1994, word "District Magistrate" has been used as a

referring authority. Rule 3 of the Rules, 1994 provides:

"3. Manner of raising disputes under Section 27 (1). - If any dispute arises as to whether a person is a member of the Zila Panchayat under clause (a) of sub-section (1) of Section 18, the same may be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat.

(2) The application shall specify the ground on which the dispute is raised and shall be presented to the District Magistrate by the person making the application and if there are more signatories to it by any or all of them.

(3) The District Magistrate shall, as soon thereafter as may be, refer the application along with the entire records and his own comments to the State Government for decisions.

(4) The State Government may, after such enquiry as it considers necessary and after affording a reasonable opportunity of hearing to the parties, pass such order as it considers just and proper."

35. In the case of Reserve Bank of India vs.

Peerless General Finance & Investment Co, (1987) 1

SCC 424, the Hon'ble Supreme Court observed :

"A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses, provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and

designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."

36. The Rules made under a statute must be treated

for all purposes of construction or obligation exactly as if

they were in the Act and are to be of the same effect as if

contained in the Act, and are to be judicially noticed for all

purposes of construction or obligation.

37. Section 131-H(10) stipulates that if any question

arises regarding the election, the question shall be

"referred to judge". Here, intention of the Legislature is

that if any question regarding the election arises, the said

question shall be referred to a Judge. Therefore, while

giving interpretation to Section 131-H(10), the Court

should adopt an object-oriented approach. In these

circumstances, the Court as the interpreter of law is

supposed to supply casus omissus, which is not

intentional, to correct uncertainty and for harmonize

results. Therefore, in view of Section 131 of the Act, and

Rule 3 of the Rules, 1994, the "District Magistrate", comes

within the four corners of law. Consequently, we hold that

the "District Magistrate" would be referring authority under

Section 131-H (10) of the Act, 2016.

38. The learned Single Judge has referred the

question number 2 and 3 to a larger Bench in light of the

facts of the present case. Therefore, in relation to question

number 2 and 3, we limit ourselves accordingly.

39. The doctrine of separation of powers envisages

that the legislature should make law, the executive should

execute it, and the judiciary should settle disputes in

accordance with the existing law. It means that one organ

of the State should not perform a function that essentially

belongs to another organ.

40. In P. Ramachandra Rao vs. State of

Karnataka, AIR 2002 SC 1856, the Hon'ble Supreme

Court held that the Courts can declare the law, they can

interpret the law, they can remove obvious lacunae and fill

the gaps, but they cannot entrench upon in the field of

legislation properly meant for the legislature.

41. In Divisional Manager, Aravali Golf Club and

another vs. Chander Hass and another, (2008) 1 SCC

683, the Hon'ble Supreme Court held that judges must

exercise judicial restraint and must not encroach into the

executive or legislative domain. The Hon'ble Supreme

Court held that if there is a law, judges can certainly

enforce it, but judges cannot create a law and seek to

enforce it.

Conclusion:

42. We answer the reference holding that:

(1) As regarding the first question, "District Magistrate" would be competent to make a reference for institution of Election Petition under Section 131 H(10), for challenging the election of the members of Zila Panchayat.

(2) As regarding the second and the third question, we may answer, in the facts of the present dispute, that Courts expound the law, they do not legislate. Therefore, the Writ Court under Article 226 of the Constitution of India, cannot adorn to itself a legislative power to vest an authority for making the reference with the District Magistrate for questioning an election to members of the Zila Panchayat, and under Article 226 of the Constitution of India, High Court, cannot create or grant a power on a particular authority, not contemplated under the Act, or beyond the provisions of Act.

43. Let the writ petition be now placed before the

appropriate Bench for further orders.

________________________ NARAYAN SINGH DHANIK, J.

___________________ ALOK KUMAR VERMA, J.

Dt: 23rd August, 2021 JKJ/Mamta