Punjab-Haryana High Court
Kitab Singh vs Deputy Commissioner And Ors. on 5 March, 2008
Equivalent citations: AIR2008P&H133, AIR 2008 (NOC) 2309 (P. & H.), 2008 (6) AKAR (NOC) 901 (P.&H.) = AIR 2008 PUNJAB AND HARYANA 133, AIR 2008 PUNJAB AND HARYANA 133, 2008 (6) AIR KAR R 901, (2008) 4 PUN LR 361, (2008) 3 RECCIVR 419
Author: K.S. Garewal
Bench: K.S. Garewal, Daya Chaudhary
JUDGMENT K.S. Garewal, J.
1. In the meeting of Municipal Council, Fetehabad held on February 11, 2007 at 11.00 a.m. the no confidence motion against Kitab Singh petitioner, President of the Municipal Council was passed. The meeting had been presided over by Sub Divisional Officer, Tohana, attended by 22 members of the Council including Paramveer Singh MLA. The motion was passed by 19 members voting in favour of the no confidence motion.
2. Kitab Singh has filed the present petition to challenge the no confidence motion passed against him. According to the petitioner passing of the motion by show of hands was impermissible. The motion should have been put to vote and considered through casting of secret ballot.
3. The petitioner has asserted that he had vehemently objected to the consideration of the motion by show of hands. His objection was not considered, he along with two other supporters walked out of the meeting. As no specific procedure was provided by Rule 72-A(4) of the Haryana Election Municipal Rules, 1978, general principles of democratic functioning required that the motion should have been put to vote through process of secret ballot.
4. It has also been argued that the principles described in Section 19 of the Punjab General Clauses Act, 1898 and Section 21 of the General Clauses Act, 1897 should have been observed. The General Clauses Acts state that the power to rescind should be exercised in the same manner in which the election to the President of the Municipal Council had taken place. In other words, as the election to the President of the Municipal Council takes place through a secret ballot, the motion of confidence should also have been put to vote through a secret ballot. In support of this argument reliance is placed on Dharam Singh v. The State of Haryana 1974 PLJ 365 (DB).
5. In Dharam Singh's case the matter was related to the removal of a Sarpanch through a no confidence motion. Dharam Singh had been elected Sarpanch in December 1971. The meeting of the panches had been called on February 22, 1973 to ascertain the opinion of the majority and for taking up the confidence motion. Notice of meeting had been served on Dharam Singh, showing the date of the meeting to be February 23 and not February 22. When he went to the office on the said date he was told that the meeting had already taken place a day before and the motion had been passed against him. He was also told that six Panches had been present at the meeting and had unanimously voted in favour of the motion. The Division Bench had considered the relevant rules framed under Haryana Gram Panchayat Election Rules, 1971 and found that these did not prescribe the manner in which the meeting of the Panches for consideration of a no confidence motion was called and conducted. Under the said rules, the procedure for removal of a Sarpanch from the office was given in proviso to Rule 9(2). A Sarpanch could be removed from of fice by a simple majority of votes of the Panches constituting the Gram Panchayat, at its extraordinary general meeting held with the previous permission of the Director. It was for this reason that the Court had taken recourse to the principles of General Clauses.
6. The above judgment was also considered and approved in Hardatt Singh v. The Block Development and Panchayat Officer 1975 PLJ 449 (DB). This was also a case under the Haryana Gram Panchayat Election Rules 1971. The Court had referred to Rule 39 which laid down that, if there were two or more candidates for the post of Sarpanch election should be held by secret ballot. Since there were no separate rules for considering the motion of no confidence, the Court relied upon Rule 39 and Dharam Singh's case (supra) to hold that motion of no confidence should be considered through secret ballot and not through show of hands.
7. The above judgments do not apply to the present case because Section 72-A of Haryana Municipal Election Rules, 1978 does not lay down any specific procedure. The manner of moving a motion of no confidence against the President is provided in Sub-rule (1), the motion is required to be circulated to all the members according to Sub-rule (2) the special meeting is convened by giving a notice of not less than 15 days in accordance with Sub-rule (3). Resultantly, Sub-rule (4) provides that if the motion is carried with the support not less than 2/3rd members of the Committee, the President shall be deemed to have vacated his office.
8. We are unable to see any parity between the present case and Dharam Singh's case (supra). This Court in Sarwan Singh v. State of Punjab 1994 (2) Recent Revenue Reports 461 : 1995 AIHC 265 a case under the provisions of Punjab Municipal Election Rules, 1952, had categorically found a no confidence motion passed by show of hands to be valid.
9. In any case when the meeting was convened on February 7, 2007 at 11 a.m. 22 members including the petitioner were present as is evident from Annexure P-1 which is the record of the proceedings of the meeting. When the motion was put to vote 19 members raised their hands in favour of the motion. The motion was passed by 19 votes in favour. All 19 members had signed the proceedings. After the motion had been passed the office of the President was declared as having fallen vacant.
10. Recently this Court had in Seema Chaudhary v. The State of Haryana C.W.P. No. 6534 of 2005 decided on September 19, 2007 (reported in AIR 2008 (NOC) 524 (P & H) quashed the no confidence motion on the ground that secrecy of the ballot had not been maintained. However, that was a case where the petitioner had obtained a direction from this Court by filing a writ petition that the no confidence motion should be put to vote through a secret ballot. The petitioner had also sought secret ballot at the time of the actual voting. In the present case there was no demand from the petitioner or any member that the motion be put to vote through a secret ballot. Thus the judgment in Seema Chaudhary's case (supra) is clearly distinguishable.
11. In the proceedings there is no mention whatsoever that the petitioner had demanded a secret ballot. Had the petitioner done so the Presiding Officer would have been duty bound to conduct the voting by secret ballot. This was not an election where there were so many voters that time consuming preparation was needed for preparing ballot papers. A ballot is a piece of paper on which a voter is to put a mark, the reaper is then put in a box. After the voting process is over, the box is opened and the ballot papers are counted. In the present case there were 22 members present, 22 pieces of paper could have been easily distributed, one each to every members, and they could have been asked to write "yes" or "no" on the paper, put them in a box and to be counted later. The whole process would not have taken more than five minutes. But the Presiding Officer did not find this to be at all necessary as 19 members stood up and raised their hands in favour of the motion. There was no demand for a secret ballot. Therefore, we are of the view that the meeting had been validly conducted and the motion had been validly passed by show of hands. The decision in Dharam Singh's case has no application to a case under the Municipal Election Rules. The decision of the Court in Sarwan Singh's case (supra) supports our view that a no confidence motion can be passed by show of hands. There is no merit in this petition and the same is hereby dismissed.