Punjab-Haryana High Court
Sukhwant Singh vs State Of Punjab And Others on 15 March, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 14958 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 14958 of 2011
Date of Decision: 15.3.2013
Sukhwant Singh .....Petitioner.
Versus
State of Punjab and others .....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Gurminder Singh, Advocate
for the petitioner.
Mr.Pankaj Mulwani, DAG, Punjab
for the State.
Mr. Vikas Bahl, Advocate
for respondent No.4.
***
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
*** RAMESHWAR SINGH MALIK J.
The instant writ petition is directed against the resolution dated 23.5.2011 (Annexure P-6), thereby appointing respondent No.4 as an authorised Panch in the absence of a duly elected Sarpanch, to carry out the functions of the Gram Panchayat of village Bhoewal, Tehsil Baba Bakala, District Amritsar.
Facts first.
The Panchayat elections in the respondent State were held in the year 2008. Petitioner as well as respondent No.4 were elected as Panches of Gram Panchayat of village Bhoewal. Thereafter, the Gram Panchayat convened its first meeting on Civil Writ Petition No. 14958 of 2011 2 17.7.2008 for the purpose of election of Sarpanch. The petitioner came to be unanimously elected as Sarpanch, vide resolution dated 17.7.2008 (Annexure P-1). However, it seems that since the petitioner could not carry the majority of Panches with him for long, the developmental activities were not being carried out because of which there was strong resentment against the petitioner. Consequently, no confidence motion was moved against the petitioner by five Panches out of the total strength of seven Panches. A meeting for passing no confidence motion was convened by the Block Development and Panchayat Officer, Tarsikka on 1.10.2010. No confidence motion was passed against the petitioner by 2/3rd majority in the meeting which was presided over by the Block Development and Panchayat Officer, Tarsikka. Thus, the petitioner came to be removed from the post of Sarpanch, by way of no confidence motion carried out against him. Consequently, notice dated 21.10.2010 was issued by the District Electoral Officer-cum- Deputy Commissioner, Amritsar, for re-election of Sarpanch of Gram Panchayat Bhoewal, appointing the Panchayat Officer, Tarsikka, as the Presiding Officer for conducting the election.
In compliance of the notice dated 21.10.2010, Presiding Officer-cum-Panchayat Officer, Panchayat Samiti, Tarsikka, presided over the meeting of the Gram Panchayat held on 28.10.2010, wherein respondent No.4 was elected as Sarpanch vide Annexure P-
2. In the interregnum, Ordinance dated 14.12.2010 (Annexure P-3), came to be issued as Punjab Ordinance No. 9 of 2010, under the Punjab Panchayati Raj Act, 1994 ('the Act' for short), vide which Civil Writ Petition No. 14958 of 2011 3 Section 19 of the Act, pertaining to no confidence motion against the Sarpanch, was omitted. Pursuant to the above said notification dated 14.12.2010 (Annexure P-3), notifying the Punjab Ordinance No. 9 of 2010, respondent State issued policy instructions dated 14.1.2011 (Annexure P-4), for the purpose of taking action qua no confidence motions, passed by Gram Panchayats against the Sarpanches. It is worthwhile to note here that vide Punjab Act No. 13 of 2011, the Act came to be amended and Section 19 was omitted. Thus, the amendment was notified of 21.4.2011, omitting Section 19 w.e.f 1.7.2010.
Consequent upon the above said policy instructions dated 14.1.2011, the Block Development and Panchayat officer, Tarsikka, informed all the members of the Gram Panchayat of village Bhoewal, vide communication dated 16.5.2011 (Annexure P-5) that meeting of Gram Panchayat shall be convened on 23.5.2011 at 10:00 am in the Block Office, Tarsikka, for the purpose of conducting election of acting Sarpanch. A meeting was convened on 23.5.2011, which was presided over by the Block Development and Panchayat Officer, Tarsikka. All the members of Gram Panchayat submitted their affidavits in favour of respondent No.4. Thus, respondent No.4 was appointed as authorised Panch ( Member Panch), vide resolution No. 4 dated 23.5.2011 (Annexure P-6).
Feeling aggrieved against the resolution dated 23.5.2011 (Annexure P-6), petitioner has approached this Court by way of present writ petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for setting aside the action Civil Writ Petition No. 14958 of 2011 4 of respondent No.3, taken vide above said impugned resolution dated 23.5.2011 (Annexure P-6). The petitioner further seeks a writ in the nature of Mandamus for handing over the charge of post of the Sarpanch to him, claiming himself to be validly elected Sarpanch of the village and alleging that the proceedings dated 23.5.2011 (Annexure P-6) were in violation of the Act.
Notice of motion was issued and pursuant thereto, joint written statement was filed on behalf of respondents No. 1 to 3 whereas a separate written statement was filed on behalf of respondent No.4. In both the written statements, averments taken by the petitioner have been denied. No replication was filed on behalf of the petitioner.
Learned counsel for the petitioner vehemently contended that action of the official respondents was illegal, being in contravention of the provisions of the Act, besides being violative of Articles 14 and 16 of the Constitution of India. He submits that neither the election of the petitioner was denotified nor the election of respondent No.4 was notified, as envisaged under Section 13 (1) read with Section 22 of the Act. He further submits that after the amendment in the Act, no election for the purpose of Sarpanch took place and the impugned resolution dated 23.5.2011 (Annexure P-6) was beyond the scope of the Act and in clear violation of the mandatory provisions of Section 13 read with Section 22 of the Act. The impugned action of the respondents in electing respondent No.4 as Sarpanch was wholly illegal and for extraneous considerations. He submits that in view of the policy instructions dated 14.1.2011 Civil Writ Petition No. 14958 of 2011 5 (Annexure P-4), the petitioner would be deemed to be duly elected Sarpanch and was entitled to continue as such. Finally, he prays for setting aside the resolution dated 23.5.2011 (Annexure P-6), directing the respondents to hand over the charge of the Sarpanch to the petitioner.
To buttress his arguments, learned counsel for the petitioner relies upon a Division Bench judgment of this Court in Nirbhai Singh Vs. State of Punjab and others, 2011 (3) RCR (Civil) 178 and judgment dated 6.1.2011 passed in CWP No. 208 of 2011 (Baljit Kaur Vs. State of Punjab and others).
Per contra, learned counsel for the State submits that present writ petition was wholly misconceived and was liable to be dismissed, because as per the relevant provisions of law contained in Section 19 of the Act, which was available on the statute book at the relevant point of time i.e. at the time of passing of no confidence motion against the petitioner and also as interpreted by the Division Bench of this Court in Nirbhai Singh's case (supra), the petitioner would be deemed to have been removed from the office of Sarpanch. Once the petitioner has lost the majority and no confidence motion was carried out against him, in accordance with law, he had no right to continue, as per the plain reading of the mandatory provisions contained in Section 19 of the Act. He shall be deemed to have been removed from the office of Sarpanch. He prays for dismissal of the writ petition.
Supporting the contentions raised by the learned counsel for the State, learned counsel for respondent No.4 submits that Civil Writ Petition No. 14958 of 2011 6 respondent No.4 was never made acting Sarpanch, as wrongly alleged by the petitioner. The star argument of the learned counsel for the petitioner that respondent No.4 was elected as acting Sarpanch was misplaced, because respondent No.4 was appointed only as an authorised Panch in the absence of a duly elected Sarpanch. He further submits that respondent No.4 was enjoying the majority and he had been duly elected as Sarpanch on 28.10.2010 (Annexure R-3/3), but since his election could not be notified, which was beyond the control of respondent No.4, he was rightly appointed as an authorised Panch, so that developmental activities of the Gram Panchayat, which had come to a standstill during the tenure of the petitioner, could be restarted.
Placing reliance upon Sections 19 (3) and 87 of the Act, besides para 18 and 19 of the Division Bench judgment of this Court in Nirbhai Singh's case (supra), learned counsel for respondent No.4 submits that first of all, there was no provision in the Act, nor it was the requirement of any law that removal of the petitioner was to be notified, or the election of the petitioner was to be denotified. He further submits that neither the petitioner has challenged his own removal nor election of respondent No.4, which was conducted on 28.10.2010 (Annexure R-3/3). In such a situation, the official respondents rightly resorted to the procedure provided under Section 87 of the Act, thereby appointing respondent No.4 as an authorized Panch, because he was enjoying the majority of the Panches, so as to ensure that developmental activities in the village and interest of residents of the village in that regard, may not suffer. In addition to Civil Writ Petition No. 14958 of 2011 7 Nirbhai Singh's case (supra), learned counsel for respondent No.4 also relies upon a judgment of this Court in Jeet Singh Panch Vs. State of Punjab and others, 2012 (2) RCR (Civil) 176, interpreting Section 87 of the Act. He concluded by submitting that since the petitioner has no locus standi to maintain the writ petition, it was liable to be dismissed with costs.
Having heard the learned counsel for the parties at considerable length, after going through the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered view that present one is not a fit case for interference at the hands of this Court, while exercising its writ jurisdiction. To say so, reasons are more than one, which are being recorded hereinafter.
In view of the fact situation obtaining in the present case, following three questions of law fall for considerations of this Court.
i) Whether the petitioner shall be deemed to have been removed from his office of Sarpanch, under Section 19 (3) of the Act, as the no confidence motion has been passed against him;
ii) whether respondent No.4 was elected as an acting Sarpanch under Sections 13 (1) read with Section 22 of the Act, as alleged on behalf of the petitioner or was appointed as an authorised Panch under Section 87 of the Act, and;
iii) whether after having lost the confidence of the majority and having been removed by way of no Civil Writ Petition No. 14958 of 2011 8 confidence motion under Section 19 (3) of the Act, the petitioner would have no locus standi to lay challenge to the resolution dated 23.5.2011 passed by the Gram Panchayat, appointing respondent No.4 as an authorised Panch, as he was enjoying the confidence of the majority.
Since, all the above said three questions of law revolve around interpretation of Sections 13, 19, 22 and 87 of the Act, it would be appropriate to reproduce the same for ready reference and the relevant extract thereof, reads as under:-
"13.Notification of election and oath of allegiance by Panches.--(1) Every election of a Panch shall be notified by the State Government in the Official Gazette and no member shall enter upon his duties until his election has been so notified and he has taken an oath or affirmation as specified in Schedule 1. (2) If a person refuses to take an oath or affirmation, referred to in sub-section (1), his election shall be deemed to be invalid and a fresh election shall be got conducted.
(3) No person, whose election is deemed to be invalid under sub-section (2), shall be eligible for election to any Gram Panchayat for a period of two years from the date of such invalidation.
"19. No-Confidence motion against Sarpanch.-- (1) An application regarding intention to move a motion of no- confidence against a Sarpanch be made to the Civil Writ Petition No. 14958 of 2011 9 Block Development and Panchayat Officer by a [majority of Panches]:
Provided that no such application shall be made unless a period of two years has elapsed from the date on which the Sarpanch assumed his office.
(2) The Block Development and Panchayat Officer shall, within a period of fifteen days of the receipt of application under sub-section (1), convene a meeting of the [Gram Panchayat]by giving seven clear days In notice, for discussing and taking decision on the no-confidence motion.
(3) If the no-confidence motion is carried in the meeting convened under sub-section (2) which shall be presided over by the Block Development and Panchayat Officer or an Officer not below the rank of Social Education and Panchayat Officer authorised by the Block Development and Panchayat Officer in this behalf, by [a two-third majority of the total number of Panches holding office for the time being], the Sarpanch shall be deemed to have been removed from his office, and a new Sarpanch shall be elected in his place:
Provided that if the no-confidence motion is lost another such motion shall not be moved against that Sarpanch before the expiry of two years from the date of its having been lost.
22. Filling of casual vacancies of Sarpanch and Panches. (1) Whenever a vacancy occurs by death, resignation, removal or otherwise of a Sarpanch or of a Panch the Civil Writ Petition No. 14958 of 2011 10 vacancy shall be filled up by way of election:
Provided that if the vacancy relates to the Scheduled Castes, Backward Classes or to Women, the vacancy shall be filled up out of the persons belonging to the category to which category of person the vacancy relates.
(2) A person elected to fill a casual vacancy under sub-section (1) shall be elected for the remainder of his predecessor's term of office:
Provided that where the remainder of period for which a Panch or Sarpanch is to be elected is less than six months, it shall not be, necessary to hold any election under this section to fill such a vacancy.
87. Custody and maintenance of Gram Panchayat records properties (1) The Sarpanch and in his absence the Panch authorised by the Gram Panchayat or by the Block Development and Panchayat Officer in this behalf shall be responsible for the safe custody of the movable property of the Gram Panchayat and such of its records as may be prescribed and immovable property belonging to or vested in the Gram Panchayat shall also remain in his charge.
(2) The Panchayat Secretary shall be responsible to maintain up-to-date all the record of the Gram Panchayat in the custody of the Sarpanch or the Panch an under section (1).
(3) The Sarpanch or Panch, as the case may be shall before filing of his nomination papers for election or on vacation of his office due to any cause whatsoever shall handover complete Civil Writ Petition No. 14958 of 2011 11 charge of such record and property to the Block Development and Panchayat Officer.
(4) If the Sarpanch or the Panch fails to hand over such records or property as specified in sub-section (1) within the period as may be prescribed, the Block Development and Panchayat Officer may apply to an Executive Magistrate within whose jurisdiction the Gram Sabha area is situated for securing from such Sarpanch or Panch such records or property, as the case may be.
(5) On receipt of an application under sub-
section (4), the Executive Magistrate may, by an order, authorise any police officer not below the rank of a Sub-inspector to enter and search any place where such records or property are kept or are believed to be kept, and to seize them and the records and property so seized shall be handed over as soon as possible to the Block Development and Panchayat Officer concerned. (6) Notwithstanding anything contained in this Act, whoever, in contravention of the provisions of this section willfully evades the handing over of such record or property shall, on conviction by Judicial Magistrate of the first class be punishable with imprisonment either description which may extend to three years or with fine or with both."
Since both the parties have placed reliance upon the Division Bench judgment of this Court in Nirbhai Singh's case (supra), the relevant para Nos. 18 and 19 thereof, read as under
"18. Applying the above principles to the Civil Writ Petition No. 14958 of 2011 12 present case, we are of the view that Section 1 (2) of the Act to bring into force the Amendment Act from 1.7.2010 is arbitrary. The effect of the amendment would be to nullify a lawfully passed No Confidence Motion and to remove a lawfully elected Sarpanch if in his place any other arrangement may have been put in place and operated for a period of more than six months. Only reason put forward to justify retrospectivity is the smooth functioning of the panchayats. The said reason cannot be held to be valid as a Sarpanch who had lost confidence of 2/3rd members and was removed and substituted by another arrangement in his place cannot be held entitled to be put back in the name of smooth functioning. Putting him back will infact obstruct the functioning. There is nothing to show on what basis it can be held that putting back Sarpanch who had lost confidence of motion of 2/3rd members will be a smooth functioning. Moreover, in Bhanumati, a similar contention was considered and rejected in para 52 of the judgment. Retrospectivity ignores the march of events which have gone by and arbitrarily affects rights which have been crystalised.
19. Accordingly, we partly allow this petition and declare Section 1 (2) of the impugned Act to be ultravires the Constitution. It is made clear that since the issue which has been dealt with may affect other similarly situated persons, this order will apply to all such cases."
Taking the first question first, it has gone undisputed on record that while working as Sarpanch, petitioner has lost the Civil Writ Petition No. 14958 of 2011 13 confidence of the majority. There were allegations against the petitioner that developmental activities had come to a standstill. Consequent upon this resentment against the petitioner, no confidence motion was moved against him. A meeting was convened in accordance with law and no confidence motion was carried out against the petitioner on 1.10.2010 (Annexure R-3/1). It is equally important to note here that the petitioner has not challenged his removal from the post of Sarpanch, by way of no confidence motion having been passed against him. Once it is so, there is no escape from the conclusion that the petitioner shall be deemed to have been removed from the office of Sarpanch. It is so said because when the no confidence motion was passed against the petitioner, Section 19 was very much available on the statute book, because even the Ordinance No. 9 of 2010 came to be notified vide notification dated 14.12.2010.
Further, respectfully following the law laid down by the Division Bench in Nirbhai Singh's case (supra), it is unhesitatingly held that the petitioner cannot be put back as Sarpanch, because he had lost the confidence of 2/3rd members and was rightly removed by validly passed no confidence motion against him. Having said that, this Court feels no hesitation to conclude that since the no confidence motion was passed by 2/3rd majority of the members, against the petitioner under Section 19(3) of the Act, he shall be deemed to have been removed from the post of Sarpanch. Thus, the first question posed above is answered in the affirmative.
Coming to the second question, it is pertinent to note that Civil Writ Petition No. 14958 of 2011 14 the petitioner did not challenge the election of respondent No.4, which was held on 28.10.2010 (Annexure P-2). It is a separate matter that election of respondent No.4 could not be notified but what the petitioner has challenged is only the alleged election of respondent No.4 as an Acting Sarpanch. Even this plea of the petitioner is based on factually incorrect and misconceived approach. It is also an admitted fact on record that respondent no.4 was enjoying the confidence of the majority, because of which he was elected as Sarpanch on 28.10.2010, but the same could not be notified as required under Section 13 read with Section 22 of the Act, because of which respondent No.4 was not administered oath of the office of Sarpanch.
When the election of respondent No.4 as Sarpanch could not be notified, the respondent authorities rightly resorted to an alternative and independent mechanism provided under Section 87 of the Act. The majority of the member of the Panches, vide Annexure R-3/5, approached the Block Development and Panchayat Officer, Tarsikka, in this regard, requesting him to appoint respondent No.4 as an officiating Panch, so that pending developmental activities of their village could be completed. In these circumstances, the procedure under Section 87 of the Act was adopted in a meeting of the Panchayat, which was presided over by the Block Development and Panchayat Officer. Deliberations were held to the effect that respondent No.4 was elected as Sarpanch, but the election could not be notified. In fact, in view of the very scheme of the Act, it is clear that the procedure has been provided under Civil Writ Petition No. 14958 of 2011 15 Section 87 only to meet such kind of exigency.
The object is obvious that functions of the Gram Panchayat, including the developmental activities in the village may not come to a standstill. In this view of the matter, it is held that respondent No.4 was not elected as acting Sarpanch under Section 13 (1) read with Section 22 of the Act, as wrongly alleged by the petitioner. On the other hand, respondent No.4 was appointed as an authorised Panch and as per the procedure laid down under Section 87 of the Act. Thus, second question posed above is answered accordingly.
So far as the judgment in Baljit Kaur's case (supra) relied upon by the learned counsel for the petitioner is concerned, there is no dispute about the law laid down therein, but he same was decided in a different set of facts. Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533. Thus, the judgment in Baljit Kaur's case (supra) is of no help to the petitioner.
On the other hand, the judgment rendered by this Court in Jeet Singh's case (supra) was closer to the facts of the present case. Section 87 came up for interpretation before this Court in Jeet Singh's case (supra) and the relevant extract thereof, reads as under:-
Civil Writ Petition No. 14958 of 2011 16
"If Sarpanch is placed under suspension, he shall hand over the records, money and other property of the Gram Panchayat in his possession or under his control to the Panch as may be elected by the Panches from amongst Panches in a meeting called by the Block Development and Panchayat Officer.
As per Section 87 of the Act, in the absence of the Sarpanch, authorised Panch by the Gram Panchayat or Block Development and Panchayat Officer shall be responsible for the custody of the properties, records of the Gram Panchayat and shall also remain in charge of such properties and records.
From the perusal of Section 20(5) of the Act, it can safely be said that if Sarpanch is placed under suspension, an authorised Panch shall be elected by the Panches from amongst Panches and that authorised Panch shall be in charge of entire records, money and properties of the Gram Panchayat. Meaning thereby, he shall be the only authorised Panch, who can discharge functions and duties of the Sarpanch during the period elected Sarpanch remains under suspension or new Sarpanch is elected Civil Writ Petition No. 14958 of 2011 17 in accordance with Section 22 of the Act.
xxxxxxxxx From the perusal of Sections 15 and 17 of the Punjab General Clauses Act, I have no hesitation to hold that law relating to any office shall be applicable to such persons executing the functions of that office for the time being and any law relating to the chief or superior of an office shall also apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior. Therefore, all the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch for the time being under Section 20 (5) read with Section 87 of the Act. Authorised Panch is given power to control and for possession of all the records and properties of the Panchayat, which are usually held by the Sarpanch to facilitate authorised Panch to discharge all the functions of the Sarpanch during the casual vacancy in the office of Sarpanch due to suspension, removal or death of Sarpanch. Every authorised Panch to officiate the office of Sarpanch shall have same Civil Writ Petition No. 14958 of 2011 18 powers for the period he remains in the office, which usually can be exercised by the Sarpanch.
In the humble opinion of this Court, it cannot be said that authorised Panch, on the basis of valid resolution of the Panchayat, is not authorised to supervise or to spend Panchayat funds for the development works in the village.
If argument of learned counsel for the petitioner is accepted it will give rise to such a situation where institution of self-Government, after 73rd amendment in the Constitution of India, i.e. Gram Panchayat would not be able to carry out any work during the period Sarpanch remains under suspension or during the period post of Sarpanch remains unfilled due to removal or death of Sarpanch. In the opinion of this Court, suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with. Therefore, I hold that authorised Pach can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Civil Writ Petition No. 14958 of 2011 19 Sarpanch. Question raised hereinabove stands answered accordingly.
Consequently, writ petition is dismissed." The above said observations made by this Court in Jeet Singh's case (supra), do apply in the present case. The respondent authorities have committed no error of law while passing the impugned resolution dated 23.5.2011 (Annexure P-6), thereby appointing respondent No.4 as an authorised Panch, in the absence of a duly elected Sarpanch.
Further, directions for holding the election of Sarpanch is not being issued by this Court, at this time, because of the provisions contained in Section 22 (2) as the remaining period of the present tenure is less than six months, as admitted by the learned counsel for the parties. In such a situation, the only workable solution was to resort to the procedure provided under Section 87 of the Act, and that is what has been done by the respondent authorities, in the interest of residents of the village.
Coming to the third question, once the petitioner has lost the confidence of the majority and no confidence motion was validly carried out against him, he would be deemed to have been removed from the office of Sarpanch. Neither he has challenged his removal nor the election of respondent No.4 as Sarpanch. It is a different aspect that election of respondent No.4 as Sarpanch, could not be notified. In such a situation, once there was no scope left for the petitioner to rejoin on the post of Sarpanch, he had no locus standi to challenge the impugned resolution dated 23.5.2011, vide which Civil Writ Petition No. 14958 of 2011 20 respondent No.4 was appointed as authorised Panch, in the absence of a duly elected Sarpanch. In fact, respondent No.4 was rightly appointed as authorised Panch, because he was enjoying the confidence of the majority, as well. In view of the peculiar fact situation of the present case, it is held that the petitioner was not having any locus standi to maintain the present writ petition against the impugned resolution dated 23.5.2011 (Annexure P-6).
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present writ petition is misconceived, bereft of any merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 15.3.2013 AK Sharma