Punjab-Haryana High Court
Shri Siri Chand, Sarpanch, Gram ... vs The State Of Haryana Through The ... on 4 October, 1993
Equivalent citations: (1994)106PLR149
JUDGMENT R.K. Nehru, J.
1. The petitioner has impugned in this petition under Articles 226/227 of the Constitution of India, the order of the Commissioner and Secretary to Government of Haryana, Development and Panchayat Department, Chandigarh dated March 15, 1988 affirming on appeal the order dated December 2,1987 passed the Deputy Commissioner, Jind, placing him under suspension.
2. Facts:-
Bharthu son of Jagar filed a suit for permanent injunction restraining Gram Panchayat, Gangoli from forcibly demolishing his house and Gher-bounded as under:-
"North : 62' village pond South : 55' Gali Share-am East : 30'.8" village Ghat West : 43'.0" Gher of Dhupa son of Rati Ram and shown in site plan by points a b c d located in Khasra No. 274 Khewat No. 101."
3. The suit was contested by the Gram Panchayat. Subsequently, the petitioner made the following statement in the Court and the suit was disposed of accordingly:
"Stated that if the plaintiff would deposit the amount fixed, then I have no objection in changing the land in his name. Till then, forcible possession will not be taken. With this condition, I have no objection in decreeing the suit."
4. A complaint was made to the Deputy Commissioner, Jind saying that the petitioner made the statement in favour of Bharthu with a view to deprive the Gram Panchayat of its valuable property. The Deputy Commissioner, Jind, got the matter enquired into and the Enquiry Officer submitted a report to the effect that the petitioner had made the statement in the civil Court with a view to favour Bharthu and to deprive the Gram Panchayat of its valuable property. On receipt of the report, the Deputy Commissioner, Jind, prima-facie felt satisfied that the petitioner was liable to be removed from the office of Sarpanch under Section 102(2) (d) of the Punjab Gram Panchayat Act, 1952 (for short the Act) and accordingly placed him under suspension, vide order dated December 2, 1987. The petitioner challenged this order in appeal before the Commissioner and Secretary to Government, Haryana. The appeal was dismissed vide order dated March 15, 1988.
5. The petitioner has assailed the order of suspension and the appellate order principally on the ground that he was persuaded by the Lok Adalat to make the statement as the claim of Bharthu was genuine. Apart from this, the learned counsel for the petitioner brought to my notice the policy decision taken by the State Government contained in Memo No. S- 1-76/10107-17 dated March 12,1976. The same reads thus:-
"If any Harijan or Backward Class or any other person has constructed a pucca house on the shamlat land in the abadi Deh and if this house is constructed 5 years ago and does not obstruct the passage or any other programme of the village, then that land be sold at market rate and 15 to 50% of fine over and above the value be charged keeping his economic condition.
xx xx xx xx"
6. The policy decision clearly postulates that if any Harijan or member of the Backward Class has constructed a pucca house on shamlat land in the abadi deh, then the land underneath the house be sold to him at the market rate and fine ranging between 15 to 50% over and above the market value of the site be charged from the person who had built the house on the shamlat land situated in the abadi deh. Bharthu was a Harijan. He had built a house and a gher on a piece of land within the abadi deh claimed by the panchayat, being shamlat deh. The petitioner, keeping in view the policy decision, made statement in the Court that he had no objection in giving She land underneath the house to Bharthu, if he deposited the amount fixed. The statement clearly refers to the policy decision reproduced above. Otherwise, the petitioner would not have slated that he had no objection in giving land to Bharthu, if he deposited the price fixed. The price has to be deposited as assessed under the policy decision.
"Section 102:
Suspension and removal of Panches:-
(1) The Director may suspend any Panch where a case against his in respect of any criminal offence is under investigation, enquiry or trial, if, in the opinion of the Director, the charges made or proceeding taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character.
(1-A) The Director (or Deputy Commissioner) may, during the course of an enquiry, suspend a Panch for any of the reasons for which he can be removed.
(1-B) A Panch suspended under this section shall not take part in any act or proceedings of the Panchayat during the period of suspension and shall hand over the records, money or any other property of the Panchayat in his possession or under his control to the person authorised by the (Panch-commanding majority in the Panchayat).
(2) (The Director may, after such enquiry as he may deem fit) remove any Panch :-
(a) on any of the grounds mentioned in Sub-section (5) of Section 5;
(b) who refuses to act, or becomes incapable of acting, or is adjudged an insolvent;
(c) who, without reasonable, cause absents himself for more than two consecutive months from the meetings of the Gram Panchayat, or the Adalti Panchayat, as the case may be;
(d) who in the opinion of the Director has been guilty of misconduct in the discharge of his duties during his past or present tenure.
(e) whose continuance in office is, in the opinion of Director undesirable in the interests of the public.
Explanation: The expression "misconduct" in clause (d) includes the failure of the Sarpanch without sufficient cause -
(i) submit the judicial file of a case within two weeks of the receipt of the order of any Court to do so;
(ii) to supply a copy of the order of the Gram Panchayat in an administrative or judicial case decided by it, within two weeks from the receipt of a valid application therefor.
(3) A person who has been removed under clause (a) or (c) of Sub-section (2) may be disqualified for re-election for such period not exceeding five years as the Director may fix.
(4) A person who has been removed under clause (b), (d) or (e) of Sub-section (2) shall stand disqualified for re-election for a period of five years from the date of his removal and a person who was removed under any of the said clauses on or after the first day of September, 1965, shall stand disqualified for re-election during such period after the commencement of the Punjab Gram Panchayat (Haryana Amendment) Act, 1971, which falls within a period of years from the date of his removal (5) Any person aggrieved by an order passed under this Section may, within a period of thirty days from the date of communication of the order, prefer an appeal to the Government.)" Sub-section (1), (1-A) and (1-B) of Section 102 of the Act postulates that the Director can suspend any Panch where a case in respect of criminal offence is under investigation or trial and in the opinion of the Director, the charge made against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character.
Sub-section (1-A) of Section 102 of the Act says that during the course of an enquiry, the Director or Deputy Commissioner can suspend a Panch for any of the reasons for which he has been removed.
Sub-section (1-B) says that a Panch after suspension cannot act as such or participate in the proceedings of the Panchayat.
Sub-section (2) of Section 102 of the Act says that after conclusion of enquiry, the Director can remove Sarpanch on any of the grounds mentioned in sub-section (5) of Section 5 of the Act or he has become incapable of acting or is adjudged an insolvent, who without reasonable cause absents himself for more than two consecutive months from the meetings of the Gram Panchayat or the Adalti Panchayat, as the case may be or has been guilty of misconduct in the discharge of his duties during his past or present tenure, whose continuance in office is, in the opinion of the Director undesirable in the interests of the public.
7. Sub-section (5) of Section 5 of the Act says that the following person shall be eligible to the members of the Sabha:-
"(5) No person who is not a member of the Sabha and who:-
(a) is not qualified to be elected as a member of the legislative Assembly; or
(b) has been convicted of any offence involving moral turpitude unless a period of five years has elapsed since his conviction; or
(c) has been subjected to an order by a criminal Court and which order in the opinion of Government or of the officer to whom Government has delegated its power of removal, implies a defect of character unfitting him to be a Panch, unless a period of five years has elapsed since the date of order; or
(d) has been convicted of an election offence; or
(e) has been ordered to give security for good behaviour under Section 110 of the Code of Criminal Procedure, (1973) ; or
(f) has been notified as disqualified for appointment in public service, except on medical grounds; or
(g) is a whole time salaried servant of any local authority (or Co-operative Society) or State or the Union of India; or
(h) is registered as a habitual offender under the Punjab Habitual Offenders (Control and Reforms) Act, 1952; or
(i) is an undischarged insolvent; or
(j) has not paid the arrears of the tax imposed by the Gram Panchayat or the Panchayat Samiti (or any other due of the Gram Panchayat); or
(k) is an employee of Gram panchayat; or
(l) is an tenant or lessee holding a tenancy or lease under the Gram Panchayat or is in arrears of rent of any lease to tenancy held under the Gram Panchayat, or is a contractor of the Gram Panchayat; or
(m) is, or has been during the period of one year preceding the date of election, in unauthorised possession of land or other immovable property belonging to the Gram Panchayat; or
(n) has been convicted under the (Protection of Civil Rights Act, 1955) Parliament Act 22 of 1956), unless a period of four years has elapsed since the date of such conviction;
(o) being a Sarpanch or Panch, has cash in hand in excess of that permitted under the rules and does not deposit the same in pursuance of a general or special order of the prescribed authority within the time specified by it;
(p) being a Sarpanch or Panch; has in his custody prescribed records and registers and other property belonging to, or vested in the Panchayat and does not hand over the same in pursuance of a general or special order of the Block Development and Panchayat Officer within the time specified in the order;
Shall, so long as the disqualification remains, be entitled to stand for election as, or continue to be a Sarpanch or Panch."
8. A close reading of these provisions would show that the Director can remove a Panch or Sarpanch if he was disqualified from being a member of the Sabha or he has incurred any of the disqualification mentioned in Sub-section (2) of Section 102 of the Act, It is not the case of the respondents that the petitioner was ineligible to be a member of the Sabha having no qualification mentioned in Sub-section (5) of Section 5 of the Act or he has suffered from any of the disqualification mentioned in clause(a), (b) and (c) of Sub-section (2) of Section 102 of the Act. The Director can remove a Sarpanch, if in his opinion, he has been guilty of misconduct in the discharge of his duties or his continuance in office is not in public interest. The order of suspension of petitioner from the office of Sarpanch does not indicate that the Deputy Commissioner had formed an opinion from the material available on record that the petitioner had been guilty of misconduct in the discharge of his duties or that his continuance in office, in the opinion of the Director, was not in public interest. Thus, the order of suspension is not envisaged under the Act and is apparently without jurisdiction. However, otherwise, on proved facts, it cannot be said that the petitioner has acted against public interest.
9. Further more, the petitioner came to this Court against the order of suspension affirmed on appeal by the Secretary to Government of Haryana on March 21, 1988. The Writ Petition came up for motion hearing on March, 22, 1988 and the operation of the suspension order and that of the Appellate Authority was stayed and the stay is in operation till date. During the pendency of the writ petition, the election has taken place of the Gram Panchayat and thus the writ petition has become infructuous by lapse of time.
10. Looking to the matter from any angle, the order of suspension dated December 2, 1987 and the order of the Appellate Authority dated March 15, 1988 cannot be sustained. The same are, therefore, quashed. No order as to costs.
11. The writ petition stands disposed of accordingly.