Punjab-Haryana High Court
Baljinder Kaur vs State Of Punjab And Others on 27 August, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 18462 of 2011
Date of decision : 27.08.2012
Baljinder Kaur .....Petitioner
VERSUS
State of Punjab and others ....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: None for the petitioner.
Mr. Yatinder Sharma DAG, Punjab
for the State.
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RANJIT SINGH, J.
The election of Gram Panchayat village Patti Chhaurian, Block Dasuya, District Hoshiarpur was held on 26.05.2008. It appears that respondent No. 2 issued letter on 19.11.2010, calling upon the members of the Panchayat to attend the meeting in his office on 29.11.2010 for discussing the 'No Confidence Motion'. It is alleged that this meeting was fixed without issuing any proper notice. The petitioner filed Civil Writ Petition No. 20861 of 2010 on 26.11.2010. The writ petition was heard and the judgment reserved.
Before the judgment could be pronounced, the Punjab Government issued ordinance called Punjab Panchayati Raj Amendment Ordinance, 2010 on 14.12.2010 deleting Section 19 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as an 'Act'). This Section provided for removal of Sarpanch by passing 2/3rd motion of members of Gram Panchayat. This Section was omitted Civil Writ Petition No. 18462 of 2011 -2- through this ordinance. The meeting, however, was held on 29.11.2010 and No Confidence Motion was favoured by 3 panches out of 5 and it was opposed by two panches. It is alleged that motion, thus, was not supported by 2/3rd majority as is required under Section 19 of the Act. However, due to deletion of Section 19 of the Act, the writ petition, which the petitioner had filed on 26.11.2010, was rendered infructuous. Still, the corrigendum was published by the Punjab Government deleting the name of the petitioner from the list of Sarpanches. This order has now been challenged through the present petition on the ground that the prescribed 'No Confidence Motion' has not been carried by requisite 2/3rd members of Gram Panchayat and, thus, the same would be illegal.
Counsel for the petitioner by making reference to the case of Mohinder Khan Vs. Director, Rural Development and Panchayats, Punjab and others, CWP No. 17943 of 2010 decided on 15.11.2010 had argued that 3 out of 5 members would not constitute 2/3rd majority. The operation and effect of Annexure P-3 was, accordingly, stayed on 29.09.2011.
Reply on behalf on behalf of respondents No. 1 to 3 has been filed. It is stated that the name of the petitioner has been deleted from the list of Sarpanches only after majority of Panches had given application in writing to Block Development of Panchayat Officer, Dasuya regarding their intention for 'No Confidence Motion' which was passed against the petitioner. It is stated that 'No Confidence Motion' was carried in meeting dated 29.11.2010. The Civil Writ Petition No. 18462 of 2011 -3- resolution was, accordingly, sent to District Development and Panchayat Officer, who in turn approved and forwarded the same to the Director. The Director, thereafter, had granted approval for notifying the same. It is stated that the judgment in the case of Mohinder Khan (supra) is not applicable to the facts of the present case. The said case dealt with service of summons for 'No Confidence Motion' and further calling a valid meeting for carrying out 'No Confidence Motion'. The facts, in this case, are stated to be different from the facts of the present case. The fact that assertion made by the petitioner that out of five, three had supported the 'No Confidence Motion', is not denied. It is also pleaded that two members had opposed the No Confidence Motion.
In view of this admission, only question, which requires consideration is whether three members out of 5 would constitute 2/3rd majority or not. There are not one but number of precedents, where this issue has been gone into.
Reference can be made to Samiruddin Ahmed Versus S.D.O.Mangaldoi and others, AIR 1971 Assam & Nagaland 163, S.Shivashankarappa and others Vs. The Davangere City Municipality, Davangere and others, AIR 1978 Karnataka 140 in this regard. In view of this position of law, for counting 2/3rd majority, the total number of members is to be taken into consideration.
For counting of fraction to determine two-third majority, a reference may be made to order passed by Division Bench of this Court in Jardar Khan Vs. State of Haryana and others, AIR 1998 Punjab and Haryana 249. Here 5 members of the Gram Panchayat Civil Writ Petition No. 18462 of 2011 -4- having 8 members had passed a no confidence motion. The court observed that two-third of 8 is more than 5 by a fraction and that the said fraction cannot be ignored and has to be treated as a whole. In this case also, the resolution allegedly carried by 5 members was said to have not been validly passed by the requisite majority.
Similar view was taken in Vijay Kumar Saluja Vs. The Deputy Commissioner, Karnal and others, 1991 PLJ 635, Jai Chand Vs. The Haryana State Agricultural Marketing Board and others, 1973 P.L.J. 704, Ram Narain Sharma etc. Vs. State of Haryana & others, 1973 PLJ 550, Shyamapada Ganguly Vs. Abani Mukharjee, AIR 1951 Calcutta 420 and number of other judgements that to calculate 2/3rd majority, the total number of members constituting the Panchayat or Municipal Council are to be taken into account.
The 2/3rd majority, thus, is to be seen from total number of members, being five. 2/3rd out of 5 member would be 3.33, which actually is more than whole number 3 by a fraction which cannot be ignored as per number of judgments noticed above.
The issue that if three out of five members would constitute 2/3rd majority is, otherwise, no more res-integra. This issue has also been fully settled by number of judgments as mentioned above.
In view of settled position of law, three out of five cannot be said to have constituted 2/3rd majority. No Confidence Motion was not validly passed and resultant notification issued deleting the name of the petitioner cannot be sustained. The writ petition is allowed. Civil Writ Petition No. 18462 of 2011 -5- Annexure P-3 is set aside. As a consequence thereof, the petitioner is entitled to continue as Sarpanch.
August 27, 2012 ( RANJIT SINGH ) rts JUDGE