Punjab-Haryana High Court
Janak Singh Sarpanch vs State Of Punjab And Others on 27 November, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.12198 OF 2011 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: NOVEMBER 27, 2012
Janak Singh Sarpanch
.....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: Mr. R. K. Garg, Advocate,
for the petitioner.
Ms. Monica Chhibber Sharma, DAG, Punjab,
for the State.
Mr. M. K. Singla, Advocate,
for respondent Nos.4 and 5.
*****
RANJIT SINGH, J.
Duly elected Sarpanch has approached this Court through present writ petition to challenge his removal by way of no confidence motion passed against him. The petitioner would allege that the no confidence motion was not passed by requisite majority of 2/3rd as required by law and hence, the order of his removal is illegal and so can not be sustained.
The petitioner was elected as Sarpanch on 13.9.2008. On 24.6.2010, 7 Panches approached BDPO that they wish to pass a no CIVIL WRIT PETITION NO.12198 OF 2011 :{ 2 }:
confidence motion against the petitioner. Respondent No.4 assured said Panches that they can move such a resolution but only after expiry of two years period and accordingly asked them to wait till 14.9.2010. The seven Panches accordingly gave a fresh application on 14.9.2010 requesting for convening a meeting for passing a no confidence motion. Respondent No.3 thereafter issued notice and convened a meeting on 22.9.2010 . On this date, 7 members out of 11 attended this meeting. The seven Panches, who were present in the Block Office, raised their hands in support of passing no confidence motion and the petitioner was accordingly removed. As per the petitioner, 7 out of total 11 members would not constitute two-
third majority and hence would challenge the resolution so passed in this manner to be invalid.
It is further averred that when it was pointed out by the Panchayat Secretary that 7 members out of total 11 would not constitute a two-third majority, respondent No.4 called the 7 Panches and asked them to get the signatures of one more member as otherwise they may not succeed in passing the no confidence motion. It is alleged that on 23.9.2010, signatures of another Panch Baldev Singh were obtained by writing that he came present in the meeting at about 11.00 AM and wanted to participate in the said meeting. The proceedings were read over to him and he voted in agreement of the proceedings and thereafter put his signatures. In this manner, the resolution is shown to have been passed by two- third majority leading to removal of the petitioner.
The petitioner would allege that this is nothing but CIVIL WRIT PETITION NO.12198 OF 2011 :{ 3 }:
tampering of the record done in connivance with respondent No.4. Respondent No.4 also did not supply the copy of resolution passed at the back of the petitioner, which he obtained after moving an application under Right to Information Act. The perusal of the proceedings as recorded would show that resolution was passed by seven members out of 11 which did not constitute two-third majority. The petitioner accordingly approached this court by way of writ petition on 5.10.2010.
While the writ petition was pending, an ordinance was issued by the Punjab Government on 14.12.2010 deleting Section 19 of the Punjab Panchayati Raj Act under which no confidence motion was passed. A statement was thereafter made before the court that the name of the petitioner was not being de-notified in view of the changed circumstances. The writ petition was accordingly disposed of as infructuous.
Vires of the amending Act and the Ordinance were challenged but the writ was dismissed. The LPA against the same was also dismissed. The amending provision, however, was held to have a prospective effect and accordingly the resolution passed before the amendment, i.e., 21.4.2011 were not to be effected in any manner. This necessitated the petitioner to seek a decision on merit on his writ petition and the petitioner accordingly filed an application for recall of the order, whereby his writ petition was dismissed as infructuous on the basis of statement made by the counsel appearing for the State. In this background, the present writ petition has been filed to challenge the order.
CIVIL WRIT PETITION NO.12198 OF 2011 :{ 4 }:
Reply on behalf of the State is filed. After giving the brief facts, it is stated that 8 Panches out of 11 had passed the no confidence motion and so the petitioner has no right to remain as a Sarpanch. As per the respondents, there is no illegality in passing of the resolution as is alleged by the petitioner. As per the respondents, Baldev Singh Panch had participated in the meeting, but he reached late. To show that he had participated in this meeting, photographs of the meeting and CD were also prepared and the same are available to be shown. The respondents accordingly would plead that the writ petition be dismissed on this count.
I have considered the submissions made before me. It is not disputed that initially when the meeting commenced only 7 members were present out of the total 11. These are Vaid Singh, Jit Singh, Jaswant Singh, Harvinder Kaur, Gurmail Kaur, Bhuro Kaur and Gurmeet Singh. These 7 members had signed to show their presence. It is clearly recorded that those present in the meeting waited for half an hour, but still the petitioner-Sarpanch, Baldev Singh Panch, Nachhattar Singh Panch and Geeta Devi Panch did not come present despite being summoned. The resolution was accordingly passed by the 7 members.
It is thereafter separately recorded that Baldev Singh came present at 11.00 AM and he wanted to participate in the meeting. He was read over the proceedings of the meeting and expressed his agreement to the same. He alone had thereafter has put his signatures.
A simple question that would arise from the facts of this CIVIL WRIT PETITION NO.12198 OF 2011 :{ 5 }:
case is to see whether the manner and method as adopted by the respondents would be legally justified to pass a motion of no confidence. Concededly, 7 members out of total 11 would not constitute two-third majority. The two-third majority out of 11 members would be 7.33 members and as per the number of judgments passed by this court, 7 members cannot constitute two- third majority. Reference in this regard can be made to Vijay Kumar Saluja Vs. The Deputy Commissioner, Karnal and others, 1991 PLJ 635, Jardar Khan Vs. State of Haryana and others, AIR 1998 Punjab and Haryana 249, Shyamapada_Ganguly Vs. Abani Mukharjee, AIR 1951 Calcutta 420, S.Shivashankarappa and others Vs. The Davangere City Municipality, Davangere and others, AIR 1978 Karnataka 140 and Pritam Singh and others Vs. State of Punjab and others, AIR 1995 Punjab and Haryana 341.
8th member Baldev Singh concededly was not present when the resolution was passed. He is shown to have come present at 11.00 AM. Initially, it is recorded that he had not come present alongwith some other members, though the members who had gathered for the meeting had waited for these members who had not come present. The manner in which the vote of Baldev Singh has been counted obviously would not satisfy the judicial conscious. The possibility cannot be ruled out that this is a subsequent addition to the resolution which had been made only when respondent No.4 was apprised that 7 members may not constitute two-third majority out of the total number of members constituting the Panchayat. If Baldev Singh had come present during the meeting, obviously his presence CIVIL WRIT PETITION NO.12198 OF 2011 :{ 6 }:
could have been shown otherwise. It can be assumed that the resolution was not recorded in the proceedings book immediately before 11.00 AM to record the presence of Baldev Singh in the manner it is found recorded. This manipulation appears to have been done subsequently. If such mode and method is permitted, it would lead to some unfair and unjust consequences and in this manner can lead a scope of manipulation in the cases where the rights of elected representative are at issue. For passing a no confidence motion, the presence of person was needed at the time of passing the motion and no person can be made to concur to a resolution later on to constitute a requisite majority. This method would be in violation of the statutory provisions contained in the Act and cannot be accepted as a valid or a permissible legal method or a mode to pass a no confidence motion.
Respondent No.4, who has conducted this meeting, ought to have acquainted himself with the legal provisions and appears to have become party to this manipulation. If he had been little vigilant, such a situation would not have arisen. It is to rule out such possibility that meeting of no confidence motion is required to be held in the presence of official, like respondent No.4 and if they join hands to connive with the members to manipulate or manufacture record in this manner, it is rather sad state of affairs which rather leads to unfair and illegal consequences. This mode and method cannot be accepted as valid.
The submission made by the State counsel on the basis of law laid down in Ravinder Kumar Rawal Vs. V.K.Sood and CIVIL WRIT PETITION NO.12198 OF 2011 :{ 7 }:
others, 2011 (3) RCR (Civil) 4 that this provision is directory and not mandatory would not impress me. A passing of a no confidence motion against the elected representative and the method in which this is to be so passed, in my view, cannot be taken as directory. The procedure as provided would call for strict adherence. The observations in the case of Ravinder Kumar Rawal (supra) were made in entirely different context and it related to manner in which the rule provided for writing Yes or No on the ballet paper. It is in this contest it was observed that this method as provided in the rules, would be directory and not mandatory. The Court held so by observing that the rule does not indicate that non-compliance of it shall render the vote invalid. That is not the situation in the present case. Here question is of passing of no confidence motion and that too by a requisite majority of two-third. Here one is not concerned with manner of voting. Here one member was not present but has been shown and counted as present. Two-third majority to pass a valid no confidence motion is a mandatory requirement and can not be held to be directory. One member concededly had come subsequently. It would be a method and a mode which is not regulated by any provision and would appear to be against the statutory provision contained in Section 19 of the Act. This clearly was violated in this regard. A reference may be made to the provisions of Section 19, which provides as under:-
"No-Confidence motion against Sarpanch.--(1) An application regarding intention to move a motion of non- confidence against a Sarpanch be made to the Block CIVIL WRIT PETITION NO.12198 OF 2011 :{ 8 }:
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 non-
confidence motion.
(3) If the non-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."
It cannot be held to be directory in any manner. Thus, CIVIL WRIT PETITION NO.12198 OF 2011 :{ 9 }:
there is considerable merit in the pleas raised by the petitioner. The impugned order of passing no confidence motion against the petitioner in this manner is held to be illegal and unauthorised and, therefore, cannot be sustained.
The writ petition is allowed and the impugned order passing no confidence motion against the petitioner is set aside. The petitioner would be entitled to all consequential reliefs. He is also held entitled to costs of this petition, which is assessed at `10,000/-.
November 27, 2012 (RANJIT SINGH ) ramesh JUDGE