Punjab-Haryana High Court
Smt. Sudesh vs State Of Haryana And Ors. on 17 December, 1997
Equivalent citations: AIR1998P&H177, (1998)118PLR376, AIR 1998 PUNJAB AND HARYANA 177, (1998) 1 RECCIVR 430, (1998) 118 PUN LR 376, (1998) 1 CURLJ(CCR) 237, (1998) 2 LANDLR 110, 1998 REVLR 1 75
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT N.K. Sodhi, J.
1. The solitary question that arises for consideration in this petition filed under Article 226 of the Constitution is whether the words "majority of not less than two-thirds of the votes of the members of the Gram Sabha present" would mean two-thirds of the valid votes polled by those present or two-thirds of the members present.
2. The undisputed facts in this case lie in a narrow compass and these may first be noticed. Petitioner was elected Sarpanch of Gram Panchayat Daultabad-Telpuri, District Gurgaon in December, 1994. Two-thirds of the Panches of this Gram Panchayat moved a requisition before the Sub Divisional Officer (Civil), Gurgaon who is the Prescribed Authority for convening an extraordinary general meeting of the Gram Sabha for the purpose of removing the Sarpanch by passing a 'no confidence motion' against her. Since the meeting was not convened, the requisi-tionists filed Civil Writ Petition 19462 of 1996 in this Court which was allowed by a Division Bench on 13-5-1997 and a direction issued to the Prescribed Authority to convene the meeting. In pursuance to the directions, a meeting of the Gram Sabha was held on 13-8-1997 which was attended by 741 members. The 'no confidence motion' moved by the Panchas was put to vote and the members who were present were asked to cast their votes through a secret ballot. The result as declared by the Sub-Divisional Officer (Civil) is as under:--
(i) Number of votes cast against the 'no confidence motion' = 214
(ii) Number of votes cast in favour of the motion = 428
(iii) Number of invalid votes = 99
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Total votes polled = 741
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The Sub Divisional Officer (Civil declared that the 'no confidence motion' was carried against the Sarpanch by the requisite majority and she stood removed from the office. Proceedings were accordingly recorded in the proceeding Book of the Gram Panchayat. It is against this removal that the present petition has been filed by the petitioner claiming that she was wrongly removed from office as, according to the result, the 'no confidence motion' was not carried by a majority of not less than two thirds of the votes of the members of the Gram Sabha present at the extraordinary general meeting. The claim of the petitioner is controverted by the respondents and it is contended that the motion was carried against the petitioner by the requisite majority.
3. Section 10 of the Haryana Panchayati Raj Act, 1994 (for short the Act) prescribes the term of office of a Sarpanch and also the manner in which a Sarpanch and Up-Sarpanch can be removed from their office, the relevant part of this section reads as tinder :--
"10. Term of office and motion of no-confidence against a Sarpanch and Up-Sarpanch. (1) Term of the office of Sarpanch and Up-Sarpanch shall be five years unless removed earlier in the manner prescribed.
(2) A Sarpanch may be removed from his office by a majority of not less than two-thirds of the votes of the members of the Gram Sabha present at its extraordinary general meeting convened by the authority as may be prescribed for the purpose and attended by not less than fifty per cent of its members;
Provided that no such meeting shall be convened unless a requisition in that behalf is made to the prescribed authority by a majority of not less than two-thirds of the Panches.
(3) to (4) xx xx xx xx xx
4. A perusal of sub section (2) makes it clear that a Sarpanch cannot be removed unless an extraordinary general meeting of the Gram Sabha is convened by a majority of not less than two-thirds of the panches and in that meeting a majority of not less than two-thirds of the votes of the members of the Gram Sabha present are cast in favour of the removal. In the case before us, the total number of members of the Gram Sabha who were present in the extraordinary general meeting was 741. Out of these, 428 cast their votes for the removal of the Sarpanch, 214 were against the removal whereas 99 votes were declared invalid.
5. Learned counsel for the petitioner contends that 428 members who voted for the 'no confidence motion' do not constitute two-thirds of the majority of the total number of members present and, therefore, the Sub Divisional Officer should have declared that the motion for removal against the petitioner as moved by the Panchas had failed. On the other hand, the argument of the counsel for the respondents is that the total number of valid votes polled were 642 and, therefore, number of votes polled in favour of the 'no confidence motion' is not less than two-thirds of the valid votes polled in favour of the motion and, thus, the Sub Divisional Officer was right in declaring that the motion had been carried and that the petitioner stood removed from the office of Sarpanch.
6. We have given our throughtful consideration to the rival contentions of the parties and are of the view that there is merit in what is contended by the learned counsel for the petitioner. The requirement of Sub-section (2) of Section 10 of the Act is that the motion of no confidence should be carriedby a majority of not less than two-thirds of the votes of the members of the Gram Sabha present. We cannot read this provision to mean that two-thirds of the valid votes of the members of the Gram Sabha present arc enough to carry the motion of no confidence. If it were so, the Legislature would have used the word 'valid' before the word 'votes' in Section 10(2) of the A and in the absence of such a word we cannot read it there. In the absence of the word 'valid', we would be doing violence to the language of Section 10(2) of the Act if it is read to mean that only two-thirds of the valid votes are enough to carry the 'no confidence motion'. Section 10(2) deals with the removal of an elected Sarpanch from his office and, therefore, the provisions thereof have to be construed strictly. Admittedly, 99 votes were declared invalid and these cannot be counted for the motion but these 99 persons were definitely present in the meeting and they have to be counted for computing the total presence in the meeting. Out of the remaining 642 valid votes, only 428 were cast in favour of the resolution and, therefore, these votes are less than two-thirds of the votes of the members of the Gram Sabha who were present. The motion must, therefore, be held to have been defeated as it had not been passed by the requisite majority.
7. Another argument advanced by the learned counsel for the respondents is that since the petitioner did not get more than one-third of the total votes of the members of the Gram Sabha present, therefore, she ought to fail and the motion of no confidence against her should be deemed to have been earned. In our opinion, this argument has no merit and the same must be rejected. The Legislature in its wisdom has provided that a Sarpanch can be removed when two-thirds of the members of the Gram Sabha present vote for his removal. In other words, the Panchas who move the 'no confidence motion' must obtain at least two-thirds majority of the persons who are present in the meeting of the Gram Sabha. The Sarpanch who is sought to be removed is not required to prove the negative by showing that he/she obtained more than one-third votes of the members present.
8. In the result, the writ petition succeeds and the same is allowed. It is declared that in the meeting of the Gram Sabha held on 13-8-1997 the motion of no confidence moved by the Ranches against the petitioner has not been carried by the requisite majority and, therefore, it has failed. There is no order as to costs.