Punjab-Haryana High Court
Karnail Kaur vs State Of Punjab And Others on 10 January, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.8718 of 2011 1
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.8718 of 2011
Date of decision:10.01.2013
Karnail Kaur
...Petitioner(s)
Versus
State of Punjab and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.Manish Singla, Advocate,
for the petitioner.
Mr.Pankaj Mulwani, DAG, Punjab.
Mr.Vijay Jindal, Advocate,
for respondent No. 4.
-.-
RAMESHWAR SINGH MALIK, J. (Oral)
The record, which was ordered to be sealed by this Court vide order dated 2.8.2012, has been opened in the Court today.
In response to the show-cause notice issued vide order dated 2.8.2012, as to why the contempt proceedings be not initiated against respondent No.4, he has filed his reply by way of affidavit dated 3.8.2012. The relevant record has been perused and the same is ordered to be handed over to learned counsel for the State.
Learned counsel for the parties are ad idem that except Annexure P-3, which was issued by respondent No.4 in his official CWP No.8718 of 2011 2 capacity vide letter no.1536 dated 27.8.2010, he did not receive any other letter from the Panches, to move no confidence motion against the petitioner-sarpanch. This is not even the case of the petitioner. However, it seems that somehow or other, a wrong impression was created to the effect that respondent No.4 has, as a matter of fact, received another letter dated 27.8.2010 from the Panches to move 'No Confidence Motion' against the petitioner, thereby compelling this Court to pass the order dated 2.8.2012.
After hearing the learned counsel for the parties and going through the record of the case, the wrong impression created on 2.8.2012, which was factually incorrect, has been dispelled. In this view of the matter, this Court is of the considered opinion that no further proceedings are warranted, against respondent No.4, in this regard In view of the above, notice issued vide order dated 2.8.2012 against respondent No.4 to show-cause as to why contempt proceedings be not issued against him, is hereby ordered to be dropped. Main case The instant petition is directed against the order dated 3.9.2010 (Annexure P-4), vide which the petitioner was ordered to be dismissed from the post of Sarpanch, as `No Confidence Motion' was allegedly carried out against her.
The basic facts, which need to be noted for the purpose of disposal of this case, are that the petitioner was elected as a Sarpanch of Gram Panchayat Bhatiwal Kalan, Block Bhawanigarh, Tehsil and District Sangrur, on 19.7.2008 and consequently she assumed the office of CWP No.8718 of 2011 3 Sarpanch on 25.8.2008. A `No Confidence Motion' was sought to be brought against the petitioner, vide Annexure P-1 dated 23.7.2010. On the basis of notice of 'No Confidence Motion' (Annexure P-1), a meeting was convened on 13.8.2010 under the Chairmanship of Block Development and Panchayat Officer, Bhawanigarh, in view of Section 19 of The Punjab Panchayati Raj Act, 1994 (Punjab Act No.19 of 1994) (for short `the Act). `No Confidence Motion' was allegedly carried out against the petitioner. But since statutory period of two years was yet to expire, the meeting was postponed, however, no actual date was mentioned in Annexure P-2, for the next meeting. Thereafter, respondent No.3 issued the communication vide letter no.1536 dated 27.8.2010 (Annexure P-3), convening an urgent meeting for passing of resolution of `No Confidence Motion' against the petitioner-Sarpanch, allegedly on the basis of initial letter dated 23.7.2010 (Annexure P-1). Consequently, vide letter dated 27.8.2010 (Annexure P-3), the meeting was ordered to be convened on 3.9.2010, in the office of respondent No.3 at 12' o clock. Thereafter, on 3.9.2010, `No Confidence Motion' was allegedly carried out against the petitioner and the impugned order (Annexure P-4) was passed by respondent No.3.
Feeling aggrieved against the above-said impugned order, the petitioner has approached this Court by way of present writ petition, raising more than one issues.
Learned counsel for the petitioner submits that mandatory provisions of law contained in Section 19 of the Act have been glaringly violated. He further submits that admittedly, the period of two years was CWP No.8718 of 2011 4 yet to elapse, before 'No Confidence Motion' was moved against the petitioner, vide Annexure P-1. He further submits that `No Confidence Motion' dated 23.7.2010 (Annexure P-1) was liable to be out-rightly ignored because it was not in conformity with law. However, respondent No.3 proceeded in most arbitrary and illegal manner while considering the `No Confidence Motion' on 13.8.2010 (Annexure P-2). Learned counsel for the petitioner next contended that even the notice issued by respondent No.3 on 27.8.2010 vide Annexure P-3 was also contrary to the mandatory provisions of law contained in Section 19(ii) of the Act, inasmuch as the notice ought to have been of clear 7 days, whereas notice dated 27.8.2010 (Annexure P-3) was issued for 3.9.2010 and hence the same was not giving clear 7 days.
Learned counsel for the petitioner further submits that since the mandatory provisions of law contained in Section 19 of the Act have been glaringly violated, the impugned order (Annexure P-4) was liable to be set aside. Learned counsel for the petitioner also relies upon the judgments of this Court attached at Annexures P-5 and P-6, besides, the Division Bench judgment dated 29.2.2010 rendered in LPA No.2157 of 2011( Harjinder Singh and others v. State of Punjab and others).
Notice of motion was issued and in response thereto, reply by way of affidavit of Surinder Singh Dhillon, Block Development and Panchayat Officer, Bhawanigarh, District Sangrur, was filed on behalf of respondent Nos. 1 to 3.
Learned counsel for the State has very fairly stated that in view of the violation of mandatory provisions of law contained in Section CWP No.8718 of 2011 5 19 of the Act, he was not in a position to defend the impugned order. Similar stand has been fairly taken by learned counsel for respondent No.4, as well.
After hearing the learned counsel for the parties, going through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present petition deserves to be allowed. To say so, reasons are more than one which are being recorded hereinafter.
Twin issues that fall for consideration of this Court are:
(i) whether 'No Confidence Motion' moved against the petitioner vide Annexure P-1 could have been entertained before the expiry of statutory period of two years and (ii) whether the notice (Annexure P-3) issued by respondent No.3, which was admittedly short of statutory period of 7 clear days, was also in clear violation of Section 19 (ii) of the Act. Since both the issues involved herein pertain to the violation of provisions of Section 19 of the Act, it would be appropriate to reproduce Section 19 of the Act, which reads as under:-
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 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.CWP No.8718 of 2011 6
(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 member 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.
A bare perusal of the provisions of Section 19(i) and proviso thereto as well as Section 19 (ii) of the Act would clearly establish that since 'No Confidence Motion' was admittedly moved before the expiry of statutory period of two years, it was liable to be ignored and could not have been entertained by respondent No.3, for consideration. Similarly, the notice dated 27.8.2010 issued by respondent No.3 vide Annexure P-3, was short of the statutory period of seven clear days and on the basis CWP No.8718 of 2011 7 thereof, no meeting for considering `No Confidence Motion' on 3.9.2010, could have been convened. Further, respondent No.3 was not even competent to issue notice dated 27.8.2010 (Annexure P-3), because there was no fresh request of `No Confidence Motion', received from the requisite number of Panches against the petitioner, after the expiry of statutory period of two years.
After giving anxious consideration to the above-said fact situation of the present case, this Court feels no hesitation to conclude that the entire exercise carried out against the petitioner was without jurisdiction. The petitioner was holding the post of Sarpanch after her due election. The provisions of law contained in Section 19 of the Act were mandatory in nature, till it was available on the statute book. The proceedings regarding considering `No Confidence Motion' against the petitioner, ought to have been conducted in the manner as provided under Section 19 of the Act. Since the proceedings of 'No Confidence Motion' have been conducted against the petitioner in clear violation of the mandatory provisions of Section 19 of the Act, 1994, the impugned order is not sustainable in law.
The view taken by this Court also also finds support from the judgments of this Court rendered in Gurdashan Singh v. State of Punjab and others (CWP No.21742 of 2010) (Annexure P-5) and Sukhwinder Kaur v. State of Punjab and others (CWP No.19787 of 2010) (Annexure P-6), besides the Division Bench judgment of this Court rendered in Harjinder Singh's case (supra).
The Division Bench judgment of this Court in Harjinder CWP No.8718 of 2011 8 Singh's case (supra) observed as under:-
"7. Now, the question arises as to whether before the aforesaid date, when Section 19 of the Act was omitted, a valid `no confidence motion' was carried against respondent No.5 or not. We are of the opinion that in this regard, the learned Single Judge has rightly come to the conclusion that no valid `no confidence motion' was carried against respondent No.5 under Section 19 of the Act. It has been held that the impugned resolution of `no confidence motion' dated 1.11.2010 was contrary to Section 19 of the Act, therefore, it was not valid. It has not been disputed before us that respondent No.5 was elected as Sarpanch of the Gram Panchayat on 19.7.2008 and the application for convening a meeting of the Gram Panchayat for discussing and taking decision on the `no confidence motion' was made to the Block Development and Panchayat Office on 31.5.2010. By that time, respondent No.5 had not completed a term of two years in the office of Sarpanch. It is mandatory requirement under Section 19 (1) of the Act that `no application shall be made to the Block Development and Panchayat Office unless a period of two years has elapsed from the date on which the Sarpanch assumed his office.' It is also admitted case that on that application, the first time meeting was called for 4.6.2010, which was adjourned time and again, i.e. for CWP No.8718 of 2011 9 11.6.2010, 15.6.2010, 29.10.2010 and then finally for 1.11.2010. On 1.11.2010, `no confidence motion' was carried against respondent No.5. It is admitted position that meeting was convened for considering `no confidence motion' on 29.10.2010, but the said meeting was not held and thereafter, another meeting was convened for 1.11.2010, for which no seven clear days notice was given. Therefore, the learned Single Judge has rightly held that the meeting held on 1.11.2010 was not a properly convened meeting and any resolution passed in the said meeting was not legal."
Respectfully following the law laid down by the Division Bench of this Court in Harjinder Singh's case (supra), it is unhesitatingly held that the impugned order suffers from patent illegality.
Considering the peculair facts and circumstances of the case noted above, coupled with the reasons aforementioned, the impugned order dated 3.9.2010 (Annexure P-4) is set aside.
Resultantly, the instant writ petition is allowed.
10.01.2013 (RAMESHWAR SINGH MALIK) mks JUDGE