Jammu & Kashmir High Court
Vikas Kumar Sharma vs Union Territory Of J&K And Others on 1 June, 2022
Author: Puneet Gupta
Bench: Puneet Gupta
Sr. No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode Srinagar)
Pronounced on: 01.06.2022
WP(C) No.1441/2020
CM No. 4753/2020
CM No. 4754/2020
CM No. 4883/2020
CM No. 4884/2020
CM No. 6913/2020
in
CCP(S) No.286/2020
Vikas Kumar Sharma .....Appellant(s)/Petitioner(s)
Through: Mr. Pranav Kohli, Sr. Advocate with
Mr. Ashish Sharma, Advocate
Vs
Union Territory of J&K and others ..... Respondent(s)
Through: Mr. Ravinder Gupta, AAG for R-1 to 5.
Mr. Vikram Sharma, Sr. Advocate with
Mr. Sachin Dev Singh, Adv. for R-6 to 11.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. The petition is taken up for final consideration at this stage with the consent of counsel for the parties.
2. The petitioner was elected as Chairman of Block Development Council, Block Lamberi, in the year of 2018 and is alleged to have been removed from the said post of Chairman of Block Development Council on 09.07.2020 illegally in pursuance to the No-Confidence Motion moved by the Sarpanches of Block Lamberi Tehsil, Nowshara on 28.06.2020 and 2 WP(C) No.1441/2020 along connected CMs. 29.06.2020. The petitioner is aggrieved of his removal from the post of Chairman. The petitioner during the pendency of the writ petition has moved an application seeking amendment of the prayer part wherein he has also challenged the minutes of the meeting held on 09.07.2020 wherein the petitioner was allegedly removed from the post of Chairman. The same has been taken on record. The petitioner has challenged his removal on the ground that the meeting was not been convened as per Rule 81 of Panchayati Raj Rules; that there was no cogent proof for moving a motion against the petitioner; that the BDO took the steps in pursuance to the motion moved by the private respondents in violation of Rule 81 of the Rules framed under The Jammu and Kashmir Panchayati Raj Act, 1989 and the BDO has sought proof of the allegations from the Sarpanches in the meeting which shows that there was not sufficient proof of the allegations by the time the No- Confidence Motion was carried against the petitioner.
3. The official respondents and the private respondents have separately filed the objections to the writ petition. The stand taken by the respondents is that the petitioner has been removed from the post of Chairman in terms of the provisions of The Jammu and Kashmir Panchayati Raj Act, 1989 and the Panchayati Raj Rules, 1996 (herein after called the Act and the Rules respectively). The petitioner stands 3 WP(C) No.1441/2020 along connected CMs. immediately removed from the post as envisaged under the Section 30 of the Act. The due procedure was followed by the respondents in process of removal of the petitioner from his post.
4. Heard learned counsel for the parties and perused the record. The petitioner has also filed written submissions in support of his contention.
5. The first contention raised by Mr. Pranav Kohli, learned senior counsel appearing for the petitioner is that the notice for No-Confidence Motion was not issued as per the rules framed under the Act. The perusal of the file reveals that the written notice seeking No-Confidence Motion was given to Secretary of the Council on 28.06.2020 and another copy of the same was addressed to Director Rural Development which was received by Panchayat Inspector Block Lamberi, on 29.06.2020. The other contention raised is that on receiving of the notice by the concerned authority the said authority could not take further steps before ten days of receiving of notice and therefore the steps initiated by the authority on the receiving of the notice within this period is not inconsonance with the Rule 81 and its non-compliance goes to the root of the case and fall out of the same is that the proceedings which later on took place have no validity. The other side has contended that there is no flaw in the meeting notice convened by the competent authority and therefore the petitioner cannot assail the same. The petitioner has cited the decision 4 WP(C) No.1441/2020 along connected CMs. of this Court in WP(C) No. 1029/2020 decided on 13.07.2020 titled Kamlesh Kumari Vs. Union Territory of J&K in support of his contention. Rule 81 of the Rules which pertains to procedure to be adopted for removal of Sarpanch or Naib Sarpanch is applicable for removal of Chairman/Vice Chairman of BDC as is evident from Rule 107 of the rules. As per Rule 81 the Secretary of the Panchayat is required to take steps to convene the special meeting on the motion moved for the removal of the Chairman not earlier than ten days and not later than twenty days from the receipt of the motion. Admittedly, the steps have been taken by the Secretary within ten days of receipt of the notice. Prima facie the word 'shall' occurring in the said rule may mean that the Secretary is bound not to take any step before ten days of the receipt of the notice. But what is an important is that if the steps taken within ten days of receipt of the Motion the same caused prejudice to the petitioner and worked to his disadvantage and further whether any arbitrariness is found in the action of the Authority while doing so. The Secretary of the Council has issued the notice on the day the notice of motion for removal of the petitioner was received. It is not prima facie made out nor alleged in the petitioner that the Secretary bore any grudge or animosity against the petitioner which accelerated the process for convening the special meeting of the BDC. In the absence of the same it does not lie in the mouth of the petitioner to agitate the plea. The judgment (supra) 5 WP(C) No.1441/2020 along connected CMs. cited by the learned counsel for the petitioner does not come to rescue of the petitioner in the present case. Every irregularity cannot simply wipe out the action taken only for the reason that it has incidentally worked against some person, petitioner in the present petition. The observations made in the said judgement were in the context of the facts of the said case. The court does not find the above plea of the petitioner as tenable one.
6. The main contention raised on behalf of the petitioner is that the conditions which are required to be met before the Chairman is to be removed from the post is the compliance of Section 30 read with Section 81 and 107 of the Rules. The No-Confidence Motion can assume legality only in case the person who is sought to be removed is held liable for gross misconduct, neglect of duty or disqualification prescribed under Section 6 of the Act as ordained in Section 30 of the Act. None of the conditions stood met in the present case. The learned counsels appearing for the respondents submit that the Sarpanches participated in the discussion and only after the conditions were met under Section 30 that the No-Confidence Motion was carried out against the petitioner.
7. The perusal of the Minutes of the meeting held on 09.07.2020 reveals that the discussion was held in the meeting and after the allegations were raised against the petitioner qua his actions as BDC Chairman that 6 WP(C) No.1441/2020 along connected CMs. the No-Confidence Motion came to be passed against the petitioner. The proceeding are not of judicial or quasi judicial wherein it has to be emphatically held that the petitioner is held to be guilty of one or more of the conditions as envisaged under Section 30 of the Act. The argument of the petitioner that the allegations have to be strictly proved before the motion is put to vote cannot be accepted. In case the same is to be accepted then there can hardly be any No-Confidence Motion which can be put to vote and very concept of the rights of the Members to move the No-Confidence Motion against the concerned person shall for all practical purposes stand defeated. The court will not normally assess the allegations with magnifying glass and apply Rules of strict proof while looking into Section 30 of the Act read with Rule 81 vis-à-vis' as contemplated under criminal law for proving the case against the accused 'beyond shadow of doubt'. The court need not read beyond what is mentioned in the Rules. There appears to be deliberations in the meeting and thereafter the resolution of No-Confidence Motion came to be passed. No specific format or wording is required to be in place so as to express the Minutes of the Meeting. No fault can be found in the proceedings of 09.07.2020. The senior counsel for the petitioner has referred to the observations of the District Panchayat Officer wherein it is mentioned that he directed the Sarpanches to submit the evidence qua the allegations levelled against the petitioner and therefore submits 7 WP(C) No.1441/2020 along connected CMs. that the vote of No-Confidence Motion passed against the petitioner was not valid one. The observation made in the last part of the Minutes of the Meeting on 09.07.2020 has not much significance as the observation is made after the No-Confidence Motion came to be passed against the petitioner. In the case the Presiding Officer of the meeting was not satisfied with the deliberations/debate which took place in the meeting there was no reason for the Presiding Officer to go ahead with the vote on No-Confidence Motion. Once the No-Confidence Motion was carried out against the petitioner the observation made after the No-Confidence Motion lost its significance.
8. The petitioner has also invited the attention of the court towards the communication dated 08.08.2020, addressed by the District Panchayat Officer, Rajouri to District Development Commissioner, Rajouri wherein it is mentioned that the grounds of removal of Chairman as per Section 30 of the Act are not covered in the instant case. Again, this communication which has been addressed after one month of the meeting wherein the petitioner was removed from the Chairmanship does not hold any meaning and is not germane qua what transpired in the meeting of 09.07.2020.
9. The petitioner has referred to the judgment of Gujarat High Court reported in 2018 0 Supreme (Guj) 671 which refers to the time period 8 WP(C) No.1441/2020 along connected CMs. within which the No-Confidence Motion should not be carried out once the same earlier been defeated. This authority has no relevance so far as the issues that arise in the present petition.
10. Looked from any angle, the petition is devoid of merit and is dismissed.
This disposes of all the applications filed during the pendency of the writ petition.
(Puneet Gupta) Judge Jammu 01.06.2022 Shammi Whether the order is speaking: Yes Whether the order is reportable: Yes