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2003 DIGILAW 1402 (PNJ)

Jagtar Singh v. State Of Haryana

2003-10-09

G.S.SINGHVI, S.S.SARON

body2003
Judgment G.S.Singhvi, J. 1. In this petition, the petitioner has prayed for quashing order dated 24.6.2003 (Annexure P4) passed by Deputy Commissioner, Kaithal (respondent No. 2) vide which he was removed from the post of Sarpanch, Gram Panchayat, Baupur, District Kaithal and order dated 16.7.2003 (Annexure P5) vide which Financial Commissioner and Principal Secretary to Government, Haryana, Development and Panchayats Department (hereinafter described as the Appellate Authority) dismissed the appeal filed by him against the order of removal. The petitioner was elected as Sarpanch of Gram Panchayat, Baupur in March, 2000. After about two years, District Development and Panchayat Officer, Guhla sent letter dated 8.2.2002 requiring him to take action against the illegal occupants of panchayat land. By another letter of March, 2002, he directed the petitioner to file petitions under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the 1961 Act) for ejectment of the unauthorised occupants. However, no action could be taken against some of the so-called unauthorised occupants because they had obtained decrees from the civil Courts declaring them as owner of the land in their possession. Against others, action could not be taken because of non-availability of funds. On 26.1.2003, the Gram Panchayat passed resolution Annexure P3 for obtaining grant of Rs. 10,000/- from the Panchayat Samiti for instituting cases for shamlat land and for challenging the decrees of the civil Courts in the Higher Court, but the required funds were not released. Notwithstanding this, four petitions were filed by the Gram Panchayat for ejectment of the unauthorised occupants. In the meanwhile, respondent No. 2 got a preliminary enquiry conducted through Block Development and Panchayat Officer, Guhla about the petitioners alleged failure to take action against unauthorised occupation of panchayat land. He reported that out of 762.5 acres of shamlat land 396.6 acres had been decreed in the names of different persons and the remaining land was in possession of unauthorised occupants, but the Sarpanch had not taken action for getting the decrees set aside or for ejectment of unauthorised occupants. On receipt of the report of the preliminary enquiry, respondent No. 2 issued order dated 22.1.2003 for holding regular enquiry against the petitioner under Section 51(3) of the Haryana Panchayat Raj Act, 1994 (for short, the 1994 Act) and appointed Sub Divisional Officer (Civil), . On receipt of the report of the preliminary enquiry, respondent No. 2 issued order dated 22.1.2003 for holding regular enquiry against the petitioner under Section 51(3) of the Haryana Panchayat Raj Act, 1994 (for short, the 1994 Act) and appointed Sub Divisional Officer (Civil), . Guhla as the enquiry officer The latter submitted report with the finding that the petitioner had failed to take action to get the decrees set aside and for eviction of unauthorised occupants of shamlat land. Respondent No. 2 accepted the report of the Sub Divisional Officer and issued notice dated 24.3.2003 to the petitioner to show cause against his proposed removal from the post of Sarpanch and asked him to appear on 1.4.2003 for personal hearing along with his evidence. However, the hearing could not take place on the date fixed and the petitioner was again called for personal hearing on 17.4.2003. On that date, the case was adjourned to 20.5.2003. Finally, the proceedings were held on 27.5.2003, the petitioner appeared before respondent No. 2 and stated that he had filed four cases against the illegal occupants, but action for getting the decrees set aside could not be taken due to paucity of funds, Respondent No. 2 rejected the plea of the petitioner and passed order Annexure P4 for his removal from the post of Sarpanch by making the following observations:- "A perusal of this case reveals that the Sarpanch has filed four cases against the illegal occupants in the concerned courts after the regular enquiry. But thereafter Sarpanch has taken no action for setting aside the decrees nor has filed any case in the concerned court for removal of illegal possession. The Sarpanch did not even put forward a proposal for setting aside of the decrees or removal of illegal occupants. Thus, it is clear that the Sarpanch is getting 762.5 acres of shamlat misappropriated in collusion with the illegal occupants and on that account, the Gram Panchayat is suffering heavy financial loss. In view of the above, the continuance of the Sarpanch in his office is not in public interest." 2. The petitioner challenged order Annexure P4 by filing an appeal under Section 51(5) of the 1994 Act. In view of the above, the continuance of the Sarpanch in his office is not in public interest." 2. The petitioner challenged order Annexure P4 by filing an appeal under Section 51(5) of the 1994 Act. He pleaded that the order passed by respondent No. 2 removing him from the post of Sarpanch was vitiated due to violation of the rules of natural justice, in-as-much as, copy of the enquiry report had not been given to him; that before January, 2003, no notice was issued by the District Development and Panchayat Officer requiring him to take action to get the decrees set aside or to file ejectment petitions; that the Gram Panchayat had already initiated ejectment proceedings under the 1961 Act against a number of persons; that the Gram Panchayat had passed resolution dated 26.2.2003 for release of a sum of Rs. 10,000/- for initiating legal proceedings against the unauthorised occupants, but no money was released in its favour; that action for getting set aside the decrees could not be taken due to paucity of funds; that there is no provision in the 1961 Act under which the Sarpanch alone is responsible for taking action against the unauthorised occupants and that the finding recorded by the enquiry officer about the unauthorised occupants of shamlat land measuring 762.5 acres was factually incorrect. The appellate authority dismissed the appeal by assigning the following reasons:- "The impugned order has been passed pursuant to the regular enquiry of the Sub Divisional Officer (Civil), Guhla. Therefore, the argument regarding non supply of copy of the report of the Block Development and Panchayat Officer, Guhla is irrelevant. Moreover the appellant did not demand this copy during the course of his personal hearing by the respondent before passing the impugned order. Even otherwise vide ruling cited as 1971 P.L.J. 459 it - is not obligatory on the part of the respondent to furnish the report of the enquiry officer to the appellant and as per the ruling cited as 1968 P.L.J. 679 failure to supply a copy of the enquiry report does not amount to denial of reasonable opportunity. Before passing the impugned order the appellant was heard in person by the respondent and his fact finds mention in the impugned order as well, which has been controverted by the appellant at all. Before passing the impugned order the appellant was heard in person by the respondent and his fact finds mention in the impugned order as well, which has been controverted by the appellant at all. Therefore, the argument to the effect that the appellant was not given proper opportunity of hearing is absolutely against the record and amounts to suppression of material fact. Therefore, vide Full Bench Authority cited as 1978 P.L.J. 373 this appeal deserves dismissal on this very ground. Study of the record, available on the file reveals that the Block Development and Panchayat Officer, Guhla wrote a letter to the appellant bearing No. 41 dated 4.1.2002 asking him to take action against encroachers of panchayat land. Contents of this letter reveal that the said letter is a reminder with reference to a number of earlier oral and written directions in this regard, therefore, the arguments to the effect that prior to 22.1.2003 no notice or order issued by the District Development and Panchayat Officer requiring the appellant to take action for setting aside of the decrees or filing ejectment petitions had been received by the appellant and that no date has been given as to when the appellant was directed by the District Development and Panchayat Officer to take action are absolutely against the record and amount to suppression of material facts. Therefore, again vide Full Bench Authority cited as 1978 P.L.J. 373 this appeal deserves dismissal on this very ground. The alleged wrong mention, if any, of area of the land in the notice and the impugned order does not render the impugned order bad in the eyes of law vide ruling cited as I.L.R. 1966(2) Punjab 20, Institution of four cases by the appellant immediately prior to the regular enquiry report is not enough to exonerate the appellant of the charge levelled against him. The Government of Haryana has provided the services of at least one Legal Officer in each and every district in the State of Haryana to institute/defend cases for and on behalf of Gram Panchayats free of cost. Therefore, a huge sum to the tune of Rs. 10,000/- was not required at all for institution of suits for getting the collusive decrees set aside and filing of applications for ejectment under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 . Therefore, a huge sum to the tune of Rs. 10,000/- was not required at all for institution of suits for getting the collusive decrees set aside and filing of applications for ejectment under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 . Resultantly, the argument to the effect that the gram panchayat had passed a resolution on 26.1.2003 requesting for a sum of Rs. 10,000/- is no excuse in the eyes of law. Mere argument to the effect that it has been wrongly observed in the impugned order that a proposal to take action against the illegal occupants had not been passed by the gram panchayat is not enough to rebut the finding of the respondent to the effect that the appellant did not get even a resolution passed to get rid of the encroachers of the panchayat lands and to get collusive decrees set aside because the impugned order has been passed pursuant to regular enquiry based upon statements of number of witnesses including the appellant himself and perusal of the relevant record. As per Clause (iii) of Section 19 of the Haryana Panchayati Raj Act, 1994 the appellant, as Sarpanch has the general responsibility for the executive and financial administration of the gram panchayat. Therefore, the arguments to the contrary are absolutely against the said mandatory statutory provision. In this way, viewed from any angle, this appeal deserves dismissal." 3. Sh. Jagdev Singh argued that removal of the petitioner from the post of Sarpanch should be declared illegal and quashed because before passing the impugned order, respondent No. 2 did not give him opportunity of hearing as required by Section 51(3) of the 1994 Act. He submitted that the petitioner was not associated with the enquiries conducted by the Block Development and Panchayat Officer and Sub Divisional Officer, (Civil), Guhla and copy of report prepared by the latter which constituted the foundation of the order of removal was not supplied so as to enable him to explain his position qua the adverse findings recorded therein. Sh. Jagdev Singh then referred to Section 19 of the 1994 Act and argued that the petitioner could not be held responsible for not taking action for ejectment of the unauthorised occupants because no funds were available with the Gram Panchayat. Sh. Jagdev Singh then referred to Section 19 of the 1994 Act and argued that the petitioner could not be held responsible for not taking action for ejectment of the unauthorised occupants because no funds were available with the Gram Panchayat. He further argued that the petitioner could not have been penalised on account of the failure of the Gram Panchayat to institute proceedings for setting aside of the decrees passed between the years 1990 and 1995 by the Civil Courts in favour of the so-called unauthorised occupants of shamlat land. The learned counsel assailed the appellate order on the additional ground that the reasons assigned by the Appellate Authority for dismissing the appeal are irrelevant and extraneous. He pointed out that the petitioner was never made aware of the appointment of. Legal Officer, who could conduct/defend the cases of the Gram Panchayat without charging fee and the Appellate Authority committed a serious error by rejecting his plea of paucity of funds for prosecuting the cases. 4. Sh. Jaswant Singh, learned Senior Deputy Advocate General fairly conceded that copy of the enquiry report submitted by Sub Divisional Officer (Civil), Guhla was not made available to the petitioner and he was not given opportunity to controvert the findings contained therein, but argued that the petitioner cannot complain of the violation of Section 51(3) of the 1994 Act or the rules of natural justice because he never made request for supply of the copy of enquiry report and no prejudice was caused to him on account of non-supply thereof. In support of his argument, Sh. Jaswant Singh relied on the judgment of this Court in Dalip Singh v. Director of Panchayats, Punjab and Ors., 1971 P.L.J. 459. We have given serious thoughts to the respective arguments. Section 51(3) of the 1994 Act, which empowers the Director or the Deputy Commissioner concerned, to remove a Sarpanch or Panch on the grounds specified in Clause (a) to (e), thereof, reads as under;- "51. Suspension and removal of a Sarpanch or Panch:- (1) xx xx xx xx xx xx xx xx xx (2) xx xx xx xx xx xx xx xx xx 3. Suspension and removal of a Sarpanch or Panch:- (1) xx xx xx xx xx xx xx xx xx (2) xx xx xx xx xx xx xx xx xx 3. The Director or the Deputy Commissioner concerned may, after such enquiry as he may deem fit and after giving an opportunity of being heard to a Sarpanch or a Panch, as the case may be ask him to show cause against the action proposed to be taken against him and by order remove him from his office. a) if after his election he is convicted by a criminal court for an offence involving moral turpitude and punishable with imprisonment for a period exceeding six months; b) if he was disqualified to be a member of the Gram Panchayat at the time of his election; c) if he incurs any of the disqualifications mentioned in Section 175 after his election as member of the Gram Panchayat; d) if he is absent from five consecutive meetings of the Gram Panchayat without prior permission or leave of Gram Panchayat; and e) if he has been guilty of misconduct in the discharge of his duties and his continuance in the office is undesirable in the public interest. 4) to (6) xx xx xx xx xx xx xx xx " 5. An analysis of the above reproduced provisions shows that a Sarpanch can be removed if after election he is convicted by a criminal court for an offence involving moral turpitude and punishable with imprisonment for a period exceeding six months or if he was disqualified to be a member of the Gram Panchayat at the time of election or if after his election he incurs any of the disqualifications specified in Section 175 or if he is absent from five consecutive meetings of the Gram Panchayat without prior permission or leave of the Gram Panchayat or if he is guilty of misconduct in the discharge of his duties and his continuance in the office is not considered desirable in public interest. The expression "opportunity of being heard" appearing in Sub-section (3) of Section 51 has not been defined in the 1994 Act and the rules made thereunder, but keeping in view the fact that the Sarpanch/Panch holds an important elective position in the Gram Panchayat which is an institution of self-government, the said expression has to be so interpreted as to enable the Sarpanch or Panch to effectively defend himself against the action proposed to be taken by the competent authority. This necessarily means that he has to be informed of the specific allegation/charge on which action is proposed to be taken against him and he is supplied with the adverse material sought to be used by the competent authority and an opportunity is given to him to rebut/controvert the same. The report prepared on the basis of enquiry held against a Sarpanch or a Panch with the findings that charges levelled against him have been proved constitutes such material. Therefore, when a Sarpanch or Panch is sought to be removed under Section 51(3) of the 1994 Act by relying on the report prepared on the basis of the enquiry held against him, the competent authority is duty-bound to give him a copy of such report and an opportunity to represent against the findings recorded therein. To put it differently, an order passed for removing a Sarpanch or Panch without giving him copy of enquiry report and an opportunity to represent against the findings contained therein is liable to be voided on the ground of violation of Section 51(3) of the 1994 Act and the rules of natural justice. 6. The question whether the adverse material collected against a person which is used for passing an order adversely affecting him is required to be disclosed to him before passing final order was also considered by the Supreme Court in Election Commission of India and Anr. v. Dr. Manmohan Singh and Ors., (2000)1 S.C.C. 591 in the backdrop of an enquiry held by the Electoral Registration Officer doubting the correctness of the declaration made by the respondent that he was a resident of the particular constituency. The High Court accepted the plea of the respondent that the enquiry being held against him was vitiated due to violation of the rules of natural justice. The High Court accepted the plea of the respondent that the enquiry being held against him was vitiated due to violation of the rules of natural justice. While upholding the decision of the High Court, their Lordships of the Supreme Court observed as under;- "By reason of Sub-section (4) of Section 20 of the R.P. Act, 1950 a person who holds a declared office is deemed by law to be on any date, an ordinary resident of a constituency in which he would ordinarily have resided, but for the fact that he holds such declared office. For this purpose, by reason of Sub-section (5) of Section 20, the statement of the holder of the declared office, made in the form and verified as required, must be accepted as correct "in the absence of evidence to the contrary". The statement of a declared office is not always to be accepted as correct. It can be questioned, but only if the Electoral Registration Officer has "evidence to the contrary". Therefore, to question the correctness of the statement as to his ordinary residence made by the holder of a declared office, the Electoral Registration Officer must be in possession of evidence to the contrary. That is a pre-requisite for the non-acceptance of the statement of the holder of a declared office. If the Electoral Registration Office has such evidence, he must inform the holder of a declared office accordingly and state the substance of such evidence so that the holder of the declared office may rebut it in the course of the inquiry on facts that must follow. The inquiry has to be "decided" on the facts of the case; its quasi-judicial character is clear". (Underlining is ours) in Sona Builders v. Union of India, (2001)10 S.C.C. 280, their Lordships of the Supreme Court considered whether no-supply of the relevant documents had the effect of vitiating the compulsory purchase of immovable property under the Income Tax Act and held as under:- "Moreover, the notice, alleged that the apparent consideration of the transaction was law based on the sale instance mentioned therein. To be able adequately to respond to that allegation, it was necessary for the appellant to ascertain what the merits and demerits were of that property which had been auctioned, and to know what were the terms and conditions of the auction. To be able adequately to respond to that allegation, it was necessary for the appellant to ascertain what the merits and demerits were of that property which had been auctioned, and to know what were the terms and conditions of the auction. No copy of any document relating to the sale instance was furnished by the Appropriate Authority to the appellant alongwith the notice or at any time whatsoever." 7. We may also usefully make a reference to the Constitution Beach judgment of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, J.T. 1993(6) S.C.C. 1. The issue considered in that case was whether it is incumbent upon the disciplinary authority to furnish a copy of the enquiry report to the delinquent before passing the order of punishment. Their Lordships of the Supreme Court held that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and it is a breach of principle of natural justice to deny the said right. Their Lordships further held that the law laid down in Union of India v. Mohd. Ramzan Khan, 1991(1) S.C.C. 588 would apply to the employees in all establishments whether government or nongovernment, public or private irrespective of the fact that there are rules governing the disciplinary proceedings or not and whether they expressly provide for the furnishing of a copy of the report or are silent on the subject. Still further, their Lordships held that since the employee has a right to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to consider his failure to ask for the report, as waiver of his right. 8. Though the judgments in Kanunakars case (supra) was based on the interpretation of Article 311 of the Constitution of India, in our opinion the ratio thereof deserves to be applied with full rigour to the proceedings held under Section 51(3) of the 1994 Act because removal of a Sarpanch or Panch from his elective office is an extremely serious matter, in as much as it not only affects him, but also the people who elected him to the said office. Therefore, whenever an order of removal of a Sarpanch or Panch is passed under Section 51(3) of the 1994 Act on the basis of an enquiry conducted/got conducted by the competent authority, it is imperative for such authority to give a copy of the enquiry report to the concerned Sarpanch or Panch and also an opportunity to explain his position qua the adverse findings recorded in the enquiry report. The judgment of Dalip Singhs case (supra) in which the learned Single Judge held that non-supply of copy of enquiry report did not have the effect of vitiating the order of removal because no demand was made by the Sarpanch concerned cannot be regarded as good law in view of the ratio of the judgment of the Constitution Bench in Karunakar s case (supra). Before closing this aspect of the case, we consider it necessary to make a reference to the judgment of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and Ors., A.I.R. 1967 S.C. 1269. In that case, the Supreme Court clearly recognised the applicability of the rules of natural justice even in purely administrative matters and observed ;- "An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case." Their Lordships further held that the person against whom the order is to be passed must be apprised of the evidence sought to be used against him and given an opportunity to explain the same. This is clearly borne out from the following observations;- "It is true that the order is administrative in character, but even as administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice and after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. " 9. On the basis of the above said discussion, we hold that non-supply of copy of enquiry report to the petitioner has resulted in denial of opportunity of hearing envisaged under Section 51(3) of the 1994 Act and on that ground, the impugned orders are liable to be quashed. We are further of the view that the petitioner could not be panalised for having failed to take action for getting set aside the decrees passed by the Civil Courts between 1990 and 1995 in favour of the alleged unauthorised occupants of shamlat land. We are further of the view that the petitioner could not be panalised for having failed to take action for getting set aside the decrees passed by the Civil Courts between 1990 and 1995 in favour of the alleged unauthorised occupants of shamlat land. A reading of the Annexures P1 and P2 shows that Additional Senior Sub Judge, Guhla had passed decrees in favour of the plaintiffs declaring them as owners of the land in their possession. Gram Panchayat, Baupur was a defendant in both the cases. Those, who were controlling the Gram Panchayat at the relevant time did not take action for getting the decrees set aside within the statutory period of limitation. Therefore, the petitioner who was elected as Sarpanch in March, 2000 cannot be blamed for not taking action against the decree-holders. On the issue of initiation of proceedings against the other unauthorised occupants, we find that the Gram Panchayat had filed petitions under Section 7 of the 1961 Act in four cases. It had sought funds for taking action in other cases, but the amount was not released by the Panchayat Samiti. Therefore, it cannot be said that the petitioner had committed any such misconduct which rendered his continuance in the office undesirable or contrary to public interest. The respondents have not controverted the fact that the petitioner was never apprised by the competent authority that there was a Law officer, who could be approached for filing cases on behalf of the Gram Panchayat. Therefore, the Appellate Authority was clearly in error when it held that the plea taken by the petitioner regarding paucity of funds was a device to avoid the consequences of his failure to take action against the unauthorised occupants. For the reasons mentioned above, the writ petition is allowed and orders Annexures P4 and P5 are quashed. However, we give liberty to the competent authority to pass fresh orders in accordance with law, albeit after consideration plea of the petitioner that he had not committed any misconduct.