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2004 DIGILAW 1213 (PNJ)

Darshan Singh v. State of Haryana

2004-11-01

BINOD KUMAR ROY, G.S.SINGHVI, V.K.BALI

body2004
ORDER Binod Kumar Roy, C.J.- The petitioner, who is the Sarpanch of Gram Panchayat, Seonsar, Tehsil Pehowa, District Kurukshetra, State Haryana assails validity of the order dated July 31, 2002 passed by the Financial Commissioner & Secretary to the Government Haryana, Development and Panchayats Department, Chandigarh as contained in Annexure P-11 allowing the Appeal No. 81 of 2002 filed by respondent No. 5 and disqualifying him (the petitioner) to continue as Sarpanch and consequently declared his office to be vacant. While allowing the Appeal, the Financial Commissioner has also over-ruled the preliminary objection raised by the petitioner that respondent No. 5 has no locus to file his Appeal. 2. Vide order dated 27.2.2003 this writ petition was admitted for its hearing by a Full Bench, which is reproduced below :- "Whether a person, at whose instance enquiry is initiated against the Sarpanch or Panch of a Gram Panchayat under Section 51 of the Haryana Panchayati Raj Act, 1924 (for short, the Act), can file an appeal under Section 51(5) of the Act is the question which arises for determination in this petition filed by petitioner-Darshan Singh for quashing order dated 31.7.2002 (Annexure P-11) passed by Financial Commissioner and Secretary to Government Haryana, Development and Panchayats Department (hereinafter described as the Financial Commissioner). The facts : On receipt of the complaint made by respondent No. 5-Ramesh Kumar (a resident of Village Seonsar) with the allegation that the petitioner who was holding the office of Sarpanch, has unauthorisedly occupied panchayat land measuring 16 Marlas comprising Khewat No. 158, Khasra No. 48/20-21. Deputy Commissioner, Kurukshetra (respondent No. 3) got a preliminary enquiry conducted through Block Development and Panchayat Officer, Pehowa. On receipt of the report of preliminary enquiry, respondent No. 3 issued notice dated 18.12.2000 (Annexure P-1) to the petitioner proposing to take action for his suspension under Section 51(1)(b) of the Act. In his reply, the petitioner denied the allegation of unauthorisely occupying the panchayat land. After considering his reply, respondent No. 3 suspended the petitioner vide order dated 23.2.2001 (Annexure P-3). By another order of the same date, she ordered regular enquiry under Section 51 of the Act and appointed Sub-Divisional Officer (Civil), Pehowa as enquiry officer. The appeal filed by the petitioner against the order of suspension was dismissed by the Financial Commissioner vide his order dated 22.3.2001 (Annexure P-5). By another order of the same date, she ordered regular enquiry under Section 51 of the Act and appointed Sub-Divisional Officer (Civil), Pehowa as enquiry officer. The appeal filed by the petitioner against the order of suspension was dismissed by the Financial Commissioner vide his order dated 22.3.2001 (Annexure P-5). However, during the pendency of the enquiry, respondent No. 3 had reinstated the petitioner vide his order dated 18.11.2001. Respondent No. 5 challenged that order by filing an appeal which was allowed by the Financial Commissioner vide his order dated 6.2.2002 (Annexure P-7). In the meanwhile, the enquiry officer submitted report dated 31.12.2001 with the finding that the Sarpanch had sown and reaped the wheat and rice crop in the land measuring 16 Marlas belonging to the Gram Panchayat but there is no mention of the same in the khasra girdawari about description of the said land either in the name of the Sarpanch or his relative. Acting on the enquiry report, respondent No. 3 passed order dated 22.3.2002 virtually exonerating the petitioner, as is evident from the following extract of that order : "As per the above report, the Sarpanch has sown the wheat and rice crops at the time of complaint in the land measuring 16 marlas but now the Sarpanch has extinguished his possession over the said piece of land and the land in question is lying vacant at the spot. Keeping in view this position, I, Abiyax Likhi, IAS, Deputy Commissioner, Kurukshetra while exercising the powers conferred under Section 53 of the Haryana Panchayati Raj Act, 1994 issue orders to the Block Development and Panchayat Officer, Pehowa to determine the loss suffered by the Sarpanch by sowing the crops in the land of the gram panchayat measuring 16 marlas in illegal manner and by recovering the same be deposited in the funds of the Gram Panchayat within 15 days. In addition to this, Shri Darshan Singh, Sarpanch, Gram Panchayat, Seonsar is directed that he should deposit the payment so determined by the Block Development and Panchayat Officer, Pehowa in the funds of the Gram Panchayat within the stipulated period and is strongly warned not to misuse his position and the post in future." Respondent No. 5 challenged that order by filing an appeal under Section 51(5) of the Act. The Financial Commissioner accepted the appeal and disqualified the petitioner from continuing as Sarpanch and also declared the office of Sarpanch as vacant. Shri Rajesh Gumber relied on the judgment of the Division Bench in Bhagwan Singh and others v. State of Haryana and others, (2002-2) PLR 587 and argued that the appeal filed by respondent No. 5 under Section 51(5) of the Act was not maintainable and the Financial Commissioner committed a grave jurisdictional error by setting aside order dated 22.3.2002 passed by respondent No. 3. Shri Gumber submitted that respondent No. 5, who was merely a complainant, does not fall within the ambit of the expression "person aggrieved" used in Section 51(5) of the Act. Shri Jaswant Singh, learned Senior Deputy Advocate General argued that the restricted meaning given to the expression "person aggrieved" in Bhagwan Singhs case (supra) does not represent correct law. He submitted that an enquiry initiated under Section 51 of the Act at the instance of a complainant can result in removal of the Sarpanch or Panch proceeded against or his exoneration and, therefore, the complainant would fall within the ambit of the expression "person aggrieved". The complainant can also file an appeal under Section 51(5) of the Act. We have given serious thought to the respective arguments. Section 51 of the Act reads as under : "51. Suspension and removal of a Sarpanch, Up-Sarpanch or Panch - (1) The Director or the Deputy Commissioner concerned may suspend any Sarpanch, Up- Sarpanch or Panch, as the case may be - (a) Where a case against him in respect of any criminal offence is under investigation, enquiry or trial, if, in the opinion of the Director, the charge made or proceeding taken against him, is likely to embarrass him in the discharge of his duties or involves moral-turpitude or defect of character; (b) during the course of an enquiry for any of the reasons for which he can be removed, after giving him adequate opportunity to explain. (2) Any Sarpanch, Up-Sarpanch or Panch, as the case may be, suspended under sub-section (1) shall not take part in any act or proceeding of the Gram Panchayat during the period of his suspension and shall hand over the records, money or any other property of the Gram Panchayat in his possession or under his control :- (i) if he is a Sarpanch to Up-Sarpanch; (ii) if he is an Up-Sarpanch or Panch to Sarpanch; (iii) in case both the Sarpanch and Up-Sarpanch are suspended, to a panch commanding majority in the Gram Panchayat : Provided that the suspension period of a Panch, Up-Sarpanch or Sarpanch as the case may be shall not exceed six months from the date of issuance of suspension order except in Criminal Cases involving moral turpitude. (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 an Up-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 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) A person who has been removed under sub-section (3) may be disqualified for re-election for such period as may be mentioned in the order but not exceeding the period of six years. (5) Any person aggrieved by an order passed under sub-sections (1), (3) and (4) may within a period of thirty days from the communication of the order, prefer an appeal to the Government. (5) Any person aggrieved by an order passed under sub-sections (1), (3) and (4) may within a period of thirty days from the communication of the order, prefer an appeal to the Government. (6) Any Sarpanch or Up-Sarpanch or Panch, as the case may be, removed under sub-section (3), shall hand over the records, money or any other property of the Gram Panchayat in his possession or under his control - (i) if he is Sarpanch to Up-Sarpanch; (ii) if he is an Up-Sarpanch or a Panch to Sarpanch; and (iii) if both the Sarpanch and Up-Sarpanch are removed to a panch commanding majority in the Gram Panchayat. In Bhagwan Singhs case (supra), the Division Bench relied on the judgments in Ram Saroop v. Director of Panchayats, Haryana, 1983 PLJ 350; Mahavir Singh v. State of Haryana, (1993-3) 105 PLR 655; and Sukh Ram v. State of Haryana, 1988 PLJ 379 and held that a complainant has no cause to feel aggrieved against an order of exoneration passed in favour of the Sarpanch or Panch. The Division Bench distinguished the judgment of Full Bench in Ram Phal v. Financial Commissioner and Secretary to Government Haryana, Development and Panchayats Department, (1996-1) 112 P.L.R. 233 (FB), by observing that Section 102(5) of the Punjab Gram Panchayat Act, 1953, which came up for interpretation in that case, was substantially different from Section 51(5) of the Act. We have carefully gone through the judgments referred to above and are prima facie inclined to agree with the learned Senior Deputy Advocate General that the expression "any person aggrieved" appearing in Section 51(5) of the Act deserves to be liberally construed so as to include a person who may have grievance against the order passed by the Director or Deputy Commissioner concerned under sub-sections (1) and (3). Under sub-section (1) of Section 51, the Director or the Deputy Commissioner concerned can pass order for suspension of a Sarpanch or Panch in either of the two contingencies specified in clauses (a) and (b). The power to suspend necessarily includes the power to revoke the order of suspension. Under sub-section (3), the Director or the Deputy Commissioner concerned can order removal of a Sarpanch or a Panch against whom enquiry is held. This necessarily includes the power to exonerate the Sarpanch or Panch concerned. The power to suspend necessarily includes the power to revoke the order of suspension. Under sub-section (3), the Director or the Deputy Commissioner concerned can order removal of a Sarpanch or a Panch against whom enquiry is held. This necessarily includes the power to exonerate the Sarpanch or Panch concerned. If a narrower interpretation is given to the expression "any person aggrieved", as done in the case of Bhagwan Singhs case (supra), an elector of the Sarpanch or Panch who may have highlighted his misconduct will be rendered remediless. In our opinion, the broader interpretation given to the expression "any person aggrieved" in Ram Phals case (supra) deserves to be adopted for interpreting similar expression appearing in Section 51(5) of the Act. However, since we have expressed our dis-agreement with a co-ordinate Bench, it is appropriate that this matter is considered by a larger Bench. Hence, the writ petition is admitted to Full Bench. In the meantime, ad interim order dated 9.9.2002 is modified by directing that the petitioner will continue to hold office of Sarpanch but shall not exercise financial powers vested in the Sarpanch in his personal capacity." 3. That is how the matter stands placed before us. 4. Mr. Rajesh Gumber, learned counsel appearing on behalf of the petitioner by placing reliance on Bhagwan Singhs case (supra) contended that the Appeal of respondent No. 5, who was complainant, before the Financial Commissioner was not maintainable and thus the preliminary objection raised by the writ petitioner should have been upheld. 5. Mr. Randhir Singh, learned Senior Deputy Advocate General, Haryana appearing on behalf of respondent Nos. 1 to 4 contended that in terms of the statute the complainant had a right to appeal; that the Financial Commissioner has correctly over-ruled the preliminary objection raised by the petitioner in regard to its maintainability whose view stands amply supported by the Full Bench judgment of this Court in Ram Phal v. Financial Commissioner and Secretary to Government, Haryana, Development and Panchayat Department, (1996-1) 112 P.L.R. 233, which was incorrectly distinguished in Bhagwan Singhs case (supra). 6. Mr. Jagdish Manchanda, learned counsel appearing on behalf of respondent No. 5 following Mr. Singhs submissions contended that the question raised was squarely covered by the Full Bench pronouncement in Ram Phals case (supra), which was not correctly distinguished in Bhagwan Singhs case. 6. Mr. Jagdish Manchanda, learned counsel appearing on behalf of respondent No. 5 following Mr. Singhs submissions contended that the question raised was squarely covered by the Full Bench pronouncement in Ram Phals case (supra), which was not correctly distinguished in Bhagwan Singhs case. Accordingly, we should over-rule the Division Bench judgment in Bhagwan Singhs case (supra). 7. In our view, the contentions made by the learned counsel for the respondents are correct and must be accepted. 8. Section 102 of the Punjab Gram Panchayat Act, 1952 as in Haryana, reads as under :- "102 Suspension and Removal of Panches - (1) The Director may suspend any Panch where a case against him in respect of any criminal offence is under investigation, enquiry or trial, if, in the opinion of the Director, the charges made or proceeding taken against him is likely to embrass him in the discharge of his duties or involves moral- turpitude or defeat of character. (1-A) The Director (or Deputy Commissioner) may during the course of an enquiry, suspend a Panch for any of the reasons for which he can be removed. (1-B) A Panch suspended under this section shall not take part in any act or proceedings of the Panchayat during the period of suspension and shall hand over the records, money or any other property of the Panchayat in his possession or under his control to the person authorised by the (Panch- commanding majority in the Panchayat). (2) (The Director may, after such enquiry as he may deem fit) remove any Panch :- (a) on any of the grounds mentioned in sub-section (5) of Section 5; (b) who refuses to act, or becomes incapable of acting, or is adjudged an insolvent; (c) who, without reasonable, cause absents himself for more than two consecutive months from the meetings of the Gram Panchayat or the Adalti Panchayat, as the case may be; (d) who in the opinion of the Director has been guilty of misconduct in the discharge of his duties during his past or present tenure; (e) whose continuance in office is, in the opinion of Director, undesirable in the interests of the public. Explanation :- The expression misconduct in clause (d) includes the failure of the Sarpanch without sufficient cause - (i) submit the judicial file of a case within two weeks of the receipt of the order of any Court to do so; (ii) to supply a copy of the order of the Gram Panchayat in an administrative or judicial case decided by it, within two weeks from the receipt of a valid application therefor. (3) A person who has been removed under clause (a) or (c) of sub- section (2) may be disqualified for re-election for such period not exceeding five years as the Director may fix. (4) A person who has been removed under clause (b), (d) or (e) of sub-section (2) shall stand disqualified for re-election for a period of five years from the date of his removal and a person who was removed under any of the said clauses on or after the first day of September, 1965, shall stand disqualified for re-election during such period after the commencement of the Punjab Gram Panchayat (Haryana Amendment) Act, 1971, which falls within a period of five years from the date of his removal. (5) Any person aggrieved by an order passed under this Section, may, within a period of thirty days from the date of communication of the order, prefer an appeal to the Government." 9. After taking into account the submissions made at the Bar, the Full Bench had laid down the following ratio :- "The complainant at whose instance action is taken against a Sarpanch or Panch is entitled to file an appeal before the appellate authority and sub-section (5) of Section 102 of the Act is wide enough to include the appeals both by the Sarpanch and the complainant against the order passed under Section 102 of the Act. The aggrieved party would mean not only the Panch and the Sarpanch against whom action is taken but also the complainant." 9.1 On a bare comparison of the sub-section (5) of Section 102 of the Punjab Gram Panchayat Act, 1953 as in Haryana which was interpreted by the Full Bench and the sub-section (5) of Section 51 of the Act (Haryana Panchayati Raj Act, 1994) it is clear that these provisions are in pari-materia. Therefore, the conclusion is inescapable that the ratio laid down while interpreting the Punjab Act will be good as it has been made applicable to the State of Haryana and was binding on the Division Bench in Bhagwan Singhs case (supra). 9.2 In Bhagwan Singhs case (supra), we find illustrations concerning criminal cases were taken in consideration namely that an aggrieved party which lodges a report before the Police is like an informant and on acquittal of the accused person the Code of Criminal Procedure had not conferred any right of Appeal to the complainant. 9.3 With respect we differ. The criminal laws under the Code of Criminal Procedure, 1973 can be set in motion by two modes :- (i) by lodging an information under Section 154 of the Code of Criminal Procedure in relation to committal of any cognizable offence and (ii) under Section 200 of the Code of Criminal Procedure, a person can make a complaint to the Magistrate for taking cognizance of an offence on his complaint. In the cases instituted by the police, if the accused persons are tried and acquitted then the State, who is the prosecutor has been vested with a right to Appeal. The Code of Criminal Procedure also gives a right to an informant or a victim to prefer a revision. In relation to acquittal after trial based on a complaint of a person, he has been conferred a right to prefer an a appeal after obtaining special leave to appeal by the High Court under Section 378(4) of the Code of Criminal Procedure. Thus, the illustration given by the Division Bench is not correct. 10. The ratio laid down in Bhagwan Singhs case (supra) is hereby over-ruled and we hold that Appeal under sub-section (5) of Section 51 of the Act in question was maintainable at the instance of the complainant (respondent No. 5). 11. No costs. 12. Let this writ petition be now placed for its hearing before an appropriate Division Bench. 13. Let a copy of this order be handed over to Mr. Randhir Singh, learned Senior Deputy Advocate General Haryana for information. Order accordingly.