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2006 DIGILAW 413 (PNJ)

Mohinder Singh v. State Of Punjab

2006-02-09

AJAY K.MITTAL, HARJIT SINGH BEDI

body2006
Judgment Ajay Kumar Mittal, J. 1. The petitioner in the present writ petition filed under Articles 226/227 of the Constitution of India has laid challenge to no confidence motion which was carried out against him. 2. The petitioner was elected Sarpanch of Village Bohra-Bohri, Block Dera Bassi, District Patiala in elections held in June, 2003. According to the averments made in the petition, Gram Sabha Bohra-Bohri at present consists of 195 members as 10 votes were deleted prior to the elections in 2002. The petitioner belongs to Congress Party whereas panches belong to Akali Dal Party and accordingly they had started making false complaints against the petitioner to the authorities which were filed being without any substance. In the year 2005, these panches resorted the method to remove the petitioner by no confidence motion and got the signatures/thumb impressions of 128 members of the Gram Sabha on the pretext of getting grants for development works of Gram Sabha and for getting pension to the members. The said application dated 16.8.2005 was submitted for convening of meeting for no confidence motion. The Block Development and Panchayat Officer convened the meeting of Gram Sabha by issuing notice dated 25.8.2005 for 1.9.2005 on which date the no confidence motion was passed against the petitioner. 3. Learned Counsel for the petitioner submitted that Section 19 of the Punjab Panchayati Raj Act, 1994 (for short "the Act") provides that a motion of no confidence against the Sarpanch can be moved by 2/3rd of the panches of the Gram Sabha and as Gram Sabha, Bohra consists of 195 members, majority of 2/3rd would be 130 and the application for no confidence was not even signed by 2/3rd members of the Gram Sabha. Learned Counsel further submitted that as per this Section, seven clear days notice is required to be given to the Sarpanch for convening the meeting of Gram Sabha and in the present case, notice was given on 25.8.2005 for 1.9.2005 and, thus, seven clear days notice as envisaged under the statute had not been given. He placed reliance on the judgment of the Hon ble Supreme Court in M.N. Abdul Rawoof v. Pichamuthu and Ors., in support of his submission. 4. He placed reliance on the judgment of the Hon ble Supreme Court in M.N. Abdul Rawoof v. Pichamuthu and Ors., in support of his submission. 4. Learned Counsel for the respondents refuted the arguments of the petitioner and submitted that under Section 19 of the Act, 2/3rd members of the Gram Sabha can move motion of no confidence against any Sarpanch and according to the respondents, the signatures of 129 members instead of 128 members had been obtained and further out of 195, 13 voters had already expired out of whom death certificates of six members had been attached as annexures R-l to R-6 with the reply and even then out of 189 members, the motion moved by 1 29 members would make more than 2/3rd of the total number as 2/3rd would come to 126. It was further submitted that vide notice dated 25.8.2005, the petitioner was given seven clear days notice of meeting to be held on 1.9.2005 when on that day, in the presence of 95 voters of Gram Sabha, 90 voters had voted against the petitioner and only five had voted in his favour. 5. We have heard the learned Counsel for the parties and given our thoughtful consideration to the submissions of the respective parties. 6. Section 19 of the Act reads thus: 19. N-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 two-thirds majority of the total number of Panches of the Gram Sabha concerned: 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. (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 Sabha by giving seven clear days in notice, for discussing and taking decision on the no-confidence motion. (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 Sabha 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 authorized by the Block Development and Panchayat Officer in this behalf, by a majority of the members of the Gram Sabha present and voting concerned, 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. 7. A bare reading of the aforesaid provision clearly requires that an application for motion of no confidence against a Sarpanch can be moved to the Block Development and Panchayat Officer by 2/3rd majority of total number of panches of Gram Sabha concerned. In view of the written statement filed by the respondents, the application submitted to the BDPO for convening a meeting for no confidence motion in the present case against the Sarpanch is as per provisions of the Act. 8. Now adverting to the second contention raised by the counsel for the petitioner that the notice issued to the petitioner did not give seven clear days as envisaged in Sub-section (2) of the Act, we find force in the stand of the petitioner. Sub-section (2) provides that the Block Development and Panchayat Officer shall within a period of 15 days of the receipt of the said application convene a meeting of Gram Sabha by giving seven clear days in notice for discussing and taking decision on the no-confidence motion. 9. The Apex Court in M.N. Abdul Rawoofs case (supra) in para 10 has held that for calculating clear days the first and last date should be excluded. 9. The Apex Court in M.N. Abdul Rawoofs case (supra) in para 10 has held that for calculating clear days the first and last date should be excluded. Para 10 of the judgment reads thus: The High Court has referred to the decision of this Court in the Pioneer Motors Pvt. Ltd. v. The Municipal Council, Nagercoil, where the expression was, which was being interpreted, "not being less than one month." This Court held that in order that a notice should be valid the expression "not being less than one month" would mean that there must be notice of 30 clear days. This would be possible only if the 1st and the last day on which the notice is issued is excluded. Rather than helping the respondent in our opinion the said decision fortifies the view which we have taken namely, that the period specified is the minimum period. Not less than one month meant that 30 clear days notice had to be given and it is only in order to ensure that 30 clear days notice is given that, basing on Section 9 of the General Clauses Act, it was observed that the 1st and the last date should be excluded. 10. Therefore, the notice issued on 25.8.2005 for 1.9.20045 does not give seven clear days notice as envisaged under Section 19 of the Act. The meeting of 1.9.2005 thus, cannot be said to have been legally held and accordingly, no confidence motion passed on that date is untenable. Accordingly, the same is set aside. However, it is directed that the respondents shall issue fresh notice of holding the meeting of no confidence after following due procedure as prescribed under the Act and the same shall be held within two months from today. Writ petition stands allowed in the above terms. No costs.