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2012 DIGILAW 1164 (PNJ)

Mohinder Pal v. State of Punjab

2012-09-07

RANJIT SINGH

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JUDGMENT RANJIT SINGH, J. The petitioner-Sarpanch has challenged the resolution of `No Confidence Motion' stated to have been passed against him on 22.10.2010 being illegal and arbitrary on the ground that the same was not carried by the requisite two-third majority. The petitioner was elected as Sarpanch of Gram Panchayat Ghuhanpur on a post reserved for Scheduled Caste (Male). The petitioner was elected as Scheduled Caste (Male) Punch. The Panchayat in the village consists of five Punches. No Confidence Motion was passed against the petitioner by 3 Punches out of 5. The charge of the Panchayat accordingly is given to authorised Punch-respondent No.5. The petitioner would point out that incidentally the provisions of Section 19 of the Panchayat Raj Act, 1994, which provided for removal of a Sarpanch by way of No Confidence Motion if voted by 2/3rd members have been deleted from the Statute in the year 2011. The plea of the petitioner in the present case, however, is that 3 Punches out of total 5 would not constitute two-third majority and, accordingly, it is urged that the resolution is illegal and, thus, cannot be sustained. Reference is made to the precedents settling this position of law in a clear and categorical manner. Still, this resolution has been affirmed by the official respondents and the petitioner stands removed from the office of Sarpanch. In response to notice of motion, reply is filed. It is stated that the petitioner has been removed only when majority of the Punches had given an application in writing to the Block Development & Panchayat Officer regarding their intention to move a `No Confidence Motion' and then voted against the petitioner in the `No Confidence Motion', which was carried in the meeting held on 20.10.2010. To justify this action, it is stated that only 3 members out of total 5 came present. The coram being complete, the meeting was held and all the 3 members voted in favour of the motion and the impugned order accordingly is justified. The short question that arises for determination is whether under such circumstances, 3 members would constitute two-third majority and, thus, would make the No Confidence Motion as passed valid. There is no reason to discuss much details in this regard and this issue has been clinched in more than one precedents that can be noticed. The short question that arises for determination is whether under such circumstances, 3 members would constitute two-third majority and, thus, would make the No Confidence Motion as passed valid. There is no reason to discuss much details in this regard and this issue has been clinched in more than one precedents that can be noticed. It may also need to be observed that for passing a valid No Confidence Motion, the count is not to be taken from the members, who come present but has to be on the basis of total strength of the Panchayat. Thus, it is not that the two-third majority is to be worked out from amongst the number of Punches, who came present but has to be counted on the basis of the total strength which in this case was five. In CWP No.16877 of 1999 titled Chaman Lal Versus State of Punjab, decided on 12.7.2000, this was the precise question, which arose for determination before the Division Bench of this Court. The submission in this case by the counsel appearing for the petitioner was that expression “two-third members of the committee” appearing in Section 22 of the Punjab Municipal Act referred to existing members of the Council and, thus, the resolution passed in the said case by 6 members out of 9 was being justified. Upon due consideration of this submission and after referring number of precedents, the Division Bench culled out the question which it was called upon to decide. This can be so noticed from the following part of the judgment:- “In the light of above analysis of the relevant provisions, we have to decide whether the expression “two-third of the total number of members or only the existing members.” After making reference to number of judgments cited before the Division Bench, the Court finally concluded as under:- “On the basis of above discussion, we hold that the expression occurring in Section 22 “two-third of the members” of the council takes within its fold the number of elected members determined by the State Government as well as members of the Legislative Assembly who become member of the Municipal Council by virtue of their office and it is not confined to the members who are existing on the date of consideration of no-confidence motion.” Division Bench of this Court in Ranjit Singh Vs. State of Punjab, (1964) 66 P.L.R. 621 while interpreting expression “total number of members” held that the expression so used in Section 18 of the 1961 Act refers to all members of the Samiti, including associate members and ex-officio members. In this regard, the court has gone to the extent of holding that ex-officio members may not be entitled to vote in the meeting but they are entitled to be taken into account in determining two-third strength necessary to pass a resolution for removing a member. Reference can also be made to Samiruddin Ahmed Versus S.D.O.Mangaldoi and others, AIR 1971 Assam & Nagaland 163, S.Shivashankarappa and others Vs. The Davangere City Municipality, Davangere and others, AIR 1978 Karnataka 140 in this regard. In view of this position of law, for counting 2/3rd majority, the total number of members is to be taken into consideration. For counting of fraction to determine two-third majority, a reference may be made to order passed by Division Bench of this Court in Jardar Khan Vs. State of Haryana and others, AIR 1998 Punjab and Haryana 249. Here 5 members of the Gram Panchayat having 8 members in all had passed a no confidence motion. The court observed that two-third of 8 is more than 5 by a fraction and that the said fraction cannot be ignored and has to be treated as a whole. In this case also, the resolution allegedly carried by 5 members was said to have not been validly passed by the requisite majority. Similar view was taken in Vijay Kumar Saluja Vs. The Deputy Commissioner, Karnal and others, 1991 PLJ 635, Jai Chand Vs. The Haryana State Agricultural Marketing Board and others, 1973 P.L.J. 704, Ram Narain Sharma etc. Vs. State of Haryana & others, 1973 PLJ 550, Shyamapada Ganguly Vs. Abani Mukharjee, AIR 1951 Calcutta 420 and number of other judgements that to calculate 2/3rd majority, the total number of members constituting the Panchayat or Municipal Council are to be taken into account. The 2/3rd majority, thus, is to be seen from total number of members, being five. Thus, two-third majority was to be seen from amongst the 5 members and not on the basis of 3 members, who came present. The 2/3rd majority, thus, is to be seen from total number of members, being five. Thus, two-third majority was to be seen from amongst the 5 members and not on the basis of 3 members, who came present. Accordingly, the two-third majority being 3.33 out of 5, three Punches would not constitute two-third majority and for this purpose fraction cannot be ignored as has been held in above referred cases. The impugned resolution, therefore, is illegal and against the Statute and so cannot be sustained. The same is set aside. The writ petition is accordingly allowed. The necessary consequences shall follow.