Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1573 (PNJ)

Rajesh v. State of Haryana

2012-11-05

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - The petitioner seeks quashing of the order and the proceedings whereby no confidence motion was passed against the petitioner. The petitioner further seeks an appropriate writ as may be issued in the peculiar facts of the present case. 2. The plea to challenge the no confidence motion is based on rather technical grounds relating to the duration of period prescribed for serving the notice of no confidence motion. 3. Elections to the Gram Panchayat in the State were held in the year 2010. The petitioner was elected as Chairman Block Samiti, Hansi-II, District Hisar. The petitioner would urge that some of the members were against the petitioner from very beginning and always were looking for opportunity to remove the petitioner as he is a supporter of opposite party in the State i.e. Indian National Lok Dal. 4. Respondent No.2 issued notice dated 13.1.2012 for holding a meeting for considering a no confidence motion, which was fixed for 23.1.2012. As per the petitioner, this notice was issued due to political pressure. The notice was not circulated to the Members of the Block Samiti immediately and rather was kept by respondent No.2 in his office. It is further stated that thereafter it remained pending in the office of D.D.P.O, Block Hansi-II and the copy thereof was handed over to the petitioner only on 18.1.2012. Reference is made to the provisions in the Rules, which requires 7 days prior notice before the date fixed for meeting for the purposes of no confidence motion. This notice, intimating the date, time and place of meeting is required to be issued by way of proclamation by beat of drum in the Sabha area concerned or by affixing copy of the same on the notice board of the office of concerned Panchayat Samiti at conspicuous place in the village. The notice was also issued to the Members through registered A.D post and ordinary post at their place of residence as is given in Rule 10 of Haryana Panchayati Raj Rules, 1955. 5. The meeting ultimately was held on 23.1.2012, where no confidence motion was passed against the petitioner. The petitioner was removed from the office of Chairman and respondent No.2 were going to hold election of Chairman of the Block Samiti again. 5. The meeting ultimately was held on 23.1.2012, where no confidence motion was passed against the petitioner. The petitioner was removed from the office of Chairman and respondent No.2 were going to hold election of Chairman of the Block Samiti again. The petitioner accordingly approached this Court with a grievance that no confidence motion which was passed on 23.1.2012 was illegal, arbitrary and discriminatory besides being in violation of the provisions contained in the Rules. 6. While issuing notice of motion, this Court had noticed that election schedule for 2.3.2012 would be subject to the outcome of this writ petition. Written statement otherwise has been filed by Additional Deputy Commissioner, Hisar, on behalf of respondent Nos.1 and 2. It is averred that the impugned notice for no confidence motion was given by 2/3rd elected members of the Block Samiti, who had made a request in writing to the Deputy Commissioner, pointing out that the petitioner, Chairman, was neither doing his work nor taking or consulting the elected members in passing any resolution. The copy of this application is placed on record as Annexure R-1. The Deputy Commissioner forwarded this notice to the answering respondent, being prescribed authority of the Block Samiti. The answering respondent then wrote to Block Development and Panchayat Officer to call these 13 elected members in person on 9.1.2012 with their identity card so that applications and the affidavits filed in support of the same could be verified. Twelve elected members marked their presence on the date fixed and verified the submission of the applications by making endorsing signatures/thumb impressions. After such verification, the notice dated 13.1.2012 was served to the Chairman, Vice Chairman and all elected Members of the Panchayat Samiti. The notice was also affixed on the notice Board in the office of Deputy Commissioner, Additional Deputy Commissioner, Zila Parishad, Hisar and Panchayat Samiti, Hansi-II. B.D.P.O., Hansi-II was also approached through a written communication to publish the notice of no confidence motion. The notice was also served upon the petitioner and other elected members through registered A.D post. In this background, it is urged that the petitioner has not suffered any prejudice as he was acquainted with the time and place of the meeting and also due to the fact that he had purposely been avoiding the service time and again. It is accordingly urged that all the rules were followed while issuing the notice. In this background, it is urged that the petitioner has not suffered any prejudice as he was acquainted with the time and place of the meeting and also due to the fact that he had purposely been avoiding the service time and again. It is accordingly urged that all the rules were followed while issuing the notice. As per the respondents, the notice for considering no confidence motion was required to be issued through A.D post, which was also done. This procedure may be mandatory but it is an additional requirement to the proclamation, which is to be made by beat of drum or by affixing the copy of the notice on the notice board of the concerned offices. 7. While responding to the factual averments, it is stated that after the verification on 9.1.2012 from all the elected members, who have moved this no confidence motion, the notice was sent to the Chairman, Vice Chairman and all elected members. This was also affixed on the notice board of the office of Deputy Commissioner, Additional Deputy Commissioner, Zila Parishad and Panchayat Samiti, besides directing the B.D.P.O to give it wide publicity by beat of drum in the whole area. It is also averred that notice dated 13.1.2012 was sent by a registered post on 16.1.2012. The notices were got served dasti by B.D.P.O to various elected members, as per the details mentioned in the reply. The petitioner was served registered notice on 19.1.2012, whereas some of the members were served on 17/18.1.2012. Accordingly, it is urged that all the due procedure was followed and, thus, the writ petition deserves to be dismissed. 8. Counsel for the petitioner has mainly urged that clear 7 days notice was required before the no confidence motion could be validly considered. As per the counsel, the notice concededly was issued on 16.1.2012 and the meeting for no confidence motion was held on 23.1.2012. It is on this basis stated that the meeting was held not after clear 7 days as the day on which the notice was issued and on the day when the meeting was held, ought to be excluded for the purpose of counting 7 days period. In support of his submission, the counsel has heavily relied on the case of Mohinder Singh Vs. State of Punjab and others, [2006(1) LAW HERALD (P&H) 787] : 2006(2) R.C.R. (Civil) 349. In support of his submission, the counsel has heavily relied on the case of Mohinder Singh Vs. State of Punjab and others, [2006(1) LAW HERALD (P&H) 787] : 2006(2) R.C.R. (Civil) 349. The counsel has made reference to the observations made by the Division Bench, which has held that Section 19 (2) of the Punjab Panchayat Raj Act (for short, “Punjab Act”) clearly provides for giving 7 days notice for discussing and taking decision on the no confidence motion. The Division Bench has relied upon the judgement in the case of M.N. Abdul Rawoof Vs. Pichamuthu and others, AIR 2000 Supreme Court 1247. Section 19 of the Punjab Panchayat Raj Act reads as under:- “19. No-Confidence motion against Sarpanch. (1) An application regarding intention to move a motion of the no-confidence against a Sarpanch be made to the Block Development and Panchayat Officer by a two-thirds majority of the total numbers 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. (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.” 9. In this case, the notice was issued on 25.8.2005 for 1.9.2005, which clearly showed that there was no 7 days clear notice as envisaged under Section 19 of the Punjab Act. The meeting of no confidence, thus, held in this case on 1.9.2005 was set-aside. 10. In this case, the notice was issued on 25.8.2005 for 1.9.2005, which clearly showed that there was no 7 days clear notice as envisaged under Section 19 of the Punjab Act. The meeting of no confidence, thus, held in this case on 1.9.2005 was set-aside. 10. The tenure of Chairman and Vice Chairman of the Panchayat Samiti in the State of Haryana is regulated by Section 62 of the Haryana Panchayat Raj Act, 1994 (for short, “Haryana Act”). The Section reads thus:- “62. Term of office of Chairman and Vice-Chairman – (1) The term of office of the Chairman and Vice-Chairman of a Panchayat Samiti shall be five years: Provided that the Chairman or Vice Chairman shall cease to be the Chairman or Vice Chairman if by a resolution passed by not less than two thirds of the total number of its elected Members, the Panchayat Samiti decides at a meeting convened in the matter prescribed that he shall vacate his office: Provided further that no such meeting shall be convened before the expiry of one year from the date on which the election of the Chairman or Vice Chairman as the case may be, was notified and, after the expiry of such period, whenever such a meeting is convened during his term of office and the proposal for vacating the office fails, no further meeting shall at any time thereafter be convened for considering a similar proposal against the Chairman or Vice Chairman unless a period of at least one year intervenes between the last failure and the date on which such further meeting is convened. (2) An outgoing Chairman or Vice-Chairman shall be eligible for fresh election if otherwise qualified.” 11. Similar provision is made to regulate the tenure of President and Vice President of the Zila Parishad, especially when no confidence motion is to be considered. The procedure for service of notice and considering the no confidence motion as and when moved is regulated by Rule 10 of Haryana Panchayati Raj Rules, 1995, which is as under:- “10. No confidence motion against Chairman, Vice Chairman, President, Vice President:- (1) For purposes of [Section 123] Deputy Commissioner shall be the prescribed authority. The procedure for service of notice and considering the no confidence motion as and when moved is regulated by Rule 10 of Haryana Panchayati Raj Rules, 1995, which is as under:- “10. No confidence motion against Chairman, Vice Chairman, President, Vice President:- (1) For purposes of [Section 123] Deputy Commissioner shall be the prescribed authority. (2) The notice of meeting for considering motion of no confidence shall be issued atleast seven days before the date fixed for the meeting, intimating the date, time and place of meeting by proclamation by beat of drum, in the Sabha (areas) concerned and by affixing a copy of same on the notice (boards of the offices of concerned Gram Panchayats, Panchayat Samiti(s) and Zila Parishad) and at other conspicuous places in the village. [The] notice shall also be issued to all the members by registered (A.D.) Post at their ordinary place of residence and also by affixing a copy of the same at the notice board of Office of Block Development and Panchayat Officer, Additional Deputy Commissioner and Deputy Commissioner and through any other expedient manner deemed proper. (3) The presiding authority of the meeting, referred to in sub-rule (2), shall be Additional Deputy Commissioner in case of Vice Chairman and Chairman and the Deputy Commissioner in case of Vice President and President. (4) The voting in the meeting shall be by the secret ballot for which the presiding authority shall make the necessary arrangements. The presiding authority shall also record the proceeding of the meeting setting forth therein- (a) the names of members who gave the requisition and the date thereof; (b) the dates on which the notice was issued and served under sub-rule (2); (c) date, time and place of the meeting; (d) number of votes polled against the motion; (e) number of votes polled in favour of motion; and (f) result. (5) If within half-an-hour after the time appointed for the meeting, there is no quorum, the meeting shall stand dissolved and the notice shall lapse.” 12. The subtle difference in the wording of Section regarding the period of notice as required under Rule 10 and under Section 19 of the Punjab Act is clearly noticeable. (5) If within half-an-hour after the time appointed for the meeting, there is no quorum, the meeting shall stand dissolved and the notice shall lapse.” 12. The subtle difference in the wording of Section regarding the period of notice as required under Rule 10 and under Section 19 of the Punjab Act is clearly noticeable. Section 19(2) of the Punjab Act provides that Block Development and Panchayat Officer is to hold a meeting within a period of 15 days from the receipt of the application and he is to convene a meeting by giving 7 days clear notice (emphasis mine) for discussing and taking decision on no confidence motion. However, Rule 10 of the Haryana Rules provides that notice of the meeting for considering notice of no confidence motion shall be issued at least 7 days before the date fixed for the meeting (again emphasis mine). Thus, the provision under the Punjab Act provides for giving a clear 7 days notice for taking up the no confidence motion whereas the Rules under the Haryana Act is differently worded and it only requires issuance of a notice 7 days before the date fixed and this period is further qualified by the word ‘atleast’. Thus, the judgement relied upon by counsel for the petitioner in the case of Mohinder Singh (supra) may not have much relevance so far as the present case is concerned. Here the requirement is for issuing a notice atleast 7 days before the date fixed for meeting. If the notice is issued 7 days prior to the date fixed for meeting, then it may be a valid notice irrespective of its date of receipt. 13. Counsel for the petitioner has then made reference to a decision in the case of Banarsi Debi Vs. Income Tax Officer, District IV, Calcutta, AIR 1964 Supreme Court 1742 to urge that expression “issued” is to be equated with the expression “served”. The Hon’ble Supreme Court was dealing with the provisions of Section 34 of the Income Tax Act and Section 4 of the said Act, when the notice is served out of time. Some observations in this case have been made while interpreting the provisions of Section 4 of the amending Income Tax Act. The Hon’ble Supreme Court was dealing with the provisions of Section 34 of the Income Tax Act and Section 4 of the said Act, when the notice is served out of time. Some observations in this case have been made while interpreting the provisions of Section 4 of the amending Income Tax Act. It may need a notice here that the Hon’ble Supreme Court in this case was concerned with the taxing statute and Section 4, as referred to above, saved a notice issued after the prescribed time but did not apply to a situation where notice is issued within time but served out of the time. In this context, it was pleaded that expression “issued” means “served”. The Hon’ble Supreme Court has, thus, noticed that the issue was for construction of fiscal statutes. If a statute professed to impose a charge, the intention to impose charge must be shown by clear and unambiguous language. In this background, the Supreme Court considered the word “issued” used in Section 4. It is observed as under:- “The section says that though a notice was issued beyond the time within which such notice should have been issued, its validity could not be questioned. If the word “issued” means “sent”, we find that there is no provision in the Act prescribing a time limit for sending a notice, for, under Section 34(1)(a) of the Act a notice could be served only within 8 years from the relevant assessment year. It does not provide any period for sending of the notice. Obviously, the expression “issued” is not used in the narrow sense of “sent”.” 14. In my view, this strict interpretation was in the context of fiscal statute, where the Court found that the expression “issued” is not used in the narrow sense of “sent”. This ratio of law clearly can not apply to the wording of Rule 10 in issue before this Court in the present case. 15. Reference is also made to Mangat Singh Vs. The Additional Director Punjab and others, 1967 PLR 898. The Court in this case was dealing with a notification under Section 14 of the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act, which is deemed to have been issued, when it is signed and delivered and sent out for publication in the official gazette. It is observed that after this there remained nothing to issue this notification. The Court in this case was dealing with a notification under Section 14 of the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act, which is deemed to have been issued, when it is signed and delivered and sent out for publication in the official gazette. It is observed that after this there remained nothing to issue this notification. The counsel has also relied on Commissioner of Wealth Tax, U.P. and another, (1975) 4 Supreme Court Cases 844. It is held in this case that expression “issued” and “served” are used as inter-changeable terms and sometimes used to convey the same idea. Word “issued” has not been interpreted in the narrow sense of sent. It takes in the entire process of sending notice as well as their service. 16. Reference here can be made to the Delhi Development Authority Vs. H.C. Khurana, JT 1993 (2) SC 695, where the Court has observed that the issue of charge sheet means its despatch to the Government servant and this act is complete by framing the charge sheet and dispatching it to the Government servant. Its actual service on the Government servant is not necessary. Similar is the ratio of law laid down in Union of India Vs. K.V. Jankiraman, 1991 (4) SCC 109. 17. The observation of the Hon’ble Supreme Court in Delhi D evelopment Authority’s case (supra) may be relevant to notice here. It is held that the meaning of the word “issue” has to be gathered from the context in which it is used. The word “issue” is defined in the Shorter Oxford English Dictionary to include “to give exit to, to send forth, or allow to pass out; to let out-------- to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation”. The issue of charge sheet, therefore, was held to mean despatch to the Government servant and this act is complete, the moment the steps are taken for the purpose by framing the charge sheet and despatching it to the Government servant. The fact of its actual service on the Government servant would not be necessary part of its requirement. The said consideration, in my view, would equally apply to the facts in the present case. The fact of its actual service on the Government servant would not be necessary part of its requirement. The said consideration, in my view, would equally apply to the facts in the present case. Here the requirement of the Rule is to issue notice atleast 7 days before the date fixed for considering a `no confidence motion’. The notice is dated 13.1.2012 and was issued/despatched on 16.1.2012. The requirement is atleast of 7 days notice before the date fixed for meeting. The meeting was held on 23.1.2012. Even if the date of meeting is excluded, the requirement of atleast 7 days prior notice in my view would stand satisfied. Notice having been despatched on 16.1.2012 would show that atleast 7 days before the date fixed for meeting, the notice was issued. Counting the days from 16.1.2012 to 22.1.2012, the 7 days period would be complete. Thus, it can not be said that the notice was in any manner not legal or suffered from violation of any provision or procedure. 18. There is some substance in the submission made by the learned State counsel that the manner in which the rule has been worded would show that this requirement may not be mandatorily needed. This may be a requirement of statute to serve notice prior to the date fixed for meeting and the period of 7 days, when used with word “atleast” may give some indication of its nature being mandatory or otherwise. Since this issue is not directly attracted in this case, I say nothing more than this. In the instant case, the notice was issued 7 days before the date fixed for meeting and hence, it can not be said that notice issued was in any violation of the Rules. 19. There is, thus no merit in the writ petition on this ground, which is the sole ground to challenge the no confidence motion and the writ petition is, therefore, dismissed.