Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1799 (PNJ)

Prem Kumar v. State of Punjab

2012-12-11

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - The petitioner was removed from the post of Sarpanch by passing a no confidence motion against him on 27.9.2010. He has accordingly filed the present petition to impugn the said resolution on the ground that the same is illegally passed and, thus, can not be sustained. 2. The elections to the Gram Panchayat in Village Patti Puran, Block Fazilka, District Ferozepur, were held on 26.5.2008. The petitioner and private respondent Nos.4 to 7 were elected as Members Panchayat. Since the petitioner alone belonged to reserved category and the post of the Sarpanch being reserved for scheduled caste, he was elected as Sarpanch on 22.7.2008. 3. While the petitioner was discharging his duties honestly, the other members resorted to his harassment, he being from scheduled caste category. On 12.3.2010, a resolution was passed that the Panchayat Ghar was in a dilapidated condition, so it be reconstructed afresh. A grant of Rs.1 lac was received for this purpose. The Block Development and Panchayat Officer (for short, “BDPO”), Fazilka forwarded the resolution to the SDO, Fazilka, but still the private respondents did not agree to work with the petitioner. Instead, they convened a meeting in the office of BDPO, Fazilka on 27.9.2010 and passed a no confidence motion against the petitioner. The resolution was sent to District Development and Panchayat Officer, Ferozepur. The petitioner in the meantime filed a representation with the Deputy Commissioner and while the decision was awaited, he approached this Court through Civil Writ Petition No.19670 of 2010, which was disposed of on 12.11.2010. The petitioner was asked to await for the outcome of the decision. 4. It is alleged that private respondent Nos.4 to 7 otherwise also harassed the petitioner by making allegation against him that he had demolished the Panchayat Ghar. They had made a statement before the police and also got it published in the newspaper. Ultimately the police submitted that no action was called for. 5. In the meantime, the Administrator was appointed to do the necessary work. The petitioner has now challenged the no confidence motion passed against him on the ground that the notice was issued without adopting due process of law as provided under the Punjab Panchayat Raj Act (for short, “the Act”). 6. The respondents have filed reply, pleading that the petitioner has an alternative remedy of making a representation/ appeal before the Director, Panchayat. 6. The respondents have filed reply, pleading that the petitioner has an alternative remedy of making a representation/ appeal before the Director, Panchayat. It is also stated that all the proceedings had effected in accordance with law and no confidence motion was passed with 2/3rd majority. 7. The main ground of attack against the no confidence motion as passed is that Section 19 of the Act provides that 7 days’ clear notice should be given to convene the meeting of Gram Panchayat, when no confidence motion is to be considered. As per the petitioner, in the present case neither any prior notice was given nor 7 days clear notice was given, as can be seen from the impugned order. 8. The impugned order of no confidence motion is annexed with the petition as Annexure P-6. A perusal of the notice would show that initially the meeting of the Gram Panchayat was fixed for 20.9.2010 through a letter dated 14.9.2010. The Sarpanch could not be informed about this meeting and so the meeting was fixed for 27.9.2010 and notice in this regard was issued on 20.9.2010. The information in this regard was accordingly given to the Sarpanch and all the Panches. The Panches had marked their presence. All the Panches presented resolution, which was approved by them and the copy was forwarded to the District Development and Panchayat Officer. Thus, it is clear that notice for holding a meeting for considering a no confidence motion was issued on 20.9.2010 and the meeting was to be held on 27.9.2010. On the basis of this record, counsel for the petitioner contends that there was no clear 7 days notice, as is the requirement of Section 19 of the Act. In support of his plea, the counsel has placed reliance on Mohinder Khan Vs. Director, Rural Development and Panchayats, Punjab, [2011(5) Law Herald (P&H) 897] : 2011 (2) Local Acts Reporter 201. In this case, this Court, while interpreting the provisions of Section 19 (2) of the Act, has held that the first day of the notice and last day of the notice are to be excluded, as per the decision rendered in the case of Mohinder Singh Vs. State of Punjab and others, 2006 (1) PLR 290. In this case, this Court, while interpreting the provisions of Section 19 (2) of the Act, has held that the first day of the notice and last day of the notice are to be excluded, as per the decision rendered in the case of Mohinder Singh Vs. State of Punjab and others, 2006 (1) PLR 290. Relevant observations in this regard are as under:- “In the opinion of this Court, service of the summons of the alleged meeting for ‘No confidence Motion’ is not valid. Moreover, even otherwise if service of notice is accepted to be effected through refusal on 11.08.2010, then also meeting convened on 18.08.2010 cannot be said to be valid meeting. Division Bench of this Court in the matter of Mohinder Singh Vs. State of Punjab and others, reported in [2006(1) Law Herald (P&H) 787] : 2006 (1) P.L.R. 290, has held that in view of Section 9 of General Clauses Act, while counting the period of notice under Section 19(2) of the Punjab Panchayati Raj Act, first day of the notice and last day of the notice have to be excluded. As per the dictum of the Division Bench (supra), 11.08.2010 and 18.08.2010 have to be excluded. After excluding 11.08.2010 and 18.08.2010 notice is short of the period required under Section 19(2) of the Act. In view of the above, meeting held on 18.08.2010 stands vitiated.” Section 19 of the Act is 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. (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. Section 19(2) clearly provides that the BDPO shall, within a period of 15 days of the receipt of application under sub-section (1) convene a meeting of Gram Sabha by giving 7 clear days notice for discussing and taking decision on the no confidence motion. For counting the period of 7 days, the date on which the notice is issued and the date on which, the meeting is to be held are to be excluded in view of the law laid down in Mohinder Khan’s case (supra). Notice in this case concededly was issued on 20.9.2010 and the meeting was held on 27.9.2010. Thus, the meeting was held without giving 7 days clear notice. No confidence motion, thus, passed in this case was in violation of the provisions contained in Section 19 of the Act. In view of the law laid down in Mohinder Singh’s case (supra) and Mohinder Khan’s case (supra), the no confidence motion as passed was clearly in violation of the mandate of the statute and, thus, can not be sustained. 10. The writ petition is accordingly allowed and the impugned order of no confidence motion passed against the petitioner is setaside. The petitioner would be entitled to all the consequential reliefs arising out of this order.