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2020 DIGILAW 650 (JK)

Mumtaz Ali Chauhan v. UT of J & K

2020-12-02

SINDHU SHARMA

body2020
JUDGMENT : Sindhu Sharma, J. 1. The petitioner, Chairperson, Block Development Council, Larnoo has challenged the Notice dated 10.07.2020 issued by the Secretary, Block Development Council, Larnoo for convening Special meeting for impeachment and No Confidence Motion. The petitioner was elected as a Sarpanch from the Constituency of Panchayat Halqa Kharpora, Block Larnoo, District Anantnag and subsequently was elected as the Chairman of the Block Development Council, Larnoo on 24.10.2019. 2. On 07.07.2020, 12 Sarpanches, that is, Members of the Block Development Council, (BDC) Larnoo moved a motion communicating their intention of No Confidence and impeachment against the petitioner to the Secretary, Block Development Council, Larnoo District Anantnag-respondent No. 4 herein. 3. Respondent No. 4 on receipt of this notice/motion of No Confidence and impeachment, issued Notice dated 10.07.2020 to the petitioner for convening a special meeting for impeachment and No Confidence Motion. Vide impugned notice, the petitioner was conveyed the intention of a majority of members seeking convening of special session for impeachment and moving of No Confidence Motion. The petitioner was, thus, asked to attend the special session on 23.07.2020 at BDO office, Larnoo at 11.00 A.M. to prove his majority in the said session as per the provisions of Panchayati Raj Act and Rules. 4. The petitioner has assailed this notice and vide order dated 22.07.2020, the special session scheduled to be held on 23.07.2020 was deferred. Since the members of the BDC Larnoo, on whose motion, the special session was to be held were not impleaded as parties in the writ petition. They filed an appeal against the order dated 23.07.2020 and this appeal was disposed of vide order dated 17.08.2020 by impleading them as party respondents. 5. The petitioner is aggrieved of the impugned notice on the ground that the same is in contravention to the provisions of the Panchayati Raj Act and Rules. It is submitted that the impugned notice mentions the reason for convening the meeting as "gross misconduct" under Section 30(i) of the Panchayat Raj Act, 1989 whereas the same is not a ground in the motion/notice moved by the members of the BDC, Larnoo seeking conduct of special session. It is also submitted that there was no gross misconduct, negligence of duty or any other disqualifications as alleged against the petitioner in the said communication. 6. It is also submitted that there was no gross misconduct, negligence of duty or any other disqualifications as alleged against the petitioner in the said communication. 6. Petitioner also has submitted that due to spread of Covid-19 pandemic and imposition of Section 144 Cr.P.C., in the area, the gathering of people for the meeting may prove fatal for those who might attend the meeting. It is submitted that he had already informed to the District Panchayat Officer, Anantnag as regard the support extended to him by the majority of the Sarpanches and therefore, seeks quashing of the impugned notice on the ground that the same is against the guidelines and restrictions imposed in the Union Territory and also in the absence of any election to the post of Vice Chairman of the Block Development Council, Larnoo, therefore, the impugned communication cannot be implemented/carried forward. 7. Respondents have vehemently opposed the contention of the petitioner by stating that respondent No. 4 while exercising the powers under Rule-81 of Panchayati Raj Rules has issued impugned notice which is exclusively in his domain and the same has been done only within the frame work of Rule-81 of the Panchayati Raj Rules. 8. This No Confidence Motion has been initiated by 12 Sarpanches of Block Development Council, Larnoo, and a special session for impeachment and moving of no confidence motion has been called on the allegation of gross misconduct being committed by the petitioner within the meaning of expression 30(i) of the Panchayati Raj Act, 1989 and Rules framed thereunder. 9. The impugned notice according to the respondents, is also in accordance with the Rules and the members of BDC having lost their faith in the Chairman, therefore, they have a right to move this motion. 10. A resolution of No confidence motion was initiated by 12 Sarpanches of (Block Development Council Members) to the Block Development Officer (Secretary, Block Development Council, Larnoo and the Block Development Council, Larnoo, on their motion issued impugned notice for convening a special meeting for 'No Confidence Motion and impeachment against the petitioner. 11. A perusal of the communication reveals that the allegation made therein are his failure to attend or chair any meeting during this tenure as Chairman of the BDC and also of his work and conduct being anti people, contrary to Panchayati Raj Act and Rules and therefore, are as envisaged under the Act. 12. 11. A perusal of the communication reveals that the allegation made therein are his failure to attend or chair any meeting during this tenure as Chairman of the BDC and also of his work and conduct being anti people, contrary to Panchayati Raj Act and Rules and therefore, are as envisaged under the Act. 12. The removal of Chairman is provided under Section 30 of the Panchayati Raj Act. It is submitted that the Chairman of the Block Development Council shall be deemed to have vacated his office if a motion of no confidence is moved against him by any of the members on any of the following grounds i.e., gross misconduct; neglect of duty & disqualification prescribed under Section 6. This has been clearly conveyed in the motion/notice about the intention of the members of BDC, Larnoo. As such, the Secretary had rightly issued the impugned communication for conducting the special session. 13. It was next urged that it was obligatory to place the motion/notice before the petitioner in his capacity as BDC, Chairman. Since the same was not placed before him, therefore, the impugned notice is illegal and liable to be set aside. 14. The procedure for removal of Chairman is provided under Rule-107 of the Panchayati Raj Rules, 1996. It provides that the procedure for removal of the Chairman shall be same as that of Sarpanches. However, District Panchayat Officer shall preside over the meeting to be convened for such removal and Block Development Officer shall function as Secretary under the provisions of this Rule. 15. In Panchayat Halqa of Block Larnoo, District Anantnag, a total of 15 Sarpanches were elected out of 23 Blocks and for remaining Blocks, no election was conducted and out of these 15 Sarpanches holding the posts 12 had signed the motion/notice of non-confidence. 16. Rule-81 of the said Rules prescribes the removal of Sarpanch or Naib-Sarpanch. It states that the intention to move a motion for removal of the Sarpanch or the Naib-Sarpanch under section 7 shall be necessary. It shall be signed by not less than one-third of the total members of the Panchayat and shall be delivered in person by at least two Panches signing the notice to the Secretary of the Panchayat, who shall place it before the Sarpanch and in his absence before the Naib-Sarpanch. It shall be signed by not less than one-third of the total members of the Panchayat and shall be delivered in person by at least two Panches signing the notice to the Secretary of the Panchayat, who shall place it before the Sarpanch and in his absence before the Naib-Sarpanch. The Secretary shall thereafter take steps to convene a special meeting not earlier than ten days and not later than twenty days from the date of receipt of the motion. The concerned Chairman shall preside over the meeting and proceedings for the same to be recorded by the Secretary. 17. Thus, the Block Development Officer in his position as a Secretary had rightly issued impugned communication calling for a special meeting of impeachment and No Confidence Motion, the same was to be presided by the District Panchayat Officer, therefore, the same was neither required to be placed before the petitioner as his capacity as Chairman nor he was to preside over the same. 18. In Panchayat Halqa of Block Larnoo, 15 persons were elected as Sarpanches out of 23 Blocks, therefore, there are only 15 Sarpanches who are holding the said posts in the said constituencies and out of these 15 Sarpanches, 12 have moved a resolution against the petitioner as he was negligent towards his duties and indulged in gross misconduct in derogation of the Rules and norms. In discharge of his duties as elected representative of the respective Constituency and being answerable to the people, respondents were forced to convene an extra-ordinary meeting and it was decided that a No Confidence Motion should be moved against the petitioner. 19. Lastly, it was urged that due to spread of Covid-19 pandemic and the area being declared as Red zone and, as such, any meeting would be fatal for the people. The ground situation and conducting meeting is the responsibility of the Secretary, who would have conducted the same after taking all measures under Covid-19 protocol. In any case, all the institutions are opening up and people are attending their businesses, therefore, Covid-19 situation cannot come in the way of holding special session. 20. The ground situation and conducting meeting is the responsibility of the Secretary, who would have conducted the same after taking all measures under Covid-19 protocol. In any case, all the institutions are opening up and people are attending their businesses, therefore, Covid-19 situation cannot come in the way of holding special session. 20. In a democratic process, the members of the Panchayat, who were elected members, have been provided with the provisions of issuing a no confidence motion against the Chairman on the ground of neglect on duty and gross misconduct and otherwise, if the action of the petitioner falls in either of two grounds, they have a right to consider the same. 21. The petitioner rather than facing democratic process and attending a special session to be convened by the Secretary has managed to defer the entire process by getting order dated 22.07.2020, thus, impugned notice of the Block Development Officer, (Secretary BDC Larnoo) has rightly been issued and the petitioner as elected Chairman was duty bound to attend the same in accordance with the Act and Rules. 22. In view of the aforesaid discussion, this writ petition is without any merit and the same is, accordingly, dismissed alongwith all connected application(s).