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2021 DIGILAW 441 (JK)

Mohammad Fayaz Sheikh v. Union Territory of JK

2021-08-27

ALI MOHAMMAD MAGREY

body2021
ORDER : 1. The Petitioner claims to have successfully contested the Panchayat Elections of 2018 having secured 520 votes out of 950. It is stated that, thereafter, the Petitioner contested for the post of Sarpanch in Khowerpara “A”, Tangdhar and was declared elected as such by the electorate of Panches of Halqa Panchayat. On 23rd of July, 2021, a notice of intention to move a motion for the removal of the Petitioner as Sarpanch under Section 7 is stated to have been served upon Respondent No.8 signed by 1/3rd majority of the total number of Panches of Halqa Panchayat. On 24th of July, 2021, a meeting notice was served to all the concerned members, including the Petitioner vide No. SPH/KHA/31-35 dated 24th of July, 2021, for remaining present at the Panchayat Office in Panchayat Khowerpora-A on 26th of July, 2021 at 11:00 AM. Thereafter, on 26th of July, 2021, as stated, the said meeting presided by the Respondent No.4 was conducted, wherein notice for want of confidence was read out in presence of the Petitioner and Panchayat Members and it was unanimously decided to conduct a special meeting on want of confidence on 9th of August, 2021 as per Section 7 of the Panchayati Raj Act, 1989. On 9th of August, 2021, it is pleaded that the special meeting on want of confidence presided over by the Respondent No.4 was held, wherein the motion was allowed to be moved and discussed and upon conclusion of the debate, the motion was put to vote. It is also stated that only seven (07) out of the eight (08) members were present at the time of Special meeting and that five out of eight Panches voted in opposition of the Petitioner, whereas two (02) members, who were present, voted in favour of the Petitioner. It is contended that the respondent No.16, who was absent due to illness, in terms of communication dated 10th of August, 2021, voted in favour of the Petitioner and in unequivocal terms reposed her confidence in favour of the Petitioner. Thereafter, on 10th of August, 2021, the Respondent No.8 is stated to have issued communication No. PJT/12/KRA/46-48 dated 10th of August, 2021 addressed to the Respondent No.6, thereby requesting him to provide further direction in the light of the mandate of the Act of 1989 and Rules of 1996. Thereafter, on 10th of August, 2021, the Respondent No.8 is stated to have issued communication No. PJT/12/KRA/46-48 dated 10th of August, 2021 addressed to the Respondent No.6, thereby requesting him to provide further direction in the light of the mandate of the Act of 1989 and Rules of 1996. On 11th of August, 2021, the Respondent No.4 issued communication No. BDCT/02 dated 11th of August, 2021 addressed to respondent No.9 for taking further necessary action in the matter pursuant to the report of Respondent No.8 regarding non-confidence motion against the Petitioner. It is these two communications dated 10th of August, 2021 and 11th of August, 2021 that have been assailed by the Petitioner through the medium of the Petition in hand on the grounds detailed therein. 2. Mr. A.M. Dar, the learned Senior Counsel, appearing for the Petitioner, submitted that the impugned communications have been issued in gross violation of the mandate of Section 7 of the Jammu and Kashmir Panchayati Raj Act, 1989, inasmuch as the vote of no confidence motion has to be passed by a resolution expressing want of confidence in a Sarpanch or Naib Sarpanch, as the case may be, by a majority of not less than 2/3rd of the total number of the Panches of the concerned Halqa Panchayat. In the case on hand, there were admittedly nine (09) Panches, one of whom died, therefore, out of eight (08) Panches, not less than six (06) Panches should be present to vote against no-confidence motion, while as in the instant case, as is evident from the impugned communications, only seven (07) Panches were present, out of which only five (05) voted in favour of the motion to remove the Petitioner as Sarpanch. 3. Mr. Mir Suhail, the learned Additional Advocate General, representing the Respondents, submitted that in terms of the mandate of Rule 81 of the Jammu and Kashmir Panchayati Raj Rules, 1996, the requirement is that the motion of no confidence against a Sarpanch has to be adopted by a majority of two-third of the members present at the time of voting and that, in the instant case, that majority has duly adopted the no-confidence motion against the Petitioner. 4. Heard the learned Counsel for the parties, perused the pleadings on record and considered the matter. 5. 4. Heard the learned Counsel for the parties, perused the pleadings on record and considered the matter. 5. Rule 81 (3) of the Rules of 1996, which deals with the procedure for removal of Sarpanch or Naib Sarpanch, provides as under : “(3) Concerned Chairman of the Block Development Council presiding over the meeting shall declare the result of the voting, the motion shall be declared to have been carried only when it has been passed by a majority of two-third of the members present at the voting.” A bare perusal of the aforesaid provision makes it explicitly clear that a ‘No Confidence Motion’ has to be declared as carried only when it has been passed by a majority of two-third of the members present at the time of voting. In the case on hand, the pleadings on record envisage that the total number of Panches in Panchayat Halqa, Khowerpara-A was nine (09); out of which one Panch, namely, Ab. Hamid Mir of Ward No. 9 had expired in February, 2021 and one was absent at the time of voting, meaning thereby that only seven (07) members were present at the time of voting for the ‘No Confidence Motion’ against the Petitioner as Sarpanch. It is also forthcoming that out of the seven (07) members who were present at the time of voting for the motion, five (05) Panches voted in favour of the motion, which is well above the two-third majority as prescribed in terms of the rules governing the field. That being the position, the contention raised by the Petitioner in the instant Petition qua the ‘No Confidence Motion’ against him not having been adopted by two-third majority of the members present at the time of voting is belied by the pleadings on record. 6. In the above background, there is no merit in this Petition, which is, accordingly, dismissed along with the connected CM. Interim direction(s), if any, subsisting as on date, shall stand vacated.