Civil Writ Petition No.22278 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision :- 6.4.2011 Ajit Singh ....Petitioner Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.G.S.Bal, Advocate for the petitioner. Mr.Sartaj Singh Gill, Deputy Advocate General, Punjab for respondent Nos.1 to 3. Mr.D.S.Pheruman, Advocate for respondent No.4. M ehinder S ingh S ullar, J. (Oral) The contour of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy involved, in the instant writ petition and emanating from the record, is that in the wake of general Gram Panchayat elections, Jasbir Kaur (respondent No.4) was elected as a Sarpanch of Gram Panchayat of village Rai Chak, Block Dhariwal, District Gurdaspur, in view of the provisions of The Punjab Panchayati Raj Act, 1994 (hereinafter to be referred as “the Act”). As respondent No.4 was in unauthorized and illegal possession of Gram Panchayat land and refused to vacate the same, therefore, in pursuance of the complaint of petitioner-complainant Ajit Singh and others, the Block Development and Panchayat Officer (for brevity “BDPO”) (respondent No.3) inspected the spot and reported the matter to the District Development and Panchayat Officer (for short “DDPO”), by virtue of reports dated 23.11.2009, 19.11.2009 and 2.2.2010 (Annexures P1 to P3) respectively. Accordingly, a show cause notice was issued to respondent No.4, to which, she filed the reply. 2. Taking cognizance of the indicated reports and after considering the entire material on record, the Director, Rural Development and Panchayat Civil Writ Petition No.22278 of 2010 2 Department (for brevity “Director”) (respondent No.2) suspended respondent No.4 from the post of Sarpanch, in exercise of powers under section 20(4) of the Act, by way of order dated 25.8.2010 (Annexure P4). 3. Aggrieved by the order (Annexure P4), respondent No.4 filed the appeal, without impleading the petitioner-complainant as parties. Her appeal was accepted and she was reinstated on the post of Sarpanch by the Financial Commissioner and Secretary, Department of Rural Development and Panchayats, Punjab (respondent No.1) (for short “appellate authority”), by means of impugned order dated 11.10.2010 (Annexure P5). 4. The petitioner-complainant did not feel satisfied and preferred the present writ petition, challenging the impugned order (Annexure P5), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be accepted in this context. 6. As is evident from the record, that in the wake of complaint of petitioner-complainant and others, the BDPO inspected the spot on 23.11.2009, vide report (Annexure P1) and found illegal possession of respondent No.4 on the Gram Panchayat land, meant for cremation ground and Hadda Rodi. In spite of asking, she refused to vacate the Panchayat land. The BDPO referred the matter to the DDPO, by virtue of inquiry reports (Annexures P2 and P3) in this regard. 7. Having completed all the codal formalities and taking cognizance of the inquiry reports, entire material on record, the fact that respondent No.4 did not hand over the panchayat record to the secretary and that she was in illegal possession of cremation ground of the shamilat land, the Director recorded valid reasons and suspended her, by means of order (Annexure P4). 8. As it emerges from the impugned order (Annexure P5), the appellate Civil Writ Petition No.22278 of 2010 3 authority did not adhere to the grounds of suspension indicated in the order of the Director and illegally accepted the appeal of respondent No.4 without impleading the petitioner-complainant as a party, vide impugned order dated 11.10.2010 (Annexure P5), the operative part of which is as under:- “As regards allegations of illegal occupation, the said charges are levelled by the Block Development and Panchayat Officer only on the asking of some of the villagers and he has not appended any document along with his report, which may prove the charge levelled against her. In this manner, the respondents have failed to establish any charge against the appellant. Therefore, under these circumstances, it would not be appropriate to keep the appellant suspended from her post. Therefore, this appeal is accepted and the appellant is reinstated on the post of Sarpanch. Order pronounced.” 9. It is not a matter of dispute that the Director suspended respondent No.4 on two counts that she has not handed over the record to the Panchayat Secretary and on account of her illegal possession over the Gram Panchayat land. The appellate authority just ignored the cogent indicated grounds of suspension with impunity, accepted her appeal in a very casual and routine manner, did not decide the subject matter of the lis between the parties and passed a non-reasoned order, which is the result of non-application of mind in this respect. 10. Meaning thereby, the impugned order (Annexure P5) is non-speaking order in this direction. The appellate authority ought to have discussed the material on record relatable to illegal possession of respondent No.4 on the Gram Panchayat land and was legally required to record valid reasons for arriving at a right conclusion, in order to decide the real controversy between the parties in the right perspective. Such statutory appellate authority, exercising the powers under the Act, should act independently instead of functioning as a representative of or under any kind of concealed and undisclosed pressure of any kind of the State. It is now well settled principle of law that every action of such authority must be informed by reasons. The order must be fair, clear, reasonable and in the interest of justice and fair play. Every order must be confined and structured by rational and relevant material on record because the valuable democratic rights of the parties are involved in the lis. Civil Writ Petition No.22278 of 2010 4 11. Exhibiting the importance of passing speaking and reasoned order, the Hon'ble Apex Court in case Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others (2009) 4 Supreme Court Cases 240 has held (para 8) as under : - “The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N.Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.” 12. Not only that, there is another aspect of the matter, which can be viewed from a different angle. It is not a matter of dispute that in view of the complaint made by the petitioner-complainant and others and on the basis of reports (Annexures P1 to P3), the Director suspended respondent No.4 from the post of Sarpanch. She filed the appeal, which was decided by the appellate authority, without impleading the petitioner-complainant as a party. That means, since the petitioner-complainant was the aggrieved party, so the appellate authority slipped into a legal error in accepting the appeal of respondent No.4, even without issuing notice to him (petitioner), who was a necessary party, in view of law laid down by a Full Bench of this Court in case Darshan Singh v. State of Haryana and others 2006 (1) RCR (Civil) 170, Ram Phal v. Financial Commissioner and Secretary to Govt. Har. 1996 (1) PLR 233 and again reiterated by this Court in CWP No.15751 of 2010 titled as “Guddu Sarpanch Gram Panchayat Saunti, Block Amloh and others v. State of Punjab and others, decided on 8.2.2011. Thus, the appellate authority ought to have issued notice and provided adequate opportunity of being heard to the petitioner-complainant before deciding the appeal against him in view of the doctrine of audi alteram partem. 13. What is not disputed here is that one of the basic canons of justice is that no one can be condemned unheard and no order prejudicially affecting any Civil Writ Petition No.22278 of 2010 5 person can be passed by a public authority without affording him a reasonable opportunity to defend himself or represent his cause. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects rights of any individual or visits him with civil/democratic consequences is duty bound to act in consonance with basic rules of natural justice including the one that material ought to be used against the person concerned must be disclosed to him. He should be given an opportunity to explain his position. This minimum requirement of hearing is fundamental in nature to a just decision of the matter between the parties, which forms an integral part of concept of rule of law. 14. In this manner, all the essential ingredients/requirements of passing speaking order, issuing notice and providing adequate opportunity to the petitioner-complainant are deeply lacking in the instant case, which form an integral part of concept of rule of law. Therefore, the argument of learned counsel for the petitioner that the impugned order (Annexure P5) is not only illegal, arbitrary and against the statutory provisions of the Act, but contrary to the principle of natural justice as well, has considerable force and the contrary contentions of learned counsel for the respondents “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. Thus seen from any angle, the impugned order (Annexure P5) cannot legally be maintained in the obtaining circumstances of the case. 15. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing of the appeal, the instant writ petition is accepted. The impugned order (Annexure P5) is hereby set aside. The case is remitted back to respondent No.1 (appellate authority) to decide the appeal afresh, after impleading and affording an opportunity of being heard to the petitioner-complainants and by passing a speaking order, in view of aforesaid observations and in accordance with Civil Writ Petition No.22278 of 2010 6 law. 16. The parties through their counsel are directed to appear before the appellate authority (respondent No.1) on 16.5.2011 for further proceedings. 17. Needless to mention that nothing recorded herein above would reflect on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the instant petition. (Mehinder Singh Sullar) 6.4.2011 Judge AS Whether to be referred to reporter ?Yes/No