CWP No.17864 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.17864 of 2010 Date of decision : 16.02.2011 Kulwant Kaur, Ex-Sarpanch ...Petitioner versus State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. Umesh Kumar Kanwar, Advocate for the petitioner. Mr. Palwinder Singh, Sr. D.A.G., Punjab for the respondents. **** M ehinder S ingh S ullar, J. (Oral) Concisely, the facts, which need 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 petitioner Kulwant Kaur (Ex-Sarpanch) was elected as Sarpanch of the Gram Panchayat Fatehpur Bhangwan, Block Lohian Khas, District Jalandhar, in the year 2003, in view of the provisions of The Punjab Panchayati Raj Act, (herein after referred to be as “the Act”). During her tenure as a Sarpanch, she initiated the proceedings under Section 7 of The Punjab Village Common Land (Regulations) Act, 1961, for eviction of unauthorised occupants. The eviction orders were passed by the Collector and were further upheld by the Appellate Authority. The persons who were ejected filed CWP No. 7201 of 2005 titled Phuman Singh v. Joint Development Commissioner and CWP No. 9736of 2006 titled Santokh Singh v. Joint Development Commissioner. 2. The earlier CWP's came up for hearing and Division Bench of this Court, while issuing notice of motion, directed the parties to maintain status quo with regard to the possession of the suit land. The petitioner was stated to have CWP No.17864 of 2010 -2- engaged Sh. Rajinder Sharma, Advocate to defend the case on behalf of the Gram Panchayat and to file the written statement. All the documents including the resolution for defending the cases were handed over to him but he did not file reply and the matter again came up for hearing on 06.02.2007 and the following order was passed:- “Reply not filed. Since the orders passed in these proceedings under the Punjab Village Common Land Regulations Act 1961 read with Punjab Public Premises Act, are quasi judicial in nature, there is no need to insist on filing of reply. Adjourned to 8.5.2007. Copy of this order be placed in the connected case”. 3. Again, another Division Bench of this Court passed the following order on 22.09.2008 in the indicated writ-petitions :- “A perusal of the office report reveals, that respondent No.3 was served for 27.03.2006. More than two and half years have passed since than, yet respondent No.3 Gram Panchayat Fatehpur, which is a contesting respondent, has failed to defend that case on behalf of the Gram Panchayat, either by filing a reply or by appearing in this Court, to contest the claim. In fact, counsel for respondent No.3 appeared in this case for the last time on 06.02.2007. For the last more than one and half year, even counsel for respondent No.3 has remained absent. In the peculiar facts and circumstances noticed here-in-above, we direct respondent No.2 to initiate proceedings against the Sarpanch, Gram Panchayat, Fatehpur, Tehsil Shahkot, District Jalandhar, for not defending this case, as also for not safeguarding the interests of the Gram Panchayat. List again on 13.01.2009. Yet another opportunity is granted to respondent No.3 to file written statement. Written statement, if any, be filed within four weeks from today with a copy in advance to the counsel for the petitioner. A copy of the order be furnished to the learned counsel for respondents No.1 and 2 under the signatures of the Special Secretary attached to this Court. Learned counsel for respondents No.1 and 2 shall inform this Court, the action initiated against respondent No.3 CWP No.17864 of 2010 -3- on the next date of hearing”. Thereafter, counsel for Gram Panchayat filed the written statement (Annexure P1). 4. The petitioner claimed that to utter surprise, she came to know that she has been ordered to be removed and has been further debarred from contesting the election for 5 years, in pursuance of letter dated 16.1.2009 issued by the Additional Advocate General, Punjab for non filing of the written statement in the High Court in the above said writ petition. According to the petitioner, the Director, Rural Development and Panchayat (respondent No. 2) neither issued any notice nor provided opportunity of being heard to her and passed the impugned ex parte order dated 31.03.2009 (Annexure P2), in this context. 5. Aggrieved by the impugned order (Annexure P2), petitioner filed the appeal (Annexure P3), which was dismissed as well by the Financial Commissioner and Secretary to Government Punjab, Rural Development and Panchayat, Punjab Civil Secretariat, Chandigarh (respondent No.1) (Appellate Authority), by means of impugned order dated 26.10.2009 (Annexure P4). 6. The petitioner still did not feel satisfied and preferred the instant writ petition, challenging the impugned orders (Annexures P2 & P4), invoking the provisions of Article 226/227 of the Constitution of India, inter alia, pleading that since she was neither a Sarpanch nor a Panch when the impugned orders (Annexures P2 & P4), were passed, so she could not be removed from her previous office of Sarpanch/Panch in exercise of the powers under Section 20 of the Act and could not legally be disqualified from contesting the election for a period of 5 years, in this regard. Thus, the impugned orders were stated to be illegal, arbitrary, without jurisdiction and contrary to the statutory provisions of the Act. On the basis of aforesaid allegations, the petitioner filed the present writ petition for quashing the impugned orders (Annexure P2 & P4), in the manner indicated herein above. CWP No.17864 of 2010 -4- 7. The respondents contested the claim of the petitioner and filed their joint written statement, inter alia, admitting the factum of passing the order in the earlier indicated CWP's by this Court. 8. The case set up by the respondents, in brief, insofar as relevant was that as the petitioner has failed to file the reply and defend the case on behalf of the Gram Panchayat in the High Court, therefore, she was rightly removed and debarred from contesting the election of Sarpanch or Panch for a period of 5 years. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the present writ petition and prayed for its dismissal. That is how I am seized of the matter. 9. Having heard the learned counsel for the parties, having gone through the record, with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be accepted, in this context. 10. As is evident from the record that in the wake of letter dated 16.01.2009, issued by the Additional Advocate General, Punjab, the Director, Rural Development and Panchayat (respondent No. 2) passed the impugned order dated 31.03.2009 (Annexure P2), which in substance is as under:- “Therefore, in case the term of the old Gram Panchayat had not been expired, then Smt. Kulwant Kaur would have continued as a sarpanch and in that eventuality under Section 20(1) of the Punjab Panchayati Raj Act, she was liable to be suspended from her post. But due to the expiry of tenure of old Gram Panchayat it would not be appropriate to suspend Smt. Kulwant Kaur, ex sarpanch under Section 20(1) of the Punjab Panchayati Raj Act, 1994. It is worth submitting here that as per Section 20(2) of the Punjab Panchayati Raj Act, 1994, if the person is removed under sub section 20(1) of the Punjab Panchayati Raj Act, then he can be debarred for contesting the elections for the next five years”. 11. Not only that, the impugned order (Annexure P2) was upheld by the Appellate Authority by non-speaking order (Annexure P4). It is not a matter of CWP No.17864 of 2010 -5- dispute that the term of the petitioner as a Panch, had already expired, in the year 2008 much prior from the initiation of present proceedings against her. Meaning thereby, petitioner was neither Sarpanch nor Panch on the date of passing the impugned order (Annexure P2) 12. Such thus being the position on record, now the sole question, though important, that arises for determination in this case is as to whether the petitioner, who was neither a Sarpanch nor Panch at the relevant time, could be debarred from contesting the election for further 5 years, in exercise of the power conferred under Section 20 of the Act or not. 13. Having regards to the rival contention of the learned counsel for the parites, to my mind, answer is in the negative and petitioner could not legally be debarred from contesting the election, in this context. 14. What is not disputed here is that petitioner remained Sarpanch till 2008 and she was neither Sarpanch nor a Panch when the impugned order (Annexure P2) was passed. Once petitioner was not holding the post of Sarpanch or a Panch, as her term had already expired, in that eventuality, no action in exercise of power conferred under Section 20 of the Act can be initiated against her, as the authorities under the act became functus officio. No doubt, action can only be initiated on the grounds as contemplated under Section 216 of the Act, if permissible in law. Moreover, Section 20 of the Act postulates that the Director may remove any Sarpanch or Panch on the grounds contained therein and not otherwise. The ground on which petitioner was debarred from contesting the election is alien to the grounds mentioned therein. 15. There is another aspect of the matter which can be viewed from different angle. As is clear from the record that the Director, Rural Development and Panchayat (respondent No. 2) has passed the impugned order (Annexure P2) without issuing any notice and without providing any opportunity of being heard to the petitioner. Above all, the impugned orders (Annexure P2 & P4) are cryptic, CWP No.17864 of 2010 -6- non-speaking & non-reasoned orders. The authorities under the act are required to consider the grounds of removal as envisaged under Section 20 of the Act and they did not have the jurisdiction to remove the Sarpanch and debar her from contesting the election for a period of 5 years on the grounds foreign to the ground envisaged under Section 20 of the Act. The authorities below ought to have discussed the material on record and were legally required to record valid reasons for arriving at a right conclusions, in order to decide the real controversy between the parties in the right perspective. Such statutory authorities, exercising the powers under the Act, should act independently instead of functioning as a representative of the State/G.P. 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 fair play. Every order must be confined and structured by rational and relevant material on record because the valuable rights of the parties are involved. The same are totally lacking in this case. 16. Therefore, the contentions of learned counsel for the petitioner that the impugned orders (Annexures P2 &P4) are not only illegal and arbitrary but against the principles of natural justice as well, have considerable force and the contrary argument of learned counsel for the respondents 'strictu censu' deserve to be and are hereby repelled. Hence, the impugned orders cannot legally be maintained in the obtaining circumstances of the case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforesaid reasons and thus, seen from any angle and, the present writ petition is accepted with costs. Consequently, the impugned orders ( Annexures P2 & P4) are hereby set aside, in this relevant connection. (Mehinder Singh Sullar) Judge February 16, 2011 G.Arora Whether to be referred to reporter?Yes/No