CWP No. 16501 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 16501 of 2010 Date of decision : 21.02.2011 Gurmail Singh ...Petitioner versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. Naveen Batra, Advocate for the petitioner. Mr. Paliwinder Singh, Sr. D.A.G., Punjab for respondent Nos 1 to 3 Mr. Baldev Singh Sidhu, Advocate, for respondent Nos. 4 to 7. **** M ehinder S ingh S ullar, J. (Oral) The matrix 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 Gram Panchayat election, the petitioner was unanimously (unopposed) elected as a Panch of the Gram Panchayat of Village Khakh, Tehsil Dasya, District Hoshiarpur, in view of the provisions of The Punjab Panchayati Raj Act, 1994 (herein referred to be as “the Act”). Subsequently, he was elected as a Sarpanch of Gram Panchayat Khakh. 2. Petitioner claimed that he started many development works in the village but Gurdial Singh, Panch was not interested in the welfare of the village. Thereafter, an application dated 18.8.2010 was moved to remove the petitioner from the post of Sarpanch. The Block Development and Panchayat Officer, Tanda, District Hoshiarpur (respondent No. 3) (for short “the BDPO”) issued notice on 18.8.2010 (Annexure P1) to petitioner to convene a meeting on 25.08.2010 to CWP No. 16501 of 2010 -2- consider the no confidence motion against the petitioner, under Section 19 of the Act. The notice dated 18.08.2010 (Annexure P1) was stated to have been received by the petitioner on 24.08.2010. According to the petitioner that after receipt of the notice on 24.08.2010, he along with other fellow Panches appeared before the BDPO on 25.08.2010 and requested him to drop the notice dated 18.08.2010 (Annexure P1), as he was in the majority. It was also clarified that as the notice (Annexure P1) to initiate no confidence motion was received by the petitioner on 24.8.2010, therefore, he sought some time to file the reply but in vain. The impugned resolution/no confidence motion (Annexure P3) was stated to have been illegally passed on 25.08.2010 against the provisions of the Act. 3. The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned order (Annexure P3), invoking the provisions of Article 226 of the Constitution of India, inter alia, pleading that neither any proper notice dated 18.08.2010 (Annexure P1) was issued nor any proper meeting dated 25.08.2010 was convened, in which he was illegally removed by the respondents. The impugned resolution of no confidence motion (Annexure P3) was stated to be illegal, arbitrary and against the provisions of the Act. On the basis of aforesaid allegations, the petitioner sought the quashment of impugned resolution (Annexure P3), in the manner indicated herein above. 4. Although, the official respondent did not file any reply, however, the private respondent Nos. 4 to 7 contested the claim of the petitioner and filed the reply, inter alia, pleading certain preliminary objections of maintainability of the writ petition, cause of action and locus standi of the petitioner. 5. The case set up by the contesting respondents, in brief, insofar as relevant was that since the petitioner was creating the division and not taking any interest in the development of the village, so, he was rightly removed on the basis of no confidence motion (Annexure P3). However, it was admitted that petitioner appeared before the BDPO on 25.08.2010 and no confidence motion (Annexure CWP No. 16501 of 2010 -3- P3) was stated to have been rightly passed against him. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 6. Having heard the learned counsel for the parties, having gone through the record and relevant provisions of the Act, with their valuable assistance and after considering the entire matter deeply, to my mind, the instant writ petition deserves to be accepted, in this context. 7. As is evident from the record that notice dated 18.08.2010 (Annexure P1) was issued by the BDPO to convene a meeting on 25.08.2010 to consider the resolution of no confidence motion. The petitioner claimed that he received notice (Annexure P1) on 24.08.2010. 8. As is clear, Section 19 (2) of the Act envisages that 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 Panchayat by giving seven clear days in notice, for discussing and taking decision on the no-confidence motion. That means “seven clear days” notice is legally required to be issued to convene a meeting to consider the “no confidence motion”. 9. What is not disputed here is that notice (Annexure P-1) is dated 18.8.2010, to convene a meeting on 25.8.2010 and no such notice by giving seven clear days was issued in the instant case. Thus, there was a complete violation of the statutory and mandatory provisions of the Act. This matter is not res-integra and is well settled. 10. An identical question arose before a Division Bench of this Court in case Mohinder Singh Versus State of Punjab and others 2006(2) R.C.R. (Civil) 349. Having interpreted the provisions of Section 19(2) and Section 9 of General Clauses Act, it was ruled as under:- “ Now adverting to the second contention raised by the counsel for the petitioner that the notice issued to the petitioner did not give seven CWP No. 16501 of 2010 -4- clear days as envisaged in sub section (2) of Section 19 of the Act. We find force in the stand of the petitioner. Sub-section (2) provides that the Block Development and Panchayat Officer shall within a period of 15 days of the receipt of the said application convene a meeting of Gram Sabha by giving seven clear days in notice for discussing and taking decision on the 'no-confidence motion.” The Apex Court in M.N. Abdul Rawoof's case (supra) in para 10 has held that for calculating clear days the first and last date should be excluded. Para 10 of the judgment reads thus:- “The High Court has referred to the decision of this Court in The Pioneer Motors Pvt. Ltd. v. The Municipal Council Nagercoil, (1961) 3 SCR 609: (AIR 1967 SC 684) where the expression was which was being interpreted, “not being less than one month.” This Court held that in order that a notice should be valid the expression “not being less than one month” would mean that there must be notice of 30 clear days. This would be possible only if the Ist and the last day on which the notice is issued is excluded. Rather than helping the respondent in our opinion the said decision fortifies the view which we have taken namely, that the period specified is the minimum period. Not less than one month meant that 30 clear days' notice had to be given and it is only in order to ensure that 30 clear days' notice is given that, basing on Section 9 of the General Clauses Act, it was observed that the Ist and the last date should be excluded. “Therefore, the notice issued on 25.8.2005 for 01.09.2005 does not give seven clear days' notice as envisaged under Section 19 of the Act. The meeting of 01.9.2005 thus, cannot be said to have been legally held and accordingly, 'no- confidence motion' passed on that date is untenable. Accordingly, the same is set aside. However, it is directed that the respondents shall issue fresh notice of holding the meeting of no confidence after following due procedure as prescribed under the Act and the same shall be held within two months from today.” 11. In this manner, the impugned resolution dated 25.8.2010 (Annexure P- 3) entirely based on totally illegal notice dated 18.8.2010 (Annexure P1), is not only arbitrary, without jurisdiction, but against the statutory provisions of the Act, as well. The aforesaid observations mutatis-mutandis are applicable to the facts of CWP No. 16501 of 2010 -5- the present case and is the complete answer to the problem in hand. Reliance in this regard can also be placed to a judgment of this Court dated 02.02.2011 rendered in CWP No. 18496 of 2010 titled as Manpreet Kaur vs. The State of Punjab and others. Hence, the argument of counsel for the petitioner that the impugned resolution (Annexure P-3) is illegal, arbitrary and against the statutory provisions of the Act, has considerable force and the contrary arguments on behalf of contesting respondents deserve to be and are hereby repelled under the present set of circumstances. 12. There is another aspect of the matter, which can be viewed from a different angle. Admittedly, Section 19 of the Act deals with the removal of Sarpanch by passing a resolution of no confidence motion has since been repealed, by virtue of The Punjab Panchayati Raj (Amendment) Ordinance, 2010 (Punjab Ordinance No. 9 of 2010) on 14.12.2010. It is not a matter of dispute that the removal of petitioner-Sarpanch has neither been de-notified nor the election of new Sarpanch has been held notified till today. In that eventuality, petitioner will be deemed to be a Sarpanch of the village, for all intents and purposes, unless and until he is otherwise removed by the competent authority. 13. In the light of aforesaid reasons, the writ petition is accepted with costs. The impugned notice (Annexure P1), resolution/order (Annexure P3) and all subsequent proceedings arising therefrom, are hereby set aside. 14. Needless to mention here, that the respondents may act in accordance with law, in this relevant connection. (Mehinder Singh Sullar) Judge February 21, 2011 G.Arora Whether to be referred to reporter?Yes/No