CWP No.18068 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.18068 of 2011 Date of decision: 26.09.2011 Jeet Singh Panch ....Petitioner Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Raj Kumar Garg, Advocate, for the petitioner. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Very interesting question of law arises in the present writ petition i.e. as to whether authorized Panch can spend Gram Panchayat fund for the development works in the village during the period Sarpanch remains under suspension? To understand the controversy brief facts are required to be narrated, which inter alia are that elected Sarpanch was placed under suspension vide order dated 17.5.2011under Section 20(4) of the Punjab Panchayati Raj Act (hereinafter called 'the Act'). Thereafter, Gurmail Singh, respondent No.4, was elected as authorized Panch in a meeting duly called and held in view of Section 20(5) of the Act and entire charge was handed over to him by the Sarpanch, who was placed under suspension. Mr. Raj Kumar Garg, learned counsel appearing for the petitioner, has vehemently argued that if Sarpanch is placed under suspension, authorized Panch can hold the entire record of the Panchayat and shall be custodian of the Panchayat fund in view of Section 87 of the Act, however, authorized Panch has no jurisdiction to act as Sarpanch or to spend the Panchayat fund for the development works in CWP No.18068 of 2011 -2- the village. Mr. Garg has vehemently argued that Section 20(5) as well as Section 87 of the Act only provide that authorized Panch shall be custodian of the Panchayat property but no provision under the Act empowers such authorized Panch to spend money for the development works in the village during the period Sarpanch remains under suspension. Sections 10, 16, 20 and 87 of the Punjab Panchayati Raj Act are being reproduced herein: - “10. Constitution of Gram Panchayat. -- (1) Every Gram Sabha shall elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha and consisting of a Sarpanch and such number of Panches as indicate below against each slab of population taking Gram Sabha to be a multi-member single constituency, namely: - Sl. No. Population Number of Panches (1) (2) (3) (4) (5) For population exceeding 200 but not exceeding 1,000 For population exceeding 1,000 but not exceeding 2,000 For population exceeding 2,000 but not exceeding 5,000 For population exceeding 5,000 but not exceeding 10,000 For population exceeding 10,000 Five Seven Nine Eleven Thirteen (2) Every Gram Panchayat constituted under this section shall be notified by its name in the Official Gazette and it shall by the name so notified come into office with effect from the date of its first meeting at which quorum is present and be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under this Act or any other law, shall have power to acquire, hold, administer and transfer property movable or immovable, and to enter into contracts and shall by the said name sue and be sued.” “16. Powers, functions and duties of Sarpanch. - (1) The Sarpanch shall- CWP No.18068 of 2011 -3- (a) be responsible for convening the meetings of the Gram Sabha and preside over its meetings; (b) be responsible for convening the meetings of the Gram Panchayat and shall preside over its meetings; (c) be responsible for the maintenance of the records of the Gram Panchayat; (d) have the general responsibility for the financial and executive administration of the Gram Panchayat. (e) exercise administrative supervision and control over the work of the staff of the Gram Panchayat and the officers and employees whose service may be placed at the disposal of the Gram Panchayat by any other authority; (f) for the transaction of business connected with this Act or for the purpose of making any order authorised thereby, exercise such powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Gram Panchayat under this Act or the rules made thereunder. Provided that the Sarpanch shall not exercise such powers, perform such functions or discharge such duties as may be required by the rules made under this Act to be exercised, performed or discharged by the Gram Panchayat at a meeting. (g) exercise such other powers, perform such other duties as the Gram Panchayat may, by general or special, resolution, direct or as the State Government may by rules made in this behalf, prescribe.” “20. Suspension and removal of Panch and Sarpanch. - (1) The Director, may, after such enquiry as he may deem fit, remove any Sarpanch or Panch: - (a) on any of the grounds mentioned in section 208; or (b) who refuses to act or becomes incapable of acting; or (c) who, being a Sarpanch, without reasonable cause, fails to hold meetings of the Gram Panchayat as required under sub-section (1) of section 16 for a period of two consecutive months; or (d) who, without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat; or (e) who during his present term of office or that immediately preceding it, has, in the opinion of CWP No.18068 of 2011 -4- the Director, been guilty of misconduct in the discharge of his duties; or (f) whose continuance in office is undesirable in the interests of the public: provided that before the Director orders the removal of any Sarpanch or Panch under this sub-section, the reasons for the proposed removal shall be communicated to him and he shall be given an opportunity of tendering an explanation in writing. Explanation: - The expression “misconduct” in clause (e) includes the failure of the Sarpanch or Panch without sufficient cause: - (i) to submit the judicial file of a case within two weeks of the receipt of order of any Court to do so; (ii) to produce the Pachayat record on being required to do so by an officer of the Department of Rural Development and Panchayats not below the rank of Social Eduction and Panchayat Officer; (iii) to carry out the lawful orders of any competent authority or an officer authorised by the State Government in this behalf; and (iv) to supply a copy of the order of the Gram Panchayat in an administrative or judicial case decided by it, within weeks from the receipt of a valid application therefor. (2) A person, who has been removed under sub- section (1) may be disqualified for re-election for such period not exceeding five years from the date of his removal as the Director may fix. (3) The Director may suspend any Sarpanch or Panch where a case against him in respect of any criminal offence is under investigation, enquiry or trial if, in the opinion of the Director, the charge made or proceeding taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character. (4) The Director at any time, and the Deputy Commissioner or the District Development and Panchayat Officer during the course of any enquiry, may suspend a Sarpanch or Panch for any of the reasons for which he can be removed. (5) A Sarpanch or Panch, suspended under this section shall not take part in any act or proceeding of the Gram Panchayat during the period of suspension and shall had over the records, money and other property of the Gram Panchayat in his possession or under his control to the Panch as may be elected by the Panches from amongst panches in a meeting called by CWP No.18068 of 2011 -5- the Block Development and Panchayat Officer for this purpose. (6) Any person aggrieved by an order of removal or suspension passed under this section, may, within a period of thirty days from the date of communication of the order, prefer an appeal to the State Government.” “87. Custody and maintenance of Gram Panchayat record and properties.- (1) The Sarpanch and in his absence the Panch authorised by the Gram Panchayat or by the Block Development and Panchayat Officer in this behalf shall be responsible for the safe custody of the movable property of the Gram Panchayat and such of its records as may be prescribed and immovable property belonging to or vested in the Gram Panchayat shall also remain in his charge. (2) The Panchayat Secretary shall be responsible to maintain up-to-date all the record of the Gram Panchayat in the custody of the Sarpanch or the Panch under section (1). (3) The Sarpanch or Panch, as the case may be, shall before filing of his nomination papers for election or on vacation of his office due to any cause whatsoever shall handover complete charge of such record and property to the Block Development and Panchayat Officer. (4) If the Sarpanch or the Panch fails to hand over such records or property as specified in sub-section (1) within the period as may be prescribed, the Block Development and Panchayat Officer may apply to an Executive Magistrate within whose jurisdiction the Gram Sabha area is situated for securing from such Sarpanch or Panch such records or property, as the case may be. (5) On receipt of an application under sub-section (4), the Executive Magistrate may, by an order, authorise any police officer not below the rank of a Sub-Inspector to enter an search any place where such records or property are kept or are believed to be kept, and to seize them and the records and property so seized shall be handed over as soon as possible to the Block Development and Panchayat Officer concerned. (6) Notwithstanding anything contained in this Act, whoever, in contravention of the provisions of this section wilfully evades the handing over of such record or property shall, on conviction by Judicial Magistrate of the first class be punishable with imprisonment either description which may extend to three years or with fine or with both.” From the perusal of Sections 10, 16 and 20(5) of the Act, I have no hesitation to hold that Gram Panchayat shall be consisting of CWP No.18068 of 2011 -6- Sarpanch and such number of Panches as prescribed and every Gram Panchayat constituted under Section 10 shall be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under the Act or any other law, shall have power to acquire, hold, administer and transfer property movable or immovable, and to enter into contracts and shall by the said name sue and be sued. Sarpanch shall be responsible for convening meeting of the Gram Panchayat and preside over its meeting and shall maintain record of the Gram Panchayat and shall have general responsibility for the financial and executive administration of Gram Panchayat and shall discharge such other duties as may be prescribed under the Act or rules made thereunder. If Sarpanch is placed under suspension, he shall hand over the records, money and other property of the Gram Panchayat in his possession or under his control to the Panch as may be elected by the Panches from amongst Panches in a meeting called by the Block Development and Panchayat Officer. As per Section 87 of the Act, in the absence of the Sarpanch, authorised Panch by the Gram Panchayat or Block Development and Panchayat Officer shall be responsible for the custody of the properties, records of the Gram Panchayat and shall also remain in charge of such properties and records. From the perusal of Section 20(5) of the Act, it can safely be said that if Sarpanch is placed under suspension, an authorised Panch shall be elected by the Panches from amongst Panches and that authorised Panch shall be in charge of entire records, money and properties of the Gram Panchayat. Meaning thereby, he shall be the only authorised Panch, who can discharge functions and duties of the Sarpanch during the period elected Sarpanch remains under suspension or new Sarpanch is elected in accordance with Section 22 of the Act. Sections 15 and 17 of the Punjab General Clauses Act read as under: - “15. Substitution of functionaries – In any Punjab Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at CWP No.18068 of 2011 -7- present executing the functions, or that of the officers by whom the functions are commonly executed. 17. Official chiefs and subordinates. - In any Punjab Act it shall be sufficient, for the purpose of expressing that a law relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior to prescribe the duty of the superior.” From the perusal of Sections 15 and 17 of the Punjab General Clauses Act, I have no hesitation to hold that law relating to any office shall be applicable to such persons executing the functions of that office for the time being and any law relating to the chief or superior of an office shall also apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior. Therefore, all the duties and functions to be performed by the office of the Sarpanch shall also be performed by the authorised Panch having charge of the office of the Sarpanch for the time being under Section 20 (5) read with Section 87 of the Act. Authorised Panch is given power to control and for possession of all the records and properties of the Panchayat, which are usually held by the Sarpanch to facilitate authorised Panch to discharge all the functions of the Sarpanch during the casual vacancy in the office of Sarpanch due to suspension, removal or death of Sarpanch. Every authorised Panch to officiate the office of Sarpanch shall have same powers for the period he remains in the office, which usually can be exercised by the Sarpanch. In the humble opinion of this Court, it cannot be said that authorised Panch, on the basis of valid resolution of the Panchayat, is not authorised to supervise or to spend Panchayat funds for the development works in the village. If argument of learned counsel for the petitioner is accepted it will give rise to such a situation where institution of self-Government, after 73rd amendment in the Constitution of India, i.e. Gram Panchayat would not be able to carry out any work during the period Sarpanch remains under suspension or during the period post of Sarpanch remains unfilled due to removal or death of Sarpanch. In the opinion of this CWP No.18068 of 2011 -8- Court, suspension of Sarpanch does not mean that entire development works of the village shall not be allowed to proceed with. Therefore, I hold that authorised Pach can spend money for the development work in the village as per valid resolution and prevailing law during the period Sarpanch remains suspended or post of Sarpanch remains unfilled due to suspension, removal or death of elected Sarpanch. Question raised hereinabove stands answered accordingly. Consequently, writ petition is dismissed. (Alok Singh) Judge September 26, 2011 R.S.