Civil Writ Petition No.20190 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision : 29.03.2011 Lal Singh ...Petitioner versus State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Gopal Singh Nahel, Advocate for the petitioner. Mr.Sartaj Singh Gill, D.A.G., Punjab for respondent Nos.1 to 4. Mr.Umesh Kumar, Advocate for respondent Nos.5 to 7. M ehinder S ingh S ullar, J. (Oral) Concisely, the relevant facts, which are essential to be mentioned for the limited purpose of deciding the sole controversy involved in the instant writ petition and emanating from the record, are that in the wake of general Gram Panchayat election held on 26.05.2008, the petitioner was elected as a Sarpanch of Gram Panchayat of village Tolewal, Block Malerkotla, District Sangrur, in view the provisions of The Punjab Panchayati Raj Act, 1994 (hereinafter to be referred as “the Act”). Subsequently, having secured the 2/3rd majority, he was duly elected as Sarpanch of Gram Panchayat of the village. He has been performing his duties sincerely, diligently, for welfare and development of the village. There was no complaint of any sort against his work and conduct. 2. The petitioner claimed that in the year 2010, Panches-Veer Singh and others (respondent Nos. 5 to 7) started creating hurdle in the smooth functioning and did not allow him to carry on the development works in the village, despite receipt of grants from the State Government. They refused to attend the meetings. The Gram Panchayat passed the resolution (Annexure P-1) in this respect. Petitioner made a complaint (Annexure P-2) against them to the Director, Civil Writ Petition No.20190 of 2010 2 Department of Rural Development and Panchayats, Punjab (respondent No.2) (for brevity “the Director”). They were found guilty for not attending the meetings, by means of report dated 17.9.2010 (Annexure P-3). It was explained that Block Development and Panchayat Officer (respondent No.4) (for short “the BDPO”) issued a notice dated 08.06.2010 (Annexure P-4) at the instance of respondent Nos.5 to 7 and directed all the panchayat members to attend the meeting on 14.06.2010 in his office. The petitioner as well as one Panch Harbans Singh attended the meeting, but respondent Nos.5 to 7 did not attend it. No action was taken against them by respondent No.1. The BDPO was again stated to have issued another notice dated 01.09.2010 (Annexure P-7) for holding the meeting on 09.09.2010 at the instance of respondent Nos. 5 to 7. As the petitioner was not present in his house, therefore the notice was handed over to his son on 06.09.2010 purported to have been issued on 01.09.2010. However, the meeting scheduled to be held on 09.09.2010 was adjourned. 3. The case of the petitioner further proceeds that again notice dated 20.09.2010 (Annexure P-8) was issued by the BDPO to convene the meeting on 23.09.2010 for considering the resolution of 'No Confidence motion' against the petitioner. On 23.09.2010, the meeting was convened and 'No Confidence Motion' (Annexure P-9) was stated to have illegally been passed by show of hands instead of secret ballot papers, which was stated to be illegal and against the statutory provisions of the Act. 4. The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned resolution dated 23.09.2010 (Annexure P-9), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. Levelling a variety of allegations and narrating the sequence of events, in all, the petitioner claimed that neither any “seven clear days” notice was issued to him nor any proper meeting was convened on 23.09.2010, but he has illegally been removed from the office of Sarpanch, by way of illegal and arbitrary Civil Writ Petition No.20190 of 2010 3 resolution (Annexure P-9). On the basis of aforesaid allegations, the petitioner sought the quashment of impugned resolution (Annexure P-9), in the manner indicated here-in-above. 6. The respondents contested the claim of the petitioner. The private respondent Nos.5 to 7 filed their joint written statement, inter alia, pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner. The impugned resolution (Annexure P-9) was stated to have been passed on their complaint, as per the provisions of the Act. 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. 7. After hearing the learned counsel for the parties, going through the record 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. 8. As is evident from the record, that the special notice dated 20.09.2010 (Annexure P-8) was issued to convene the meeting on 23.09.2010 to consider the impugned resolution (Annexure P-9) passed against the petitioner, in this relevant connection. 9. Above being the position on record, now short and significant question, though important, that arises for determination in this case, is as to whether the impugned resolution (Annexure P-9) passed in the meeting held on 23.09.2010 in the wake of notice dated 20.09.2010 (Annexure P-8) is legal or not? 10. Having regard to the rival contentions of learned counsel for the parties, to me, the answer is in the negative and such impugned resolution (Annexure P-9) of 'No Confidence Motion' cannot be termed as legal resolution in this regard. 11. As is clear that Section 19 (since omitted) of the Act regulates the provisions of passing of No Confidence Motion against the Sarpanch in this regard. Section 19(2) of the Act postulates that The Block Development and Civil Writ Petition No.20190 of 2010 4 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”. 12. It is not a matter of dispute that only the impugned notice dated 20.9.2010 (Annexure P-8) to convene a meeting on 23.09.2010 was issued. That means, no such notice by giving “seven clear days” was given to the petitioner 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. 13. An identical question came to be decided by 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 clear days as envisaged in sub section (2) 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 Civil Writ Petition No.20190 of 2010 5 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 1.9.2005 does not give seven clear days' notice as envisaged under Section 19 of the Act. The meeting of 1.9.2005 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.” 14. Meaning thereby, in the instant case, the impugned resolution dated 23.9.2010 (Annexure P-9) entirely based on totally illegal notice dated 20.9.2010 (Annexure P8), is not only arbitrary, without jurisdiction, but against the statutory provisions of the Act, as well. The ratio of law laid down in the aforesaid judgment is fully attracted to the facts of the present case and is the complete answer to the problem in hand. Therefore, the argument of counsel for the petitioner that the impugned resolution (Annexure P-9) is illegal, arbitrary and against the statutory provisions of the Act, has considerable force and the contrary submissions on behalf of contesting respondents deserve to be and are hereby repelled under the present set of circumstances. 15. There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that Section 19 of the Act prescribing the removal of Sarpanch by passing a resolution of No Confidence Motion, has already been omitted w.e.f. 14.12.2010 by the State Government. Since the removal of the petitioner from the office of Sarpanch has not yet been de-notified, so, to my mind, the mere passing of the alleged resolution of 'No Confidence Motion' (Annexure P-9) ipso-facto is not sufficient for his removal from the post of Sarpanch, unless all the other formalities, including the statutory formality of Civil Writ Petition No.20190 of 2010 6 de-notifying the name of Sarpanch are complete. In that eventuality, the petitioner (earlier elected as Sarpanch) will be deemed to continue as Sarpanch of the Gram Panchayat of the village. 16. Similar question came to be disposed of by this Court in case Baljit Kaur Vs. State of Punjaband others (2011-1) P.L.R. 560, wherein, having noticed the provisions of Section 19 of the Act, Rule 45 and amended Rule 45-A of the Punjab Panchayat Election (Amendment) Rules, 2008 and other relevant legal provisions, it was held that “mere passing of a resolution of No Confidence Motion is not sufficient, unless name of the earlier elected Sarpanch is de-notified by the State Government and he will be deemed to be a Sarpanch of Gram Panchayat of his village.” The law laid down in the aforesaid judgment “mutatis mutandis” is applicable to the facts of the present case as well. 17. In this manner, thus seen from any angle, the impugned resolution (Annexure P-9) cannot legally be maintained, in the obtaining circumstances of the case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 19. In the light of aforesaid reasons, the instant writ petition is accepted. Consequently, the impugned resolution (Annexure P-9) is hereby set aside in this behalf. 20. Needless to mention here that the natural consequences will follow accordingly. March 29, 2011 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter? Yes/No