Civil Writ Petition No.2843 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 5.4.2011 Gurnam Singh ....Petitioner Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Nakul Sharma, Advocate for the petitioner. Mr.Palwinder Singh, Sr. Deputy Advocate General, Punjab for respondent Nos.1 to 4. Mr.V.K.Sandhir, Advocate for respondent No.5. M ehinder S ingh S ullar, J. (Oral) The compendium of the facts, culminating in the commencement, relevant for disposal of the instant writ petition and emanating from the record, is that in the wake of general Gram Panchayat elections, the petitioner-complainant was elected as a Panch, while Mal Singh (respondent No.5) was elected as a Sarpanch of Gram Panchayat of village Paprali, District Ropar, in view of the provisions of The Punjab Panchayati Raj Act, 1994 (hereinafter to be referred as “the Act”). The petitioner and three other members panchayat moved an application/complaint dated 1.9.2009 (Annexure P1) against the Sarpanch. The Block Development and Panchayat Officer (for brevity “BDPO”) (respondent No.4) sent his report dated 15.10.2009 (Annexure P2) to the District Development & Panchayat Officer (for short “DDPO”) (respondent No.3). The DDPO further referred the matter to the Director, Rural Development and Panchayat Department (for brevity “Director”) (respondent No.2), by virtue of report dated 22.10.2009 (Annexure P3). The matter was further inquired into by the Additional Deputy Commissioner (Development), who sent his report dated 15.9.2010 (Annexure P5) to the Director. 2. Acting on the inquiry reports, show cause notice (Annexure P6) was Civil Writ Petition No.2843 of 2011 2 issued to Mal Singh Sarpanch, who submitted his reply (Annexure P7). Taking into consideration the entire material on record, the Director removed him (respondent No.5) from the post of Sarpanch, by means of order dated 11.11.2010 (Annexure P8). 3. Aggrieved by the order (Annexure P8), respondent No.5 filed the appeal (Annexure P9), which was accepted by the Financial Commissioner and Secretary, Department of Rural Development and Panchayats, Punjab (respondent No.1) (for short “appellate authority”), by way of impugned order dated 27.12.2010 (Annexure P10), without impleading the petitioner-complainant as a party. 4. The petitioner-complainant did not feel satisfied and preferred the instant writ petition, challenging the impugned order (Annexure P10), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. 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 present writ petition deserves to be accepted in this context. 6. As is evident from the record, that the Director considered the following allegations:- “Sh.Mall Singh, Sarpanch has made illegal encroachment over the common land of the Gram Panchayat. The Sarpanch has neither taken any action for the removal of encroachment from the said place nor any meeting has been called in this regard. He never informed regarding the illegal encroachment to the higher officers. Hence, Sarpanch has misused his post.” 7. In view of these allegations, Mal Singh respondent No.5 was removed from the post of Sarpanch by the Director, through the medium of order dated 11.11.2010 (Annexure P8), which, in substance, is as under :- “I have come to this conclusion that the allegation for illegal encroachment leveled against Sh.Mall Singh, Sarpanch has been fully proved. Therefore, he may not be allowed to continue on the post in public interest. Hence, Sh.Mall Singh, Sarpanch, Gram Panchayat Paprali, Block Morinda, District Ropar is hereby removed from the post under Section 20 (1)(2) of the Punjab Panchayati Raj Act, 1994 and he will be restrained from Civil Writ Petition No.2843 of 2011 3 contesting election for next five years. District Development and Panchayat Officer, Ropar is directed to send report after clearing illegal encroachment from the Sarpanch.” 8. The appellate authority has not adhered to the grounds of removal indicated in the order of Director and illegally accepted the appeal of respondent No.5, vide impugned order dated 27.12.2010 (Annexure P10), the operative part of which is as under:- “After hearing arguments of both the parties, I have come to the conclusion that appellant has taken every possible step to remove the illegal encroachment i.e. for conducting demarcation from Tehsildar, application has been made to Block Development and Panchayat Officer and made request for the appointment of administrator. The opposite party only wants to remove the appellant from the post of Sarpanch. There is weightage in the reasoning of the appellant that he has done his all efforts for the removal of illegal encroachments. Therefore, the charges leveled against the appellant has never proved against him. Hence, the appeal of the appellant is hereby accepted and he is reinstated to the post of Sarpanch.” 9. Meaning thereby, the Director has removed the Sarpanch on three counts (i) Mal Singh Sarpanch has made illegal encroachment over the common land of the Gram Panchayat; (ii) he did not take any action for the removal of encroachment from the other persons and (iii) he never informed regarding the illegal encroachment to the higher officers. The appellate authority just ignored the cogent indicated grounds of removal with impunity and accepted the appeal of respondent No.5 in a very casual and routine manner, without deciding the real controversy between the parties. 10. There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that in view of the complaint (Annexure P1) made by the petitioner-complainant and on the basis of inquiry reports (Annexures P2, P3 and P5), the Director removed respondent No.5 from the post of Sarpanch, but he filed the appeal, which was decided by the appellate authority without impleading the petitioner-complainant as a party. That means, since the petitioner was the aggrieved party, so, the appellate authority slipped into a legal error in accepting the appeal (Annexure P9) filed by respondent No.5 even without issuing notice to the petitioner, who was a necessary party, in view of law Civil Writ Petition No.2843 of 2011 4 laid down by the 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. 11. Therefore, the argument of learned counsel for the petitioner that the impugned order (Annexure P10) is not only illegal, arbitrary and against the statutory provisions of the Act, but against the principles 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. Thus seen from any angle, the impugned order (Annexure P10) cannot legally be maintained in the obtaining circumstances of the case. 12. 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 P10) 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-complainant and by passing a speaking order in accordance with law. 13. The parties through their counsel are directed to appear before the appellate authority (respondent No.1) on 16.5.2011 for further proceedings. 14. Needless to state 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) 5.4.2011 Judge AS Whether to be referred to reporter ?Yes/No