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Mukhtiar Singh Vs. the Director, Panchayats, Punjab, Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 4095 of 1980
Judge
Reported inAIR1981P& H358
ActsPunjab Gram Panchayat Act - Sections 9(4) and 102(4)
AppellantMukhtiar Singh
RespondentThe Director, Panchayats, Punjab, Chandigarh and ors.
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1) rescinded the suspension of karnail singh holding that the latter had appeared before him and he was satisfied with his explanation. the vote of no-confidence passed against him in this meeting is liable to be quashed on this ground as well. --9. (1) before entering upon the duties of his office, a panch as well as a sarpanch shall take in oath in the form specified in schedule iv......singh petitioner was elected sarpanch of panchayat midha, tahsil muktsar, district faridkot, karnail singh respondent and seven others detailed in paragraph no. 2 of the writ petition are the members of this panchayat, karnail singh respondent and five others panches moved an application on october 13, 1980, before the district development and panchayat officer (hereinafter the ddpo) respondent for calling a meeting for moving a vote of no-confidence against the petitioner. the ddpo fixed a meeting for this purpose on november 8, 1980. the meeting was convened on the date fixed and was attended by the petitioner and the remaining eight members of the panchayat. a vote of confidence was moved against the petitioner which was carried by six votes in its favour. during the same.....
Judgment:
ORDER

1. Mukhtiar Singh petitioner was elected Sarpanch of Panchayat Midha, Tahsil Muktsar, District Faridkot, Karnail Singh respondent and seven others detailed in Paragraph No. 2 of the writ petition are the members of this Panchayat, Karnail Singh respondent and five others Panches moved an application on October 13, 1980, before the District Development and Panchayat Officer (hereinafter the DDPO) respondent for calling a meeting for moving a vote of no-confidence against the petitioner. The DDPO fixed a meeting for this purpose on November 8, 1980. The meeting was convened on the date fixed and was attended by the petitioner and the remaining eight members of the Panchayat. A vote of confidence was moved against the petitioner which was carried by six votes in its favour. During the same meeting Karnail Singh respondent alone was proposed to be elected as a Sarpanch of the Panchayat and was consequently declared elected.

2. A complaint was made against Karnail Singh respondent that despite notice and knowledge he had not attended by Panchayat; meeting for over a year since before August 22, 1979. The DDPO vide order dated November 3, 1980(P. 1) placed him under suspension under Section 102(4) of the Punjab Gram Panchayat Act (hereinafter the Act) and further restrained him from attending the meeting of the Gram Panchayat, Midha. The DDPO vide order dated November 4, 1980(p. 1) rescinded the suspension of Karnail Singh holding that the latter had appeared before him and he was satisfied with his explanation. Karnail Singh respondent thus attended the meeting of the Panchayat held on November 8, 1980, wherein vote of no confidence against the petitioner was carried by six votes.

3. The petitioner has filed the present writ petition praying that the vote of no confidence against him on November 8, 1980, be quashed inasmuch as he had not been given a notice for that purpose as prescribed under law and further the suspension order against Karnail Singh respondent which was passed on November 4, 1980, with the result that his participation in the meeting no November 8, 1980, was illegal. It is also the case of the petitioner that the meeting held on November 8, 1980, had not been called within the statutory period. The vote of no-confidence passed against him in this meeting is liable to be quashed on this ground as well.

4. The DDPO and Karnail Singh respondent in their separate returns denied that the order dated November 4, 1980. Rescinding the suspension of Karnail Singh was illegal or he could not participate in the meeting held on November 8, 1980. It was also denied that the meeting had not been called within the statutory period or the petitioner had not been served for the same.

5. Section 9 of the Act deals with the oath and terms of office of Panches and Sarpanch and no-confidence motion against Sarpanch. It reads:--

9. (1) Before entering upon the duties of his office, a Panch as well as a Sarpanch shall take in oath in the form specified in Schedule IV.

(2) A Sarpanch or a Panch shall hold office for period of five years.

Provided that an outgoing Sarpanch or a Panch shall unless Government otherwise directs, continue to hold office until his successor takes oath.

(3) An application regarding intention to move a motion of no-confidence against a Sarpanch may be made to the Block Development and Panchayat Officer by a simple majority of the total number of Panches of the Gram Panchayat concerned:

Provided that no such application shall be made unless a period of two years has elapsed from the date on which the Sarpanch assumed his office.

(4) The Block Development and Panchayat Officer shall, within a period of fifteen days of the receipt of application under sub-section (3),convene a meeting of the Gram Panchayat, by giving seven clear days' notice, for discussing and taking decision on the no-confidence motion.

(5)................................'

It is not disputed that Karnail Singh respondent and five others moved an application before the DDPO on October 13, 1980, requesting that a meeting of the Panchayat be called for considering a vote of no-confidence against the Sarpanch (petitioner). The DDPO vide order dated October 23, 1980, called the meeting for this purpose on November 8, 1980. The contention of the learned counsel for the petitioner is that under Section 9(4) of the Act it was incumbent for the DDPO to convene a meeting within 15 days from October 13, 1980, and as the meeting was called for November 8, 1980, it was illegal. I am not impressed by this contention. The main point to be considered in the context of the contention of the learned counsel for the petitioner is whether relevant provision contained in sub-section (4) is mandatory or directory. In my opinion, the provision contained in this sub-section is directory and not mandatory. In the event of this provision being mandatory, the DDPO can easily frustrate the move for passing a vote of no-confidence against the Sarpanch by not calling any meeting within a period of 15 days of the receipt of the application. This could never be the intention of the Legislature nor is such intention reflected in sub-section (4). This sub-section as it stands makes it desirable for the DDPO to fix a meeting for considering the no-confidence motion against the Sarpanch within 15 days of the receipt of the application. The meeting fixed by the DDPO for considering such motion beyond the period of 15 days from the date of the receipt of the application cannot be stamped illegal.

6. The learned counsel for the petitioner has argued that Karnail Singh respondent was placed under suspension on November 3, 1098, and the DDPO had no jurisdiction to rescind this suspension order on November 4, 1980, without issuing notice to the petitioner. I see no force in this contention. Karnail Singh respondent was placed under Suspension under Section 102(4) of the Act on the ground that he did not attend any meeting of the Panchayat since August 22, 1979. This order was passed against Karnail Singh ex parte. On November 4, 1980, Karnail Singh appeared before the DDPO and submitted his explanation which was found satisfactory. The DDPO consequently rescinded the order of his suspension dated November 3, 1980. It is true that the petitioner was a Sarpanch of the Panchayat on November 4, 1980. He had, however, no right to be heard before rescinding the suspension order of Karnail Singh on November suffers from no legal infirmity. Another point urged by the learned counsel for the petitioner in this connection is that the DDPO had not jurisdiction to review this order dated November 3, 1980. This contention is neither here nor there. The DDPO passed an ex parte order against Karnail Singh on November 3, 1980. He was competent to set aside the ex parte order on November 3, 1980, after Karnail Singh had sumitted his explanation which was found satisfactory.

7. The learned counsel for the petitioner has argued that under Section 9(4) of the Act it was incumbent for the DDPO to give seven days clear notice of the meeting called for discussing ad taking decision on the no-confidence motion. The petitioner was not served any notice at all. On November 8, 1980, he learnt about the meeting which was being convened on that date. He attended this meeting protesting. That he had not been served a notice. The meeting called on November 8, 1980. Is thus illegal. The vote of no-confidence passed against him in that meeting is liable to be quashed. In my opinion this contention must prevail. It is the case of the respondent that on October 28, 1980, notice were sent by the DDPO to the Chaukidar of the village for effecting service on the Sarpanch and Panches. The Panches were served and their signature obtained. But the Sarpanch (petitioner) was not available. The Chaukidar affixed a copy of the notice at the residence of the petitioner. It is this clear that even according to the respondent, the personal service of the petitioner for the meeting fixed for November 8, 1980, was not effected. The learned counsel for the respondents has argued that the substituted service of the petitioner effected by affixing a copy of the notice at his residence by the Chaukidar is sufficient to meet the requirement of section 9(4) of the Act. I do not agree with this contention. It is not disputed that the DDPO did not direct that the substituted service of the petitioner be effected. The Chaukidar of the village who had been sent notices to be served upon the Panches and Sarpanch was not competent to decide whether substituted service is to be effected or not. The substituted service effected by the Chaukidar by affixing the notice at the residence of the petitioner on October 28, 1980, is no service of the petitioner in the eye of law. It is therefore evident that the petitioner had not been given seven days clear notice in terms of section 9(4) of the Act for the meeting which was fixed for November 8, 1980, for discussing and taking decision on the no-confidence motion against him. The provision contained in Section 9(4) of the Act is mandatory. That fact that the petitioner attended the meeting on November 8, 1980(without notice), will not cure the defect which will continue to be fatal. The meeting fixed for November 8, 1980, being illegal, the vote of no confidence passed therein against the petitioner is liable to be quashed.

8. In view of the discussion above, I accept the writ petition and quash the proceedings taken in the meeting of the Panchayat held on Nov. 8, 1980. Consequently, the vote of no confidence passed against the petitioner and the election of Karnail Singh respondent and the election of Karnail Singh respondent as a Sarpanch stand quashed. The DDPO is directed to convene a meeting of the Panchayat afresh within six weeks for discussing and taking decision on the no confidence motion against the petitioner. No order as to costs.

9. Petition allowed.


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