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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
SINDHU SHARMA, J.
Parveen Akhter – Petitioner
Versus
UT of J&K and Others – Respondents
WP (C) No. 1831 of 2020, CM No. 6506 of 2020
Decided On : 05-08-2022
Removal - Sarpanch - Jammu and Kashmir Panchayati Raj Act, Section 7, Rule 81 - The court discussed the provisions of Section 7 and Rule 81 of the Jammu and Kashmir Panchayati Raj Act, which provide for the removal of a Sarpanch or Naib Sarpanch on grounds of gross misconduct, neglect of duty, disqualification, or failure to attend meetings. The court emphasized the importance of following the prescribed procedure for removal and highlighted the requirement of a resolution expressing want of confidence passed by a majority of not less than 2/3rd of the total number of Panches. The court also noted that the will of the majority and the elected representatives must be respected in a democratic society.
Fact of the Case:
The petitioner sought quashing of her removal as Sarpanch of Panchayat, Kandi (Upper Block), Budhal, District Rajouri, and a direction to reinstate her. The Panches moved a resolution seeking her removal on allegations of misconduct. The petitioner alleged violation of principles of natural justice and removal in contravention to the Panchayati Raj Act.
Finding of the Court:
The court found that the removal of the petitioner was in accordance with the provisions of the Panchayati Raj Act, as the resolution expressing want of confidence was passed by all the Panches. The court emphasized that the petitioner was informed of the notice but chose to remain absent, and therefore, cannot claim that she was not heard. The court also noted that an enquiry into the allegations was being conducted by the respondents.
Issues: The issues involved the alleged violation of principles of natural justice, contravention to the Panchayati Raj Act, and the petitioner's absence during the meeting for her removal.
Ratio Decidendi: The court held that the removal of the petitioner was in accordance with the prescribed procedure under the Panchayati Raj Act, and the will of the majority must be respected in a democratic society. The court also emphasized that the petitioner's deliberate absence during the meeting did not constitute a violation of principles of natural justice.
Final Decision: The petition was dismissed as the court found no infirmity with the order impugned, and the removal of the petitioner was held to be in accordance with the Panchayati Raj Act.
JUDGMENT :
SINDHU SHARMA, J.
1. The petitioner seeks quashing of her removal as Sarpanch of Panchayat, Kandi (Upper Block), Budhal, District Rajouri vide order/minutes of meeting dated 24.09.2020. She also seeks a direction to the respondents to reinstate her as Sarpanch of Panchayat, Kandi (Upper Block), Budhal, District Rajouri.
2. The Panches of Panchayat, Kandi (Upper Block), Budhal, District Rajouri moved a resolution on 11.09.2020, seeking removal of the petitioner by moving a No Confidence Motion against her on serious allegations of misconduct regarding violation of Jammu and Kashmir Panchayati Raj Act and had sought convening of a special meeting in this regard.
3. The Secretary, Panchayat Halqa, Kandi (Upper Block), Budhal, District Rajouri informed the Chairman, B.D.C. Budhal that seven Panches of Panchayat, Kandi (Upper Block), Budhal, District Rajouri have sought convening of a special meeting regarding No Confidence Motion against the petitioner and the Chairman, B.D.C. Budhal in this regard requested him to proceed over the same in terms of the Rules.
4. The Secretary, Panchayat Halqa, Kandi (Upper Block), Budhal, District Rajouri on 13.09.2020, issued notice to all the members of Panchayat regarding convening of a special meeting on 24.09.2020 to be presided over by the Chairman, B.D.C. On 24.09.2020, a special meeting regarding No Confidence Motion against the petitioner was held in the office of Chairman, B.D.C. which was attended by all the seven Panches of Panchayat. All the Panches supported No Confidence Motion against the petitioner and, accordingly, the petitioner was removed as Sarpanch and the charge of Sarpanch was given to Naib Sarpanch.
5. The grievance of the petitioner is that the Panches had already approached the Court and filed a writ petition bearing WP (C) No. 1540 of 2020 titled Zatoon Begum and Others vs. Union Territory of J&K and Others. This writ petition was decided on 09.10.2020, by directing the Director, Rural Development and Panchayati Raj, Jammu to look into the matter and same should be taken to the logical end.
6. It is urged that the respondents, instead of enquiring into the allegations against the petitioner by giving her an opportunity of hearing have removed the petitioner from the post of Sarpanch in violation of the principles of natural justice. The respondent No. 6, in connivance with all the Panches of the Panchayat and at the back of the petitioner had also taken away the financial powers of the petitioner as Sarpanch arbitrarily. It is also stated that respondent No. 7 in connivance with all the Panches issued minutes of meeting/order dated 24.09.2020 at the back of the petitioner without informing her of the same. It is further submitted that even in the enquiry, in terms of the directions of this Court in writ petition titled Zatoon Begum and Others vs. Union Territory of J&K and Others, the respondents had directed all the seven Panches to attend the meeting but no such intimation was given to the petitioner. The meeting was convened by the respondents without issuing any notice of intention to move a resolution for removing the petitioner from the post of Sarpanch was served upon her, therefore, the removal of the petitioner from the post of Sarpanch was in contravention to Rule 81 read with Section 7 of the Panchayati Raj Act, as such, the same being arbitrary, illegal and the same is required to be set aside.
7. The official respondents, in their objections, have stated that on 12.09.2020, the Secretary of Panchayat Halqa, Kandi (Upper Block), Budhal, District Rajouri informed the Chairman, B.D.C. Budhal that seven Panches of Panchayat Kandi (Upper Block), Budhal, District Rajouri have sought the convening of a meeting regarding No Confidence Motion against the petitioner and requested the Chairman, B.D.C. Budhal that the meeting be presided over by the B.D.C. Chairman in terms of the Rules.
8. It is submitted that on 13.09.2020, the Secretary, Panchayat Halqa Kandi (Up
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