The main legal point established is that the no-confidence motion against a Sarpanch must be adopted by a majority of two-thirds of the members present at the time of voting, as per Rule 81(3) of the Jammu and Kashmir Panchayati Raj Rules, 1996.

ORDER :

1. The Petitioner claims to have successfully contested the Panchayat Elections of 2018 having secured 520 votes out of 950. It is stated that, thereafter, the Petitioner contested for the post of Sarpanch in Khowerpara “A”, Tangdhar and was declared elected as such by the electorate of Panches of Halqa Panchayat. On 23rd of July, 2021, a notice of intention to move a motion for the removal of the Petitioner as Sarpanch under Section 7 is stated to have been served upon Respondent No.8 signed by 1/3rd majority of the total number of Panches of Halqa Panchayat. On 24th of July, 2021, a meeting notice was served to all the concerned members, including the Petitioner vide No. SPH/KHA/31-35 dated 24th of July, 2021, for remaining present at the Panchayat Office in Panchayat Khowerpora-A on 26th of July, 2021 at 11:00 AM. Thereafter, on 26th of July, 2021, as stated, the said meeting presided by the Respondent No.4 was conducted, wherein notice for want of confidence was read out in presence of the Petitioner and Panchayat Members and it was unanimously decided to conduct a special meeting on want of confidence on 9th of August, 2021 as per Section 7 of the Panchayati Raj Act, 1989. On 9th of August, 2021, it is pleaded that the special meeting on want of confidence presided over by the Respondent No.4 was held, wherein the motion was allowed to be moved and discussed and upon conclusion of the debate, the motion was put to vote. It is also stated that only seven (07) out of the eight (08) members were present at the time of Special meeting and that five out of eight Panches voted in opposition of the Petitioner, whereas two (02) members, who were present, voted in favour of the Petitioner. It is contended that the respondent No.16, who was absent due to illness, in terms of communication dated 10th of August, 2021, voted in favour of the Petitioner and in unequivocal terms reposed her confidence in favour of the Petitioner. Thereafter, on 10th of August, 2021, the Respondent No.8 is stated to have issued communication No. PJT/12/KRA/46-48 dated 10th of August, 2021 addressed to the Respondent No.6, thereby requesting him to provide further direction in the light of the mandate of the Act of 1989 and Rules of 1996. On 11th of August, 2021, the Respondent No.4 issued communication No. BDCT/02 dated 11th of August, 2021 addressed to respondent No.9 for taking further necessary action in the matter pursuant to the report of Respondent No.8 regarding non-confidence motion against the Petitioner. It is these two communications dated 10th of August, 2021 and 11th of August, 2021 that have been assailed by the Petitioner through the medium of the Petition in hand on the grounds detailed therein.

2. Mr. A.M. Dar, the learned Senior Counsel, appearing for the Petitioner, submitted that the impugned communications have been issued in gross violation of the mandate of Section 7 of the Jammu and Kashmir Panchayati Raj Act, 1989, inasmuch as the vote of no confidence motion has to be passed by a resolution expressing want of confidence in a Sarpanch or Naib Sarpanch, as the case may be, by a majority of not less than 2/3rd of the total number of the Panches of the concerned Halqa Panchayat. In the case on hand, there were admittedly nine (09) Panches, one of whom died, therefore, out of eight (08) Panches, not less than six (06) Panches should be present to vote against no-confidence motion, while as in the instant case, as is evident from the impugned communications, only seven (07) Panches were present, out of which only five (05) voted in favour of the motion to remove the Petitioner as Sarpanch.

3. Mr. Mir Suhail, the learned Additional Advocate General, representing the Respondents, submitted that in terms of the mandate of Rule 81 of the Jammu and Kashmir Panchayati Raj Rules, 1996, the requirement is that the motion of no confidence against a Sarpanch has to be adopted by a majority of two-third of the members present at the time of