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1975 Supreme(P&H) 114
PUNJAB & HARYANA HIGH COURT
R.S.Narula and K.S.Tiwana JJ.
Hardatt Singh
Versus
Block Development And Panchayat Officer
Civil Writ No. 3274 of 1975,
Decided On : AUGUST 25, 1975
A meeting for the passing of no-confidence motion against the Sarpanch must be conducted as far as possible in the same manner as provided in Rule 39 of the Haryana Gram Panchayat Election Rules, 1971.
Headnote:
PANCHAYAT - NO-CONFIDENCE MOTION - PUNJAB GRAM PANCHAYAT ACT, 1952, SEC. 9(2) - HARYANA GRAM PANCHAYAT ELECTION RULES, 1971, R. 38, 39 - MEETING FOR PASSING NO-CONFIDENCE MOTION AGAINST SAMPANCH - PROCEDURE - SECRET BALLOT - ESTOPPEL.
Fact of the Case:
A vote of no-confidence was passed against the petitioner, who was the Sarpanch of the Gram Panchayat, in an extraordinary general meeting of the Panchayat held on March 20, 1975, by a majority of 3 to 2. The resolution was set aside by a Division Bench of the High Court on the ground that the meeting was presided over by one of the Panches and not by the Block Development and Panchayat Officer or any other authorized officer. A fresh meeting was held on May 28, 1975, in which the vote of no-confidence was again passed by a majority of 3 to 2. The petitioner challenged the validity of the second meeting on four grounds: (1) that the first proviso to the second proviso in sub-sec. (2) of Sec. 9 of the Punjab Gram Panchayat Act, 1952, as amended in Haryana, bars the convening of a meeting for considering a proposal for no-confidence similar to the one which was not passed at a meeting held within one year prior to the meeting in which the impugned resolution was passed; (2) that the second proviso to sub-sec. (2) of Sec. 9 makes the previous permission of the Director for holding a meeting for passing a vote of no-confidence against a Sarpanch a condition precedent and inasmuch as such permission was not separately obtained for the meeting in which the impugned resolution was now passed, the meeting should be deemed to have been held without the requisite permission; (3) that a resolution of no-confidence under the second proviso to sub-sec. (2) of Sec. 9 can only be passed by the Panchayat which is constituted according to the provisions of the Act and inasmuch as the Panchayat which purports to have passed the resolution consisted of only 5 member as against the prescribed strength of 7 members, the Panchayat was not constituted properly and no valid resolution of no-confidence could be passed by such a Panchayat; and (4) that in the absence of any statutory provision contained in the Act or in the Rules framed thereunder, providing for the manner of calling and conducting the meeting for passing a resolution of no-confidence, it is necessary that the same procedure should be followed for the conduct of such a meeting as is prescribed by rules 38 and 39 of the Rules as held by a Division Bench of this Court in Dharam Singh V/s. State of Haryana, 1974 0 PunLJ 365; and inasmuch as the said procedure for the conduct of the meeting was not followed in the instant case by votes having been allowed to be cast openly by the show of hands and not by secret ballot as required by the aforesaid rules, the proceedings of the meeting resulting in the passing of the impugned no-confidence motion are liable to be quashed.
Finding of the Court:
The High Court held that: (1) the first two contentions of the petitioner were devoid of merit as the previous permission granted by the Director would lapse only if and after the no-confidence motion is considered in a legally held meeting and it is either passed or defeated; (2) the Panchayat was properly constituted and the mere fact that two of its members had died would not render the constitution of the Panchayat illegal; (3) the meeting for the passing of no-confidence motion against the Sarpanch must be conducted as far as possible in the same manner as provided in Rule 39 of the Haryana Rules; (4) the meeting, dated 28.05.1975, was not conducted in accordance with rule 39(6) of the Haryana Rules in so far as the panches present in the meeting were not directed to cast their secret ballots but were allowed to vote openly by the show of hands; and (5) the petitioner was not estopped from challenging the legality of the no-confidence meeting as he did not take part in the re-election which was held as a consequence of the Sarpanch being outvoted at the no-confidence meeting.
Issues: 1. Whether the first proviso to the second proviso in sub-sec. (2) of Sec. 9 of the Punjab Gram Panchayat Act, 1952, as amended in Haryana, bars the convening of a meeting for considering a proposal for no-confidence similar to the one which was not passed at a meeting held within one year prior to the meeting in which the impugned resolution was passed? 2. Whether the second proviso to sub-sec. (2) of Sec. 9 makes the previous permission of the Director for holding a meeting for passing a vote of no-confidence against a Sarpanch a condition precedent? 3. Whether a resolution of no-confidence under the second proviso to sub-sec. (2) of Sec. 9 can only be passed by the Panchayat which is constituted according to the provisions of the Act? 4. Whether in the absence of any statutory provision contained in the Act or in the Rules framed thereunder, providing for the manner of calling and conducting the meeting for passing a resolution of no-confidence, it is necessary that the same procedure should be followed for the conduct of such a meeting as is prescribed by rules 38 and 39 of the Rules? 5. Whether the petitioner is estopped from challenging the legality of the no-confidence meeting?
Ratio Decidendi: 1. The first two contentions of the petitioner were devoid of merit as the previous permission granted by the Director would lapse only if and after the no-confidence motion is considered in a legally held meeting and it is either passed or defeated. 2. The Panchayat was properly constituted and the mere fact that two of its members had died would not render the constitution of the Panchayat illegal. 3. The meeting for the passing of no-confidence motion against the Sarpanch must be conducted as far as possible in the same manner as provided in Rule 39 of the Haryana Rules. 4. The meeting, dated 28.05.1975, was not conducted in accordance with rule 39(6) of the Haryana Rules in so far as the panches present in the meeting were not directed to cast their secret ballots but were allowed to vote openly by the show of hands. 5. The petitioner was not estopped from challenging the legality of the no-confidence meeting as he did not take part in the re-election which was held as a consequence of the Sarpanch being outvoted at the no-confidence meeting.
Final Decision: The petition was allowed and the impugned resolution of no-confidence against the petitioner passed at the extraordinary general meeting of the Panchayat held on 28.05.1975, was annulled leaving it open to the Block Development and Panchayat Officer to convene and hold a fresh meeting for the consideration of the motion in accordance with law in the light of the observations made above.
1. Out of the 7 members who originally constituted the Gram Panchayat of village Neela Heri, 2 had died leaving the Panchayat to be constituted by the remaining five. A vote of no-confidence was passed against the petitioner who was the Sarpanch of the said Panchayat in an extraordinary general meeting of the Panchayat held on March 20, 1975, by a majority of 3 to 2. The no-confidence resolution passed in that meeting was, however, set aside by a Division Bench of this Court (R.N. Mittal and Bains, JJ.) on May 16, 1975, while allowing the present petitioner s Civil Writ Petition No. 2234 of 1975. It is the common case of both sides that the only ground on which that petition was allowed and the resolution of no-confidence, dated March 20, 1975, was annulled was that the meeting in question had been presided over by one of the Panches and not by the Block Development and Panchayat Officer or any other officer authorised by him. After the decision of the Division Bench in the previous writ petition, the Block Development and Panchayat Officer respondent No. 1, issued a fresh notice, dated May 21, 1975, convening a fresh extraordinary general meeting of the Gram Panchayat for May 28, 1975. In that meeting again the vote of no-confidence against the petitioner was passed by a majority of 3 to 2. Copy of the resolution passed at that meeting is Annexure P. 1.
2. The validity and legality of the second meeting held on 28.05.1975, has now been impugned in the present petition before us on four grounds, namely:-
(1) that the first proviso to second proviso in sub-sec. (2) of Sec. 9 of the Punjab Gram Panchayat Act, 1952, as amended in Haryana, bars the convening of a meeting for considering a proposal for no-confidence similar to the one which was not passed at a meeting held within one year prior to the meeting in which the impugned resolution was passed;
(2) that the second proviso to sub-sec. (2) of Sec. 9 makes the previous permission of the Director for holding a meeting for passing a vote of no-confidence against a Sarpanch a condition precedent and inasmuch as such permission was not separately obtained for the meeting in which the impugned resolution was now passed, the meeting should be deemed to have been held without the requisite permission; the argument being that the permission granted by the Director for the previous meeting held on 20.03.1975, lapsed with the holding of that meeting and fresh consent was necessary as a sine qua non for the holding of the meeting on 28.05.1975;
(3) that a resolution of no-confidence under the second proviso to sub-sec. (2) of Sec. 9 can only be passed by the Panchayat which is constituted according to the provisions of the Act and inasmuch as the Panchayat which purports to have passed the resolution consisted of only 5 member as against the prescribed strength of 7 members, the Panchayat was not constituted properly and no valid resolution of no-confidence could be passed by such a Panchayat; and
(4) that in the absence of any statutory provision contained in the Act or in the Rules framed thereunder, providing for the manner of calling and conducting the meeting for passing a resolution of no-confidence, it is necessary that the same procedure should be followed for the conduct of such a meeting as is prescribed by rules 38 and 39 of the Rules as held by a Division Bench of this Court in Dharam Singh V/s. State of Haryana, 1974 0 PunLJ 365; and inasmuch as the said procedure for the conduct of the meeting was not followed in the instant case by votes having been allowed to be cast openly by the show of hands and not by secret ballot as required by the aforesaid rules, the proceedings of the meeting resulting in the passing of the impugned no-confidence motion are liable to be quashed.
3. The first two points urged by the learned counsel for the petitioner appear to us to be based on a misconception of the legal position. The no-confidence motion was sought to be introduced aga
