Allowed

Manpreet Kaur v. State of Punjab and Ors.

Punjab & Haryana HC2 Feb 2011CWP/18496/2010

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged her removal as Sarpanch following a no-confidence motion. The High Court set aside the notice and resolution, holding that the statutory requirement of seven clear days' notice under the Punjab Panchayati Raj Act, 1994 was violated.

What did the court decide?

The impugned notice, the resolution of no confidence, and all subsequent proceedings arising therefrom have been set aside with costs to the petitioner.

Manpreet Kaur Vs State of Punjab and Ors. — Election Law | Punjab & Haryana HC (2011)

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In the High Court for the States of Punjab and Haryana at Chandigarh

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CWP No. 18496 of 2010

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Date of decision: February 2,2011

Manpreet Kaur

..Petitioner.

Versus

The State of Punjab and others

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..Respondents

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Coram: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR

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Present: Mr. J.S.Brar, Advocate for the petitioner. Mr. Palwinder Singh, Sr. DAG, Punjab for the respondent Nos. 1 and 2. Mr. Rajesh Girdhar, Advocate for respondent Nos. 3 to 8

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Mehinder Singh Sullar , J. (Oral)

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Tersinessly, the brief facts which require to be noticed, for a limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that in the wake of general Gram Panchayat Elections, the petitioner was elected as a Sarpanch, whereas respondent Nos. 3 to 9 were elected as Panches of the Gram Panchayat of village Danewala, on 17.7.2008, in view of the provisions of The Punjab Panchayati Raj Act,1994 (hereinafter to be referred as “the Act”). Since then, she was stated to have been working to the entire satisfaction of all the members of the Gram Sabha in general and Gram Panchayat in particular.

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The petitioner claimed that the Block Development and Panchayat Officer( respondent No.2) issued the notice dated 15.9.2010 (Annexure P-1), to convene the meeting of the Gram Panchayat to consider “no confidence motion” on 22.9.2010, but no such notice was stated to have been served upon the

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petitioner. The respondent No.2 was stated to have presided over the alleged meeting, wherein a resolution of “no confidence motion” was passed and petitioner was illegally removed from the office of Sarpanch, vide resolution dated 22.9.2010 (Annexure P-2) in this context.

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The petitioner did not feel satisfied and filed the instant writ petition, challenging the impugned notice (Annexure P-1) and resolution (Ananexure P-2), invoking the provisions of the Articles 226 and 227 of the Constitution of India.

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The case set up by the petitioner, in brief in so far as the relevant, was that neither any notice dated 15.9.2010 (Annexure P-1) was issued to her, nor any proper meeting was convened on 22.9.2010, in which, she was illegally removed by the respondents. The impugned notice (Annexure P-1) and resolution (Annexure P-2) were stated to be illegal, arbitrary and against the provisions of the Act.

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Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that she has been illegally removed from the office of Sarpanch by the respondents at the instance of the members of ruling party as she belongs to Congress party, by means of illegal and arbitrary notice and resolution . On the basis of the aforesaid allegations, the petitioner sought the quashment of impugned notice (Annexure P-1) and resolution (Annexure P-2) in the manner indicated here-in-above.

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The respondents contested the claim of the petitioner. Respondent Nos. 1 and 2 filed their joint written statement, while private respondent Nos. 3 to 8 filed their separate written statements, inter alia pleading certain preliminary objections of maintainability of the writ petition, locus standi and cause of action of the petitioner. They pleaded that on account of the demand of majority of the Panches, notice (Annexure P-1) was rightly issued to convene the meeting on 22.9.2010 for considering the resolution of “no confidence motion” against the

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petitioner as per law. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal.

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Having heard learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind the instant writ petition deserves to be accepted for the reasons mentioned herein below.

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As is evident from the record, that the notice dated 15.9.2010 (Annexure P-1) was stated to have been issued (which was denied by the petitioner), to convene a meeting on 22.9.2010 to consider the resolution of “no confidence motion”. Section 19(2) of the Act postulates that The Block Development and Panchayat Officer shall, within a period of fifteen days of the receipt of application under sub-section(1), convene a meeting of the Gram Panchayat by giving seven clear days in notice, for discussing and taking decision on the no-confidence motion. That means “seven clear days” notice is legally required to be issued to convene a meeting to consider the “no confidence motion”.

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What is not disputed here is that notice (Annexure P-1) is dated 15.9.2010 to convene a meeting on 22.9.2010 and no such notice by giving seven clear days was given in the instant case. Thus, there was a complete violation of the statutory and mandatory provisions of the Act. This matter is not res-integra and is well settled.

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An identical question arose before a Division Bench of this Court in case Mohinder Singh Versus State of Punjab and others 2006(2) R.C.R. (Civil) 349. Having interpretted the provisions of Section 19(2) and Section 9 of General Clauses Act, it was ruled as under:-

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“ Now adverting to the second contention raised by the counsel for the petitioner that the notice issued to the petitioner did not give seven

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clear days as envisaged in sub section (2) of Section 19 of the Act. We find force in the stand of the petitioner. Sub-section (2) provides that the Block Development and Panchayat Officer shall within a period of 15 days of the receipt of the said application convene a meeting of Gram Sabha by giving seven clear days in notice for discussing and taking decision on the 'no-confidence motion.”

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The Apex Court in M.N. Abdul Rawoof's case (supra) in para 10 has held that for calculating clear days the first and last date should be excluded. Para 10 of the judgment reads thus:-

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“The High Court has referred to the decision of this Court

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in The Pioneer Motors Pvt. Ltd. v. The Municipal Council Nagercoil, (1961) 3 SCR 609: (AIR 1967 SC 684)

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where the expression was which was being interpreted, “not being less than one month.” This Court held that in order that a notice should be valid the expression “not being less than one month” would mean that there must be notice of 30 clear days. This would be possible only if the Ist and the last day on which the notice is issued is excluded. Rather than helping the respondent in our opinion the said decision fortifies the view which we have taken namely, that the period specified is the minimum period. Not less than one month meant that 30 clear days' notice had to be given and it is only in order to ensure that 30 clear days' notice is given that, basing on Section 9 of the General Clauses Act, it was observed that the Ist and the last date should be excluded. “

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Therefore, the notice issued on 25.8.2005 for 1.9.2005 does not give seven clear days' notice as envisaged under Section 19 of the Act. The meeting of 1.9.2005 thus, cannot be said to have been legally held and accordingly, 'no-confidence motion' passed on that date is untenable. Accordingly, the same is set aside. However, it is directed that the respondents shall issue fresh notice of holding the meeting of noconfidence after following due procedure as prescribed under the Act and the same shall be held within two months from today.”

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In this manner, the impugned resolution (Annexure P-2) entirely based on totally illegal notice, is not only arbitrary, without jurisdiction, but

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against the statutory provisions of the Act, as well. The aforesaid observations mutatis-mutandis are applicable to the facts of the present case and is the complete answer to the problem in hand. Hence, the argument of counsel for the petitioner that the impugned resolution (Annexure P-2) is illegal, arbitrary and against the statutory provisions of the Act, has considerable force and the contrary arguments on behalf of contesting respondents deserve to be and are hereby repelled under the present set of circumstances. Therefore, the impugned notice (Annexure P-1) and resolution (Annexure P-2) are illegal, arbitrary and cannot legally be sustained in the eyes of law in the obtaining circumstances of the case.

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In the light of aforesaid reasons, the writ petition is accepted with costs. The impugned notice (Annexure P-1), resolution (Annexure P-2) and all subsequent proceedings arising therefrom, are hereby set aside.

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Needless to mention, the respondents may act in accordance with law in this relevant connection.

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Whether to be referred to reporter ? Yes/No

Manpreet Kaur v. State of Punjab and Ors.

Case brief

What is this about?

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Manpreet Kaur v. State of Punjab and Ors.

Case brief

What is this about?

What did the court decide?

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