C.W.P. No.16733 of 2009 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH
C.W.P. No.16733 of 2009 (O&M)
Date of Decision: 14.12.2009
Balbir Singh ....Petitioner
Versus
State of Haryana and others ....Respondents
Present: Mr. Jagdeep Singh, Advocate for
Mr. G.S. Sandhu, Advocate
for the petitioner.
Mr. D.S. Nalwa, Addl. A.G., Haryana.
Mr. Sanjiv Gupta, Advocate
for respondent Nos.4 to 11.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.(ORAL)
C.M. Nos.19651-52 of 2009
Applications are allowed as prayed for.
C.W.P. No.16733 of 2009 (O&M)
1. The writ petition challenges the notice called at the
instance of the Block Development and Panchayat Officer to all
the Panches of the Gram Panchyat, Bansa on 23.10.2009 calling
for a meeting to consider the removal of the present Sarpanch, Sh.
Balbir Singh brought at the instance of the Members to hand over
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charge having majority on the basis of affidavits given by
majority of persons expressing no confidence against the
petitioner.
2. It is an admitted case that one Balwan Singh had been
the Sarpanch of the Gram Panchayat, Bansa and he had been
removed from his post by the Director on proof of some charges
against him in the manner provided under Section 51(3) of the
Haryana Panchayati Raj Act, 1994. On his being removed, one
Veer Kaur had been handed over charge on 22.12.2008. She had
died in harness on 04.05.2009 and by the post that fell vacant, the
petitioner had been handed over charge on 01.06.2009 as a person
commanding majority in the Gram Panchayat. The contention of
the petitioner was that the provision for removal of a Sarpanch
through a No Confidence Motion was deleted by an amendment,
which was made by notification on 19.10.2000. By amendement
to Rule 10 of the Haryana Panchayati Raj Rules, 1995, a
provision for No Confidence Motion was retained only against
Chairman, Vice Chairman, President and Vice President and
hence, the contention of the learned counsel appearing for the
petitioner was that after the amendment to the Rules that had been
brought-forth, there could not have been a meeting of No
Confidence Motion for removal of a Sarpanch and therefore, the
proposed meeting called by the Block Development and
Panchayat Officer was illegal and liable for judicial intervention.
C.W.P. No.16733 of 2009 (O&M) -3-
3. The petitioner has a second string to the bow as it were
by urging that Section 6 of the Haryana Panchayati Raj Act, 1994
contemplates “filling up of a casual vacancy” that arises by death,
resignation, removal or otherwise of a Panch or a Sarpanch and
he shall be elected in the manner as may be prescribed.
According to him, Section 2(x) refers to a “casual vacancy” as a
vacancy occuring otherwise than by efflux of time. According to
him, the vacancy that arose on account of the removal of Balwan
Singh and subsequently the death of Veer Kaur was in the nature
of casual vacancy and once, he was appointed to hold charge of a
Sarpanch, he cannot be removed till the balance of period that
remained for the office of the Sarpanch.
4. This contention of the petitioner is refuted by the
learned counsel appearing for the Block Development and
Panchyat Officer and for the private respondents, who are
Panches of the Panchayat. Their contention is that the
appointment of Veer Kaur was not in a post as a Sarpanch but it
took place in the manner contemplated under Section 51(6)(i),
which reads as follows:
“6. Any Sarpanch or Panch, as the case may be, removed
under sub-section (3) shall hand over the records, money
or any other property of the Gram Panchayat in his
possession or under his control:
(i) if he is Sarpanch to a Panch commanding
C.W.P. No.16733 of 2009 (O&M) -4-majority in the Gram Panchayat.
4. According to him, the legislature does not employ the
expression that a person handed over the records, money or any
other property of the Gram Panchayat shall be himself called a
Sarpanch. It merely contemplates situation of a person
commanding majority in the Gram Panchayat to take charge of
records, money etc. The petitioner, who came in the vacancy that
was caused by the sudden death of Veer Kaur could again hold
the very same position, which Veer Kaur herself held, namely,
that he was to be merely treated as a Panch having charge of the
records, money and other property of the Gram Panchayat and
cannot be treated as a Sarpanch. According to the learned
counsel appearing for the respondents, the Sarpanch is not a
person, who shall be elected by the Panches but on the other hand
he shall be a person who shall be declared by the Returning
Officer from amongst the Panches who has polled the maximum
votes. Rule 70 of the Haryana Panchayati Raj Election Rules,
1995 reads as follows:
“70. Declaration of results.–(1) The Returning Officer
(Panchayat) or the Assistant Returning Officer
(Panchayat) shall-(a) declare to be elected the candidate for the
office of Panch who has secured the largest
number of valid votes and certify the return of
election in Form 18. Similarly the result of
Sarpanch shall also be declared forthwith but
if there are more than one polling stations in
the sabha area the result sheets for the office
of Sarpanch shall be sent to the Polling
C.W.P. No.16733 of 2009 (O&M) -5-Station presided over by the Presiding Officer
nominated by the District Election Officer
(Panchayat) for this purpose, on the same day
who shall, after compiling the result sheets in
Form 19 declare forthwith the candidate who
received the largest number of valid votes
elected as Sarpanch. For the purpose of
declaration of result for the office of Panch
and Sarpanch, the Presiding Officer shall be
deemed to be Returning Officer and in case of
more than one polling stations in the sabha
area, nominated Presiding Officer shall be
deemed to be the Returning Officer for
declaration of result for the office of
Sarpanch;(b) send [from the place specified in clause (e) of
rule 24] the result sheet for the offices of
members of Panchayat Samiti and Zila
Parishad to the concerned Returning Officer
for Panchayat Samiti at blocl level and to the
Deputy Commissioner respectively;(c) for the selection of member of Panchayat
Samiti, compile all the result sheets in Form
16 and prepare Form 20 and declare the
candidate, who received the largest number of
valid votes elected and shall certify the return
of election in Form 20; and(d) for the election of member of Zila Parishad,
compile the result sheets in Form 17 and
prepare Form 21 and declare the candidate,
who received the largest number of valid
votes elected and shall certify the return of
election in Form 21.
(2) The Returning Officer (Panchayat) or the officer
authorized by him shall send the signed copy of
the returns under this rule to the District Election
Officer (Panchayat) and to the State Election
Commissioner.
5. The filling up of vacancy, which Section 6
contemplates, according to the learned counsel appearing for the
respondents, should be taken in the context of how Rule 70 refers
C.W.P. No.16733 of 2009 (O&M) -6-
to declaration of a result and cannot be treated as arising in the
manner which Section 51(6) provides for.
6. In my view, the proper understanding of these
provisions will have to be made only in the context of a rule of
interpretation that when the legislature employs two distinct
provisions for filling up a vacancy, they must be understood as
arising under two different situations. If the manner of filling up
of casual vacancy should be understood as including every case
of a vacancy falling on account of death or removal of a
Sarpanch, then it should be understood as being elected in the
manner as may be prescribed. The prescribed manner is what
should be understood in the manner that Rule 70 provides. On
the other hand, the prescribed manner cannot be understood as
arising through a situation to which Section 51(6) operates.
Section 51(6) merely refers to handing over of the records and
does not employ the expression “elected in the manner as may be
prescribed” used in Section 6 of the Act.” Section 6 and 51(6)
employs dissimilar expressions and they cannot, therefore,
overlap. They must be understood as addressing two different
situations. The post, which the petitioner held cannot be taken to
be a Sarpanch as such, but it should be taken to be post allowing
him to hold the records, money and other property of the Gram
Panchayat by his ability to command the majority in the Gram
Panchayat. It may be that a No Confidence Motion cannot be
C.W.P. No.16733 of 2009 (O&M) -7-
brought against him by virtue of the amendment to Rule 10, if he
had been a Sarpanch. I have held that he did not hold the post as
a Sarpanch to which alone the amended provisions of Rule 10
would operate. What is possible of an elected Sarpanch to
contend in a meeting that there cannot be a No Confidence
Motion, can not avail to a person that holds charge of records,
property, etc. The impugned notice is not liable for challenge in
the manner made by the petitioner and the writ petition ought to,
therefore, fail.
7. The writ petition is dismissed. No costs.
(K. KANNAN)
JUDGE
December 14, 2009
Pankaj*