Gian Chand v. State of Punjab & Ors.

Mr. Anil Kumar Sharma, Additional AG, Punjab for the State. Mr. N.K. Verma, Advocate for respondents No. 6 and 8 to 12. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Nagar Panchayat Khamano consists of eleven councilors as its members. The local MLA is its Ex-officio member. Hence, in all there are twelve members of the Nagar Panchayat Khamano, who can vote. The petitioner was elected as President of the Nagar Panchayat, Khamano. Eight members of the Nagar Panchayat, Khamano submitted a no-confidence-motion (Annexure P-1) against the petitioner on 8th December, 2009 to the Executive Officer, Nagar Panchayat, Khamano. In the no-confidence-motion (Annexure P-1), it was specifically stated that they were not having any confidence in the working of the President of the Nagar Panchayat, Khamano. In consonance with the no-confidence- motion (Annexure P-1), a meeting of the Nagar Panchayat was fixed for 18th December, 2009.

Deputy Commissioner, Fatehgarh Sahib had Civil Writ Petition No.20539 of 2010 2 appointed the SDM, Khamano as an Observer to the meeting. No- confidence-motion was carried, as eight out of the twelve members of the Nagar Panchayat, Khamano voted against the petitioner. Thus, the no- confidence-motion had support of 2/3rd members of the Nagar Panchayat. Thereafter, a show cause notice was issued by the Secretary to Govt. of Punjab, Department of Local Self Government to the petitioner as to why he be not removed in pursuance of the no-confidence-motion having been passed against him. After affording due opportunity of hearing to the petitioner, the Secretary to Govt. of Punjab, Department of Local Self Government passed the impugned order (Annexure P-9) dated 11th November, 2010 and terminated the petitioner from holding office of President of the Nagar Panchayat, Khamano. Mr. Deepak Arora, Advocate appearing for the petitioner, has raised a two-fold argument to assail removal of the petitioner from the office of President of the Nagar Panchayat, Khamano.

Firstly, it has been stated that the procedure as envisaged under Section 25 of the Punjab Municipal Act, 1911 was not followed. The no-confidence-motion was not submitted to the President, rather it was submitted to the Executive Officer. Furthermore, the procedure regarding statutory period of the notice was not followed. This argument is liable to be rejected, as in consonance with the notice issued by the Executive Officer, all the twelve members had attended the meeting held on 18th December, 2009. Had any member not attended the meeting, the matter would have been different, as it could have been said that the meeting was not properly convened and the procedure was not followed. The view taken by this Court has been upheld by a Division Bench of this Court in a judgment rendered in LPA Civil Writ Petition No.20539 of 2010 3 No.1445 of 2010 titled as ‘Buta Singh v. State of Punjab and others’ decided on 1st November, 2010, wherein it was observed as under: “6. … … … … Moreover, on 13.9.2010 all the members of the Panchayat had attended the meeting.

Therefore, in this view of the matter, the learned Single Judge has rightly held that no prejudice has been caused to the appellant and hence the meeting held to pass ‘No Confidence Motion’ shall not vitiate. The learned Single Judge further held that had one member not attended the meeting, the inference would have been different.” Furthermore, any irregularity will not vitiate the no- confidence-motion voted and carried by a majority of 2/3rd members. Once the petitioner had attended the meeting, he cannot urge that the meeting was not properly convened. Counsel for the petitioner has relied upon a judgment rendered by a Division Bench of this Court in ‘Raghubar Dass v. State of Punjab’ 1984 PLJ 322 to contend that it is necessary to issue 14 days’ clear-cut notice and thereafter the meeting must be held in 30 days of the receipt of requisition. Since, it has been observed that the meeting has been held and all the members attended it, the judgment rendered in Raghubar Dass’s case (supra) is not attracted on the facts of the present case, in view of the specific observation made by the Division Bench of this Court in Buta Singh’s case (supra).

Secondly, Mr.Arora has contended that once the notice of no-confidence-motion was proposed, due opportunity of hearing ought to have been afforded to the petitioner. In support of this contention, learned counsel has placed reliance upon a judgment of Hon’ble Apex Court rendered in ‘Tarlochan Dev Sharma v. State of Punjab’ 2001(6) SCC

Civil Writ Petition No.20539 of 2010 4 The observations made in Tarlochan Dev Sharma’s case (supra) are also not attracted on the facts of the present case. In Tarlochan Dev Sharma’s case (supra), he was removed by the authorities for abuse of his powers. Therefore, it was held that the principles of natural justice demand that before the order of removal is passed by the appropriate Government, due opportunity of hearing should be afforded to the holder of the office, who is to be removed for abuse of his powers. In the present case, by 2/3rd majority, no- confidence-motion has been carried. The members have voted against the petitioner. To vote is a conscious decision. Members of a Nagar Panchayat are the elected representatives of the people. They reflect the will of the ultimate sovereign, i.e. the people. They have categorically stated in the no-confidence-motion that they have no confidence regarding the working of the President of Nagar Panchayat, Khamano. The no-confidence-motion was submitted on 8th December, 2009 and the same was carried in a meeting held on 18th December, 2009. Ten days is a long period for the members to reflect and take a conscious decision. Each member votes by his conscience. Thus, the will of the majority, which is the will of the people, cannot be tested on the grounds of natural justice. In the meeting held, the petitioner had every opportunity to participate in the deliberations. Therefore, this Court, while exercising writ jurisdiction, will not act against the 2/3rd majority of the elected representatives. Democratic institutions can always device their own procedure for their effective working. Furthermore, after the no- confidence-motion was carried, to terminate the petitioner from the office of President of the Nagar Panchayat, Khamano, a show cause notice (Annexure P-5) dated 25th February, 2010 was issued to the petitioner. The petitioner submitted a detailed reply (Annexure P-8) on 3rd June, Civil Writ Petition No.20539 of 2010 5

2010. After considering the reply, the Secretary to Govt. of Punjab, Department of Local Self Government passed the impugned order (Annexure P-9). Hence, no intervention is warranted, as the present petition is devoid of any merit and the same is hereby dismissed with no order as to costs. November 19, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE