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Hardatt Singh, v. The Block Development And Panchayat Officer, Etc.,
Structured Summary of the Court Order
Factual and Procedural Background
The Gram Panchayat of village Neela Heri originally had seven members; two members had died, leaving five. An extraordinary general meeting of the Panchayat held on March 20, 1975 passed a vote of no-confidence against the petitioner (the Sarpanch) by a majority of 3 to 2. That March 20 meeting and its no-confidence resolution were set aside by a Division Bench of this Court on May 16, 1975 in the petitioner's earlier Civil Writ Petition No. 2234 of 1975 because the meeting had been presided over by one of the Panches and not by the Block Development and Panchayat Officer (BDPO) or an officer authorised by him.
After that decision the BDPO issued a fresh notice on May 21, 1975 for an extraordinary general meeting on May 28, 1975. At the May 28 meeting a vote of no-confidence was again passed against the petitioner by a majority of 3 to 2. The petitioner impugned the validity and legality of the May 28, 1975 meeting and its resolution in the present petition.
Legal Issues Presented
- Whether the first proviso to the second proviso in Sub-section (2) of Section 9 of the Punjab Gram Panchayat Act, 1952 (as amended in Haryana) bars convening a meeting for considering a no-confidence proposal similar to one which was not validly passed at a meeting held within one year prior to the present meeting.
- Whether the second proviso to Sub-section (2) of Section 9 makes the previous permission of the Director for holding a meeting to pass a vote of no-confidence a condition precedent such that fresh permission was required for the May 28, 1975 meeting (i.e., whether the Director's earlier permission had lapsed with the March 20 meeting).
- Whether a Panchayat which has fewer members than its original prescribed strength (here five members instead of seven because two had died) is not properly constituted and therefore incapable of passing a valid resolution of no-confidence.
- Whether, in the absence of specific statutory provision or rules prescribing the manner of calling and conducting a meeting for passing a no-confidence resolution, the procedure in Rules 38 and 39 of the Haryana Gram Panchayat Election Rules, 1971 (including secret ballot under Rule 39(6)) must be followed, and whether failure to use secret ballot at the May 28, 1975 meeting invalidates the proceedings.
Arguments of the Parties
Petitioner's Arguments
-
The petitioner advanced four grounds impugning the May 28 meeting:
- The statutory proviso bars convening a meeting similar to one held within one year which did not pass the motion.
- Director's prior permission was a condition precedent and lapsed with the earlier meeting, so fresh permission was necessary for the May 28 meeting.
- The Panchayat was not properly constituted with only five members (out of seven), so it could not validly pass a no-confidence resolution.
- In absence of specific rules for no-confidence meetings, the procedure for election of Sarpanch (Rules 38 and 39) applies; Rule 39(6) requires secret ballot when two or more candidates, and because voting at the May 28 meeting was by show of hands (not secret ballot), the proceedings must be quashed. The petitioner relied on Dharam Singh v. State of Haryana (1974 Pun LJ 365) for the principle that Rule 39 applies by analogy to such meetings.
Respondents' Arguments
- The respondents contended that even if the meeting's conduct was improper, the petitioner was estopped from challenging it because he actually participated in the May 28 meeting and accepted voting by show of hands without objection, thereby taking a chance of success by that procedure. They relied on Division Bench decisions such as Attar Singh v. State of Haryana (1973 Pun LJ 90) and Ram Nath v. Ramesh (1973) 75 Pun LR 819 = AIR 1975 Punj and Har 33.
- The respondents therefore argued that the petitioner's participation barred subsequent challenge on procedural grounds.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dharam Singh v. State of Haryana, 1974 Pun LJ 365 | Held that where Haryana Rules do not prescribe procedure for a Panchayat meeting to consider a no-confidence motion, the procedure for election of Sarpanch (Rules 38 and 39) applies by operation of the principle underlying Section 21 of the General Clauses Act, 1897. | The Court followed Dharam Singh and applied Rule 39(6)'s requirement of secret ballot to meetings held under the second proviso to Sub-section (2) of Section 9; thus it held the May 28 meeting was not conducted according to Rule 39(6) because voting was by show of hands. |
| Jai Pal Singh v. Director of Panchayats, Haryana, 1974 Pun LJ 122 | Interpreted the word "constituting" in the proviso to Sub-Section (2) of Section 9 to mean "constituting for the time being"; vacancy due to death means Panchayat is constituted with remaining members until election fills vacancy. | The Court accepted and followed this view to hold that the Panchayat with five members (after two deaths) was properly constituted for the time being and capable of passing a resolution; therefore petitioner's third contention failed. |
| Attar Singh v. State of Haryana, 1973 Pun LJ 90 | One of the Division Bench judgments relied upon by respondents to support estoppel where a petitioner participated in voting without objection. | The Court noted the respondents' reliance on this case but observed that those cases did not arise under the Act or Rules here; it did not apply Attar Singh to bar the present challenge. |
| Ram Nath v. Ramesh, (1973) 75 Pun LR 819 = AIR 1975 Punj & Har 33 | Another Division Bench decision relied upon by the respondents for estoppel due to participation. | The Court observed this reliance but did not apply it to defeat the petitioner's challenge in view of differing context and the binding effect of a more directly applicable decision (Sheo Chand). |
| Sheo Chand v. Jee Ram, 1975 Pun LJ 4 | Held that where it is contended that a petitioner having taken part in an election of a new Sarpanch is estopped from challenging the legality of the no-confidence meeting, the objection is not valid if the petitioner does not take part in the re-election held as a consequence of being outvoted. | The Court treated Sheo Chand as directly on point and binding; following it, the Court overruled the respondents' estoppel argument because the petitioner did not participate in any re-election consequent on the May 28 no-confidence resolution. |
| Division Bench order in Civil Writ Petition No. 2234 of 1975 (R.N. Mittal and Bains, JJ.), May 16, 1975 | Set aside the no-confidence resolution dated March 20, 1975 because the meeting had been presided over by a Pancha and not by the Block Development and Panchayat Officer or an officer authorised by him. | The Court treated the March 20 meeting as a nullity in law (deemed never to have been held), which informed its conclusion that the Director's previous permission had not lapsed and that the May 28 meeting was the first legally-held meeting to consider the motion. |
Court's Reasoning and Analysis
The Court analysed each of the four contentions in turn and applied the relevant statutory text, rules, and binding precedents as follows:
- On contentions 1 and 2 (statutory bar due to a similar meeting within one year; and lapse of Director's prior permission): the Court concluded these arguments were based on a misconception. The March 20, 1975 meeting had been declared illegal by the earlier Division Bench order and was therefore "no meeting in the eye of law." Consequently, the proposed resolution had never been legally considered by the Panches prior to May 28. The Director's previous permission is deemed to lapse only if and after the no-confidence motion is considered in a legally held meeting and is either passed or defeated. Since the March 20 meeting was legally void, the May 28 meeting was the first lawful meeting to consider the motion; hence contentions 1 and 2 failed.
- On contention 3 (Panchayat not properly constituted because two members had died): the Court relied on Jai Pal Singh's interpretation that "constituting" means "constituting for the time being." A Panchayat with vacancies is deemed constituted with remaining members until vacancies are filled. The Court noted statutory quorum is 50% and observed potential complications if membership falls below that level, but in the present case five out of seven Panches participated. Therefore the Panchayat was properly constituted and contention 3 failed.
- On contention 4 (procedure for calling/conducting meeting and requirement of secret ballot): the Court referred to Rules 38 and 39 of the Haryana Gram Panchayat Election Rules, 1971 and to the Division Bench decision in Dharam Singh which held that, in absence of specific rules, meetings under the second proviso to Section 9(2) must be conducted as far as possible like meetings for election of Sarpanch under Rule 39, applying Section 21 of the General Clauses Act. Rule 39(6) mandates secret ballot when two or more candidates are proposed. The Court found that the May 28 meeting had votes cast by show of hands rather than by secret ballot. The Court emphasised the qualitative difference between open voting and secret ballot and the potential for coercion or inhibition in open voting. The Court was not willing to speculate that no prejudice occurred; given Dharam Singh, it held the May 28 meeting was not conducted in accordance with Rule 39(6).
- On the respondents' estoppel argument (petitioner's participation bars challenge): the Court noted respondents' reliance on Attar Singh and Ram Nath but found those cases not directly arising under the Act or Rules at issue. The Court instead followed the Division Bench decision in Sheo Chand v. Jee Ram, which it considered directly analogous and binding: Sheo Chand held that participation in the no-confidence meeting does not estop a petitioner from challenging its legality if the petitioner does not participate in any re-election held as a consequence. Applying Sheo Chand, the Court overruled the estoppel objection.
Holding and Implications
The petition is allowed and the impugned resolution of no-confidence dated May 28, 1975 is annulled.
Consequences and immediate effects:
- The annulment removes any legal effect of the May 28, 1975 no-confidence resolution against the petitioner.
- It is left open to the Block Development and Panchayat Officer to convene and hold a fresh meeting to consider the no-confidence motion in accordance with law and in the light of the Court's observations (including the requirement that meetings of this type be conducted, as far as possible, in the manner prescribed by Rule 39, notably by secret ballot where applicable).
- No costs were awarded.
The Court's decision followed existing precedents (Dharam Singh, Jai Pal Singh, Sheo Chand) and applied them to the facts; the opinion does not purport to establish a novel legal principle beyond the application of those precedents to the case at hand.
ORDER
1. Out of the 7 members who originally constituted the Gram Panchayat of village Neela Heri, 2 had died leaving the Pancnayat 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, white 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 An-nexure P. 1.
2. The validity and legality of the second meeting hold on May 28, 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-section (2) of Section 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-section (2) of Section 9 makes the previous permission of the Director for holding a meeting tor 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 March 20, 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 May 28, 1975;
(3) that a resolution of no-confidence under the second proviso to Sub-section (2) of Section 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. State of Haryana, 1974 Pun LJ 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 against the petitioner. The Director granted his previous permission for the consideration of the motion-It is only the meeting, dated March 20, 1975, in which the motion was considered that has been held to be illegal by the order of this Court in the petitioner's earlier writ petition. The resultant legal position is that the meeting, dated March 20, 1975, is deemed to have never been held as the purported meeting was no meeting in the eye of law, as it had not been held strictly in conformity with the statutory requirements of the Act and the Rules. This being so, the proposed resolution is deemed in law not to have been considered at all by the panches and they had no legal opportunity to vote for or against it till the present meeting, dated May 28, 1975, was held. 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. Such a meeting was held for the first time on May 28, 1975. For the same reason it cannot be argued successfully that the no-confidence motion had "not been passed" in the earlier meeting which was held within one year of the present meeting, as in the eye of law there was no earlier meeting. Contentions Nos. .1 and 2 of the learned counsel for the petitioner are, in this view of the matter, devoid of merit and are repelled.
4. So far as contention No- 3 is concerned, we have no doubt that 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. This point is not res integra. A learned Single Judge of this Court has already held in Jai Pal Singh v. Director of Panchayats, Haryana 1974 Pun LJ 122, that the word "constituting" appearing in the proviso to Sub-Section (2) of 9 of the Act means "constituting for the time being". The learned judge further held that if one member of the Panchayat passes away then till such time as his vacancy is not filled in by holding an election, the Panchayat would be deemed to be constituted by one member 'less than the number by which it was originally constituted. We are in respectful agreement with the view expressed by Sharma, J. in that case. Counsel for the petitioner contends that if the ratio of the judgment of Sharma, J., in Jai Pal Singh's case is stretched to its logical extent, the Court would have to hold that if 6 out of 7 members of the Panchayat die, the remaining single member would constitute the Panchayat. This is certainly not so. The prescribed statutory quorum for a meeting of the Panchayat is 50 per cent, and the moment the number of Panches left in a Panchayat goes below 50 per cent of the total strength of the Panchayat as originally constituted, complications may possibly arise. It is unnecessary to dilate on the result of such an eventuality as it is the admitted case of both sides that in the instant case 5 out of 7 Panches are alive and all of them took part in the impugned meeting. The third submission of the counsel also, therefore, fails.
5. In order to appreciate the fourth and the last point made out by Mr. Surrinder Samp, the learned counsel for the petitioner reference is necessary to Rules 38 and 39 of the Haryana Gram Panchayat Election Rules, 1971 (hereinafter referred to as the Haryana Rules). Rule 38 provides for the calling of a meeting to elect the Sarpanch and requires the Block Development and Panchayat Officer to issue a notice in writing to all the Panches intimating the date, time and place of the meeting for the election. Rule 39 lays down the procedure for the election of the Sarpanch. Sub-rule (6) of Rule 39 states that if only one candidate is proposed, he shall be declared elected as Sarpanch by the presiding officer, but if two or more candidates are proposed, the election shall be held "by secret ballot" in the manner stated in Sub- Rule (7) onwards of Rule 39. Admittedly no separate rules have been prescribed for the manner of holding or conducting the meeting under the second proviso to Sub-section (2) of Section 9 of the Act for passing a vote of no-confidence against the Sarpanch, In Dharam Singh's case (1974 Pun LJ 365) (supra) it has been held by the Division Bench that inasmuch as the Haryana Rules do not prescribe the manner in which a meeting of the Panches for consideration of the no-confidence motion against the Sarpanch is to be called and conducted, such a meeting shall also have to be held in the same manner as a meeting for the election of the Sarpanch by operation of the principle underlying Section 21 of the General Clauses Act, 1897. Counsel for the respondents questions the correctness of the view taken by Mahajan, C J., and Pattar, J., in the case of Dharam Singh. We are, however, unable to find any reason for disagreeing with that judgment Following the Division Bench judgment referred to above, we hold that 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. Inasmuch as the votes at the meeting held on May 28, 1975, were cast by show of hands and not by secret ballot, the meeting does nut appear to have been conducted in accordance with the strict statutory requirements of Sub-rule (6) of Rule 39. The difference between voting openly by show of hands and voting by secret ballot is of great significance. It is not unknown that certain persons are not able to exercise their right of franchise in such matters freely if they have to vote for or against a resolution of this type openly in the presence of the Sarpanch and the opposing parties, and so the voting is freer and fairer if it is by a genuine secret ballot. It cannot, therefore, be argued by the respondents that even though the requirement of Rule 39 (6) is applicable to a meeting under Section 9 (2), and the said provision is not followed, no prejudice has nevertheless been caused to the petitioner. We are not prepared to enter into any such conjectural field. In view of the judgment of the Division Bench in Dharam Singh's case (1974 Pun L,J 365), we find no escape from holding that the meeting, dated May 28, 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.
6. Mr. M. S. Liberhan and Mr. S. C. Kapoor, Advocates for the respondents, have, however, contended that even if the conduct of the impugned meeting was not proper and legal the petitioner is now estopped from challenging the same in view of the fact that he actually participated in the meeting and took a chance of succeeding at the voting by show of hands, without raising any objection to such a procedure being followed. Reliance is placed in this connection on two Division Rench judgments of this Courl in Attar Singh v. State of Ilaryana 1973 Pun LJ 90, and Ram Nath v. Ramesh (1973) 75 Pun LR 819 = (AIR 1975 Punj and Har 33). None of those cases arose under the Act or the rules with which we are concerned in the present case. Mr-Surrinder Sarup has, on the other hand, invited our attention to the judgment of a Division Bench of this Court in Sheo Chand v. Jee Ram 1975 Pun LJ 4. B. R TnK, A. C. J. (as he then was) and A. S. Rains. J., held in that case that where it is contended that the petitioner having taken part in the election of a new Sarpanch was estopped from challenging the legality of the no-confidence meeting, the objection would not be valid if the petitioner docs not take part in the re-election which is held as n consequence of the Sarpanch being outvoted at the no-confidence meeting. The judgment of the Division Bench in Sheo Chand's case appears to us to be on all fours with the present case. Sitting in Division Bench, we are bound by that judgment and following the same we overrule the objection of the learned counsel for the respondents.
7. In view of our finding on point No. 4 urged by Mr. Surrinder Sarup, this petition is allowed and the impugned resolution of no-confidence against the petitioner passed at the extraordinary general meeting of the Panchayat held on May 28, 1975, is 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. No costs.
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