NIRBHAI SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition seeks quashing of the Punjab Panchayati Raj (Amendment) Act, 2011 whereby Section 19 of the Punjab Panchayati Raj Act, 1994 (for short, "the Act") has been deleted which was notified on 21.4.2011 with retrospective effect from 1.7.2010.

(2.) CASE set out in the petition is that the Gram Panchayat Narike, Block Malerkotla, District Sangrur was one of the Panchayats constituted to which elections were held in the year 2008. Panches were elected directly and they elected a Sarpanch. On an application for holding a meeting to consider No Confidence Motion proposed against the Sarpanch, under section 19 of the Act as applicable, a meeting was convened for the purpose on 14.10.2010 and after consideration, No Confidence Motion was passed by six out of the nine members of the Panchayat. The Sarpanch, thus, stood removed from his office and alternative mechanism was put in place as per statutory provisions. On 14.12.2010, Ordinance No.9 of 2010 was issued by the Governor of Punjab deleting Section 19 of the Act, which was prospective. The Ordinance has now been replaced by the impugned Act notified on 21.4.2011 which is retrospective from 1.7.2010. The Act is a short one and is reproduced below:-

(3.) IN support of challenge to the Amendment Act, it is submitted that having regard to the constitutional objective of local self Government at the panchayat level, it is necessary that Sarpanch should have confidence of majority electing him and should be removable by a No Confidence Motion. Scheme of No Confidence Motion is necessary not only for smooth functioning of Panchayat but is also consistent with the constitutional value of democracy. Under the Act, Chapter II deals with the panchayats, Chapter VI deals with Panchayat Samitis for the blocks and Chapter VII deals with Zila Parishads for the districts. Prior to the impugned amendment, Section 19 provided for No Confidence Motion against Sarpanch and there are corresponding provisions for No Confidence Motion against Chairman/Vice Chairman of Panchayat Samiti and Chairman/Vice Chairman of Zila Parishad while provision for No Confidence Motion for Panchayat Samitis and Zila Parishads, has been returned, provision for No Confidence Motion against Sarpanch has been deleted which is discriminatory and arbitrary. Provision for No Confidence Motion has to be implied as Sarpanch is elected by the majority of Panches under Section 13A and an authority competent to appoint has authority to remove as per General Clauses Act incorporating the principle of common law. Deletion of section 19 is against the object of grass root democracy of giving authority to people's elected representatives to appoint or remove a Sarpanch. Alternatively, it is submitted that deletion of section 19 and thereby taking away power of passing a No confidence Motion retrospectively from 1.7.2010 is arbitrary as it affects removal already lawfully effected prior to the Act i.e. on 14.10.2010 and taking over of the functions of the Sarpanch as per Section 87(1). Thus, retrospectivity affects vested rights arbitrarily. It has been stated by learned counsel for the parties that about 120 Sarpanches had been removed in similar manner by No Confidence Motion after 1.7.2010 and also before coming into force of the impugned Act and also before the issuance of Ordinance dated 14.10.2010. Some other No Confidence Motions were also pending. In some cases, fresh Sarpanches had been duly elected and notified.