NAND LAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) Present writ petition under Articles 226/227 of the Constitution of India is for issuance of a writ in the nature of certiorari for setting-aside impugned notice/order dtd. 1/8/2018 (Annexure P/3) passed by respondent No.2, whereby No Confidence motion was brought against the petitioner, which is absolutely illegal and the same has been issued arbitrarily and against the provisions of Haryana Panchayati Raj Act, 1994 (for short, "the Act") and Haryana Panchayati Raj Rules, 1995 (for short, "the Rules").

(2.) Petitioner is an elected Chairman of the Panchayat Samiti, Block Loharu, District Bhiwani. In all, there are 16 members from different wards of Panchayat Samiti, Block Loharu. As per provisions of Sec. 63 (1) of the Act, if any member of a Panchayat Samiti, who absents himself or herself from four consecutive meetings of the Panchayat Samiti without the leave of the said Panchayat Samiti, his/her membership would be ceased and his office would be deemed to vacated. As per the petitioner, out of 16 members of the Panchayat Samiti, two members namely, Smt. Shakuntala of Ward No. 6 and Smt. Pinki of Ward No. 13, absented themselves for 4 consecutive meetings of the Panchayat Samiti and have thus, ceased to be the members of the Panchayat Samiti as per provisions of Sec. 63(1) of the Act. On receipt of information in the office of respondent No.2, said Smt. Shakuntala and Smt. Pinki maneuvered affidavits of some other members and submitted the same to the competent authority for bringing No Confidence motion against the petitioner, who has since issued the impugned notice dtd. 1/8/2018 (Annexure P/3) whereby he has asked all the members to come present for No Confidence motion on 10/8/2018 at 11.00 AM. As per the petitioner, the impugned notice, Annexure P/3, is against the law and facts on the ground that a No Confidence motion could be brought against the Chairman when 2/3rd of its members pass a resolution. In the present case, there was no such resolution and those 11 members included the two members, whose membership had already ceased as per provisions of Sec. 63(1) of the Act as they failed to attend the meetings of the Panchayat Samiti. As such, only 9 members had submitted their affidavits to bring No Confidence motion and the said strength does not constitute 2/3rd of the total number of existing members of the Panchayat Samiti, as laid down under Sec. 62 of the Act. As due procedure as laid down under Rule 10 of the Rules for bringing No Confidence motion has not been followed, the impugned notice is liable to be rejected. As such, the petitioner prayed that action of respondent No. 2 while issuing the No Confidence motion is preposterous in nature as respondent no. 2 has considered two affidavits of those members, whose membership had already been ceased to exist as per provisions of Sec. 63(1) of the Act. It is prayed that the impugned notice, dtd. 1/8/2018 (Annexure P/3) be set-aside.

(3.) In the reply filed by way of affidavit of respondent No.2, i.e. Additional Deputy Commissioner, Bhiwani, it has been admitted that the petitioner is duly elected Chairman of Panchayat Samiti, Loharu since March, 2016. On receiving the applications with affidavit from the members of Panchayat Samiti, Loharu for initiating the No Confidence motion against the petitioner-Chairman, respondent No.2 passed the impugned order dtd. 1/8/2018 legally and as per provisions of Sec. 62 of the Act. Respondent No.2 also admitted that the strength of Panchayat Samiti, Block Loharu is 16 members and out of them, two members were absent from four consecutive meetings of the Panchayat Samiti. As per report (Annexure R/1) of Executive Officer of Panchayat Samiti, Loharu, the notice for meetings dtd. 10/6/2017, 26/3/2018 and 9/5/2018 were not issued as per the time prescribed (10 days) under Sec. 67 of the Act. Letter bearing No. 3775 of the petitioner dtd. 27/7/2018 was addressed to the Deputy Commissioner-cum-District Election Officer, Bhiwani was received in the office of respondent No.2 on 3/8/2018, i.e., after passing of the impugned order dtd. 1/8/2018 and respondent No. 2 not the competent authority to take decision under Sec. 63(1) of the Act, rather the Government is the competent authority to take a decision against the Samiti Members as per Sec. 64 of the Act. Respondent No.2 also took the plea that on 27/7/2018, there were total 16 members of Panchayat Samiti, Loharu and 11 members had submitted their affidavits by appearing personally before him (respondent No.2) for No Confidence motion against the petitioner-Chairman and the petitioner submitted Annexures P/1 and P/2 dtd. 27/7/2018 before respondent No.2 only to take undue benefit.