JARDAR KHAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner was elected Up-Sarpanch in January, 1995, of Gram Panchayat Uleta, Tehsil Ferozepur Jhirka, District Gurgaon. The term of of office on an Up-Sarpanch is five years unless he is removed earlier in the manner prescribed by Section 10 of the Haryana Panchayat Raj Act, 1994 (for short the Act). Counsel for the parties are agreed that the Gram Panchayat consists of seven Panches, one Sarpanch and an Up-Sarpanch. Five Panches moved a requisition dated 23-8-1995 before the Sub-Divisional Officer (C), Ferozepur Jhirka seeking removal of the petitioner from the office of Up-Sarpanch stating therein that they had no confidence in the petitioner. On receipt of this requisition the prescribed authority (Sub Divisional Officer) convened a meeting of the Gram Panchayat on 11-9-1997 after a lapse of more than two years. In this meeting, the same five Panches were present on whose requisition the meeting had been convened. They unanimously resolved by show of hands that the petitioner be removed from office of Up-Sarpanch as they had no confidence in him. On this resolution being passed, the prescribed authority passed an order on the same date i.e. 11-9-1997 that the resolution was carried by the requisite majority and that the petitioner stood removed from office. The Sub Divisional Officer then as per his communication dated 19-9-1997 informed the Deputy Commissioner, Gurgaon that the petitioner had been removed from the office of Up-Sarpanch on 11-9-1997 by a two third majority of the Panches. A copy of the proceedings of the specially requisitioned meeting was also sent along with this communication. The action of the respondents in removing the petitioner has been challenged in this petition filed under Art. 226 of the Constitution.

(2.) The argument of the learned counsel for the petitioner is that the requisition was moved in August, 1995 whereas the meeting was convened by the prescribed authoriy after more than two years and, therefore, the said meeting was illegal and the resolution passed therein inoperative. It is also contended on behalf of the petitioner that the voting in the meeting of the Gram Panchayat was not by secret but by show of hands and, therefore, the resolution was illegal and could not be acted upon. Lastly, it was urged that there are in all eight Panches including the Up-Sarpanch and only five of them had passed the resolution in the meeting held on 11-9-1997, and, therefore, the same was not carried by the requisite majority of not less than two thirds of the Panches.

(3.) We have heard counsel for the parties and find merit in the contentions raised on behalf of the petitioner. Sub-section (3) of Section 10 of the Act provides that an Up-Sarpanch may be removed from his office by a majority of not less than two thirds of the Panches of the Gram Panchayat at its meeting specially convened for the purpose by the authority as may be prescribed provided that no such meeting shall be convened unless a requisition in that behalf is made by a majority of not less than one half of the Panches. Sub-section (4) then provides that on receipt of the requisition the prescribed authority shall convene the meeting of the gram panchayat within a period of thirty days from the date of receipt of the requisition and that voting in that meeting shall be by secret ballot. In the case before us the requisition was moved on 23-8-1995 and the meeting was requisitioned on 11-9-1997 after more than two years. This is in violation of the provisions of sub-section (4) of Section 10 of the Act. Not only this, voting in the meeting of the Gram Panchayat had to be by secret ballot but as is clear from the proceedings of the said meeting the resolution was passed by the five Panches by show of hands. This, in our opinion, is a serious illegality committed by the prescribed authority rendering the resolution invalid. When the law requires that voting shall be in a particular manner it must be done in that manner and no other. In the instant case, the voting should have been by secret ballot as enjoined by the Statute. In a secret ballot, a voter casts his vote freely according to his conscience whereas in the case of a vote by show of hands, the possibility of the same having been cast under pressure cannot be ruled out and that is why the Legislature in its wisdom has provided for a secret ballot. The provision in this regard is mandatory and non-compliance therewith makes resolution illegal and null and void.