Jagmal Singh vs State of Haryana and others

C.G. Suri, J.—Shri Jagmal Singh, a duly elected panch of the Gram Panchayat of village, Rajpura; has filed this writ petition under Articles 227 and 227 of the Constitution of India to call in question the legality and propriety of an order dated August 9, 1972, passed by the Secretary, Development and Panchayats Department of State of Haryana, respondent No. 1, removing the petitioner from the membership and chairmanship of the Panchayat Samiti, Patudi and disqualifying him from re election for a period of five years u/s 103 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961, (here in-after briefly referred to simply as the Act).

The facts are that the petitioner had been elected to the Gram Panchayat of his Sabha area and the Panchayat Samiti of his block, during the earlier term in 1965. In due course, he had been elected as the Chairman of the panchayat Samiti and was continuing to hold that office when he contested the Gram Panchayat and Samiti elections for the present terms in the year 1971 and 1972. There was some enquiry going on against him at the time u/s 103 of the Act, in respect of some acts of mis use of powers alleged to have been committed by him as Chairman during the years 1967 and 1968. This enquiry was started somewhere in the year 1969 and was pending against the petitioner when he contested for the membership of the Gram Panchayat of the Sabha area in 1971 and the membership of the Panchayat Samiti on July 10, 1972. He was duly elected as a punch of the Gram Panchayat and a primary member of the Panchayat Samiti not-withstanding the fact that the enquiry in respect of the alleged misuse of power was pending against him at that time. It is not clear from the record whether any orders of suspension had been passed against him under sub-section (1) of section 103 of the Act. The election of 16 primary members, of the Samiti, including the petitioner and Sees Ram respondent No. 4 by the Panches and Sarpanches of the Gram Panhayats in the block area from amongst themselves u/s 5(2)(a)(i) of the Act was notified in the official gazette, by the Deputy Commissioner and his General Assistant respondents No. 2 and 3, by a notification dated July 13, 1972, annexure A to the writ petition. A meeting for the co-option of women and scheduled castes members was then held on August 2, 1972 and the petitioner had also attended that meeting. The next meeting was fixed for August 11, 1972, for the election of the Chairman and the Vice-Chairman of the Panchayat Samiti, but the petitioner and other members of his party failed to attend that meeting because the petitioner had been served that very morning with the impugned order dated August 9, 1972 (annexure B). The meeting had to be adjourned for want of quorum. In view of the five years disqualification imposed on the petitioner by this order, he is being prevented from seeking election as the Chairman of the Panchayat Samiti He claims that he enjoys a comfortable majority amongst the members of the Samiti and that respondent No. 4, who is a sitting Member in the Legislative Assembly from Pataudi constituency, has wielded his influence with respondents Nos. 1 to 3 and that the impugned order has been passed malafide by respondent No. 1 in collusion with respondent No 4 to turn the tables on the petitioner and to title the balance in favour of respondent No. 4 The order (annexure-8) is, therefore, being impugned by the petitioner on the following main grounds:--

(1) The alleged abuse of power by the petitioner during his earlier term cannot lead to his removal from the primary membership of the Panchayat Samiti for the current term, when he has been duty re-elected to that office in a fair contest. The petitioner cannot be removed from his primary membership during the second term for the acts of mis-use of power alleged to have been committed by him during the previous term.

(2)The impugned order of respondent No 1 is malafide and without jurisdiction and has been passed to favour respondent No. 4 who is the sitting Member of the Legislative Assembly and belongs to the political party in power. He is said to be the prospective candidate for the office of Chairman or Vice-Chairman of the Panchayat Samiti.

The allegations of mala fides had been denied by respondents Nos. 1 to 3 and there is nothing concrete on record to bear out these allegations. Respondent No. 4 has not cared to put in appearance. Any how, the second ground pleaded by the petitioner must fail as it is not supported by any proper evidence.

As regards the first submission, Shri Chandra Singh, the learned counsel for the petitioner, relies mainly on a Division Bench ruling of this Court in Din Dayal v. State of Punjab (1966) 68 P.L.R. 938. That was a case under the Punjab Gram Panchayat Act and a Sarpanch had been removed from office under sections 95 and 102 of that Act for his acts and omissions committed during an earlier term of office. It was held that the Sarpanch could not be removed for his acts and omissions committed during the course of his first terra of office after ha had been elected for the second term. An earlier Division Bench ruling of this Court under the Punjab Municipal Act in the Stats of Punjab v. Bikhtawar Singh L.P.A. 23 of 1959. Letters Patent Appeal No. 23 of 1959, decided on August 29, 1980, had been relied upon. The following observations from Bakhtawar Singh''s case were reproduced verbatim :--

It will be noticed from the various clauses of this section that it gives power to the Government to remove a sitting member for any misconduct committed by him during the term of that office. It has no reference to any misconduct previous to the term of that office unless that misconduct is a statutory bar to his election to the Municipal Committee and that would be a matter which would disqualify the member from contesting the election and would certainly be no ground for his removal after he has been duly elected. This was the view which the learned Single Judge took of the matter, and, in our opinion, this is the correct view to take. There is another way of looking at the matter. The elections are a part of the democratic set up. The electors are given the option to return their nominee and it is open to them while returning a member to return him or not to return him, because if they are satisfied that the person is not a fit person to be returned, they will not cast their vote in his favour but once they return a member, they have no power according to law, to turn him out if during the term of his office he is guilty of misconduct. It is for that reason precisely that section 16 of the Municipal Act has bean enacted and powers has been conferred by the Legislature on the Government to disqualify a member who is guilty of misconduct or of breach of certain matters provided for in this section. It has no relevancy to his conduct before he was elected. That is a matter for which the electors are the sole Judge unless that matter id a disqualification for his standing for the election, that would debar him from contesting the election.

The above observations were found to apply with equal force to the case under the Punjab Gram Panchayat Act and there was no escape from the conclusion that the petitioner could not be removed from office for his acts and omissions committed during the course of his earlier term when he had been returned to the same office for the next term. These two Division Bench rulings of the Court may appear to be fully applicable to the facts of the present case Shri Dewan, the learned Additional Advocate General for the State of Haryana, wanted to distinguish these rulings by reference to certain provisions of the Act. He invited my attention to clause (k) of section 6 of the Act, which says that no person shall be eligible for election as a primary member, if such person is disqualified for being elected or co-opted as a ''member''. A primary member of the Panchayat Samiti would be included in the definition of ''member'' as given in section 2(9) of the Act. This disqualification had, however, been imposed by an order passed about a month after the holding of the last elections to the Panchayat Samiti. The petitioner was, therefore, not suffering from any disqualification and was eligible for being elected as a primary member when the Samiti elections were held on July 10, 1972 The notification in the official gazette and the administration of oath or affirmation of allegiance referred to in section 10(1) of the Act, are routine steps which have to follow as a matter of course in consequence of a person having been duly elected. The Government is not given any option to withhold the taking of these routine steps after a person has been duly elected and thereby to deprive the returned candidate of the benefits or privileges arising out of his success at the polls. The step with regard to the publication of the notification in the official gazette in compliance with the provisions of section 10(1) of the Act had actually been taken by the Government within a few days of the polling vide notification Annexure A dated 13/14th August, 1972. Fighting an election can be a great ordeal involving time, labour and money and the Government should not make a person go through the farce of fighting an election, if he is not to be given the chance of winning in spite of the fact that the electorate wants to return him to office with full knowledge of his supposed acts of omission or commission during his previous term and the pending inquiry u/s 103 of the Act. The alleged acts of mis-use of power by the petitioner during the previous term have been enumerated in the impugned order dated August 10, 1972, as follows :--

(1) that he in contravention of Samiti''s Resolution No. 12, dated 30th November, 1967 and Government instructions regarding the procedure of disbursement of loan, got disbursed Community Development loans to seven villagers out of turn;

(2) that he took part in Samiti''s meeting dated 15th September, 1967 in which, cases of grant of subsidy to his relatives viz;

(ii) Shri Bhopinder Singh, village Rajpura; and

(ii) Shmt. Sarbati Devi, Gram Rakpura were decided and they were actually granted the subsidy. As such he (Jagmal Singh) acted in contravention of the provisions of section 28 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961.

(3) That he, appointed Sarvshri Raghbir Singh as Chowkidar of the Panchhyat Samiti with effect from 16th March, 1969, and Jaswant Singh and Kanchan Singh as Panchayat Secretaries with effect from 16th January, 1968 in contravention of Government (Labour and Employment Department) instructions contained in their letter No. 11073-31-A.V.67/34357, dated 27th November. 1967; and

(4) that he issued a certificate to Shri Rajpal Singh, son of Shri Ram Singh, village Rahnwa to the effect that he (Shri Rajpal Singh) belongs to Backward area which was tot true.

The enquiry had been going on for at out three years, but the order imposing the disqualification on the petitioner, was passed after about a month of his return to power for the second time. There appears hardly any reason why the disqualification could not be imposed before the petitioner was made to go through the ordeal of fighting the elections for the new term. Shri Dewan has drawn my attention to the second proviso u/s 8 and the first proviso under sub-section (1) of section 18 of the Act, which provide that an out going member. Vice Chairman or Chairman shall continue to bold office until the publication of the official notification about the election of the successor. The administration of the oath office has to be follow as a matter of course. I do not see how these statutory provisions affect the question of the eligibility of a person, who has been allowed to fight out an election and a disqualification is sought to be imposed on him after he had been returned to power by ''be electorate in spite of their knowledge about the acts of omission or commission alleged to have been committed in abuse of his powers during a prior term. The two Division Bench rulings relied upon by Shri Chander Singh may appear to be fully applicable and the petitioner cannot be allowed to be hit below the belt after he has been made to go through the ordeal of fighting out a fair contest. The removal from office as a consequence of any acts of abuse of power could be ordered only for the duration of the term of office during which those acts of abuse of power were alleged to have been committed. The notification about the election and the administration of oath of office were routine steps, which had to follow as a matter of course after a person had proved his worth in the eyes of the voters or the electorate of his constituency who had chosen to return him to the same office again with full knowledge about his alleged acts of abuse of power during the earlier term.

I, therefore, allow this writ petition with costs and quash the impugned order (annexure-B) passed by respondent No. 1, on August 9, 1972.