- (1.) In this writ petition, the petitioner has challenged the legality and validity of Anne-ure P.2 by which the Block Development and Panchayat Officer, Mahilpur has called the meeting of the Panches for the purpose of electing an acting Sarpanch on 11-8-1989 at 11.30 a.m. commanding majority. A brief re'sume' of the facts giving rise to the present writ petition is necessary in order to appreciate the question involved.
(2.) In the election of Gram Panchayat Panjaur held in September, 1983 one Ranbir Singh was directly elected Sarpanch of the said Panchayat along with other Panches of the Gram Panchayat to whom notice Anne-ure P.2 has been issued. The aforesaid Ranbir Singh Sarpanch worked as Sarpanch of the Panchayat for a few months. In November 1983, he went abroad. The Gram Panchayat before the going of Ranbir Singh abroad passed a resolution appointing the petitioner as acting Sarpanch who took over the charge of the post and the record as well as the property of the Panchayat. Ever since then he had been working as an acting Sarpanch. It is further the case of the petitioner in the writ petition that Ranbir Singh, the elected Sarpanch, came back to the village and remained there for about three years but never took interest in the affairs of the Panchayat and never asked the petitioner to hand him over the charge nor participated in the meetings of the Panchayat on his return to the village and as such the petitioner continued working as Sarpanch. Ranbir Singh again went abroad. According to the petitioner as has been stated by him in the petition no vacancy of Sarpanch has accrued as is required by S.10(1) of the Punjab Gram Panchayat Act, 1952 (hereinafter called 'the Act'). S.10(1) of the Act is reproduced below, at this stage, for facility of ready reference : "Section 10(1). Filling of casual vacancies- (1) Whenever a vacancy occurs by death, resignation or removal of- (a) a Sarpunch, a new Sarpanch shall be elected in the manner prescribed; (b) a Panch, the vacancy shall be filled up by the Gram Panchayat by co-option in the prescribed manner from amongst the members of the Sabha who are eligible to be, elected as Panches : Provided that where a vacancy occurs as a result of the election or, co-option of a Panch having been set aside under S.13-O the vacancy shall be filled by election or co-option, as the case may be in the prescribed manner. ' (2) - - - - - - - - - - -" The petitioner has further stated in the petition that the Block Development and Panchayat officer directed the petitioner to appear in his office with the Panchayat's records on 14-7-1989 who on petitioner's appearance seized the entire record of the Panchayat from him without assigning any reason. It has further been stated that on 1-8-1989 the Block Development and Panchayat Officer Mahilpur issued a notice to the petitioner and the Panches for holding meeting of Panchayat on 11-8-1989 at 11.30 a.m. under the Chairmanship of Social Education and Panchayat Officer, Mahilpur for electing new acting Sarpanch. As has been noticed above, it is the legality and the validity of this notice Anne-ure P.2 which is the subject matter of challenge in this writ petition.
(3.) While issuing notice of motion, the operation of Anne-ure P.2 was stayed. Two separate written-statements to the writ petition have been filed on behalf of the Block Development and Panchayat Officer as well as the members of the Gram Panchayat. In the written statement filed by the Panches, it has been averred therein on a point of fact that the petitioner was not performing the duties of the office of Sarpanch in accordance with the provisions of the Act and, therefore, they have lost confidence in him. They have averred that the petitioner sold away the trees to the e-tent of Rs. 500/- without their consent and without any receipt. According to them the petitioner was not rendering any accounts to them. A copy of the representation filed by respondent Nos. 4 to 8 to hold the meeting for the election of acting Sarpanch who enjoys majority has been attached with the written filed by respondents No. 2 and 3. It is on the basis of the representation that the meeting has been ordered to be convened as per Anne-ure P.2. Apart from this factual position, it has been urged in the written statement that the petitioner could not be described to be elected Sarpanch as he never took oath of the office as required by S.9(1) of the Act which reads as under : "Section 9. Oath and terms of office of Panches and Sarpanch and no confidence motion against Sarpanch:- (1) Before entering upon the duties of his office, a Panch as well as a Sarpanch shall take an oath in the form specified in Schedule IV. (2) A Sarpanch or a Panch shall hold office for a period of five years : Provided that an outgoing Sarpanch or a Panch shall, unless Government otherwise directs, continue to hold office, until his successor takes oath. Provided further that the Sarpanch and Panchayats holding office as such on the commencement of the Pb. Gram (Panchayat) Amendment Act, 1982 shall hold office only until their respective successors, elected by virtue of a direction issued under the proviso of sub-sec. (3) of S.95A takes oath. (3) An application regarding intention to move a motion of no-confidence against a Sarpanch may be made to the Block Development and Panchayat Officer by a two third of the total number of members of the Gram Sabha concerned Provided that no such application shall be made unless a period of two years has elapsed from the date on which the Sarpanch assumed his office. (4) The Block Development and Panchayat Officer shall, within a period of fifteen days of the receipt of application under sub-sec. (3), convene a meeting of the Gram Panchayat, by giving seven clear days notice, for discussing and taking decision on the no-confidence motion. (5) If the no-confidence motion is carried in the meeting which shall be presided over by the Block Development and Panchayat Officer or an Officer not below the rank of an E-tension Officer authorised by the Block Development and Panchayat Officer in this behalf, by (two third) majority of the total number of Panches of the Gram Panchayat concerned, the Sarpanch shall be deemed to have been removed from his office, whereupon a new Sarpanch shall be elected in that very meeting Provided that if no-confidence motion is lost, another such motion shall not be moved against that Sarpanch during the remaining term of his office." It has been further stated that the petitioner could not be described to be acting as Sarpanch as he only took over the charge of the office of the Sarpanch in the absence of Ranbir Singh who continues to be an elected Sarpanch of the Gram Sabha.;