"Court cannot stop democratic process to decide the fate of any elected authority:" Jammu and Kashmir court

A Jammu & Kashmir court recently observed that it cannot interfere with the democratic process laid down in the Panchayati Raj Rules and stop the democratic process to decide the fate of any elected authority (Tarsame Kumar v. Secretary, Block Development Council).

Additional District Judge, Jammu, Tahir Khurshid Raina, therefore, dismissed a a plea by chairperson of Block Development Council (BDC) to stay the process initiated by elected Sarpanches for his removal.

The judge stated that the removal of the plaintiff-appellant, Tarsame Kumar will happen through a democratic process laid down under the Panchayati Raj Rules of 1986 (Rules) turning down contentions that there were procedural violation with regard to the process initiated for the removal.

"Fact remains that the grounds of removal will be discussed in the debate and discussion of the Sarpanchs where in plaintiff will also be present . It's exclusively their prerogative to discuss this issue and formulate their opinion and not for this court to interfere and stop the democratic process to decide the fate of any elected authority," the judgment said.

By way of background, the plaintiff in the capacity of Chairman of BDC had presided over the meeting which led to the removal of a Sarpanch in terms of Rule 81 of the Panchayati Raj Rules.

The allegation by the plaintiff was that this Sarpanch then hatched a conspiracy for removing the plaintiff from the post of Chairperson as revenge for her removal.

For the purpose, a special meeting of fifteen Sarpanches was conducted on October 15, 2020 and a resolution of no confidence motion, signed by 2/3rd majory of Sarpanches was sent to District Panchayat Officer, who gave it to Secretary Block Development Counsel to proceed in the matter.

The Secretary, thereafter, issued a notice dated January 5, 2021 for convening the meeting at 12 PM at Block Head Quarters R.S Pura on January 30, 2021.

This notice came to be challenged before the trial court by the appellant by way of a civil suit seeking a declaration that the said notice was void ab-initio and also sought an injunction against the scheduled meeting.

The application for grant of injunction was dismissed by the trial court by an order dated February 6, 2021. The refusal to grant interim relief came to be assailed before the Additional District Judge.

The appellant put forth two main contentions:

- that the limitation time for taking the steps and convening the meeting for removal the Chairman as prescribed in Rule 81 has not been properly followed;

- that the mandate of Section 30 of the Panchayat Raj Act is not considered in its right perspective by the trial court.

Regarding the limitation aspect, the argument was that the notice was dated January 5, 2021 and the motion for removal was given on October 19, 2020 and the Secretary had to convene the special meeting not earlier than ten days and not later than twenty days from receipt of the motion.

However, as meeting was not organised in the prescribed time span, hence the notice did not survive legally, it was argued. Any other date fixed for the meeting i.e January 30, 2021 is much after the said time limit, will not be sustainable, in the context of limitation period of 10 days and 20 days as prescribed in Rule 81 of the Rules.

With regard to Rule 81, it was also urged that the notice for moving a motion was required to be given to Secretary and not to the District Panchayat Officer. It is the Secretary who has to take steps for the same.

The argument advanced by the counsel for plaintiff was that the resolution of Sarpanches was not received by the Secretary directly from two Sarpanches , signed by 2/3rd of them, rather it has been routed through District Panchayat Officer, to reach the Secretary.

The Court said the procedural irregularity should be a material one to render the process void.

There may have been a material irregularity which could have put a question mark on the procedure adopted, had the District Panchayat Officer, at its own proceeded in this regard as he was not the empowered authority under rules to take any such step.

But he did not do so; instead he immediately sent the resolution to the Secretary Block Development Council to take steps as he was the only authority recognised under the Rules to proceed in the matter.

"Now simply on this account that notice, instead of being served directly to Secretary , is received by him through District Panchayat Officer , does not amount to such a material procedural irregularity that it renders the whole exercise non est," the Court said.

On the mandate under Section 30, it was submitted by the appellant that removal can only be for gross misconduct, neglect of duty and disqualification. The argument was that his case did not fall in any of the three grounds and therefore, the process based on it should be stopped .

The Court noted that only the notice for removal has been sent and no removal has happened. The requirement of Rule 81 is that the notice sent by the Sarpanches should carry the reasons of removal by no confidence motion. The purpose behind it is that the authority whose removal is sought, should know in advance as to what are the charges against him so as to prepare his defence accordingly in the meeting where the proposed debate and discussion will be held to discuss the charges against him, the Court said.

"Fact remains that simply mentioning of reasons of removal does not mean removal in itself on said grounds unless they are put in debate and discussion by all the elected Sarpanches of the Panchayat in the meeting and only thereafter the motion which is earlier moved by any member on the three grounds , if ratified by 2/3rd strength of the total number of Sarpanches of halqa Panchayat of the Block , will lead to removal of the Chairman," the Court said.

This, the Court opined, is a pure democratic process which entails full debate and discussion and thereafter, only on the basis of pure majority number, the fate of the removal or continuance as Chairman gets decided.

This is the essence of democracy which has to be acknowledged and not to be thwarted at its infancy, the Court added.

"It's exclusively their prerogative to discuss this issue and formulate their opinion and not for this court to interfere and stop the democratic process to decide the fate of any elected authority," the judge underscored.

The Court, therefore, dismissed appeal and put on record that whatever has been observed in the judgment, will not have bearing on the trial of the suit which is pending disposal in the trial Court.

[Read Judgment]