RAMCHANDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner Ramchandra, Sarpanch, Gram Panchayat, Shivbari, Tehsil Bikaner has filed this writ petition praying that the orders passed by the Additional District Development Officer, Bikaner dated 29-1-1973 and 3-2-1973 marked Annexure 3 and 4 respectively holding that nonconfidence motion against the petitioner has been carried out, be set aside. THE relevant facts necessary for the purpose of disposing of this writ petition may be briefly stated as follows: THE petitioner was elected as Sarpanch of Gram Panchayat, Shivbari in the year 1965. On 29-12-1972 the nonpetitioner No. 4 delivered a notice of motion of nonconfidence against the petitioner to the Additional District Development Officer, Bikaner on which the Additional District Development Officer, Bikaner (who will hereinafter be referred to as the non-petitioner No 2) called a special meeting of the Panchayat to be held on 12-1-1973 for consideration of the motion and authorised the Tehsildar, Bikaner nonpetitioner No. 3 to preside at the meeting. On 9-1-1973 Haji Khan made an application to the non-petitioner No. 2 that he wanted to withdraw the notice of nonconfidence moved by him. THE petitioner's case is that in spite of Haji Khan's desire to withdraw the notice, the meeting was held on 12-1-1973. It may be stated here that the number of Panchas fixed Dy the State Government under serc. 4 of the Rajasthan Panchayat Act, 1953 (which will hereinafter be called 'the Panchayat Act') is 13 but 4 seats had fallen vacant and the number of Panchas functioning for the time being was 9 out of whom 8 including the Sarpanch were present and one Jeewan Ram was absent. Six admittedly voted for the motion. One Panch named Smt Aysha is alleged to have voted against the motion. Her vote is a matter of dispute to which detailed reference will be made hereafter It may be relevant to state here that as required by sec. 19 of the Panchayat Act the motion of nonconfidance against a Sarpanch must be carried by a majority by not less than 3/4th of the total number of members of the Panchayat including the Sarpanch. THE Tehsildar held that since the total number of Panchas was 13, the motion could not be said to have been carried unless 3/4th of the total number of members, i. e. 10 vote for the motion. He further held that only six Panchas had voted for the motion and therefore the motion was lost. Accordingly, he drew the proceedings of the meeting (Ex. 1) and declared the motion to have been lost. A copy of the report of the meeting prepared by the Tehsildar has been placed on the record and marked Ex. 1 Dissatisfied with the report of the Tehsildar, Hajikhan made an application to the nonpetitioner No. 2 the same day and submitted that Smt. Aysha's vote had been wrongly counted against the motion as in fact she had voted for the motion.

(2.) A preliminary objection was raised on behalf of the petitioner before the non-petitioner No. 2 to the effect that the latter had no jurisdiction to revise the order of the Tehsildar. But the non-petitioner No. 2 by his order dated 29-1-1973 (Annexure 3) held that he had jurisdiction to enquire into the correctness or otherwise of the report made by the Tehsildar. He also held that the notice of nonconfidence motion could not have been subsequently withdrawn by Hajikhan and that the meeting held on 12-1-1973 for consideration on nonconfidence motion was in order.

(3.) THE question as to what is the effect of the delegation by the Additional District Development Officer of his authority to preside at the meeting has been debated at a considerable length by the learned counsel for the parties. Learned counsel for the petitioner on the basis of Raghunath Rai vs. THE State of Rajasthan (l) contended that as soon as the Additional District Development Officer authorised the Tehsildar to preside at the meeting for consideration of non-confidence motion, he completely divested himself of the powers under the Rules to decide the question whether the motion was lost or was carried by a majority as required by law. In this connection learned counsel also relied upon B. M. Corporation vs. Dhondu (2 ). On the other hand Mr. Kalla, learned counsel for the non-petitioners Hajikhan relied upon Gangasahai vs. Deputy District Development Officer, Sawai Madhopur (3), and an unreported judgment by a Single Judge of this Court: in S. B. Civil Writ Petition No. 2070/1971: Somdutt Purohit vs. State of Rajasthan, decided on 20-11-1973, and urged that by merely authorising the Tehsildar to preside at the meeting the Additional District Development Officer did not lose the power to decide the question whether the motion was lost or carried.