BHAGIRATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner has challenged (Annexure 1) dated 21st April, 1986, under which the Additional District Development Officer, Alwar under Section 17(2) of the Rajasthan Panchayat Act, 1953 (for short the 'Act') has decided that the office of the Sarpanch which the petitioner was holding is vacant.

(2.) THE petitioner is a Law Graduate and is a practicing Lawyer and elected as Sarpanch of Village Panchayat Gadoj in District Alwar in the election that had taken place in the year 1981. On 3rd March, 1986, Bhagirath Singh Yadav Sarpanch of the Village Panchayat alongwith five other Panchs presented an application to the Additional District Development Officer, Alwar that the Sarpanch has absented himself from five succeeding meetings of Panchayat, which meetings had been held on a requisition by Vikash Adhikari. The petitioner was absent from five consecutive meetings of the Panchayat without any information in writing and as such his seat has become vacant. A resolution was passed by Panchayat and that was forwarded to the Additional District Development Officer and he gave a notice and the petitioner, who submitted a reply wherein it was stated that he had convened the meetings of the Panchayat and has also attended them. A false charge of not attending the meetings without informing in writing has been levelled against him The Additional District Development enquired into the matter and though came to the conclusion that the petitioner only convened 2 meetings of the Panchayat after being elected and thereafter did not convene any meeting, also came to the conclusion that the charge of not attending five consecutive meeting convened by the Vikas Adhikari is also not made out. He further held that from the perusal of the record it is established that Bhagirath Singh Sarpanch as well as Up -Sarpanch Shri Ram Yadav and Panchas sarva Shri Bansi, Sukh Dev, Suraj Bhan and Rameshwar did not attend five consecutive meetings of this Panchayat and their seats were declared vacant under Section 17 of the Panchayat Act.

(3.) IN my opinion this writ petition deserves to be allowed UnderSection 17(2) of the Act if any Sarpanch or Up -Sarpanch or Panch during theterm of his office absents himself from five consecutive meetings of thePanchayat without giving information in writing to the Panchayat he shallcease to be such Panch. Sarpanch or UP -Sarpanch and his seat shall becomevacant Rule 12 of the Rajasthan Panchayat and Nyaya Panchayat (General)Rules, 1961 (for short the 'rules') has been framed to give effect to theprovision of Sub -section (2) of Section 17 of the Act. While Section 1(2)of the Act is mandatory, the rule is only directory and provides a safeguardagainst the misuse of power by the Sarpanch. If any Sarpanch or Up -Sarpatnch or such Panch absents himself from four consecutive meetings ofthe Panchayat, the Sarpanch, or in his absence, the Up -Sarpanch or anyother presiding Panch, shall give to the absentee a notice in writing as soon asmay be after the close of the fourth meeting and before the fifth meeting takesplace, stating that he has inspite of due notice not attended four immediatelypreceding meetings held on the dates to be stated in the notice and that hisseat shall become vacant if he does not attend the fifth meeting of whichdue notice shall be received by him due in course of time. Even the AdditionalDistrict Development Officer in his enquiry report and decisionwhich has been challenged held that no regular meetings of the Panchayatwere held It was also held that even the meetings held under the Up -Sarpanchwere not in accordance with law. But on the perusal of the record he heldthat not only the petitioner but even others have absented themselves for fiveconsecutive meetings of the Panchayat without informing in writing. Thelearned Additional District Development officer contradicted himself at morethan one place. After havnig come to a definite finding that the meetings fromwhich the petitioner is said to have been absent or which thepetitioner did rot attend, did not take place or were irregularmeetings, he could not have thereafter proceeded and held thatsome of the meetings of the Panchayat were regular and on thebasis of them he could not have held that the seat of Sarpanch the petitioneras well as other Parchas named above become vacant. Under Sub -rule (4) of Rule 12, once after notice of the fifth consecutive meeting is served on the Panch Sarpanch or Up -Sarpanch and the notice of the date of the fifth meeting as aforesaid was duly served on the absentee the Panchayat shall pass a resolution to the effect that the absentee has remained absent on five consecutive meetings and forward a copy of the resolution together with the record of the meeting issued to the absentee and any other papers that may be relevant, to the Dy. D.D. O with the recommmendation. On receipt of record referred to in Clause (4), the Deputy District Development Officer may upon perusing the record and considering the recommendation of the Panchayat and after making such further enquiry he may sonsider necessary and after giving the absentee an opportunity of being heard declare such seat to have become vacant or make such other order as he may think proper in the circumstances of the case. Thus in my opinion, while considering a resolution of the Panchayat the District Development Officer or Additional District Development Officer, as the case may be has to see that the fifth meeting which Panch, Up -Sarpanch is said to have been absented was convened or not. It has to confine itself to the dates of the meetings in the resolution itself and to no other meetings of the Panchayat.