GOPILAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner was elected as sarpanch of the Gram Panchayat Udaipura Tehsil Sikrai District Jaipur. On 10th Feb. 1978, he was administered oath of the office of Sarpanch. Respondents Nos. 3 to 12 are the Panchas of the above Gram Panchayat duly elected. Respondents Nos. 13 and 14 are the members of the Gram Panchayat by co-option. A vote of no confidence was passed by the Panchas in a meeting held on 23rd Sept. 1978. Out of 13 Panchas 11 Panchas voted in favour of the no-confidence motion and two panchas, out of whom, one was the sarpanch himself, voted against the no confidence motion. Shri Chiranji Lal Sharma, Officiating Tehsildar, Sikrai, who presided over the meeting, declared the no confidence motion to be passed against the petitioner. The petitioner by way of this writ petition has challenged the motion of no confidence passed in the meeting held on 23rd Sept. 1978. The first contention of the learned counsel for the petitioner is that only respondents Nos. 4, 5, 10, 11, 12 and 13 bad taken the oath in the manner prescribed under Rule 63 of the Election Rules on 8th May, 1978 and the rest of the respondents namely 3, 6, 7, 8, 9 and 14 have not taken the oath as yet. As such the panchas, who had not taken tbe oath, had no right to take part in the meeting on 23rd Sept. 1978 and further the respondent No. 3, wbo had also not taken the oath, had no right to move a motion of no confidence against the petitioner. It is further contended that the petitioner had raised this objection before the Presiding Officer and the Additional District Development Officer, Jaipur District, Jaipur vide Annexure 2 dated 21st Sept. 1978, had also directed the Presiding Officer that before starting of the proceedings, he should confirm that all the panchas had taken the oath in the prescribed manner.

(2.) On the other hand, Shri Calla, appearing on behalf of the respondent No. 3 has contended that all the panchas had taken the oath- He has also filed the affidavits of Kishori, Ramnath Singh, Chhaju Ram, Malkhan, Kalyan, Chander, Gulab Rai, Shanker and Girraj Prasad, the respondents, to the effect that they were administered oath and they were also taking part in the meeting of the Gram Panchayat since 10th Feb. 1978. It is further contended that all those forms containing the signatures of the panchas about taking oath are in the possession of the petitioner himself. It is further contended that Section 19 of the Rajasthan Panchayat Act, 1953 lays down a provision for moving a motion of no confidence. Under Sub-section (1) of Section 19 a motion of no confidence can be moved by any elected or co-opted panch. Under Sub-section (2) of Section 19 if the motion against the sarpanch is carried by a majority of not less than 3/4 of the, total number of members of the panchayat including sarpanch but excluding the associated panchas then it would be a valid motion of no confidence. Section 4 lavs down about the constitution of panchayat. Under this section a panchayat shall consist of (a) A sarpanch, (b) such number of panchas not being less than 5 or more than 20 as the State Government may determine, elected from amongst qualified voters of the panchayat, (c) panchas co-opted under Section 9, and (d) presidents of all the ser vice co-operative societies in the panchayat circle certified, in the prescribed manner, as holding office as such who shall, so long as they continue to be such presidents be as society members of the panchayat. Thus the Udaipura Panchayat consisted of 13 panchas including sarpanch. Section 15 reads as under:

(3.) Section 15 clearly lays down that every panch or sarpanch shall before entering upon his duty as such, make and subscribe before the prescribed authority the oath or affirmation in the prescribed form. As such the oath or affirmation is necessary for a panch or saipanch before entering upon his duty as such. So far as the moving of a motion of no confidence is concerned Section 19 nowhere lays down that such motion of no confidence should be moved only by a panch who has taken oath of his office. It only speaks about any elected or co-opted panch, Thus I am clearly of the opinion that a member of the panchayat as soon as he is elected or co-opted has a right to move a motion of no confidence against the sarpanch. The duties of the panchas have been mentioned in Section 24 and these duties cannot be performed by a panch before taking the oath of his office. But this section nowhere lays down the moving of no confidence motion as one of the duties of a panch. Thus in my view, all the 13 panchas were entitled to take part in the proceedings for no confidence motion moved against the petitioner.