RAM LAL CHOUDHARY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) PETITIONER Ram Lal Choudhary was an elected Member of Panchayat Samiti Dudu. He was served with a notice for an enquiry under Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994 (for short `the Act of 1994') on the ground that he has disqualified himself on account of he having more than two children which is prohibited under Clause (1) of Sec. 19 of the Act of 1994. The notice was issued on 11. 12. 1997 and he was called upon to submit his reply on 20. 12. 1997 by the Deputy Secretary (Law), Government of Rajasthan, Jaipur. On 11. 12. 1997 an order was passed by the Director & Special Secretary to the Government of Rajasthan that he is disqualified under Sec. 39 on account of breach of Sec. 19 (1) for having more than two children but he has been issued notice under Sec. 39 (2) for personal hearing adhering to the principle of natural justice. He has been suspended as a Member of Panchayat Samiti Dudu in exercise of powers under Sec. 38 (4) with immediate effect. It is this notice and order of suspension which are challenged by filing the writ petition No. 40/98.

(2.) PRIOR to the suspension of Ram Lal Choudhary, the Member of the Panchayat Samiti Dudu submitted a no confidence motion against the Pradhan of Panchayat Samiti Dudu on 17. 11. 1997. In pursuance of the said notice, the Chief Executive Officer, Zila Parishad, Jaipur by order dated 20. 11. 1997 fixed the meeting for consideration of no confidence motion against the Pradhan on 12. 12. 1997. Twenty four Members attended the meeting on 12. 12. 1997 inclusive of Ram Lal Choudhary, the Sub Divisional Officer, who presided over the meeting of no confidence motion had restrained Ram Lal Choudhary from participating in the no confidence motion meeting on account of he being suspended by the State Government under Section 38 (4) of the Act of 1994. Twenty three members excluding Ram Lal Choudhary were permitted to vote. Out of those twenty three Members, twenty one voted in favour of the no confidence motion. The Sub Divisional Officer has passed an order that total membership of the Panchayat Samiti Dudu is thirty three. Since Ram Lal Choudhary is suspended, the membership of the Panchayat Samiti remains thirty two. Two third of the thirty two members would be twenty two members and twenty two members is the requisite number for passing the no confidence motion. Since the no confidence motion is supported by only twenty one members, no confidence motion fails. This order is challenged in Writ Petition No. 39/98.

(3.) RAM Lal Choudhary was not permitted to vote in the no confidence motion held on 12. 12. 1997. He was wrongly restrained to vote in the no confidence motion by virtue of the order of suspension passed on 11. 12. 1997 which has been quashed by this Court. RAM Lal Choudhary was competent to exercise his vote which was not permitted to him by the Competent Authority i. e. the Sub Divisional Officer and as the result thereof he had passed an order that no confidence motion has failed. We are of the view that the one vote of RAM Lal Choudhary will make difference in passing or not passing of the no confidence motion. In view thereof the order of Sub Divisional Officer, Sambhar Lake Camp, Panchayat Samiti Dudu declaring the no confidence motion has failed, is set aside. The Presiding Officer i. e. Sub Divisional Officer, Panchayat Samiti Dudu. District Jaipurshall issue notice to RAM Lal Choudhary to attend the Panchayat Samiti Office on a particular date to cast his vote on the no confidence motion moved against Pradhan of the Panchayat Samiti Dudu and will declare the result of the motion of no confidence afresh after permitting RAM Lal Choudhary to cast his vote by counting all the votes casted in favour of or against the no confidence motion. This exercise shall be done by the Sub Divisional Officer within a period of fifteen days of the placement of this order before him.