KAN SINGH, J. -
(1.) THE writ petition before me is by one Ramhetlal who is a Pradhan of the Panchayat Samiti, Mahwa, District Sawai Madhopur and he seeks to question the validity of an order of the Collector, Sawai Madhopur Ex. 11 on record passed by him on 26-9 67 whereby he ordered the convening of a meeting for consideration of a motion of no-confidence, notice of which was given to the Collector by some member of the Panchayat Samiti, Mahwa. THE petitioner has prayed for an appropriate writ, direction or order.
(2.) THE relevant facts as contained in the writ petition are briefly these. THE petitioner was the elected Pradhan of the Panchayat Samiti, Mahwa and he was elected by an electoral college as contemplated by section 12 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter referred to as the Act ). THE electoral college consisted of 389 persons. One Kishorilal respondent No. 10 who was a member of the Panchayat Samiti presented before the Collector, Sawai Madhopur on 13-9 67 a notice for the motion of no-confidence purporting to have been signed by 22 members of the Panchayat Samiti. THE petitioner's case regarding this notice of the motion of no-confidence is that four of the members of the Panchayat Samiti whose signatures appear to be on the notice of the motion of no-confidence had never appended their signatures on any such notice for a motion of no-confidence but a fraud was practised on them in this behalf. It is stated that these members who were respondents Nos. 3 to 7 were asked to sign some blank papers on the pretext that a joint application for the increase of the sugar quota would be made. According to the petitioner when later on these respondents came to know that the signatures that were obtained were sought to be used for another purpose, namely that of giving notice of a motion of no-confidence, they signed certain affidavit to that effect and then their affidavits were presented before the Collector on the 12th of September, 1967 i. e. , a day earlier to the presentation of the notice by respondent No. 10 before the Collector.
There is a controversy about the presentation of these affidavits before the Collector and that will be referred to in the course of the discussion. Applications were also moved before the Collector, after 13-9-67, by respondents Nos. 5, 6 and 7 i. e. on 19-9-67 that they had never signed the notice for the motion of no-confidence and therefore, the Collector should not take them to be the signatories of the notice. The Collector then passed an order on 26-9-67, holding that the notice of motion for no-confidence that was presented before him, was a valid notice. In the result he directed that action under sec. 39 of the Act be taken. In other words the order was that the meeting for the consideration of the motion of no-confidence against the petitioner be called. He also ordered that the Additional Collector shall preside at the meeting. It is the legality of the order of the Collector (Ex. 11) that is challenged before me on the five grounds enumerated below - (1) According to the provisions of sec. 39 of the Act intention was a necessary concomitant of the motion of no-confidence and that is wanting in the present case according to the circumstances pointed out by the petitioner. (2) The Collector was not justified in taking any action in the matter without the pre-requisite condition of the necessary intention having been fulfilled in the case. (3) That the members concerned had produced affidavits before the Collector disclaiming their signatures on the notice for the motion of no-confidence and they also alleged that their signatures had been obtained by fraud and regarding this there was no manner of doubt as the members concerned had reiterated the position even in the affidavits filed by them in this Court. It is therefore, urged that the Collector was under an obligation to make a proper enquiry about the genuineness or otherwise of the signatures of the members on the notice presented before the Collector and the Collector should not have taken any notice of the so called notice for the motion of no confidence if be were satisfied that the members concerned had really not put their signatures to a notice of motion of no-confidence. (4) In the alternative it is contended that even if it were held that the concerning members had signed the notice for the motion of no-confidence it was open to them to withdraw themselves from such a notice and as this intention for withdrawal was manifest from what was done by these members even prior to" the presentation of the notice of motion of no-confidence, the Collector should have excluded the signatures of these members. It is urged that the law does not prohibit any member from withdrawing himself from any such notice before the stage when the authority concerned could have taken any action. (5) Lastly it is urged that the Collector was not justified in obtaining the opinion of the Development Department. In doing so, it is pointed out, the Collector has abdicated his function with the result that the action taken by him stands vitiated.
The writ petition has been opposed by the respondents who were the other signatories 10 the notice of the motion of no-confidence against the petitioner. It is denied by them that the signatures of the concerning members were obtained by practising fraud. It is stated by them that these members signed the notice of their own accord and consequently it is urged that the notice that was presented before the Collector was a valid notice on the face of which the Collector could take the action that he was contemplating. The respondents joined issue on the other contentions raised by the petitioner.
For appreciating the points canvassed before me it will be convenient to extract the relevant provisions of the Act. Section 39 of the Act is about the motion of no-confidence in a Pradhan or Up-Pradhan and it reads as follows - Motion of no confidence in Pradhan or Up-to vote thereon. Pradhan - (1) A motion expressing want of confidence in the Pradhan or the Up-Pradhan of a Panchayat Samiti may be made in accordance with the procedure laid down in the following sub-sections. (2) A written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one third of the total number of members of the Panchayat Samiti, together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Panchayat Samiti. (3) The Collector shall thereupon - (i) forward a copy of the notice, together with a copy of the proposed motion, to the Pramukh of the Zila Parishad having jurisdiction over the block, who shall place same before the Zila Parishad for its information at the next meeting thereof ; (ii) convene a meeting for the consideration of the motion at the office of the Panchayat Samiti on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-sec. (2) was delivered to him ; and (iii) give to the members notice of not less than fifteen clear days of such meeting in such manner as may be pre cribed. Explanation - In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a competent court on a petition filed against the motion made under the section is in force, shall be excluded. (4) The Collector shall preside at such meeting: Provided that if, for reasons to be recorded in writing, he is unable to do so, the Additional Collector shall so preside. (5) A meeting convened for the purpose of considering a motion under this section shall not be adjourned. (6) As soon as the meeting convened under this section commences, the Collector shall read to the Panchayat Samiti the motion for the consideration of which the meeting has been convened and declare it to be open for debate. (7) No debate on the motion under this section shall be adjourned. (8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting; if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, which ever is earlier the motion shall be put to vote. (9) The Collector shall not speak on the merits of the motion and he shall not be entitled (10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Collector to the State Government and to the Zila Parishad having jurisdiction. (11) If the motion is carried with the support of not less than two-thirds of the total number of members of the Panchayat Samiti, (a) the Collector shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Panchayat Samiti and by notifying the same in the Official Gazette, and (b) the Pradhan or Up-Pradhan, as the case may be, shall cease to hold office as such and vacate the same on and from the date on which the said notice is affixed on the notice board of the office of the Panchayat Samiti. (Provided that such Pradhan shall continue to hold office as a member of the Panchayat Samiti as provided in cl. (v) of sub-sec. (5-A) of sec. 12. (12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the same Pradhan or Up-Pradhan shall be made until after the expiration of six months from the date of such meeting and such subsequent motion - (a) in the case of an Up-Pradhan, if supported by a majority of the total number of members of the Panchayat Samiti, shall be deemed to be carried and the other provisions of sub-sec. (ii) shall apply; and (b) in the case of a Pradhan, if supported by a majority of the members of the electoral college consisting of the person, referred to in clause (a) of sub-sec. (1) of sec. 12 present and voting shall be deemed to be carried and provisions of sub sec. (2) shall as if for the words "not less than one third" the words "more than one half" were substituted therein, and other provisions of sub-sec. (3) to (ii) shall apply as if a reference to "panchayat Samiti" to be reference to such electoral college and a reference to "meeting" or "member" were a reference respectively to the meeting or member of such electoral college. (13) No notice of a motion under this section shall be made within six months of the assumption of office by a Pradhan or Up-Pradhan, as the case may be. (14) The quorum to constitute a meeting for the consideration of a no-confidence motion against the Pradhan or Up-Pradhan shall be one third of the total number of persons entitled to vote thereat. "
A perusal of this section shows that a motion of no-confidence against a Pradhan has to be made in accordance with the provisions of sub-sec. (2) to sub-sec. (12) of sec. 39 of the Act. The scheme of the section is that it contemplates, in my view, three distinct stages. The first is giving of a written notice of intention to make a motion. This has to be in the prescribed form and it has to be signed by the requisite number of members of the Panchayat Samiti. It has to be delivered in person by any one of the members signing the notice to the Collector having jurisdiction over the Panchayat Samiti. Then comes the second stage and the Collector has to forward a copy of the notice together with a copy of the proposed motion to the Pramukh of the Zila Parishad for his information and he has to convene a meeting for the consideration of the motion at the office of the Panchayat for which he has to fix a date which shall not be later that 30 days from the date on which the notice under sub-sec. (2) was delivered to him. At the same time he has to give notice to the members and the notice has to be for a period not less than 15 clear days. Then comes the third stage, when the meeting is held. At that stage the Collector or the Additional Collector has to preside and then what is important is that the Collector is to read the motion for consideration and then it is declared to be open for the debate. After the meeting is so declared open for debate a debate takes place and it is only when the debate is concluded or when the prescribed period of two hours is over that the motion is put to vote and then its result is declared. The Collector is to forward the result of the voting to the State Government and to the Zila Parishad. It is to be noted that so far as a Pra-dhan is concerned, for the first motion of no confidence against him during his tenure the notice of motion is required to be given by one third of the members of the Panchayat Samiti or more and then a meeting of the Panchayat Samiti is convened to consider the motion of no-confidence. However, when there is a second motion of no-confidence then the machinery for the consideration of that motion of no confidence is different and the requirement for the majority of the members of the Panchayat Samiti for signing the notice of no-confidence is also there. In the case of the second motion of no-confidence the Panchayat Samiti does not come into the picture, but it is the electoral college which has elected the Pradhan that is called upon to meet and then the provisions of sub-sec. (2) to sub-sec, (11) mutatis mutandis apply to the meeting of the electoral college as if it were the meeting of the Panchayat Samiti. The provisions contained in sec. 39 clearly indicate that the Legislature has tried to harmonise and strike a balance between two principles in enacting this section. The first one is the basic principle of democracy that a holder of an office like that of the Pradhan should remain in office only as long as he enjoys the confidence of the house and or the electorate viz of the Panchayat Samiti in the case of the first no confidence motion and the confidence of the electoral college for the second no-confidence motion. The other principle that has been kept in view is that the continuance in office of the Pradhan who has also to perform the important duties as head of the Panchayat Samiti should not be made to depend on fleeting vagaries of the members of the Panchayat Samiti. It is with this view that while the Legislature has made ample provisions for testing whether the Pradhan enjoys the confidence of the Panchayat Samiti in the one case and of the electoral college in the case of the second motion of no confidence, it has at the same time thought fit to provide safe-guards against the moving of motions of no-confidence and for this certain requisites have been laid down. The first safe-guard lies in the insistence of the legislature that the motion of no confidence can be moved only when a certain number of members of the Panchayat Samiti signify their assent to it and then the other safeguard lies in providing that once a meeting for a motion of no-confidence is held and if the motion is lost then another motion of no-confidence cannot be moved for a period of six months. The legislature has also tried to ensure that the challenge against the Pradhan should not be too lightly made and for this reason it has provided that once a Pradhan has stood the test by facing the Panchayat Samiti on the vote of no confidence the second time he should not be made to face the same body and then he would be removable only on a vote of no-confidence passed by the bigger body namely the electoral college as contemplated under sec. 12 of the Act which elected him. Therefore, it is necessary that the requisite conditions for the holding of a meeting for the motion of no-confidence are there before the Collector convenes a meeting for the motion of no-confidence against the Pradhan. The conditions have been set out in sub-sec. (2 ). As I have already observed that condition is that there shall be a written notice of intention to make a motion in the form prescribed and the notice has to be signed by not less than the requisite number of members and the notice has to be delivered to the Collector by any one of the members. The controversy between the parties is as to how the Collector is to proceed when such a written notice for the motion of no-confidence has been delivered to him.
Learned counsel for the petitioner submits that in the event of some of the signatories disputing that they had signed the notice for the motion of no-confidence the Collector is duty bound to hold an enquiry. Learned counsel for the petitioner maintains that the Collector in doing so exercises a quasi judicial function and before he holds an enquiry to find out whether the requisite number of members of the Panchayat Samiti had really signed the notice the Collector will not be competent to convene the meeting for consideration of the motion of no-confidence. This stand is contested by the learned counsel for the respondents.
Now the function that the Collector is discharging for the purpose of convening a meeting for consideration of a vote of no-confidence on the basis of a notice presented to him, is, in my view, only an administrative function of the Collector and it does not involve any judicial element in it. In other words the Collector is not required to hold an enquiry like a Tribunal who has to deal with a matter quasi judicially. The function has been assigned to the Collector and in doing so the legislature has not laid down that the Collector is to hold any enquiry. The language of sub-sec. (3), is in my view, very significant. After a notice has been delivered to him and in proper form and it satisfies the requirements of sub-sec. (2) then the Collector has to take action as indicated in sub-sec. (3 ). The use of the word "thereupon" indicates that no elaborate enquiry at the hands of the Collector is contemplated for the purpose of finding out whether the signatures on the notice are genuine or not. This, however, does not mean that the Collector has to act as a post-office and merely because a certain notice has been placed before him he is bound to convene a meeting. The Collector is required to see whether necessary conditions enumerated in sub-sec. (2) really exist or not and primarily it is a matter for him to examine. As I have already observed above this is nothing but a pure administrative function assigned to the Collector. Though it may be open to challenge if the Collector has acted malafide but otherwise it is primarily for the Collector to see whether the conditions contained in sub-sec. (2) exist or not. Learned counsel for the petitioner submitted that the power in the Collector to hold an enquiry should be implied and he referred me to the doctrine of implied powers in construing certain statutes. It is true that when certain functions are assigned by law to an authority and the legislature has thereby given a power to that authority to do or not to do a certain thing then that power may be taken to cover incidental or ancillary matters relating thereto if that authority cannot otherwise discharge its function properly. But looking to the scheme of Sec. 39 of the Act I do not think that there is any justification for bringing in here the doctrine of implied powers. It has to be borne in mind that ultimately the matter relating to expression of want of confidence has to come before a meeting of the Panchayat Samiti in the case of the first motion of no confidence and before a bigger body viz. , the electoral college which elects the Pradhan in the case of subsequent motion of no-confidence. It is remarkable that sub-sections (4) to (7) of sec. 39 do not provide for taking merely votes from the members who are present at the meeting. The Collector to whom the notice of motion has been given earlier or the Additional Collector has to preside at the meeting and he discharges important functions of a presiding officer at the meeting of the Samiti electoral college as the case may be. He has to place the motion before the house for debate and then the motion is thrown open to debate. The process of debate, in my view, includes examination of the motion by the members present and in doing so they are free to reject the motion if they find that it is invalid or defective on account of certain reasons. In Chapter XVIII of his book "parliamentary Practice" Sir Ers-kine May has described in detail as to what is the process of debate. He has dealt with the subject under four heads namely. (a) Motions. (b) Questions. (c) Amendments. (d) Divisions. The term 'motion' in its wide sense according to him means any proposal made for the purpose of eliciting a decision of the House and covers several distinct forms of proceeding. He also observed that there may be a rule regulating the requirement of notice. The motion is moved before the House and then the House proceeds to consider the same and then there is a debate. What is of essence is that a motion is a proposal made before a House for getting its decision thereon. This, in my view, comprehends also the consideration of the validity of the motion by the House because a debate may deal with the motion in its several aspects. This to my mind being the scheme of the section, the legislature may not have, in this context, thought fit to clothe the Collector with the power of instituting an elaborate enquiry about the questions of fact that may be raised before him. The Collector may, in the circumstances, deal with the matter in the best manner he can in order to satisfy himself the requisite conditions contained in sub-sec. (2) of sec. 39 do or do not exist. If they are not found to exist the Collector will not be proceeding further in the matter. But if he is satisfied that they exist then the Collector has no choice in the matter and he has to convene the meeting. In the present case a perusal of the impugned order Ex. 11 shows that the Collector took note of the fact that one day earlier to the presentation of this notice of intention i. e. , on 12-9-67, affidavits by Prashadilal Sarpanch Gazipur, Nathia, member, Panchayat Samiti, Mahwa, Gulabsingh Sarpanch, Gram Panchayat, Rondila and Moharpal Sarpanch, Salempur were presented to him. By these affidavits these persons expressed their confidence in Ram Het Lal petitioner and they also stated that their signatures were obtained on a blank paper on the representation made to them that an application would be made for obtaining sugar. The Collector has also taken notice of an affidavit presented by Arjansingh, Sarpanch, Gadh Himmatsingh Then the Collector has referred to the written notice that he had received on 13-9-67. He has also stated that he made a reference to the Panchayat and the Development Department. Having done so he has posed the question before himself whether the notice was valid or not. Then the Collector observed that the law required him to see four things in that connection. (1) That the notice is in a prescribed form. (2) It is signed by not less than one third of the total number of members of the Panchayat Samiti (in the first instance ). (3) Copy of the proposed motion shall be with the notice. (4) that it shall be delivered in person by one of the members signing the notice to the Collector concerned.
After making these observations the Collector accorded his conclusion in the following words: "all these four conditions have been fulfilled and therefore conditions the notice will be treated as valid and therefore the Collector shall have to convene a meeting for the consideration of the motion at the office of the Panchayat Samiti to give the members of the notice. It is therefore ordered that action as per sec. 39 sub-clause (3) (i) (ii) and (iii) be taken.
There are some minor inaccuracies in the passage just now extracted by me, but with them I am not concerned. This order, therefore, shows that the Collector did apply his mind to the question whether the pre-conditions for the convening of a meeting for the consideration of the motion of no-confidence existed or not and having considered this he came to the conclusion that the conditions laid down in sub-sec, (2) had existed. As I have observed above this is nothing but an administrative act of the Collector and the statute did not impose on him any duty to act judicially and therefore, the action taken by the Collector could have been impugned only on the ground of malafides. Since there is no challenge against the action of the Collector on the ground of malafides, his action, in my view, cannot be said to be in contravention of the provisions of sec. 39 of the Act on the grounds urged.
I may next proceed to consider the question whether the necessary intention on the part of some of the members is wanting as contended by learned counsel for the petitioner. The existence of necessary intention has primarily to be judged from the notice that was before the Collector. The requirement of the presentation of a notice personally by one of the signatories has been made to ensure that some spurious papers is not smuggled before the Collector. The personal presentation of the notice by an elected member ensures that prima facie there would be no forgery in the document that is presented. If in a particular case forgery or fraud is established then it may yet be open to the party concerned to have a verdict from a competent court. But if after considering the document that is presented before the Collector he comes to the conclusion that the necessary condition laid down by the statute is satisfied then his action cannot be said to be illegal. This disposes of the first three contentions of the learned counsel for the petitioner.
I may now turn to the fourth contention. Learned counsel for the petitioner submitted that assuming that some of the members had signed the notice for the motion of no confidence it was undoubtedly open to them to withdraw themselves from that notice, at any rate, prior to the Collector having taken any action. Learned counsel referred me to a passage at bage 400 of the Parliamentary Practice by May, The passage reads like this: "withdrawal of notice.- When a Member has added his name to a notice of motion given by another Member, he may subsequently wish to withdraw his name, and from session 1948-49 this has been indicated by a memorandum at the end of the Notices of Motions. " This submission of the learned counsel is not without substance. When a member joins others in presenting a notice for the motion of no confidence against a Pradhan then before any action is taken thereon it is the right of that member to withdraw from that notice. No direct authority was brought to my notice. But there is a passage in Municipal Corporation Law by Antieau (Art. 17. 04) which speaks of withdrawal of names and is helpful. Certain American cases are referred to in that passage and it is laid down that: "names can usually be withdrawn from petitions filed with municipal authorities before the authority charged with final action has acted. " The passage which the learned author has quoted from a judgment reads like this: "the power to withdraw one's signature from a petition is an important right and one which should not be taken from the signer without good cause. In view of the case with which signatures to a petition are often obtained, signers should be given every opportunity to reflect upon the advisability of their actions and to withdraw their approval if, after mature reflection, they so desire. Without this power to remedy an impulsive act, petitions would serve as a trap for the unwary and would seldom convey the impression of the community's thought that they are designed to reveal. What are contemplated to be the conditions in this passage are unfortunately obtaining today in our country. There are at times signature campaigns and counter-campaigns for elective offices and, therefore, though this tendency is to be discouraged, yet it cannot be denied that a person signing a certain notice of motion or petition should be able to withdraw his name before any action has been taken thereon. The position would be different if the stage of the notice of motion is passed and the motion has once come before the House which has to deal with that motion. For such a situation May has observed at page 407 of his book "parliamentary Practice" that "a member who has proposed a motion cannot be allowed to withdraw it except by the leave of the House and that too will be permissible if there is no dissent found against the withdrawal of the motion. " In the present case the stage had not reached when the motion could be said to be before the House. Before that date and anterior to the stage when the Collector convenes the meeting it was certainly open to a member who had signed the notice of motion of no-confidence to withdraw his name therefrom. A perusal of the impugned order Ex. 11 shows that well before 26-9-67 i. e. , on 12-9-67 and 19-9-67, some members had approached the Collector with the affidavits stating therein that they were made to sign certain blank papers and they had not signed any notice of motion of no-confidence. Thus they disassociated themselves with the notice for the motion that was presented to the Collector on 13th September, 1967. It is remarkable that even before that date i. e, on 12th September, 1967 some members had disclaimed their signing the notice of the motion for no-confidence. It was argued by the learned counsel for the respondents that there was nothing to show that the concerning members themselves presented these affidavits. He submitted that these affidavits were stealthily obtained from the concerning members as back as 3-9-67 and were kept by the petitioner with himself or some of his friends and then those affidavits were made use of at the appropriate stage. Whatever may be the reason the fact remains that the Collector was apprised of the fact that certain members had taken the position that they had not signed any notice for the motion of no confidence against the Pradhan. In that situation it was the duty of the Collector to see whether the name of a particular person had been withdrawn by him from the notice. The legislature attaches some importance to a certain minimum number of members signing the notice for the motion of no confidence against the elected head of the Panchayat Samiti. This is with a view to ensure some security to the incumbent about his tenure so that he may be able to discharge his duties unhampered and unopposed by the thought that any day he may be asked to quit that office. This question regarding the withdrawal of some of the names by the concerning members from the notice for the motion of no confidence was thus of great importance. The order Ex. 11 does not show that the Collector has gone into that matter. On this ground, therefore, I am satisfied that the Collector has not approached the matter from the correct angle. There was an argument about the person presenting this affidavit before the Collector. It has been averred in the writ petition that the affidavits were presented by the concerning members to the Collector through their counsel. This position has not been clearly controverted. It has not been stated that the counsel who presented these affidavits before the Collector could not have represented the members concerned. In these circumstances the order Ex. 11 stands vitiated.
It will, however, be open to the Collector to reconsider the matter and see if certain members had withdrawn from the notice that was tabled before him, then whether the requisite number of signatories was still there or not. The Collector was wrongly under the impression that one-third members of the total membership of Panchayat Samiti was sufficient. This is not so in the case of a second no confidence motion. I, therefore, leave him free to consider as to what is the resultant position if some members have really withdrawn their name from the notice of no-confidence notion.
(3.) LASTLY, I may say a word about the fifth point argued by the learned counsel for the petitioner. As I have come to the conclusion that this was an administrative act of the Collector and he was under no duty to act judicially or to proceed as a tribunal quasi judicially, he was not precluded from informing his mind in a better way by consulting more experienced officers in the department. I am, therefore, unable to find any substance in this contention
In the result, I allow this writ petition and quash the order of the Collector, Sawai Madhopur dated 26-9-67 (Ex-11 on the record) and forbid him from acting on that order. I quash also the consequential order passed by him i. e. Ex. 12 on the record. It will, however, be open to the Collector to reconsider the matter about the withdrawal of the names by some of the members as claimed in the light of the above observations. If he comes to hold that requisite number is still there, he may take steps to convene the meeting according to sec. 39 of the Act. The result of this order is that the petitioner will continue to function as Pradhan till he comes to be removed according to law. The parties are left to bear their own costs. .;