Bhandari, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution praying that respondents No. 1 to 4 be restrained from interfering in the functioning of the petitioner as Sarpanch of Mehmadpura Panchayat, Tehsil Bayana, District Bharatpur. It is also prayed that the resolution passed by the Panchayat on 7th October, 1959 be declared null and void.
(2.) THE case set out in the petition is that the petitioner was elected as Sarpanch of the said Panchayat and was functioning as such. Shri Banney Singh, respondent No. 4 was the Up-sarpanch and he along with seven other Panchas sent a no confidence notice to the petitioner on 8th September, 1959. It was received by him on 14th September,1959. THE petitioner called a meeting of the Panchayat on 28th September, 1959 to consider the aforesaid motion of no-confidence and the notice of the calling of the meeting was given to all the Panchas. On that day only three Panchas attended the meeting and the meeting was presided over by Tikam Singh Panch. THE no-confidence motion was put to vote and was lost. In spite of this, respondent No. 3 who is District Inspector of Panchayats, Bharatpur, held a meeting of the Panchayat on 7th October, 1959 and it is alleged that a resolution expressing no-confidence in the petitioner was pissed by eight members present on that day. The petitioner has challenged that resolution on several grounds, but the grounds that have been argued are that the meeting of ,7th October, 1959 was not convened by him and no meeting could be held except when it was convened by the Sarpanch. In that meeting Jawara Panch voted, although he had been disqualified earlier by the petitioner from being a Panch on the ground that he had failed to attend six consecutive meetings of the Panchayat. Notice of this writ-petition was given to the respondents. Respondent No. 4 has filed a reply to the writ petition. The case taken up by respondent No. 4, so far as relevant for the purpose of deciding this petition, is that he and six other Panchas had sent a requisition for calling a meeting expressing no-confidence in the petitioner on 8th September, 1959, but the meeting was never called by him. The case of petitioner that a meeting was called on 28th September, 1959 is denied. . It is said that this is all a concocted affair and no such meeting ever took place. The legality or this meeting is also challenged on several other grounds. Then it is said that as the Sarpanch refused to call any meeting, respondent No. 4 called the meeting on 7th Oct. 1959. An intimation regarding calling of this meeting was given by him to the Secretary of the Panchayat under a registered letter by him A notice was also sent to the petitioner, but this was refused. Intimation was also given to respondent No. 3, District Inspector of Panchayats and also to the District Level Panchayat Officer, Bharatpur. The latter directed respondent No. 3 to be present in the meeting of 7th October, 1959. The meeting was duly convened and a resolution expressing no-confidence in the petitioner was passed. It is also denied that Jawara was ever disqualified by the petitioner and that he ceased to be a Panch on that account. The question for determination in this writ petition are : (1) Whether any meeting was convened by the Sarpanch on 28th September, 1959 as alleged by him to consider the motion of no confidence and if so, whether such meeting took place. (2) Whether respondent No. 4, who was the Up-sarpanch, was entitled to convene the meeting of the Panchayat to consider the no-confidence motion against the petitioner and if so, any such meeting was convened on 7th October, 1959 and resolution expressing no-confidence in the petitioner was passed in that meeting. (3) Whether Jawara had been declared disqualified to be a Panch and his seat had become vacant. If so, whether he could not take part in the meeting convened on 7th October, 1959, and what is the effect of such irregularity on the proceedings that took place on that day. Under sec. 19 of the Rajasthan Panchayat Act, 1953 (Act No. XXI of 1953 - hereinafter called the Act) a motion of no confidence may be moved by any Panch against a Sarpanch after giving such notice as may be prescribed. It is not denied that a requisition by Up-sarpanch and six other Panchas for calling a meeting expressing no-confidence in the Sarpanch was handed over to the Sarpanch.- That requisition is dated 8th September, 1959. According to the petitioner, this requisition was received by him on 14th September, 1959. Under rule 3 (1) of the Rajasthan Panchayat (General) Rules,1954 (hereinafter called the Rules) a meeting for the consideration of the motion of no-confidence is to be convened within a period of fifteen days from the date of receipt of the notice, if within that period an ordinary meeting of the Panchayat at which the motion can be considered is not due. There is no endorsement on Ex. 3 as to on what date it was received by the Sarpanch, but the petitioner has filed his affidavit that it was received by him on 14th September, 1959. No counter affidavit has been filed by respondent No. 4 and under the circumstances, it may be taken that the petitioner received the requisition on 1. 4th September, 1959. Thus if any meeting was convened by him on 28th September, 1959, that meeting was within 15 days from the receipt of notice. The petitioner has filed Ex. 4 which is a notice to the Panchas for holding a meeting of the Panchayat on 28th September, 1959. The notice has been signed by four persons including the petitioner in token of their having received the information contained in the notice. The other three Panchas are Jhamanram, Tikamsingh and Mangaram. An affidavit has been filed of the peon of the Panchayat that for various reasons, the other Panchas did not accept the notice. Then the petitioner has filed Ex. 6 which is alleged to be the record of the proceedings of the meeting held on 28th September, 1959. It is noted in Ex. 6 that as there was interpolations in the notice for calling the meeting, the notice was not legal. It is also noted that Tikamsingh was of the opinion that he had no-confidence against the Sarpanch, while the other two Panchas Mangalram and Jhamanram expressed the opinion that they had no no-confidence in the Sarpanch. It is also noted that the meeting was held under the chairmanship of Tikamsingh Panch. Ex. 6 shows that in that meeting no formal resolution of no confidence was moved. Respondent No. 4 has seriously contested all these documents. In this connection learned counsel on his behalf has referred to the application dated 19th October, 1959 (Ex. A-5) filed by him before the Chief Panchayat Officer. In paragraph 2 of that application it is stated that the meeting of 28th September, 1959 took place under his Chairmanship. It is also mentioned that Tikamsingh voted for the no-confidence motion, while the other two Panchas, who were present, voted against it, and although it is inadvertently stated that the no-confidence motion was passed, it may be taken that the petitioner meant to say that it was rejected. Statement (Ex. A-4) of the petitioner was recorded by the Block Development Officer on 28th November 1959 in which he stated that in the meeting held on 28th September, 1959 only three Panchas Jhaman, Mangal and Tikam attended, with the result that the resolution for vote of no-confidence was not considered. The petitioner has not denied the genuineness of Ex- 5 and A-4. It may also be noted that under rule 3 (2) of the Rules, the decision of the Panchayat on the no-confidence motion is to be conveyed to the Divisional Panchayat Officer within three days. It is not the case of the petitioner that this was done. Respondent No. 4 has also filed the affidavit of himself and 7 other Panchas that they had never received any notice for holding the meeting on 28th September, 1959 and that no such meeting was ever held. Under these circumstances, I hold that the petitioner has failed to prove that he convened any meeting within 15 days from the receipt of notice for considering the motion of no-confidence and that any meeting took place on 28th September, 1959. In view of this, it is not necessary to decide whether the meeting of 28th September, 1959 was legal. The next question that arises is whether the meeting held on 7th October 1959 was validly convened by the Up-sarpanch. In this connection the contention of the learned counsel for the petitioner is that it is only the Sarpanch who can convene a meeting of the Panchayat and sec. 21 (2) of the Act is relied on which says that the Sarpanch shall hold a meeting of the Panchayat for the disposal of its business as often as may be necessary and at least once a fortnight at some place within the Panchayat Circle. It is urged that no power is vested in the Up-sarpanch to convene a meeting of the Panchayat except when the Sarpanch is absent either because his office is vacant or otherwise. Reference in this connection is made to sec. 16 (2 ). In the rules regarding the conduct of business of Panchayats framed under Sec. 21, there is no provision regarding the holding of the Panchayat in case a Sarpanch does not call any meeting even when it is incumbent on him to do so under the law. Learned counsel has vehemently argued that if the Sarpanch does not call the meeting, the only remedy is that the State Government may remove him from his office under sec 17 (4) (a), but it is not legal for the Up-sarpanch or any other person to convene any meeting of the Panchayat. In my opinion, this argument, though attractive, is unsound. A Panchayat is a statutory body constituted under the Act. It has to perform certain statutory functions. In the performance of these functions, this body acts as a self-governing body subject to the provisions of the law establishing it and subject to the control of the State Government exercisable under sec. 69 of the Act. If the Sarpanch does not act, it does not mean that the Panchayat is altogether powerless to act in performing its duties. It is clear from a perusal of sub-sec. (4) to sec. 19 that notwithstanding anything in sec. 21 or the rules framed under the Act, the Sarpanch is not to preside at a meeting in which a motion of no-confidence is discussed against him. Thus there is an express bar to the Sarpanch to preside at such a meeting. The question is whether no other person but he can convene a meeting for considering the resolution of no-confidence. Sec. 21 which deals with the conduct of business cannot be said to be exhaustive. It is not provided in section 21 or at any other place in the Act as to who is to convene the meeting for considering the resolution of no-confidence against a Sarpanch. ' In England the Chairman of a County Council may call a meeting of the council at any time. There is a provision that if the Chairman refuses to call a meeting of the council after a valid requisition for that purpose or if without so refusing, the Chairman does not call a meeting within seven days after said requisition, any five members of the Council, on that refusal or on the expiration of seven days, as the case may be, may forthwith call a meeting. But the Act or the rules made thereunder are silent on this point. The question that has to be examined in the present case is whether the Upsar-panch is entitled to call the meeting when the Sarpanch refuses to call the same or has failed to do so within the time prescribed. The powers and duties of an Up-sarpanch are given in Sec. 16 (2) which runs as follows - " (2) The Up-sarpanch shall - (i) perform such duties as may be allotted to him by the Sarpanch; and (ii) in the absence of Sarpanch due either to his office remaining vacant or otherwise, perform all the functions and exercise all the powers of the Sarpanch".
(3.) THUS, it is only in the absence of a Sarpanch that an Up-sarpanch can perform the functions and exercise the powers of a Sarpanch, which power includes the power of convening the meeting of a Panchayat. Absence of the Sarpanch in common parlance signifies that the Sarpanch is not physically present, but in the context in which it has been used in sec. 16 (2) (11), it has wider connotation. Even when the office of Sarpanch is vacant, it is taken to mean under it that the Sarpanch is absent. This means that absence of Sarpanch under sec. 16 (2) (11) is taken to include the case where there is no Sarpanch. Does it also include the case where the Sarpanch refuses to perform his statutory duties or does not perform them within the time prescribed? In my humble opinion such cases must fall within sec. 16 (2) (11) to enable the Up-sarpanch to act, otherwise there shall remain a void which, it must be admitted, would hamper the proper functioning of the Panchayat. It should not be forgotten that under Article 40 of the Constitution it is the duty of the State to take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The Rajasthan Panchayat Act was enacted in performance of that solemn duty towards the people of the State. The Act is not to be construed in any narrow and pedantic sense. Panchayat being a self-governing unit, democratic in its constitution, its proper functioning is to be assured and promoted by construing the Act in a liberal manner, if need be. Non-performance of duties by the Sarpanch should not be permitted to create a void. When the Sarpanch refuses to perform them intentionally even when he has been directed to do so by the law, he must be taken to be absent. Absence of Sarpanch means his absence from duty whether it may be due to his physical absence or his refusal or unwillingness to act or his incapacity to act. An illustration of the last occurs in case of presiding over the meeting of no-confidence. Under sec. 19 (4) the Sarpanch is permitted to be present and to take part in the proceeding in a meeting convened for the purpose of considering a resolution of no-confidence relating to him. If sec. 16 (2) is taken to be limited to the case of physical absence, the Up-sarpanch cannot preside over such a meeting if the Sarpanch is present in it. It would be extremely ridiculous to hold that view A wider and liberal interpretation to sec. 16 (2) (11) is to be given and absence of Sarpanch must be taken to mean absence from duty and not merely absence in person. The same rule should apply with regard to the convening of the meeting. If the Sarpanch does not call the meeting, he cannot defy the Panchayat and say "let the Government remove me, you cannot remove me". It would be in consonance with common reason and practice that Up-sarpanch should be entitled to call a meeting to consider the vote of no-confidence. Sec. 16 (2) (11) should be so construed as to prevent a Sarpanch from abusing his powers. "enactments which confer powers are so construed as to meet all attempts to abuse them, either by exercising them in cases not intended by the statute, or by refusing to exercise them when the occasion for their exercise has arisen". (Maxwell on Interpretation of Statutes, 10th Edition, page 120 ). I, therefore, hold that the meeting convened by respondent No. 4 on 7th October 1959 was properly convened. There is, little doubt that a meeting convened by respondent No. 4 was held on 7th October 1959 in which 10 Panchas were present and a resolution was passed expressing no-confidence in the petitioner. The proceedings of this meeting are signed by Shri Yadram. , District Inspector of Panchayats, who had been deputed to be present in that meeting by the District Level Panchayat Officer. The total number of Panchas including the Sarpanch in that Panchayat is eleven. Only the Sarpanch i. e. the petitioner was absent from that meeting, though he had received the notice thereof. Thus there is little doubt that the vote of no-confidence against the petitioner was carried out unanimously by ten Panchas and it was valid. The only legal objection to the proceedings of this meeting taken by the petitioner is that Jawara, who had been earlier disqualified, by the petitioner, was present in that meeting and voted in it. I have serious doubt regarding the fact that Jawara was so disqualified; but even if he was so disqualified, it would not affect the result. ;