JAGAT NARAYAN, J. - (1.) THIS is 3 petition under Article 226 of the Constitution by one Ramu who was Sarpanch of the Bagawas Gram Panchayat challenging the validity of a motion of no-confidence which was passed against him at a special meeting of the Panchayat held on 22. 10. 61. The petition has been contested on behalf of respondents Nos. 4-9, 11, 14 and 15.
(2.) THE relevant facts are these. On 18. 9. 61 Durgalal respondent No. 5 delivered notice of a motion of no-confidence against the petitioner to the Collector as required by rule 14 (1) of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 (herein after referred to as the Rules ). On receipt of this notice the Collector called a special meeting of the Panchayat for the consideration of the motion at the office of the Panchayat on 8. 10. 61 and appointed the Tehsildar to preside over it. One Smt. Kamla Devi who was co-opted as a member of the Panchayat under sec. 9 of the Rajasthan Panchayat Act 1953 (hereinafter referred to as the Act) accepted service under the Panchayat Samiti as a Gram Kaki after her co-option. When a meeting to consider the no-confidence morion was called Smt. Kamla Devi tendered her resignation from the po;t of the Gram Kaki to the Panchayat Samiti on 1. 10. 61. This was presumably done as the petitioner had moved the Collector and the Minister for Panchayats for removing her from the membership of the Panchayat. This resignation had not been accepted by 8. 10. 61. It was accepted by the Panchayat Samiti on 12. 10. 61. THE Collector sent an order cancelling his previous order fixing the special meeting for 8. 10. 61 with the result that the meeting fixed for 8. 10. 61 was not held although the Tehsildar came to Bagawas on that date to preside over it. THE Collector passed orders calling the special meeting for 22. 10. 61. It is alleged by the petitioner that this was done by the Collector in order to enable Smt. Kamla Devi to vote for the no-confidence motion. This allegation was denied by the contesting respondents who made a counter allegation that the meeting fixed for 8. 10. 61 was cancelled at the instance of the petitioner himself. THEre is nothing to support the allegation made by the petitioner in this behalf except his own assertion. He admitted that the order cancelling the meeting was brought by himself from the Collet tor and was served on the Tehsildar. This rather goes to support the allegation made by the contesting respondents that it was the petitioner who got the meeting fixed for 8. 10. 61, cancelled. THE allegation of the petitioner appears to be based on the mis-conception that Smt. Kamla Devi could not have voted for the motion if the special meeting had been held on 8. 10. 61. Sec. 17 (b) runs: - "if any Panch, Sarpanch or Up-Sarpanch after having been elected or appointed as aforesaid, becomes disqualified during the term of his office for such election or appointment, his seat shall be declared by the State Government, after giving him an opportunity of being heard, to have become vacant. " It is clear from the wordings of this provision that incurring of a disqualification by a member does not automatically terminate his membership. The membership is only terminated when a declaration is made by the State Government as provided in sec. 17 (b ). In this connection I may refer to the decision of this Court in Rameshwer Prasad Modi Vs. Collector, Bharatpur (1) in which a similar provision contained in sec. 63 of the Rajasthan Municipalities Act 1959 came up for interpretation and a similar view was taken. As no declaration under sec. 17 (b) was made with regard to Smt. Kamla Devi by the State Government she continued to be a member of the Panchayat and would have been entitled to vote at the special meeting if it had been held on 8. 10. 61. No notice for the special meeting held on 22. 10. 61 was served on Smt. Kamla Devi. She however attended the meeting and voted for the no-confidence motion. The motion was passed by 9 of the Panchas who were present at the meeting. The petitioner wanted to vote against the motion, but he was not allowed to do so as the Tehsildar who presided over the meeting was of the opinion that the Sarpanch had no right to vote at such a special meeting. The first contention which was raised on behalf of the petitioner at the hearing was that the Collector could not "adjourn" the meeting which was called for 8. 10. 61 in view of rule 15 (5 ). Rule 15 runs as follows: - "meeting for consideration of motion - (1) If the requisite quorum is present at the time fixed for the meeting or within half an hour of such time, the presiding officer shall read the motion for the consideration of which the meeting has been convened and declare it to be open for discussion. (2) The meeting shall not be adjourned and shall automatically terminate on the expiry of two hours from the time of its commencement unless it is concluded earlier. (3) Upon the conclusion of the debate or upon the expiry of the said period of two hours, as the case may be, the motion shall be put to the vote of the Panchas present and the presi ding officer shall not speak on its merits. (4) If the requisite quorum is not present for half an hour from the time appointed for the commencement of the meeting it shall be adjourned and the notice of the motion of noconfidence shall lapse. " From a perusal of this rule, I am of the opinion that the Collector or the presiding officer cannot adjourn the meeting once it has commenced, but that there is no bar to the Collector cancelling the meeting and fixing another date for holding it before the meeting has commenced. It is clear from para 4 of the petition that the meeting fixed for 8. 10. 61 was not held. There was thus no question of adjourning the meeting held on 8. 10. 61. That meeting was cancelled before it was held and a meeting was called for 22. 10. 61 which the Collector was authorised to do. This contention has therefore no force. The second contention put forward on behalf of the petitioner is that the no-confidence motion was not carried by a majority as prescribed under sec. 19 (2 ). The panchayat consists of a Sarpanch and 12 Panchas. Sec. 19 (2) runs as follows: - "if the motion against the Sarpanch is carried by a majority of not less than 3/4th of the total number of Panchas or if the motion against the Up-Sarpanch is carried by a majority of the total number of Panchas, the Sarpanch or the Up-Sarpanch, as the case may be, shall with in 3 days of the passing of the motion resign his office by submitting his resignation to the Officer-in-charge of the Panchayats and there upon his office shall be deemed to be vacant. " The panchayat having 12 panchas nine of whom voted in favour of the motion it was carried by a majority of not less than 3/4th of the total number of panchas in my opinion. It was argued on behalf of the petitioner that the term "panchas" as used in in sec. 19 (2) should be taken to include the Sarpanch, and there being 13 Panchas including the Sarpanch atleast ten of them should have voted for the motion before it could be deemed to have been passed. Reliance was placed on Malu Ram Vs. The State of Rajasthan (2 ). That decision is not applicable to the Act as it stands now as sec. 2 (3) was amended retrospectively by sec. 2 of the Rajasthan Act No. 40. of 1958, published in the Rajasthan Gazette dated 1. 12. 58 and "panch" now means a member of a Panchayat other than a Sarpanch. The confusion referred to in the above decision has thus been removed. The Panchayat thus has only 12 Panchas and not 13. This contention also has therefore no force. The third contention which was put forward was that the petitioner was also entitled to cast his vote on the no-confidence motion and the Tehsildar erred in not allowing him to vote. Sec. 19 (4) runs as follows: - "notwithstanding anything contained in this Act or rules made thereunder, a Sarpanch or an Up-Sarpanch shall not preside at a meeting in which a motion of no-confidence is dis cussed against him but he shall have a right to speak and otherwise to take part in the proce ings of the Panchayat. " It was argued on behalf of the petitioner that in view of the above provision the Sarpanch has not only a right to speak but he has also a right to take part in the proceedings of the Panchayat otherwise including casting his vote. I am unable to accept this argument.
(3.) IN my opinion it is clear from the provision contained in sec. 19 (2) that only Panchas can take part in voting on the motion. The Sarpanch is no doubt a member of the Panchayat and he has a right to vote at all the ordinary meetings of the Panchayat. But this is a special meeting for which special procedure has been prescribed under sec. 19. Sub-sec. (2) of this section clearly shows that the vote of the Sarpanch is not to be considered at all in determining whether the motion has been passed. What the words "otherwise to take part in the proceedings of the Panchayat" mean in the case of a Sarpanch is that apart from speaking against the motion he can also raise objections and remain present at the meeting like Panchas. There is no doubt some disparity between the position of the Sarpanch and that of a Up-Sarpanch in relation to a motion of no-confidence against them. A Sarpanch cannot vote against the motion brought against himself as he is not a Panch. But an Up-Sarpanch can vote against the motion, which is brought against him as he is a Panch. The disparity cannot be considered to be unfair considering that the Up-Sarpanch is elected by the Panchas and can be removed by them by a bare majority. The Sarpanch is however elected, not by the Panchas, but by the whole electorate. Although he cannot vote against the no-confidence motion brought against himself he cannot be removed unless 3/4th of the total number of Panchas vote for the no-confidence morion against him. At a special meeting held under sec. 19 the position of a Sarpanch is like that of an associated member of a Panchayat Samiti who has a right to take part in the deliberations of the Samiti, but has no right to vote for or against any motion. This contention also has therefore no force. I accordingly hold that the no-confidence motion passed against the petitioner is valid and dismiss the writ petition. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. The interim stay order passed by this Court on 30. 10. 61 is discharged. .;