MATHUR, J. - (1.) THE instant Special Appeal is directed against the order of the learned Single Judge dated 5. 9. 2003 dismissing the writ petition.
(2.) THE appellant was elected as Sarpanch of the Gram Panchayat 14 APD on 31. 1. 2000. He was served with a notice of meeting dated 21. 8. 2003 (Annex. P/1) for consideration of motion of no confidence against him. He also received a photo stat copy of the proceedings of the meeting of the Gram Panchayat held on 18. 8. 2003 presided by Upsarpanch. THE proceedings shows that a decision was taken in the said meeting to move a motion of no confidence against the appellant. A copy of the proceedings of the said meeting dated 18. 8. 2003 is placed on record as Annex. P/2. Appellant expressed his doubt as to genuineness of the document and, as such, he applied to Zila Parishad for supplying certified copy of proceedings Annex. P/2. THE appellant challenged the entire proceedings on the ground of being in violation of provisions of Section 37 (2) of the Rajasthan Panchayati Raj Act, 1994, hereinafter referred-to as "the Act of 1994" and Rule 21 of the Rajasthan Panchayati Raj Rules, 1996, hereinafter referred-to as "the Rules of 1996. Appellant-petitioner approached to this Court by way of petition under Article 226 of the Constitution of India. It was contended before the learned Single Judge that no notice as prescribed in Form-I as required by Rule 21 of the Rules of 1996 was presented before the Chief Executive Officer, as such, the very initiation of proceedings for no confidence motion is ex facie illegal and void. Learned Single Judge dismissed the writ petition on the ground that the petitioner did not make any effort to inquire about submission of Form-I to the Chief Executive Officer. It is contended by the learned counsel that neither written notice of intention to make the motion expressing want of confidence under Section 37 of the Act of 1994 in the petition as prescribed in Form-I was delivered to the Chief Executive Officer nor the notice of meeting accompanied copy of the motion. Thus, not only the very initiation of the no confidence motion is ex facie illegal but also the meeting called without there being any proposed resolution of vote of no confidence. As the writ petition was dismissed summarily, reply to the writ petition has been filed in Special Appeal. In reply filed on behalf of Panchayat Samiti, Anoopgarh, it is submitted that a copy of the notice in Form-I dated 18. 8. 2003 was served upon the appellant. The copy of notice has been placed on record as Annex. R/1. In another reply filed on behalf of other Panchas, it is submitted that notice of motion of no confidence Annex. P/2 was due compliance of provisions of Rule 21 of the Rules of 1996. It is further averred that it was the intention of the members of the Panchayat, which was communicated to the competent authority. It is submitted that this Court should not look into the technicalities of the matter and in order to create healthy convention for proper functioning of the democracy in the Country, it is not necessary for this Court to help the person who attempts to stick to the elected office even after the unequivocal declaration of the majority that he had lost their confidence. It is further submitted that even if there is non- compliance of the provisions, no prejudice has been caused to the appellant. We have considered the rival contentions. Section 37 of the Act of 1994 provides that a motion expressing want of confidence in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution may be made in accordance with the procedure laid down in the sub-sections. It would be apt to acquaint with the sub-sections (2) and (3) of Section 37, which reads as follows: " 37. Motion of No-confidence in Chairpersons and Deputy Chairpersons.- (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 directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered, in person by any one of the members signing the notice to the competent authority. (3) The competent authority shall thereupon - (i) forward a copy of the notice, together with a copy of the proposed motion to the Panchayat in the case of a Sarpanch or Up-Sarpanch, to the Panchayat Samiti in the case of a Pradhan or Up-Pradhan and to the Zila Parishad in the case of a Pramukh or Up-Pramukh; (ii) convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution on a date appointed by him which shall not be later than thirty days from the date on which the notice under Sub-sec. (1) was delivered to him; and (iii) give to the members a notice of not less than seven clear days of such meeting in such manner as may be prescribed. Explanation-In computing the period of thirty days specified in this sub-section, the period during which the convening of a meeting is stayed by a Court shall be excluded. Rule 21 of the Rules of 1996 further provides the procedure to make motion expressing want of confidence, which reads as follows: " Rule 21. Notice of Motion of No-confidence.- (1) A written notice of intention to make motion expressing want of confidence under Sec. 37 in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution shall be in Form 1 and shall be delivered to Chief Executive Officer/zila Parishad in case of Sarpanch/up/sarpanch, Pradhan/up/pradhan and to the Development Commissioner in case motion in against Pramukh/up-Pramukh. (2) Notice of meeting shall be sent by the Chief Executive Officer/development Commissioner by post under certificate of posting not less than 15 clear days before the date of meeting and the date and the time appointed therefore in Form II to every directly elected Panch/member at his ordinary place of residence. Copy of such notice shall also be put on the notice board of such Panchayati Raj Institution: Provided that in case of a place where there is no post office, or where service of the notice cannot be affected expeditiously, such notice shall be served through Tehsildar concerned.
(3.) THUS, it is evident that at the first instance, the proceedings are to be initiated by giving a notice expressing want of confidence in the Sarpanch in Form-I, which is required to be accompanied with the copy of the proposed motion. For ready reference, the Form-I is being extracted as follows: FORM i [see Rule 21 (1)] Form of the Written Notice of Intention to Make a Motion Expressing Want of Confidence In the Sarpanch/up-Sarpanch of. . . . . . . . A Panchayat In the Pradhan/up-Pradhan of. . . . . . . . . A Panchayat Samiti In the Pramukh/up-Pramukh of. . . . . . . . . A Zila Parishad To, The Chief Executive Officer/development Commissioner, Zila Parishad, Rajasthan, Jaipur NOTICe Sir, We, the undersigned elected members of the. . . . . Panchayat/panchayat Samiti/zila Parishad hereby give this notice to you of our intention to make a motion of no-confidence in Shri. . . . . . . the Sarpanch/up-Sarpanch/pradhan/up- Pradhan/pramukh/up-Pramukh of our Panchayat/panchayat Samiti/zila Parishad and also annex hereto a copy of the proposed motion of no-confidence. Yours faithfully, Place. . . . . . . . Date. . . . . . . . The notice is required to be signed by one-third of the directly elected members of the Panchayat. On receiving such a notice, the competent authority is required to send the notice together with the copy of the proposed motion to the Panchayat in the case of a Sarpanch convening a meeting for consideration of the motion at the office of the concerned Panchayat on a date appointed by him. The notice of the meeting is to be given in Form-II, which reads as follows: FORM Ii [see Rule 21 (2)] Form of the Notice of a Meeting of the Panchayat/panchayat Samiti/zila Parishad to be held for consideration of the No- confidence Motion Against the Sarpanch/up-Sarpanch/pradhan/up- Pradhan/up-Pramukh To, Shri. . . . . . . . Member, Panchayat/panchayat Samiti/zila Parishad. . . . . . . . NOTICe Dear Sir, This notice is hereby given to you of the meeting of. . . . . . . Panchayat/panchayat Samiti/zila Parishad which shall be held at the office of the said Panchayat/panchayat Samiti/zila Parishad on. . . . . . . . (date) at. . . . . . . (time) for consideration of the motion of no-confidence which has been made against Shri. . . . . . the Sarpanch/up-Sarpanch/pradhan/up-Pradhan/pramukh/up- Pramukh of the said Panchayat/panchayat Samiti/zila Parishad. A copy of the motion is annexed hereto. Place. . . . . . . . . Chief Executive Officer/date. . . . . . . . . Development Commissioner Thus, whether it is a notice in Form-I i. e. Intention to make a motion expressing want of confidence or notice in Form-II i. e. Meeting of the Panchayat to be held for consideration of the no confidence motion against a Sarpanch, a copy of the proposed motion of no confidence is required to be enclosed. In both the replies referred-to above, the respondents are conspicuously silent as to the proposed motion of no confidence. Even before this Court, no copy of the proposed motion of no confidence has been placed on record. On the contrary, the specific stands is that the resolution of the Gram Panchayat to move a motion of no confidence against the appellant-petitioner should be construed as proposed motion of no confidence. ;