GARG, J. - (1.) THE petitioner has filed the present writ petition under Article 226 of the Constitution of India on 25. 11. 2003 against the respondents with a prayer that by an appropriate writ, order or direction the whole proceedings of No Confidence Motion dtd. 15. 11. 2003 (Annex. 5) taken against the petitioner be quashed and set aside.
(2.) THE facts of the case as put forward by the petitioner are as under: i) That the petitioner was elected as Up Sarpanch of Gram Panchayat 42 G. B. , Panchayat Samiti Anoopgarh Tehsil Sri Vijaynagar, Distt. Sri Ganganagar. ii) Further case of the petitioner is that since elected Sarpanch of the Gram Panchayat 42 G. B. , namely, Harjeet Singh was in judicial custody, therefore, the State Government vide its order dtd. 5. 11. 2003 (Annex. 1) directed the respondent No. 5 (Vikas Adhikari, Panchayat Samiti, Anoopgarh) to hand over the charge of the post of Sarpanch to the petitioner till the release of sarpanch Harjeet Singh from the jail and thereafter the Secretary of the Gram Panchayat 42 G. B. Panchayat Samiti Anoopgarh handed over the charge of the post of Sarpanch, Gram Panchayat 42 G. B. to the petitioner. THE secretary of the Gram Panchayat 42 G. B. after handing over charge of the post of Sarpanch, Gram Panchayat 42 G. B. to the petitioner wrote a letter dtd. Nil (Annex. 2) to the Vikas Adhikari (respondent No. 5 ). iii) Further case of the petitioner is that respondent decided to bring motion of no confidence against the petitioner and in this context the Secretary of the Gram Panchayat 42 G. B. issued the list dtd. 10. 9. 2003 (Annex. 3) of the members i. e. Ward Panchas and Sarpanch which were 10 in number. iv) Further case of the petitioner is that the respondent No. 4 (Chief Executive Officer, Zila Parishad, Sri Ganganagar) issued a notice dtd. 28. 10. 2003 (Annex. 4) regarding vote on No Confidence motion to be held on 15. 11. 2003. v) Further case of the petitioner is that the meeting for consideration of motion of no confidence was held on 15. 11. 2003 by the respondents and in the meeting only 6 members out of 10 members were present who cast the vote on Motion of No confidence under Section 37 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) and all those six members voted against the petitioner. However, in the meeting the petitioner was not present. vi) Further case of the petitioner is that Sub-Clause 11 of Section 37 of the Act of 1994 clearly prescribes that motion of no confidence is to be carried with the support of 2/3rd of elected members of the concerned Panchayati Raj Institution and therefore, it is necessary that 2/3rd members should be present at the time when the meeting of motion of no confidence was held, but in the present case on 15. 11. 2003 in the meeting for consideration of motion of no confidence, only six members were present which did not amount to required presence of 2/3rd members and therefore the whole proceedings of No Confidence motion were illegal and without jurisdiction and against the settled parameters of law and deserve to be set aside. Copy of proceedings of no confidence motion is marked as Annex. 5. vii) Further case of the petitioner is that he submitted a detailed representation dtd. 17. 11. 2003 (Annex. 6) to the respondent No. 4 (Chief Executive Officer), but to no avail. Hence, this writ petition with the abovementioned prayer. In this writ petition, the main submission of the learned counsel for the petitioner is that in the present case there were 10 persons including the Sarpanch who were elected members and thus, they were eligible to cast their vote and for attaining the necessary minimum 2/3rd support in favour of the Motion of no confidence, atleast 7 persons were to vote in favour of motion of no confidence, but in the present case only six members voted in favour of motion of no confidence and therefore, the whole proceedings of motion of no confidence (Annex. 5) was violative of Sub-clause (11) of Rule 37 of the Act of 1994 and in this respect the learned counsel for the petitioner has placed reliance on the Division Bench judgment of this Court in the case of Chimna Ram vs. State of Rajasthan and Ors. (1 ). Reply to the writ petition was filed by the respondents and in the reply it has been admitted by the respondents that there is no dispute on the point that on the relevant day i. e. on 15. 11. 2003, Sarpanch Harjeet Singh was in judicial custody and the petitioner was holding the charge of the post of Sarpanch Gram Panchayat 42 G. B. as per the order of the State Government dtd. 5. 11. 2003 (Annex. 1 ). It has further been admitted by the respondents that on the relevant day only six persons were present in the meeting and the proceedings were conducted as per the provisions of Section 37 of the Act of 1994. The main reply of the respondents is that since Harjeet Singh was in judicial custody and he was not suspended from the post of Sarpanch, therefore, respondent No. 6 (Tehsildar (Revenue), Sri Vijaynagar) wrote a letter dtd. 12. 11. 2003 (Annex. R/1) to the respondent No. 4 (Chief Executive Officer) for making clarification as to whether Harjeet Singh should be allowed to cast his vote or not. Further case of the respondents is that through the Chief Executive Officer, Zila Parishad Sri Ganganagar (respondent No. 4) wrote a letter dtd. 14. 11. 2003 (Annex. R/2) to the Tehsildar (Revenue), Sri Vijay Nagar (respondent No. 6) wherein it was mentioned that since Sarpanch of the Gram Panchayat Harjeet Singh is in judicial custody, therefore, he would not be allowed to cast the vote on the motion of no confidence. Further case of the respondents is that further clarification was issued by the State Government through order dtd. 14. 11. 2003 (Annex. R/3) wherein it was mentioned that if the competent Court of law permits the Sarpanch Harjeet Singh to take part in the motion of no confidence, then he should be allowed to take part and give his vote in the motion of no confidence and hence in view of the above circumstances, the strength of elected members of Gram Panchayat 42 G. B. should be treated as 9 on 15. 11. 2003 and out of 9 if 6 members had voted in favour of motion of no confidence, it amounts to passing of motion of no confidence by 2/3rd majority and hence no case is made out and the writ petition should be dismissed. Heard and perused the record. In the present case the main question which arises for consideration is whether Harjeet Singh should be counted as 10th elected member on 15. 11. 2003 when meeting for consideration of motion of no confidence was held while he was in judicial custody.
(3.) THERE is no dispute on the point as per reply of the respondents themselves that though Sarpanch Harjeet Singh was in judicial custody, but he was not suspended from the post of Sarpanch, Gram Panchayat 42 G. B. There is also no dispute on the point that Harjeet Singh was arrested in connection with FIR No. 286/2003 on 24. 9. 2003. It is surprising that in the writ petition as well as in the reply of the respondents, the charge on the basis of which FIR was lodged against Harjeet Singh has not been mentioned nor it has been mentioned as to at which Police Station the FIR was lodged. It may be stated here that unless and until declaration under Section 39 of the Act of 1994 for cessation of membership is made, the members are entitled to cast their vote and to participate in the proceedings for no confidence. Further more a member shall not be ceased to be member under Section 39 of the Act of 1994 unless the competent authority after giving an opportunity of being heard to the member declare him to have become so ineligible. Proviso to sub-section (2) of Section 39 of the Act of 1994 is very clear in that regard which provides further that until a declaration under this sub-section is made, the member shall continue to hold his office and so the member shall not cease to be a member unless a declaration to that effect is made. There is a positive direction in proviso to Sub- section (2) of Section 39 of the Act of 1994 that the member shall continue to hold his office unless he is declared to be ineligible by competent authority. ;