LODHA, J. - (1.) THE petitioner Ramchandra, Sarpanch, Gram Panchayat, Shivbari, Tehsil Bikaner has filed this writ petition praying that the orders passed by the Additional District Development Officer, Bikaner dated 29-1-1973 and 3-2-1973 marked Annexure 3 and 4 respectively holding that nonconfidence motion against the petitioner has been carried out, be set aside. THE relevant facts necessary for the purpose of disposing of this writ petition may be briefly stated as follows: THE petitioner was elected as Sarpanch of Gram Panchayat, Shivbari in the year 1965. On 29-12-1972 the nonpetitioner No. 4 delivered a notice of motion of nonconfidence against the petitioner to the Additional District Development Officer, Bikaner on which the Additional District Development Officer, Bikaner (who will hereinafter be referred to as the non-petitioner No 2) called a special meeting of the Panchayat to be held on 12-1-1973 for consideration of the motion and authorised the Tehsildar, Bikaner nonpetitioner No. 3 to preside at the meeting. On 9-1-1973 Haji Khan made an application to the non-petitioner No. 2 that he wanted to withdraw the notice of nonconfidence moved by him. THE petitioner's case is that in spite of Haji Khan's desire to withdraw the notice, the meeting was held on 12-1-1973. It may be stated here that the number of Panchas fixed Dy the State Government under serc. 4 of the Rajasthan Panchayat Act, 1953 (which will hereinafter be called 'the Panchayat Act') is 13 but 4 seats had fallen vacant and the number of Panchas functioning for the time being was 9 out of whom 8 including the Sarpanch were present and one Jeewan Ram was absent. Six admittedly voted for the motion. One Panch named Smt Aysha is alleged to have voted against the motion. Her vote is a matter of dispute to which detailed reference will be made hereafter It may be relevant to state here that as required by sec. 19 of the Panchayat Act the motion of nonconfidance against a Sarpanch must be carried by a majority by not less than 3/4th of the total number of members of the Panchayat including the Sarpanch. THE Tehsildar held that since the total number of Panchas was 13, the motion could not be said to have been carried unless 3/4th of the total number of members, i. e. 10 vote for the motion. He further held that only six Panchas had voted for the motion and therefore the motion was lost. Accordingly, he drew the proceedings of the meeting (Ex. 1) and declared the motion to have been lost. A copy of the report of the meeting prepared by the Tehsildar has been placed on the record and marked Ex. 1 Dissatisfied with the report of the Tehsildar, Hajikhan made an application to the nonpetitioner No. 2 the same day and submitted that Smt. Aysha's vote had been wrongly counted against the motion as in fact she had voted for the motion.
(2.) A preliminary objection was raised on behalf of the petitioner before the non-petitioner No. 2 to the effect that the latter had no jurisdiction to revise the order of the Tehsildar. But the non-petitioner No. 2 by his order dated 29-1-1973 (Annexure 3) held that he had jurisdiction to enquire into the correctness or otherwise of the report made by the Tehsildar. He also held that the notice of nonconfidence motion could not have been subsequently withdrawn by Hajikhan and that the meeting held on 12-1-1973 for consideration on nonconfidence motion was in order. Having over-ruled the preliminary objection raised on behalf of the petitioner, the nonpetitioner No. 2 recorded evidence on the factual aspect |of the matter and by his order dated 3-2-1973 (Annexure 4) he held that Smt. Aysha had in fact voted for the motion. He also came to the conclusion that the total number of Panchas for the purpose of sec. 19 (2) of the Panchayat Act must be taken to be nine, who were actually functioning. In this view of the matter, he set aside the order of the Tehsildar and held that the motion of nonconfidence had been carried against the petitioner. As a necessary corollary he directed the petitioner to submit his resignation within 3 days from his order, and in case he failed to do so, he further directed that action be taken for his removal under R. 18 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 (which will hereinafter be called 'the Rules' ). Aggrieved by the aforesaid orders of the non-petitioner No. 2, the petitioner filed a revision application before the State Government and succeeded in obtaining an interim stay order for stay of the proceedings for his removal. Hajikhan thereupon filed a writ application before this Court challenging the action of the State Govt. in staying the proceedings. This writ application was registered as S. B. Civil Writ No. 242/1973 Hajikhan vs. State of Rajasthan. In that writ petition this Court by its order dated 9-3-1973 stayed the operation of the order of the State Government staying the proceedings, and it appears that later on, the State Government itself withdrew the stay order passed by it and that writ application was dismissed on 12-7-73 as having become infru-tuous. It further appears that the State Government by its order dated 22-3-1973 has finally dismissed the revision application filed by the petitioner on the ground that it had no jurisdiction to entertain a revision application against the orders of the non-petitioner No. 2. But meanwhile the petitioner filed this writ petition in this Court on 15-3-1973. The writ petition has been opposed by the State of Rajasthan as well as the members of the Panchyat who had voted for the nonconfidence motion, including Smt. Aysha. At one stage a preliminary objection was raised on behalf of the contesting nonpetitioners that the petitioner should have first approached the State Government before invoking the extra-ordinary jurisdiction of this Court. This objection, in my opinion, is not well founded for two reasons: firstly. Hajikhan himself had raised an objection in writ petition No. 242/73 that the State Government had no jurisdiction to entertain a revision petition against the orders of the non-petitioner No. 2, and it does not lie in the mouth of Hajikhan or for that matter other members who are supporting Hajikhan now to turn round and say that the State Government had jurisdiction to entertain the revision, petition, and the petitioner must first approach the State Government. The second reason for over-ruling this preliminary objection is that it has transpired in the course of arguments of this writ application, that the State Government has already rejected the petitioner's revision application {vide its order dated 22-3-1973 ). A copy of the State Government's Order dated 22-3 1973 has been placed on the record. Now coming to the merits of the case the following three points have been argued by the learned counsel for the petitioner: (1) That the nonpetitioner No. 2 had no jurisdiction to enquire into the correctness or otherwise of the report by the Tehsildar that the motion of nonconfidence against the petitioner had been lost. (2) That the non-petitioner No. 2 had wrongly interpreted the term 'total number of members of the Panchayat' occurring in sec. 19 (2) of the Panchayat Act in as much as it referred to the number of Panchas fixed by the State Government under sec. 4 of the Act and not members of the Panchayat for the time being. (3) That the notice of motion of nonconfidence having been withdrawn by its author before the meeting for its consideration was held, the authority concerned had no jurisdiction to call the meeting Jor consideration of the non confidence motion. I propose to take up these points in the same order in which I have set out them above. The relevant provisions under the Rules of 1961 dealing with nonconfidence in Sarpanch or Up-Sarpanch are contained in Rules 14 to 18. It has been argued by Mr. Dutta, learned counsel for the petitioner, that the non-petitioner No. 2 had delegated his authority of presiding at the meeting to the Tehsildar, who as Presiding Officer had exclusive jurisdiction to decide whether the motion was lost or was carried by a majority as required by law and the non-petitioner No. 2 having delegated his authority to the Tehsildar had thereafter no jurisdiction to sit in judgment over the findings arrived at by the Tehsildar. His argument is that if the Presiding Officer comes to the conclusion that the motion is lost then he may make a declaration to that effect and the matter is over. He goes on to argue that it is only if the motion is held to have been carried by a majority specified in sub-sec. (2) of sec. 19 of the Panchayat Act that the Presiding Officer is required to forward the proceedings in original to the Officer-in-charge of the Panchayat or the officer or authority referred to in Cl. 14 of Rule 16 as required by Rule 17 of the Rules and it is upon the receipt of the proceedings that the Officer-in-charge of Panchayat, if convinced of the motion of non-confidence having been carried that he may declare the office to have become vacant and call upon the Sarpanch to submit his resignation if he has not already done so. In this connection he has referred to Rules 17 and 18 of the Rules of 1961, and I may reproduce them here for ready reference: "17. Report of the meeting - If the motion is lost a note to that effect shall be recorded by the presiding officer in the proceeding drawn up under rule 16 and he shall disperse the meeting after declaring the motion to have been lost. (2) If the motion is carried by a majority specified in sub-sec. (2) of the sec. 19, the Presiding Officer shall - (i) likewise make a note in the said proceeding, (ii) declare the motion to have been carried, (iii) invite the attention of the Sarpanch or Up-Sarpanch against whom the motion has been so carried, if present, to the provision of the said sub section requiring him to resign within three days, and (iv) forward the proceeding in original to the officer-in-charge of Panchayat or the officer or authority referred to in cl. (xiv) of R. 16 under cover of the letter communicating to him the fact of the motion of non-confidence against the Sarpanch or the Up-Sarpanch, as the case may be, having been so carried. " 18. Subsequent action - (1) Upon receipt of the proceeding, the officer in-charge of panchayat or other authority referred to in cl. (xiv) of R. 16 shall, if the motion of non-confidence has been carried and the resignation of the Sarpanch or Up-Sarpanch against whom it has been carried has already been received by him, accept such resignation and declare his office to have become vacant. (2) If the resignation shall not have been received, he shall call upon such Sarpanch or Upsarpanch to submit the same within a week and send directions to the Panchayat Office to treat him as having been suspended from Office, (3) If within the mentioned in sub-rule (2) the resignation is received, the declaration mentioned in sub-rule (1) shall be made but, if the same is not so received, such Sarpanch, Upsarpanch shall by order, be removed from office, (4) A declaration or order of removal made under the foregoing sub rules shall be forthwith notified in the official Gazette. "
(3.) THE question as to what is the effect of the delegation by the Additional District Development Officer of his authority to preside at the meeting has been debated at a considerable length by the learned counsel for the parties. Learned counsel for the petitioner on the basis of Raghunath Rai vs. THE State of Rajasthan (l) contended that as soon as the Additional District Development Officer authorised the Tehsildar to preside at the meeting for consideration of non-confidence motion, he completely divested himself of the powers under the Rules to decide the question whether the motion was lost or was carried by a majority as required by law. In this connection learned counsel also relied upon B. M. Corporation vs. Dhondu (2 ). On the other hand Mr. Kalla, learned counsel for the non-petitioners Hajikhan relied upon Gangasahai vs. Deputy District Development Officer, Sawai Madhopur (3), and an unreported judgment by a Single Judge of this Court: in S. B. Civil Writ Petition No. 2070/1971: Somdutt Purohit vs. State of Rajasthan, decided on 20-11-1973, and urged that by merely authorising the Tehsildar to preside at the meeting the Additional District Development Officer did not lose the power to decide the question whether the motion was lost or carried. In the alternative he relied upon Sec. 77 of the Panchayat Act and submitted that under Cl (e) of the said section the State Government or any officer generally or specially authorised by the State Government in this behalf may institute an enquiry against the Sarpanch. . . . . in respect of any matter relating to a Panchayat. It has been further brought to my notice that the powers of the State Government under sec. 77 have been delegated to the Collector of the District as well as to the Additional District Development Officer. In my opinion the State Government or for that matter the officer generally or specially authorised by the State Government in this behalf has power to institute an enquiry against a Sarpanch in respect of any matter relating to a Panchayat. The question whether a non-confidence motion against the Sarpanch has been carried is undoubtedly a matter relating to a Panchayat and the Sarpanch. In this view of the matter the enquiry into the question whether a non-confidence motion against the Sarpanch had been carried by the requisite majority falls within the ambit of sec. 77 (e) of the Panchayat Act As already stated above the powers under sec. 77 have been delegated to the Additional District Development Officer. The Additional District Development Officer, in this case, no doubt authorised the Tehsildar to preside at the meeting for consideration of non-confidence motion but by this act he cannot be said to have delegated the authority he had under sec. 77 of the Panchayat Act. As a matter of fact such authority could not be delegated at all under the law as he himself is a delegatee of the State Government. I have, therefore, come to the conclusion that irrespective of the question whether the Additional District Development Officer had power to revise the order of the Tehsildar under Rules 17 and 18 of the Rules of 1961, he had certainly authority under sec. 77 of the Act as a delegatee of the State Government to institute an enquiry into the question whether the motion of non-confidence had been lost or carried by the requisite number against the petitioner. In this view of the matter I am unable to accept the contention raised on behalf of the petitioner that the impugned orders by the Additional District Development Officer are without jurisdiction and I over rule the first point. 12. As regards the second point I may observe that in Chander Singh vs. The Collector Sikar (4), in which Mr. P. N. Dutta and Mr. Kalla who are counsel on the opposite sides in the present case had appeared and argued the same point though in that case Mr. Dutta was interested in pressing that the total number of members of the Panchayat meant the members of the Panchayat for the time being, a stand different from the one is taking in the present case. It has however been pressed by Mr. Dutta that certain relevant case law of other High Courts had not been placed before the Court and so also certain provisions of the Rajasthan Municipalities Act, 1959 and therefore the view taken by me in that case deserves to be reconsidered. After having heard Mr. Dutta at some length on this point, I have come to the conclusion that the case law of other High Courts relied upon by him cannot help him in as much as the view taken by me in that case turns upon the provisions of the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959 which do not find place in the Acts under consideration before the other High Courts. He has also taken me through some of the provisions of the Rajasthan Municipalities Act, 1959 where the term 'whole number or total number of members of the Board' occurs, but I have not felt persuaded to accept his contention. Consequently, the total number of the members of the Panchayat in the present case must be taken to be the total number of the members of the Panchayat for the time being i. e. 9, 3/4th majority of which comes to 7 The Additional District Development Officer has come to the conclusion that Smt. Aysha also voted for the motion. That makes the number of votes cast for the motion as 7, which would constitute 3/4th majority of 9. In this view of the matter, there is no alternative left to me but to hold that the motion was carried by the requisite majority. ;