C.M. Lodha, J. - (1.) THIS is a petition under Article 226 of the Constitution of India by Parbhatilal, the erst while Sarpanch of Panchayat Gudha, whose seat has been declared vacant by the Additional District Envelopment Officer, (Panchayats) by his order dated 28th December, 1973. In pursuance of this order a Notification was issued on 31st December, 1973 notifying that the petitioner's seat had fallen vacant on account of his having remained absent in five consecutive meetings of the Panchayat.
(2.) THE petitioner's case is that Bagh Singh, Up -Sarpanch bore grudge against him as the petitioner bad been instrumental in sending a copy of the panchayat's Resolution to the Additional District Development Officer for declaring the seat of Bagh Singh vacant on account of the latter's failure to attend five consecutive meetings of the Panchayat. He goes on to state that the Additional District Development Officer has not decided Bagh Sngh's case, which is still pending before him. It is alleged that Bagh Singh in collusion with certain other Panchas started holding parallel fictitious meetings of the Panchayat and made a report against him to the Additional District Development Officer, who did not make any enquiry into the matter, nor did he apply his mind to the facts and circumstances of the case and declared the petitioner's seat as having fallen vacant only on an office note prepared by the officer designated as P.E.O. The petition is being opposed by Bagh Singh, non petitioner No. 3 who is represented by Mr. J.S Rastogiand also by Mr. B.R. Arora on be half of the Additional District Development Officer. Since the petitioner did not file a copy of the order of the Additional District Development Officer, I called upon Mr Arora, Deputy Govt. Advocate, to produce the same and he has done that.
(3.) LEARNED Counsel for the petitioner has urged three points in support of his petition Firstly, it has been argued that the Additional District Development Officer did not hold any enquiry into the matter as required by Rule 12(5) of the Rajasthan Panchayat and Nayaya Panchayat (General) Rules, 1961. It may be pointed out that after afrer receipt of the letter from the Up -Sarpanch that the petitioner's seat had fallen vacant, a notice was issued to the petitioner by he Additional District Development Officer and the petitioner filed a written reply to the same. Thereafter, the petitioner was called upon to produce the record of the Panchayat which was admittedly in his possession. But the petitioner failed to do so. The matter was fixed on 12th November, 1973, but the petitioner failed to appear before the Additional District Development officer, on that date. A telegram of his illness was received by the officer the next day. that is, 13th November, 1973 But before that on 12th November, 1973 the Officer directed that since the petitioner bad not produced the record, the matter may be proceeded against him in his absence. There, after, it appears, that the Additional District Development Officer directed an officer subordinate to him designated as P.E.O. to collect facts from the record and put up a detailed note before him. That note was accordingly prepared by the P.E.O. and the Additional District Development Officer agreed with the P.E.O. and directed that orders be issued accordingly. Section 17(2) of the Rajasthan Panchayat Act, 1953 provides that if any Panch, Sar Panch or Up -Sarpanch during the term of his office absents himself without giving information in writing to the Panchayat, he shall cease to be Panch, Sar Panch or Up -Sarpanch and his seat shall become vacant. Rule 12 of the Rules referred to above provided the procedure to be followed in such matters Sub -rule (6) to Rule 12 provides that on receipt of the record, the Additional District Development officer may, upon perusing the same, and considering the recommendation of Panchayat and after giving the absentee an opportunity of being heard, declare such seat to have become vacant or make such other order as he may think proper in the circumstances of the case. The wordings of Section 17(2) of the Panchayat Act, 1953 make it clear that the moment it is established that a Panch has absented himself from four consecutive meetings of the Panchayat without giving information in writing to the Panchayat, his seat shall become vacant. This is a mandatory provision and Rule 12 only provides a procedure to settle any dispute which may arise on the question whether the meetings were actually held and whether the Panch remained absent without giving information in writing o the Panchayat. In the present case, the Additional District Development Officer after receipt of the Resolution of the Panchayat, got the matter examined by his subordinate and thereafter came to the conclusion that the meetings had been held and the petitioner had remained absent without giving written information (sic) these circumstances the mere fact that the Additional District Development Officer got a note prepared by his subordinate with a view to get the facts on the record collected at one place, it cannot be said that the order of the Additional District Development Officer is vitiated.;