- (1.) THIS is a petition under Art. 226 of the Constitution by one Mohan Lal, Panch from ward No. 7 of Fatehnagar Panchayat challenging validity of an order of Collector, Udaipur, suspending him from his office in exercise of the powers of the State Government under sec. 17 (4-A) of the Rajasthan Panchayat Act which were delegated to him under Panchayat and Development Department's Notification No. F. 4/lj/2/12/4636 dated March 12, 1963 published on behalf of the Collector.
(2.) UNDER the above notification the power of the State Government under sec. 17 (4-A) in so far as it relates to the suspension of panchas has been delegated to the Collector of the District concerned. The case of the petitioner is that sec. 17 (4-A) is not applicable to him. On receipt of a complaint that the petitioner had incurred the disquali-fication mentioned in sec. 11 (e) the Collector ordered an enquiry and at the same and removal of panchas. It runs as follows - "vacation of seats by and removal of panchas - (1) (a) If any Panch, Sarpanch or Up-sarpanch who is not qualified for election or appointment as such under this Act, has been elected or appointed to a Panchayat, or (b) 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. (2) If any Panch, Sarpanch or Up-sarpanch during the term of his office, absents himself from five consecutive meetings of the panchayat without giving information in writing to the panchayat he shall cease to be such Panch, Sarpanch or Up-sarpanch and his seat shall become vacant. (3) If any Panch or Sarpanch fails to make the prescribed oath or affirmation of his office within three months from the date of notification under sec. 14, his seat shall be declared by the State Government to have become vacant. (4) The State Government may, by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary, remove any Panch. Sarpanch or Up-sarpanch who - (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Government, has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct, Provided that any such inquiry as is referred to in this sub-section may be initiated even after the expiry of the term of a panchayat or, if already initiated before such expiry may be continued thereafter and in any such case the State Government shall, by order in writing, only record its findings on the charges levelled against a Panch, Sarpanch or Up-sarpanch of the panchayat during its terms of office. (4-A) The State Government may during the course of any enquiry under sub-sec. (4), suspend a panch, Sarpanch or Up-sarpanch against whom the inquiry has been started and debar him from taking part in any act or proceeding of the Panchayat while under such suspension. (4-B) A Panch, Sarpanch or Up-sarpanch who has been removed under sub-sec. (4) or against whom findings have been recorded under the proviso to that sub-section shall not be eligible for re-election under this Act for a period of three years from the date of his removal, or, as the the case may be, from the date on which such findings are recorded. (5) The decision of the State Government on any matter arising under this section shall be final and shall not be liable to be questioned in any court of law. " It will be seen that sub-sec. (1) deals with the vacation of the seat on account of incurring a disqualification mentioned in sec. 11. Cl. (a) deals with the disqualification from which the person concerned suffers at the time of election. Cl. (b) deals with disqualification incurred after election during the term of office. The sub-section lays down that the seat of such a person shall be declared to have become vacant by the State Government after giving him an opportunity of being heard. R. 11 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 prescribes the detailed procedure for taking action under this sub-section. Sub-sec. (2) deals with the vacation of seat by a person by absenting himself from 5 consecutive meetings of the Panchayat without giving information to it of his intention to do so. Rule 12 prescribes the procedure for taking action under this sub-section. Sub-sec. (3) deals with the vacation of seat on account of not taking oath of office within 3 months. R. 13 lay down the procedure for taking action under this sub-section. Sub-sec. (4) gives power to the State Government to remove a person from office who - (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Govt. has been guilty of misconduct or neglect in the discharge of his duties or any disgraceful conduct. The detailed procedure for taking action under this sub-section is laid down in RR. 20 to 22. The State Government has power to suspend a person u/sec. 17 (4-A) only, during the course of an inquiry u/sub-sec. (4 ). Sub-secs. (1), (2), (3) and (4) are in dependent of one another and deal with different types of disqualifications. The disqualification, if any, incurred by the petitioner is under sub-sec. (1 ). He cannot be suspended under sub-sec. 17 (4-A ). Cl. (a) of sub-sec. (4) is not applicable to him. He neither refused to act nor became incapable of acting. A person becomes incapable of acting only if he suffers from some physical incapacity, which may make it impossible for him to function as an office holder of the Panchayat. A person who incurred a disqualification under sec. 11 (e) cannot be said to have become incapable of acting. I accordingly hold that sub-sec. 17 (4-A) is not applicable to the petitioner. The order passed by the Collector suspending him is void. R. 11 is applicable to him. Sub-rule (2) of that rule gives power to the State Government to order that pending inquiry and final orders in the matter the person concerned shall refrain from performing the functions of his office. The power of the State Government under R. 11 (2) has not been delegated to the Collector or to anyone else. I accordingly allow the writ petition, set aside the order of the Collector and declare that the petitioner is entitled to function as a Panch of the Fatehnagar Panchayat. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition. . ;