SACHAR, J - (1.) WHETHER the Sarpanch of a Gram Panchayat who on declaration of a Panchayat into a Municipality under section 4 of Rajasthan Municipalities Act, 1959 (hereinafter to be called as "1959 Act") become a Chairman of the Municipality would cease not only to be a Chairman but also a member on a vote of no confidence being passed against him as a Chairman of the Municipality is the question that arises in the present writ petition.
(2.) THERE existed a Gram Panchayat Losal of which the petitioner was elected as a Sarpanch. Section 4 (1) (a) (b) of the 1959 Act provides that the State Government may by notification declare any area to be a municipality and also to define the limits of any municipality. The State Government by virtue of this power issued a notification dated 22nd October, 1974 declaring that the Gram Panchayat Losal is converted into a Municipal Board Losal. The 1959 Act had been amended by the legislature by Act No. 31 of 1974. By this amendment in sub section (1) after clause (a) a proviso was added empowering the State Government to include in any municipality the whole or a part of a Panchayat circle or for declaring the whole or part of a Panchayat circle as a municipality. Certain consequences were also to follow upon the exclusion of any area of the Panchayat circle or its inclusion in a municipality or upon its declaration as a municipality under sub-section (1 ). A new sub-section (8) was thereupon added which reads as under : ~ " (8) Upon the exclusion of any area of Panchayat circle and its inclusion in a municipility or upon its declaration as a municipality' under. sub-section (1), - (a) such area shall cease to be a Panchyat circle; (b) until fresh elections are held under this Act, the Sarpanch, Up-sarpanch and the member or members representing the area of the Panchayat circle so included in or declared as a municipality shall be deemed to be the additional members of the municipality in which such area of the Panchayat circle is included or the Chairman, Vice-Chairman and the members espectively of the municipality declared for such area, as the case may be. " In pursuance of this power the State Government issued a notification dated 29-10-74 declaring that on the constitution of the Municipal Board Losal the Sarpanch and the Up-Sarpanch and members of the erstwhile Panchayat will be deemed to be the Chairman, Vice Chairman or member of the newly constituted Municipal Board and that they will function in accordance with the provisions of the 1959 Act. On 15-9 75 a vote of no confidence was passed against the petitioner as a Chairman. In the present writ petition no challenge is made to the passing of the co-confidence against the petitioner. It however appears that after the passing of the no confidence the petitioner maintained that he was entitled to continue as a member of the Municipal Board. This position however was not accepted by the respondents and the Collector, Sikar relied on the letter dated 27 9-75 from the Deputy Chief Electoral Officer in which it was stated that the petitioner who was a Sarpanch had ceased to be a Chairman as well as a member after the passing of the no-confidence motion. The petitioner not having got any relief and also no being permitted to take part in the proceedings of the Municipal Board came up to this Court with a grievance that the action of the respondents in holding that the petitioner had ceased to be a member of the Board is not warranted in law. Section 13 of the Rajasthan Panchayat Act, 1953 provides that every Panchayat shall have a Sarpanch who must be a person qualified to be elected as a Panch and able to read and write Hindi and shall be elected by electors of the whole Panchayat circle in the prescribed manner. Rule 48 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, I960, hereinafter called the "1960 Rules" provides for simultaneous election of a Sarpanch of the Panchayat with the election of Panchas thereof. Rule 14 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 provides a procedure for a no-confidence against the Sarpanch and section 19 (2) of the 1953 Act provides that if a motion of no-confidence is carried against a Sarpanch he shall submit his resignation within three days and thereupon his office shall be deemed to be vacant. Section 9 of the 1959 Act provides for composition of the Board and lays down that it shall consist of such number of seats is may be fixed by the State Government from time to time and also provides that the State Government shall specify the number of seats respectively of general seats and of seats reserved for members of the scheduled castes or for members of the scheduled tribes. Section 65 of the 1959 Act says that for every board there shall be a chairman and a vice-chairman. Both the Chairman and the Vice-chairman are to be elected in accordance with the rules by the members of the Board from amongst themselves. Clause (9) of section 65 provides that every chairman and vice-chairman of a board shall forthwith be deemed to have vacated his office, if a resolution expressing want of confidence in him is passed by the votes of a majority of the whole number of members at a special general meeting convened for the purpose. It will be apparent from the comparison of the 1953 Act and 1959 Act that whereas a sarpanch is elected by the whole of the Panchayat Circle a Chairman of the Municipal Board is elected only from amongst the members. Counsel for respondent Mr. P. N. Datt sought to apply the analogy of a Sarpanch after a vote of no-confidence has been passed against him to the case of the petitioner and urged that had the petitioner continued as a Sarpanch and a vote of no confidence is passed against him he would have ceased to be a Sarpanch and consequently when a no-confidence was passed against the petitioner as a Chairman of the Board he must be deemed to have vacated not only his office as a Chairman but also has no right to remain as a member because in fact he was never a member at all. I cannot agree. This argument ignores the provisions of sec. 4 (8) (b) of 1959 Act which clearly provides that non the inclusion of any Panchayat Circle or upon the declaration of any Panchayat Ciacle as a Municipality and until fresh elections are held the Sarpanch and the other members of the Panchayat shall be deemed to be Chairman, Vice Chairman and the members respectively of the Municipality declared for such area. Mr. Datt has sought to emphasise that sec. 4 (8) (b) of 1959 Act mentions the designation of a Sarpanch as Chairman and not as a member which according to him means that the moment a vote of no-confidence was passed against the petitioner he ceased to be a Chairman and would go out of the Municipal Board altogether. But this argument ignores the first part of sec. 4 (8) (b) of 1959 Act which envisages that if any Panchayat circle is included in any municipality the Sarpanch, Up Sarpanch and the members of that Panchayat shall be deemed to be additional members of the municipality in which such area of the Panchayat circle is included. Mr. Datt did not dispute that if Gram Panchayat Losal had been included in another municipality the members as well as the Sarpanch would have become additional members of that Municipality. In that case obviously it would not have been permissible to urge that the Sarpanch had not become a member of the Municipality because the legislature has definitely so provided. The only reason why in the second part of section 4 (8) (b) it is stated that Sarpanch and Up-Sarpanch shall be the Chairman and Vice-Chairman of the Municipality is because of the compulsion of section 65 of the 1959 Act which specifically requires that there shall be a Chairman or Vice-Chahairman for every board. Evidently when the State Government was declaring the Panchayat Losal to be a Municipality it had to necessarily provide for a Chairman and a Vice-Chairman of the Municipal Board Losal, which is what it did when it issued notification of 29-10-74. I can see no logic in the argument that because the petitioner who was once a Sarpanch and would have ceased to be a Sarpanch on a no confidence being passed if the Panchayat had continued must automatically cease to be treated as a member of the Board on ceasing to be a Chairman. This argument somehow introduces a hybrid kind of status which is not contemplated by the 1959 Act. That Act implicitly contemplates that all members including the Sarpanch and Up-Sarpanch will be members of the Municipal Board. The fact that by virtue of a Panchayat being declared a municipality the Sarpanch and Up-Sarpanch are to be deemed to become Chairman or Vice-Chairman does not take away their status as a member because the 1959 Act definitely provides that a Chairman or Vice-Cheirman shall be elected by the members of the Board from amongst themselves. It is thus essential and mandatory that no person can be elected as a Chairman unless he is a member of the Board. Qualification of being a member of the Board is a condition precedent for a person to be elected as a Chairman. If the argument of Mr. Datt is accepted it would mean going against the specific provision of section 65 (2) which lays down that a Chairman and Vice-Chairman of a Board shall be elected from amongst themselves by members. If there is a deeming provision then the fiction must be carried to its logical end. As admittedly under the 1959 Act a Chirman is also member of the Municipal Board, similarly if by a fiction of law the petitioner is deemed to be a Chairman of the Municipal Board the fiction must be carried to its logical end which means that the petitioner is deemed to have become a member at the same time he becomes a Chairman. The petitioner thus must be deemed to be a member as well as Chairman of municipal Board Losal and when a vote of no confidence was passed against him as a Chairman it had no effect on his status as a member, which he will continue to enjoy unless he ceases to be one as provided by law. In that view the respondents acted without jurisdiction in holding that the petitioner because a vote of no-confidence had been passed against him as a Chairman was not entitled to continue not only as a Chairman but also a member of the Board. I would therefore issue a mandamus directing the respondents to treat the petitioner as a member of the Municipal Board, Losal. Of course this direction is only restricted to the action of the respondents which they have taken on the basis of the no-confidence motion having been passed against the petitioner as a Chairman. Before parting with the case, I may note one curious fact which some how has caused surprise to me. I find that a letter from the Deputy Chief Electoral Officer was relied upon by the Collector, Sikar to deny to the petitioner the right that he was a member of the Municipal Board. The petitioner has now filed a letter from the Director of Election Rajasthan dated 2-6-76 to the Collector, Sikar with reference to his letter dated 20-5-76 informing him that the matter was again referred to the Law Department and they had opined that the passing of the no-confidence motion against a Chairman does not mean that he ceases to be a member of the Municipal Board. It is not understood why and in what circumstances a reference was made by the Collector when the matter was pending in this Court. It is also a little curious that is that was the view that the Collector was inclined to accept why necessary instructions to that effect were not given to the Government Advocate appearing in this case. It is for the concerned authorities to consider in what circumstances the earlier letter dated 27-9-75 from the Deputy Chief Electoral Officer was issued and whether it was issued after obtaining the opinion from the Law Department. I have mentioned all these facts because it does seem a little odd and requires some explanation as to how within a period of about eight months such contrary opinions should have been offered by responsible officials. Let a copy of this judgment be sent to the Law Department State of Rajasthan. With these observations the petition is therefore allowed but there will be no order as to costs. . ;