SACHAR, J - (1.) WHAT is the meaning of the phrase 'the total number of members of the Panchayat' mentioned in sub-sec. (2) of section 19 of the Rajasthan Panchayat Act, 1953 (hereinafter to be called "the Panchayat Act") is the question that arises for determination in the present writ petition.
(2.) THERE exists a Gram Panchayat Talabgaon in the district of Jaipur and is functioning under provisions of the Panchayat Act. The strength of the Panchayat is 11 members. It is common case that one of the member is dead. On 12-3-75 a motion of no confidence was presented against the petitioner who is a Sarpanch of the Panchayat. This no confidence motion was taken up at a meeting of the Panchayat on 14 4-75. Eight persons voted in favour of the no-confidence motion while two opposed it. The Tehsildar who was the Presiding Officer declared the no confidence to be lost. Subsequently however respondent No. 4 the Land Acquisition Officer informed the petitioner that no confidence has been passed on 14-4-75 and directing the petitioner to send his resignation under rule 18 (2) of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 hereinafter to be called 'the 1961 Rules' ). The petitioner feels aggrieved and has come to this Court by way of a writ petition. The main contention of Mr. Lodha the counsel for the petitioner is that the no confidence motion has not been passed by the requisite majority required by the statute and the petitioner therefore continues to be a Sarpanch. Sub section (2) of sec. 19 provides that if the motion against a Sarpanch is carried by a majority of not less than 3/4th of the total number of members of the Panchayat including Sarpanch, the Sarpanch shall within 3 days of the passing of the resolution resign his office by submitting his resignation to the officer incharge of the Panchayats and thereupon his office shall be deemed to be vacant. It is common case that if the expression 'total number of members of the Panchayat' is to be taken to mean the number fixed for the Panchayat which is 11 then 3/4 of that would come to nine and as only eight people have voted against the petitioner the no confidence motion would be deemed to have been lost It is also common ground that if the expression 'total number of members' is to be read to mean the total number of members of the Panchayat for the time being then as undoubtedly the number of members at the time of the consideration of the no confidence motion were 10, 3/4th of the same i. e. 8 would constitute the requisite number and as the same had voted against the petitioner his office must be deemed to be vacant. Mr. Lodha relies on Mangla Prasad vs. District Magistrate (AIR 1971 All 77) where it was held "the words" total number of members of the Committee "in Sec. 87a (12) of the U. P. Municipalities Act (1916) (as applied to Town Areas) mean the total number of members initially constituting the Committee and not the members for the time being and consequently the existence of any casual vacancy of a particular time is irrelevant for calculating the total number of members for the purpose of sub-sec. (12)". It may be noted that the court in that case took note of the fact that in the earlier U. P. Municipalities Act which had used the word "total number of members for the time being in sub-sec. (12) had by the latter Act deleted the use of the expression *for the time being' and this was also held as a legislative intention to suggest that the legislature intended that the phrase 'total number of members' means the total number of members at the initial constitution of the committee. The court was of the view that the phrase 'for the time being' could not be introduced in the phrase 'total number of members'. In Sukhdeo vs. Arrah Municipality it was held that requirement of sec. 34 of the Bihar and Orissa Municipal Act which provides that a Chairman or a Vice-Chairman may be removed from his office by a resolution of the Commissioner in favour of which not less than two-thirds of the whole number of Commissioners have given their votes means the two-thirds of the total number of the Commissioners of the Municipality and not only the two-thirds of the whole number of commissioners present at the meeting. Similarly in Shyampada vs. Abani Mohan it was held : "the words "whole number of the Commers. " in S. 61 (2) has reference to the total number of elected seats in municipality and the fact that a seat is declared vacant by the Government does not matter. " Section 2 (16) of the Panchayat Act reads: "2 (16) Words and expressions used but not defined in this Act and defined in the Rajasthan Panchayat Samiti and Zila Parishad Act 19 9,shall have the meaning assigned to them in the latter. " Similarly section 2 (16) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter to be called 'the Samitis Act') reads: "2 (16) 'words and expressions' used but not defined in this Act shall have the meanings assigned to them in the law for the time being in force relating to Panchayats, Municipalities and District Boards. " Section 3 (36) of the Rajasthan Municipalities Act, 1959 (hereinafter to be called 'the Municipalities Act') reads: "3 (36) 'whole number' or 'total number' when means the total number of members holding used with reference to the members of a board office at the time " In Gokalchand vs. The chief Panchayat Officer, Rajasthan Modi J. had taken the view that the phrase 'total number of Panchas' in section 19 (2) of the Panchayat Act signify the total strength of Panchayat as fixed under sec 4 of the Act. Mr. Lodha naturally seeks to rely on the said authority. This view however was not accepted in Banshidhar vs. State of Rajasthan by Jagat Narayan J. (as he then was) wherein it was held that the total number when used with reference to the members of a Panchayat would mean the total number of members of the Panchayat holding office at the time. Similarly in Chander Singh vs. The Collector, Sikar Lodha, J. agreed with the view expressed by Jagat Narayan J. and held that the expression total number of members used in Sec. 19 (2) of the Act refers to the total number of members of the Panchayat holding office at the relevant time and not the total number of members determined by the State Government under sec. 4 (b) of the Act Counsel for the petitioner urges that as this Court has given conflicting interpretation on this point I should refer this matter to a larger Bench. I am not inclined to agree. The reason is that though undoubtedly when Modi, J. gave the judgment in Gokalchand vs. The Chief Panchayat Officer, Rajasthan Jaipur on 24 2 60 sec. 2 (16) of the Municipalities Act which had been introduced on 9 9 59 was in the field, attention of his Lordship was not drawn to that definition with the result that Modi J. in giving interpretation of the expression total number' did not have the benefit of the definition given in the Municipalises Act. The two learned Judges of this Court have taken a different view with which I am in respectful agreement and that view also appears to me to be with respect based on sound reasoning. The position is that sec. 19 (2) uses an expression 'the total number of members of Panchayat' and as there is no definition of the same, by virtue of sec. 2 (16) of the Panchayat Act we have to go to the Samitis A:. t for assigning it a meaning The Samiti Act however also does not define the expression 'total number of members' and therefore by virtue of sec. 2 (16) of the Samitis Act we must invoke the law for the time being in force relating to Municipalities which means the Municipalities Act. The Municipalities Act defines and clarifies that the total number when use J with reference to members of a Board means the total number of members holding office at the time. Now on a plain interpretation when giving a meaning to the words 'total number of members of the Panchayat' in sec. 19 (2) of the Panchayat Act one will have to read it as the total number of members holding office at the time. Admittedly at the time when no confidence motion was passed against the petitioner 10 members were holding office and 3/4th of the said i. e. 8 having voted against the petitioner his office must be deemed to be vacant. Mr. Lodha however urges that the definition in Sec. 3 (36) of the Municipalities Act cannot be invoked because according to him the only definition which can be invoked by virtue of sec 2 (16) of the Panchayat Act are those words and expressions which are not defined in the Panchayat Act but are defined in the Samitis Act but as the Samitis Act does not define the expression 'total number' it is not permissible to resort to the Municipal Act for that purpose. I cannot agree. The fallacy of argument of Mr. Lodha is that he seems to assume that as in sec. 2 of the Samitis Act some definitions are given upto clause (15), it is those alone which could have been taken into account with reference to definitions under the Panchayat Act but as sec. 2 16) of the Samitis Act is a general provision which refers to the law for the time being in force of Municipality the same is inapplicable for understanding the meaning of the expression used in the Panchayat Act. I cannot understand the logic of this argument. Section 2 (16) of the Samitis Act is a convenient mode by which instead of defining the various expressions used in the Samitis Act the legislature has by one consolidated definition chosen to give all those expressions which it has used in the Samitis Act the same meaning which has already been given in the law for the Municipalities. Now under sec. 39 (11) of the Samitis Act dealing with a motion of no confidence in Pradhan it is provided that if the motion is carried with support of not less than two-third of the total number of members of Panchayat Samiti the Pradhan shall cease to hold office as such. Evidently there is no definition of expression 'total number' 'in she Samitis Act' and by virtue of sec. 2 (16) of the said Act resort has to be made to the Municipalities Act. On a parity of reasoning therefore when Panchayat Act by sec. 2 (16) refers to the Samitis. Act then it stands to logic that if the expression total number is not defined in the Samitis Act one will have to go to the Municipalities Act because that is the mandate of sec. 2 (16) of the Samitis Act. Evidently when the Panchayat Act refers to Samitis Act for assigning meaning of expression not found in the Panchayat Act the deeming provision must be carried to its logical conclusion and therefore if an expression of total number is not as such defined in the Samitis Act but is defined in the Municipalities Act there is every justification in law to invoke the meaning given in the Municipalities Act. The argument of Mr. Lodha therefore that one must only travel to the Samitis Act to find the meaning of the expression 'total number' has no logic to sustain and it must be rejected. 9. The next contention of Mr. Lodha was that the Samiti Act only says that the words not defined in the Act shall be assigned the meaning assigned to them in the law for the time being in force relating to Municipalities but this does not necessarily bring in the definitions given in the Municipalities Act. The argument being that as sec. 2 (16) of the Samitis Act only talks of the law for the time being in force relating to the Municipalities it cannot be held that the law relating to the Rajas than Municipalities alone should be taken into account and not the law relating to U. P. Municipal Act or the Bihar Municipal Act. In my view, the argument has to be stated to be rejected. The legislature of Rajasthan has passed the Panchayat Act and the Samitis Act and when the legislature of the State is talking of the expression in the Samitis Act to be given meaning to them for the time being in force relating to the Municipalities it can obviously and uncontrovertibly refer to no other law excepting the law made by the legislature of Rajasthan for Municipalities in Rajasthan. One cannot normally expect the legislature of the State to refer to a law in force outside its own State and that too without in any manner specifying that particular law As no specific mention is made of the law for the time being in force relating to the Municipality it is only rational to read it to mean the law relating to the Municipalities in Rajasthan because the Acts passed by the legislature of Rajasthan are confined within the territories of Rajasthan. More so, if the interpretation as urged by Mr. Lodha is given sec. 2 (16) of the Samitis Act would become unworkable because as no specific mention is made of any particular law for the time being in force relating to the Panchayat, Municipalities and District Boards in the said definition the inevitable result of accepting this argument would be that all the laws relating to the Municipalities all over the country should be available for consideration. A moment's consideration will show how chaotic and unworkable the situation will be because any law in any part of the country relating to the Municipality could be applied depending upon the whim of the Court. This would lay the courts open to the same kind of reproach as in the earlier phase of development of equity Jurisdiction in England about standards of equity varying with each Chancellor, even as his foot, a situation which obviously is incompatible with the present day certainty of laws made by the legislature. In my view the only meaning to be given to the expression, the laws for the time being in force relating to the Municipalities in sec. 2 (16) of the Samitis Act is to read it as to referring to the Municipalities Act which is the law in force in the state Mr. Lodha had also referred me to rule 57 of the 1961 Rules which provides that the Sarpanch shall on the requisition in writing of not less than one third of the members then on the Panchayat rule (emphasis supplied) convene a special meeting of the Pan-chayat and urged that as rule 57 uses the word 'members then on the Panchayat' in contradistinction to sec. 19 (2) of the Act where the word used is total number of members of Panchayat, this shows that wherever the legislature wanted to take into account the number of members of the Panchayat then existing it specifically says so. There is a fallacy in the argument of Mr. Lodha because sec. 2 (16) of the Panchayat Act only provides that the words and expressions not used in the Panchayat Act will be given the meaning assigned to them in the Samitis Act That definition does not apparently define any expression under the rules which are framed in exercise of powers conferred by sec 89 of Panchayat Act and others by the State Government. It is for that reason that the State Government when framing Rule 57 by abundant caution clarified that for calling a special meeting requisition will have to be by not less then on third of the members then on the Panchayat and not one-third of the members initially constituting the Panchayat. As a matter of fact this distinction in the rules and sec. 19 (2) clearly brings out the intention of the legislature that using the word total number of members' it was thinking of the total number of members of the Panchayat then functioning at the time the no confidence motion was moved. It seems to me that broader considerations of representative democracy militate against the interpretation suggested by Mr Lodha. To take an illustration if the 'total number' has to be interpreted as meaning total number of Panchas as initially constituted (11, in the present case) and if two Panchas had died or resigned, it would leave a strength of 9. In such a case if 3/4 of total number is to be calculated on the strength of 11, it would mean that 9 would be required for a successful no confidence motion and as Sarpanch is naturally not expected to vote against him, he (Sarpanch) would become irremovable (evan if all the other 8 voted against him ). This result, which would give the status of an immovability to an elected representative runs counter to our Republican Constitution, which has no place for such monarchical pretentions. The Sarpanch cannot, on the correct principles of true representation claim to be a representative of the Panchayat if he loses at any time the confidence of the existing members by seeking to invoke the support which he may have enjoyed in the past. The whole basis of representative democracy is that no person should be allowed to hold an elective office at any particular time unless he is able to obtain the loyalty and allegiance of the existing electors Our Constitution has placed such a great faith and importance to the representative character that it has provided under Article 83 (2) that the House of People shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House and it is only during proclamation of emergency that its life may be extended for a period not exceeding one year at a time. It is to be noted that the extension after five years is not automatic and mandatory even during the Proclamation of Emergency, and is only permissive; the power to be exercised only for grave national reasons and not as a matter of routine. This shows what importance our Constitution gives to the principle of elections and representative democracy by refusing to recognise the representative character of House of People due to lapse of the time by providing that at he expiration of five years it shall operate as a dissolution of the House. It should also be noted that though for reasons of propriety and credibility it may not be considered correct to held elections during the currency of Proclamation of Emergency, yet neither Art. 83 nor Art. 352 place any embargo on holding of elections during the Emergency. As a matter of fact Art. 352 even contemplates the dissolution of the House of People during the currency of Proclamation of Emergency. This shows what supreme importance our founding fathers placed on the imperative necessity of elected representatives securing afresh mandate from the election after the expiry of the specified period of five years, thus clearly making election as one of the basic feature of our Constitution. In face of this constitutional indication it is impossible for me to accept the contention of Mr. Lodha that the expression 'total number of members' should not mean total number of members existing at the time of moving of no confidence motion but refers to the total number of members initially constituting the Panchayat years back. A representative democracy cannot thrive of the elected office bearers are not able to prove that they enjoy the present loyalty of electors and the only manner of showing it is to permit the existing electorate to vote on its preference and not for representative to rest its laurels on the part loyalty of the old electorate as the petitioner is seeking to do by including the member who is now dead. In my view therefore the 'total number' can only mean total number, for the time being i. e. total number of Panchas holding office at the time as defined in Municipalities Act. This contention of Mr Lodha fails. The next argument of Mr. Lodha was that the Presiding Officer in pursuance of rule 16 had declared the motion of no confidence lost on 14. 4. 75 and therefore the respondent 4 could not thereafter declare as he has done in his letter of 3 5 75 that the motion has been passed against the petitioner. Now a reference to rule 16 will show that Presiding Officer will declare the result of voting and then submit a report under rule 17, of the proceedings to the officer-in-charge of the Panchayats or other authority referred to in clause 14 of rule 16. Respondent 4 is admittedly that authority and it is required under rule 18 upon receipt of proceedings that it shall if the motion of no confidence has been carried and the resignation has not been received call upon such Sarpanch to submit the same within a week. Law thus places responsibility on the respondent No. 4 upon receipt of the proceedings to see that if the motion of no confidence has been passed to take the appropriate action. No doubt it is true that the Presiding Officer has declared the motion of no confidence to have been lost but apparently this seems to have done by proceedings to consider on the same reasoning, the meaning of total number which Mr. Lodha had urged. I do not find any provision in the Panchayat Act or the rules whereby the decision by the Presiding Officer is not challengeable. The action of the Presiding Officer under rule 16 cannot be equated to the declaration of result made by the Returning Officer final subject to election petition) under the Representation of the People Act 1951 (Central Act 43 of 1951) because there is no such provision in the Panchayat Act unlike the Representation of People Act. In my view upon receipt of the report from the Presiding Officer it was competent for the respondent 4 to see if a motion of no confidence had been legally passed and as in my view he has taken a correct view of law I can see nothing patently wrong or unjust entitling me to interfere with it. I may also mention that even if I had been inclined to hold that respondent 4 could not have interfered after the Presiding Officer had declared the no confidence motion to have been lost I would have declined to exercise my discretion in favour of the petitioner when admittedly he has lost the confidence of 8 members of the Panchayat out of 10. In Bhure Khan vs. State of Rajasthan (1976 RLW 148) the Division Bench of this Court has approved of the observations in Radhey Shyam vs. Vijai Singh District Magistrate, Ganganagar (1972 WLN 772) : "in order to create a healthy conventions for the functioning of democracy in the country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the court should show its reluctance to allow such persons to invoke this extraordinary jurisdiction. " In the present case equity is clearly against the petitioner and he could not have invoked this technical objection which even if it had been correct would not have persuaded me to interfere, though as it is I find this objection to be without merit and to reject it.
(3.) THE result is that I find no merit in the writ petition and would therefore dismiss it but with no order as to costs.;