- (1.) THIS is a petition under Article 226 of the Constitution of India by Ram Prasad against whom the Collector, Bhilwara passed the impugned order dated 20th August, 1975 (Annexure 3) whereby he directed the petitioner to tender his resignation from the office of Upsarpanch, Panchayat Gulabpura within three days and in case he failed to do so, he would be removed from the office. THIS order was passed on the ground that a motion of no confidence had been carried out against the petitioner by a majority of 7 Panchas out of the total number of 13 Panchas said to be holding office at the relevant time The petition has been opposed by the State of Rajasthan only.
(2.) THE sole point arising in the case is whether the no-confidence motion has been validly passed against the petitioner. THEre were in all 17 members of the Panchayat, Gulabpura, out of whom admittedly two had died and one has resigned. THE Sarpanch Ummedsingh has been admittedly elected as a Pradhan of the Panchayat Samiti, Gulabpura. THE Tehsildar who presided over the meeting summoned for consideration of the no-confidence motion was of the opinion, that Ummedsingh even though he has been elected as Pradhan would still be considered as a member of the Panchayat. Seven votes were cast in favour of the motion and since the total number of the Panchas including the Sarpanch according to the Tehsildar was 14, he held that the motion was lost. However, when the matter was referred to the Collector, Bhilwara, he held that Ummedsingh Sarpanch having been elected as Pradhan of the Panchayat Samiti would no longer be considered as a member of the Panchayat. In this view of the matter, he came to the conclusion that there were only 13 members of the Panchayat at the relevant time and since 7 had cast their votes in favour of the no confidence motion, the motion must be taken to have passed. Consequently he passed the impugned order for removal of the petitioner. Learned counsel for the petitioner has urged that the Collector committed an error of law in holding that the Sarpanch ceased to be a member of the Panchayat. On the other hand, the contention raised by the learned Deputy Government Advocate is that to all intents and purposes, the Sarpanch ceased to be a member of the Panchayat after having been elected as the Pradhan of the Panchayat Samiti. The question to be determined, therefore, is whether a Sarpanch who has been elected as a Pradhan ceases to be a member of the Panchayat ? Section 16 (3) of the Rajasthan Panchayat Act, 1953 reads as under: - "16 (3) If the Sarpanch of a Panchayat is elected as the Pradhan of a Panchayat Samiti or as the Pramukh of a Zila Parishad under the Rajasthan Panchayat Samitis & Zila Parishad Act, 1959 (Rajasthan Act 37/1959) - (i) be shall, on and from the date of his election as such Pradhan or Pramukh, as the case may be, nominally continue to be the Sarpanch of that Panchayat for so long as he would have but for such election held office as such Sarpanch. (ii) during that period he shall neither have any hand in the administration of the affairs of that Panchayat nor participate in the meetings thereof. (iii) he shall hand overcharge of all papers and properties pertaining to his office as such Sarpanch as provided in section 15a, to the Upsarpanch of the Panchayat who shall subject to the provision contained in sub-section (4), thereafter act, during that period as Sarpanch for all practical purposes and represent the Panchayat on the Panchayat Samiti concerned as a member of the latter. (iv) fresh elections to the office of the Sarpanch of that panchayat shall not be held during the said period, and (v) if during that period he vacates the office of the Pradhan or Pramukh upon removal or otherwise, he will resume charge of the office of the Sarpanch and shall as such replace the Upsarpanch as a representative of the Panchayat on the Panchayat Samiti. " At this stage, the provisions in respect of passing of no-confidence motion against the Sarpanch and the Up-sarpanch may also be noticed : - "19. Motion of no confidence. (1) A motion of no confidence may be moved by any elected or coopted Panch after giving such notice as may be prescribed against the Sarpanch or Up Sarpanch (2) If the motion against the Sarpanch is carried by a majority of not less than 3/4th of the total number of members of the Panchayat including Sarpanch but excluding the associate Panchas or if the motion against Up Sarpanch is carried by a majority of the total number of members of the Panchayat including Sarpanch but excluding the associate Panchas, the Sarpanch or Up-sarpanch, as the case may be, shall within 3 days of the passing of the motion resign his office by submitting his resignation to the (officer incharge of Panchayats and thereupon his office shall be deemed to be vacant. (3) If the Sarpanch, or the Up-sarpanch as the case may be against whom the motion of noconfidence has been carried, does not resign his office within the period prescribed in sub section 2, he shall be removed from his office by the officer-in charge of Panchayats. ' (4) Notwithstanding anything contained in this Act or Rules made thereunder, a Sarpanch or Upsarpanch shall not preside at a meeting in which a motion of no-confidence is discussed against him but he shall have a right to speak and otherwise to take part in the proceedings of the Panchayat, including a right to vote. " From the foregoing provisions it would be clear that the Sarpanch of a panchayat who has been elected as Pradhan of a Panchayat Samiti would continue to the Sarpanch of that Panchayat, though nominally. There is also no doubt that during the period he remains the Pradhan he shall neither have any hand in the administra-tion of the affairs of that Panchayat nor shall participate in the meetings thereof It is further clear that he shall hand over charge of all papers and properties pertaining to his office as Sarpanch to the Up Sarpanch of the Panchayat who would thereafter act during that period as Sarpanch for all practical purposes and represent the Panchayat on the Panchayat Samiti concerned as a member of the letter. But at the same time it is also provided in sec. 16 that fresh elections to the office of the Sarpanch of that Panchayat shall not be held during the said period and as soon as he vacates the office of the Pradhan, he will be entitled to resume the charge of the office of the Sarpanch. It is significant that even though the Up-Sarpanch, in such a contingency, performs the functions of the Sarpanch but at any rate does not become a Sarpanch. The office of Sarpanch shall not be considered to have fallen vacant. In other words the Sarpanch continues as such though with truncated or no rights. At this stage, I may also refer to the provisions contained in section 19 (4) which lay down that notwithstanding anything contained in the Act or the rules made thereunder, a Sarpanch or Up-sarpanch shall not preside at a meeting in which a motion of no confidence is discussed against him but he shall have a right to speak otherwise to take part in the proceedings of the Panchayat (including a right to vote ). Learned counsel for the petitioner seeks to argue that inspite of the inhibitions provided in section 16 against the Sarpanch who has been elected as a Pradhan, the Sarpanch would nevertheless have a right to speak and take part in the proceedings of the Panchayat when a motion of no-confidence is being discussed against him. Section 19 (2) says that the motion of no-confidence must be passed by a majority of the total number of members of the Panchayat including the Sarpanch. Thus there is no doubt that the Sarpanch has to be included among the total number of Panchas. As I have already observed, the Sarpanch of a Panchayat who has been elected as the Pradhan of the Panchayat Samiti continues to be the Sarpanch of the Panchayat also and therefore he must be included in the total number of Panchas. It is true that law creates a sort of anomaly, inasmuch as even though he does not cease to be the Sarpanch yet his functions as Sarpanch are carried on by the Up-Sarpanch. But he remains the Sarpanch alright. In this view of the matter, he must be deemed to continue as the Sarpanch even though he has become the Pradhan.
(3.) THERE is yet another aspect of the matter and it is this that the Up-Sarpanch no doubt performs the functions of the Sarpanch when the Sarpanch of that Panchayat is elected as the Pradhan or the Pramukh, as the case may be, but he cannot claim all the privileges of the Sarpanch inasmuch as he cannot say that the motion of no-confidence can be said to be passed against him only by not less then 3/4th of the total number of members of the Panchayat. The office of the Sarpanch must be, therefore, deemed to be held, though with certain restrictions on his rights, by she Sarpanch only even though he has been elected as the Pradhan. I am, therefore, persuaded to come to the conclusion that the Sarpanch of a Panchayat even if he has been elected as the Pradhan of the Panchayat Samiti is yet to be counted among the total number of the members of the Panchayat for the purpose of deciding the question of majority of votes. In this view of the matter the total number of the members of the Panchayat in the present case must be taken to be 14 and since only 7 votes were cast in favour of the motion, it cannot be said to have passed by the majority of the members of the Panchayat. The result is that I allow this writ petition, set aside the impugned order of the Collector, dated 20th August, 1975 and hold that the motion of no-confidence moved against the petitioner is lost. In the circumstances of the case, the parties are left to bear their own costs. . ;