PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition for the following reliefs :- "a) by an appropriate writ, order or direction, the communication dated 08.01.2019 (Annex.1) submitted by the councilors of Municipal Board, Khudala-Falna may kindly be declared illegal and be quashed and set aside. b) by an appropriate writ, order or direction, the notice dated 17.01.2019 (Annex.4) calling the meeting of No Confidence Motion on 28.01.2019 at the office of Municipal Board, Khudala-Falna may kindly be declared illegal and be quashed and set aside. (c) by an appropriate writ, order or direction, the No Confidence Motion initiated at the instance of 19 councilors on 08.01.2019 (Annex.1) may kindly be quashed and the respondents be directed not to hold any meeting in pursuance to an illegal communication dated 08.01.2019 as it is not accompanying the motion, resolution or proposal separately to expressing No Confidence Motion against the petitioner."
(2.) Brief facts of the case are that the petitioner is elected Chairman of Municipal Board, Khudala-Falna, District Pali since the year 2015. Out of 20 Municipal Councilors, 19 Councilors of the Municipal Board, Khudala-Falna submitted a communication dated 08.01.2019 with an intent to remove the present petitioner Counsel for the petitioner bases his challenge to removal of the petitioner on count of decision rendered by this Court (Jaipur Bench) in Raj Kumar Jaisalwal Vs. State of Rajasthan and Ors. (D.B. Civil Writ Petition No.23845/2017, decided on 17.5.2018) wherein the Hon'ble Division Bench after interpreting Rajasthan Municipalities (Motion of No Confidence Against the Chairperson or Vice Chairperson) Rules, 2017 (for short 'Rules of 2017') and Section 59 and 6 of the Act of 2009 has held as under :- "In view of the discussion made above, Rule 2(1)(b) of the Rules of 2017 is struck down if it is excludes ex-officio member. In the light of the aforesaid, we hold that ex-officio members i.e. Members of the House of people and the Assembly have right to vote in a meeting for no confidence motion. In view of the above, no confidence motion vitiates due to exclusion of ex-officio members and is, accordingly, set aside. It is more so if they would have been included for vote, the result could have been different as the no confidence motion was not carried by margin so as to ignore the vote of ex-officio members. Learned Advocate General has prayed for application of judgment prospectively. We find that by this judgment, interpretation of the provisions of law has been made after taking into consideration the Constitution of India. The interpretation cannot otherwise be given prospective effect, otherwise, past action would exist in violation of the Constitution of India. In any case, we made it clear that this judgment would apply only in the case where challenge has been made to the no confidence motion. If somebody has not challenged No Confidence Motion then would not be governed by this judgment. The preliminary objections raised by learned Advocate General are not sustainable. The pleading of the writ petition would show not only in reference to Section 53 but other provisions as well. It may be that reference of unamended provision of Section 53 has been given bout by virtue of it, other issues cannot be ignored for its adjudication. In view of the discussion made, we allow the writ petition with the reliefs given above." Counsel for the petitioner informs the Court that the same was thereafter followed by this Court (Jaipur Bench) in Smt. Vimla Vs. State of Rajasthan (D.B. Civil Writ Petition No.14236/2018, decided on 08.8.2018) whereby it was directed that in case No Confidence Motion has to be commenced, it may be without the rider given under Rule 2(1)(b) of the Rules of 2017 and the presence of MP and MLA of the State Assembly would not be excluded in the meeting of No Confidence Motion. Counsel for the petitioner points out that a notice was sent by respondent no.2 on 17.01.2019 calling for meeting and giving intimation to the petitioner to remain present in the special meeting of Municipal Board, Khudala-Falna on 28.01.2019 so that debate and voting can be done in respect of no confidence motion. Counsel for the petitioner further submits that as per Rule 3 of the Rules of 2017 notice has to be accompanied by motion and there is no motion alongwith the so-called notice given on 08.01.2019. Counsel for the petitioner has relied upon the judgment of Ramu Ram Vs. C.E.O., Sri Ganganagar and Ors., reported in RLW 2004(3) Raj., relevant para whereof reads as follows :- "Thus, the question arises for consideration is whether a Sarpanch can be removed from his office without putting a proposed resolution expressing no confidence for consideration in the Panchayat meeting. Sub-section (2) of Section 37 of the Act of 1994 provides that a written notice of intention to make the motion against a Sarpanch shall be accompanied by a copy of the proposed motion. Not only this, clause (I) of sub-section (3) of Section 37 further provides that the competent authority shall forward a copy of notice together with a copy of the proposed motion. Similar is the provision under Rule 21 of the Rules of 1996. Even the proforma of the notice set out in Form-I clearly provides of notice being annexed with a copy of the proposed motion of no-confidence. Same is the position of notice in Form-II. As far as Annex.P/2 is concerned, it is only the proceedings of the Gram Panchayat, wherein a decision was taken to move vote of no confidence motion against the appellant-petitioner. By no stretch of imagination, it can be construed as a motion of no confidence. Such a defect which goes to the root of the matter, cannot be said to be a technical nature."
(3.) Counsel for the respondent submits that the matter is squarely covered by judgment of this Court in Banshilal Salvi Vs. State of Rajasthan and Ors., (S.B. Civil Writ Petition No.15581/2017, decided on 06.12.2017) in which all the matters pertaining to No Confidence Motion/resolution/proposals have been discussed, which reads as follows :- "The petitioner, who is a Sarpanch of Gram Panchayat, Pasoond, Panchayat Samiti, Rajsamand, District Rajsamand, has filed this writ petition being aggrieved with the notice dated 20.11.2017 (Annexure-3) issued by Chief Executive Officer, Zila Parishad, Rajsamand, whereby he called for a meeting on 04.12.2017 at 11:00 A.M. for consideration of no-confidence motion against the petitioner. Learned counsel for the petitioner has argued that the impugned notice as well as the action of the Chief Executive Officer, Zila Parishad, Rajsamand are illegal and liable to be set aside because the meeting for consideration of no-confidence motion was called by him after expiry of 30 days, whereas sub-section (3) of Section 37 of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994' hereinafter) specifically provides that meeting for consideration of no- confidence motion cannot be convened after 30 days from the date on which the notice under sub-section (1) of Section 37 of the Act of 1994 is delivered to him. It is submitted that admittedly in the present case, the Ward Panch submitted application on 25.10.2017 and as per the requirement of law, the meeting for consideration of no-confidence motion was to be called within 30 days and that period expired on 24.11.2017, whereas the meeting for consideration of no-confidence motion against the petitioner has been fixed on 04.12.2017 and as such the impugned notice and the proceedings pursuant thereto are liable to be quashed and set aside. It is further contended by the learned counsel for the petitioner that as per sub-rule (2) of Rule 21 of the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996), the Chief Executive Officer is required to send notice of meeting for consideration of no-confidence motion against a Sarpanch by post under certificate of posting not less than 15 clear days before the date of meeting and the date in time appointed therefor. It is argued that in the present case, the impugned notice was issued on 20.11.2017, whereas the meeting has been fixed on 04.12.2017 and from the above facts, it is clear that the notice under sub-rule (2) of Rule 21 of the Rules of 1996 falls short of 15 clear days and, therefore, on this ground also the impugned notice is liable to be set aside. Learned counsel for the petitioner has further submitted that as per sub-rule (1) of Rule 21 of the Rules of 1996, a written notice to make motion expressing want of confidence under section 37 in the Chairperson of Panchayati Raj Institution shall be in Form-I. It is contended that in the present case, the notice has not been submitted by the Ward Panchs in Form-I and in view of above, the impugned notice is liable to be set aside. It is further submitted that as per sub-section (2) of Section 37 of the Act of 1994, it is mandatory that a written notice of intention to make motion should be accompanied with a copy of proposed motion, whereas in the present case, no proposed motion was submitted before the Chief Executive Officer and simply an application was submitted without there being any proposed motion. It is also submitted that the notice along with proposed motion is required to be submitted to the Chief Executive Officer, whereas in the present case, the Members of the Panchayat have submitted the application to the District Collector and not to the Chief Executive Officer and on account of this also, the impugned notice deserves to be quashed. In support of the above contentions, learned counsel for the petitioner has placed reliance on decisions of this Court in Laxman Meena vs. State of Rajasthan and Anr., RLR 1998(1) 467, Smt. Kamlesh Kumari vs. State of Rajasthan and Ors., RLR 2000(1) 520, Ramu Ram vs. Chief Executive Officer, Sriganganagar and Ors., RLW 2004(3) Raj., 147. Heard learned counsel for the petitioner and perused the material available on record. So far as first contention of the learned counsel for the petitioner to the effect that the impugned notice and the further proceedings, pursuant to it, deserve to be quashed and set aside on the ground that the meeting for consideration of no-confidence motion against the petitioner has not been called within 30 days from the date of submission of notice as per sub-section (3) of Section 37 of the Act of 1994 is concerned, the same is without any merit as the period of 30 days provided under sub-section (3) of Section 37 of the Act of 1994 cannot be termed as mandatory. The said condition is directory only as per the law laid down by this Court in Amrit Lal vs. The State of Rajasthan, reported in RLW 1970, 164, wherein it has been held as under: "4. Having heard the learned counsel for the parties I am unable to accept the contention put forward on behalf of the petitioner. The object of the Legislature in fixing the period of 30 days is that the motion may be considered expeditiously. It this period of 30 days is held to be mandatory the very object of the enactment will be defeated as in that case it will be open to the Collector to make the motion lapse by not calling a meeting for its consideration within 30 days. In Montreal State Railway vs. Normandin, AIR 1958 All. 374 their Lordships of the Privy Council held as follows: "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those who are entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only." 5. I accordingly hold that the period of 30 days provided under sec. 39(3)(ii) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, is directory and not mandatory." The second contention of the learned counsel for the petitioner to the effect that as per sub-rule (2) of Rule 21 of the Rules of 1996, it is mandatory on the part of the Chief Executive Officer to send notice of meeting for consideration of no-confidence motion by post under certificate of posting not less than 15 clear days before the date of meeting is also without any merit. It is to be noticed that clause (iii) of sub-section (3) of Section 37 of the Act of 1994 provides that the competent authority shall give to the members a notice for consideration of no-confidence motion of not less than 7 clear days. It is settled that where there is any contradiction in the provisions of the Act and the Rules, the provisions of the Act will prevail. If we examine the impugned notice, it would be clear that the same has been issued to the members of not less than 7 clear days. Hence, the second contention of the learned counsel for the petitioner is liable to be rejected. Further argument of the learned counsel for the petitioner is to the effect that no written notice has been submitted by the Members of Panchayat in Form-I as required under Rule 21(1) of the Rules of 1996. The said contention of the learned counsel for the petitioner is also liable to be rejected in view of the provisions of Section 113 of the Act of 1994. Section 113 of the Act of 1994 reads as under: "113. Validity of Notice.- No notice issued under this Act shall be invalid on account of any defect or omission in its form." A Division Bench of this Court in Banvir vs. State of Rajasthan reported in 2000(1) WLC (Raj.) 736 has held as under: "8. It is then submitted by the counsel for the petitioner that the notice of no confidence was not given in prescribed form. Section 113 of the Act of 1994 is a complete answer to this argument. Section 113 prescribes that no notice issued under Panchayat Act shall be invalid on account of any defect or omission in its form. The notice cannot be held defective because it is not issued in the prescribed form." In view of the above, the aforesaid argument of the learned counsel for the petitioner is also rejected. Further contention of the learned counsel for the petitioner to the effect that the Members of Panchayat, on whose instance, the proceedings of no-confidence against the petitioner has been initiated, have not passed any proposed motion and also not submitted the same to the competent authority, is also liable to be rejected. Along with impugned notice issued by the Chief Executive Officer under sub-rule (2) of Rule 21 of the Rules of 1996, a copy of a document addressed to the District Collector as well as the Chief Executive Officer is enclosed. In the said document, the subject is mentioned as "xzke iapk;r ilwUn ds ljiap dk vfo'okl izLrko ckcr A** From the wholesome reading of the said document, it can be gathered that it is a copy of proposed motion, wherein 8 Members of the Gram Panchayat, Pasoond have expressed their intention to make the motion of no-confidence against the petitioner. Hence, it cannot be said that the proposed motion has not been submitted by the Members of the Gram Panchayat to the competent authority. The last contention of the learned counsel for the petitioner to the effect that Members have not submitted notice expressing no-confidence in the petitioner along with the proposed motion to the Chief Executive Officer, who is the competent authority but to the District Collector, is also having no force. From the document annexed with the impugned notice, it is clear that it is addressed to the District Collector as well as the Chief Executive Officer, Zila Parishad, Rajsamand. The petitioner has even not contended that the Chief Executive Officer was not present on the day in the office when the Members had moved the alleged motion against the petitioner. It is also noticed that the impugned notice has been issued by the Chief Executive Officer and as such it would be deemed that the Members have submitted the motion expressing no-confidence in the petitioner to the Chief Executive Officer only. The law laid down in the judgments cited by the learned counsel for the petitioner are not applicable in the present case and, therefore, the same are of no help to the petitioner. In Ramu Ram vs. Chief Executive Officer, Sriganganagar and Ors. (supra) the Division Bench of this Court has found that even there was no proposed resolution expressing no- confidence against the Chairperson and taking into consideration the said fact, the Division Bench of this Court has held that when the proposed motion was not presented before the competent authority, the proceedings initiated for no-confidence motion are bad. However, in the present case, the copy of the proposed motion was very much accompanied with the notice and the same has also been supplied to the petitioner along with the impugned notice. In Smt. Kamlesh Kumari vs. State of Rajasthan and Ors., (supra), a Division Bench of this Court has not agreed with the proposition of law laid down by the learned Single Judge, wherein it was held that notice in writing signed by at least 1/3rd of the directly elected members to the competent authority would be directory provision and non-compliance of it would not entail nullification of the further proceedings of no-confidence motion and has held that a written notice of intention to make motion of no-confidence signed by not less than 1/3rd of directly elected members, to competent authority is necessarily be supplied with for commencement of the proceedings for no-confidence motion. In the present case, the petitioner has failed to demonstrate that 1/3rd directly elected members of the Gram Panchayat, Pasoond have not submitted any written notice before the competent authority. The facts of Laxman Meena vs. State of Rajasthan and Anr. (supra) are entirely different. In that case, the no-confidence motion was not even submitted to the Chief Executive Officer and the evidence was produced that on the day when the motion was presented, the Chief Executive Officer was not even present at the place where it was moved. Though in the said case, the learned Single Judge considered the fact that the notice was not submitted by the members in the format provided in Form-I, however, it appears that no one had invited attention of the Court towards section 113 of the Act of 1994. More over, as stated earlier, in view of law laid down by the Division Bench of this Court in Banvir vs. State of Rajasthan (supra), no notice issued under the Panchayati Raj Act shall be invalid on account of motion in its form as per section 113 of the Act of 1994. Apart from that, way back in 1972, the Division Bench of this Court in Bhurekhan vs. State of Rajasthan and 14 Ors., 1976 WLN 73, dealing with the case regarding no-confidence motion against a Sarpanch has held as under: "3. Learned Government Advocate and the counsel appearing on behalf of the respondents raised a preliminary issue before this Court that even if this Court comes to the conclusion that the officiating Tehsildar had no authority to preside over the meeting, the court should not interfere with the judgment of the learned single Judge who has dismissed the appellant's writ petition on a consideration well founded in the democratic world and, therefore, the appeal should be dismissed without going into the merits of the matter raised by the appellant. In support of this preliminary objection reliance has been placed on an authority of this Court in Radhey Shyam v. Vijai Singh, District Magistrate, Ganganagar and Ors., 1972 WLN 772.;