NAOLEKAR, J. - (1.) BRIEF facts of the case are that Gram Panchayat Neemrana consists of twelve Members. On 1. 3. 1997 six members of Gram Panchayat submitted a written notice of intention to move no confidence motion against Smt. Kamlesh Kumari, Sarpanch of Gram Panchayat, together with the copy of proposed motion of no confidence before the Chief Executive Officer & Secretary, Zila Parishad, Alwar, respondent No. 2, duly signed by them. The Chief Executive Officer & Secretary, Zila Parishad, Alwar, fixed the date 27. 3. 1997 for consideration of motion of no confidence at 1. 00 p. m. at Gram Panchayat Bhawan, Neemrana and also appointed Mr. Onkar Singh Yadav, Senior Deputy Education Officer, Alwar to preside over the said meeting of no confidence. Later on the Presiding Officer was changed and one Mr. Rajash Kumar Gupta, Accounts Officer, Zila Parishad, Alwar was appointed to preside over the meeting of no confidence. Ten members attended the meeting of no confidence and out of them nine members voted in favour of the no confidence. The Presiding Officer declared motion of no confidence passed.
(2.) THE resolution passed of no confidence was challenged in a writ petition alongwith the order of removal from the Office of Sarpanch. THE learned Single Judge vide its order dated 1. 5. 1998 dismissed the writ petition against which the present appeal is filed. The only point raised by the counsel for the appellant in this appeal is that the notice of meeting of no confidence is to be sent by post under certificate of posting not less than fifteen clear days before the date of meeting in form No. II to every directly elected member or panch at his ordinary place of residence and the copy of such notice shall also be put on the Notice Board of such Panchayat Raj Institution as required under Rule 21 of the Panchayati Raj Rules, 1996, whereas the notices were not sent to the directly elected members by post under certificate of posting. Thus there is non-compliance of mandatory requirement and the no confidence motion meeting called and the no confidence motion passed in such meeting stand vitiated. If there is a non-compliance of the mandatory requirement, the subsequent act of passing of no confidence would not validate the entire meeting. The non-compliance of the mandatory requirement will not be vitiated by subsequent act of panchas of passing no confidence motion. Rule 21 (2) of the Rules of 1996 requires that the Chief Executive Officer shall send the notice of meeting of no confidence by post under certificate of posting not less than fifteen clear days before the date of meeting. The intention of the Legislature to frame this Rule of notice to be sent under certificate of posting is to give the information to the Members to enable them to attend the meeting and participate in the proceedings of no confidence and to cast their vote in favour or against the vote of confidence. The notice is required to be sent under certificate of posting so that there is reasonable assurance that the notice has been sent on the correct address of the panchas and that the notice, in fact, is being sent. The issuance of the notice giving fifteen clear days is an essential requirement, whereas manner of service of notice is directory. It is not very much material whether the notice is being sent by registered post or by postal certificate or is being sent by any other manner so long as the notices have been served on the members giving fifteen clear days. So long as the notice is received by the members, non-sending the notice by certificate of posting would not nullify the no confidence motion proceedings on such notice. It is not the case of the appellant that the notices have not been served on the members of the panchayat samiti; the only objection regarding issuance of notices is that they were not issued under certificate of posting. In our opinion, the manner of service is not mandatory requirement and substantial compliance of the same would be sufficient if the fact is being proved that the notices have been served giving requisit time of fifteen days. In fact in the present case all the members have been served with a notice and the petitioner herself participated in the meeting. The compliance of the issuance of notice under certificate of posting being directory, the no confidence motion passed against the petitioner cannot be set aside. The compliance of Section 37 (2) of the Act of 1994 as regards written notice to the competent authority by one-third of the directly elected members alongwith the proposed motion of no confidence by the signatory members, the learned Single Judge has reached to the conclusion that such notice has been duly presented before the competent authority and the learned counsel for the appellant has also not challenged that finding. In fact we do not find any allegation to the effect in the petition that the written notice was not signed by the one-third of the directly elected panchas or was not presented before the competent authority by one of the signatory members. The learned Single Judge after recording the finding that there was no breach of first part of Section 37 (2) of written notice to the competent authority, however, has held in paragraph 24 onwards that ". . . once the motion of no confidence is carried, there arises no question of precautionary steps envisaged under Sec. 37 of the Act of 1994 by the State Legislation or the Rules framed thereunder. The very fact that it is carried out with the support of not less than two thirds of the elected members, it confirms that there was an intention in the minds of atleast one-third of the elected members of village Panchayat to move for removal of Sarpanch. In the present case, if more than two thirds of elected members had removed Sarpanch of village Panchayat, Neemrana by passing no-confidence motion against her, it will not matter whether requisite one third members express it in written notice or it was expressed by some of them only. . . " And further in paragraph 25, the learned Single Judge has said". . . I am of the view that after no confidence motion was passed against the petitioner by more than two thirds of the majority of elected members of village Panchayat Neemrana on 27. 3. 1997 inquiry into the facts that the meeting was convened on the said date was not signed by atleast one third of the elected members is only a technical irregularity not causing any prejudice to any one. . . " We are not in agreement of the proposition of law laid down by the learned Single Judge.
(3.) FROM the above statement of law it appears that the learned Single Judge has held that the presentation of notice in writing signed by atleast one-third of the directly elected members to the competent authority would be directory provision and non-compliance of it would not entails nullification of the further proceedings of no confidence and; substantial compliance of the same would be sufficient. In Babu Lal Meena vs. State of Rajasthan & Others (1), the Division Bench of this Court has construed Section 37 (2) of the Act of 1994 and has held that presentation of written notice of intention to make motion of no confidence signed by not less than one-third of the directly elected members, to Competent Authority is necessarily to be complied with for the commencement of the proceedings for no confidence motion. If one could guess the intention of Legislature in framing the section in the manner, it would be apparent that it was to protect the person in office from unnecessary harassment, and trial of strength, although the party oppose to him does not even muster the strength of one-third of the directly elected panchas. The written notice by one-third of the directly elected members is a sine qua non for commencement of the proceedings of no confidence. The competent authority gets jurisdiction only and only to fix a date of the meeting of no confidence if he gets requisition for such meeting in writing by one-third of the directly elected members. If he does not get requisition of the meeting in writing signed by one-third of the directly elected members, he cannot call meeting of no confidence nor can take any steps in that regard, namely, sending of notice to Panchayati Raj Institution, appointing date for convening a meeting, give notice to the members of no confidence meeting, appointing officer to preside over the meeting if he is unable to do so etc. Thus, the Division Bench has held that the first part of Section 37 (2) of the Act of 1994 whereby written notice of intention to make the motion signed by one-third of the directly elected members is mandatory provision and the provision being mandatory any act done in breach thereof will be invalid. For the reasons stated above, the decision rendered by the learned Single Judge on interpretation of first part of Section 37 (2) of mandatory nature of the notice of intention, is set aside. However, the appellant has failed to prove any ground on the basis of which the no confidence motion passed against her could be set at knot. The appeal is dismissed with cost of Rs. 1500/- (Rupees fifteen hundred ). . ;