JUDGMENT
Rathore, J.
1. This present writ petition is filed by the petitioner before this Court challenging the notice of no confidence motion dated 2.3.2002 (Annex. 1). The meeting of no confidence motion was going to be held on 27.3.2002. On 22.3.2002 after hearing the learned counsel for the petitioner this Court issued a show cause notice to the respondents to the effect that why this writ petition should not be admitted and disposed of at admission stage and notices were made returnable on 10.4.2002.
2. This Court also passed an interim order directing the respondents to proceed with the no confidence motion which was going to be held on 27.3.2002 and further directed not to declare me result and the result was ordered to be kept under sealed cover.
3. Today the matter comes up on the application filed by the respondents under Article 226(3) of the Constitution of India for vacation of the interim stay order granted by this Court on 22.3.2002. Since both the counsel agreed for the final hearing at order stage, matter is heard finally.
4. Learned counsel for the petitioner submits that the petitioner is an elected Pradhan of Panchayat Samiti Behror and always devoted himself for the development and welfare of the area of the Panchayat Samiti Behror and with his great efforts got sanctioned various development works and most of them have been undertaken and performed under the supervision of Vikas Adhikari and Zila Parishad as well as the Junior Engineer.
5. The Panchayat Samiti in its last and current meeting had discussed the works performed and undertaken on behalf of Panchayat Samiti and had recorded its satisfaction. To this effect learned counsel for the petitioner referred Annex. 3 by which the meeting presided by the petitioner was held on 6.3.2002 and the work which was referred in Annex. 3 has been approved by the majority of members. This Annex. 3 was submitted to show that the Panchayat Samiti had never shown their disagreement towards the works performed by the petitioner. The members of the Panchayat Samiti at no point of time were having any grievance against the petitioner or the manner in which he was performing the works of the Panchyat Samiti. But certain elected persons always create hurdles and always search chances to any how create obstructions in smooth running.
6. Learned counsel for the petitioner Mr. R.K. Mathur submits that a notice has been issued by the respondent No. 3 purported to be under Rule 21 of the Rajasthan Panchayat Rules. Along with the notice, a resolution dated 1.3.2002 has also been made available which bear resolution No. 2 that the Panchayat Samiti has passed a motion of no confidence against the petitioner and the said meeting was presided over by the Up Pradhan, Panchayat Samiti, Behror Smt. Beermati.
7. Mr. R.K. Mathur submits that without adopting due procedure of law, the Up Pradhan had convened the meeting of the Panchayat Samiti and got passed a no confidence motion against the petitioner. Therefore, now holding any meeting on 27.3.2002 as fixed by the respondent No. 3 has got no value. He further submits that without applying his mind on the resolution dated 1.3.2002 respondent No. 3 has issued notice to the petitioner to consider no confidence motion on 27.3.2002.
8. He referred Section 37 of the Panchayati Raj Act 1994 wherein the motion of no confidence in Chairperson and Deputy Chairpersons the procedure for motion on no confidence Chairperson and Deputy Chairperson are to be taken place and read over the Sub-section 1, 2, 3 and 8 of the Section 37 which is reproduced as under:
Motion of Non-confidence in Chairpersons and Deputy Chairpersons
(1) A motion expression want of confidence in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution may be made in accordance with the procedure laid down in the following Sub-section
(2) A written notice of intention to make the motion in such form as may be prescribed, signed by not less than one-third of the directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered in person by any one of the members signing the competent authority.
(3) The competent authority shall
(i) forward a copy of the notice, together with a copy of the proposed motion to the Panchayat in the case of Sarpanch or Up-Sarpanch, to the Panchayat Samiti, in the case of a Pradhan or Up-Pradhan and to the Zila Parishad in the case of a Pramukh or Up-Pramukh;
(ii) convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution on a date appointed by him which shall not be later than thirty days from the date on which the notice under Sub-section (i) was delivered to him; and
(iii) give to the members a notice of not less than fifteen clear days of such meeting in such manner as may be prescribed.
Explanation-In computing the period of thirty days specified in this sub-section, the period during which the convening of a meeting is stayed by a court shall be excluded.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is riot concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote.
9. Learned counsel for the petitioner submits that provision as stipulated in Section 37 has not been followed by the respondents as they already carried out the no confidence motion on 1.3.2002 itself. Therefore it was not at all warranted issue a fresh notice calling upon them consider the no confidence motion on 27.3.2002. He also submits that allegations which are motivated against the petitioner are false and baseless and this fact is tested by bare perusal of Annex.3 the meeting which was presided by the petitioner on 6.3.2002. It also reveals this fact that resolution dated 1.3.2002 was taken in hot haste just to remove the petitioner from the office of Pradhan because the resolution bears the date 1.3.2002 but in last signatures of Veermati Yadav, Up-Pradhan who is alleged to have presided over the meeting had signed the same in the date 2.3.2002. Such error has been committed to move no confidence, therefore, the present writ petition is preferred by the petitioner on the ground that provision of Section 37(1) & (2) of the Act are not in true perspective complied with by the respondents for the purpose of initiation of non confidence motion and also failed to appreciate notice dated 23.2.2002 which was passed without adopting the procedure of law.
10. It is also specifically pleaded that resolution dated 1.3.2002 cannot be said to be a motion put for consideration on 27.3.2002. He also referred Rule 21 of the Rules 1996 which is herein reproduced as under:
Notice of motion of no-confidence- (1) A written notice of intention to make motion expressing want of confidence under Section 37 in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution shall be in Form I and shall be delivered to Chief Executive Officer/Zila Parishad in case of Sarpanch/Up-Sarpanch, Pradhan/Up-Pradhan and to the Development Commissioner in case motion is against Pramukh/Up-pramukh.
(2) Notice of meeting shall be sent by the Chief Executive Officer/Development Commissioner by post under certificate of posting not less than 15 clear days before the date of meeting and the date and the time appointed therefore in Form II to every directly elected Panch/Member at his ordinary place of residence. Copy of such notice shall also be put on the notice board of such Panchayati Raj Institution :
Provided that in case of a place where there is no post office, or where service of the notice cannot be affected expeditiously, such notice shall be served through Tehsildar concerned.
11. He further submits that the alleged notice for no confidence motion dated 2.3.2002 and a bare perusal of this notice reveals that Shri Babulal Yadav has not put his signatures and Smt. Shakuntla has also not put her signatures and as per the information of petitioner, signatures of Shakuntla has been forged. Therefore, in true perspective of Rule 21, the notice of intention to make motion has not been issued by the respondents.
12. On behalf of respondents Mr. R.N. Mathur learned AAG has submitted that the petitioner is wrongly appreciating the facts and drawn my attention towards the Annex. 2 Annex. 2 a notice which was issued under Rule 21 Sub-rule 1 wherein it has been categorically stated that we the elected members of the Panchayat Samiti Behror issues a written notice of intention to make motion against the Pradhan Lakhmi Chand Yadav. It is also given out that there are pending resolution along with this notice and this notice has been signed by 14 elected members.
13. In reply to the argument advanced on behalf of the petitioner that the resolution dated 1.3.2002 is no confidence motion which was carried out without following process of law as stipulated in Section 37 of the Act, submits that it is amerely resolution to intend that the members are of the intention to move for no confidence motion. Resolution, for non confidence motion has been taken by the members does not mean that this is the order passed under Section 37. After receipt of this written notice of intention to make motion the Chief Executive Officer, Zila Parishad Alwar has issued a notice under Rule 21 in Form 2.
14. Mr. R.N. Mathur learned A.A.G. gave much emphasis on the language which has been written in the notice that the meeting for no confidence motion is proposed to be convened on 27.3.2002 for consideration of no confidence motion against the petitioner at 11 P.M. Thus the respondents has not only complied with the provisions of Section 37 but also complied with the provisions of Rule 21. Thus no prejudice has been caused to the petitioner while making compliance of the Section 37 and Rule 21. In support of the above argument he placed reliance on the judgment in the case of Aligarh Kuslim University and Ors. v. Mansoor Ali Khan (1), wherein the Hon’ble Supreme Court has held that there can be certain situation in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. He gave much emphasis on the provisions of Section37 and placed reliance on Annex. 1 & 2 which were issued in consonence with Section 37.
15. In reply to the argument that since the petitioner being a Pradhan presided over the recent meeting on 6.3.2002 in presence of the members and the resolution has been passed. Seven resolution has been passed with majority. He submits that in view of Section 13 the composition of the Panchayat Samiti is reproduced as under :
Composition of a Panchayat Samiti (1) A Panchayat Samiti shall consist
(a) directly elected members from as many territorial constituencies as are determined under Sub-section (2); and
(b) all members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly, the Panchayat Samiti area :
Provided that the members referred to in Clause (b) shall have a right to vote in all meetings of the Panchayat Samiti except those for election and removal of the Pradhan or Up- Pradhan.
(2) The State Government shall, in accordance with such rules as may be framed in this behalf, determine the number of territorial constituencies for each Panchayat Samiti area and thereupon so divide such area into single member territorial constituencies that the population of each territorial constituency is, so far as practicable, the same throughout the Panchayat Samiti area :
Provided that a Panchayat Samiti area having population not exceeding one lakh shall consist of fifteen constituencies and in case of Panchayat Samiti area whose population exceeds one lakh, then for every fifteen thousand or part thereof in excess of one lakh, the said number of fifteen shall be increased by two.
16. By bare perusal of Section 13(a) it reveals that in composition of the Panchayat Samiti directly elected members from as many territorial constituencies as are determined under Sub-section (2). Here in the instant case while holding the meeting on 6.3.2002 not a single member directly elected from territorial constituencies has attended the said meeting. To strengthen argument he also placed facts to show that out of 21 members who were present in the no confidence meeting were directly elected. He also referred Section 46 which reads as under:
Meetings of a Panchayat Samiti- (1) A Panchayat Samiti shall hold a meeting for the transaction of business at least once a month (hereinafter in this Section called the ordinary meeting).
(2) Every meeting of the Panchayat Samiti shall ordinarily held at the headquarters of the Panchayat Samiti.
(3) The date of the first meeting shall be fixed by the Collector of the district which shall be presided over by such officer, not below the rank of an officer of the Rajasthan Administrative Service, as may be appointed by the Collector of the District and date of each subsequent ordinary meeting shall be fixed at the previous meeting of the Panchayat Samiti, provided that the Pradhan may for sufficient reasons, alter the day of the meeting or adjourn it to subsequent date. The Pradhan may whenever he thinks fit, and shall, upon the written request of not less than one-third of the total number of members and on a date within fifteen days from the receipt of such request call a special meeting: Such request shall specify the object for which the meeting, is proposed to be called. If the Pradhan fails to call a special meeting, the Up-Pradhan or the competent authority may call the special meeting for a day not more than fifteen days thereafter and require the Vikas Adhikari to give notice to the members and to take such action as may be necessary to convene the meeting.
(4) Ten clear days notice of an ordinary meeting and seven clear days notice of a special meeting specifying the time and place at which such meeting is to be held the business to be transacted thereat, shall be sent to the members and affixed at the notice board of the Panchayat Samiti. Such notice shall include in the case of a special meeting any motion or proposition mentioned in the written request made for such meeting.
17. He states that in Section 46 Sub-Section 1 the Panchayat Samiti shall hold a meeting for the transaction of business at least once a month (hereinafter in this section called the ordinary meeting). If at all it is considered the meeting which was presided by the petitioner on 6.3.2002 with the majority resolution then also it is a routine and ordinary meeting not a meeting which was attended by the elected members does not give confidence in the petitioner as Pradhan. Learned counsel for the respondents in support of his argument placed reliance on the judgment in the case of Hukam Singh v. State of Raj. and Ors. (2), wherein this Court has held No confidence motion-Mode of ascertaining wishes of members-Secret ballot not provided-Wishes ascertained by signatures for & against – Held, proceedings are not vitiated.
18. What is provided under Section 39(8) of the Act is that the motion shall be put to vote and as has been observed by me hereinabove, that as to what should be the mode to ascertain the wishes of the members present at the meeting has been left to the discretion of the Presiding Officer and the members present at the meeting, for, there is no secrecy, so far as the consideration of no-confidence motion is concerned.
19. The mode adopted by the Presiding Officer at the meeting at the time of the consideration of the no-confidence motion, namely, obtaining of signatures for and against the no-confidence motion, does not vitiate the proceedings of the meeting. On that account, motion of no-confidence cannot be said to be illegal. The judgment referred by learned AAG Mr. R.N. Mathur in support of his argument that they too made out the argument raised by the learned counsel for the petitioner that no secret ballot in pursuance of the interim order has been conducted. He also placed reliance on the judgments reported in 1999 (2) RLW 767 and 1984 RLW 94 (3).
20. The learned AAG Mr. R.N. Mathur was directed to place the sealed cover of the result sheet. After hearing the argument on merit and also on the application under Article 226(3) of the Constitution of India I perused results which was placed before me under sealed cover.
21. Having heard learned counsel for the parties and after perusal of the relevant section and rules of the Rajasthan Panchayati Raj Act 1994 and Rules 1996 and after carefully scanning the judgment referred before me, I an of the considered view since the petitioner has challenged the writ petition on the ground of Annex. 2 along with resolution dated 1.3.2002 is nothing but a motion was carried out by the members without following the due process of provision of Section 37 is not tenable.
22. I am agree with the proposition and the arguments advanced on behalf of the learned AAG that it can only be considered to intend to move the motion against the petitioner and this argument is tested with the support of the notice which was issued under Rule 21 Sub-rule 1 wherein it was only mentioned that the Executive Officer of Zila Parishad Alwar was only received the resolution to intend to pass the no confidence motion and this is also signed by 14 members.
23. It is given out at Bar that total elected members are 19 out of which 14 members has signed the notice and passed the resolution dated 1.3.2002. Since the respondents has not considered a resolution dated 1.3.2002 as a motion carried out against the petitioner this argument of the learned counsel for the petitioner is not tenable. After receipt of this resolution they started steps under the provisions of Rule 21 and Section 37 and issued notice Annex. 1 dated 2.3.2002 which clearly speaks about the consideration for no confidence motion on 27.3.2002.
24. I have also perused the letter written by the Executive Officer by the time for debate was given and after debate a motion was undertaken.
25. Total 15 members who have attended the no confidence motion 14 voted against the petitioner, one in favour of the petitioner. Therefore, no confidence motion has been carried out against the petitioner.
26. In the facts and circumstances of the case as discussed hereinabove the writ petition does not survive and same is dismissed. Consequently the interim order dated 22.3.2002 also stands vacated.