Amar Singh vs State of Rajasthan and Others

Shivaraj V. Patil, J.—Heard learned counsel for the petitioner.

In brief, the facts leading to filing of the writ petition are the following :

The petitioners was elected as Sarpanch of Gram Panchayat, Milakpur in the year 1995. According to him, he was functioning as Sarpanch in the interest and welfare of the Panchayat as well as the public at large of the area. The members who were opposed to the petitioner, gave a proposal to the respondent No. 2 for moving vote, of ''No Confidence'' against him. The respondent No. 2, namely, the Chief Executive Officer and Secretary, Zila Parishad, Alwar, issued a notice on 23-12-1997 informing that a meeting had been convened on 15-1-1998 for consideration of ''No Confidence'' motion against the petitioner. As many as 8 allegations were made against the petitioner, on the basis of which a vote of ''No Confidence'' was sought to be moved. It is not necessary to give the details of the allegations in order to decide the controversy raised.

The petitioner had informed the Vikas Adhikari Panchayat Samiti, Ramgarh, that the three Panchas, namely, Smt. Premawati W/o Sukha (ii) Gopi, Panch, Ward No. 3 and (iii) Swaroop Singh, Panch, Ward No. 9 had incurred disqualification on account of birth of their third issue. He had also informed that Shri Prabhu Dayal. Up-Sarpanch, was not attending the meetings of the Gram Panchayat for the last one year. Shri Ish Kumar, Pancha from Ward No, 11 had resigned and the letter of resignation was sent for acceptance to the Panchayat Samiti. Thus, the five Panchas having incurred disqualification were not entitled to either to propose to move vote of ''No Confidence'' against the petitioner or to participate in the meeting in which vote of ''No Confidence'' was to be moved. The respondent No. 2 could not convene a meeting on the proposal so made by the Panchas who had incurred disqualification or who had ceased to be members of Gram Panchayat. Hence, the petitioner filed the writ petition challenging the very notice dated, 23-12-1997 (Annexure 1), convening the meeting on 15-1-1998 for the purpose of consideration of motion of ''No Confidence'' against him and sought for quashing the same. A further direction is sought to the respondents that without determining the question as to disqualification of five Panchas, named above, no meeting for consideration of ''No Confidence'' should be convened.

Learned counsel for the petitioner, in his arguments, reiterated the grounds raised in the writ petition.

The short point that arises for consideration is :

Whether the members of Gram Panchayat become ineligible and cease to be members whenever the allegations of disqualifications are made and pending determination as to whether a member has become disqualified or not u/s 19 of the Rajasthan Panchayati Raj Act, 1994 (for short the Act)?

u/s 19 of the Act, every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, of such Panchayati Raj Institution unless such a person is disqualified under various clauses enumerated in the said section including one that a person has more than two children. As per Section 39 of the Act, subject to the provisions of Section 40, a member of Panchayati Raj Institution shall not be eligible to continue to be such member if he -

(a) is or becomes subject to any of the disqualifications specified in Section 19;

(b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or

(c) is removed from the membership; or

(d) resigns from the membership; or

(e) & (f) ......................

Sub-section (2) of Section 39 reads :

"(2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in Sub-section (1), the competent authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member:

Provided that no such opportunity shall be given if such member has u/s 40, been determined by the Judge to be or to have become disqualified u/s 19 :

Provided further that until a determination under this sub-section is made he shall continue to hold his office,"

(Underlining is ours)

Section 40 of the Act reads thus : "Judge to decide questions of disqualifications-

(1) Whenever it is alleged that any member of a Panchayati Raj Institution is or has become disqualified and such member does not admit the allegation or has whenever any member is himself in doubt whether or not he is or has become disqualified for being a member, such member or the competent authority or any member of the Panchayati Raj Institution concerned may apply to the District Judge having jurisdiction for a decision on the allegation or doubt.

(2) The application made under Sub-section (1) may, for the reasons to be recorded in writing be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.

(3) The Judge after making such enquiry as he considers necessary shall determine whether or not such member is or has become disqualified and his decision shall be final.

(4) Pending a decision, the member shall be entitled to act as if he were not disqualified."

A plain reading of the said Section 19 and in particular, Sub-section (4), makes the position clear that pending a decision under said section, a member shall be entitled to act as if he were not disqualified.

By the combined reading of Sections 19, 39 and 40 of the Act, it is crystal clear that pending determination of the question of disqualification of a member, he does not cease to be a member of, a Panchayati Raj Institution and such a member shall continue to hold his office as if he were not disqualified. In this view, the contention raised by the petitioner that a vote of ''No Confidence'' could not be moved by such members or that they cannot participate in the meeting conveyed for moving vote of ''No Confidence'' , cannot be accepted. Thus, we have no hesitation to conclude that pending determination of question of disqualification, a member shall continue to hold his office as if he were not disqualified. In other words, such a person shall cease to be a member only after he/she is declared as disqualified by the competent authority under Sections 39 and 40 of the Act, as the case may be.

In the light''of what is stated above, the writ petition is devoid of any merit, hence, it is dismissed.