K.K. Desai, J.
(1) The Petitioner was elected to Zilla Parishad, Aurangabad some time before July 12, 1966, Under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, as a member of the Zilla Parishad he was an ex-officio member of the Panchayat Samiti of Kannad. It was alleged against him that he had failed to attend the meetings of the Panchayat Samiti from May 27, 1965 to September 14, 1965, for a period exceeding 3 months. It was alleged that since he had remained absent for the above period and not attended the Panchayat Samiti meetings he had vacated the office of the membership of the Panchayat. The Opponent NO. 2 Harishchandra Bhagaji filed an application in that connection and submitted it to the Chairman of the Panchayat Samiti. That application was forwarded to the Commissioner, Aurangabad. The Commissioner called for a report in that connection and the Executive officer of the Z. P. submitted his report to the Commissioner. The Commissioner issued a notice dated July 12, 1966,. therein reciting that without obtaining any leave of absence from the Panchayat Samiti the petitioner had remained absent from the meetings of the Panchayat Samiti for a period exceeding 3 months and that in consequence he had ceased to be member of the Panchayat Samiti. The Commissioner called upon the petitioner to show cause at the meeting to be held at 2.30 p. m. on August, 4, 1966, as to why it should not be held that the petitioner had ceased to be a member of the Panchayat Samiti. Ultimately, by his order dated September 21, 1966, the Commissioner held that the petitioner being a councillor of the Zilla Parishad, Aurangabad, and a member of the Panchayat Samiti, Kannad, had in fact remained absent from the meetings of the Panchayat Samiti for a period of 3 consecutive months without permission of the Panchayat Samiti and as such the office of his councillorship of the Zilla Parishad, Aurangabad, as well as the office of his membership of Panchayat Samiti, kannad, had become vacant as per provisions of S. 62 (2) of the Act with effect from the date of the order.
(2) In this petition, the above order of the Commissioner is challenged as illegal. It is contended on behalf of the petitioner that the procedure prescribed in sub-sec (2) of the Section 62 has not been followed. The consequence of not following that procedure was that the Commissioner had no authority under any of the provisions of the Act to make a finding that the Petitioner had ceased to be a Councillor of the Zilla Parishad, Aurangabad, and/or had vacated his office as a member of the Panchayat Samiti. It is further contended that in fact the notice dated July 12, 1966, did not refer to the question of the petitioner having vacated his office as Councillor of the Zilla Parishad, Aurangabad. In connection with the order declaring that the petitioner had ceased to be a Councillor of the Zilla Parishad, Aurangabad, notice to show cause had never been served and a reasonable and/or sufficient opportunity to render explanations was never given to the petitioner.
(3) On behalf of the opponents, it has been submitted that the contentions made as above on behalf of the petitioner are incorrect. The submission was that under the scheme of Section 62 of the Act the Commissioner had a right to decide that in consequence of his having been absent for a period exceeding 3 consecutive months from the meetings of the Panchayat Samiti the petitioner had ceased to be a member of the Panchayat Samiti and had consequently also ceased to be a Councillor of the Zilla Parishad, Aurangabad. It was further submitted that the notice dated July 12, 1966, was sufficient notice in connection with all the matters decided by the Commissioner.
(4) In support of the arguments made on both sides, reliance has been placed on the provisions in Sections 39, 40, 61 and 62 of the Act. Section 39 relates to removal of Councillor for misconduct. 'Councillor' is defined in Section 2 (9) to mean 'a member of Zilla Parishad constituted under this Act' There is no dispute between the parties that the petitioner was elected member of Zilla Parishad of Aurangabad and accordingly a Councillor. Under Section 39, the State Government is authorised. on the recommendation made by the Zilla Parishad, to remove a Councillor on the grounds mentioned in that Section. Under Section 40, it is, inter alia, provided that if a Councillor remains absent for a period of 6 consecutive months without the permission of the Zilla Parishad from its meetins, 'the office of such Councillor shall, x x x x become vacant'. In that connection, under sub-section (2), the Commissioner is authorised to decide the dispute as to whether a vacancy in the office of Councillor had occurred under Sub-section (1) of Section 40. Section 61 provides for removal of a member of Panchayat Samiti by the State Government on a recommendation made by the Panchayat Samiti in that connection in respect of the matters mentioned in the section. Section 62 runs as follows:
'62 (1) is any member of a Panchayat Samiti (being a member who is not a Councillor) during the term of his office.
(a) x x x x x x x x ; or
(b) is, for a period of three consecutive months x x x x without the permission of the Panchayat Samiti, absent from meetings thereof, the office of such member shall become vacant.
(2) If any member who is a Councillor is , for a period of three consecutive months without the permission of the Panchayat Samiti shall report the fact to the Zilla Parishad, and the Zilla Parishad shall, after giving the Councillor an opportunity to furnish an explanation, decide whether his office as Councillor shall or shall not become vacant.
(3) If any question whether a vacancy has occurred in the office of member under this section is raised either by the Commissioner suo motu or on an application made to him by any person, the Commissioner shall decide the question x x x x x x, and his decisional thereon shall be final. Until the Commissioner decides the question. the members shall not be disabled from continuing to be a member of the Panchayat Samiti.
Provided that ,no order shall be passed under this sub-section by Commissioner against any member without giving him a reasonable opportunity of being heard'.
(5) It requires to be stated that under Section 57 a councillor elected to Zilla Parishad becomes an ex-officio member of the Panchayat Samiti. Alternatively one may become Councillor by being elected to Zilla Parishad. Separate provisions are made in Secs. 39 and 40 relating to removal of and vacancies in the office of Councillors and separate provisions made in Ss. 61 and 62 relating to removal of and vacancies in the office of members of a Panchayat Samiti. Under sub-s. (1) of S. 62 members of Panchayat Samiti other than Councillor members vacate office if they remain absent for 3 consecutive months from th meetings of the Panchayat Samiti without the permission of the Panchayat Samiti. It is clear having regard to the language of Sub-section (1) that the result of vacating of office under that section by being absent for a period exceeding 3 months in automatic and without intervention of any other proceedings or authority. In contrast with that provision in sub-section (2), as regards Councillor members the provision is that in the event of a Councillor member remaining absent for a period of 3 consecutive months from the meetings of the Panchayat Samiti, the (only) action that the Panchayat Samiti is authorised to take is to make a report to the Zilla Parishad. The Panchayat Samiti has no jurisdiction to do anything more in connection with such absence Upon report made by the Panchayat Samiti the Zilla Parishad is authorised after giving an opportunity of explanation to decide (not the question as to whether the Councillor member had vacated office of the membership of the Panchayat Samiti but) the question whether the office of the Councillor member as Councillor (i.e. as a member of the Zilla Parishad) should not be declared to have been vacated. It is important to notice that in connection with the default committed in not attending meetings of the Panchayat Samiti the punishment and/or the question to be decided by the Zilla Parishad is of the vacating of the office of Councillor and/or membership of the Zilla Parishad. The provisions in sub-section (3) will have to be construed in the light of the true construction of the provisions in sub-section (2) as mentioned above. The first part of sub-section (3) provides: 'If any question whether a vacancy has occurred in the office of member under this section' The last sentence before the proviso in the section runs: 'Until the Commissioner decides the question. the member shall not be disabled from continuing to be a member of the Panchayat Samiti. It appears to us that the office of a member of the Panchayat Samiti is automatically rendered vacant under Sub-sec.(1) of Section 62 and that sub-section does not deal with Councillor members of the Panchayat Samiti. The question in respect of the absence of a Councillor member for 3 consecutive months from the meetings of the Panchayat Samiti can never fall to be decided by the Commissioner until and after Zilla Parishad has upon report of the Panchayat Samiti dealth with that question in accordance with the scheme of sub-sec (2). Under the scheme of sub-sec (2) the decision of Zilla Parishad will be in connection with the concerned Councillor vacating his office as Councillor and not merely as a member of the Panchayat Samiti. This appears to be the ture effect of the provisions in Sub-section (2) more particularly read with the scheme for removal and vacating of office of Councillors as contained in Secs. 39 and 40 of the Act. It is admitted in this case that Zilla Parishad has not proceeded to decide the question of the Petitioner's absence from the meetings of the Panchayat Samiti for a period of 3 consecutive months under Sub-sec (2) of Section 62. As the Petitioner's office as Councillor could not be rendered vacant under Section 62 until the Zilla Parishad arrived at such a decition, the Commissioner, had no jurisdiction under sub-section (3) of Section 62 to declare that the petitioner had vacated his office as Councillor. In so far as the Commissioner arrived at what finding, he had failed to notice the scheme and the true effect and construction of sub-section (2) of Section 62 . The Commissioner exceeded jurisdiction available to him under Sub-section (3).
(6) The petitioner is also right in his submission that the notice d ated July 12 1966. makes no reference whatsoever to the question of the petitioner having vacated his office as Councillor. The Commissioner was not entitled to proceed to decide that question without serving due notice to show cause on the petitioner.
(7) It requires to be noticed that in so far as a Councillor becomes an ex officio member of Panchayat Samiti under Section 57 he cannot cease to be a member of Panchayat Samiti until and unless he is removed and/or vacates his office as Councillor in accordance with the provisions contained in Ss. 39, 40 and 62 (2) of the Act. As the petitioner was not removed and had not vacated office as Councillor under any of the above relevant provisions of the Act, the Commissioner was wrong in declaring that the petitioner had ceased to be a member of the Panchayat Samiti.
(8) Under the circumstances, the order of the Commissioner is set aside. The rule is made absolute with costs.
(9) Rule made aboslute.