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Gopilal Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 721 of 1978
Judge
Reported inAIR1979Raj74
ActsRajasthan Panchayat Act, 1953 - Sections 15, 19 and 24; Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 - Rules 15(3) and 16
AppellantGopilal
RespondentState of Rajasthan and ors.
Appellant Advocate V.K. Bandhu, Adv.
Respondent Advocate M.R. Calla, Adv.
DispositionPetition dismissed
Cases ReferredBhoorakhan v. State of Rajasthan
Excerpt:
.....taken the oath as yet. nagaur, 1963 raj lw 81. 3. section 15 clearly lays down that every panch or sarpanch shall before entering upon his duty as such, make and subscribe before the prescribed authority the oath or affirmation in the prescribed form. it only speaks about any elected or co-opted panch, thus i am clearly of the opinion that a member of the panchayat as soon as he is elected or co-opted has a right to move a motion of no confidence against the sarpanch. the tehsildar, sikrai, instead of coming to the meeting sent shri chiranji lal sharma, who was naib tehsildar and as such he was not competent to preside at the meeting being not an authorised person under rule 15 (3) of the rajasthan panchayat and nyaya panchayat (general) rules, 1961. it is further contended that the said..........tehsil sikrai district jaipur. on 10th feb. 1978, he was administered oath of the office of sarpanch. respondents nos. 3 to 12 are the panchas of the above gram panchayat duly elected. respondents nos. 13 and 14 are the members of the gram panchayat by co-option. a vote of no confidence was passed by the panchas in a meeting held on 23rd sept. 1978. out of 13 panchas 11 panchas voted in favour of the no-confidence motion and two panchas, out of whom, one was the sarpanch himself, voted against the no confidence motion. shri chiranji lal sharma, officiating tehsildar, sikrai, who presided over the meeting, declared the no confidence motion to be passed against the petitioner. the petitioner by way of this writ petition has challenged the motion of no confidence passed in the.....
Judgment:
ORDER

N.M. Kasliwal, J.

1. The petitioner was elected as sarpanch of the Gram Panchayat Udaipura Tehsil Sikrai District Jaipur. On 10th Feb. 1978, he was administered oath of the office of Sarpanch. Respondents Nos. 3 to 12 are the Panchas of the above Gram Panchayat duly elected. Respondents Nos. 13 and 14 are the members of the Gram Panchayat by co-option. A vote of no confidence was passed by the Panchas in a meeting held on 23rd Sept. 1978. Out of 13 Panchas 11 Panchas voted in favour of the no-confidence motion and two panchas, out of whom, one was the sarpanch himself, voted against the no confidence motion. Shri Chiranji Lal Sharma, Officiating Tehsildar, Sikrai, who presided over the meeting, declared the no confidence motion to be passed against the petitioner. The petitioner by way of this writ petition has challenged the motion of no confidence passed in the meeting held on 23rd Sept. 1978. The first contention of the learned counsel for the petitioner is that only respondents Nos. 4, 5, 10, 11, 12 and 13 bad taken the oath in the manner prescribed under Rule 63 of the Election Rules on 8th May, 1978 and the rest of the respondents namely 3, 6, 7, 8, 9 and 14 have not taken the oath as yet. As such the panchas, who had not taken tbe oath, had no right to take part in the meeting on 23rd Sept. 1978 and further the respondent No. 3, wbo had also not taken the oath, had no right to move a motion of no confidence against the petitioner. It is further contended that the petitioner had raised this objection before thePresiding Officer and the Additional District Development Officer, Jaipur District, Jaipur vide Annexure 2 dated 21st Sept. 1978, had also directed the Presiding Officer that before starting of the proceedings, he should confirm that all the panchas had taken the oath in the prescribed manner.

2. On the other hand, Shri Calla, appearing on behalf of the respondent No. 3 has contended that all the panchas had taken the oath- He has also filed the affidavits of Kishori, Ramnath Singh, Chhaju Ram, Malkhan, Kalyan, Chander, Gulab Rai, Shanker and Girraj Prasad, the respondents, to the effect that they were administered oath and they were also taking part in the meeting of the Gram Panchayat since 10th Feb. 1978. It is further contended that all those forms containing the signatures of the panchas about taking oath are in the possession of the petitioner himself. It is further contended that Section 19 of the Rajasthan Panchayat Act, 1953 lays down a provision for moving a motion of no confidence. Under Sub-section (1) of Section 19 a motion of no confidence can be moved by any elected or co-opted panch. Under Sub-section (2) of Section 19 if the motion against the sarpanch is carried by a majority of not less than 3/4 of the, total number of members of the panchayat including sarpanch but excluding the associated panchas then it would be a valid motion of no confidence. Section 4 lavs down about the constitution of panchayat. Under this section a panchayat shall consist of (a) A sarpanch, (b) such number of panchas not being less than 5 or more than 20 as the State Government may determine, elected from amongst qualified voters of the panchayat, (c) panchas co-opted under Section 9, and (d) presidents of all the ser vice co-operative societies in the panchayat circle certified, in the prescribed manner, as holding office as such who shall, so long as they continue to be such presidents be as society members of the panchayat. Thus the Udaipura Panchayat consisted of 13 panchas including sarpanch. Section 15 reads as under:

'Section 15. Every panch or Sarpanch shall, before entering upon his duty as such, make and subscribe before the prescribed authority an oath or affirmation in the prescribed form.'

Learned counsel, therefore, contends that the oath or affirmation as contained in Section 15 is necessary before any panch or sarpanch enters upon his duty. Chap. III lays down the provisions for powers, duties, functions and administration of panchas. Section 24 under this chapter lays down the duty of the panchas: learned counsel, therefore, contends that moving of no confidence motion is no part of the duties of the members of the panchayat and there was no necessity of taking oath before moving a motion of no confidence against the sarpanch. Section 19, according to the learned counsel, only lays down that a motion of no confidence can he moved by any elected or co-opted panch and such motion will be carried by a maojrity of not less than 3/4 of total number of the members of panchayat including sarpanch. Such total number of the members of the panchayat in the present case was 13, the motion of no confidence was properly carried out by 11 members, constituted a majority of not less than 3/4 of the total number of the members of the panchayat. Reliance is placed on Kanta Devi v. State of Rajasthan 1957 Raj LW 69: (AIR 1957 Raj 314), Vishwanath v. Pt. Jhaman Lal, 1957 Raj LW 536, and Kumari Chandra Kala v. Lajooram, l968 Raj LW 418. On the other hand the learned counsel for the petitioner on this point has placed reliance on Jyoti Bai v. Civil Judge. Nagaur, 1963 Raj LW 81.

3. Section 15 clearly lays down that every panch or sarpanch shall before entering upon his duty as such, make and subscribe before the prescribed authority the oath or affirmation in the prescribed form. As such the oath or affirmation is necessary for a panch or saipanch before entering upon his duty as such. So far as the moving of a motion of no confidence is concerned Section 19 nowhere lays down that such motion of no confidence should be moved only by a panch who has taken oath of his office. It only speaks about any elected or co-opted panch, Thus I am clearly of the opinion that a member of the panchayat as soon as he is elected or co-opted has a right to move a motion of no confidence against the sarpanch. The duties of the panchas have been mentioned in Section 24 and these duties cannot be performed by a panch before taking the oath of his office. But this section nowhere lays down the moving of no confidence motion as one of the duties of a panch. Thus in my view, all the 13 panchas were entitled to take part in the proceedings for no confidence motion moved against the petitioner.

4. Learned counsel for the petitioner has next contended that the respondent No. 2, Additional District Development Officer, Jaipur District, Jaipur, had appointed the Tehsidar, Sikrai who presided at the special meeting dated 23rd Sept. 1978, for considering the motion of no confidence. The Tehsildar, Sikrai, instead of coming to the meeting sent Shri Chiranji Lal Sharma, who was Naib Tehsildar and as such he was not competent to preside at the meeting being not an authorised person under Rule 15 (3) of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961. It is further contended that the said Shri Chiranji Lal Sharma had a grudge against the petitioner and against whom the petitioner had made a complaint on 16th September, 1978, to the Collector-There is no force in this contention as well. Proceedings dated 23rd Sept., 1978, vide Annexure 3 show that Shri Chiranji Lal Sharma, who presided over the meeting was working as officiating Tehsildar on the said date and in that cacacity he presided over the meeting. There is nothing wrong or illegal if the officiating Tehsildar presides over the meeting in the absence of the Tehsildar. Mr. Calla has also cited Bhoorakhan v. State of Rajasthan, 1975 WLN 524, in this respect. The allegation regarding bias as stated in para 8 of the writ petition is wholly vague and insufficient to hold that Shri Chiranji Lal Sharma Could have any bias against the petitioner. No details or particulars of such grudge have at all been mentioned, nor any copy of the alleged complaint made by the petitioner on 16th Sept. 1978, to the Collector had been brought to the notice of this court.

5. It is next contended by the learned counsel for the petitioner that the respondent No. 14 was not a voter, but she personating herself to be a voter managed to get herself co-opted. She impersonated for Smt. Gulab Bai w/o Shri Hari Singh at S. No. 161 of the voter list of Ward No. 2, Udaipura. It has been recorded in Annexure 3 that a report of the Secretary was taken in this connection, and the Secretary in his report made it clear that he was all along seeing the same Gulab Bai and the register also contained her signatures. There is thus no force in this contention as well. Even otherwise if the vote of Smt. Gulab Bai be excluded still the motion of no confidence supported by the remaining 10 panchas constitutes a majority of not less than 3/4 of the total number of the members of the panchayat.

9. Lastly it was contended that the presiding officer did not record the proceedings of the meeting in accordance with Rule 16 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961. Learned counsel for the petitioner failed to point out as to in what manner the proceedings of the meeting were not in accordance with Rule 16 and in any case a minor irregularity or infraction of Rule 16 in drawing the proceedings of the meeting shall not vitiate the meeting itself.

7. I may in the end further point out that all the panchas have filed affidavits before this court stating that they had no confidence in the petitioner sarpanch and only one panch Devi Singh is in support of the petitioner. In democratic institutions like Gram Panchayat where 11 panchas out of 13, are not in support of the sarpanch and only one is supporting him, no relief could be granted to the petitioner in the exercise of extraordinary jurisdiction of this Court.

8. No other point was argued by the learned counsel for the petitioner.

9. In the result, this writ petition fails and is hereby dismissed summarily.


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