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Hukam Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 644 of 1983
Judge
Reported inAIR1984Raj119; 1983()WLN517
ActsRajasthan Panchayat Samities and Zila Parishad Act, 1959 - Sections - 39, 39(2), 39(4) and 39(8); Constitution of India - Articles 14, 226 and 245
AppellantHukam Singh
RespondentState of Rajasthan and ors.
Appellant Advocate D.C. Sharma, Adv.
Respondent Advocate L.R. Mehta, Adv.
DispositionPetition dismissed
Cases ReferredBhawani Singh v. State of Rajasthan
Excerpt:
rajasthan panchayat & zila parishad act, 1959 - section 39(8)--no confidence motion--mode of ascertaining wishes of members--secret ballot not provided--wishes acertained by signatures for & against--held, proceedings are not vitiated.;what is provided under section 39(8) of the act is that the motion shall be put to vote and as has been held by me above, 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 consideiation of no-confidence motion is concerned.;the mode adopted by the presiding officer at the meeting at the time of the consideration of the no-confidence motion, namely, obtaining of.....orders.k.m. lodha, j.1. this is a petition under article 226 of the constitution by hukamsingh, seeking the following reliefs:--(1) that no-confidence motion ex. p-10 dated feb. 14, 1983 passed against him may be quashed.(2) that non-petitioner no. 2 collector, pali may be directed to convene meeting in accordance with the provisions of law:(3) that sub-section (8) of section 39 of the rajasthan panchayat and zila parishad act (no. xxxvii of 1959) (for short 'the act' herein) may be declared null and void.2. initially facts first. the petitioner is the sarpanch of gram panchayat digarna and as such is a member of panchayat samiti, jaitaran, which consists of 35 members. he was up-fradhan of the panchayat samiti. juitaran. it has been stated that a no-confidance motion ex. p-2 dated jan......
Judgment:
ORDER

S.K.M. Lodha, J.

1. This is a petition under Article 226 of the Constitution by Hukamsingh, seeking the following reliefs:--

(1) that no-confidence motion Ex. P-10 dated Feb. 14, 1983 passed against him may be quashed.

(2) that non-petitioner No. 2 Collector, Pali may be directed to convene meeting in accordance with the provisions of law:

(3) that Sub-section (8) of Section 39 of the Rajasthan panchayat and Zila Parishad Act (No. XXXVII of 1959) (for short 'the Act' herein) may be declared null and void.

2. Initially facts first. The petitioner is the Sarpanch of Gram Panchayat Digarna and as such is a member of panchayat Samiti, Jaitaran, which consists of 35 members. He was Up-Fradhan of the Panchayat Samiti. Juitaran. It has been stated that a no-confidance motion Ex. P-2 dated Jan. 11, 1983 was presented on Jan. 25, 1983 and was delivered to the Collector. Pali (non-petitioner No. 2). Non-petitioner No. 2. Collector, Pali issued notice to the members of the Panchayat Samiti. Jaitaran on Jan. 29, 1983. The notices were also issued to the co-opted members of the Panchayat Samiti. Jaitaran. After receipt of the notice, the petitioner filed S. B. Civil Writ Petition No. 375 of 1983 for restraining non-petitioner no. 2 from holding the meeting. The writ petition was dismissed summarily on Fab. 8, 1983 as premature. In that order, it was observed by the learned Judge that it would be open to the petitioner to raise all objections before the appropriate authority, and that the concerned authority shall take note of the objections made by the petitioner and decide whether the persons to whom notices have been issued have a right of vote. After that, the Collector, Pali authorised Additional Collector (non-petitioner No. 3) to preside over the meeting. On Feb. 14, 1983 at about 1 p. m., the Additional Collector (non-petitioner No. 3) started to arrange for the consideration of the motion of no-confidence. It is alleged by the petitioner that Shri Gokulchand, Officer Assistant. Office of the Additional Collector. Pali-Marwar (non-petitioner No. 5) obtained signatures of 34 members of the Pancliayat Samiti, Jaitaran on minutes of proceedings. The petitioner gave objections Ex. P-8 on that day at about 1 P. m, One of the objections was that co-opted members should not he allowed to cast vote at the meeting. Another application was filed on that day which is Ex. P9. In that application two objections which are relevant, were taken: (i) that the voting should be by secret ballot and (ii) that non-petitioner no. 4 by exercising undue pressure and influence on the members wants to get the no-confidence motion passed against the petitioner by show of hands. The objections were decided by the Additional Collector against the petitioner vide Ex. P-10 and after 3.10 P.m. the Additional Collector called upon the members to sign the minutes of proceedings. As the procedure of obtaining the, signatures was unusual, the petitioner has stated that six members including himself walked out. The no-confidence motion was carried out. The petitioner has filed the writ petition for quashing the no-confidence motion Ex. P-10 dated Feb. 14, 1983 and also for a direct on to the Collector. Pali for convening the meeting in accordance with the provisions of the Act. A prayer was also made that sub- Section (8) of Section 39 of the Act may be declared null and void. The writ petition was filed on March 1, 1983.

3. Mr. L. R. Mehta lodged caveat on behalf of non-petitioner No. 6 Suraram, pradhan, Panchayat Samiti. Jaitaran. A reply was filed on his behalf. Subsequently, an application was moved by the learned counsel for the petitioner praying that the Panchayat Samiti. Jaitaran may be added as non-petitioner No. 38. This Court, by its order dated March 23, 1983 ordered for addition of the Panchayat Samiti. Jaitaran as non-petitioner No. 38 in the writ petition. Learned counsel for the petitioner did not seek any consequential amendments in the writ petition.

4. The writ petition for the purpose of admission remained Part heard on March 24, 1983. Subsequently, on March 25, 1983, learned counsel for the petitioner filed an application along with Ex. P-8 and Ex. P-9 praying therein that these documents may be taken on record. As learned counsel for non-petitioner No. 6 had no objection to the documents Ex. P-8 and Ex. P-9 being taken on record, they were ordered to be kept on record.

5. The first contention raised by the learned counsel for the petitioner is that the motion of no-confidence was not nut to vote, in this connection learned counsel referred to Ex. P-9 in which it is mentioned that there should be voting by secret ballot and, therefore, the procedure adopted by the Addl. Collector of obtaining signatures of the members who are for and against the no-confidence motion, was illegal. In the alternative, learned counsel submitted that voting should have been by show of hands and as this was not done and anunusal device of obtaining the signature was adopted, the motion of no confidence stands vitiated. On the other hand. Mr. L. R. Mehta, while controverting the submissions made by the learned counsel for the petitioner, urged that the motion of no-confidence was passed in accordance with Sub-section (8) of Section 39 of the Act.

6. In Para 4 of Ex. P-9 dated February 14, 1983, it has been - stated ^^oksV dk vf/kdkj xqIr ernku ls gh izkIr fd;ktk ldrk gS A**This objection was repelled by the Additional Collector, as is clear from the proceedings Ex. P-10 of the meeting. According to the Additional Collector, there was no specific provision for secret ballot provided under Section 39 (8) of the Act. He, therefore, thought it proper that every member present at the meeting, may be asked to put his signature for or against the motion of no-confidence and by adopting this procedure, wishes of the members can be ascertained. Towards the close of Ex P-10. the Additional Collector has stated that the members have given their votes for and against the motion of no-confidence as mentioned hereinabove. In the writ petition, the petitioner has stated that the motion was not put to vote in accordance with Section 39 (8) of the Act, for, it provides that on the conclusion of the debate the motion shall be put to vote and according to Mr. D. C. Sharma, the voting should have been by secret ballot or by show of hands. He submitted that as there was no voting by secret ballot and votes having been allowed to be cast openly by putting their signatures at the meeting, which resulted in the passing to the no-confidence, it is liable to be quashed. Mr. L, R. Mehta, submitted that what Section 39 (8) requires is that on the conclusion of the debate or on the expiration of two hours from the time of the commencement of the meeting, whichever is earlier, the motion shall be put to vote and that the said provision nowhere requires that the voting shall be by secret ballots. In other words, according to Mr. L. R. Mehta, the spirit of the aforesaid provision is very clear and it envisages that wishes of the members for and against the motion of no-confidence should be obtained so as to see as to whether the motion has been carried out with the requisite majority or not. What course is to be followed for ascertaining the wishes in respect of the motion of no-confidence, according to Mr. L. R. Mehta, was left to the members themselves and the Presiding Officer. As there is no requirement of voting by secret ballot, it was not necessary for the Presiding Officer to have voting by secret ballot. He also referred to Rule 12 of the Rajasthan Panehayat Samiti and Zila Parishad (Conduct of Business) Rules. - 1960 (for short 'the Rules'), which provides the mode of putting the question to vote in the meeting of the members of the Panehayat Samiti.

7. In view of the rival contentions, the question arises whether the procedure adopted by the Presiding Officer for putting the no-confidence motion to vote was correct or not and whether it has affected the validity of the motion of no-confidence. I have carefully considered the proceedings Ex. P10 of the meeting. It is correct that there was no voting by secret ballot, but the question is whether it is so contemplated by Section 39 which deals with motion of no-confidence against Pradhan or Up-Pradhan, ether any secrecy is contemplated under Section 39 or not Sub-section (2) thereof, provides that a written notice of intention to make motion is to be made and that has to be signed by not less than 1/3rd of the total members of the Panehayat Samiti. As soon as the meeting is convened for consideration of the no-confidence motion, the Presiding Officer is required to read the motion to the members (present) of the Panchayat Samiti for consideration. The motion of no-confidence is declared open for debate. It is only after the conclusion of the debate or expiration of two hours, whichever is earlier, that the motion has to be put to vote. It is, thus, clear that no secrecy is contemplated so far as the motion of no-confidence is concerned. The written notice is required to be signed by not less than 1/3rd members of the Samiti. Debate on the no-confidence motion at the meeting is also envisaged and it is only thereafter that it is not to vote.

8. Mr. D. C. Sharma, learned counsel for the petitioner invited my attention to Sojharmal v. Municipal Council, Kharsia, 1964 Jab LJ 139 and Hardatt S ngh v. B. D. & P. AIR 1976 Puni & Har 122.

9. In Sojharmal's case (1964 Jab LJ 139). it was observed by P. V. Dixit, C. J,. in para 5 as follows:--

'Now, the settled rule in regard to mode of voting is that where a statute prescribes the mode in which the vote of a body is to be taken, then, that method must be followed and failure to comply with the same is fatal to any action taken; and that if the mode of voting is not prescribed, then the mode of voting by show of hands followed, if necessary, by post must prevail.'

In Hardatt's case (AIR 1976 Puni & Har 122). while dealing with the contention that in the absence of any statutory provision contained in the Act or in the Rules framed thereunder, providing for the manner of calling and conducting the meeting for passing a resolution of no-confidence, it was held that it is necessary that the same procedure should be followed for the conduct of such a meeting as is prescribed by Rules 38 and 39 of the Rules as laid down by the Division Bench of the Punjab and Haryana High Court in Dharam Singh v. State of Haryana (1974 Puni LJ 365); and inasmuch as the said procedure for the conduct of the meeting was not followed in the case by votes having been allowed to be cast openly by the show of hands and not by secret ballot as required by the aforesaid rules, the proceedings of the meeting resulting in the passing of the impugned no-confidence motion are liable to be quashed. In that connection, it was observed in para 5 as follows:--

'Inasmuch as the votes at the meeting held on May 28, 1975, were cast by show of hands and not by secret ballot, the meeting does not appear to have been conducted in accordance with the strict statutory requirements of Sub-rule (6) of Rule 39. The difference between voting openly by show of hands and voting by secret ballot is of great significance. It is not unknown that certain persons are not able to exercise their right of franchise in such matters freely if they have to vote for or against a resolution of this type openly in the presence of the Sarpanch and the opposing parties, and so that voting is freer and fairer if it is by a genuine secret ballot. It cannot, therefore, be argued by the respondents that even though the requirement of Rule 39 (6) is applicable to a meeting under Section 9 (2), and the said provision is not followed no prejudice has nevertheless been caused to the petitioner.'

On the other hand, Mr. L. R. Mehta, learned counsel for non-petitioner No. 6, invited my attention to Lakslimi Nara'n Shukla v. State of U. P., 1959 All LJ 853. L. S. Khare v. State of U. P., 1967 AM LJ 416. Ramdas v. State. AIR 1976 Madh Pra 176. In re. P. R. Reddy. AIR 1975 Andh Pra 123 and D. C. Garg v. District Magistrate, AIR 1976 All 313. While considering Section 87-A (9) of the U. P. Municipalities Act, 1916, it was observed in L. S. Khare's case (1967 All LJ 416) as under:--

'In my judgment, this sub-section leaves it to the discretion of the Presiding Officer to adopt such method of voting as he considers proper. In adopting a method of voting different from that by show of hands the Presiding Officer did not contravene any statutory provision of law and, therefore, the proceedings of the meeting cannot be held to be illegal.'

Soiharmal's case (1964 Jab LJ 139) was notified in Ramdas's case (AIR 1974 Madh Pra 176). In that case while dealing with Section 24 of the M. P. Gram Pan-chayats Act, it was held that the M. P. Gram Panchayats (No-confidence Motion against Sarpanch or Up-Sarpanch) Rules, 1964 do not provide for any special mode of voting and only provided that in case the voting was not unanimous, the number of votes with names of Panchas voting for and against the motion as also the names of those who have remained neutral should be mentioned in the minutes of the proceedings. It was observed by the learned Judges of the M. P. High Court as follows :--

'The voting by show of hands means counting the persons present entitled to vote and who choose to vote by holding up their hands. What is material is to ascertain the wishes of the Panchas present at the meeting whether they vote for and against the resolution. This can be ascertained by show of hands or by expression of opinion of the individual persons present and entitled to vote. In this case 9 Panchas were present and they were the persons who had moved and signed the motion of 'no-confidence'. They participated in the meeting, held deliberations over the motion of 'no-confidence' and unanimously voted in its favour.'

Andhra Pradesh Panchayat Samitis and Zla Parishads Act (No. XXXV of 1959), came up for examination in In re P. R. Reddy's case (AIR 1975 Andh Pra 1231. wherein it was ruled as follows (at pp. 125. 126): --

'Therefore, no secrecy is attached nor such secrecy is intended when a motion of no confidence comes up for consideration or discussion. There is an open debate between those who are for the motion and those who are against it. It is for that reason that secrecy of the ballot is waived under the Rules and open ballot is introduced. Even the notice in writing which shall be signed by not less than one-half of the total number of the members of the panchayat Samiti will disclose those who are against the President of the Samiti.' (Emphas:s supplied).

It was further observed (at p. 1261:--

'The will of the members was ascertained by an open vote and it is one of the democratic processes or methods of ascertaining the will of the representatives and the Legislature has provided for such a process.'

Section 87-A (9) of the U. P. Municipalities Act (No. II of 1916) was examined by a Division Bench of Allahabad High Court in D. C. Garg's case (AIR 1976 All 313). The expression used in the aforesaid provision is that 'the motion shall be put to the vote of the Board'. In that connection, the learned Judges constituting the Divis'on Bench, stated as under (para 31:--

'If the vote is open, the normal method is by show of hands. It may even be by voice vote, if possible. The law, docs not prohibit secret voting. In case of a resolution there has to be two types of votes one supporting the resolution and the other opposing the resolution. The Presiding Officer had thus to fix two marks to indicate the support or opposition to the motion. The marks set up by him are well-known marks and could not be deemed to be creating any sort of confusion. The vote cannot, therefore, be deemed to be invalid on the ground that it violated the requirements of Sub-section (9) of Section 87-A of the U. P. Municipalities Act.'

10. In Section 39 (8) of the Act, the words used are 'the motion shall be put to vote.' No mode has been provided therein, but having regard to the provisions contained in Section 39 (2), (6) and (8), it is clear that being a motion of no-confidence and not relating to election of Sarpanch or Up-Sarpanch, no secrecy of ballot was contemplated and it was left to the discretion of the presiding Officer and the members present to decide regarding the ascertainment of the wishes of the members present. It appears from Ex. P 10 that the Presiding Officer, having regard to the language of Section 39 (8) of the Act, while overruling the objection regarding voting by secret ballot raised by the petitioner, thought it proper that the wishes of the members present may be ascertained by obtaining signatures for and against on motion of no-confidence.

11. It may be stated that no objection has been taken in the writ petition that the signatures ought not to have been obtained on the minutes of proceedings of the meeting, at the time of conclusion of the debate. Learned counsel for the petitioner could not show any objection to that effect in the writ petition. It may be stated that the objection that has been taken in the writ petition in regard to the manner of voting is in variance of what was stated in Ex. P9, namely, that the voting should have been by secret ballot. It may be, further, stated that as to what can be the manner of voting at the meeting is not a matter relating to the constitution of the Panchayat Samiti. It is not within the domain of the legislative functions to provide the manner of voting for consideration of the no-confidence motion. In this case, what is provided under Section 39 (8) of the Act is that the motion shall be put to vote and as has been held by me above, 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.

12. In view of the various authorities cited by Mr. L. R. Mehta and having regard to the expression used is Section 39 (8) of the Act. I am of considered opinion that 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 first contention raised by the learned counsel for the petitioner is, therefore, rejected.

13. It was, next argued that Section 39 (8) of the Act is bad inasmuch as it provides unguided and unbriddled powers to the executive in regard to the manner of voting and that as it is one of the essential functions of the Legislature to provide for the manner of voting, which it has not done, it is violative of Article 14 of the Constitution and it suffers from the vice of excessive delegation of essential function of the Legislature.

14. A question arose in Registrar, Co-operative Societies v. K Kuniahmu, AIR 1980 SC 350. whether Section 60 of the Madras Co-operative Societies Act (No. VI of 1932) is not void on the ground of excessive delegation of legislative power. It was held that Section 60 of the aforesaid Act provides for such situations that the Government is invested by Section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act. The principles laid down in Registrar. Co-op. Society's case (AIR 1980 SC 350) can very well be invoked while considering the point that Section 39 (R) of the Act is bad, for, it does not provide for the manner and mode of putting the motion to vote. Section 39 (8) is not bad on the two counts stated by the learned counsel for the petitioner.

15. It was also contended that the meeting was presided over by the Additional Collector, whereas under Section 39 (4), the Collector should have presided at such meeting and if he is unable to preside, then, he has to record reasons for not doing so. Notice Ex. P4 was issued by the Collector. Pali. fixing Feb. 14, 1983 for consideration of the no-confidence motion. In Ex. P7. it is stated by the Collector that in exercise of the powers conferred by Section 39 (4) of the Act for consideration of the no-confidence motion against the petitioner, he has authorised the Additional Collector to preside over the meeting. The contention of the learned counsel for the petitioner is that no reasons have been stated by the Collector as to how he is unable to preside over the meeting. It may be mentioned that the reasons which the Collector is required to give are with respect to his absence. Failure to record reasons is not relevant in so far as the proceedings of the meeting arc concerned. Apart from this, it may be stated that the recording of reasons is not mandatory. In the absence of the Collector the Additional Collector can preside over the meeting. The authorisation was made as is clear vide Ex. P7 on Jan. 29, 1983. The meeting was fixed to be held on Feb. 14, 1983. No such objection was raised at the time of meeting, which was held on Feb. 14, 1983 for consideration of the no-confidence motion. Failure to record reasons will not affect the competency or jurisdiction of the Additional Collector to preside. No objection was raised in this connection. The petitioner took the chance at the meeting. Section 40 of the Municipalities Act was considered in Karnldan Singh v. The Civil Judge, Bikaner, 1966 Rai LW 180. A contention was raised in that case that the policy of the Legislature is that municipal election petition should ordinarily be tried by the District Judge, if there is one, sitting at the place where the municipal office is situated and so the provision laying down that it can be transferred to the Civil Judge for disposal only for reasons to be recorded in writing should be construed to be mandatory. While considering the said contention, the learned Judge held that the provisions 'with regard to the recording of the reasons in writing before transferring an election petition for disposal to a Civil Judge not be regarded as mandatory. For the reasons aforesaid, the contention that as the meeting was presided 'over by the Additional Collector and not the Collector, the proceedings of the meeting stand vitiated, cannot be accepted. It is, accordingly, rejected.

16. It was argued that as at the time of consideration of the no-confidence motion, four co-opted members participated and exercised their right of vote, the proceedings of the meeting and the posing of the no-confidence mot on against the petitioner, are vitiated. Section 39 (3) (iii) of the Act lays down amongst others, that co-opted members are entitled to receive notice of the meeting going to be held for considerate on of no-confidence motion against pradhan or Up-Pradhan of a Panchayat Samiti. Raiasthan Panchayat Laws Amendment Ordinance 1970 (Ordinance No. VII of 1970) was promulgnted on July 9, 1970. That, amongst others, barred the co-opted members from participating at the meeting for consideration of no-confidence motion. It did not become an Act and, therefore, the said Ordinance lapsed automatically on the expiry of the period of six months from the date of its promulgation, According to Mr. L. R. Mehta, in view of the said position of law, the grievance made by the petitioner regarding the participation of the co-opted members is without any substance. There is no dispute that there were four co-opted members two women and two men and they are not entitled to vote. The objection was taken by the petitioner in Ex. P9. The Presiding Officer, at is clear from Ex. P10. overruled the objection on the ground that by letter dated Feb. 9, 1982, it was made clear that at the time of no-confidence motion against UP-Pradhan. members mentioned in Section 8 (1) (iii), (iv) and (v) are entitled to vote. The members mentioned in Section 8 (1) (iii), (iv) and (v) are S. D. O.. co-opted members and the members specified in Section 10. According to the Presiding Officer. (Additional Collector), the co-upted members were entitled to vote. It will be a futile exercise to go into this question whether co-opted members were entitled to vote or not, for, in this case, 28 members of the Panchayat Samiti voted in favour of the no-confidence motion and against the petitioner. The break-up of the votes in favour of the motion, as stated in para 13 of the preliminary reply to the writ petition. which was filed on behalf of non-petitioner No. 6. is as follows:--

Sarpanch:22Pradhan:1M. L. A. :1Co-opted Members4Total votes28

The Panchayat Samiti consists of 35 members and the no-confidence motion is carried if passed by 2/3 of the members of the Samiti. Admittedly. 22 votes are more than 2/3 of the members of the Panchayat Samiti. Thus, in the present case, the total membership of the Panchayat Samiti inclusive (exclusive ?) of the co-opted members would be 31 and its 2/3 will be 21. If the votes cast by co-opted members arc excluded, still 24 votes were there, which is more than the requisite 2/3 of the members and even if the members of the Panchayat Samiti are taken as 35. still the motion has been carried out in the instant case by the requisite number of members, i.e. 24 members. This objection of the learned counsel, therefore, does not hold water.

17. An objection was raised by the learned counsel for the petitioner that the impugned no-confidence motion is mala fide as it is a result of conspiracy between non-petitioners Nos. 3. 4 and 5 I have considered grounds (c) and (i) of the writ petition. Non-petitioner no. 4 in para 11 of the reply, has controverted all the allegations. Written notice of the intention to make the motion was by 20 members of the Panchayat Samiti. It was made as required by Sub-section (2) of Section 39 of the Act. The Collector followed the procedure laid down in sub- Section (3) of Section 39 and, thereafter, the meeting was convened for consideration of the no-confidence motion, which was presided over by the Additional Collector. It is not the case at the petitioner that the motion of no-confidence was not read over by the Additional Collector to the members present of the Panchayat Samiti. It is also not the case that the motion was not declared open for debate. On the basis of the averments that have been made, in the absence of any other material, it is difficult to hold that the motion of no-confidence was bad on account of any mala fides on the part of non-petitioners Nos. 3. 4 and 5. The allegation that non-petitioner No. 5 participated in the meeting is baseless. The minutes of the meeting were prepared and they have been signed by the Presiding Officer and, therefore, this point also fails. There is nothing on' the record to show that non-petitioner No. 5 participated in the meeting.

18. It was, further, contended that no debate was conducted as required by Section 39 (8) of the Act. A perusal of Ex. P-10 shows that time was allowed for discussion to the members. The objection was also raised on behalf of the petitioner in the application. Bald allegation that no debate was held cannot be accepted.

19. It may be stated that the Panchayat Samiti, Jaitaran consists of 25 members. The proposed motion was signed by 28 members of the Samiti as is clear from Ex. P-2 dated Jan. 11, 1983. Out of 35 members, 34 members were present at the time of the consideration of the no-confidence motion. Out of them, 28 members inclusive of the co-opted members and 24 members exclusive of co-opted members were in favour of the motion. Six members who were present at the time of the commencement of the meeting did not exercise their right to vote at the meaning. The position, therefore, remains that the motion of no-confidence was passed against the petitioner in accordance with Section 39 (11) of the Act. This shows that the petitioner has lost confidence of the members of the panchavat Samiti. In these circumstances, the question is whether on the grounds stated by the petitioner, will it be a sound exercise of discretion under Article 226 of the Constitution to give protection to the petitioner. It has been held in Radhey Shyam v. Vijai Singh 1972 WLN 772 as follows:--

'It is true that when the mandatory provisions of the law have been violated while despatching the notice to hold the meeting, on 18th Sept, 1971, it would go to vitiate the result of the meeting, but I cannot forget that I am entertaining the petition of the petitioner in exercise of the jurisdiction which is entirely discretionary. The traditions of democracy require that a person who wants to hold the elected office of a local body must give due respect to the wishes of the majority of the members of that body and if he has lost the confidence of that majority then he should not try to stay in that office even for a moment and should not come forward to seek the protection of this Court under the extraordinary jurisdiction conferred by Article 226 of the Constitution. This jurisdiction is of an equitable nature and in equity if a petitioner docs not come with clean hands he is not entitled to seek any remedy from the Court.'

20. A Division Bench of this Court in Bhure Khan v. State of Rajasthan 1976 Rai LW 148: (AIR 1976 Rai 184) has extracted the following from Radhey Shyam's case (1972 WLN 772):--

'In order to create healthy conventions for the functioning of democracy in the country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the court should show its reluctance to allow such person to invoke the extraordinary jurisdiction.' It was observed in Bhure Khan's case (AIR 1976 Raj 184 at p. 185) as under:

'In the instant case out of 12 members 9 persons voted for the motion of no-confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the presiding Officer in any manner showed any bias against him. Therefore this technicality that the meeting was presided over by an officiating Tahsildar and not by the Tahsildar himself cannot invoke any sympathy in favour of Bhure Khan. The discussions in the above cited case clearly indicate that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant has lost his right because of his act that the members have lost faith in him and therefore, in such circumstances this Court should not allow itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail.' The same view was taken in Bhoora-khan v. State of Rajashan 1975 Rai LW 591 wherein. Joshi. J., observed as follows;--

'It is well settled principle of democracy that the person who has lost the confidence of the members of a democratic institution should not be allowed to stay against the will of the members of that institution. The writ of mandamus or certiorari does not issue as a matter of course but is a writ of discretionary nature. Looking to the facts and circumstances of the case, this Court is not at all inclined to entertain the plea of technical nature to permit the petitioner who has lost the confidence of the members of the Panchayat. This Court is therefore not disposed to help such a person in the exercise of its extraordinary jurisdiction.' Gupta. J. in Bhawani Singh v. State of Rajasthan, 1977 Rai LW 158: (1977 Lab 1C 1832) has laid down as follows (at p. 1835) :--

'There is no doubt that in order to create healthy conventions for the functioning of democratic institutions in this country, this Court should be slow in helping a person in his attempt to stick to an elective office even after the unequivocal declaration by an overwhelming majority of the members that he has lost their confidence. The Court, in its extraord nary jurisdiction under Article 226 of the Constitution, should be rather reluctant in helping such a person in his attempt to cling to an elective office. In the present case, as I have already mentioned above, ten out of twelve members of the Panchayat holding office at the relevant time, had voted in favour of the motion of no-confidence against the petitioner and it would not be just and proper for this Court to interfere on a mere technical ground with the verdict of such a vast majority of the members of the Panchayat.'

21. Taking into consideration the principles laid down in the aforesaid decisions. I am disposed to think that when the petitoner has lost confidence of the majority members of the Pan-chayat Samiti, as is evident from Ex. P-10, it would not be proper to invoke, extraordinary jurisdiction under Article 226 of the Constitution on the, grounds stated by the petitioner.

22. No other point survives for my consideration.

23. For the aforesaid reasons, the writ petition deserves to be dismissed.

24. The writ petition is, accordingly, dismissed summarily.


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