M.C. Jain, J.
1. This writ petition is directed against the order of the Dy. District Development Officer Pali dated 17-3-1983 Ann. 17 whereby it was held that Shri Gordhansingh Up-Sarpanch and Shri Khinvsingh Ward Panch did not remain absent in five consecutive meetings of Gram Panchayat, Piliwani and consequently their seats cannot be declared vacant and they did not cease to be members Under Section 17(2) of the Rajasthan Panchayat Act. 1953.
2. The petitioner's case is that Shri Gordhan Singh and Shri Khinvsingh did not attend the meetings of the Panchayat held in 10-8-82, 17-8-82, 24-8-82 and 31-8-82. Thereupon for the fifth meeting notices were given to both of them. According to the petitioner despite service of. notices, the fifth meeting held on 28-9-1982 was also not attended by them. One more opportunity was given to both of them to attend the sixth meeting vide resolution of the Gram Panchayat dated 28-9-1982 Ann. 3. Thereafter fresh notices for sixth meeting were given to them but they refused to take the notices. Thereupon the notices were affixed on their inhabited houses and as they did not attend the sixth meeting a resolution was passed in the meeting held on 5-10-1982 Ann. 5 for taking action against them under Section 17(2). The recommendation was made by them to the Addl. District Development Officer, Pali vide Ann. 6 dated 5-10-1982. Thereafter enquiry was conducted under Rule 12 of the Rajasthan Panchayat and Nyaya Panchayat General Rules, 1961, The earlier enquiry was conducted by one Kishanpuri who recorded the finding in favour of the Panchayat and against the alleged absentee members but a fresh enquiry was conducted by the Assistant District Development Officer who recorded a different finding. According to him absence of the members was not proved in five consecutivemeetings. The Dy. District Development Officer on the basis of the enquiry conducted by the Assistant District Development Officer passed the order Ann. 17 which is under challenge in this writ petition.
3. The first contention which is advanced on behalf of the petitioner, is that under Rule 12 of the aforesaid Rules, the enquiry could be conducted by the Dy. District Development Officer and no enquiry can be conducted by any other Officer. The order dated 17-3-1983 passed by the Dy. District Development Officer is bad inasmuch as the same is not based on the enquiry conducted by him but it proceeds on the basis of the enquiry conducted by the Assistant District Development Officer.
4. It is an admitted position that the enquiry was conducted by the Assistant District Development Officer and not by the Dy. District Development Officer, although the order was passed by the Dy. District Development Officer. For proper appreciation of the controversy, I read Sub-rule (5) of Rule 12 :-
'(5) On receipt of the record referred to in Clause (4) the Deputy District Development Officer may upon perusing the record and considering the recommendation of the Panchayat and after making such further enquiry he may consider necessary and after giving the absentee an opportunity of being heard, declare such seat to have become vacant or make such other order as he may think proper in the circumstances of the case.'
5. A perusal of Sub-rule (5) shows that after receipt of the record, the Dy. District Development Officer is required to peruse the record and consider the recommendation of the Panchayat. Thereafter the provision gives the power to the Dy. District Development Officer to make further enquiry which he may consider necessary and he is further required to give an opportunity of being heard to the absentee members. After conducting such an enquiry if he comes to the conclusion that the recommendation of the Panchayat is correct, he may record a finding to that effect and on recording such a finding, declare the seat or seats to have become vacant and if he disapproves the recommendation and records a negative finding that it is not proved that the alleged absentee member or members remained absent in the five consecutive meetings of the Panchayat, he may record afinding in their favour and order that no action is called for. In the present case it may be stated that it was felt that some enquiry should be conducted. It is not a case where the Dy. District Development Officer was of the opinion that it is not necessary to conduct any further enquiry but he did not himself conduct the enquiry and the enquiry was conducted by the Assistant District Development Officer. Thus it would appear that the enquiry was considered necessary but instead of conducting the enquiry himself, he got the enquiry conducted by someone else which is contrary to Sub-rule (5). The order Ann. 17 is thus passed on an enquiry conducted by some authority other than the authority provided by law. So on that basis the enquiry gets vitiated. On such a bad and illegal enquiry no order can be passed. Sub-rule (5) does not contemplate the delegation of any power to any one else. The reason appears to be that as serious consequences are to follow, the allegedabsentee members may continue to be members or cease to be members and theirseats may be declared vacant. Looking to these serious consequences the rule contemplates for holding an enquiry by the Dy. District Development Officer himself. It is he, who should hear and conduct the enquiry and should not base his findings on the basis of the enquiry conducted by someone else. This appears to be the spirit and intention of Sub-rule (5). Viewed in the light of Sub-rule (5) thus the enquiry conducted in this case cannot be held to be valid and consequently the order passed thereon deserves to be quashed and set aside.
6. I need not enter into the merits of the matter or the merits of the findings arrived at in this case, in my view on the first contention advanced before me. In the light of the above view this writ petition deserves to be allowed and the impugned order deserves to be quashed.
7. Accordingly the writ petition is allowed and the order Ann. 17 is quashed and set aside. The Dy. District Development Officer is directed to hold the enquiry himself as contemplated under Sub-rule (5) of Rule 12. Pending the enquiry, Gordhansingh and Khinv Singh shall continue to be members. Parties are directed to bear their own costs. The record of the case shall be returned back to the Dy. District Development Officer, Pali.