1. This is an application by Maluram under Article 226 of the Constitution.
2. Briefly put the case of the applicant is that he was Sarpanch of Tehsil PanchayatLunkeransar. The Panchas of the Panchayat passed a motion of no-confidence against him on the 13th October, 1955. The applicant contend ed that this motion of no confidence was illegal in view of the provisions of Section 19 of the Rajas-than Panchayat Act, 1953, read with Section 58 (3) of the Act.
According to the applicant, Section 19 requires that 3/4ths of the total number of Panchas have to concur before a vote of no-confidence is passed and this includes the Surpanch also as a Panch. In the present case the Tehsil Panchayat consisted of a Sarpanch and 8 Punches, i. e., the total number of Panchas was 9. 3/4ths of that is 63. Therefore, according to the applicant, at least 7 panchas should have voted in favour of the motion of no confidence. Actually only sis Panchas voted in this case in favour of the motion and the applicant, therefore, contends that he has not been removed under the 'law.
3. The main question that calls for consideration is whether the words 'total number of Punches' appearing in Sub-section (2) of Section 19 include Sarpanch or not. If they do include the Sarpanch. the motion in this case has not been passed as required by Sub-section (2). If they do not include the Sarpanch, and this is the contention on behalf of the State, then the motion must be deemed to have been passed as required by Sub-section (2) of Section 19.
4. In this connection we have been referred to Section 2 (3) which defines a 'panch', Section 21 (4), Section 58 (1) and Section 58 (5) of the Panchayat Act.
5. It is not necessary to set out these sections in detail. It is enough to say that there is a lot of confusion in these provisions, and one cannot say with certainty whether the word 'Panch' includes 'Sarpanch' everywhere. For example. Sub-section (4) of Section 21 mentions that the quorum would be one-third of the whole number of Panchas including the Sarpanch.
According to this sub-section 'Sarpanch would not be included within the word 'Panch'; but the definition provides that 'Panch' means a member of a Panchayat, and if this definition were to prevail, a Sarpanch would certainly be a member of the Panchayat, for there is no separate definition of the word 'Sarpanch'. Then S, 4 refers to number of Panchas in Village Panchayats and provides that a Panchayat shall consist of such number of Panchas, not being less than 5 or more than 15, as the State Government may think fit.
Now this section obviously does not contemplate that the Sarpanch would be over and above the number of panchas fixed under Section 4. Therefore, so far as village Panchayats are concerned, we may safely come to the conclusion that, a Sarpanch is included in the words 'total number of Panchas' used in Sub-section (2) of Section 19.
A Sarpanch is a member of a village Panchayat and is al'so a Panch within the meaning of that word as used in Section 4. It has, however, been urged by the opposite parties that Section 58 is different inasmuch as it provides for the establishment of a Tehsil Panchayat consisting of a Sarpanch and six to eight Panchas. The wording of this section is certainly different from the wording of Section 4.
Similarly, Section 58 (5) provides for a quorum and lays down that the quorum shall consist of a Sarpanch and four Panchas or any five Panchas. But though these two provisions in Section 53 have used the word 'Sarpanch' separately fromthe word 'Panch', it still has to be seen whether the words 'total number of Panchas' appearing in Section 19 (2) have a different meaning when they are applied to a Tehsil Panchayat, for this section applies mutatis mutandis to Tehsil Panchayats by virtue of Section 58 (3).
The position is not quite clear or happy in view of the drafting of the section but on a careful consideration of the provision of Sub-section (2) of Section 19 with reference to Tehsil Panchayats, we think that the words 'total number of Panchas' appearing in that section must include 'Sarpanch' also. The word 'Panch', therefore, must be taken to mean a member of a Panchayat and a Sarpanch, whether he is of a Tehsil Panchayat or of the village Panchayat is obviously a member of the Panchayat.
It may also be pointed out that if a Sarpanch is not included in the words 'total' number of Panchas'' appearing in Section 19 (2) so far as Tehsil Panchayat is concerned. the Sarpanch would have no right to table a motion of no confidence or even to vote in a meeting convened for that purpose. It could hardly be the intention Of the Legislature that the Sarpanch of a Tehsil Panchayat should thus be disenfranchised. In these circumstances we must take the words 'total number of Panchas' appearing in Sub-section (2) of Section 19 to mean in the case of a Tehsil-Panchayat also the total membership of the Panchayat which also includes the Sarpanch.
6. The result of this is that the present resolution of no-confidence was not passed by the requisite majority, as seven votes would be required out of a total membership of 9 to pass a resolution by not less than 6 3/4 of the total membership. The applicant was granted a stay order and has not been removed.
In these circumstances, we allow the application and order that the motion of no confidence is not in accordance with Section 19 (2), and, therefore the applicant cannot be removed from the office of Sarpanch by virtue of that motion.
7. So far as costs are concerned, it is enoughto say that in view of such a majority againstthe, applicant, we are not prepared to allow himcosts. We should have thought that he wouldresign rather than come to us for technical assistance.