( 1 ) RULE. Shri P. R. Abichandani, the learned AGP waives service of Rule on behalf of the respondent Nos. 1 and 3. Shri Dhaval C. Dave, the learned advocate waives service of rule for respondent No. 5. With the consent of the learned advocates for the parties, the matter was heard finally and the matter is CAV for prouncement of judgment. . RS 2.

( 2 ) IN this petition under Article 226 of the Constitution of India, a short but an interesting question of law has arisen to the effect that "at the time of consideration of No Confidence Motion against the Sarpanch as envisaged under Section 56 of the Gujarat Panchayats Act, 1993 [ hereinafter referred to as "the Act" ] and for consideration of strength of two-third, whether a vote of the Sarpanch is required to be counted or not ?"

( 3 ) THOUGH against the impugned decision of the Taluka Development Officer dated 5. 1. 2005, the petitioners had preferred an appeal before the Appellate Committee of the District Panchayat, Valsad, however in view of the question of law which has arisen in the present special civil application, the learned advocates appearing for the parties requested to decide and dispose of the present special civil application on merits and to consider the legality and validity of the decision of the Taluka Development Officer, Umbergaon dated 5. 1. 2005 on merits and that is how, the present special civil application is being disposed of on merits considering the legality and validity of the decision of the Taluka Development Officer, Umbergaon dated 5. 1. 2005.

( 4 ) THERE were in all 29 members of Umbergaon Gram Panchayat, out of which, one seat has fallen vacant and therefore, in all there are 28 members of Gram Panchayat and one Sarpanch. Facts reflect that 19 members of the Panchayat moved a no confidence motion against the respondent No. 5 - Sarpanch of Umbergaon Gram Panchayat (hereinafter referred to as the "panchayat" ) as required under Section 56 of the Act and it is the case of the petitioners that 19 (nineteen) members cast their votes in favour of no confidence motion and 9 (nine) members cast their votes against the no confidence motion (inclusive of one vote of respondent No. 5 as Sarpanch ) and one member remained neutral, means, he did not cast his vote either in favour of no confidence motion and / or against the no confidence motion. The Taluka Development Officer, Umbergaon ( for short referred to as "tdo" ) was of the opinion that considering strength of 28 members plus one Sarpanch i. e. against 29 members / votes considering the provisions of Section 56 of the Act, Resolution for no confidence motion is required to be passed by not less than two-third and accordingly, 20 votes are required in favour of no confidence motion, against which, there were only 19 votes cast in favour of no confidence motion and therefore, no confidence motion has failed and is not carried out and therefore, a report was sent by the TDO, Umbergaon to the District Development Officer, Valsad ( for short "ddo" ) to that effect. Being aggrieved and dissatisfied with the said decision of the TDO, Umbergaon dated 5. 1. 2005, the petitioners members of Panchayat 19 in numbers have preferred the present special civil application under Article 226 of the Constitution of India for an appropriate writ, direction and order in the nature of certiorari quashing and setting aside the decision of the Taluka Development Officer dated 5. 1. 2005 and further prayed for appropriate writ, direction and order in the nature of mandamus directing the respondent Nos. 1 to 4 to forthwith take charge of the office of Sarpanch, Umbergaon Gram Panchayat from the respondent No. 5 and further directing the respondent No. 5 not to act as Sarpanch, Umbergaon Gram Panchayat.

( 5 ) SHRI R. S. Sajanwala, the learned advocate appearing on behalf of the petitioners has submitted that as per sub-section (2) of Section-56 of the Act, where in case of the Sarpanch or, as the case may b