Judgment Lodha, J.-By order dated September 7, 1979, learned single Judge of this Court has referred the following question:-“Whether after coming into force of Rule 12 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961, disqualification under Section 17 (2) of the Rajasthan Panchayat Act (No. XXI of 1953) is not automatic and the seat of a particular Panch becomes vacant when a declaration is made under Rule 12 (4) of the aforesaid Rules”? On the above reference having been made, the Hon’ble Chief Justice by order dated 19th October, 1979, has directed that it should be considered and decided by this Bench.

2. The facts leading to this reference have been given in detail in the order of reference and, therefore, need not be repeated. It would be sufficient to mention that Gandharb Sain, a Panch of village Panchayat 1 6BB district Ganganagar, has filed the writ application for getting the resolutions of the Gram Panchayat D/-28-7-78, 14-8-78. 28-8-78 and the order of Addl. District Development Officer dated 18th of December, 1978 by which his seat has been declared vacant, quashed by a writ of certiorari under Article 226 of the Constitution of India. The petitioner’s case is that he did not absent himself from 5 consecutive meetings of Gram Panchayat and the seat did not become vacant under the provisions of Section 17 (2) of the Act.

3. The order of the Addl. D. D. O., Ganganagar, dated 18th December 1978 (Annexure 4) declares the seat of Gandharb Sain as Panch vacant on the ground that he remained absent from the meetings of the Panchayat on14-5-78, 28-5-78. 14-6-78, 28-7-78, 14-7-78, 28-7-78and 14-8-78,inaddition tothemeeting dated 28-8-78. The Addl. D.D.O. also held that the notices of the meetings were duly given to the petitioner according to the rules and the plea of the Panch that Sarpanch has manipulated these false proceedings on account of enmity has not been proved.

4. In the writ application, various contentions have been raised by the petitioner regarding the non-compliance of Rule 12 of the Rajasthan Panchayat Rules. The respondents contended before the learned single Judge that the declaration of vacancy of the seat by the Panchayat under Section 17 (2) is automatic and is not dependent upon the compliance of Rule 12. The learned single Judge having heard the arguments of the learned Counsel for the parties, considered the judgments of this Court in Ladhuram vs. The Chief Panchayat Officer, Rajasthan, Jaipur. (ILR(1961) 11 Raj219), Vishwanath vs. The State (ILR(1957) 7 Raj241) : (AIR 1957 Raj 75) and Devjeet vs. Gram Panchayat, Pingora (1968 RLW 231). The judgment of Nandram vs. The State of Rajasthan (ILR (1965) 15 Raj 746) was also considered. He was of the opinion that the principle laid down in Nand Ram’s case and Devjeet’s case cannot be reconciled.

5. The learned single Judge extracted the following observations from the judgment of Nandram vs. The State of Rajasthan (ILR (1965) 15 Raj 746) :-“Before the enforcement of the above rule, it was held by this Court in Ladhuram vs. The Chief Panchayat Officer that the disqualification under Section 17 (2) was automatic. But after the coming into force of Rule 12, the disqualification is no longer automatic. It is only when the Panchayat makes a declaration under Rule 12

(4) that the seat of a particular Panch has become vacant, that the disqualification comes into force.” He also extracted the following observations from the judgment of Devjeet’s case (1968 RLW 231) :-“Section 17 (2) of the Act lays down that the absence of a member of the Panchayat at five consecutive meetings will result in the vacation of the seat by him. Therefore, Rule 12 cannot be so interpreted as to affect the legal result envisaged by Section 17 (2) of the Act as a result of the continued absence of a member for five consecutive meetings of the Panchayat. In a case, therefore, where it cannot be said that five consecutive meetings were not held and also the member of

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