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Rajasthan High Court
S.K. Mal Lodha J.
Hukam Singh - Appellant
Versus
State of Rajasthan - Respondents
S.B. Civil Writ Petition No. 644 of 1983
Decided On : August 25, 1983
It is correct that there was no voting by secret ballots, but the question is whether it is so contemplated by s. 39, which deals with motion of no-confidence against Pradhan or Up-Pradhan. Whether any secrecy is contemplated under sec. 39 or not ? Sub-sec. (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 1/3 of the total members of the Panchayat 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 /3 members of the Samiti. Debate on the no-confidence motion at the meeting is also envisaged and it is only thereafter that it is put to vote. It was made as required by sub-sec. (2) of sec. 39 of the Act. The Collector followed the procedure laid down in sub-sec. (3) of sec. 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 of 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 malafides on the part of non-petitioners No. 3,4 and 5. The position, therefore, remains that the motion of no-confidence was passed against the petitioner in accordance with s. 39 (11) of the Act. This shows that the petitioner has lost confidence of the members of the Panchayat Samiti. (Paras 7, 11 & 19)
In sec. 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 s. 39 (2), 6 and 8, it is clear that being a motion of non-confidence and not relating to election of Sarpanch or Up-Sar-panch, 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. In this case, what is provided under sec. 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. (Paras 10 & 11)
(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-sec. (3) of sec. 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 pradhan of the Panchayat Samiti, Jaitaran. It has been stated that a no-confidence motion Ex. P2 dated January 11, 1983 was presented on January 25, 1983 and was delivered to the Collector, Pali (non-petitioner No. 2). Non-petitioner No. 2 Collector, Pali issued notice to the Panchayat Samiti, Jaitaran on January 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 summerily on Feb 8, 1983 as pre- mature. 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, Office Assistant, Office of the Additional Collector, Pali-Marwar (non-petitioner No.5) obtained signatures of 34 members of the Panchayat Samiti, Jaitaran on minutes proceedings. The petitioner gave objection Ex.P 8 on that day at about 1 p.m. One of the objections was that co-opted members should not be 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; (1) 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. P10 and after 3.10 p.m. the Additional Collector called upon the members to sign the minute proceedings. As the procedure of obtaining the signatures unusual, the petitioner has stated that six members including himself walked out. The no-confidence motion was carriee out The petiti-oner has filed the writ petition for quashing the no-confidence motion Ex. P 10 dated Feb. 14, 1983 and also for a direction to the Collector Pali for convening the meeting in accordance with the provisions of the Act. A prayer was also made that sub-sec. (8; of s. 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 Sura Ram, Pradhan, Panchayat Samiti, Jaitaran. A reply was filed on his behalf. Subsequently, an application was moved by the learned counsel for the petitoner 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 purposes of admission remained p
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