Dharam Chand v. State of Rajasthan — 1989 DIGILAW 180 (RAJ)

M.C. JAIN, J.—By this writ petition, the petitioners seek to quash the notice issued for the meeting for the Panchayat Samiti, Deogarh to be held on 18.3.89 for consideration of No Confidence Motion against the petitioner and the petitioner has also sought relief for declaring Sec. 39(11) of the Rajasthan Panchayat Samitis & Zila Parishad Act, 1959 (for short the Act) is ultra vires to the provision of the principles of democracy as enshrine ! in the Constitution of India. 2. We may state a few facts warrant for the disposal of this writ petition. 3. The petitioner is a Pradham of Deogarh Panchayat Samiti elected on 5.7.88. A notice of intention to make motion of no confidence against the petitioner was submitted to the Collector having jurisdiction over the Panchayat Samiti along with a copy of the proposed motion. The Collector in turn issued notice to the members of the Panchayat Samiti along with a copy of the proposed motion. The notice was to the effect that the motion shall be considered in the meeting to be held in the office of Panchayat Samiti on 18.3.89 at 11.00 a.m. The petitioner has challenged the notice dated 1.3.89 (Ex. 1) whereby the Collector has called the meeting for consideration of no confidence motion on the ground that the copy of the motion does not bear the names of the members of the Panchayat Samiti, who have submitted the notice of intention to make the motion and as such, the notice is bad. 4. So far as this ground is concerned, the learned counsel for the petitioner referred to r. 3 and 4 of the Rajasthan Panchayat Samiti and Zila Parishads (Motion of no confidence in Pradhan, Up Pradhan, Pramukh, or Up Pramukh) Rules. 1961. Rules 3 and 4 of the Rules of 1961 read as under:- "3. Motion of no confidence in Pradhan, Up Pradhan, Pramukh or Up-Pramukh—A written notice of intention to make motion expressing want of confidence in Pradhan or Up Pradhan or in the Pramukh or Up Pramukh shall be in Form I to the Collector. 4. 1961. Rules 3 and 4 of the Rules of 1961 read as under:- "3. Motion of no confidence in Pradhan, Up Pradhan, Pramukh or Up-Pramukh—A written notice of intention to make motion expressing want of confidence in Pradhan or Up Pradhan or in the Pramukh or Up Pramukh shall be in Form I to the Collector. 4. Notice of Meeting:- The Collector shall send by post under certificate of posting not less than 15 clear days before the date of meeting, a notice of such meeting and of the date and the time appointed therefore, in Form II to every member of the Panchayat Samiti or the Zila Parishad, as the case may be, at his ordinary place of residence and shall at the same time cause such notice to be published by affixing a copy of it on the Notice Board of the Panchayat Samiti or Zila Parishad, as the case may be, at its office; Provided that in case of such place where there is no post office or where the service of the notice cannot be affected expeditiously, such notice shall be received through the Tehsil concerned; Provided further that incase of subsequent motion of no confidence against the Pradhan or Pramukh, a written notice shall be given to all the members of the electoral college for the election of Pradhan or Pramukh." Form-I and Form II provided under rule 3 and 4 are as under: — "FORM-I (See Rule 3) Form of the written notice of intention to expressing want of confidence. In the Pradhan/Up Pradhan of a Panchayat Samiti Pramukh/Up Pramukh Zila Parishad To, The Collector, .......................... .......................... Sir, NOTICE We, the undersigned members of the..................Panchayat Samiti/ Zila Parishad hereby give this notice to you of our intention to make a motion of no confidence in Shri.....................the Pradhan/Up Pradhan/ Pramukh/Up Pramukh of our Panchayat Samiti/Zila Parishad and also annex hereto a copy of the proposed motion of no confidence. place : Yours faithfully, Date : FORM-II (See Rule 4) Form of the notice of a meeting of the Panchayat Samiti/Zila Parishad (Electoral College) to be held for consideration of the no confidence motion agains the Pradhan/Up Pradhan/Pramukh/Up Pramukh. To, Shri..................... Member of....................Panchayat Samiti/Zila Parishad. NOTICE This notice is hereby given to you of the meeting of.......... place : Yours faithfully, Date : FORM-II (See Rule 4) Form of the notice of a meeting of the Panchayat Samiti/Zila Parishad (Electoral College) to be held for consideration of the no confidence motion agains the Pradhan/Up Pradhan/Pramukh/Up Pramukh. To, Shri..................... Member of....................Panchayat Samiti/Zila Parishad. NOTICE This notice is hereby given to you of the meeting of.......... Panchayat Samiti/Zila Parishad which shall be held at the office of the said Panchayat Samiti/ Zila Parishad on..............(date) at.......(time) for consideration of the motion of no confidence, which has been made against Shri......... the Pradhan/Up Pradhan/Pramukh/Up Pramukh of the said Panchayat Samiti/ Zila Parishad. A copy of the motion is annexed thereto. Place: Collector......................" Date: 5. If we peruse Form-II, it would appear that the Collector is required to issue notice in Form-II and a copy of the motion of no confidence has to be annexed to the notice. The question is, is there any requirement in law that the motion should be signed by the members of the Panchayat Samiti, who gave written notice of intention to make motion and the further question, is even if it is found that the original motion is required to be signed by the members of the Panchayat Samiti, who submit the notice of intention to make motion whether the Collector is required to annex a copy of such motion showing the names of such persons who have moved the motion. The relevant provision of the Act is Sec. 39(1) and (2), which reads. "39. Motion of no confidence in Pradhan or Up-Pradhan. (1) A motion expressing want of confidence in the Pradhan or the Up-Pradhan of a Panchayat Samiti may be in accordance with the provisions laid down in the following sub-sections:- (2) A written notice of intention to make the motion in such form as may be prescribed, signed by not less than one third of the total number of members of the Panchayat Samiti other than those specified to Clauses (iii) and (v) sub sec. (1) of Sec. 8 together with a copy of the proposed motion shall be delivered in person, by any one of the members signing the notice to the Collector having jurisdiction over the Panchayat Samiti." 7. A perusal of sub sec. (1) of Sec. 8 together with a copy of the proposed motion shall be delivered in person, by any one of the members signing the notice to the Collector having jurisdiction over the Panchayat Samiti." 7. A perusal of sub sec. (2) of Sec. 39 shows that a written notice of contention to make the motion is required to be signed by not less than one third of the total number of members of the Panchayat Samiti and such a written notice is required to be given along with a copy of the proposed motion. Sub-sec. (2) does not make any provisions that the proposed motion shall also be signed by one third of the total number of members of the Panchayat Samiti. What is required] to be submitted with the notice is a copy of the proposed motion. So far as serving of written notice is concerned, a specific provision has been made that it shall be signed by not less than one third of the total number of members of the Panchayat Samiti. If the rules and Forms I and II are read in the context of sub sec. (2) of Sec. 39 of the Act of 1959, it would be clear that a copy of the motion is sufficient, which is required to be annexed along with the notice under Form I and such a copy of the motion would be sufficient compliance by the Collector, if the notice of meeting is given in Form II to the mem-bers. Motion means 3 proposal made. It will be deemed that the proposal or motion has been made by the signatories, who have submitted the notice of motion. Thus, there is no requirement of law that the copy of the motion, which is annexed with the notice under form IT should also be signed by the signatories and if that requirement is not there, with respects to the original notice submitted to the Collector, such a requirement cannot be found while sending the notice of meeting by the Collector in Form II. 8. M.N. Kaul in Practice & Procedure of Parliament (Vol. II) Chapter XXVI at page 564 on Motion has stated that the term motion in its wide sense means any proposal submitted to the House for eliciting a decision of the House. 8. M.N. Kaul in Practice & Procedure of Parliament (Vol. II) Chapter XXVI at page 564 on Motion has stated that the term motion in its wide sense means any proposal submitted to the House for eliciting a decision of the House. One of the main duties of the House is to ascertain its own will in regard to various matters, and for this purpose every question to be decided by the House must be proposed by a member in the form of a motion." 9. We, therefore, find no force in the submission of the learned counsel for the petitioner that the notice (Ex. 1) is invalid on the ground that the copy of the motion annexed with the notice does not contain the names of the signatories. 10. Mr. H.M. Parekh, learned counsel for the petitioner further contended that the Pradhan of the Panchayat Samiti is elected by the electoral college consisting of; (i) the members of the Panchayat Samitis are specified in clauses (i), (ii) and (iv) of Sec. 8, (ii) all members of the Panchayat Samitis in the Block specified in Clauses (b) and (c) of Sec. 4(1) of the Act of 1953 and (iii) the Presidents of all the Gram Sabhas in the Block as provided in Sec. 12(1) of the Act. Such an electoral college elects the Pradhan of the Panchayat Samiti. Sec. 39(11) makes a provision for carrying out of no confidence motion against the Pradhan with the support of not less than two thirds of the total number of the members of the Panchayat Samiti. According to him, this provision contained in sub sec.(l 1) of Sec. 39 is violative of the principles of democracy as enshrined in the Constitution of India. According to him, it is only the electoral college, which is competent to pass no confidence motion else the principle of democracy as enshrined in the Constitution violated. 11. So far as the above argument is concerned, we have not been able to comprehened as to how the provision of sub sec. (11) of Sec. 39 is un democratic, the Pradhan is elected for the Panchayat Samiti and the Panchayat Samiti is constituted by its members. The Panchayat Samiti is constituted under Sec. 7 for a block declared in Sec. 6 and according to sec. (11) of Sec. 39 is un democratic, the Pradhan is elected for the Panchayat Samiti and the Panchayat Samiti is constituted by its members. The Panchayat Samiti is constituted under Sec. 7 for a block declared in Sec. 6 and according to sec. 8 the Panchayat Samiti shall consist of (i) Sarpanchas of all Panchayats in the Block, (ii) Members of the Legislative Assembly, (iii) Sub Divisional Officer with no right to vote, (IV) Members elected by the President of all the Gram Sabhas in the Block, (v) Co-opted members and (vi) Associate members. The Pradhan will continue to enjoy confidence with the support of not less than two thirds of the total number of the members of the Panchayat Samiti. The Panchayat Samiti can properly function. If 2/3rd members of the Panchayat Samiti have no confidence in the Pradhan, then no confidence motion can be passed against the Pradhan. In the interest of Panchayat Samiti, itself, it is essential that some process should be provided, whereby no confidence motion can be carried out against the Pradhan when he has lost confidence of the members of the Panchayat Samiti. No specific provision of the Constitution has been referred to by the learned counsel for the petitioner with reference to which it can be said that such a provision like provision under sub-sec (11) of Sec. 39 is violative of the principle of democracy. For consideration of the principle of democracy, Mr. Parekh referred to the Second proviso to rule 4, which lays down that in case of subsequent motion of no confidence against the Pradhan, a written notice should be given to all the members of the electoral college for election of Pradhan. On the basis of this proviso, it cannot be found that so far as the carrying out of the motion of no confidence is concerned, the provision made in sub sec. (1) of Sec. 39 is violative of the principle of democracy. The Second proviso deals with the situation, so that, there may be no mis-use of the provision of no confidence. When a second motion of no confidence against the Pradhan or Up Pradhan, and Pramukh or Up Pramukh is moved, the second proviso lays down that a written notice shall be given to all the members of the electoral college. 12. When a second motion of no confidence against the Pradhan or Up Pradhan, and Pramukh or Up Pramukh is moved, the second proviso lays down that a written notice shall be given to all the members of the electoral college. 12. We have been referred to a Single Bench decision of this Court by the learned counsel for the respondent No. 4 and 5, which deals with the validity of Sec. 19 of the Rajasthan Panchayat Act, 1953. The decision is Kurda Ram etc. vs. State of Rajasthan (1). That case related to no confidence motion against the Sarpanch under the provisions of the Rajasthan Panchayat Act. A somewhat similar situation arose in that case. The learned Single Judge dealt with the question in paras 11, 12, 13 and 15. The learned Single Judge observed that it is in the wisdom of the legislature to provide any procedure or requirement for election, removal, no confidence motion or such other matters. A provision of the Act can only be ultra vires, if either it is beyond the scope of the legislature or it contravenes any other provision of the Constitution and it was concluded that sec, 19 is in no way hit or violative of the provisions of the Constitution. It was observed that this Court cannot decide what should be the democratic process and the controversy is wholly outside the power under Art. 226 of the Constitution. How the Panchayat Samiti should be run after being constituted is entirely within the domain of the legislature. To make provisions relating there to the legislature in its wisdom thought it proper that so far as, no confidence motion is concerned, it should have the support of atleast 2/3rd members of the Panchayat Samiti. In the light of what we have considered above, in our opinion, the above contention of the learned counsel for the petitioner is devoid of any merit. 13. Learned counsel for the petitioner further urged that the motion of no confidence has been moved malafide at the instance of the respondent No.4 Shri Laxmansingh, Minister in the Government of Rajasthan and under his influence. The allegation is vague and a bald one. The same has been traversed and refuted by the respondent No. 5. 13. Learned counsel for the petitioner further urged that the motion of no confidence has been moved malafide at the instance of the respondent No.4 Shri Laxmansingh, Minister in the Government of Rajasthan and under his influence. The allegation is vague and a bald one. The same has been traversed and refuted by the respondent No. 5. There is no material on the basis of which it can be said that the signatories and other members would not exercise their votes freely If the motion is carried out then it will be taken that 2/3rd members have exercised their right of vote freely. It is easy to make allegation of mala fide but is difficult to substantiate. Mere allegation is not enough. This ground of challenge is, therefore, absolutely unfounded. 14. No other point has been pressed before us. 15. In the result, this writ petition has no force, so, it is hereby dismissed summarily.