JUDGMENT 1. 1. Petitioner was elected as a Zila Pramukh and was working as Zila Pramukh of Zila Parishad, District Dausa. 2. A notice to intend for moving no confidence motion under Section 37 of the Panchayati Raj Act 1994 has been moved against the petitioner. Notice dated 11.4.2002 was served upon the petitioner along with the letter of intent whereby it was informed that meeting for no confidence motion is proposed to be held on 19.4.2002 at 10.00 a.m, in the office of the Zila Parishad Dausa, Alongwith the aforesaid notice dated 11.4.2002 the copy of the resolution was also annexed. 3. This notice dated 11.4.2002 has been challenged by this writ petition. 4. The matter was listed on 23.4.2002 before the Court, After looking to the controversy as has been raised in the present petition the matter was posted for final disposal at admission stage and learned AAG Mr. Mohd. Rafipq was also directed to keep the entire original record ready for perusal of the Court if necessary. The interim order passed on 18.4,2002 was ordered to be continued till next date. 5. The matter was fixed on 9.5.2002. Mr. Mohd. Rafiq AAG has submitted that he has already summoned the ballot box and further requested that since the matter is posted for hearing on 15.5.2002 the ballot box be kept under double lock with the Deputy Registrar Judl.). 6. On 15.5.2002 in view of the direction of this Court Shri Madan Mohan Sharma A.D.M. and Shri Hari Mohan Meena Addl. C.E.O. Zila Parishad, Dausa were present in person along with the ballot box. The ballot box was opened in the presence of the officers in the Court and counted the ballot in presence of the lawyers of the respective parties. 7. Total 20 voters participated in no confidence motion proceedings and all were casted in favour of no confidence motion and none against it. Thus the no-confidence motion is carried out by majority. The ballot box was returned back to the A.D.M. and the matter was ordered to be listed for final disposal at admission stage on 21.5.2002. 8. The matter was listed on various dates and arguments advanced on behalf of the respective parties were heard at length. Thus the no-confidence motion is carried out by majority. The ballot box was returned back to the A.D.M. and the matter was ordered to be listed for final disposal at admission stage on 21.5.2002. 8. The matter was listed on various dates and arguments advanced on behalf of the respective parties were heard at length. On 20.9.2002 after completion of the oral submissions made by the respective parties they were also allowed to exchange written submissions, After receipt of written submissions the matter comes up for dictation on 10.12.2002. 9. The petitioner challenged the notice dated 11.4.2002 on various grounds as the notice dated 11.4.2002 (Annex.1) was bad in the eye of law. 10. Learned counsel for the petitioner Mr. Bajrang Lal Sharma Sr. Adv. referred to Section 37 of Panchayati Raj Act 1994 wherein procedure for the purposes of taking a motion for no confidence in Chairperson etc. has been given. 11. As per the provisions of Section 37(2) of the Act it is specifically provided that (a) a written notice of intention (b) signed by not less than one-third of the directly elected members (c) accompanies with proposed motion (d) shall be delivered in person by any one (e) to the competent authority. 12. Learned Sr. counsel Mr. Bajrang Lal Sharma has given much emphasis to the word competent authority and referred Section 2(vii) by which "Competent Authority' means such officer or authority as the State Government may, by notification in the Official Gazette, appoint to perform such functions and exercise such powers of a Competent Authority with respect to such provisions of this Act and in relation to such Panchayati Raj Institutions as are specified in the notification. 13. He further submits that in this behalf the notification dated 12.12.94 has been issued and published in Rajasthan Gazette Extraordinary dated 26.12.94. In this notification at Sl. No. 9 shows that power of the competent authority under Section 37(2) of the Act have to be exercised by the Chief Executive Officer of the Zila Parishad and this notification has been issued while exercising powers conferred under Section 2(vii) and still has not been superseded, modified or amended till date. 14. In support of his contention he placed reliance on the cases of State of UP Vs. Singharas & Ors. reported in AIR 1964 Supreme Court 358 pars 8 and State of Punjab Vs. 14. In support of his contention he placed reliance on the cases of State of UP Vs. Singharas & Ors. reported in AIR 1964 Supreme Court 358 pars 8 and State of Punjab Vs. Hari Kishan reported in AIR 1966 Supreme Court 1081 Para 13 , Sampurana Singh Vs. State of Punjab reported in AIR 1982 Supreme Court 1407 , Wahidullah Khan Vs. District Magistrate reported in AIR 1993 Allahabad 249 (FB) , State Maharashtra Vs. Marwanjee Desai reported in (2002) 2 SCC 318 , Mohan Lai Tripathi Vs. Distt. Magistrate reported in AIR 1993 Supreme Court 2042. 15. After referring the aforesaid judgments learned counsel for the petitioner submits that powers vested for the purpose of taking action and initiating this no confidence motion has to be exercised by the competent authority which has been conferred with such powers. 16. Thus, being settled proposition of law that issue of notice by a person who did not have the authority to initiate the same, the same has to be moved by a particular person. As in the instant case, since the issuance of the notice for convening a meeting for no confidence motion itself was bad in eye of law and without jurisdiction as such whole action of the respondents is liable to be set aside. 17. On behalf of respondents learned AAG Mr. Mohd. Rafiq has submitted that notice of no confidence motion was served upon the Development Commissioner by 16 members of the Zila Parishad who appeared before the Development Commissioner on 19.4.2002 and matter was proceeded on the basis of this notice. Service of the notice was effected on all the members on 11.4.2002. Meeting of Zila Parishad for no confidence motion was convened on 19.4.2002. 20 members participated in no confidence motion and all 20 members voted against the petitioner and in favour no-confidence motion. 18. Mr. Mohd. Rafiq AAG further submits that as per the provisions of Section 37(3) of the Raj. Panchayati Raj Act a notice of clear 7 days was served upon the members and service of the notice was effected on all the members on 11.4.2002. He further submits that in the amended provisions of Section 37 instead of 15 days notice of clear 7 days is now required to be served upon the members. 19. Panchayati Raj Act a notice of clear 7 days was served upon the members and service of the notice was effected on all the members on 11.4.2002. He further submits that in the amended provisions of Section 37 instead of 15 days notice of clear 7 days is now required to be served upon the members. 19. With regard to the competent authority as referred in Section 37 of the Act is to be prescribed by the State Government by notification in the official Gazette as stipulated under Section 2 sub-section (vii). 20. Mr. Rafiq AAG submits that the State Government had vide notification dated 26.12.94 has at item No. 9 prescribed Chief Executive Officer as the competent authority. 21. On behalf of the respondents an affidavit was filed on 20.8.2002 to place on record the notification dated 22.1.2002 whereby the earlier notification dated 12.12.94 on which reliance is placed by the petitioner has been superseded. In this notification all those entries in the earlier notification with respect to which the competent authority has been named under the Rules of 1996 have been omitted and 10 such authorities in respect of certain specified provisions have been described as competent authority by recourse to the provisions of Section 2(vii) of the Raj. Panchayati Raj Act, 1994 for which the Rules are silent. 22. It is also given out by learned AAG Mr. Mohd. Rafiq that the notification on the basis of which the petitioner is seeking to make this argument with regard to the competent authority itself has been superseded and secondly the Government has by notification duly published in the Official Gazette promulgated Raj. Panchayati Raj Rules. Rule 21 of the Rules has therein described Development Commissioner as the competent authority to receive notice of no confidence motion against a Zila Pramukh. 23. Objection as raised by the petitioner that photostat copy of the notification dated 22.1.2002 would not be sufficient until it was shown that this notification was published in the Gazette also. To meet out this objection the respondents have produced the Gazette Notification dated 22.1.2002 which was duly published in the Rajasthan Gazette (Extraordinary) published on Tuesday January 29, 2002. 24. To meet out this objection the respondents have produced the Gazette Notification dated 22.1.2002 which was duly published in the Rajasthan Gazette (Extraordinary) published on Tuesday January 29, 2002. 24. Since the subsequent notification dated 22.1.2002 duly published in the Rajasthan Gazette and issued by the Competent Authority in view of Section 2 sub-section (vii) of the Rajasthan Panchayati Raj Act and such notification is sustainable even if the wrong provision has been cited in the notification so issued. 25. In this connection he placed reliance on the judgment of B.S.E. Framers Forum Bombay Vs. Securities and Exchange Board of India and Ors., reported in 2001(3) SCC 482 and more particularly referred para 22 of the judgment. 26. In support of his argument learned AAG also placed reliance on the judgments reported in C.I.T. Bombay Vs. Gwalior Reyon Singh paras 10 & 13 1992(3) SCC 326 , Commissioner of Income Tax Jullundur Vs. Ajanta Electricals Punjab 1995 (4) SCC 182 , State of Karnataka Vs. B. Suvarna Malini - Head Note B, 2001 (1) SCC 728 , Union of India Vs. E.I.D Parry (India) Limited 2000(2) SCC 223 and Bank of Baroda Vs. Redham Wagacbaya Devi 1989 (4) SCC 470 . 27. An application has been moved through counsel Mr. N.K. Joshi for Mahendra Sankhla and Mr. Vinod Kumar Sharma. After hearing the arguments on the application vide order dated 18.4.2002 the application was allowed and applicants were ordered to be impleaded as a party-respondents. Learned counsel for the applicant was also given liberty to file reply to the writ petition if he chooses to file the same. Learned counsel for the newly arrayed respondents has not filed any reply to the writ petition and only made oral submissions and submits that present matter has been filed by the petitioner without impleading other members of the Zila Parishad as party respondents although they are necessary party in the writ petition. For the rest Mr. N.K. Joshi adopted the arguments advanced on behalf of learned AAG Mr. Mohd. Rafiq. 28. Heard rival submissions of the learned counsel for the respective parties and carefully gone through the material available on the record as well as the relevant provisions of Raj. Panchayati Raj Act 1994 and Raj. Panchayati Raj Rules 1996 as well as the judgments referred by both the parties. 29. Mohd. Rafiq. 28. Heard rival submissions of the learned counsel for the respective parties and carefully gone through the material available on the record as well as the relevant provisions of Raj. Panchayati Raj Act 1994 and Raj. Panchayati Raj Rules 1996 as well as the judgments referred by both the parties. 29. Since much emphasis which has been given by learned counsel for the petitioner is that the notice for no confidence motion has been issued in contravention of the provisions of Raj. Panchayati Raj Act 1994 and Rules 1996, it is necessary to examine the relevant provisions to decide this question. 30. In Section 2 sub-section (vii) of the Raj. Panchayati Raj Act 1994 the definition of Competent Authority has been given which reads as under : "Competent Authority" means such officer or authority as the State Government may, by notification in the official Gazette, appoint to perform such functions and exercise such powers of a Competent Authority with respect to such provisions of this Act and in relation to such Panchayati Raj Institutions as are specified in the notification. 31. By bare perusal of Section 2 sub-section (vii) competent authority means such officer or authority appointed by the State Government by issuing notification and by published notification in official Gazette meaning thereby State Government may by notification in the official Gazette appoints competent authority. 32. I also carefully examined the notification issued under Section 2 sub-section (vii) to appoint Competent Authority dated 12.12.94. As per Section 37 sub-section (2) motion for no confidence against Pramukh and Up-Pramukh the Chief Executive Officer of Zila Parishad has been appointed as Competent Authority. 33. I also perused the subsequent notification dated 22.1.2002 published in Extraordinary Gazette Notification dated 29.1.2002. By publication of this notification dated 22.1.2002 earlier notification dated 12.12.94 has been superseded. Therefore, earlier notification dated 12.12.94 after supersession cannot be looked into for the purpose of competent authority as also specific provision has been made under Rule 21. The Rule 21 of Raj. By publication of this notification dated 22.1.2002 earlier notification dated 12.12.94 has been superseded. Therefore, earlier notification dated 12.12.94 after supersession cannot be looked into for the purpose of competent authority as also specific provision has been made under Rule 21. The Rule 21 of Raj. Panchayati Raj Rules 1996 is herewith reproduced as under : Notice of motion of No-confidence (1) A written notice of intention to make motion expressing want of confidence under section 37 in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution shall be in Form I and shall be delivered to Chief Executive Office/Zila Parishad in case of Sarpanch/ Up-Sarpanch, Pradhan/Up-Pradhan and to the Development Commissioner in case motion is against Pramukh/Up-Pramukh. (2) Notice of meeting shall be sent by the Chief Executive Officer/ Development Commissioner by post under certificate of posting not less than 15 clear days before the date of meeting and the date and the time appointed therefore in form II to every directly elected Panch/Member at his ordinary place of residence. Copy of such notice shall also be put on the notice board of such Panchayati Raj Institution : Provided that in case of a place where there is no post office, or where service of the notice cannot be affected expeditiously, such notice shall be served through Tehsildar concerned. 34. Upon perusal of Rule 21 it reveals that a written notice of intention to make motion expressing want of confidence under Section 37 in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution shall be delivered to Chief Executive Officer in case of Sarpanch/Up-Sarpanch, Pradhan/Up-Pradhan and to the Development Commissioner in case motion is against Pramukh/Up- Pramukh. In the Instant case also the notice of the no confidence motion has been delivered to Development Commissioner as the no confidence motion moved against Zila Pramukh. 35. Earlier notification dated 12.12.94 has been superseded with the note that since Chief Executive Officer is working under the Zila Pramukh and Up-Pramukh they may be influenced by the Zila Pramukh and Up-Pramukh, to resolve this controversy this provision itself has been incorporated wherein Competent authority itself has been defined under Rule 21 and Development Commissioner is intended as a competent authority in case the motion is against the Pramu-p-Pramukh. 36. I also gave my thoughtful consideration on Section 2 (vii) and Rule 21. 36. I also gave my thoughtful consideration on Section 2 (vii) and Rule 21. After considering Section 2 sub-section (vii) and Rule 21 as well as subsequent notification dated 22.1.2002 it reveals by perusal of notification dated 22.1.2002 that the earlier notification which has been issued on 12.12.94 has been superseded. By this notification the State Government has appointed a competent authority to discharge the power under Sections of Raj. Panchayati Raj Act but has not given any reference to Section 37 of the Act as it was already incorporated in the Rule 21 itself. 37. In view of this fact Section 2 sub-section (vii) has been fully complied with as the State Government was empowered to appoint competent authority by way of Gazette Notification or by way of making Rules which are also duly published in the official Gazette. In view of this fact the arguments advanced on behalf of the petitioner that written notice of intention to make motion has not been made to the competent authority as stipulated under Section 2 sub-section (vii) is not tenable as it is already notified in the Gazette by way of promulgation in the Rules of Raj. Panchayati Raj Rules, 1996 and Development Commissioner in the instant case is a competent authority as the motion is against the Zila Pramukh. 38. I also examined Section 37 of the Act which reads as under : Motion of No confidence in chairpersons and deputy chairpersons : (1) A motion expressing want of confidence in the chairperson or deputy chairperson of a Panchayati Raj' Institution may be made in accordance with the procedure laid down in the following sub-section. (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 directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered in person by any one of the members signing the notice to the competent authority. (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 directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered in person by any one of the members signing the notice to the competent authority. (3) The competent authority shall:- (i) forward a copy of the notice, together with a copy of the proposed motion to the Panchayat in the case of a Sarpanch or Up-Sarpanch, to the Panchayat Samiti, in the case of a Pradhan or Up-Pradhan and to the Zila Parishad in the case of a Pramukh or Up-Pramukh; (ii) convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (1) was delivered to him; 39. A motion expressing want of confidence in the Chairperson as in the instant case against Zila Pramukh proposed motion shall be delivered to a competent authority which is admittedly as per the Rule 21 the Divisional Commissioner is competent authority and same has been delivered to the Divisional Commissioner and in view of the Section 37 sub-section 3 forwarded a copy of notice together with a copy of proposed motion to Divisional Commissioner Jaipur as motion is moved against Zila Pramukh. Notice to all the members of Zila Pramukh has been issued under sub-section 3 (ii) of Section 37 as the time period to give the notice to the members was reduced by notification dated 6.1.2000 in Rajasthan Government Gazette Extraordinary Part 4 (Kha) with immediate effect and period was reduced to 7 clear days of such meeting. 40. Arguments advanced on behalf of the petitioner that instead of 15 days notice, 7 days notice has been issued which is contrary to the provisions of Section 37 is not tenable. As stated hereinabove the earlier 15 days notice subsequently by notification dated 6.1.2000 has been amended and only 7 clear days notice is required. In the instant case it is not disputed that notice or intention of no confidence motion which has been issued by the respondents was issued for 7 clear days. 41. As stated hereinabove the earlier 15 days notice subsequently by notification dated 6.1.2000 has been amended and only 7 clear days notice is required. In the instant case it is not disputed that notice or intention of no confidence motion which has been issued by the respondents was issued for 7 clear days. 41. I also examined on the basis of material available on the record as well as in view of the provisions of Section 37, Rule 21 and Section 2 sub-section (vii) and after careful examination it is found that respondents have fully complied with the procedure laid down under Section 37 of the Act and under Rule 21 of the Rules. 42. Upon careful perusal of the judgment reported in AIR 1964 Supreme Court 358 Para 8 (State of UP Vs. Singharas & Ors. ) wherein the Hon'ble Apex Court has laid down the principle that where power is given to do certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. 43. The power to initiate no confidence motion against Zila Pramukh is given under Section 37 and procedure has been laid down under Rule 21. For the purpose of Section 37 the competent authority has been mentioned. In view of the procedure laid down under Section 37 and Rule 21 in the instant case authorities have acted absolutely in accordance with the provisions of law and more particularly in accordance with the procedure given in Section 37 and Rule 21. 44. In case of State of Punjab Vs. Hari Kishan reported in AIR 1966 Supreme Court 1081 Para 13 the Apex Court has held that the licensing authority has to function while exercising its powers under Section 5(1) (2) and the functions which are to be discharged by that licensing authority, have to be done by the said licensing authority and the Government cannot usurp his functions since the legislature contemplates the powers to be exercised by such licensing authority. 45. Same view has been expressed by Hon'ble Apex Court in the case of Sampurna Singh Vs. State of Punjab reported in AIR 1982 Supreme Court 1407 Para 12, 13, 14, 15 and in case of Wahidullah Khan Vs. Distt. Magistrate reported in AIR 1993 Allahbad 249 (FB). 46. The judgment of State of Maharashtra Vs. 45. Same view has been expressed by Hon'ble Apex Court in the case of Sampurna Singh Vs. State of Punjab reported in AIR 1982 Supreme Court 1407 Para 12, 13, 14, 15 and in case of Wahidullah Khan Vs. Distt. Magistrate reported in AIR 1993 Allahbad 249 (FB). 46. The judgment of State of Maharashtra Vs. Marwanjee Desai reported in 2002 (2) SCC 318 head Note-C wherein the Hon'ble Apex Court has held that true intent of the legislature is to be gathered and deciphered in its proper spirit having due regard to the language used therein and no external aid is permissible for interpretation, 47. After carefully gone through the judgment of Hon'ble Supreme Court and applied to the facts and circumstances of the present case it reveals that competent authority has mentioned in Rule 21 itself and it cannot be interpreted merely because under Section 2 sub-section (vii) it is given the power to the State Government to appoint competent authority by publishing in Gazette Notification as already has been incorporated in Rule 21. The Rules are also duly published in Extraordinary Gazette Notification. 48. Upon perusal of the judgment of Mohan Lal Tripathi Vs. Distt. Magistrate reported in AIR 1993 Supreme Court 2042 it is no doubt that the elected representative is neither fundamental nor common law right but a special right created by the statute. Since under the Statute Section 37 is incorporated under which no confidence motion can be moved and since the petitioner has not challenged the validity of Section 37 the ratio decided by the Hon'ble Apex Court does not apply to the instant case. 49. The judgments which are referred by learned counsel for the respondents. The judgment reported in 1992 (3) SCC 326 (C.I.T. Bombay Vs. Gwalior Reyon Singh ) para 10 and 13 wherein the Hon'ble Apex Court has held that rules validly made have the same force as the sections in the act. Rules are meant to carry out the provisions of the Act and cannot take away what is conferred by the Act or whittle down its effect. In the present case when the Rules have described the Development Commissioner as the competent authority, it has to have the same force as the section in the Act itself. 50. Rules are meant to carry out the provisions of the Act and cannot take away what is conferred by the Act or whittle down its effect. In the present case when the Rules have described the Development Commissioner as the competent authority, it has to have the same force as the section in the Act itself. 50. And merely because under Section 2 sub-section (vii) the legislature provides that competent authority can only be appointed by way of publication in Gazette Notification. Making such provision does not fortify the provision made in the Rules itself. Since the earlier notification dated 12.12.94 has been superseded by Notification 22.1.2002 meaning thereby the notification dated 12.12.94 is not in existence and also not in force. Since the specific provision has been made in the Rule 21 to carry out the provisions of the Act in view of the ratio decided by Hon'ble Supreme Court cannot take away what is conferred by the Act and whittle down its effect. Therefore, the Divisional Commissioner who has been appointed as a competent authority for receiving a notice of no confidence motion in case of motion is against the Zila Pramukh. 51. Similar view has been taken by the Hon'ble Supreme Court in the case of Commissioner of Income Tax Jullundhar Vs. Ajanta Electricals Punjab reported in 1995(4) SCC page 182 , wherein it has been held that rules to be regarded as having the same force as the section of the Act unless they affect or control section or derogate from it. In the present case while rule 21(1) has described the Development Commissioner as the competent authority this has to be regarded as having same force as the section in the Act itself. 52. I also carefully examined the judgment reported in 2001(1) SCC 728 (State of Karnataka Vs. B. Suvarna Malini ), 2000(2) SCC 223 (Union of India Vs. E.I.D. Parry (India) Limited ) and 1989 (4) SCC 470 (Bank of Baroda Vs. Rednam Wagachaya Devi ). 53. These judgments are referred on the point that the Court may not decide the question unless the pleadings contain a contention that particular rule is ultra vires, Court is not within the jurisdiction in deciding the matter or considering the validity of the rule and striking down as ultra vires. Rednam Wagachaya Devi ). 53. These judgments are referred on the point that the Court may not decide the question unless the pleadings contain a contention that particular rule is ultra vires, Court is not within the jurisdiction in deciding the matter or considering the validity of the rule and striking down as ultra vires. Since the question of unconstitutionality has not been specifically pleaded by the petitioner it cannot be decided by this Court. 54. Having gone through the judgments referred by the respective parties and after careful perusal of the provisions as discussed hereinabove in the instant case I find that no illegality has been committed by the respondents and in view of Rule 21 Divisional (sic Development ?) Commissioner is a competent authority in the instant case as no confidence motion was against Zila Pramukh. 55. In view of provisions of Section 37 sub-section (2) prescribed period 15 days have been reduced to 7 days by notification published in Rajasthan Government Gazette Extraordinary Part IV (kha) dated 6.1.2000. 56. In such circumstances no confidence motion has been carried out by majority and notice of no confidence motion has been validly issued. In view of the observations made hereinabove, no interference is required by this Court and consequently both the writ petitions stand dismissed with no order as to costs.Petition dismissed. *******