JUDGMENT 1. - This writ petition u/Art. 226 of the Constitution of India has been filed by the petitioner against the respondents on 6.1.2004 amended on 19.1.2004 with the prayer that by an appropriate writ, order or direction, the impugned notice dated 22.12.2003 (Annex. 2) issued by the respondent No. 1-A Collector, Sri Ganganagar by which a meeting to consider the no confidence motion dated 17.12.2003 (Annex. 6) moved against the petitioner was called on 9.1.2004, be quashed and set aside. 2. The case of the petitioner as put forward by ner in this writ petition is as follows (i) The Municipal Board, Sadul Sahar was established under the provisions of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as ''the Act of 1959") and the elections for the office of Chairperson and Councillors for the Municipal Board were held in the month of August. 2000 and the petitioner was elected as Chairperson of the Municipal Board, Sadul Sahar and the respondents Nos. 3 to 13 were also elected as Councillor from various wards. (ii) The further case of the petitioner is that the respondents Nos. 3 to 10 13 in order to oust the petitioner from the office of the Chairperson in highhanded and arbitrary manner moved an application (Annex. 6) on 17.12.2003 before the Addl. District Magistrate, Sri Ganganagar for convening a meeting to consider the no-confidence motion against the petitioner. The copy of the no-confidence motion as served on the 15 petitioner is marked as Annex. (iii) The further case of the petitioner is that after receipt of the certified copy of no-confidence motion Annex. 6 dated 17.12.2003, the petitioner tried to obtain certified copy of the proceedings taken in pursuance of no-confidence motion Annex. 6 dated 17.12.2003, but the same were not supplied to her. However. the petitioner received impugned notice Annex. 2 dated 22.12.2003 from the respondent No. 1-A Collector, Sri Ganganagar by which a meeting was called on 9.1.2004 to consider the no-confidence motion Annex. 6 dated 17.12.2003 moved against the petitioner. (iv) The further case of the petitioner is that since no confidence motion (Annex.6) dated 17.12.2003 was placed before the Additional District Magistrate (Vigilance), who was not competent to entertain it, therefore, the presentation of no confidence motion Annex. 6 dated 17.12.2003 was ab initio void and thus. the entire proceedings 30 including issuance of impugned notice Annex. (iv) The further case of the petitioner is that since no confidence motion (Annex.6) dated 17.12.2003 was placed before the Additional District Magistrate (Vigilance), who was not competent to entertain it, therefore, the presentation of no confidence motion Annex. 6 dated 17.12.2003 was ab initio void and thus. the entire proceedings 30 including issuance of impugned notice Annex. 2 dated 22.12.2003 in pursuance of no-confidence motion (Annex.6) were also ab initio void, as according to Rule 3(1) of the Rajasthan Municipalities (Motion of No-Confidence against Chairman or Vice Chairman) Rules, 1974 (hereinafter referred to as "the Rules of 1974"), the motion of no-confidence should have been made to the Collector of the District and not to the Additional District Magistrate. (v) The further case of the petitioner is that earlier to no-confidence motion Annex. 6 dated 17.12.2003, 8 councillors moved no confidence motion against the petitioner on 26.2.2003 before the District Collector, Sri Ganganagar (respondent No. 1-A), a copy of which is marked as Annex. 3. Thereafter, out of councillors, three councillors, namely, Ram Bai, Sunita Sharan and Mangu Ram submitted written application Annex. 4 dated 11.3.2003 to the respondent No. 1-A Collector, Sri Ganganagar requesting him to give permission to withdraw no confidence motion Annex. 3 dated 26.2.2003 moved against the petitioner. (vi) The further case of the petitioner is that the aforesaid three persons, namely, Ram Bai, Sunita Saharan and Mangu Ram had no right or authority to withdraw from the notice and similarly, the so respondent No. 1-A Collector, Sri Ganganagar had no authority to grant them permission as these three persons through application Annex. 4 dated 11.3.2003 never intended to withdraw notice, but they sought Permission to withdraw. Thus, for all purposes. the no-confidence motion Annex. 3 dated 26.2.2003 moved against the petitioner shall de deemed to have been lost and shall be treated as not carried and therefore. subsequent no-confidence motion Annex 6 dated 17 12.2003 moved against the petitioner was without authority of law and similarly, notice Annex. 2 dated 22.12.2003 convening a meeting on 9.1.2004 to consider the no-confidence motion Annex. 3 dated 26.2.2003 moved against the petitioner shall de deemed to have been lost and shall be treated as not carried and therefore. subsequent no-confidence motion Annex 6 dated 17 12.2003 moved against the petitioner was without authority of law and similarly, notice Annex. 2 dated 22.12.2003 convening a meeting on 9.1.2004 to consider the no-confidence motion Annex. 6 dated 17.12.2003 moved against the petitioner, was also without authority of law, as according to sub-section (3) of Section 72 of the Act of 1959, if earlier no confidence motion is not carried out, subsequent no-confidence motion can be moved only after the expiration of two years from the date of the meeting in which the motion was considered. Since two years have not elapsed, therefore, presentation of subsequent no-confidence motion Annex. 6 dated 17.12.2003 against the petitioner was without jurisdiction and thus, issuance of notice Annex. 2 dated 22.12.2003 in pursuance of no-confidence motion Annex. 6 dated 17.12.2003 was also without jurisdiction and illegal. 3. Hence, this writ petition challenging the impugned notice Annex. 2 20 dated 22.12.2003 on the above-mentioned two grounds. 4. A reply to the writ petition was filed by the respondents and their case is that earlier no-confidence motion dated 26.2.2003 (Annex. 3) was moved against the petitioner by 8 councillors and out of 8 councillors, three councillors, namely, Ram Bai, Sunita Saharan and Mangu Ram submitted 25 application Annex. 4 dated 11.3.2003 before the respondent No. 1-A Collector, Sri Ganganagar seeking permission to withdraw no-confidence motion Annex. 3 and, thereafter, the respondent No. 1-A Collector, Sri Ganganagar recorded the statements of Mangu Ram, Sunita Sharan and Ram Bai and they are marked as Annex. R/3, Annex. R/4 and Annex. R/5 respectively and after that, through letter Annex. R/4 and Annex. R/5 respectively and after that. through letter Annex. R/6 dated 12.3.2003, the respondent No. 1-A Collector, Sri Ganganagar sought clarification from the Director, Local Bodies, Jaipur stating that initially 8 persons moved no-confidence motion Annex. 3 dated 26.2.2003 against the petitioner and thereafter, out of 8 persons, three persons withdrew their names through application dated 11.3.2003 (Annex. 4) and thus, the number of members moving no-confidence motion remained 5, which is less than the prescribed one third majority and therefore, in these circumstances, a meeting to consider no-confidence motion can be called or not. Thereafter, the Director, Local Bodies, Jaipur through letter Annex. 4) and thus, the number of members moving no-confidence motion remained 5, which is less than the prescribed one third majority and therefore, in these circumstances, a meeting to consider no-confidence motion can be called or not. Thereafter, the Director, Local Bodies, Jaipur through letter Annex. R/7 dated 40 22.4.2003 gave reply to the respondent No. 1-A Collector, Sri Ganganagar stating that in case the no-confidence motion was withdrawn before the notified/fixed date and if the said no-confidence motion remains with the less than required/prescribed respective members, then it shall be presumed that no-confidence motion was not moved or presented. Thereafter, the as respondent No. 1-A Collector. Sri Ganganagar came to the conclusion that there exists no such motion and while treating that no-confidence motion has not been moved, he closed the file vide order dated 30.4.2003. Hence, in the present case, provisions of Section 72(3) of the Act of 1959 are not applicable and the impugned notice Annex. 2 dated 22.12.2003 calling a meeting on so 9.1.2004 to consider the no-confidence motion dated 17.12.2003 (Annex. 6) moved against the petitioner was rightly issued by the respondent No. 1-A Collector, Sri Ganganagar. 5. On another point the case of the respondents is that the Collector as well as Additional Collector is competent to accept no-confidence motion and therefore, if no-confidence notion dated 17.12.2003 (Annex.6) was received by the Addl. Collector. Sri Ganganagar. there was no illegality in that and further more, since thereafter through impugned notice Annex. 2 dated 5 22.12.203. a meeting was called by the respondent No. 1-A Collector. Sri Ganganagar himself on 9.1.2004 to consider the no- confidence motion Annex. 6 dated 17.12.2003 moved against the petitioner, therefore, from this point of view also. there was no illegality as in sub-section (6-A) of Section 3 of the Act of 1959, where "Collector ' has been defined. it has been specifically to slated that Collector includes an Additional Collector. Thus, impugned notice Annex. 2 dated 22.12.2003 cannot be said to be illegal. Hence. this writ petition filed by the petitioner be dismissed. 6. In this respect. it may be stated here that the case of the petitioner is that an affidavit Annex R/1 dated 29.1.2004 was filed by Shri Ramavtar is Riighuvanshi. Collector. Sri Ganganagar and a bare perusal of the affidavit Annex. R/1 clearly reveals that the Collector. Sri Ganganagar authorised A O.M. (Vigilance). 6. In this respect. it may be stated here that the case of the petitioner is that an affidavit Annex R/1 dated 29.1.2004 was filed by Shri Ramavtar is Riighuvanshi. Collector. Sri Ganganagar and a bare perusal of the affidavit Annex. R/1 clearly reveals that the Collector. Sri Ganganagar authorised A O.M. (Vigilance). Sri Ganganagar to receive no-confidence motion and therefore. that ADM (Vigilance) cannot be treated as equivalent to Additional Collector, Hence, the reply of the respondents that ADM (Vigilance) was competent to receive no- confidence motion was contrary to the provisions of law. 7. It may be stated that when the above argument was being raised during the course of hearing, this Court directed the Government Advocate to call for appointment of ADM (Vigilance). Sri Ganganagar through fax and 25 that has been received and in that appointment order dated 4 8.2003, the designation was mentioned as "Addl. Collector and Addl. District Magistrate (Vigilance). Sri Ganganagar." 8. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the entire materials available 30 on record.Point No. 1 9. On point No. 1. the case of the learned counsel for the petitioner is that earlier to non-confidence motion Annex. 6 dated 17.12.2003. 8 persons moved no-confidence motion Annex. 3 dated 26.2.2003 against the petitioner and out of 8 persons, three persons. namely, Ram Bai, Sunita Saharan and Mangu Ram through application Annex. 4 dated 11.3.2003 sought permission from the Collector, Sri Ganganagar (respondent No. 1-A) to withdraw no-confidence motion but according to the petitioner, these three persons had no right or authority to withdraw from the notice and similarly, the respondent No 1-A Collector. Sri Ganganagar had no authority to grant them permission as these three persons through application Annex. 4 dated 11 3.2003 never intended to withdraw notice, but they sought permission to withdraw. Thus, for all purposes, the no-confidence motion Annex. 3 dated 26.2.2003 moved against the petitioner shall be deemed to have been lost and shall be as treated as not carried and therefore. subsequent no- confidence motion Annex, 6 dated 17.12.2003 moved against the petitioner was without authority of law and similarly, notice Annex. 2 dated 22.12.2003 convening a meeting on 9.1.2004 to consider the no-confidence motion Annex. 3 dated 26.2.2003 moved against the petitioner shall be deemed to have been lost and shall be as treated as not carried and therefore. subsequent no- confidence motion Annex, 6 dated 17.12.2003 moved against the petitioner was without authority of law and similarly, notice Annex. 2 dated 22.12.2003 convening a meeting on 9.1.2004 to consider the no-confidence motion Annex. 6 dated 17.12.2003 moved against the petitioner, was also without authority of law, as according to sub-section (3) of Section 72 of the Act of 1959, if earlier no confidence motion is not carried out, subsequent no-confidence motion can be moved only after the expiration of two years from the date of the meeting in which the motion was considered and since two years have not elapsed, therefore, presentation of subsequent no-confidence motion Annex. 6 dated 17.12.2003 against the petitioner was without jurisdiction and thus, issuance of notice Annex. 2 dated 22.12.2003 in pursuance of no-confidence motion Annex. 6 dated 17.12.2003 was also without jurisdiction and illegal. 10. For convenience. Section 72 of the Act of 1959 is quoted here "72. Motion of non-confidence against Chairman. (1) Motion expressing non-confidence in the Chairman or the Vice-Chairman shall be made and considered in the manner prescribed. (2) No notice of motion under his section shall be made within one year of the assumption of office by a Chairman or a Vice-Chairman. (3) If a motion under sub-section (1) is not carried, no notice of a subsequent motion expressing non-confidence in the same Chairman or Vice-Chairman shall be made until after the expiration of two years from the date of the meeting in which the motion was considered." 11. A bare perusal of Section 72 of the Act of 1959 reveals that the first requirement is that a motion of no-confidence can be moved against the Chairman or Vice-Chairman only after expiry of one year from the date of 20 assumption of office by the concerned Chairman or Vice-Chairman. The second prohibition is that no motion of no-confidence can be moved against the same Chairman or Vice-Chairman against whom a similar motion was moved previously and defeated unless two years have elapsed from the date of meeting in which the previous motion of no confidence was considered. 12. The question for consideration is whether the presentation of no-confidence motion Annex. 12. The question for consideration is whether the presentation of no-confidence motion Annex. 3 dated 26.2.2003 against the petitioner fulfil the requirement of sub-section (3) of Section 72 of the Act of 1959 or not. 13. There is no dispute on the point that after presentation of no-confidence motion Annex. 3 dated 26.2.2003 against the petitioner by 8 so persons, three persons, namely, Ram Bai, Sunita Saharan and Mangu Ram through application Annex. 4 dated 11.3.2003 made a request to the Collector, Sri Ganganagar (respondent No. 1-A) that they wanted to withdraw no-confidence motion Annex. 3 dated 26.2.2003. 14. In this respect, it may be stated that the case of the petitioner is that after that, what proceedings had taken place, the copies of them have not been supplied to her therefore, no-confidence motion Annex. 3 dated 26.2.2003 moved against the petitioner should be deemed to have been lost. 15. In my considered opinion, the above argument cannot be accepted because after that, the respondent No. 1-C Collector, Sri Ganganagar recorded the statements of Mangu Ram, Sunita Saharan and Ram Bai and they are marked as Annex. R/3, R4 and Annex. R/5 respectively and after that, through letter Annex. 19/6 dated 12.3.2003, the respondent No. 1-A Collector, Sri Ganganagar sought clarification from the Director, Local Bodies, Jaipur stating that initially 8 persons moved no-confidence motion Annex. 3 45 dated 26.2.2003 against the petitioner and thereafter, out of 8 persons, three persons withdrew their names through application dated 11.3.2003 (Annex. 4) and thus, the number of members moving no-confidence motion remained 5, which is less than the prescribed one third majority and therefore, in these circumstances, a meeting to consider no-confidence motion can be called or so not. Thereafter, the Director, Local Bodies, Jaipur through letter Annex. R/7 dated 22.4.2003 gave reply to the respondent No. 1-A Collector, Sri Ganganagar stating that in case the no-confidence motion was withdrawn before the notified/fixed date and if the said no-confidence motion remains with the less 1 than required/prescribed respective members, then it shall be presumed that no-confidence was not moved or presented. Thereafter, the respondent No 1-A Collector. Sri Ganganagar came 10 the conclusion that there exists no such motion and while treating that no-confidence motion has not been 5 moved against the petitioner. he closed the file vide order dated 30.4.2003 16. Thereafter, the respondent No 1-A Collector. Sri Ganganagar came 10 the conclusion that there exists no such motion and while treating that no-confidence motion has not been 5 moved against the petitioner. he closed the file vide order dated 30.4.2003 16. Thus, in these circumstances, since no meeting was called to consider the no-confidence motion dated 26.2.2003 (Annex. 3) moved against the petitioner as the number of persons proposing no-confidence motion Annex. 3 dated 26.2.2003 was less than required one third majority as three 11) persons out of 8 persons withdrew the no-confidence motion Annex. 3 before it became effective, therefore, it can easily be said that no motion of no-confidence was ever moved and presented against the petitioner previously and defeated. 17. Similar view was taken by this Court in Ramchandra v. State of Rajasthan & Ors., 1974 WLN 753 where it was held that no-confidence motion can be withdrawn before it becomes effective. 18. Furthermore. sub-section (3) of Section 72 of the Act of 1959 is very much clear on the point that no-confidence motion should have been considered in the meeting and in the present case, as stated above, no 20 meeting was called for to consider the no-confidence motion Annex. 3 dated 26.2.2003 against the petitioner, therefore, it cannot be said that previously no-confidence motion was moved against the petitioner and defeated in the meeting. 19. Hence, the no-confidence motion Annex. 6 dated 17.12.2003 moved 25 against the petitioner cannot be said to be illegal and against the provisions of sub-section (3) of Section 72 of the Act of 1959 and similarly, the impugned notice Annex. 2 dated 22.12.2003 calling for meeting on 9.1.2004 to consider the ro-confidence motion dated 17.12.2003 (Annex. 6) moved against the petitioner also cannot be said to be illegal and the argument No. 1 stands rejected. 30 Point No. 2 20. On point No. 2, the case of the petitioner is that as per Rule 3(1) of P ales of 1974, the no-confidence motion should be set to the Collector only and since in the present case, the no-confidence motion Annex. 6 dated 17.12.2003 was presented before the ADM (Vigilance), Sri Ganganagar, therefore. the said presentation of no-confidence motion Annex. 6 before the ADM (Vigilance) was per illegal and therefore. subsequent proceedings including issuance of impugned notice Annex. 2 dated 22.12.2003 pursuant to no-confidence motion Annex. 6 dated 17.12.2003 was presented before the ADM (Vigilance), Sri Ganganagar, therefore. the said presentation of no-confidence motion Annex. 6 before the ADM (Vigilance) was per illegal and therefore. subsequent proceedings including issuance of impugned notice Annex. 2 dated 22.12.2003 pursuant to no-confidence motion Annex. 6 dated 17.12.2003 pursuant to no-confidence motion Annex. 6 dated 17.12.2003 were also illegal. 21. To appreciate the above contention, the relevant provisions of Rule 3 of the Rules of 1974 which prescribes procedure etc. is being quoted here : "3. Procedure etc. (1) A written notice of intention to make a motion of no-confidence in the Chairman or Vice-Chairman signed by one third members of the Board together with a copy of the motion which 45 is proposed to be made, shall be sent to the Collector of the District, who shall thereupon convene a meeting for the consideration of the motion to be held at the office of the Board on the date and at the time appointed by him, which shall not be earlier than twenty or later than thirty days from the date of the receipt of the notice. (2)........ (3)........ (4)........ (5)........ (6)........ (7)........ (8)........ (9)........ 22. No doubt in sub-rule (1) of Rule 3 of the Rules 1974, the word "Collector" is there, but in sub-section (6-A) of Section 3 of the Act of 1959 where "Collector" has been defined. it has been clearly mentioned that the Collector to includes an Additional Collector. 23. In the present case, the argument that ADM (Vigilance), Sri Ganganagar before whom the no-confidence motion Annex. 6 dated 17.12.2003 was presented, was only ADM (Vigilance) and not Additional Collector cannot be accepted in view of the appointment order dated 4.8.2003, where the 15 designation was mentioned as "Addl. Collector and Addl. District Magistrate (Vigilance), Ganganagar". 24. When this being the position, the presentation of no-confidence motion Annex. 6 dated 17.12 2003 before the ADM (Vigilance) Sri Ganganagar cannot be said to be violative of sub-rule (1) of Rule 3 of the 20 Rules of 1974. 25. Apart from this, in the present case, the Addl. Collector and ADM (Vigilance) simply received the no-confidence motion Annex. 6 dated 17.12.2003, but thereafter, the impugned notice Annex. 2 dated 22.12.2003 calling a meeting on 9.1.2004 to consider the no-confidence motion 25 Annex. 25. Apart from this, in the present case, the Addl. Collector and ADM (Vigilance) simply received the no-confidence motion Annex. 6 dated 17.12.2003, but thereafter, the impugned notice Annex. 2 dated 22.12.2003 calling a meeting on 9.1.2004 to consider the no-confidence motion 25 Annex. 6 against the petitioner, was issued by the Collector, Sri Ganganagar (respondent No. 1-A) himself, therefore, it cannot be said that proceedings conducted later on in pursuance of no-confidence motion Annex. 6 dated 17.12.2003 suffer from basic infirmity or illegality. Hence. issuance of notice Annex. 2 dated 22.12.2003 by the respondent No. 1-A 30 Collector. Sri Ganganagar was a valid one. 26. In this respect, the learned counsel for the petitioner has placed reliance on the judgment of this Court in Smt. Pinky Rajoria v. State of Rajasthan, 2002(2) RLW (Raj.) 1258 , where the learned Single Judge of this Court observed that since no confidence was dealt by the Additional Collector, whereas it was required to have been dealt with by the Collector, therefore, it was not found proper. 27. In my considered opinion, the above ruling would not be helpful to the petitioner because of the following reasons : (i) That in the case of Smt. Pinky Rajoria (supra), the meeting was called by the Additional Collector, while in the present case, no-confidence motion (Annex. 6) dated 17.12.2003 was simply received by the Additional Collector and thereafter. meeting was called by the Collector (respondent No. 1-A) himself. (ii) That apart from this, the judgment in the case of Smt. Pinky Rajoriya (supra) has been stayed by the Division Bench of this Court vide order dated 22.5.2002 holding that prima facie we are unable to subscribe to the view taken by the learned Single Judge in the case of Smt. Pinky Rajoriya (supra). Since the operation of the judgment in the case of Smt. Pinky Rajoriya (supra) has been stayed by the Division Bench of this Court, therefore, the question of application of that judgment does not arise as the matter is still sub-judice before the Division Bench of this Court. (iii) That the judgment in the case of Smt. Pinky Rajoria (supra) was I not followed by this Court in Jagdish Prasad & Ors. v. State of Rajasthan & Ors., 2003(2) RLW (Raj.) 1033 . 28. Hence, the argument No. 2 of the petitioner also fails and stands r ejected. 29. (iii) That the judgment in the case of Smt. Pinky Rajoria (supra) was I not followed by this Court in Jagdish Prasad & Ors. v. State of Rajasthan & Ors., 2003(2) RLW (Raj.) 1033 . 28. Hence, the argument No. 2 of the petitioner also fails and stands r ejected. 29. Thus, for the reasons stated above there is no merit in this writ petition and the same deserves to be dismissed. 30. It may be stated here that through interim order dated 8.1.2004 passed on stay application, this Court directed that proceeding of no-confidence motion may continue but result would not be declared and since this writ to petition is going to be dismissed, the interim stay order dated 8.1.2004 stands vacated.Accordingly, this writ petition filed by the petitioner is dismissed. The interim stay order dated 8.1.2004 passed by this Court stands vacated.Writ Petition Dismissed. *******