JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 2.3.2004 with the prayer that by appropriate writ, order or direction, the notice dated 24.5.2003 (Annex. 3) by which no confidence motion was presented against the petitioner, letter Annex. 4 dated 24.5.2003 by which the respondent No. 3 Chief Executive Officer, Zila Perished, Churu forwarded the notice (Annex. 3) of no confidence motion moved against the petitioner to the Gram Sewak, Gram Panchayat, Lalasar Banirotan, Panchayat Samiti Churu with a request that action be taken against the petitioner under the provisions of Section 37 10 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as "the Act of 1994"), notice dated 24.5.2003 (Annex. 5) by which the respondent No. 3 Chief Executive Officer called the meeting on 9.6.2003 for considering the no confidence motion moved against the petitioner, letter Annex. 15 dated 10.2.2004 by which the respondent No. 1 State of Rajasthan directed the Divisional Commissioner, Bikaner to make re-enquiry in respect of respondents Nos. 6 to 9, namely, Sheesh Ram, Ram Niwas, Perna Ram and Guljari Lal Sharma respectively, letter Annex. 16 dated 19.2.2004, by which respondent No. 1 State of Rajasthan directed the respondent No. 3 Chief Executive Officer that meeting for consideration of no confidence motion against the petitioner be conducted in accordance with the provisions of the Act of 1994 and notice Annex. 17 dated 20.2.2004 by which the respondent No. 3 Chief Executive Officer called a meeting on 8.3.2004 for consideration -1 of no confidence motion against the petitioner, be quashed and set aside. 2. The case of the petitioner as put forward by him in this writ petition is as follows:- The petitioner was duly elected Sarpanch of the Gram Panchayat Lalaser Banirotan, Panchayat Samiti, Churu in the year 1999 and that Gram Panchayat had one Sarpanch and nine ward Panchas. According to the petitioner, the respondents Nos. 6 and 7, namely, Sheesh Ram and Ram Niwas got their third child after 27.11.1995 and therefore, as per the provisions of Section 19 of the Act of 10 1994, they were deemed to be disqualified and in this respect, complaints Annex. 1 and Annex. 2 dated 17.5.2003 were filed by one Sheesh Pal against the respondents Nos. 6 and 7 respectively. 1 and Annex. 2 dated 17.5.2003 were filed by one Sheesh Pal against the respondents Nos. 6 and 7 respectively. The further case of the petitioner is that when on the basis of the complaints Annex. 1 and Annex. 2, enquiry was being conducted against the respondents Nos. 6 and 7 and looking to the fact that enquiry might be concluded against them, therefore, the respondents Nos. 6 and 7 in collusion with other Panchas, presented a no confidence motion against the petitioner through notice Annex. 3 dated 24.5.2003 before the respondent No. 3 Chief Executive Officer and the respondent No.3 Chief Executive Officer through letter Annex. 4 dated 24.5.2003 forwarded the said notice Annex. 3 to the Gram Sewak with the request that action be taken against the petitioner under the provisions of Section 37 of the Act of 1994. The notice Annex. 3 and letter Annex. 4 have been challenged by the petitioner in this writ petition. According to the petitioner, the respondent No. 3 Chief Executive Officer through notice Annex. 5 dated 24.5.2003 called the meeting on 9.6.2003 for consideration of no confidence motion against the petitioner, but since the petitioner complained to the Hon'ble Minister concerned through representation Annex. 6, therefore, the Director and Special Secretary to the Government, Panchayati Raj Department, Jaipur through order Annex. 7 dated 7.6.2003 ordered that proceedings of the meeting dated 9.6.2003 to consider the no confidence motion against the petitioner shall remain stayed till further orders. The notice Annex. 5 has also been challenged by the petitioner in this writ petition. The further case of the petitioner is that the respondents Nos. 6, 7, 8 and 9 are also disqualified under the provisions of the Act of 1994 on account of continuous absence on three or more consecutive meetings of the Gram Panchayat and for that, a complaint was filed by the petitioner before the respondent No. 3 Chief Executive Officer on 16.6.2003, a copy of which is marked as Annex. 8. The further case of the petitioner is that the respondent No. 3 Chief Executive Officer asked the Assistant Engineer, Zila Parishad, Churu to make enquiry on the complaint Annex. 8 made by the petitioner against the respondents Nos. 6 to 9 and the Assistant Engineer, Zila Perished, after making a detailed enquiry, submitted his report Annex. 8. The further case of the petitioner is that the respondent No. 3 Chief Executive Officer asked the Assistant Engineer, Zila Parishad, Churu to make enquiry on the complaint Annex. 8 made by the petitioner against the respondents Nos. 6 to 9 and the Assistant Engineer, Zila Perished, after making a detailed enquiry, submitted his report Annex. 9 to the respondent No. 3 Chief Executive Officer holding that the respondents Nos. 6 to 9 absented themselves from three consecutive meetings of the Gram Panchayat without giving any prior information in writing. Thereafter. the respondent No. 3 Chief Executive Officer, after taking into consideration the complaint Annex. 8 and the report Annex. 9, prima facie found that the respondents Nos. 6 to 9 were disqualified under the provisions of Section 39(1)(b) of the Act of 1994 due to absenting themselves from three consecutive meetings of the Gram Panchayat without giving information in writing and thus, through order Annex. 10 dated 26.6.2003, the respondent No. 3 Chief Executive officer referred the matter to the Divisional Commissioner, Bikaner for further action. The further case of the petitioner is that through order Annex. 11 dated 17.6.2003, the Divisional Commissioner, Bikaner came to the conclusion that since third child was born to the respondent No. 7 Ram Niwas after 27.11.1995, therefore, he was disqualified under the provisions of Section 19 of the Act of 1994 and similarly, through Annex. 12 dated 17.6.2003, the Divisional Commissioner came to the same conclusion in respect of respondent No. 6 Sheesh Ram and thus, the Divisional Commissioner referred the matter to the respondent No. 1 State of Rajasthan for further action. The further case of the petitioner is that through letter Annex. 14 dated 2.12.2003, the Divisional Commissioner, Bikaner requested the respondent No. 1 State of Rajasthan that since the respondents Nos. 6 to 9 absented themselves from three consecutive meetings of the Gram Panchayat without any notice in writing, therefore, they be declared ineligible under the provisions of Section 39(1) (b) of the Act of 1994. However, the respondent No. 1 State of Rajasthan through letter Annex. 15 dated 10.2.2004 referred the matter back to the Divisional Commissioner, Bikaner with the directions that re-enquiry in respect of respondents Nos. 6 to 9 be made. This order Annex. 15 has been challenged by the petitioner in this writ petition. However, the respondent No. 1 State of Rajasthan through letter Annex. 15 dated 10.2.2004 referred the matter back to the Divisional Commissioner, Bikaner with the directions that re-enquiry in respect of respondents Nos. 6 to 9 be made. This order Annex. 15 has been challenged by the petitioner in this writ petition. The further case of the petitioner is that through order Annex. 16 dated 19.2.2004, the respondent No. 1 State of Rajasthan vacated the stay order dated 7.6.2003 (Annex. 7) granted in favour of the petitioner and directed the respondent No. 3 Chief Executive Officer to hold the meeting for consideration of no confidence motion against the petitioner in accordance with the provisions of the Act of 1994. This order Annex. 16 has also been challenged by the petitioner in this writ petition. The further case of the petitioner is that thereafter, the respondent No. 3 Chief Executive Officer through notice dated 20.2.2004 (Annex. 17) called the meeting on 8.3.2004 for consideration of no confidence motion against the petitioner. This notice Annex. 17 has also been challenged by the petitioner in this writ petition. The main case of the petitioner is that since the respondents Nos. 6 to 9 have absented themselves from three consecutive meetings of the Gram Panchayat without giving prior information in writing, therefore, they are ineligible under the provisions of Section 39(1)(b) of the Act of 1994 and thus, they cannot participate and cast vote in the meeting convened on 8.3.2004 for consideration of no confidence motion against the petitioner. It may be stated here that this Court through interim order dated 5.3.2004 directed that the meeting for discussion of the No Confidence Motion might go on, however, the voting sound be effected by secret ballot and the counting of those ballots would not be done without express order of this court and the ballot so polled should be kept under sealed cover. A reply to the writ petition was filed by the respondents Nos. 1 to 5 and by the respondents Nos. 6 to 9 separately. The case of the respondents Nos. A reply to the writ petition was filed by the respondents Nos. 1 to 5 and by the respondents Nos. 6 to 9 separately. The case of the respondents Nos. 6 to 9 is that until a member is disqualified or held ineligible under the provisions of Section 39 of the Act of 1954, he is entitled to take part in the meeting convened for consideration of no confidence motion and since in the present case, no final order was passed against the respondents Nos. 6 to 9 by the competent authority for making them disqualified or 10 ineligible under the provisions of Section 39(1)(b) of the Act of 1994, therefore, they can take part and cast vote in the meeting convened on 8.3.2004 for consideration of no confidence motion against the petitioner. Hence, no case for interference is made out and this writ petition deserves to be dismissed. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record. 4. There is no dispute on the point that through notice Annex. 3 dated 24.5.2003, a no confidence motion was presented against the petitioner before the respondent No. 3 Chief Executive Officer and the respondent No. 3 Chief Executive Officer through letter Annex. 4 dated 24.5.2003 forwarded the said notice Annex. 3 to the Gram Sewak with the request that action be taken against the petitioner under the provisions of Section 37 of the Act of 1994. 5. There is also no dispute on the point that the respondent No. 3 Chief Executive Officer through notice Annex. 5 dated 24.5.2003 called the meeting on 9.6.2003 for consideration of no confidence motion against the petitioner, but the Director and Special Secretary to the Government, Panchayati Raj Department, Jaipur through order Annex. 7 dated 7.6.2003 ordered that proceedings of the meeting dated 9.6.2003 to consider the no confidence motion against the petitioner shall remain stayed till further orders. 6. There is also no dispute on the point that through order Annex. 11 dated 17.6.2003, the Divisional Commissioner, Bikaner came to the conclusion that since third child was born to the respondent No. 7 Ram Niwas after 27.11.1995, therefore, he was disqualified under the provisions of Section 19 of the Act of 1994 and similarly, through Annex. 6. There is also no dispute on the point that through order Annex. 11 dated 17.6.2003, the Divisional Commissioner, Bikaner came to the conclusion that since third child was born to the respondent No. 7 Ram Niwas after 27.11.1995, therefore, he was disqualified under the provisions of Section 19 of the Act of 1994 and similarly, through Annex. 12 dated 17.6.2003, the Divisional Commissioner came to the same conclusion in respect of respondent No. 6 Sheesh Ram and thus, the Divisional Commissioner referred the matter to the respondent No. 1 State of Rajasthan for further action. 7. There is also no dispute on the point that through letter Annex. 14 dated 2.12.2003, the Divisional Commissioner, Bikaner requested the respondent No. 1 State of Rajasthan that since the respondents Nos. 6 to 9 absented themselves from three consecutive meetings of the Gram Panchayat without any notice in writing, therefore, they be declared ineligible as under the provisions of Section 39(1)(b) of the Act of 1994. 8. There is also no dispute on the point that the request made by the Divisional Commissioner through Annex. 14 dated 2.12.2003 was not accepted by the respondent No. 1 State of Rajasthan and the respondent No. 1 State of Rajasthan through letter Annex. 15 dated 10.2.2004 referred the so matter back to the Divisional Commissioner, Bikaner with the directions that re-enquiry in respect of respondents Nos. 6 to 9 be made. 9. There is also no dispute on the point that through order Annex. 16 dated 19.2.2004, the respondent No. 1 State of Rajasthan vacated the stay order dated 7.6.2003 (Annex. 7) granted in favour of the petitioner and directed the respondent No. 3 Chief Executive Officer to hold the meeting for consideration of no confidence motion against the petitioner in accordance with the provisions of the Act of 1994. 10. There is also no dispute on the point that thereafter, the respondent No. 3 Chief Executive Officer through notice dated 20.2.2004 (Annex. 17) called the meeting on 8.3.2004 for consideration of no confidence motion 10 against the petitioner. 11. There is also no dispute on the point that a meeting for consideration of no confidence motion against the petitioner was held on 8.3.2004, but as per directions of this Court through interim order dated 5.3.2004, the counting of ballots has not be done and the ballot so polled has been kept under sealed cover. 11. There is also no dispute on the point that a meeting for consideration of no confidence motion against the petitioner was held on 8.3.2004, but as per directions of this Court through interim order dated 5.3.2004, the counting of ballots has not be done and the ballot so polled has been kept under sealed cover. 12. Thus, in the facts and circumstances just narrated above, the question for consideration is whether in absence of final order passed by the competent authority against the respondents Nos. 6 to 9 declaring them disqualified or ineligible under the provisions of Section 39(1)(b) for absenting themselves from three consecutive meetings of the Gram Panchayat without any prior information in writing, the respondents Nos. 6 to 9 can participate and cast vote in the meeting convened on 8.3.2004 for consideration of no confidence motion against the petitioner or not. 13. Section 39 of the Act of 1994 deals with cessation of membership and declaration thereof. For convenience, the relevant provisions of Section 39 of the Act of 1994 are quoted here:- "39. Cessation of membership- (1) A member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he- (a) ............ (b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or (c) ............ (d) ............ (e) ........... (f) (2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-section (1), the concerned authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member. Provided that until a declaration under this sub-section is made he shall continue to hold his office." 14. It may be stated here that unless and until declaration under the proviso to sub-section (2) of Section 39 of the Act of 1984 for cessation of membership is made, the members are entitled to cast their vote and to participate in the proceedings for no confidence motion. It may be stated here that unless and until declaration under the proviso to sub-section (2) of Section 39 of the Act of 1984 for cessation of membership is made, the members are entitled to cast their vote and to participate in the proceedings for no confidence motion. Furthermore, a member shall not be ceased to be member under section 39 of the Act of 1994 unless the competent authority after giving an opportunity of being heard to the member declare him to have become so ineligible. Proviso to sub-section (2) of section 39 of the Act of 1994 is very clear in that regard which provides further that until a declaration under this sub-section is made, the member shall continue to hold his office and so the member shall not cease to be a member unless a declaration to that effect is made. There is a positive direction in proviso to sub-section (2) of section 39 of the Act of 1994 that the member shall continue to hold his office unless he is declared to be ineligible by competent authority. 15. After amendment in the Act of 1994 by Notification dated 6.1.2000, the declaration of disqualification is now to be made by the competent authority without any intervention of the court and it is in the exclusive domain of the competent authority under section 39 of the Act of 1994. 16. It may further be stated here that in passing the order of disqualification, Rules 23 to 26 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the Rules of 1996") have to be followed. 17. A plain reading of Section 39 of the Act of 1994 especially proviso to sub-section (2) of Section 39 makes the position clear that pending a is decision under that section, a member shall be entitled to act as if he was not disqualified. 18. Thus, it is held that until a declaration as provided under proviso to sub-section (2) of Section 39 of the Act of 1994 is made, a member shall continue to hold his office and, he or she, as the case may be, does not cease to be member of Panchayati Raj Institution and he/she continues to hold his/her office as it he/she was not disqualified. Therefore, pending determination of question of disqualification, a member shall continue to hold his office as if he was not disqualified. Therefore, pending determination of question of disqualification, a member shall continue to hold his office as if he was not disqualified. In other words, such a person shall cease to be a member only after he/she is declared as disqualified by the Competent Authority under section 39 of the Act of 1994. 19. In the present case, no final order has been passed so far by the Competent Authority against the respondents Nos. 6 to 9 declaring them disqualified or ineligible under section 39(1)(b) of the Act of 1994 for having absented themselves from three consecutive meetings of the Gram Panchayat without giving prior information in writing, therefore, in these circumstances, they were entitled or competent to participate and cast their votes in the meeting held on 8.3.2004 for consideration of no confidence motion against the petitioner. 20. For the reasons stated above, all contentions of the petitioner stand rejected and there is no merit in this writ petition and the same deserves to be dismissed. Accordingly, this writ petition filed by the petitioner is dismissed. The stay order granted by this Court on 5.3.2004 stands vacated. Writ Petition Dismissed and Stay Order Vacated. *******