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2017 DIGILAW 1915 (RAJ)

KIRAN v. STATE OF RAJASTHAN

2017-08-28

VIJAY BISHNOI

body2017
ORDER : Vijay Bishnoi, J. This writ petition under Article 226 of the Constitution of India is filed by the petitioner being aggrieved with the notice dated 16.08.2017 (Annexure-1) issued by the Chief Executive Officer, Zila Parishad, Pali, whereby a meeting for consideration of no-confidence motion against the petitioner is scheduled to be convened on 28.08.2017 at 12:00 Noon. 2. The petitioner is the Sarpanch of Gram Panchayat, Siyat, Tehsil Sojat, District Pali and a no-confidence motion was moved against her by the Members of the Gram Panchayat under the provisions of sub-section (2) of section 37 of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994' hereinafter) and under sub-rule (1) of Rule 21 of the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996' hereinafter), pursuant to which, the Chief Executive Officer, Pali has convened the meeting for consideration of no-confidence motion against the petitioner vide notice dated 16.08.2017 (Annexure-1). 3. Learned counsel for the petitioner has argued that as per sub-rule (2) of Rule 21 of the Rules of 1996, the Chief Executive Officer is required to send a notice of meeting for consideration of no-confidence motion against a Chairperson of Panchayati Raj Institution of not less than 15 clear days from the date of meeting and the date and time appointed therefor. 4. It is contended that in the present matter the notice of meeting for consideration of no-confidence motion against the petitioner was issued on 16.08.2017 and the date of the meeting was fixed as 28.08.2017 and from this, it is clear that the notice of meeting sent by the Chief Executive Officer is of less than 15 clear days and therefore, the proceedings of the no-confidence motion against the petitioner are vitiated. 5. On the strength of the above argument, learned counsel for the petitioner has prayed for quashing of the impugned notice dated 16.08.2017 (Annexure-1) and also prayed that all other proceedings, pursuant to the said notice, may also be quashed. Learned counsel for the petitioner has placed reliance on decision of this Court rendered in Laxman Meena v. The State of Rajasthan & Anr. reported in 1998 (3) WLC 674. 6. Heard learned counsel for the petitioner. 7. The relevant provisions of section 37 of the Act of 1994 are reproduced hereunder: "37. Motion of No-confidence in Chairpersons and Deputy Chairpersons. reported in 1998 (3) WLC 674. 6. Heard learned counsel for the petitioner. 7. The relevant provisions of section 37 of the Act of 1994 are reproduced hereunder: "37. 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 subsections. (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 anyone of the members signing the notice to the competent authority. (3) The competent authority shall thereupon- (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; and (iii) give to the members a notice of not less than seven clear days of such meeting in such manner as may be prescribed. Explanation - In computing the period of thirty days specified in this sub-section, the period during which the convening of a meeting is stayed by a Court shall be excluded. ................ The provisions of Rule 21 of the Rules of 1996 are reproduced hereunder: "Rule 21. 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 Officer Zila Parishad in case of Sarpanch/Up-Sarpanch, Pradhan/Up-Pradhan and to the Development Commissioner in case motion is against Pramukh/Up-Pramukh. - (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 Officer 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 therefor 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." 8. Clause (iii) of sub-section (3) of section 37 of the Act of 1994 provides that competent authority shall give to the members a notice of not less than seven clear days of meeting of consideration of no-confidence motion. However, sub-rule (2) of Rule 21 of the Rules of 1996 provides that the Chief Executive Officer shall send a notice of meeting for consideration of no confidence motion of not less than 15 clear days before the date of meeting. 9. It appears that there is conflict between above referred provisions of the Act of 1994 and Rules of 1996. The Rules of 1996 are framed by the State Government in exercise of powers conferred by section 102 of the Act of 1994. The recognized principle of law is this that where there is a conflict between the Act and the Rules provisions of Act will prevail. 10. In the present case, the notice of meeting for consideration of no-confidence motion against the petitioner was issued on 16.08.2017 and the date of meeting is fixed as 28.08.2017, therefore, the time between the notice and the meeting is more than seven clear days. Hence, impugned notice cannot be said to be illegal. 11. Otherwise also, the petitioner has failed to demonstrate any prejudice with issuance of the notice by the Chief Executive Officer for consideration of no-confidence motion against her of not less than 15 clear days. 12. Hence, impugned notice cannot be said to be illegal. 11. Otherwise also, the petitioner has failed to demonstrate any prejudice with issuance of the notice by the Chief Executive Officer for consideration of no-confidence motion against her of not less than 15 clear days. 12. It is also to be noticed that none of the ward members of the Panchayat has complained of about shortfall for the period intervening between the issuance of notice and the meeting. 13. The judgment rendered by the Co-ordinate Bench of this Court in Laxman Meena v. The State of Rajasthan & Anr. (supra) has no application on the facts of the present case because in the said case, this Court has held that initiation of the proceeding of no-confidence motion against the petitioner therein under sub-section (2) of section 37 of the Act of 1994 itself was vitiated as the persons, who have moved the no-confidence motion against the elected representative were facing enquiry regarding their disqualification, the notice of no-confidence motion was not in the prescribed form and the said notice was not received by the Chief Executive Officer of the Zila Parishad but was received by the Additional Collector, who has no authority to receive the same. In the present case, no such irregularities have been pointed out. 14. In such circumstances, the above referred judgment is distinguishable from the facts of the present case. 15. In view of the above discussions, this writ petition fails and hereby dismissed in limine. 16. Stay petition also stands dismissed.