1 S.B. CIVIL WRIT PETITION NO. 6305/2009 Smt.Subhadra Vs. State of Rajasthan & Ors. Date of Order :: 31st July 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. M.C.Bhoot, for the petitioner. Mr.G.R.Punia, AAG ) Mr.Mahendra Singh ) Mr.Ravi Bhansali ), for the respondents. ... BY THE COURT: The petitioner, elected as the Pradhan, Panchayat Samiti Anandpuri, District Banswara on 10.02.2005, has questioned by way of this writ petition the proceedings for consideration of a motion of no-confidence as moved against her. The petitioner has alleged that the respondent No.2, holding the office of a Minister in the Government, had been instrumental in moving of the motion of no-confidence against her for political rivalry. In relation to the proceedings for consideration of such motion of no-confidence, the petitioner has averred that she was served with the notice dated 25.06.2009 (Annex.2) signed by the respondent No.3, the Chief Executive Officer, Zila Parishad, Banswara without a copy of the proposed motion. It is submitted that the said notice was neither in the prescribed proforma nor was accompanied by a copy of the proposed motion as per the 2 requirements of Section 37 of the Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') and Rule 21 of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996'). The petitioner has further averred that she was served with the notice on 29.06.2009 and next two days being the holidays, she approached the office of the respondent No.3 on 29.06.2009 to obtain a copy of the notice and so also the proposed motion so as to ascertain the ground on which the motion of no-confidence had been moved against her but she was not supplied with anything, allegedly at the instructions of the respondent No.2. The petitioner has further averred that she submitted a written complaint in that regard on 29.06.2009 (Annex.3). The suggestions have been made by way of additional affidavit that the petitioner was not even permitted to talk to the members of the said Panchayat Samiti and rather, such members were detained at Jaipur under the control of the respondent No.2 until they were sent to attend the meeting for consideration of the motion, as scheduled on 07.07.2009. While stating that she had not been supplied with the copy of the proposed motion until 30.06.2009 and while questioning the legality of the proceedings as adopted and validity of the proposed meeting for consideration of such no- confidence motion that was scheduled on 07.07.2009, the petitioner proceeded to file this writ petition on 01.07.2009. 3 This petition came up for consideration before the Court on 06.07.2009 when the contesting respondents put appearance in caveat; and, while adjourning the matter for a week, as prayed, this Court directed,- ''In the meanwhile, the meeting convened for “No Confidence Motion” to proceed, however, the respondent No.3 the Chief Executive Officer, Zila Parishad, Banswara, shall not declare the result of the meeting of the “No Confidence Motion” till next date.” The members of the said Panchayat Samiti who had allegedly moved the motion of no-confidence against the petitioner submitted an application to be impleaded as parties to this writ petition; and having regard to the circumstances of the case and the motion having already been put to consideration, such members were ordered to be joined as parties by this Court on 17.07.2009. Though no reply has been filed on behalf of the respondent No.2 but, all the allegations of the petitioner have been denied on behalf of the other contesting respondents. The respondents Nos.1, 3 and 4 in their reply, while refuting the allegations of the petitioner, have contended in relation to the legal ground submitted by the petitioner that there is no requirement under the law that a copy of the proposed motion be sent along with the notice of meeting. However, according to the answering respondents, in order to avoid any controversy and to let the petitioner know about the proposed 4 motion, a copy thereof was served separately on the petitioner on 26.06.2009; and that in regard, a copy of such notice has been referred by the answering respondents, as placed on record as Annexure-R/1. As noticed, the petitioner has levelled certain allegations against the respondent No.2 in this writ petition but having regard to the circumstances of the case, there appears no reason to enter into such allegations and to consider the same in the writ jurisdiction of this Court. However, even when this Court is not inclined to enter into such allegations against respondent No. 2 and the same are left at that only, yet, after examining the matter on the legal grounds urged on behalf of the petitioner that the proceedings of the said meeting stood vitiated for the notice of the meeting having not been served properly, particularly for want of copy of the proposed motion of no-confidence; and the submissions of the respondents in that regard not making out a case of compliance of the requirements of law, this Court is clearly of opinion that this petition deserves to be allowed to the extent of quashing of the proceedings under the impugned notice while leaving it open for the respondents to proceed in accordance with law. During the course of submissions, the learned counsel for the petitioner has referred to the decision of the Division Bench of this Court in the case of Ramu Ram Vs. Chief 5 Executive Officer, Sriganganagar and Others: 2004 (3) RLW 1947 to submit that such notice on the motion of no- confidence, when not accompanied by the copy of the proposed resolution, remains illegal and the entire proceedings are vitiated. On the other hand, the learned Additional Advocate General has referred to the decision in the case of Prahlad Ram Vs. State of Rajasthan and Others: 2003 WLC (UC) 363 to submit that there is no requirement in the statute of sending the copy of motion with the notice and the requirement as emanating from the Rules of 1996, particularly from the forms appended to such Rules, could only be considered directory and not mandatory. The decisions in the cases of Smt. Kamlesh Kumari Vs. State of Rajasthan and Others: 2002 (2) RLW 1260 and Hazara Ram Vs. Panchayat Samiti, Padampur and Others: 1998 (2) RLW 1034 have also been referred. After examining the scheme of Section 37 of the Act of 1994, Rule 21 of the Rules of 1996, and Forms-I and II appended to the Rules of 1996, the Hon'ble Division Bench of this Court in the case of Ramu Ram (supra), inter alia, said,- ''(9). Thus, whether it is a notice in Form-I i.e. Intention to make a motion expressing want of confidence or notice in Form-II i.e. Meeting of the Panchayat to be held for consideration of the no confidence motion against a Sarpanch, a copy of the proposed motion of no confidence is required to be enclosed. In both the replies referred-to above, the respondents are conspicuously silent as to the 6 proposed motion of no confidence. Even before this Court, no copy of the proposed motion of no confidence has been placed on record. On the contrary, the specific stands is that the resolution of the Gram Panchayat to move a motion of no confidence against the appellant- petitioner should be construed as proposed motion of no confidence. (10). Thus, the question arises for consideration is whether a Sarpanch can be removed form his office without putting a proposed resolution expressing no confidence for consideration in the Panchayat Meeting. Sub-section (2) of Section 37 of the Act of 1994 provides that a written notice of intention to make the motion against a Sarpanch shall be accompanied by a copy of the proposed motion. Not only this, clause (i) of sub-section (3) of Section 37 further provides that competent authority shall forward a copy of notice together with a copy of the proposed motion. Similar is the provision under Rule 21 of the Rules of 1996. Even the proforma of the notice set out in Form-I clearly provides of notice being annexed with a copy of the proposed motion of no-confidence. Same is the position of notice in Form-II. As far as Annex.P/2 is concerned, it is only the proceedings of the Gram Panchayat, wherein a decision was taken to move vote of no confidence motion against the appellant-petitioner. By no stretch of imagination, it can be construed as a motion of no confidence. Such a defect which goes to the root of the matter, cannot be said to be of technical nature.'' (underlining supplied for emphasis) The Hon'ble Division Bench further said,- ''(11). A similar contention was rejected by a Division Bench of this Court in Smt. Kamlesh Kumari vs. State of Rajasthan (1). It is held therein that the provisions of Section 37(2) of the Act of 1994 are mandatory in nature. It is difficult to conceive a meeting for removal of a Sarpanch by vote of no confidence without a proposed resolution of vote of no confidence. Everything is in air in absence of a proposed resolution for vote of no confidence and there cannot be any deliberations. Thus, in our opinion, in absence of proposed resolution for vote of no confidence, the notice of intention to make a motion under Section 37(2) of the Act of 1994 was incompetent and the Chief Executive Officer without looking into the vote of no confidence motion, had no jurisdiction to issue notice for calling meeting of the Gram Panchayat for consideration of vote of no confidence. Again the second notice in Form-II without being accompanied by motion of no confidence, was illegal, as none of the participants were aware as to 7 what was the proposed motion on which they were required to vote. Thus, the entire proceedings of motion of no confidence against appellant-petitioner being illegal and void, deserves to be quashed and set aside. '' (underlining supplied for emphasis) In view of the law declared by the Hon'ble Division Bench in Ramu Ram's case (supra), it is difficult to countenance the submissions of the learned Additional Advocate General, made with reference to the decision of the learned Single Judge in Prahlad Ram's case (supra). It may further be pointed out that in fact, in the said case of Prahlad Ram, the Hon'ble Single Judge essentially proceeded on the assumption that copy of the proposed motion had been annexed to the notice and mere denial on the part of the petitioner that he did not receive a copy of the notice was considered not of much credence and was held insufficient to rebut the presumption that the official acts are regularly performed. The decision in Smt. Kamlesh Kumari (supra) had been taken note of by the Hon'ble Division Bench in Ramu Ram's case (supra) while ruling on the mandatory requirements of serving a copy of motion with the notice. The decision in Hazara Ram's case (supra), essentially dealing with the aspect relating to the requisite number of days of notice, cannot be considered to be having a direct bearing on the issue involved in the present case. 8 In the present case, it remains indisputable, and is apparent, that the copy of the proposed motion was not accompanying the notice served on the petitioner by the learned Chief Executive Officer (Annex.2). The notice did not say that anything was annexed thereto though the form of notice as prescribed by the Rules of 1996 specifically requires so. It is further noticed that while addressing a communication to the Vikas Adhikari on 25.06.2009 (Annex.R/1) the Chief Executive Officer did annex the copies of the notice and the proposed motion with such communication. However, the learned Chief Executive Officer, for the reasons only known to him, omitted to send a copy of the proposed motion with his notice (Annex.2) to the petitioner. The respondents have suggested that they attempted to serve upon the petitioner a copy of the motion separately. The document as placed on record in that regard (Annex.R/2) does not carry any signature of the petitioner in token of acceptance and rather, it is not stated if the same was at all offered to the petitioner. On the contrary, the suggestion in the said document (Annex.R/2) by the alleged process server had been that the same was offered to the other wife of the petitioner's husband who, according to the process server, refused to sign after accepting the process. The said report could hardly be taken sufficient for the purpose of service on 9 the petitioner. In any case, when the said motion had not accompanied the notice served on the petitioner (Annex.2), it was a clear violation of the mandatory requirements of the Rules of 1996; and the proceedings as held and conducted in this matter stood vitiated for this fundamental flaw. In the aforesaid view of the matter, the impugned notice dated 25.06.2009 (Annex.2) and the proceedings thereunder deserve to be quashed. However, looking to the overall circumstances of the case, it is considered appropriate to clarify that the said proceedings are being quashed only for want of compliance of the requirements of the relevant provisions of law; and else, the respondents are free to proceed in accordance with law. Accordingly, this writ petition is allowed to the extent indicated above; the notice dated 25.06.2009 (Annex.2) and proceedings thereunder are quashed and set aside. The respondents are otherwise free to adopt the proceedings in accordance with law. In the circumstances of the case, there shall be no order as to costs of this writ petition. (DINESH MAHESHWARI), J. MK