Rajasthan High Court - Jodhpur

Smt. Pawan Kanwar vs State Of Rajasthan on 9 December, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 18162/2022

Smt. Pawan Kanwar W/o Sh. Aidan, Aged About 42 Years, (Sarpanch Gram Panchayat Chhodia), R/o Gram Panchayat Chhodia, Jaisalmer, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Rural Development And Panchayati Raj Department, Secretariat, Jaipur.

2. The Chief Executive Officer, Zila Parishad Jaisalmer.

3. Gram Vikas Adhikari, Panchayat Samiti Fatehgarh.

                                                                     ----Respondents


For Petitioner(s)            :    Mr C.S.Kotwani
                                  Mr Digvijay Singh Sodha



             HON'BLE MR. JUSTICE VIJAY BISHNOI

                            Judgment / Order

09/12/2022

This writ petition is filed by the petitioner seeking

following reliefs:

"It is, therefore, most respectfully and humble prayed that;

i) the instant writ petition may kindly be ordered to be allowed and a writ, order or direction the impugned notice dated 22.11.2022 (Annex.5) & 22.11.2022 (Annex.06) may kindly be quashed and set aside; and

ii) the respondents may kindly be restrained from conducting any meeting in pursuance to proposed so called No Confidence Motion.

iii) Any other order of direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioner."

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           The      petitioner     is   an     elected       Sarpanch       of   Gram

Panchayat, Chhodia through election held on 24.09.2020. She has

filed this writ petition being aggrieved with no confidence

proceedings initiated against her by the Chief Executive Officer,

Zila Parishad, Jaisalmer pursuant to the notice of no confidence

motion submitted by the Members of the Gram Panchayat. The

meeting for consideration of no confidence motion is scheduled to

be held on 09.12.2022.

The principal argument of the learned counsel for the

petitioner is this that she is not in receipt of any notice of

proposed meeting. It is contended that as per the provisions of

Rule 21(2) of the Rajasthan Panchayati Raj Rules, 1996

(hereinafter to be referred as 'the Rules of 1996'), it is mandatory

that a notice is issued to all the Members of the Gram Panchayat

including the Sarpanch but the petitioner has not been served with

any such notice. When the notice of the meeting of the Gram

Panchayat for consideration of the no confidence motion against

the petitioner has not been served upon her along with the

proposed no confidence motion, the whole proceedings initiated

against the petitioner for consideration of no confidence motion

are vitiated and the same are liable to be set aside.

Learned counsel for the petitioner has argued that the

meeting of the no confidence motion is convened by the Chief

Executive Officer, Zila Parishad, Jaisalmer after expiry of 30 days

from the date of receipt of no confidence motion by the members

concerned and, therefore, also the whole proceedings are vitiated.

In support of the above contention, learned counsel for the

petitioner has placed reliance on a decision of a Coordinate Bench

(3 of 6) [CW-18162/2022]

of this Court rendered in Smt. Subhadra vs. State of

Rajasthan, reported in 2010 (2) CDR 797 (Raj.).

Heard learned counsel for the petitioner and perused

the material available on record.

The petitioner has contended that the notice of meeting

for consideration of no confidence motion against her has not been

served upon her but she has failed to disclose in her writ petition

that how she came to know about the proceedings of no

confidence motion against her. Though, in the writ petition, it is

claimed that a copy of the proposed motion of no confidence

submitted by the Members of the Gram Panchayat and other

documents such as notices issued by the Zila Parishad etc. have

been obtained by her under the RTI but no date of obtaining such

information is disclosed by her. Otherwise also, it is noticed that

the Chief Executive Office, Zila Parishad, Jaisalmer wrote a letter

dated 22.11.2022 to the Vikas Adhikari, Panchayat Samiti,

Fatehgarh, wherein it is mentioned that notice of the meeting

dated 09.12.2022 for consideration of no confidence motion

against the petitioner has already been issued to all the Members

with a direction that the notice of the said meeting be pasted on

the notice board of the Gram Panchayat itself.

It is also to be noticed that this writ petition has been

filed by the petitioner before this Court on 28.11.2022, wherein

she has annexed a copy of the proposed no confidence motion

submitted by four Ward Members of the Gram Panchayat and a

copy of the notice issued to the four Members of the Gram

Panchayat from which it can be gathered that the petitioner is

having knowledge of the meeting dated 09.12.2022 and is also in

(4 of 6) [CW-18162/2022]

possession of the copy of the proposed no confidence motion

submitted by the Members of the Gram Panchayat against her,

therefore, it cannot be said that she is prejudiced in any manner.

As per clause (i) of sub-section (3) of Section 37 of the Rajasthan

Panchayati Raj Act, 1994 (hereinafter to be referred as 'the Act of

1994'), a notice for consideration of no confidence motion of not

less than 7 clear days is required to be issued to the Members of

the Gram Panchayat and from the facts of this case, it is clear that

the petitioner is having knowledge about the meeting scheduled to

be held on 09.12.2022 much prior to seven clear days from the

date of meeting. In such circumstances, I am of the view that the

challenge of the petitioner to the no confidence motion

proceedings is without any merit.

So far as judgment on which the counsel for the

petitioner has placed reliance in Smt. Subhadra vs. State of

Rajasthan (supra) are concerned, the facts of that case are

distinguishable from the facts of this case, hence, the same is of

no help to the petitioner.

Apart from that, it is noticed that in all, there are six

Members of the Gram Panchayat, Chhodia, Jaisalmer including the

petitioner and out of them, four Members have submitted no

confidence motion against her, which are more than 1/3rd in the

capacity. This Court is of the opinion that a person cannot

continue to hold an office against the wishes of majority of the

Members of that office and any attempt of him/her to stick to

his/her elected office should be discouraged.

The Division Bench of this Court in Bhurekhan vs.

State of Rajasthan & 14 Ors., 1976 WLN 73 dealing with the

(5 of 6) [CW-18162/2022]

case regarding no confidence motion against a Sarpanch has held

as under:

"3. Learned Government Advocate and the counsel appearing on behalf of the respondents raised a preliminary issue before this Court that even if this Court comes to the conclusion that the officiating Tehsildar had no authority to preside over the meeting, the court should not interfere with the judgment of the learned single Judge who has dismissed the appellant's writ petition on a consideration well founded in the democratic world and, therefore, the appeal should be dismissed without going into the merits of the matter raised by the appellant. In support of this preliminary objection reliance has been placed on an authority of this Court in Radhey Shyam v. Vijai Singh, District Magistrate, Ganganagar and Ors., 1972 WLN 772.

4. The facts mentioned above have not been disputed by the parties. It is also admitted by Mr. Agrawal appearing on behalf of the appellant that the objection raised by him is undoubtedly of a highly technical nature but his contention is that in democracy when the meeting is to be conducted in a prescribed manner, it should be done strictly in accordance with the procedure laid down by the law otherwise in the eye of law the meeting conducted in contravention of the prescribed procedure shall be deemed as if no meeting had ever taken place and, therefore, if the meeting was presided over by an officer who was not competent under the law, it cannot be said that the intention of the members was correctly found out,

5. In Radhey Shyam's case 1972 WLN 772 the notice for convening a meeting issued by the Collector was defective inasmuch as it did not comply with the mandatory requirement of Section 72(3) of the Act but that defect in the notice did not in any manner affect the opinion of the members and, therefore, this Court observed that "it is true that when the mandatory provisions of law have been violated while despatching the notice to hold the meeting on 18th September, 1971 it would go to vitiate the result of the meeting but I cannot forget that I am entertaining the petition of the petitioner in the exercise of a jurisdiction which is entirely discretionary. The traditions of democracy require that a person who wants to hold the elected office of a local body must give due respect to the wishes of the majority of the members of that body and if he has lost the confidence of that majority then he should not try to stay in that office even for a moment and should not come forward to seek the protection of this Court under the extraordinary jurisdiction conferred by Article 226 of the Constitution. This jurisdiction is of a equitable nature and in equity if a petitioner does not come with clean hands he is not entitled to seek any remedy from the Court."

6. It was further observed in that case "In order to create healthy conventions for the functioning of democracy in the

(6 of 6) [CW-18162/2022]

country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the court should show its reluctance to allow such persons to invoke this extraordinary jurisdiction."

7. In the instant case out of 12 members 9 persons voted for the motion of no-confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the Presiding Officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating Tehsildar and not by the Tehsildar himself cannot invoke any sympathy in favour of Bhure Khan. The discussions in the above cited case clearly indicate that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant has lost his right because of the fact that the members have lost faith in him and, therefore, in such circumstances this Court should not allow itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail."

The ratio laid down by the Division Bench of this Court

in the above referred case squarely applies to the case of the

petitioner also. Hence, this Court while exercising discretionary

powers is not inclined to interfere in this matter purely on

technical grounds.