Rajasthan High Court - Jodhpur
Sohanlal Jain vs State Of Rajasthan on 17 February, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2289/2022 Sohanlal Jain S/o Shri Motilal Jain, Aged About 61 Years, Village And Post Dhanin, Tehsil Charbhuja, Panchayat Samiti Kumbhalgarh, District Rajsamand Presently Sarpanch, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand (Raj.)
----Petitioner Versus
1. State Of Rajasthan, Through The Secretary To The Government, Rural Development And Panchayati Raj Department (Panchayati Raj), Government Of Rajasthan, Secretariat, Jaipur
2. District Collector, Rajsamand.
3. Chief Executive Officer, Zila Parishad, Rajsamand.
4. Development Officer, Panchayat Samiti Kumbhalgarh, District Rajsamand
5. Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand Through Its Village Development Officer
6. Manohar Singh S/o Shri Ram Singh Solanki, Village Dhanin, District Rajsamand Presently Up-Sarpanch, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand
7. Himmat Singh S/o Shri Laxman Singh, Village Dhanin, District Rajsamand Presently Ward Panch, Ward No. 10, Village Baniya Tukda, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand
8. Smt. Manju Soni W/o Shri Sunil Soni, Village Dhanin, District Rajsamand Presently Member, Gram Panchayat Ward No. 8, Village Mojawato Ka Guda, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand
9. Ratan Singh S/o Shri Mohan Singh Patwa, Village Dhanin, District Rajsamand Presently Member, Gram Panchayat Ward No. 2, Village Dhanin, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand.
10. Himmat Singh S/o Shri Fateh Singh, Village Dhanin, (Downloaded on 18/02/2022 at 08:45:41 PM) (2 of 5) [CW-2289/2022] District Rajsamand Presently Member, Gram Panchayat Ward No. 1, Village Amli Ka Guda, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand.
11. Vikas S/o Shri Babulal Khatik, Village Dhanin, District Rajsamand Presently Member, Gram Panchayat Ward No. 4, Village Dhanin, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand
12. Mangu Kanwar W/o Shri Manohar Singh, Village Dhanin, District Rajsamand Presently Member, Gram Panchayat Ward No. 7, Village Amliyar, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand.
13. Smt. Saski W/o Shri Pratap Gameti, Village Dhanin, District Rajsamand Presently Member, Gram Panchayat Ward No. 9, Village Mohanram Ji Ka Gudda, Gram Panchayat Dhanin, Panchayat Samiti Kumbhalgarh, District Rajsamand.
----Respondents
For Petitioner(s) : Mr. Mukesh Vyas
For Respondent(s) : Mr. Manish Tak, Dy. G.C.
Mr. Devendra Mahlana
JUSTICE DINESH MEHTA
Order
17/02/2022
1. By way of the present writ petition, the petitioner has challenged the notice of no confidence motion dated 27.01.2022 (Annex.-7), issued by the competent authority under Section 37 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as "the Act of 1994"). The notice has been challenged on the following grounds:-
(i) that the instant motion, which is second motion, has been brought within a period of less than a year, of the first motion is impermissible in view of the (Downloaded on 18/02/2022 at 08:45:41 PM) (3 of 5) [CW-2289/2022] provisions of section 37(13) of the Rajasthan Panchayati Raj Act, 1994.
(ii) that the motion is not a valid motion, inasmuch as, membership of one member namely Himmat Singh is in serious doubt as he has fathered 3 rd child after the cut-off date.
(iii) Notice for motion is not in prescribed format.
(iv) The notice is not accompanied with the proposed motion.
2. Mr. Manish Tak, learned counsel for the respondent-State, in reply to the grounds taken by the petitioner, argues that the petitioner's first argument that the second motion cannot be brought within a period of one year, is not tenable, inasmuch as, first motion dated 06.12.2021 had been stayed by this Court and more particularly writ petition (S.B. Civil Writ Petition No.149/2022) filed thereagainst has been allowed by a separate order passed today. It is further argued that since, the earlier motion was contrary to the provisions, the same cannot be treated to be a motion in the eye of law.
3. In relation to the second argument, it is submitted that firstly Himmat Singh cannot be treated to be an ineligible member unless competent authority holds him so. It is also contended that even if he is treated to be ineligible, it is to be noted that as many as 8 members have mooted the proposal and hence his exclusion would mean that the motion has been moved by seven members, which is in any case more than the statutory requirement of 1/3rd members, as the total number of members is
11. (Downloaded on 18/02/2022 at 08:45:41 PM)
(4 of 5) [CW-2289/2022]
4. In response to the third argument, it is argued by learned counsel that the motion (Annex.7), in substance, is in accordance with Rule 22 of the Panchayati Raj Rules. Merely because Form No.1 has not been mentioned, it cannot be said to be an irregular motion, in light of the provision contained in section 113 of the Act of 1994.
5. Meeting the fourth argument of the petitioner that the notice was not accompanied by proposed motion, Mr. Tak submits that the affidavits enclosed with the motion clearly shows the intention of the members and, thus, the statutory requirement under Rule 22(1) and (2) of the Rules of 1994 is fulfilled.
6. Heard on the interim application.
7. This court is not convinced with first, three grounds raised by Mr. Vyas, however, finds substance in the last argument/ground raised by the petitioner. But for the purpose of considering interim relief, this Court does not deem it necessary to dialate upon them and give reason for repelling such contentions.
8. Concededly, the notice in terms of section 37(2) that was given by the members is Annex.-7.
9. True it is, that the same is not in prescribed Form No.1, but the same may be ignored. But then, sub-section 3(1) of section 37 of the Act of 1994 specifically mandates that the competent authority shall send a copy of the notice with the copy of the proposed motion.
10. On perusal of the record, this Court finds that neither the notice given by the members to the competent authority is accompanied with the proposed motion nor the notice has been issued in terms of section 37(3)(1) of the Act of 1994. (Downloaded on 18/02/2022 at 08:45:41 PM)
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11. The motion under challenge is prima-facie void and illegal and the matter requires consideration.
12. Issue notice. Issue notice of stay application also.
13. Mr. Manish Tak accepts notice on behalf of respondent-State, while Mr. Mahlana accepts notice on behalf of the private respondent No.6-13. Notice need not be issued.
14. List this case for final hearing in the last week of April, 2022.
15. Meanwhile, proceedings in furtherance of the impugned no confidence motion dated 27.01.2022 (Annex.-7) shall remain stayed; consequently the meeting of the members scheduled on 28.02.2022 shall not be held.
16. The respondents shall have liberty to file an application for vacation of stay filed with/after filing reply to the writ petition.
(DINESH MEHTA),J 103-Ramesh/-
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