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TMI Blog2007 (4) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... f Executive Officer, Zila Parishad Jhunjhunu disclosed that third child was born to the appellant after 27.11.1995; if she so desired, she could appear for personal hearing on the date fixed viz 16.12.1995, and submit her show-cause and produce evidence failing which the enquiry would be concluded ex-parte. It is relevant to mention here that having more than two children - born after 27.11.1995 - is a disqualification for election as panch or member of the Panchayati Raj Institution under Section 19 (1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act'). 4. The election in question was held in the month of January 2005. The appellant contested the election and was elected as Sarpanch of Gram Panchayat Bheemsar within Panchayat Samiti Jhunjhunu. According to the respondents, by reason of the birth of the third child after 27.11.2005 she was disqualified from contesting the election and she was therefore not entitled to continue in office. Challenging the authority of the CEO to make any enquiry in respect of pre-election disqualification the appellant filed the writ petition. She also prayed for stay of enquiry proceedings. It was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Panchayats while Part IX-A comprising of Articles 243P to 243ZG deals with Municipalities. These cases relate to Panchayats and therefore it is not necessary to notice the provisions relating to Municipalities in Part IX-A which are the same as in Part IX. Article 243B lays down that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. There are provisions - which we need not separately notice -relating to composition of panchayats; duration of panchayats; disqualifications for membership; and elections to the Panchayats, among other matters. The State legislature however is required to make laws on different subjects subject to the provisions of Part IX . 9. It is relevant to point out here that the Rajasthan Panchayati Raj Act 1994 has been enacted and the rules viz Rajasthan Panchayati Raj Rules 1996 or the Rajasthan Panchayati Raj (Election) Rules 1994 - with which we are concerned in these cases -have been framed in fulfilment of the above-mentioned mandate of the Constitution in Part IX. The provisions of Part IX are somewhat akin to the corresponding provisions relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter, any number of children born out of a single subsequent delivery shall be deemed to be one entity. 12. The case of the respondents is that a person having more than two children - born after 27.11.1995 - is disqualified for election as a panch/member of any Panchayati Raj Institution and in the event of his election despite such disqualification, he is liable to be ousted form the office in an enquiry under rule 23 of the Rules read with Section 39(2) of the Act. 13. As stated above, the impugned enquiry in these cases has been held or is sought to be held under the aforesaid provisions. Section 39 which is somewhat similar to Clause (2) of Article 243F of the Constitution runs as under: 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) is or becomes subject to any of the disqualifications specified in Section 19; or (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) is removed from the membership; or (d) resigns from the membership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed by the notice, the Chief Executive Officer or the State Government as the case may be shall hear the informant, if any, as well as the member if he appears before him and requests for a personal hearing, shall consider the document and other evidence produced by them in proof or disproof of the allegation or allegations, shall make such further inquiry as he may think necessary, shall record a finding as to the alleged disqualification or disqualifications and shall either order the proceedings to be dropped or declare the seat of such member to have become vacant or make such other order as may be proper in the circumstances of the case under Section 39 of the Act. 15. According to the appellants, the election of the panch/member of any Panchayati Raj Institution can be called in question only by way of election petition in terms of Section 43 read with Section 117 of the Act further read with rule 80 of the Panchayati Raj (Election) Rules. Sub-section (2) of Section 39 of the Act is limited to post-election disqualifications as specified in Sub-section (1) of Section 39 of the Act and the enquiry under rule 23 therefore would be limited to such post- election disqualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notwithstanding anything in this Constitution - (a) ... (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. 329. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution. (a) ... (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. 19. Section 43, it would appear, in clear and unequivocal terms lays down that election of panch/member of any Panchayati Raj Institution held under the Act/Rules can be challenged by way of election petition before the concerned District Judge, having jurisdiction in the manner, on grounds set out in rule 80 of the Election Rules. If there was any scope for doubt in this regard, it is dispelled by Section 117 which declares in most unambiguous terms that no election to any Panchayati Raj Institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, he is not eligible to continue to be member and the membership can be terminated after enquiry in the manner provided in rule 23 of the Panchayati Raj Rules. 24. Clause (a) in terms no doubt refers to disqualifications specified in Section 19. However, in order to appreciate its true import, the clause may be dissected into two parts - is subject to and becomes subject to any of the disqualification So far as becomes subject to... is concerned, the word 'become' as an intransitive verb means start to be . In the New Shorter Oxford Dictionary, it is defined to mean come to be or begin to be . The word becomes therefore visualizes a subsequent event which renders the person disqualified if he has incurred any of the disqualifications specified in Section 19. 25. The question is whether is subject to refers to and includes past disqualifications as on the date of election. We may straightaway observe that if the legislature intended to include past or pre-election disqualification as ineligibility to continue to be such member for the purpose of cessation of membership under Section 39, it would have used the word was in place of is . However, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in Words and Phrases. 'Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of the doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis'. In fact the latter maxim 'is only an illustration or specific application of the broader maxim noscitur a sociis'.... 29. In these premises, we do not find any conflict between is subject to and becomes subject to in Section 39(1) (a) of the Act. 30. It is also a settled rule of interpretation that where the statute is capable of more than one interpretation, the one which fits in the context and does not come in conflict with other provisions of the Act should be preferred. While interpreting Clause (a) of Section 39(1) of the Act, the provisions of Sections 43 and 117 of the Act and rule 80 of the Election Rules can not be ignored. All these and other cognate provisions have to be harmoniously construed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualification. We have explained the import of the words has become and held that the expression contemplates disqualification incurred subsequently and not past or pre-election disqualifications. We have also held that there is no apparent conflict between is subject to and becomes subject to in Clause (a) of Section 39(1). We therefore hold that rule 23 to the extent it seeks to extend the enquiry thereunder to preelection disqualification is beyond the scope and mandate of Section 39(2) of the Act read with Article 243F(2) of the Constitution of India and therefore ultra vires the Act and the Constitution. 34. In terms of Clause (2) of Article 243F, if any question arises as to whether a member of a Panchayat has become subject to any disqualification mentioned in Clause (1), the question is to be referred for the decision of such authority and in such manner as the State Legislature may by law provide. In other words, what can be referred to the authority is the dispute as to whether the person suffers from any disqualification mentioned in Clause (1). The result of the election cannot be challenged before the authority. That can be done only by way of election petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any unsuccessful candidate, and therefore a third party cannot question the result of election. According to counsel for the respondents, if the unsuccessful candidate does not challenge the election - in collusion with the successful candidate or otherwise - the election may never be called in question at all even though the person was disqualified for election. The submission is well-founded but does not improve the case of the respondents. The fact that the third party cannot challenge the election of the successful candidate despite his disqualification under Section 43 does not mean that the election cannot be challenged at all. Any person can approach the High Court under Article 226 of the Constitution and seek ouster of the successful candidate from the office by a writ of quo warranto. For seeking writ of quo warranto, it is not necessary that a person should have locus standi i.e. personal interest in the subject-matter. Writ of quo warranto can be issued if the Court is satisfied that the person was not qualified for the office/post and he is a usurper. 39. In K. Venkatchalam v. A. Swamickan [1999] 2 SCR 857, it was held that where recourse to election petition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no embargo against the competent authority to take action under Section 39, otherwise the whole purpose and legislative intent of Section 39 may be defeated and rendered otiose. Inquiry under Section 39 is limited to the question of qualification or otherwise - whereas the election dispute under section 43 can be raised on other grounds as well Section 39 is a special provision to take care of specific wrong and section 43 is a general provision to raise election dispute on more than one grounds and is available to the candidates at such election, this special provision takes care of the principle that every wrong has a remedy and no wrong can be left without remedy.... 44. In Bheru Singh Rathore (supra), another Division Bench of this Court however held to the contrary as under: 21-...on the basis of decision of the Supreme Court in Saka Venkata Rao's case (supra), it must be held that Article 243F of the Constitution read with Sections 19 and 39 of the Act of 1994 on the one hand, dealing with disqualifications incurred before or after the election as a member of Panchayat and Article 243-O(b) on the other hand, dealing with challenge to election of any member of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration. 3. Writ petitions were filed before learned Single Judge for quashing of inquiry initiated by Chief Executive Officer, Zila Parishad and the incumbent was informed that in preliminary inquiry in was prima facie established that third child was born after 23.11.95; hence was called upon to appear for personal hearing before competent authority to examine dispute/complaint in exercise of powers Under Section 39(2) of Rajasthan Panchayati Raj Act, 1994 ( Act, 1994 ) and in other set of matter, at the stage when inquiry was pending, writ petitions were filed before learned Single Judge for setting aside very notice served upon writ petitioner in holding inquiry by authority Under Section 39(2) of the ct, wherein since learned Single Judge dismissed prayer for interim relief, Special Appeals have been filed before Division Bench where a question arose as to whether if one has been elected as Sarpanch or Member of Panchayati Raj institutions, can pre-election disqualification, if any, attached to him be examined on a complaint by authority Under Section 39(2) of the Act, 1994. 4. Since the learned Single Judge was of the view that there were clear conflicting views ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State. 6. Pursuant to the constitutional mandate as noticed, ibid, the State of Rajasthan enacted the Rajasthan Panchayati Raj Act, 1994 by Rajasthan Act No. 13 of 1994. Under Scheme of Panchayati Raj, its institution has been defined in Clause (xvii) of Section 2 to mean an institution of self Government established under the Act, 1994 for rural areas, whether at the level of the village or a block or a district. Various institutions to be established under the act, 1994 are Panchayat, Panchayat Samiti, Zila Parishad and function of each of these Panchayati Raj institutions and respective powers and duties ordained for person holding various offices under such institutions have been separately defined under various provisions. 7. Chapter IV of Act, 1994 deals with powers of State Government in the matter of superintendence over functions of Panchayati Raj Institutions. Section 2(vii) defines competent authority to mean such officer or authority as the State Government may, by notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayati Raj Institution or (c) is removed from the membership; or (d) resigns from the membership or (e) dies; or (f) fails to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment; (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 competent authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall be vacate his office as such member. 10. Section 43 dealing with determination of disputes as to elections is reproduced below: 43. Determination of disputes as to elections.-(1) An election under this Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the district Judge having jurisdiction a petition in this behalf on the prescribed grounds and within the prescribed period. and in terms of Article 243-0(b) of Constitution of India, Section 117 of Act, 1994 envisages a bar to interference by Courts which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lified, as alleged, (iv) call upon him to produce, in denial of the allegations, such documentary or other evidence as may be in his possession, and (v) invite him to appear personally, if he so desired, on the date fixed by the notice, and a copy of the notice shall be sent also to the informant, if any. (2) On the date fixed by the notice, the Chief Executive Officer or the State Government as the case may shall hear the informant, if any, as well as the member if he appears before him and requests for a personal hearing, shall consider the document and other evidence produced by them in proof of disproof of the allegation or allegations, shall make such further inquiry as he may think necessary, shall record a finding as to the alleged disqualification or disqualifications and shall either order the proceedings to be dropped or declare the seat of such member to have become vacant or make such other order as may be proper in the circumstances of the case under Section 39 of the Act. 12. Rules 80(1) 81 of Election Rules, 1994 are reproduced below: 80. Manner of challenging an election under the Act.-An election under the Act or under the Rules may be called in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merging problems and challenges. 16. The Constitution, itself, has taken note of situation while making 73rd amendment and particularly Article 243F empowers the legislature of the State to prescribe authority to determine as to whether a member of Panchayati Raj Institution has become subject to any of the disqualifications mentioned in Clause (1) thereof. On an analysis of Articles 243F 243-O(b) of the Constitution of India it clearly emerges that both the Articles deal with in different situation viz., when election of candidature is questioned; and when a question arises as to whether or not member of Panchayati Raj Institution is or has become subject to any of disqualifications. In both the situations, the Constitution provides separate remedy. In earlier situation, under Article 243-O(b), election can be questioned by way of election petition by a candidate to be presented to such an authority as provided under Section 43 of Act, 1994 but latter situation is covered by Article 243F where candidate becomes ineligible or has become ineligible to continue as a member in view of disqualifications as provided by Laws Under Section 9 of the Act, 1994. In fact, Sections 19 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sub-section (2 of Section 39 of Act, 1994; yet the fact remains that provisions of Section 19 stand incorporated in Section 39(2) and it was not at all necessary for the legislature to reiterate the very words, ibid. Sub-section (2) of Section 19 uses the words, a member has become ineligible for any of reasons specified in Sub-section (1) and Section 39(1) (a) which mentions of Section 19, does not exclude the disqualification, from which the person has already been suffering at the time when the elections were held. Disqualification suffered by the candidate at the time of election is a valid ground to be taken note of initiating action Under Section 39(2) by competent authority notwithstanding remedy of election petition Under Section 43 read with Rule 80 81 of Election Rules, which is available to the candidate alone. 21. However, it is to be further considered that only a candidate at such election can file election petition and such a candidate may or may not like to invoke such remedy. But person attached with pre-election disqualification provided Under Section 19 of Act, 1994 can certainly be called upon for his explanation merely on a complaint or if it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are two separate remedies; but in fact, for pre- election disqualification, remedy is only provided Under Section 39(2) of the Act and for all kind of election disputes, remedy has been provided Under Section 43 read with Rule 80 of Election Rules. While questioning election of an elected member of Panchayati Raj Institution, there can be one of grounds available for being raised by defeating candidate only. 25. Basic principle of law is that every wrong has a remedy and no wrong can be left without remedy. It is well settled that entire statute must be read as a whole. Relevant provisions of Constitution of India and so also those in the statute must be read harmoniously. If election petition is only to be considered as a remedy available to a contesting candidate Under Section 43 of the Act, 1994, for examining pre-election disqualifications attached to member/candidate at the election, certainly gives a room to the persons to conceal and misrepresent. Returning Officer while submitting nomination Form despite pre-election disqualifications being attached with him on the date when nomination Forms are filled and for such wrong, if only remedy available is by way of election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either reserved or unreserved was indicated and this list was notified as the first step before holding the elections for the year 2000 and against entry at item No. 44 mentioning Dhunwala Mandal no reservation was stated while the seat was declared as a general seat. Accordingly process of election was initiated and finally general candidate was elected and he took oath of his Office and thereafter when complaint was made that the seat on which election process was initially notified for a general candidate, in fact was erroneous and as per record available with them, the seat was reserved for Scheduled Caste candidate and on the said complaint, it was considered to be pre-election disqualification and process was initiated against elected member Under Section 39(2) of Act, 1994. 28. With all due respect, whether a seat on their record was reserved for Scheduled Caste or meant for general candidate became immaterial while it was once notified as of General seat and finally elections were held and an elected candidate took oath of Office, then yet this question holds as to whether such an error, if any, committed by respondents authority while issuing notification of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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