Rajasthan High Court - Jaipur
Kana Ram vs State Of Rajasthan And Anr. on 25 September, 2002
Equivalent citations: 2003(1)WLC214, 2001WLC(RAJ)UC769, 2002(5)WLN677
JUDGMENT Sunil Kumar Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 17.6.2002 with a prayer that by an appropriate writ, order or direction, the order dated 9.5.2002 (Annex. 3) by which the petitioner was suspended from the office of Sarpanch, Gram Panchayat, Bajwas by respondent No. 2 (Divisional Commissioner), Ajmer exercising the powers under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) and placing reliance on the circular dated 16.5.2000 (Annex. 4) issued by the respondent No. 1 (the Government of Rajasthan) be quashed and set aside.
2. The facts of the case as put forward by the petitioner are as under:
(i) That the elections for the post of Sarpanch of Gram Panchayat, Bajwas, Tehsil Parbatsar, Dist. Nagaur were held in the month of February, 2000. In the said elections, the petitioner was elected as Sarpanch, Gram Panchayat, Bajwas.
(ii) That thereafter the petitioner received a notice (Annex. 1) from the respondent No. 2 (Divisional Commissioner, Ajmer) dated 5.2.2002 purporting to be under Section 39 of the Act of 1994 and the petitioner was asked to submit his explanation on 13.3.2002.
(iii) That the petitioner submitted his explanation (Annex. 2) dated 13.3.2002 in compliance of notice dated 5.2.2002 (Annex. 1).
(iv) It may be stated here that Sub-section (1) of Section 19 makes a person disqualified for the post of Sarpanch if he has more than two children and the object of issuance of notice dated 5.2.2002 (Annex. 1) to the petitioner was that after coming into force of Act of 1994 and on the date of election he was having more than 2 children, therefore, his election to the office of Sarpanch, Gram Panchayat, Bajwas was illegal.
(v) The further case of the petitioner is that respondent No. 2 (Divisional Commissioner, Ajmer) thereafter passed an order of suspension on 2.5.2002 (Annex. 3) stating that since an enquiry was pending against the petitioner, therefore, in exercise of powers conferred by Section 38(4) of the Act of 1994 and the circular dated 16.5.2000 (Annex. 4) issued by the State Government, the petitioner was suspended. This order dated 9.5.2002 (Annex. 3) passed by respondent No. 2 (Divisional Commissioner, Ajmer) has been challenged in this writ petition.
3. The main submission of the learned Counsel for the petitioner is that till declaration under Section 39(2) is passed declaring the petitioner ineligible, the suspension order dated 9.5.2002 (Annex. 3) passed by the respondent No. 2 (Divisional Commissioner, Ajmer) could not be sustained and hence it should be quashed.
4. Reply to the writ petition was filed by the respondents and it has been submitted by the respondents that the petitioner had become ineligible to hold the office of Sarpanch for the simple reason that he had more than two children and as such he was disqualified and that is why the notice dated 5.2.2002 (Annex. 1) was issued by the respondent No. 2 (Divisional Commissioner, Ajmer) and the petitioner submitted reply (Annex. P-2) to the notice dated 5.2.2002 on 13.3.2002 and thereafter the parties were required to submit their evidence and the next date of hearing was fixed as 22.4.2002. On 22.4.2002, the petitioner sought adjournment and the next date of hearing was fixed as 29.4.2002 and since on that date, the petitioner did not appear, therefore, he was rightly put under suspension by order dated 9.5.2002 (Annex. 3) passed by the respondent No. 2 (Divisional Commissioner, Ajmer) Hence, this writ petition should be dismissed.
5. Heard and perused the record.
6. In this case show cause notice dated 5.2.2002 (Annex. 1) was issued by the respondent No. 2 (Divisional Commissioner, Ajmer) under Section 39 read with Section 19(1) of the Act of 1994. Section 19(1) deals with disqualification of a Sarpanch on the ground of having more than 2 children.
7. The order of suspension dated 9.5.2002 (Annex. 3) was passed by the Divisional Commissioner, Ajmer (respondent No. 2) under Section 38(4) of the Act of 1994. It has been submitted by the learned Counsel for the petitioner that in this case Section 38(4) of the Act of 1994 is not applicable and proposed action, if it was to be taken, should have been taken under Section 39 of the Act of 1994 and that too only after making declaration as provided under Section 39(2) of the Act of 1994.
8. The pertinent question that arises for consideration is whether order of suspension in case of disqualification under Section 19(1) of the Act of 1994 can be passed under Section 38(4) of the Act of 1994 or not.
9. For convenience, Section 19(1) and Section 38(4) of the Act of 1994 are reproduced hereunder:
19. Qualification for election as a Panch or a member.--Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person
(a)...
(b)...
(1) has more than two children Provided that
(i) ....
(ii) ....
(iii) ....
(iv) the birth during the period from the date of commencement of this Act hereinafter in this proviso referred to as the date of such commencement, to 27.11.1995, of an additional child shall not be taken into consideration for the purpose of the disqualification mentioned in Clause (1) and a person having more than two children (excluding the child, if any, born during the period from the date of such commencement to 27.11.1995) shall not be disqualified under that Clause for so loan as the number of children he had on the date of commencement of this Act does not increase.
Explanation.--For the purpose of Clause (1) of Section 19, where the couple has only child from the earlier delivery and deliveries on the date of commencement of this Act and thereafter any number of children born out of single subsequent delivery shall be deemed to be one entity.
38. Removal and suspension.--(1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary remove from the office any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution who.
(2)...
(3)...
(4) The State Government may suspend any member including a chairperson or a deputy chair person of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension.
(5)....
10. According to Section 38(4) of the Act of 1994, a member can be suspended if an enquiry has been initiated under Sub-section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension.
11. In the present case, there is no dispute on the point that no criminal case is pending against the petitioner.
12. In my opinion, the case of the present petitioner being disqualified on the ground that he was having more than two children cannot be covered by Section 38(1) of the Act of 1994 because of the simple reason that the notice dated 5.2.2002 (Annex. 1) which, was issued by the respondent No. 2 (Divisional Commissioner, Ajmer) was issued under Section 39 of the Act of 1994 and not under Section 38 of the Act of 1994 and, therefore, passing of order dated 9.5.2002 by the respondent No. 2 (Divisional Commissioner, Ajmer) under the provisions of Section 38(4) of the Act of 1994 is bad in law and per se illegal.
13. It is, therefore, held that if a notice is issued under Section 39 read with Section 19(1) of the Act of 1994, the suspension order cannot be passed under the provisions of Section 38(4) of the Act of 1994. From this point of view, the suspension order dated 9.5.2002 (Annex. 3) passed by the Divisional Commissioner, Ajmer (respondent No. 2) cannot be sustained. Apart from this, the question is whether such an order can be said to have been passed under Section 39 of the Act of 1994 or not.
14. For convenience Section 39 is reproduced hereunder:
39. Cessation of membership.--(1) Subject to the provisions of Section 40, 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; or
(e) dies; or
(f) fails to make the prescribed oath 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 to being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member:
Provided that no such opportunity shall be given if such member has, under Section 40, been determined by the Judge to be or to have become disqualified under Section 19:
Provided further that until a declaration under this sub-section is made, he shall continue to hold his office.
15. Clause (a) of Sub-section (1) of Section 39 makes the position clear that a member shall not be eligible to continue to be such member if he becomes subject to any of the disqualification specified in Section 19.
16. The present case is a case of disqualification under Section 19(1) of the Act of 1994 because as alleged petitioner is having more than two children. Thus, the notice dated 5.2.2002 (Annex. 1) issued by the Divisional Commissioner, Ajmer (respondent No. 2) under Section 39 for disqualification under Section 19(1) of the Act of 1994 was rightly issued. Thus, it is held that in case of disqualification under Section 19(1), the notice would be issued under Section 39 of the Act of 1994 and not under Section 38 of the Act of 1994. From this point of view also, the order dated 9.5.2002 (Annex. 3) becomes illegal one and cannot be sustained.
17. Apart from this, the next question which arises for consideration is whether any case for passing an order of suspension under the provisions of Section 39 of the Act of 1994 has been made out or not.
18. Sub-section (2) of Section 39 is very much clear on this point 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. Proviso to Sub-section (2) of Section 39 clearly provides that until a declaration under this sub-section is made, that person shall continue to hold his office.
19. In the present case, preliminary enquiry was going on when the impugned order dated 9.5.2002 (Annex. 3) has passed by the respondent No. 2 (Divisional Commissioner, Ajmer) and as per reply of respondents, the petitioner filed reply to the notice dated 5.2.2002 (Annex. 1) issued by the Divisional Commissioner, Ajmer and enquiry was going on, but since on one day, the petitioner did not appear before the respondent No. 2 (Divisional Commissioner, Ajmer), the respondent No. 2 (Divisional Commissioner, Ajmer) passed the impugned order dated 9.5.2002 (Annex. 3), but before passing the order dated 9.5.2002 (Annex. 3) no declaration as provided in Section 39(2) of the Act of 1994 that the petitioner had become ineligible under Section 19(1) of the Act of 1994 was made. In view of this fact, the suspension order dated 9.5.2002 (Annex. 3) passed by respondent No. 2 (Divisional Commissioner, Ajmer) cannot be sustained.
20. For the reasons mentioned above, this writ petition is liable to be allowed and the order dated 9.5.2002 (Annex. 3) passed by the respondent No. 2 (Divisional Commissioner, Ajmer) is liable to be quashed and set aside.
Accordingly, this writ petition is allowed and the order of suspension dated 9.5.2002 (Annex. 3) passed by the Divisional Commissioner, Ajmer (respondent No. 2) against the petitioner is set aside. However, it is made clear that if after making compliance of Sub-section 2 of Section 39 of the Act of 1994, any fresh order of suspension is passed, this order would not come in that way.
Cost made easy.