Rajasthan High Court - Jaipur
Smt. Bhanwari Devi vs The State Of Rajasthan on 11 October, 1996
Equivalent citations: 1997(1)WLC42, 1996(2)WLN387
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT P.P. Naolekar, J.
1. The petitioner is an elected Sarpanch of Gram Panchayat Ribiya. One Parsaram, Panch of Gram Panchayat, Ribiya had filed a complaint alleging that in the month of February, 1996, the Sarpanch of the Gram Panchayat had delivered a male child and, therefore, as per the provisions of Section 19 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter called as 'the Act'), she has incurred a disqualification for continuing as a Sarpanch and, therefore, she may be removed from the post of Sarpanch. The document showing the birth of the child alongwith a certificate issued by the Senior Medical Officer was attached to the complaint. On receipt of the complaint, the Chief Executive Officer, Zila Parishad, Churu, has directed the Vikas Adhikari, Panchayat Samiti, Churu, to make an enquiry into the allegations levelled in the complaint. The Vikas Adhikari had conducted the enquiry and submitted a report to the Chief Executive Officer, Zila Parishad, Churu. On 15.5.96, the Chief Executive Officer, Zila Parishad, Churu, respondent No. 2, had issued a notice to the petitioner alleging that on account of birth of a child in the month of February, 1996, she has incurred a disqualification Under Section 19(1) for the Act and she was asked to submit a reply by 25.5.96. It is further said that if no reply is filed, it shall be assumed that she has nothing to say in the matter and a declaration of disqualification shall be issued Under Section 39(2) of the Act. The notice was purported to be served on 20.5.96 on one Sukhram, younger brother of the petitioner's husband.
2. On 21.5.96, Sukhram had submitted an application before respondent No. 2 that the notice issued in the name of Bhanwari Devi, the petitioner dated 15.5.96 was given to the applicant Sukhram, Smt. Bhanwari Devi, Sarpanch, Ribiya is not being served with the notice and she does not have any knowledge of these proceedings. She has gone to her parents' place and the reply to the notice can only be given after her return. As the notice has been received on 20.5.96, this information has been given and it is not possible to give reply in a short span of time given in the notice, notice be issued to Bhanwari Devi and month's time be given. None appeared thereafter before the respondent and respondent No. 2 passed the order dated 4.7.96 (Annex.3) relying under Section 39(2) of the Act declaring the petitioner disqualified Under Section 19(1) to remain Sarpanch of the Gram Panchayat, Ribiya, Panchayat Samiti-Churu and the post of Sarpanch was declared vacant.
3. The counsel for the petitioner has challenged the order passed by respondent No. 2, the Chief Executive Officer, Zila Parishad, Churu on the ground that when there was no admission by the petitioner of incurring disqualification or facts leading to disqualification, the power to declare member disqualified vests in civil court only Under Section 40 of the Act and not Under Section 39(2) of the Act with the quasi-judicial authority.
On the other hand, it is submitted by the counsel for the respondents that the power Under Section 39(2) was rightly exercised by respondent No. 2.
4. Section 19 of the Act prescribes qualifications for election as a Panch or a member. The relevant provision in the case reads as under:
19. Qualifications for election as a Panch or a member--Every person registered as a voter in the list of voters of a Panchayat 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:
...
(1) has more than two children:
Provided that:
(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 27th November, 1995, of the 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 27th November, 1995) shall not be disqualified under that clause for so long as the number of children he had on the date of commencement of this Act does not increase.
The Act came into force on 23.4.94. A person having more than two children has been declared to be disqualified for election as a Panch or a member. By virtue of the proviso (iv) more than two children upto 27.11.95 would not be a disqualification if the child is born before 27.11.95, making the total number of children more than two, it will not constitute a disqualification, that is the import of proviso (iv). Thus, any child born after 27.11.95 making the number more than two children to a person, it would be a disqualification but not any number of children born prior to 27.11.95.
5. Section 39 is a provision whereunder a member ceases to be a member. It reads as under:
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) resign 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 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 17;
Provided further that until a decalration under this sub-section is made, he shall continue to hold his office.
Section 39(2) gives power to the competent authority to declare any member to have become ineligible to continue to be a member of any Panchayati Raj Institution on account of any of the reason specified in Sub-section (1) of Section 39 after the person became a member. One of the reasons for a member of a Panchayati Raj Institution becoming ineligible to remain a member is provided under Clause (a) of Section 39 i.e. he is or becomes subject to any of the disqualifications specified in Section 19, which includes Clause (1) of Section 19. Section 40 is a provision wherein a civil court has been given jurisdiction to decide the question of disqualification. Section 40 reads as under:
40. Judge to decide questions of disqualifications--(1) Whenever it is alleged that any member of a Panchayati Raj Institution is or has become disqualified and such member does not admit the allegation or whenever any member is himself in doubt whether or not he is or has become disqualified for being a member, such member or the competent authority or any member of the Panchayati Raj Institution concerned may apply to the District Judge having jurisdiction for a decision on the allegation or doubt.
(2) The application made under Sub-section (1) may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
(3) The Judge after making such enquiry as he considers necessary shall determine whether or not such member is or has become disqualified and his decision shall be final.
(4) Pending a decision, the member shall be entitled to act as if he were not disqualified.
Under Section 40, a jurisdiction is given to the Civil Court after making such enquiry as it considers necessary whether any member has become disqualified to remain as a member of any of the Panchayati Raj Institution.
6. On cursory reading of Section 39(2) and Section 40(1), it appears that the competent authority and the civil court both have been given jurisdiction to determine the question whether a member of the Panchayati Raj Institution has become disqualified to be a member or not of the Panchayati Raj Institution and there appears to be conflict in the powers to determine the question whether it vests with the quasi-judicial authority or a judicial authority. It is settled principle of interpretation that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. It would be the duty of the courts to avoid "a head on clash" between two sections of the same Act and "whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise". The provisions of one section of a statute cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them".
7. Application of Section 39 is subject to the provisions of Section 40 in case of disqualification. Sub-section (2) of Section 39 speaks about the jurisdiction of the competent authority, that whenever it is made to appear to him 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 can declare that he becomes so ineligible. The proviso says that no such opportunity is required to be given to a member when the member was determined Under Section 40 to have become disqualified Under Section 19. Therefore, when the member is declared to be disqualified Under Section 40 of the Act, he can straightway be declared to have become ineligible to continue as a member of the Panchayati Raj Institution without being given any opportunity of being heard. Section 40 provides that whenever it is alleged that any member of a Panchayati Raj Institution is or has become disqualified and such member does not admit the allegation, the competent authority or the Panchayati Raj Institution concerned may apply to the District Judge having jurisdiction for a decision on the allegations of the person becoming ineligible to continue as a member of the Panchayati Raj Institution. Under this provision, the member himself, if there is some doubt, can apply to the District Judge for clarification of a doubt by the civil court whether he has incurred a disqualification to continue to be a member or not of the Panchayati Raj Institution.
8. Election to the Panchayat Raj provides apothesis for a training and participation in the larger sphere of democracy. Election is sacrosanct. The member elected must be permitted to perform his duties as such for a statutory term. Subsequent disqualification to hold the elected post would require proof of highest order. The provision made in the Act for declaration to be disqualified must receive strict and narrow interpretation at the hands of the Court.
9. Ineligibility of a member to continue as member of the Panchayati Raj Institution is provided Under Section 39(1) of the Act which can be divided into two parts, viz. (i) a member becomes disqualified Under Section 19 of the Act, (ii) the member incurs disability on account of his absence, removal from membership, resignation, death, or his not taking oath on assumption of office. Section 39 is subject to Section 40 of the Act whereunder jurisdiction is given to the civil court to determine the question whether the member has incurred disqualification Under Section 19 of the Act. The limitation so imposed on Section 39 is restricted to disqualification of a member and not on other contingencies mentioned in Clauses (b) to (f) of Section 39. Proviso to Sub-section (2) of Section 39 makes it further clear when it is said that once the member is declared to be disqualified to be a member of the Panchayti Raj Institution, the competent authority Under Section 39 need not give him any opportunity of hearing in the matter of disqualification before declaring him to have become ineligible to hold the post of a member. The competent authority which is a quasi-judicial authority could exercise the power for declaration of the member disqualified and thereby his inability to continue to be such member only when there is admission of the fact of disqualification Under Section 19 by the member, and not otherwise. The moment there is no admission, the jurisdiction vests with the civil court and it is for the competent authority or any member of the Panchayati Raj Institution to move the civil court in the matter. The position would be different when the member incurred ineligibility to continue to be a member of the Panchayati Raj Institution on account of any of the ground mentioned in Section 39 (b) to (f). The competent authority would then be competent to adjudicate that question whether the member has incurred any ineligibility to continue as member of the Panchayati Raj Institution or not and the matter would not be referred to the civil court for adjudication. On reading Sections 39 and 40 of the Act, the position emerges that the competent authority in exercise of the power Under Section 39 (2) can declare a member disqualified Under Section 19 of the Act, to remain a member of the Panchayati Raj Institution if there is an admission of the fact of disqualification by the member. But, if there is no admission, then the matter has, of necessity, to be left for the civil court to be adjudicated Under Section 40, whereas in respect of the matters falling Under Section 39(1)(b) to (f) the competent authority has jurisdiction after giving notice to the member to make enquiry and adjudicate whether the member can continue to be a member of the Panchayati Raj Institution.
10. There is another way of looking at the matter as to whom the powers shall vest in case of conflict for determination of right of a person to hold the elected office. In Bharat Bank v. Their Employees , the Supreme Court laid down two tests for distinguishing a Court from a tribunal. (1) to be a Court, the determination by its own force and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties. (2) A judicial body decides the controversies according to law while a quasi-judicial or administrative body is not bound strictly to follow the law for its decision.
11. Distinction between "judicial" and "quasi-judicial" was pointed out in Cooper v. Wilson (1937) 2 KB 309 thus:
A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites:
(1) The presentation of their case by the parties to the dispute;
(2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and even with the assistance of argument by or on behalf of the parties on the evidence;
(3) If the dispute between them is a question of law, the submission of legal argument by the parties and, (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a. ruling upon any disputed question of law.
A quasi-judicial decision involves (1) and (2) but does not necessarily involve (3) and never involves (4).
The decision indicates that the judicial authority while determining the question of right of the parties would be required to consider the matter thoroughly and completely than a quasi-judicial authority. Therefore, even when there are secondingly comflict of jurisdiction, the jurisdiction shall vest in the judicial authority and not in the quasi-judicial authority. The powers vested in the judicial authority shall prevail. When there is any manner of doubt as to whom, the quasi- judicial authority or the judicial authority lies, powers to declare elected member of Panchayati Raj Institution disqualified to hold the post, the Court would not have any hesitation to declare such powers being vested in the judicial authority and not in quasi-judicial authority.
12. It is nobody's case that the petitioner has admitted the fact of child being born to her, which would constitute the number of children of the petitioner more than two. Under the circumstances, the disqualification can only be determined by the civil court. Respondent No. 2 had no authority or jurisidiction to pass the order declaring the petitioner incurring disqualification. In the facts and circumstances of the case when there is no admission made by the petitioner, the whole proceedings taken up by respondent No. 2 in exercise of the powers Under Section 39(2) are illegal as being without jurisdiction.
13. For the aforesaid reasons, the petition is allowed. The order dated 4.7.96 (Annx.3) is quashed.