IMPORTANT POINT
Under the Himachal Pradesh Panchayati Raj Act when a person was declared an encroacher/disqualified prior to the date on which he was declared as elector and if said order had attained finality, question whether he stood disqualified in terms of Section 122 of the Act must be raised by election petition alone.

Headnote:(i) Constitution of India - Part IX, Article 243B - Panchayats at village, intermediate and district level - Himachal Pradesh Panchayati Raj Act, 1994 - Sections 122, 162 and 175 - Disqualification - Respondent was elected as member of Zila Parishad on 5-1-2001 - Respondent No. 2 filed application before Deputy Commissioner alleging that respondent No.1 having been declared encroacher under Himachal Pradesh Public Premises Act, 1971 was disqualified to hold the elected post - Deputy Commissioner declared respondent No. 1 as disqualified and set aside his election - Division Bench of High Court held order passed by Deputy Commissioner unsustainable - Appeal - Respondent was declared encroacher in the year 1998 - Notification for election of Zilla Parishad was issued on 16-11-2000 and respondent was declared elected on 5-1-2001 - Only election petition was maintainable for setting aside his election - Impugned order was not liable to be interfered with.
       Held : It is no doubt true that Section 122 contemplates both the situations, viz., where a person shall be disqualified for being chosen as also for being an office bearer of panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. In view of the language of the said provision, we are of the view that whereas an issue falling under clause (1) of Sub-section (2) of Section 122 of the Act must be determined before the Authorised Officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner.(Para 15)
       The provisions of the Act, as noticed hereinbefore, have been enacted pursuant to or in furtherance of the constitutional mandate contained in Part IX of the Constitution of India. The provisions of the Act, therefore, are required to be construed strictly in terms thereof. Clause (b) of Article 243O of the Constitution of India mandates that no election shall be set aside save and except by an order passed by the Authorised Officer. In our considered opinion, Section 122 of the Act must be read in the light thereof. Section 162 of the Act expressly provides for the exclusive jurisdiction of the Authorised Officer to determine the existence or otherwise of any ground enumerated in Section 175 of the Act.(Para 16)
       Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. (Para 17)
       (ii) INTERPRETATION OF STATUTE - Doctrine of purposive construction - Where literal interpretation shall give rise to an anomaly or absurdity, same should be avoided - Where a statute is found to be obscure same must be interpreted having regard to constitutional scheme.
       Held : Furthermore, it is a well-known principle of law that where literal interpretation shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 and M.P. Gopalakrishnan Nair v. State of Kerala, (2005) 11 SCC 45]. It is also a well-settled principle of law that in a case where a statute is found to be obscure the same must be interpreted having regard to the constitutional scheme. In a case of this nature, the doctrine of purposive construction should be applied.(Paras 19 and 20)

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Constitution of India is suprema lex. Part IX of the Constitution of India was inserted by Constitution (Seventy-third Amendment) Act, 1992. Article 243B mandates that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of the said Part. Part IX speaks of composition of panchayats (Article 243C), reservation of seats (Article 243D), and duration of panchayats (Article 243E). It also provides for disqualifications for membership in terms of Article 243F stating:

"243F. Disqualifications for membership.--(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat--

(a)if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:

Provided that no person shall be disqualified on the ground that be is less than twenty-five years of age, if he has attained the age of twenty-one years;

(b)if he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."

3. Article 243O of the Constitution of India imposes a bar to interference by courts in electoral matters stating:

"243O. Bar to interference by courts in electoral matters. - Notwithstanding anything in this Constitution -

(a)the validity of any law relating to the delimitation of constituencies or the allotment of seals to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(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."

4. The State of Haryana pursuant to the constitutional mandate as noticed hereinbefore enacted the Himachal Pradesh Panchayati Raj Act, 1994 (for short "the Act"). Chapter IX of the Act lays down general provisions relating to incorporation, duration, territorial constituencies of panchayat and qualifications, etc. of office-bearers. Section 122 of the Act provides for disqualifications, the relevant provisions whereof read as under:

"122(1): A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat–

(a)if he is so disqualified by or under any law for the time being in force for the purposes of the election to the State Legislature:

Provided that no person shall be disqualified on the ground that he is less than 25 years, if he has attained the age of 21 years;

(b)***

(c)if he has encroached upon any land belonging to, or taken on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he is ejected therefrom or he ceases to be the encroacher; or

***

(2) The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided–

(i)if such question arises during the process of an election, by an officer as may be authorized in this behalf by the State Government, in consultation with the State Election Commission; and

(ii)if such question arises after the election process is over, by the Deputy Commissioner."

5. Chapter IX deals with the officers and staff of panchayats. Clause (f) of Section 159 defines "election" to mean an election to fill an office under the provisions of the Act. Section 162 of the Act, in tune with the provisions of Article 243O of the Constitution of India provides that no election under the Act will be call

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2006 Supreme(SC) 1188

Cases Referred (5)