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Rajasthan High Court, Jaipur Bench
Honble V.S. KOKJE, J.
Jagram - Appellant
Versus
State of Rajasthan & Ors. - Respondents
S.B. Civil Writ Petition No. 972 of 2001
Decided On : August 31, 2001
The action has been taken under Section 39(2) of the Act of 1994 by the respondents for a disqualification which was in existence before the election and it is not a case where the petitioner was alleged to have become ineligible after he was elected. This case is, therefore, not covered by Section 39(2) of the Act of 1994 as he had not become ineligible to continue to be a member and was already a disqualified person at the time of election. The order under Section 39 (2) of the Act of 1994 therefore, is clearly without authority of law. The competent authority could have referred the matter to the district judge under Section 40 of the Act of 1994 before its repeal. As already seen, that section covered the cases of those who are disqualified ab initio as also who became ineligible after election. Unfortunately, the provision has been repealed without providing any other remedy for cessation of membership of a person who was disqualified even at the time of election. While repealing Section 40 of the Act of 1994, the word ``is could have been inserted in the first sentence of Sub- section (2) of Section 39 of the Act of 1994 between the words `member and the word `has and between the words `declare him and words `to have become so ineligible, words `to be or could have been inserted to cover the cases of persons who were disqualified even on the date of their election conferring thereby authority on the competent authority to make a declaration about their ineligibility. But as this has not been done there is a lacuna left by the Legislature which can not be filled by the Courts resorting to hyperactive interpretative exercises. Defect is a defect and the Courts have to recognise it. The law as it stands today does not provide for any procedure for effective cessation of membership of a member of a Panchayati Raj Institution, who was ineligible to hold the office even at the time of his election even though such a person is declared to be ineligible for continuing to be such member under Section 39(1) of the Act of 1994. (Para 6)
(2). The contention of the petitioner is that Article 243-0 of the Constitution of India creates a bar against challenging an election in any other manner than by way of an election petition. The said Article reads as under:
``Article 243-0. Bar to interference by courts in electoral matter-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 it provided for by or under any law made by the Legislature of a State.
(3). According to the learned counsel, the declaration that the petitioner was disqualified to hold the post of Sarpanch amounts to setting aside his election on the ground of that disqualification and therefore, it is hit by Article 243-0 of the Constitution of India.
(4). The contention of the respondent on the contrary is that taking action under other provisions of the Rajasthan Panchayati Raj Act, 1994 for removal of a Sarpanch does not amount to setting aside his election and even if an election petition could have been filed on the same ground, there is no bar for taking action under such provisions. The provisions of the Act of 1994 in exercise of which the impugned order has been passed are Section 39 (1)(a) and Section 39(2). They read as under:
Section 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 Sec. 19; or
(b) ``................
(c) ``................
(d) ``................
(e) ``................
(f) ``................
(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-sec. (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 until a declaration under this sub-section is made he shall continue to hold his office.
(5). The first question to be decided is as to whether taking action under Section 39 of the Act of 1994 amounts to challenging the election of the successful candidates. In cases where the disqualification is alleged to be incurred after the election, the election is clearly not being called in question. It is only in cases where the person concerned was disqualified even on the date of his election and his election could have been set aside in an election petition on the ground, that the question would arise as to whether against such a person action under Section 39 of the Act of 1994 can be taken or not. A close scrutiny of Section 39 (1) of the Act of 1994 shows that it declares that a member of the Panchayati Raj Institutions shall not be eligible to continue to be such member if he ``is or becomes subject to any of the disqualifications specified in Section 19. The use of words is or becomes subj
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