2003 Supreme(Raj) 371

Rajasthan High Court
Honble ANIL DEV SINGH CJ. & RAJESH BALIA, J.
Bheru Singh Rathore - Appellant
Versus
State of Rajasthan & Ors. - Respondents
D.B. Civil Writ Petition No. 2507 of 2000
Decided On : April 29, 2003

Headnote:(a) Rajasthan Panchayati Raj Act, 1994, Sec. 19, 38 & 39 (As amended by Amendment Act, 9 of 2000); Read with Constitution of India, Art. 243-O(b) – Applicability of bar u/Art.243-O(b) – Questioning the qualification of a returned candidate for being eligible to hold the membership of a Panchayat, does not amount to challenge to his election – Art.243-O(b) applies where election to any Panchayat is called in question – Where on disqualification of a candidate he ceases to be a member and only a declaration is needed to be issued by the Competent Authority to the effect that he has incurred disqualification u/Sec.39 read with Sec.19 of the Act of 1994, in this situation his election to the Panchayat cannot be said to be in question – Held – Bar of Art.243-O(b) will not come into play when the case falls u/Art.243-F read with Sec.19 & 39 of the Act of 1994. (Para 21)(b) Rajasthan Panchayati Raj Act, 1994, Sec. 39(3) – Petitioner was elected against a seat which was allegedly reserved for a Scheduled Caste candidate – Member (candidate) was disqualified ab initio i.e. he was disqualified before the election – Held – Sec. 39(2) covers a case where a member of a Panchayat acquires disqualification after his election. (Para 25)

       An analysis of the provisions of Article 243F and Article 243-O(b) of the Constitution show that they deal with different situations, namely, when the election of a candidate is in question and when a question arises as to whether or not a member of Panchayat is or has become subject to any of the disqualifications. For both the situations the Constitution itself provides separate remedies. The first situation is covered by Art. 243-O(b). It allows challenge to the election only by means of an election petition to be presented to such authority and in such manner as is provided for by or under any law. Rule 80 of the Rules provides for the forum where an election petition can be presented. As per Rule 80 the election to any panchayat can be challenged by an election petition presented before the District Judge. The second situation is covered by art. 243-F where a candidate is ineligible or has become ineligible to continue as a member in view of the disqualifications which are prescribed by law framed by the Legislature. As already pointed out Sections 19 and 39 of the Act of 1994 drive power from Art. 243-F for laying down the disqualifications and for prescribing the authority which can declare a candidate ineligible or disqualified to be a member of a Panchayat. While Sec.19 & 39 of the Act of 1994 wholly and solely deal with disqualifica- tions incurred by a member before the election or even after the election Art. 243-O(b) of the Constitution read with Rule 80 of the rules make provision for calling in question the election of a candidate by means of an election petition. Both set of provisions cover different situations and remedies. They must be allowed to operate in their own fields. Questioning the qualification of a returned candidate for being eligible to hold the membership of a Panchayat, does not amount to challenge to his election. A Candidate who is disqualified to be a member, does not have the license to continue till his election is challenged by someone. Art. 243-O(b) caters to a situation where election to any Panchayat is called in question. In a case of disqualification of a candidate he ceases to be a member and only a declaration is needed to be issued by the Competent Authority to the effect that he has incurred disqualification under Sec. 39 read with Sec. 19 of the Act of 1994. In the latter case, his election to the Panchayat cannot be said to be in question. Bar of Art. 243-O(b) will not come into play when the cases falls under Art. 243F read with Sec.19 & 39 of the Act of 1994. (Para 21)

       We are of the view that Sec.39(2) of the Act of 1994 covers a case where a member of a panchayat acquires disqualification after his election. Where a member was disqualified ab initio i.e. to say he was disqualified before the election, action under Section 39(2) of he Act of 1994 cannot be taken against him. He cannot be declared to have become ineligible and no direction can be given to him to vacate his office as a member of sarpanch o the panchayat. Since in the instant case, the petitioners disqualification is deemed to have arisen before the election, in as much as he was elected against a seat which was allegedly reserved for a Scheduled Caste candidate, he cannot be declared disqualified under Section 39(2) of the act. In this view of the matter the writ petition deserves to be allowed. (Para 25)