1997 Supreme(P&H) 779

PUNJAB & HARYANA HIGH COURT
Ashok Bhan and K.S.Kumaran JJ.
Anguri Devi
Versus
State Of Haryana
Civil Writ Petition No. 10169 of 1995,
Decided On : MAY 7, 1997

Explanation 2(ii) to Section 175 of the Haryana Panchayati Raj Act, 1994 is ultra vires the Constitution of India, being arbitrary and against the spirit of fair and free elections in a democracy as well as going beyond the intendment of the main section.

Headnote:

ELECTION - DISQUALIFICATION - HARYANA PANCHAYATI RAJ ACT, 1994 - SECTION 175(1)(I) - EXPLANATION 2(II) - Vires - Held, Explanation 2(ii) to Section 175 of the Act is ultra vires the Constitution of India, being arbitrary and against the spirit of fair and free elections in a democracy as well as going beyond the intendment of the main section.

Fact of the Case:

Petitioner, wife of Jagpal Singh, who remained Sarpanch of Village Dhaurang continuously for two terms, contested the election for the post of Sarpanch. Rishi Pal, respondent No. 4, sent a notice to Jagpal Singh asking him to deposit the balance amount due to the Gram Panchayat on the basis of some alleged audit report purposely to get the petitioner declared ineligible from contesting the election with a mala fide intention. Jagpal Singh sent his reply, with a copy to the Block Development and Panchayat Officer requesting to supply him the inquiry report on the basis of which the money was found due against him. He further stated that an inquiry be conducted against him and if any amount was found due against him, he would pay the same immediately. It was asserted that nothing was due against him and the proposed action was taken with mala fide intention at the last moment to deprive the petitioner of her right to contest the election against the wife of respondent No. 4. Jagpal Singh had received a notice on 11-9-1994 wherein he was asked to deposit the value of 3600 bricks and 25 bags of cement within 15 days of the receipt of the notice. Reply to this notice was sent by Jagpal Singh denying his liability to pay any such amount. But in order to safeguard the interest of the petitioner, in response to the said notice, Jagpal Singh deposited a sum of Rs. 14, 514-99 with the Gram Sachiv under protest. At the time of filing of the nomination papers, an objection was taken on behalf of wife of respondent No. 4 that the petitioners nomination papers could not be accepted as her husband was in arrears of money due to the Panchayat. This objection was overruled by the Presiding Officer. Petitioner successfully contested the election and was declared elected. Instead of filing an election petition challenging the election of the petitioner, Rishi Pal, respondent No. 4 filed an application before the Director of Panchayats, Haryana, under Sec. 177 of the Act, for declaring the petitioner as disqualified from continuing to be the Sarpanch of the Gram Panchayat, Dhaurang, because Jagpal Singh, ex-Sarpanch and husband of the petitioner, was in arrears of Rs. 56,109-99 on the date of filing of the nomination papers by the petitioner. Petitioner contested the notice issued to her under Sec. 177 of the Act, inter alia, on the grounds that the complaint was not maintainable as the challenge was to the acceptance of the nomination papers filed by her and the remedy for the same is provided under Sec. 176 of the Act by filing an election petition; that a wife could not be held to possess disqualification on account of anything done by her husband. On merits, it was pleaded that the husband of the petitioner was Sarpanch of the village for two terms and Rishi Pal, respondent No. 4, was the Sarpanch from 1991 to 1994; that the notice for recovery to Jagpal Singh, husband of the petitioner, had been sent beyond the period prescribed under Sec. 53(5) of the Act i.e. after six years of the occurrence of the loss and (or) the lapse of two years of his ceasing to be a member. It was also pleaded that Jagpal Singh had cleared everything towards the Panchayat before the election under protest subject to the inquiry to be held by a competent officer duly appointed for that purpose. Objections raised by the petitioner were turned down by the Director of Panchayats, Haryana, vide order dated 7-3-1995. It was held that the money was recoverable from Jagpal Singh, husband of the petitioner which he failed to deposit on or before the last date of filing of nomination papers and, therefore, the petitioner was disqualified to hold the office of Sarpanch in terms of Sec. 175(1)(i) read with Explanation 2(ii) to Sec. 175 of the Act. Petitioner filed an appeal before the Financial Commissioner and Secretary to Government Haryana, Development and Panchayat Department, respondent No. 1, which was rejected by the impugned order dated 10-7-1995, Annexure P-7. Aggrieved against the aforesaid orders, present writ petition has been filed challenging the orders dated 7-3-1995 and 10-7-1995 passed by the authorities under the Act, on merits as well as on the constitutional validity of Explanation 2(ii) of Sec. 175 of the Act.

Finding of the Court:

Explanation 2(ii) to Section 175 of the Act is ultra vires the Constitution of India, being arbitrary and against the spirit of fair and free elections in a democracy as well as going beyond the intendment of the main section.

Issues: Whether Explanation 2(ii) to Section 175 of the Act is ultra vires the Constitution of India?

Ratio Decidendi: 1. Explanation 2(ii) to Section 175 of the Act is arbitrary and an impediment to the free and fair elections, which is an essential feature of the democracy. 2. Explanation 2(ii) goes beyond the scope of the main section. It interferes with and changes the enactment enlarging its scope, which could not be the intention of the Legislature. Explanation cannot go beyond the main/substantive provision.

Final Decision: Petition allowed. Explanation 2(ii) to Section 175 of the Act is ultra vires the Constitution of India. Annexure P-7 is quashed. Petitioner be allowed to continue as Sarpanch for the duration of her elected period.