Full Judgment Text
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CASE NO.:
Appeal (civil) 5186 of 2006
PETITIONER:
State of Himachal Pradesh & Ors.
RESPONDENT:
Surinder Singh Banolta
DATE OF JUDGMENT: 24/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 7381 of 2005)
WITH
CIVIL APPEAL NO. 5187 OF 2006
(Arising out of SLP (C) No. 22043 of 2005)
S.B. Sinha, J.
Leave granted.
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."
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--
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(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."
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 \026
(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 \026
(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."
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 called in question except by an election petition presented in
accordance with the provisions of Chapter XI.
Sections 163 of the Act reads as under:
"163(1) Any elector of a Panchayat may, on
furnishing, the prescribed security in the
prescribed manner, present within thirty days of
the publication of the result, on one or more of the
grounds specified in sub-section (1) of section 175,
to the authorized officer an election petition in
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writing against the election of any person under
this Act.
(2) The election petition shall be deemed to
have been presented to the authorized officer \026
(a) when it is delivered to him \026
(i) by the person making the petition; or
(ii) by a person authorized in writing in
this behalf by the person making petition; or
(b) when it is sent by registered post and is
delivered to the authorized officer or any other
person empowered to receive it."
Section 174 of the Act provides for jurisdiction of the court to pass
order in the manner laid down therein after inquiring into the election
petition by the authorized officer.
Section 175 of the Act provides for the grounds upon which an
election petition can be dismissed or an election can be set aside.
Respondent herein was elected as a member of Zilla Parishad. The
result of election was declared on 5.01.2001. An application was filed by
Respondent No. 2 Daulat Ram before the Deputy Commissioner, Shimla
District alleging that as he, having been declared an encroacher within the
meaning of the provisions of Sections 4 and 7 of the Himachal Pradesh
Public Premises (Rent Recovery and Land Eviction) Act, 1971 was
disqualified to hold the elected post and, thus, should not be allowed to
continue therein. The Deputy Commissioner took cognizance of the said
complaint and by reason of an order dated 4.06.2002 declared Respondent
No. 1 as disqualified for being chosen as a member of the Zilla Parishad and
consequently his election was set aside.
It is not in dispute that a proceeding under the Himachal Pradesh Land
Revenue Act was initiated against Respondent No. 1. He was held to be
unauthorized occupant of a land measuring 13 biswas in terms of the
provisions of the Himachal Pradesh Public Premises (Rent Recovery and
Land Eviction) Act by the Collector, Sub-Division, Theog. The said order
was confirmed by the Financial Commissioner of the Shimla Division by an
order dated 6.08.1998. We will proceed on the basis that the said order has
attained finality although there appears to be some dispute in relation
thereto.
Respondent No. 1 was declared to be an encroacher in the year 1998.
He was directed to be ejected from the land in question. The notification for
election of Zilla Parishad by the State Election Commission under the Act
was issued on 16.11.2000. As noticed hereinbefore, Respondent No. 1 was
declared elected on 5.01.2001. In terms of the provisions of Article 243O
read with Section 163 of the Act, an election petition, therefore, was
maintainable for setting aside his election.
Disqualification as provided for under Article 243F has been laid
down in Section 122 of the Act. Section 175 of the Act provides for
disqualification as one of the grounds upon which an election petition could
be filed. Interpreting the aforementioned provisions, a Division Bench of
the Himachal Pradesh High Court opined that the order dated 27.06.2002
passed by the Deputy Commissioner is not sustainable in law.
Mr. J.S. Attri, learned AAG appearing on behalf of the appellants
would submit that although the provisions of Section Section 163 are
ordinarily required to be taken recourse to but having regard to the fact that
in terms of Sub-section (2) of Section 122 of the Act, the question as regards
declaring a candidate as disqualified may arise not only before an election is
held but also after the election process is over; and thus, whereas in the
former case, it will be the Authorised Officer concerned who can determine
the question of disqualification but in a case where processes are initiated
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after the election, the Deputy Commissioner alone would be the prescribed
authority.
Section 163 of the Act provides for filing of an election petition on
one or more grounds specified in Sub-section (1) of Section 175 thereof.
Clause (a) of Sub-section (1) of Section 175 of the Act inter alia lays down a
ground for setting aside of an election if on the date of the election the
elected person was not qualified or disqualified to be elected under the Act.
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.
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.
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. If the submission of Mr. Attri is to be
accepted, the same may result in an anomalous position.
If a candidate or a voter had the knowledge that the elected candidate
was disqualified in terms of Section 122 of the Act, he may file an
application. The order of eviction may come to the notice of some other
person after the election process is over. A situation, thus, may arise where
two different proceedings may lie before two different authorities at the
instance of two different persons. Two parallel proceedings, it is well
settled, cannot be allowed to continue at the same time. A construction of a
statute which may lead to such a situation, therefore, must be avoided. It
will also lead to an absurdity if two different Tribunals are allowed to come
to contradictory decisions.
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. [See Bombay Dyeing & Mfg. Co. Ltd.(3) v.
Bombay Environmental Action Group & Ors. (2006) 3 SCC 434, Nathi Devi
v. Radha Devi Gupta (2005) 2 SCC 271, Lalit Mohan Pandey v. Pooran
Singh & Ors. (2004) 6 SCC 626, Indian Handicrafts Emporium & Ors. v.
Union of India & Ors. (2003) 7 SCC 589 and Balram Kumawat v. Union of
India & Ors. (2003) 7 SCC 628]
It is also well-settled that the entire statute must be read as a whole.
The relevant provisions of the Constitution as also those in the statute must,
thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary,
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Department of Excise & Commercial Taxes and Others v. Sun Bright
Marketing (P) Ltd., Chhattisgarh and Another [(2004) 3 SCC 185]. So read,
we are of the opinion that the Division Bench of the High Court was correct
in its view. The matter might have been different if Respondent No. 1 was
declared to be an encroacher after the election process was over and, thus,
becoming disqualified to continue to be an office bearer of Panchayat or
Zilla Parishad.
For the reasons aforementioned, no fault can be found in the
impugned judgment. It is, therefore, affirmed. The appeals are dismissed
with costs. Counsel’s fee assessed at Rs. 10,000/-