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Drinkar Ananda Decore Vs. Shantaram Punjaji Ahed and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 263 of 1981
Judge
Reported inAIR1982Bom99
ActsMaharashtra Zilla Parishads and Panchayat Samitis Act, 1962 - Sections 14, 15-A, 16, 16(1), 17, 18, 27, 56(1-A), 58, 58(1-A) and 62
AppellantDrinkar Ananda Decore
RespondentShantaram Punjaji Ahed and ors.
Appellant AdvocateV.Z. Kankaria, Adv.
Respondent AdvocateP.S. Patankar, Adv. and ;W.S. Devanani, Asstt. Govt. Pleader
Excerpt:
a) it was adjudged under section 27 of the maharashtra zilla parishads and panchayat samitis act, 1962, that in an election petition, the disqualification of the returned candidate could be raised on the ground of challenge and could be considered by the election court ;b) it was adjudged that the words 'zilla parishad' cannot not be read as 'panchayat samiti' under sections 16(1)(a)(i) and 58 (1-a) of the maharashtra zilla parishads and panchayat samitis act, 1962 - hence, a person who would be having direct or indirect interest in the contract with the zilla parishad would be considered disqualified under section 16(1)(a)(i) of the act to be a member of the panchayat samiti - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature.....masodkar, j.1. the debated issue in the present petition relates to the jurisdiction of the assistant judge, nasik, to entertain election petition no. 7 of 1979 and further to the disqualification that has been found against the present petitioner in view of the provisions of s. 16(1) (a) (i) of the maharashtra zilla parishads and panchayat samitis act, 1961, for, admittedly, the petitioners wife is a primary teacher since sept, 3, 1965 and she was posted at deola at the time of election of the petitioner as a member to the panchayat samiti , kalvan from deola electoral college and sha has been thereafter serving as a primary teacher at village adgaon which falls in the panchayat samiti area of nasik . holding that the petitioner was disqualified under s. 16(1) (a) (i) of the maharashtra.....
Judgment:

Masodkar, J.

1. The debated issue in the present petition relates to the jurisdiction of the Assistant judge, Nasik, to entertain Election Petition No. 7 of 1979 and further to the disqualification that has been found against the present petitioner in view of the provisions of S. 16(1) (a) (I) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, for, admittedly, the petitioners wife is a primary teacher since sept, 3, 1965 and she was posted at Deola at the time of election of the petitioner as a member to the Panchayat Samiti , Kalvan from Deola Electoral College and sha has been thereafter serving as a primary teacher at village Adgaon which falls in the Panchayat Samiti area of Nasik . Holding that the petitioner was disqualified under S. 16(1) (a) (I) of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 to be the member of the Panchayat Samiti, his election has been set aside.

2. Mr. Kankaria , the learned counsel , in support of the present petition, mainly urged three points. Firstly, the learned counsel contented that in view of the Rules framed under S.14 of the Maharashtra Zilla Parishad and Panchayat Samitis Act ,1961 which are made applicable because of S. 58(1-A) thereof to the election to the Panchayat Samiti , the election petitioner could , at the most, at the time of scrutiny of nomination papers, raise such an objection. Under the rules framed, against the decision of the returning officer, an appeal is provided and the decision in appeal is made final. The learned counsel submits that at no other stage the question of disqualification can be re- agitated. Secondly, it is contended that the remedy provided for by S.27 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, does not confer the jurisdiction on the election Court to enquire into the matters of the disqualification of the returned candidate . Reliance is placed on the division Bench decision of this court in the case of Gopikisan Agarwal v. District Judge, Bhandhra 1966 Mh LJ 321, which followed the earlier judgement of this court rendered by another Division Bench in the case of Venkatrao Vithalrao v. Vithal Sambhaji 1963 Mh LJ 834. On the authority of this decision , the learned counsel submitted that under S. 27, the question of disqualification of the petitioner could not have been gone into and the eventual order impugned in the present petition is thus without jurisdiction . Lastly, it is contended that upon proper reading of S. 58 (1-A) , which, by reference incorporates S.16 , matters of disqualification with regard to members of Panchayat Samiti, as far as the provisions of sub-s (1) (I) are concerned, will have to be read as indicating that before a person is held disqualified, he should have direct or indirect share or interest in any work done by order of the Panchayat Samiti in place of Zilla Parishad or in any work done by order of the Panchayat Samiti in place of the Zilla Parishad or in any contract with, by or on behalf of the Panchayat Samiti, in place of Zilla Parishad. The submission is that, the contract with the Zilla Parishad is not the contract with the Panchayat Samiti, and therefore, the employment of the wife of the petitioner by the Zilla Parishad in a primary school of Adgaon in the area of another Panchayat Samiti, would not be a disqualification . As a second limb of this submission , the learned counsel submitted that, the provisions of the Act show that the Panchayat Samiti is an independent entity and as such , is capable of employing servants and having contracts. Unless, therefore , there exists such type of contract, S. 16(1) (I) is not attracted. Even otherwise , the submission is that the matters of primary education and the employment with regard to education , are not exclusive matters of contract, but are Governed by the provisions of the Bombay Primary Education Act, 1947. It is contended that , at the most the contract of employment of a teacher in a primary school would be a statutory contract within the meaning of that Act, and if it is the State which finances the matters of primary education , in substance, the contract will be at the most with the State Government or with regard to the matters of State Activities. Reliance is places particularly on Chap. V of the Bombay Primary Education Act, 1947, to submit that such a contract is liable to be terminated by the modality indicated by that Act. In view of the provisions , the learned counsel submits that the requirement of S, 16 (1) (I) is not fully satisfied. The provision of disqualification , according to the learned counsel , being of the penal nature , should be strictly construed and should be strictly answered. There is, in his submission , an apparent error committed by the learned Election Judge in assuming that all these requirements have been satisfied.

3. We have given our anxious consideration to all these points raised by the learned counsel.

4. As far as the jurisdiction under S. 27 of the Maharashtra Zilla Parishad and panchayat Samitis Act , 1961, is concerned, in our view, the matter is no more res integra. No doubt, as far as passage of finding the jurisdiction with regard to the adjudication of the disputed qualification is concerned, the two judgements relied upon by the learned counsel , being Venkatrao's case reported in 1963 Mh LJ 834 and Gopikishan's case reported in 1966 Mh LJ 321, did hold that the remedy under S. 27 of the Act , was a restricted remedy and because of the rules , the question of disqualification could not be subject matter of issue in an election petition under S.27 . However, all this controversy , though no doubly under a different statute , i.e. the Maharashtra Municipalities Act, 1965 containing pari materia provisions, for providing of adjudicatory forum for deciding election disputes and the scope thereof under similar rules, has been examined by the full Bench of this Court in the case of Dattatraya v. Prabhakar , : AIR1975Bom205 . There , the basic decision in Venkatran's case above, which was followed to Gopikisan's case was in terms eidted along with the Rules which are almost identical and the Court stated that in the view of the Full Bench, the view taken by another Division Bench of this Court in spl.Civil apple No. 345 of 1962, Radhabai Bajrangtal Jaisal v. State of Maharashtra decided on Peb. 11, 1964, 1964 Mh LJ 65 which was dealing with similar provisions under the Bombay Village Pair provisions under the Bombay Village Panchayats Act, 1938 was preferable to the view taken in Venkatran's case which was dealing with the provisions of the present Act. I.e. the Maharashira Zilla Parishand and Panchayat Samitis Act. 1961. The authority of the Division Bench judgment, thereore, which normally we are bound to follow and apply, is shaken and in fact, has not been approved by the Full Bench of the Court though dealing with the question that arose under the Maharashtra Municipalities Act, 1965. The Full Bench observed, after referring to the Routes not the provisions of section 27 as well as the observations in Venkatran's case to the following effect;

'The well recongnised distinction that exists between the provisions of the statute and those of rules made in exercise of the power of subordinate legislation, was overlooked in this case. If rules cannot be reconciled with the provisions of the statute under which they are framed, then, provisions of the statute must always prevail, though every possible attempt should be made to reconcile if it could be done, but if they cannot be reconciled, then, to the extent to which the provisions of the rules are inconsistent with the provisions of the rules are inconsistent with the provisions the rules to that extent will be bad and they cannot be given overriding effect over the provisions of the statute. This aspect of the matter which was considered by the earlier Division Bench in Radhabai's case 1964 Mh LJ 65 was overlooked. Apart from this, even the language of S. 14 (2) of Maharashtra Zilla Parishads and Panchayat Samitis Act is materially different from that of S. 17 of the Act. In our view, the view taken in Radhabai's case is preferable to the view that has been taken in Venkatro's case by the Division Bench.'

5. It is obvious that the Division Bench judgment, on which reliance is placed by the learned counsel, proceeded on a different principle and, as is pointed our by the Full Bench, did not apply the principle that the rules cannot travel beyond the terms of the statute. The jurisdiction of Election Court is created by the statute, while the jurisdiction in the matter of hearing of the appeal at the stage of scrutiny, is conferred and created by the rules. It should be impermissible for the rules to cut down the statutor) jurisdiction created by the parent enactment.

6. Though, on doubt as a matter of precedent the Full Bench of this Court was dealing with the similar provisions of Section 21 of the Maharashira Municipalities Act, 1965, and the rules framed under that Act is similar terms and made these observation, we think that such observations which have the foundation in identical findings to shake the authority of the earlier judgment of the Division Bench duly considered by the Full Bench dealing with the identical or similar issues. The Matter of distinction has been pointed out by the Full Bench decision and it will not be proper for us to apply the ratio of the two earlier Division Bench judgments, so as to render a judgment, which will directly conflict with the holding of the Full Bench. Not only this, but the judgment of Full Bench Not only this, but the judgment of Full Bench of this Court has been approved by the Supreme Court in the case of Madhukar v. Jaswant AIR 1976 Sc 2282. There, the Court was dealing with the provisions of the Maharashtra Municipalities Act, 1965 and the matters of disqualification and the powers of the Election Court under Section 21 of the Act. While considering the language of S. 21 and the jurisdiction conferred upon the Election Court, the Supreme Court observed that an Election Petition under S. 21 was all-inclusive and not under-inclusive and went on the further observe (at p. 2298).

'What we mean is that even if the invalidation of the election is on the score of the disqualification under S. 16 it is appropriate to raise that point under S. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can beraised, in a proceedings under Section 21, The language of the provision is wide enough.'

The language of S. 27 of the present Act and that of S. 21 of the Municipalities Act 1965 is part materia and is smimilar. On the authority of the above judgement of the supreme court and also of the Full Bench of this Court in Dattatraya's case : AIR1975Bom205 (spra), it must be concluded that the authority of the earlier two judgment rendered in Benkatrao's case and in Gopikisan's case, holding that the matters of disqualification cannot be raised under Sec. 27 of the present Act, is is shaken and is not available as a good law, On the other hand, the decision of the Supreme Court in Madhukar's case clearly shows that such a challenge is permissible under S. 27 of the Act and the Election Court is competent to consider matters of disqualification.

7. Once we rule in this manner, what really remains is a question of fact and finding within the provisions os S. 16 (1) (a) (I) As far as disqualification by contract of service by the wife with the corporate body is concerned, Dattatraya's case reported in : AIR1975Bom205 (FB) under a similar statute is a good authority that such a service does disable the person, as well as the husband of the servant.

8. We have indicated how Mr. Kankaria wants to get out of the provisions of Section 16 (1) (a) (I) by referring to the provisions of S. 58 (1A) and the provisions of the Bombay Primary Education Act, 1947.

9. As far as S. 58 (1A) is concerned, its enacting, purpose is clear, in that, for the purpose of electing two members by direct election under S. 57 (1) (f), the provisions of Ss. 14, 15, 15-A, 16, 17 and 18 with regard to the date or election, qualifications for being elected and disqualifications and the rights to vote are being incorporated in Section 58 itself. Section 57 deals with the constitution Panchayat Samities and provides that two members of such Panchayat Samitis are to be elected by direct election from electoral Colleges. For these direct elections, the provisions of Ss. 14 to 18 have been made applicable and sub-section (1A) of S. 58 states that the same 'shall apply in relation to the members of a Panchayat Samiti as they apply in relation to the Councillors of a Zilla Parishad with the modifications that ...........'. What is being contended is that in S. 16, which is enacted fro the purpose of laying down disqualifications of Councillors of the Zilla Parishad, the Court should read, for the words 'Zilla Parishad' the words 'Panchayat Samiti' as wherever the word 'Councillor' occurs, it is required to be read as the word 'member' If so read. Cl. (I) of sub-section (1) of S. 16 will indicate that what is intended is to lay down a disqualification because of direct or indirect share or interest in the contract with the Panchayat Samiti. In other words, if the contract be with the Zilla Parishad'. The words 'Panchayat Samito' as wherever the word 'Councillor' occurs, it is required to be read as the word 'member' It so read. Ci (I) of sub-section (1) of S. 16 will indicate that what is intended is to lay down a disqualification because of direct or indirect share or interest in the contract with the Panchayat Samiti. In other words, if the contract be with the Zilla Parishad, another statutory authority, then that cannot be imported as a disqualification, for the purpose of being a member of the Panchayat Samiti. It was suggested that the words in sub-section (1A) of S. 58 'as they apply in relation to' will only mean that the words occurring, having reference to Zilla parishad, are being substituted by similar words having reference to Panchayat Samiti. A reference was also made to S, 62. Wherein the provision in made with regard to the member of the Panchayat Samiti becomes disqualified under section 58. From this it is contended, that in s. 16 we will have to perforce of law, read, in place of words 'Zilla Parishad'. The present contract with the Zilla Parishad cannot be the contract that would render the petitioner disqualified,. Now, the matters of disqualification rests on certain basic accepted principles, the first and foremost being that which is enacted for the purpose of maintaining the purity of administration and for the purpose of avoiding possible conflict of interest and duty of the holder of the public officer an interpretation that will subserve this statutory purpose will have to be preferred to the one which tends to be grammatical ro literal. Equally correct is the proposition that, unless enacted, the disqualification cannot be assumed and an applicative effort has to be made to find out the exact terms of disqualification.

10. In the scheme of the present Act. Zilla Parishad is a consututed, corporate body. Chapter II deals with its constitution ans Sec. 8 with its incorporation. Section 7 of the Act, enumerates the authorities which are charged with the duty to carry out the provisions of the Act, the first being the zilla Parishad and the second being the Panchayat Samiti, followed by other committees, authorities and others. All the incident, or statutory corporation have been expressly enacted to favour of the Zilla Parishad required to be so constituted. The constitution of the Panchayat Samiti is independently dealt with the Chap. III and that shows that it is a legal body created for the specific purpose and not by itself an independent corporation. Section 57 deals with the constitution of Panchayat Samiti which is a body established at the Block level of the District. Councillors from the Block level of the District. Councillors from the Block of the Zilla Parishad become ex-officio members of the Panchayat Samiti under S. 57 (1) (a). Followed by the co-opted Councillors, if any residing in the Block. (S. 57 (1) (b) ). Clauses (c) and (d) of sub-section (1) of Section 57 deal with the representative of the co-operative society, while Cl. (E) with a woman representative, Clause (f) permits two members to be elected by direct election from electoral colleges. This constitution shows that a direct election has to be held only under S. 57 (1) (f) with regard to the two representatives to be elected in the manner provided for by S. 58. The Block Development Officer is the ex-officio secretary of the Panchayat Samiti. No doubt, the other provisions indicate that the office of the member has a statutory tenure as well as the Panchayat Samiti has to have the Chairman and Deputy Chairman. Followed by the scheme of S. 7, a provision is also made to constitute other committees. After this statutory constitution of the different authorities is so laid down. Chap. VI deals with the powers and duties of the Zilla Parishad. Panchayat Samiti and Committees. Section 100 deal with the administrative powers and duties of the Zilla Parishad while section 101 with that of Panchayat Samiti, the former having reference to the First Schedule, while the latter having reference to the Second Schedule. The First Schedule shows several subjects of activities, including the development activities, which are made the part of the duty of the Zilla Parishad to carry on, so far as its district funds may allos. Entries under the heading Education from 24 to 29 include, at Entry 24, the establishment, management, maintenantice, inspection, etc, of primary schools and that Entry 24 includes the matter of powers vested in the State Government, under the provisions of the Bombay Primary Education Act. 1947, A similar scheme is available in Section 101 with regard to the Second Schedule, laying down that it would be the primary responsibility of the Panchayat Samiti so far as funds at its disposal will allow, to make reasonable provision for the matters enumerated by the Second Schedule, and that includes item (23-a) with regard to the management of primary schools.

11. These provisions unmistakably show that, as far as the primary education is concerned, it is the duty of the Zilla Parishad and its management of primary schools also falls under item (23-a) of the Second Schedule. The scheme of the Act shows that the district funds are at the disposal of the Zilla Parishad, our of which the funds are made available to Panchayat Samiti for the purpose of carrying our its various functions. The matter is not different, even if the reference is made to Bombay Primary Education Act, 1947, chapter III of the Bombay Primary Education Act, 1947 deals with powers, duties and functions of Zilla Parishads and other bodies like the Authorised Municipalities and Municipal School boards. Sub-section (1) of S. 13 of that Act provides that the Zilla Parishad shall have control over all approved schools and sub-section (2) of S. 13 further provides that the Zilla Parishad shall perform the duties and functions one of which is to maintain an adequats. Number of primary schools. It is obvious therefore that both under the Maharashtra Zilla Parishads and Panchayat Samities Act. 1961 as well as under the Bombay Primary Education Act, 1947, the Zilla Parishad is obliged, not only to supervise the primary schools but also to maintain adequate number of schools by itself. When such Zilla Parishad Schools are within the area of the Block. It can be consistently read, in view of the Second Sehedule, item (23-A) that the management of such should is also the responsibility of the Panchayat Samiti.

12. The character of the Panchayat Samiti in relation to the Zilla Parishad is clearly one of legal authority charged with the duty by the statute, with regard to the matters primarily available in the Second schedule.. The administration of the district under the Act vests in the corporate body called Zilla Parished. It is only at the Block level that a legal authority is created as a statutory functionary and is made available for carrying out the statutory purpose as may be laid down even by Zilla Parished Act. Section 106 deals with the powers and functions of Zill parishad, while Secion 108 deals with the powers and functions of Panchayat Samiti. Clause (e) of S. 108 (e) enjoins upon the Panchayat Samiti to perform such function of the Zilla Parishad as are delegated to it by or on behalf of the Zilla Parishad. Similarly Cl. (D) of S. 108 (I) enjoins upon the Panchayat Samiti to executemaintain, supervise and administer the works and development schemes of the Zilla parishad as are delegated to it by or on behalf of the Zilla Parisha. Section 108-A lays down that the Panchayat Samiti shall conform to any instructions that may be given to it by the Zilla Parishad in the execution by the Panchayat Samiti of its duties and functions under the Act. Therefore, it follows that the Panchayat Samiti is a legal body which is subjected to the jurisdiction and power of the Zilla Parishad to the extent expressly stated by these various provisions.

13. We have referred to these provisions so as to indicate the purpose as to who it is not necessary to follow the approach of interpretation suggested by the learned counsel so as to read S. 16 (1) (I) by substituting practical purposes, Panchayat Samiti it a statutory delegate available to the Zilla Parishad in the matter os execution of its own schemes and contracts. We have indicated that as far as the primary education is concerned, even by virtue of Second Schedule, a duty case on the Panchayat Samiti to manage the primary schools. In the light of this, the purpose of Cl. (I) of sub-section (1) of S. 16 is clear, in that the member of the Panchayat Samiti should not have the direct or indirect share or interest in the contract with, by or on behalf of the Zilla Parishad. Such a contract may eventually be within the functional management of the Panchayat Samiti itself and that is the reason why the words 'Zilla Parishad' need not be substituted by the words 'Panchayat Samiti'. As is being canvassed for by the learned counsel.

14. The provisions of S. 58 (1A) introduced clearly a scheme by reference to the earlier provisions and the sub-section itself is self-contained with regard to the matters of modification and changes, that are required to be made in the earlier provisions, like, Ss. 14, 15, 15-A, 16, 17 and 18. These modification dn enacted as such. Firstly, these sections have been made applicable in relation to the members of the Panchayat Samiti, as they apply in relation to the Councillors of the Zilla Parishad. Having applied in this manner, the specific modifications have been enacted with regard to the changes in the text of Ss. 12, 16 and 17, It is obvious, therefore, that while applying these provisions no other modifications could be introduced having recourse, as is suggested and submitted by the leaned counsel for the petitioner, so as to substitute in Cl. (I), of sub-section (1) of S. 16 the words 'Panchayat Samiti' in place of the words 'Panchayat Samiti' That would be reading a modification by implication, a course quite hazardous and also not necessary to further the clear object and intent of the provisions of S. 16 (1) (I).

15. Therefore, once it it shown that there exists a disqualification by virtue of direct or indirect interest with regard to the contract with the Zilla Parishad, the disqualification operates and is available, as far as the member of the Panchayat Samiti is concerned. It is not necessary in all cases that such a contract must be with the Panchayat Samiti so as to attract the said disqualification.

16. Wherever the Legislature intended to lay down independent disqualification que the matter of Panchayat Samiti. It has chosen to say so, by using the language Zilla Parishad of the Panchayat Samiti, as is available in S. 16 (1) (a) (I). So also, when any other body was to be indicated like the Village Panchayat, specific mention of such a body, is available in S. 16 (1) (h) 'a Panchayat Samiti of Zilla Parishad or under of in the gift of the Government'. So is the position with regard in Cl. (K). No doubt catch of the clauses from (a) to (m) of sub-section (a) of S. 16 is an independent subject by itself, but its text can offer a guideline in the matters of interpreting the other clauses. Particularly when an interpretative debate is raised suggesting the modifications in the text of a clause like the present one, because of its application to the members of the Panchayat Samiti. The whole of the text of S. 16. Because of the enacting provision of sub-section (1A) of S. 58, is presently under the par of S. 58 itself and member of the Panchayat Samiti it subjected to the process of disqualification because of the enacting part of S.58, sub-section (!A) and not merely because of enactment of S. 16 of the Act. For all purposes, this would be a disqualification under S. 58 itself and that is how the Legislature understands the scheme of S. 58. This is evident from the provisions of S. 67 where reference is in Cl. (1) (a) to the disqualification 'under S. 28'. Section 58 by itself does not lay down the disqualification, but incorporates, by reference to the provisions with regard to the disqualifications, by enacting Section 16 as a part of sub-section (1A) thereof. Once this enacted arrangement is available, if follows that we will have to read the whole S. 16 as it is the body of sub-section (1A) of S. 58 and so read the enacted Cl. (I) of sub-section (1) would take in the disqualification as against the Panchayat Samiti Members when he/she has direct or indirect by himself or by his pariner, any share or interest in any work done by order of the Zilla Parishad or in any contract with, by or on behalf of the Zilla parishad.

17. An argument was advanced that this interpretation will not cover cases where the contract is exclusively with the Panchayat Samiti. We do not think so, The position of the Panchayat Samiti, as is indicated, is that of a statutory authority and it is really an instrumentality of the Zilla Parishad itself. A person having contract of the nature contemplated by Cl. (I) of Sec. 16(1) given by the Panchayat Samiti would nonetheless be having an interest in the contract which is either by or on behalf of the Zilla Parishad. The scheme of the various functions of the Panchayat Samiti. Its statutory funds and its subordination to the Zilla Parishad, clearly goes to show that it is not an independent corporation as such. It is a statutory instrumentality at the Block level, available for the purpose of the Zilla Parishad, and interest of its works would be the interest in the works of Zilla Parishad, it will be futile to contend that when the work is being done, if it be the case of a work, of the contract is being executed if it be the case of a contract. The Zilla Parishad will not have any interest, either in the execution, implementation of possession of the work or of the contract. The integrated scheme of the present Act shows that the define district is placed under the administration of Zilla Parishad and for the administration of Zilla Parishad and for the purpose of development works and schemes, in the jurisdiction of the Zilla parishad several instrumentalities have been created as as to achieve the objects of the Act. Though the Panchayat Samiti is constituted as an authority, that by itself is not enough to confer a separate identity on its functioning so as to taken away the contracts out of the interest that Zilla parishad has. This approach furthers the object to avoid possibility of conflict of interest with public duty attached to the officer of the member of the Panchayat Samiti. We have, therefore, no manner of doubt that the words in S. 16 (1) (I) are wide enough to include the contracts given assuming it can be so given, by the pauchayat Samati but that would normally b in the interest of the Zilla Parishad so as to attract the disqualification.

18. This conclusion is reinforced. If we see the scheme of the district fund, which is placed at the disposal of the Zilla Parishad, It is the Zilla Parishad who can levy taxes or collect the fees and it is one of the obligations of the Zilla Parishad to set apart and allocate moneys out of that fund even to the Panchayat Samiti. Section 104 makes district fund ordinarily liable for all costs and expenses including the liability that arises under any contract or agreement in relation to any Panchayat Samiti. Therefore, we are satisfied that without the substitution of the words 'Zilla Parishad' by the words 'Panchayat Samiti' as is argued, the efficacy of Cl. (I) of S. 16 (1) is not whittled down, nor there is any scope to avoid the disqualification by reason of the contract with the Panchayat Samiti, which would obviously be a part of the activity in relation to the Zilla Parishad and thus within the terms of Cl. (I).

19. There is yet another principle which must be applied to the matters of disqualification. We have indicated above that Section 16 by process of statutory incorporation is the part os S. 58. As far as the constitution of Panchayat Samiti is concerned, it does not merely consist of the elected members, as is provided by the process of holding election under S. 58, but there are other members, like councillors, who are elected to the Panchayat Samiti from the electoral divisions included in the Block. Similarly, there are co-opted councillors residing in block and further are the members who come under Cls (c), (d) and (e) of S. 57 (1), By virtue of the constitution provided from in Section 57 all those who come under these different categories from Cls. (A) to (f) of sub-section (1), become the members of the Panchayat Samiti. While interpreting the matters of disqualifications which are the matters of disabling the holders of the public officer qua the public office, we think the interpretative approach should be to achieve and apply the uniform norms in the matters of qualifications and disqualifications. This principle fo uniformity underlies the scheme of incorporation by reference in the terms of sub-section (1A) of S. 58. If subjects the members, to be elected under S. 57 (1) (f), to the same process of qualifications for being elected, and disqualifications for being elected, and disqualifications as applies to councillors. That shows that to all categories or members the Legislature intends that the matters of disqualification shall apply uniformly and in the same mannter. This scheme is further clarified by the provisions of S. 62 dealing with the disqualification of a member of Panchayat Samiti. That has a reference to the member of the Panchayat Samiti other than a councillor, By that a member other than a councillor. Is subjected to the disqualifications enacted by S. 58, while the councillor remains subject to the same disqualification by virtue of Section 16 of the Act. If we were to read the changes in S. 16 (1) (I) by substituting the word 'Panchayat Samiti' in place or the words 'Zilla Parishad'. Then obviously there would be two different types of disqualifications with regard to the members under S. 27 (1) (f) and the councilors who become the members under other clauses of sub-section (1) of S. 57. Though the councillors, by virtue of their office, become the member of the Panchayat Samiti with regard to them a different rule of the disqualification will apply while with regard to the members who are elected because of the election under S. 58, different rule with regard to the same matter will be operative.

20. By suggesting interpretation, it is not necessary to work out any such antithetical results. The said interpretation, as we indicated above, assumes a total independence and identity in favour of Panchayat Samiti, the position, however, being just the otherwise. An instrumentality for specific purpose need not be equated with the corporation. When such an instrumentality enters in any contract. It should necessarily follows that a corporate body like Zilla Parishad under the present statute would be interested in execution as well as the fruits of such contracts. Therefore, uniformity the councillors and members are subjected to the same disqualification. Furthermore this principle of uniformity required that all those who become the members of the panchayat Samiti either because of their being the councillors residing in the Block or because of their election, should be subjected to the similar process or disqalification. Such a disqualification is very much enacted in terms bu S. 16 (17) (I) and, because of subsection (1A) of S. 28. Is made applicable to those who are elected under S. 28 and become the members of the Panchayat Samiti.

21. We therefore hold that the contract of service as teacher in the Zilla Parishad Primary School of the wife of the present petitioner is within the disqualification enacted by S. 16 (1) (I) applicable, because of sub-section (1A) of S. 58, to the petitioner.

22. In view of all this, we find no merits in any of the submissions of the learned counsel. Rule discharged with no order as to costs.

23. Petition dismissed.


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