Skip to content


Magna Ram Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 519 of 2000
Judge
Reported inRLW2004(4)Raj2097; 2004(4)WLC347
ActsRajasthan Panchayati Raj Act, 1994 - Sections 19, 38, 38(5), 97 and 97(3)
AppellantMagna Ram
RespondentState of Rajasthan and ors.
Appellant Advocate Vijay Bishnoi, Adv.
Respondent Advocate S.S. Sharma, Dy. G.A. and; M.S. Singhvi, Adv.
Cases ReferredState of Orissa v. Commissioner of Land Records
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....n.p. gupta, j.1. vide order dt. 2.3.2000, notice for final hearing was issued. notice of the stay application was also issued. thereafter vide order dt. 29.3.2000, after service of the respondent, the matter was ordered to be listed for final hearing on 10.4.2000. on 10.4.2000, again the matter was ordered to be listed for hearing on 18.4.2000, then arguments were heard, and vide judgment dt. 28.4.2000, the writ petition was allowed. against that order, a d.b. special appeal, being d.b. civil special appeal no. 442/2000, was filed, and vide judgment dt. 13.4.2001, the same was allowed, on the short ground, that in a absence of appearance of appellant (present respondent no. 4), at best, the writ petition ought to have been admitted, and fresh notice ought to have been issued. it was also.....
Judgment:

N.P. Gupta, J.

1. Vide order dt. 2.3.2000, notice for final hearing was issued. Notice of the stay application was also issued. Thereafter vide order dt. 29.3.2000, after service of the respondent, the matter was ordered to be listed for final hearing on 10.4.2000. On 10.4.2000, again the matter was ordered to be listed for hearing on 18.4.2000, then arguments were heard, and vide judgment dt. 28.4.2000, the writ petition was allowed. Against that order, a D.B. Special Appeal, being D.B. Civil Special Appeal No. 442/2000, was filed, and vide judgment dt. 13.4.2001, the same was allowed, on the short ground, that in a absence of appearance of appellant (present respondent No. 4), at best, the writ petition ought to have been admitted, and fresh notice ought to have been issued. It was also noticed, that though Vakalatnama is said to have been filed on behalf of respondent No. 4, it could not be placed on record, for certain reasons, which were also noticed, and therefore, the order passed was set aside, on account of non-appearance of effected party, respondent No. 4, being due to sufficient cause, and the matter was remanded, to be decided in accordance with law, after hearing the parties.

2. Thereafter appearance was put in on the side of the effected respondent, and again the matter was heard, after being adjourned on so many dates, the same Hon'ble Judge directed the record of the case, pertaining to the disqualification of respondent No. 4, to be made available for the perusal of the Court, but some how the matter could not be decided.

3. An application was again moved for early listing of the case, which came up before me on 1.4.2004, and on the request of the learned counsel for the parties, the matter was heard on that date itself, which hearing continued on 6.4.2004, and was concluded on that date. Thus, at the request of the learned counsel for the parties, the matter is being finally decided at this stage itself.

4. The petitioner has filed this writ petition, for quashing the order dt. 2.2.2000, Annexure-3, passed by respondent No. 2, as being without jurisdiction and illegal, and consequential revival of the order dt. 15.12.1997, Annexure-1, With this, prayer has also been made, for the rejection of the nomination form of the respondent No. 4, being Annexure-2, for declaration of election of respondent No. 4, as Sarpanch of Gram Panchayat Narlai, to be void and illegal, and for declaration of respondent No. 4, as ineligible for contesting the election, till completion of five years period from 15.12.1997.

5. The factual matrix, for the above reliefs, according to the petitioner is, that the respondent No. 4 was the Sarpanch of Gram Panchayat Narlai from 1988 to 1991. During this period he is said to have committed irregularities and misconduct, for which, enquiry was held, charge-sheet was given, and the enquiry officer found him guilty of misconduct in discharge of his duties, and therefore, the State Government recorded findings against him, under Section 38(1) (b) of the Rajasthan Panchayati Raj Act, 1994, hereafter to be referred to as 'the Act of 1994', being Annexure-1 dt. 15.12.1997. Consequently, according to Section 38(3) of the Act of 1994, the respondent No. 4 was disqualified from contesting the election, under the Act of 1994, for a period of five years. Thus he was not eligible to contest the election, as per Section 19(h) of the Act of 1994, upto 14.12.2002.

6. With this background, it is alleged, that the elections of Panchayati Raj Institutions was announced, and nominations were to be filled on 3.2.2000. The petitioners also filed his nomination, while the respondent No. 4 and other persons also filed their nominations. At the time of scrutiny, objection was raised, about the respondent No. 4 being disqualified, in view of Annexure-1, but then, the objection was rejected by the Returning Officer, on the ground, that the said order has been withdrawn by the State Government on 2.2.2000, (Annexure-3) on the review application of the respondent No. 4. The elections were held on 4.2.2000, and the respondent No. 4 was elected vide Annexure-4. It is pleaded, that the order Annexure-3 is without jurisdiction, illegal, and the State Government has no power to review the orders passed by it, under Section 38 of the Act of 1994. The review being creature of the statute, in absence of any provision for review, the authority cannot entertain any review petition, and pass any order thereon, while the authority, in the present case,had entertained said application for review, and passed the order Annexure-3, withdrawing Annexure-1. It was also contended, that the order is a glaring example of colorable exercise of power, and has been issued malafide. It was pleaded, that on 2.2.2000, there was a complete strike in the Secretariat, the Government work was completely held up on that account, rather it was almost impossible for the executive to move any file in the office, despite that situation, Annexure-3 has been passed, while mentioning special number on the order, the order was faxed to Tehsildar, only with intention to enable the respondent No. 4, to file his nomination form on 3.2.2000. Thus, the order has been issued for extraneous consideration. Another ground taken was, that Annexure-1 was passed by the Director, Rural Development and Panchayati Raj Department, under the orders of the State Government, whereas the order Annexure-3 has been passed by an authority junior to it. Another ground taken is, that Annexure-3 has been passed after a delay of more than 2 years. The allegations for misconduct, on which the respondent No. 4 was found guilty, were also highlighted.

7. A reply to this writ petition has been filed on behalf of respondent No. 4, on 10.7.2001, raising certain preliminary objections. First and foremost being, about non-maintainability of the writ petition, in view of the bar enacted by Article 243-O(b) of the Constitution. Another preliminary objection is, that the petitioner has made misstatement of fact, and has also made concealment of material facts, inasmuch as, Section 38(5) read with Section 97 of the Act of 1994, permits review of any order passed under Section 38 of the Act of 1994. The next objection is, that the order dt. 15.12.1997 itself is illegal, rather null and void, and therefore, setting aside the order dt. 2.2.2000 would result in restoration of null and void order, and therefore, the writ petition cannot be entertained. An objection about non-impleadment of Returning Officer was also taken, as he is said to be necessary party. Giving parawise reply, locus of the petitioner has been challenged, on the ground, that the petitioner cannot be said, to be a person aggrieved of the order dt. 2.2.2000, and the present one is not a Public Interest Litigation, and that, since the order dt. 15.12.1997 was null and void, and therefore, it was rightly withdrawn by Annexure-3. The charges leveled against the respondent No. 4 have been contended to be frivolous, and it was a clear case of malafide exercise of power, on the part of the State Government. It is contended that after the charge sheet was issued, the respondent No. 4 submitted the reply on 29.3.1993, denying allegations, thereafter enquiry officer was appointed, in the meanwhile, the Act of 1953 was repealed, likewise the Rajasthan Panchayat (General) Rules, 1961 were also repealed, and on the face of language of Section 124 of Act of 1994, these proceedings were not saved, nor permitted to be continued under Section 38 of the Act, therefore, w.e.f. 23.4.1994, when the Act of 1994 came in force, the proceedings initiated against the respondent No. 4, under Section 17 of the Act of 1953, automatically came to an end, still they were continued. Enquiry officer did not conduct the enquiry in accordance with the principles of natural justice, neither the list of departmental witnesses was given, nor the list of documents, relied upon, was given to the respondent No. 4, rather the enquiry officer simply asked him to attend the enquiry at Pali, and simply asked to give reply to the charge sheet, and whatsoever was done by the enquiry officer, was absolutely secret. Thus, the enquiry was conducted in violation of the principles of natural justice, and in the said enquiry, one charge was found to be proved, and two charges were found to be partly proved, while two charges were found to be not proved. On receipt of the enquiry report, notices were issued on 3.7.1996, which notice was accompanies with partial report of the enquiry officer. However, another notice dt. 5.10.1996 was issued, to which detailed reply was filed, being Annexure R-4/1, and a prayer for opportunity of personal hearing was also made, but then, the respondent No. 4 did not hear anything in the matter. Thereafter, when he came down to Narlai, in the last week of January 2000, he came to know of passing of the order dt. 15.12.1997. Thereafter he immediately submitted a petition for recalling the order, whereupon the order was recalled. It was contended, that the order dt. 15.12.1997 was null, and void, there was no question of his beingdisqualified from holding the office of Sarpanch, it is only when the answering respondent was declared elected, that a grievance has been raised. It was then contended, that the order Annexure-3 is perfectly valid, and within the jurisdiction of the State Government. Regarding authority of the State Government, reliance is placed on Section 38(5), read with Section 97 of the Act. Allegation about strike in the Secretariat was disputed, and it was pleaded, that no, foundation has been laid by the petitioner, for making the allegation, rather the work of the Secretariat was going on, as usual, and no foundation has been laid for contending the order to be malafide. Regarding the status level of the two authorities, it was contended, that the order Annexure-3, has already been passed by the State Government, and the signing authority, communicating the order is immaterial. Regarding the delay, it was contended, that no limitation has been prescribed for exercising power under Section 97 of the Act of 1994. Apart from the fact, that as the order dt. 15.12.1997 is null and void, it could be recalled at any time, and that, when the respondent No. 4 came down to Narlai, in the month of January, 2000, he came to know of the order dt. 2.2.2000, as such there is no delay. Another objection raised is, that the petitioner cannot be said, to be not having other equally efficacious remedy, rather he had the remedy of filing the election petition. In this reply respondent No. 4 has purportedly filed the counter writ, seeking to assail the order dt. 15.12.1997, interalia on the ground, that with the repeal of 1953 Act, and the proceedings being not saved under Section 124 of the Act of 1994, the order was null and void, the Government has not at all considered the reply given by the respondent No. 4, nor any reasons have been given for rejecting the explanation, and that the State Government did not record its own finding, as required by Rule 22 of the Rules of 1996, read with Section 38 of the Act of 1994, the enquiry being in utter breach of principles of natural justice, and charges leveled against him, being baseless, as the respondent No. 4 did not pass any order on his own, rather all orders were passed on the resolution of the Gram Panchayat. The respondent No. 4 has also challenged the order dt. 15.12.1997 being illegal, as it is non-speaking order.

8. No reply has been filed on behalf of the State Government.

9. Rejoinder has thereafter been filed by the petitioner on 13.7.2001, contending that the provisions of Article 243O are not attracted in the present case. The petitioner has not concealed any fact from this Court, rather, even on a combined reading, of Section 38(5), and Section 97 of the Act of 1994, it is clear, that the State Government has no power to review any order made by it, under Section 38 of the Act. The other objection raised is, that it is not open to the respondents, to challenge the validity of the order dt. 15.12.1997, at this belated stage. Returning Officer is contended to be not a necessary party, as the petitioner has mainly challenged the order dt. 2.2.2000, passed by the State Government, and other reliefs claimed are consequential to the main relief. Various other paras of the reply have also been controverted in the rejoinder. It was specifically pleaded, that the respondent had not submitted any application for recalling the order dt. 15.12.1997, rather application for review of the order dt. 15.12.1997 was filed, and the order dt. 2.2.2000 is wholly without jurisdiction. It was contended, that the counter writ petition has been filed after more than 3-1/2 years, which cannot be entertained. It was also pleaded, that the proceedings could continue under the Act of 1994, after repeal of 1953 Act. It was maintained, that the order dt. 2.2.2000 is wholly without jurisdiction. It was pleaded, that the order dt. 15.12.1997 was passed by the State Government, after considering the reply of the petitioner, as is evident from the said order, and before passing the order, relevant provisions of law were fully complied with.

10. I have heard the learned counsel at length.

11. Arguing the preliminary objection, Mr. Singhvi maintained that in view of the bar enacted by Article 243-O(b) of the Constitution, the writ petition is not maintainable, and is required to be dismissed. In this regard, Mr. Singhvi referred to the provisions of Article 243-O(b) of the Constitution, Section 43 of the Act of 1994, andRule 80(a) of the Rajasthan Panchayati Raj (Election) Rules, 1994, and submitted that the dispute about validity of nomination, or wrong acceptance of nomination, is clearly an 'election dispute', which can be raised by an appropriate election petition, and by virtue of Article 243-O(b) no election of any Panchayat can 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 State Legislature. To substantiate this proposition, reliance was placed on a Division Bench judgment of this Court in Jamna Devi v. The District Election Officer, 2001(1) RLR-115, RLW 2001(1) Raj. 673 wherein the petition was filed seeking declaration that result of election of Sarpanch had not been declared by Returning Officer in performa given under Rule 52 of Election Rules, 1994, as such, election of the respondent Sarpanch became void ab-initio, and this Court negated the challenge, as the petitioner therein was also a candidate in the election, and could question the same by filing an election petition. However, while disposing of the special appeal against the dismissal of the writ, it was directed, that the time taken by the appellant in filing the writ petition, and the special appeal, has to be excluded while computing the period of limitation in filing the election petition, and it was also directed, that the applicant shall file an application for condonation of delay in filing the election petition by explaining the reasons, and further directed that if the election petition along with such an application for condonation of delay is filed, the Election Tribunal shall consider the same and permit the appellant to prosecute the same.

12. Next judgment relied upon is in Chhitarmal v. State of Rajasthan, 2000(2) RLR-219 wherein, a writ petition was filed, seeking to challenge the election of Sarpanch on the ground, that election to the office of Sarpanch, after having been declared ineligible upto 16.10.2000, is illegal, arbitrary and unreasonable, apart from being contrary to the provisions of Rajasthan Panchayati Raj Act, 1994, and this Court referred to earlier Single Bench decision of this Court in Gopal and Ors. v. State of Rajasthan, 2000(2) RLR-18 and agreed with that judgment, and in this judgment it was held, that under the Rules, election can be questioned by filing election petition, within prescribed period of time, after expiry of the period of limitation, an elector or electors are not entitled to file either a writ petition, or writ petition in public interest litigation side, at the behest of any candidate, on his failure to file an election petition within prescribed period, on prescribed grounds enumerated under Rule 80 of Election Rules framed under Act of 1994. It was also held, that in the garb of interpretation, this Court cannot afford to substitute any 'elector' in place of 'any candidate' used under Section 43 of Act of 1994, and since the legislature has provided under Section 43 of the Act of 1994 that only a candidate can file an election petition, then this Court cannot go behind the wisdom of legislature, by holding, that as an elector is not entitled to file an election petition under Section 43 of the Act of 1994 and Election Rules framed thereunder, therefore, such elector is not entitled to question the declaration of result of Sarpanch, by Returning Officer, by filing a writ petition or writ petition in public interest side. The contention thus sought to be raised is, that this Court cannot go behind the wisdom of legislature in enacting the provisions of Section 43, and simply because, therein election petition cannot be filed by a particular person, he cannot be conceded a right to file writ petition.

13. Reliance is next placed on the judgment of Hon'ble the Supreme Court in Anugrah Narain Singh v. State of U.P., (1996)(6) SCC-303. That was a case relating to challenge of election to Municipalities, and it was held, that in terms of Rule 243-ZG of the Constitution, there is a complete and absolute bar in considering any matter relating to Municipal election, on any ground whatsoever after publication of notification for holding municipal election, and that no election of Municipality can be questioned except by an election petition.

14. The next judgment relied upon is of Hon'ble the Supreme Court in Boddula Krishnaiah v. State Election Commissioner, (1996)(6) SCC-416 and the proposition propounded therein, and relied upon is, that once an election process has been set in motion, though the High Court may entertain, or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings, or to conduct the election process afresh. It was noticed that the dispute is covered by an 'election dispute' and remedy is thus available at law for redressal.

15. Then reliance was placed on a judgment of Hon'ble the Supreme Court in Umesh Shivappa Ambi and Ors. v. Angadi Shekara Basappa, (1998)4 SCC-529 wherein it was held, that once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law, and the High Court will not ordinarily interfere with the elections under Article 226 of the Constitution of India, where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes, which in that case was, Section 70(2)(C) of the Karnataka Cooperative Societies Act.

16. Reliance was next placed on the judgment of Hon'ble the Supreme Court in C. Subrahmanyam v. K. Ramanjaneyullu and Ors., (1998)8 SCC-703 wherein it was held, that the main question for decision was of the non-compliance of a provision of the Andhra Pradesh Panchayat Raj Act, 1994, which constituted a ground for an election petition under Rule 12, and the writ petition could not have been entertained.

17. Next judgment relied upon is of Hon'ble the Supreme Court in Jyoti Basu v. Debi Ghosal, (1982)1 SCC-691 for the proposition, that the right to elect, to be elected, and to dispute an election, are neither fundamental rights, nor common law rights, but are simply statutory rights, and therefore, are subject to statutory limitations. Similarly an election petition is not an action at common law, nor in enquiry, but is a statutory proceeding, to which, only statutory rules apply. The statute concerned with the election matters is the Representation of the People Act, which is a complete and self-contained code, and within it must be found any rights claimed in relation to an election, or an election dispute.

18. In reply learned counsel for the petitioner submitted, that the bar enacted by Article 243-O(b) is not an absolute bar, and that does not have the effect of rendering the High Court powerless to exercise its jurisdiction under Article 226, and that, not-withstanding availability of alternative remedy of election petition, in an appropriate case, may be the rarest of a rate case, this Court can entertain a writ petition, as provisions of Article 243O cannot be said to be having the effect of taking away the extraordinary jurisdiction of this Court under Article 226 of the Constitution, which is a fundamental right of a citizen under the Constitution, and the provisions of Article 243-O(b) can at best be said to be excluding ordinary jurisdiction of the Court, and the extraordinary powers under Article 226 can be exercised, where there is an act, which is violative of the provisions of the Constitution, and when recourse cannot be had to the provisions of the relevant Act, providing remedy, to challenge the election, for appropriate relief. It was also submitted, that in the present writ petition, the challenge is to the order Annexure-3, and on the face of order Annexure-3, the respondent No. 4 was qualified, and since the Returning Officer cannot go into the validity of the order Annexure-3, and even the Election Tribunal can also not go into the validity of order Annexure-3, the present writ petition is maintainable, rather a condition precedent to petitioner's entitlement to file the election petition.

19. Learned counsel to substantiate his submission relied upon the judgment of Hon'ble the Supreme Court in K. Venkatachalam v. A. Swamickan, AIR 1999 SC-1723 which was a case relating to election to the Legislative Assembly constituency. In that case the appellant before Hon'ble the Supreme Court was elected, writ petition was filed a year after the election, for a declaration, that the candidate was not qualified to be member of the Tamil Nadu Legislative Assembly, representing Lalgudi Assembly Constituency, since he was not elector in the electoral roll of Lalgudi Assembly Constituency for thegeneral election. Of course, alternative prayer was made, for writ of quo warranto, directing the candidate to show, as to under what authority he was occupying the seat in the Assembly. The writ petition was dismissed by the Single Bench on the ground that Article 329(b) of the Constitution was a complete bar when remedy was available under the Act. However, the Division Bench held, that High Court is not powerless in exercise of its jurisdiction under Article 226 of the Constitution, from declaring, that the election of the candidate was illegal, inasmuch as, he did not possess the basic constitutional and statutory qualifications, and thus the election was set aside. In para-4, Hon'ble the Supreme Court noticed, that there is no dispute, and in fact there is no challenge, to the finding of the High Court, that the appellant was not an elector in the electoral roll for the Lalgudi Assembly Constituency for general elections, and that, he, in blatant, and fraudulent manner, represented to be an elector of that constituency, while using the similarity in the name of another person. Then after referring to various previous judgments, Hon'ble the Supreme Court in para-27 held, that Article 226 of the Constitution is couched in widest possible terms, and unless there is clear bar to jurisdiction of the High Court, its powers under Article 226 of the Constitution can be exercised, when there is any act which is against any provision of law or violative of constitutional provisions, and when recourse cannot be had to the provisions of the Act, for the appropriate relief. It was further held, that in circumstances like the present one, bar of Article 329(b) will not come into play, when case falls under Articles 191 and 193, and whole of the election process is over. It was noticed, with stress, that 'would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?' Then in para-28 it was held, that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution, and declaring the appellant to be not entitled to sit in the Assembly.

20. Learned counsel for the petitioner then relied upon a judgment of this Court in Bhaiya Ram v. State of Rajasthan, AIR 2000 Rajasthan-407 where the election of the Sarpanch was sought to be challenged by way of writ petition, on the ground, that he is disqualified even prior to contest of election, under Section 19(gg) of the Panchayati Raj Act, 1994, as the candidate was under trial in a competent court, which has taken cognizance of the offence, and framed charges against him, punishable with imprisonment for five years or more. The objection of bar of availability of alternative remedy of election petition was invoked, and this Court, by relying upon. K. Venkatchalam's case, and Full Bench decision of Punjab & Haryana High Court, in Lal Chand v. State of Haryana, AIR 1999 Punjab & Haryana-I and various other previous Supreme Court judgments, held that writ is maintainable.

21. Reliance was next placed on a Full Bench judgment of Andhra Pradesh High Court in S. Fakruddin and Ors. v. The Govt. of A.P. and Ors., AIR 1996 Andhra Pradesh-37 specially para-18 and 19 thereof, for the proposition, that bar under Article 243-O and 243K is only to the ordinary jurisdiction of the Court, and not to the extraordinary jurisdiction of the Court under Article 226 and Article 136 of the Constitution of India.

22. Next judgment relied upon is of Full Bench of Punjab & Haryana High Court in Lal Chand v. State of Haryana (supra), wherein it was held, that despite the bar imposed under Articles 243O and 243ZG of the Constitution of India, the election of the Panchayat/Municipality can be challenged directly before the High Court under Articles 226/227 of the Constitution of India. It is also significant to note, that in para-36, the Full Bench has further held, that the High Court, keeping in view, the facts and circumstances of the case, may relegate the petitioner to the remedy available before the Election Tribunal.

23. The next judgment relied upon is of this Court in Bahadur Nath v. State of Rajasthan, 2001(2) RLR-674, RLW 2001(2) Raj. 1237 where the action of the State Government, in holding enquiry, on account of birth of third child during pendency of the election petition was challenged, on the ground that in view of the bar enacted by Article 243-O(b), the election could be questioned only by filing election petition, and in case the election petition ispending before competent Tribunal, the enquiry being held by the State Government is without jurisdiction. On this controversy, after referring to various judgments of Hon'ble the Supreme Court, it was held, that the enquiry could be proceeded ahead, and direction was given to complete the enquiry, preferably within a period of two months.

24. Reliance is then placed on the Division Bench judgment of Punjab & Haryana High Court in Sudesh Kumar Aggarwal v. State of Punjab, 2001 Punjab & Haryana-197 where the election of the President of Municipal Council was challenged by way of writ petition, with a prayer to declare the petitioner to be elected, and wherein the High Court held, that writ cannot be dismissed on the ground of availability of alternative remedy, and even otherwise, the bar of jurisdiction under Section 7 of Election Commission Act does not affect the extra ordinary jurisdiction under Article 226.

25. The next authority relied upon is of Division Bench of this Court in Narendra Kumar v. State of Rajasthan, 1983 RLR-432 wherein the election of the Pradhan was challenged, on the ground of his being disqualified, on account of period of six years having not elepsed, since the date of his conviction, and this Court held in para-13, that the High Court is empowered, in an appropriate case, to issue such a writ regarding an election dispute, but it will not ordinarily assume to itself this function which has been adequately provided for in the statutory provisions dealing with the conduct of an election, except for strong and compelling reasons, because interference with elections, on mere technicalities, would amount to interference with the decisions of the people, who have recorded their votes and expressed their confidence in their representatives.

26. Learned counsel also relied upon the judgment of Hon'ble the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, (2004)2 SCC-377 wherein the election to the Legislative Assembly in Assam was under challenge before the High Court, by way of election petition, on the ground that the candidate stood disqualified, being holder of post of profit under the State of Assam, on account of his said to have been appointed as Assistant Teacher, wherein the question was, about validity of termination of the teacher, so as not to render him disqualified, and Hon'ble the Supreme Court held in para-41, that the High Court could not have proceeded on the basis, that the order of termination was illegal.

27. I have considered the rival contentions. First of all I may gainfully quote the provisions of Article 243O of the Constitution, which reads as under:-

'Article 243-O. Notwithstanding anything in this Constitution,-

a) the validity of any law relating to the delimitation of constituencies or the allotment of seats 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.'

28. Thus, on the face of the language of Clause (b), it does appear that election of any Panchayat cannot 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. But then, such language has been a subject matter of consideration in various judgments cited at the Bar, and therefore, it would be proper for me to take up the judgments ad seriatim.

29. Coming to Jamna Devi's case, that was a case where the election was challenged only on the ground that the result of the election has not been declared in the performa given, and thereby the provisions of the Rule 52 of Panchayati Raj (Election) Rules 1994 were not followed. Considering this contention, it was held bythe Division Bench of this Court, that if there is any ground relating to non-compliance of the provisions of the Election Rules, on which the validity of an election process could be questioned, the appellant, who is also a candidate in the election, can question the same by filing an election petition. It is a different story that, while disposing of the litigation in this Court, opportunity was given to file election petition, and positive directions were also given for condonation of delay. Thus, on facts this case is distinguishable.

30. So far Chhitarmal's case is concerned, the legal proposition propounded therein, cannot be, and need not be, disputed. In the present case, what is significant to note is, that writ petition is primarily filed against the order Annexure-3, and setting aside of election has been prayed only as a consequential relief. It is a different story that, while deciding validity of the impugned order Annexure-3, this Court may, or may not feel inclined to set aside the election, and may feel inclined to relegate the petitioner to the remedy of election petition, for the purpose of challenging election. Undisputedly the petitioner was also one of the candidates, as such the legal proposition propounded in Chhitarmal's case cannot be said to be having any bearing on the question involved in the case in hand.

31. So far Anugrah Narain Singh's case is concerned, that was a case, where numerous writ petitions were filed by the persons, challenging the notification for holding the Municipal election in the State, at Allahabad and Lucknow, and the Allahabad High Court passed the order stopping the election process, regardless of the judgment, and order passed by the Lucknow Bench of the High Court, dismissing the writ petition. The controversy raised therein was regarding objections to the delimitation of wards on certain grounds, and it was in that background, that Hon'ble the Supreme Court noticed, that election process was well underway, and was scheduled to be completed in less than 10 days' time, powers of the Election Commission referred to in Rule 243-K were referred to, then the provisions of Article 243ZG were referred, and it was noticed, that the validity of delimitation of wards cannot be questioned in a court of law, because of the express bar imposed by Article 243ZG of the Constitution, and after referring to Section 7, and various judgments, it was held, that the validity of reservations can also not be challenged. With all this, the predominant object was that on no account, the High Court should have directed the postponement of election by the order dt. 13.11.1995, as the notification for holding the municipal elections was issued on 11.10.1995, 16.10.95 to 20.10.1995 was the period during which the nomination papers could be filed, 24.10.1995 was the last date for withdrawal of nomination papers, voting was to take place between 17.11.1995 to 20.11.1995, while the writ petitions were filed as late as on 26.10.1995, with the allegation that there were defects in the electoral rolls, delimitation of constituencies, and reservation of seats.

32. In Boddula Krishnaiah's case the facts were, that in the draft roll prepared by the competent authority, names of about 94 persons found their place, but their names were deleted, and therefore, they filed writ petitions. The notification was issued on 7.6.1995, and elections were held on 27.6.95. It is in this background, that in para-11 onwards, it has clearly been held, that once an election process has been set in motion, though the High Court may entertain, or may have already entertained, a writ petition, it would not be justified in interfering with the election process, giving direction to the election officer to stall the proceedings, or to conduct the election process afresh, in particular, when election has already been held, in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute, and remedy is thus available at law for redressal. Significantly, Hon'ble the Supreme Court further clarified in para-12 as under:-

'12. Under the circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules.'

33. Thus it was categorically held, that the writ petition was maintainable, and it was held to be not permissible to stall the election process, but then, it was further clarified, that it does not preclude any candidate, including defeated candidate, from canvassing the correctness of the election, therefore, the writ petitioners were left free to seek remedy by way of election petition, as provided in the Act and the Rules. There cannot be any dispute on the legal proposition, that election process cannot be stalled while the elections are underway, but then, this judgment, delivered by the Bench, presided by three Hon'ble Judges, clearly held, that for adjudication of such dispute writ is maintainable. Significantly, this finding has been given after making reference to the provisions of Article 243O in para-12. In the present case, since no elections are underway, the proposition does not help the contesting private respondent, rather it helps the petitioner, on the point of maintainability of writ petition.

34. So far Umesh Shivappa Ambi's case is concerned, firstly that was a case where the dispute sought to be raised was clearly an election dispute, for which election petition was remedy, and that case was not found to be fit for interference under Article 226. However, so far the case in hand is concerned, here the validity of Annexure-3 was not a matter, which could have been adjudicated by the Election Tribunal. That apart even in Shivappa Ambi's case also. Hon'ble the Supreme Court held, that the High Court will not ordinarily interfere with the election. Thus, this judgment also contemplates permissibility of entertaining of writ petition, even in case of election dispute. May be, that in a given case, the High Court may, or may not feel inclined to interfere, but then in view of the legal proposition propounded by Hon'ble the Supreme Court, it cannot be said, that the writ petition is not maintainable at all. Thus, this case also does not help Mr. Singhvi.

35. The decision in C. Subrahmanyam's case, again appears to be a case, where the writ was filed when the election was underway, as it was filed challenging the re-poll made during the process of election. In my view this case is, therefore, clearly distinguishable.

36. So far Jyoti Basu's case is concerned, the proposition, in my view, is not relevant for the present controversy, inasmuch as, in view of the larger Bench judgment of Hon'ble the Supreme Court, in Boddula Krishnaiah's, and Umesh Shivappa Ambi's cases holding writ petition to be maintainable, the judgment in Jyoti Basu's case need not detain me any more.

37. Coming to the cases cited by the learned counsel for the petitioner, K. Venkatachalam's case, in my view, is clearly an authority, for the proposition, that the jurisdiction of the High Court under Article 226 is not taken away even by the bar of Article 329(b), and in my view, for that matter even by Article 243-6. Of course, I would like to bear the word of caution, that this Court may feel inclined to use the powers, in a rarest of rare case, and not in a routine manner, but then, this judgment does clearly negative the absolute proposition, about this Court having no power under Article 226, in view of the bar contained in Article 243-O(b) of the Constitution.

38. Bhaiya Ram's case, in my view, clearly supports the contention of the learned counsel for the petitioner, which in turn, is based on the Full Bench judgment of Punjab and Haryana High Court, in Lal Chand's case. It is a different story, that in that case, on merits, this Court did not find the candidate to be disqualified, as the charges had not been framed.

39. The Full Bench decision of the Andhra Pradesh High Court, in S. Fakruddin's case, was a case, where the Court was considering bunch of writ petitions, challenging the matter, by which particular Gram Panchayat was reserved for Backward Classes by draw of lots. An objection was raised on the anvil of Article 243-O(b) as preliminary objection. The Full Bench, to which the matter was referred, by referring to various previous judgments of Hon'ble the Supreme Court, held in para-19 as under:-

'The preponderance of the judicial opinion and the view of the Supreme Court as expressed in various pronouncements leave no doubt in our mind notwithstanding the bar that the bar is to the ordinary jurisdiction of the Courts and not to the extraordinary jurisdiction under Article 226 of the Constitution and Article 136 thereof. It is not necessary for us therefore to pronounce that Article 243O is unconstitutional; simply it does not take away the power of this Court under Article 226 of the Constitution to examine the validity of any law relating to the elections including the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K of the Constitution. As respect challenge to the election or any intermediary stage in case, there is an alternative effective and independent mechanism provided, the Court shall abstain to interfere except on jurisdictional errors i.e., when infirmity is based on violation of constitutional mandate, mala fides, non-compliance with Rules of natural justice and perversity. It will be so for the reason of prudence as well as defence to the legislation by the Parliament in exercise of its constituent power.'

40. In Lal Chand's case, writ petitions were filed to challenge the election of a member to a Gram Panchayat, or to a Municipal Committee. A preliminary objection was taken, that in view of the bar to interference by the Courts in electoral matters created by Articles 243O and 243ZG of the Constitution the writ is not maintainable. The matter was considered by the Full Bench, and again after referring to various previous judgments of Hon'ble the Supreme Court, it was held in para-35 and 36 as under:-

'35. We also do not find any merit in the contention raised by the learned counsel for the State that writ petition for challenging the election to Panchayat/Municipality was not maintainable in view of the law laid down by the Apex Court in the case of N.P. Punuswami, (AIR 1952 SC 64) (supra. In this connection, we may refer to para 19 of the said judgment wherein it was stated that question as to what the powers of the High Court under Articles 226/227 and of Supreme Court under Article 136 of the Constitution may be, is one that will have to be decided on a proper occasion. As stated hereinabove, the Supreme Court by a catena of judgments has now held that one of the basic features is the existence of the Constitutional system of judicial review and even Article 368 of the Constitution does not enable the Parliament to alter the basic feature or framework of the Constitution.

36. In view of the above discussion, we are of the considered view that despite the bar imposed under Articles 243O and 243ZG of the Constitution of India, the election of the Panchayat/Municipality can be challenged directly before the High Court under Articles 226/227 of the Constitution of India otherwise the Articles would be against the basic structure of the Constitution (i.e. Judicial review by the High Court/Supreme Court. The High Court, however, keeping in view the facts and circumstances of the case may relegate the petitioner to the remedy available before the Election Tribunal.'

41. Thus, this judgment is a clear authority for the proposition, that the bar of Article 243-O(b) does not have the effect of taking away the extraordinary jurisdiction of this Court under Article 226, and the bar is confined only to the ordinary jurisdiction of the Courts.

42. So far Bahadur Nath's case is concerned, in para-33 this Court has clearly held as under:-

'33. Writ lies to test the validity of the election to a public office or in a statutory body and in case Court is satisfied that election had been held on the basis of an electoral roll prepared in contravention of the statutory provisions or the electoral roll itself was illegal or the person contesting the election stood disqualified, the Court should not hesitate in asking the person to vacate the office because he cannot be permitted to usurp the public office.'

43. So far the case of Sudesh Kumar's is concerned, that was a case, where writ petition was filed prior to the election, inasmuch as, the notification of the Government, notifying the result of the election was issued on 14.1.1998, and the first meeting was convened on 11.4.1998, which was postponed for 12.4.1998, at the instance of respondent No. 6, who was sitting Minister and an ex-officio Member of the Council. The petitioner had also filed nomination for the post of President. However, the meeting was adjourned sine die without giving any cogent and justified reasons, whereupon the writ petition was filed, seeking direction, commanding the respondent authorities to hold the election to the offices of the President and Vice President of Municipal Council, under the supervision of independent agency, and under strict security, and also to provide protection to the lives and properties of the petitioners. In that writ petition, notice was issued on 23.4.1998, for 11.5.1998, and the case was adjourned for 20.6.1998. However, during pendency of the said writ petition, agenda was issued on 8.6.98, for holding election on 10.6.98. Polling was held in the manner not permitted by law, rather, it was directed to be held in such a manner, that identity of the voter could very clearly be made out, and relief was also claimed on the ground, that despite direction of the court, no senior officer was deputed for election as well. After considering the Division Bench decision in S. Fakruddin's case, and Full Bench decision in Lal Chand's case, and after relying upon the decision in K. Venkatachalam's case, it was held in para-24 as under:-

'24. It is clear that even the constitutional bar created under Articles 243ZG does not oust the jurisdiction of the High Court in the matters relating to the Municipal Elections. No doubt, the exercise of jurisdiction under Article 226 of the Constitution has to be in appropriate cases. Even otherwise, a person who is elected on the basis of invalid votes cannot be allowed to continue in the elected office if the Court, on such a consideration that in his case it was not a fair election, entertains the writ petition. ........'

44. Likewise after going into the merits of the claim of the petitioner, the election of the returned candidate was quashed, and the petitioner was held to be the President, and the respondent No. 1 was directed to notify the election of the petitioner as such. Thus, this judgment is again an authority for the proposition that notwithstanding the bar of Article 243ZG, or for that matter Article 243O, the jurisdiction of this Court under Article 226 is not taken away.

45. So far Narendra Kumar's case is concerned, in view of the various judgments referred to above, this judgment need not claim me much. Of course, this judgment being authority for the proposition, that High Court is empowered in an appropriate case (in that case the writ was writ of quo warranto. But then in para-13 itself it was further observed as under:-

'..... .but it will not ordinarily assume to itself this function which has been adequately provided for in the statutory provisions dealing with the conduct of an election except for strong and compelling reasons, because interference with elections on mere technicalities would amount to interference with the decisions of the people who have recorded their votes and expressed their confidence in their representatives.'

46. However, significantly, in this very para it was further held as under:-

'The matter would be entirely different if the elected candidate suffered from any disqualification at the date of the election rendering his election invalid or if any irregularity committed in the course of elections is of a nature touching the substance of an election and has resulted in the voters not being able to express their views freely and properly and if there was any corrupt practice which has materially affected the result of the election or if the basis of the election, namely, the electoral roll is illegal and no election on its basis can be permitted to stand or if the delimitations of the constituencies was invalid resulting in a considerable number of voters having been disenfranchised or if there was shown to have existed some such other material circumstance having the effect of rendering the election invalid.'

47. Though in this case, after examining the merits of the contention, it was found, that the disqualification will be computed, not from the date of the appellate judgment, but from the date of Trial Court's judgment, from which date, more than six years period had already elapsed, the writ petition was dismissed. Thus, this judgment is also an authority, for the proposition, in favour of maintainability of the writ petition.

48. Mr. Bishnoi also relied upon judgment of Hon'ble the Supreme Court in Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, AIR 1999 SC-1120 to contend, that notwithstanding the availability of remedy of election petition, the writ can be maintained. In this case, the candidate was a practicing advocate, and was appointed as Asstt. Public Prosecutor, who was entitled to daily fees of Rs. 100/- subject to restrictions under the rules, while so, he contested the election for the seat of member of Panchayat Samiti, while the 4th respondent also contested the election for the seat of member of another Panchayat Samiti. After being elected as Members, both of them contested for the election of Chairman, wherein the appellant was elected. Thereupon the respondent initiated proceedings under Section 45-B of the Orissa Panchayat Samiti Act in the Court of District Judge, contending that, as Assistant Public Prosecutor he was holding 'office of profit' under the Government, so he was not eligible to be either a member, or the Chairman, of the Panchayat Samiti, which were resisted, interalia on the ground, that such proceedings are not maintainable, as after the elections are over the only remedy was to file an election petition under Section 44-A of the Act. On this controversy, Hon'ble the Supreme Court held in para-20 and 21 as under:-

'20..... .The Election Petition under Section 44-A can be filed by any candidate who need not be a member (Section 44-C), but an application under Section 45-B can be filed, as noted above, by a member of the Samiti who is in doubt about his incurring disqualification, the Chairman of the Samiti at the request of the Samiti, or any other member. Whereas in an application under Section 44-A, a candidate can claim not only a declaration that the election of all or any of the returned candidates is void but also a further declaration that he himself or any other candidate stands duly elected. Section 45-B is not concerned with either declaring the election void or granting anyconsequential declaration as to who has been duly elected. It merely enables the persons specified therein to invite a decision on the question of disqualification of a member. Though disqualifications mentioned in Section 45 of the Act are one of the grounds under Section 44-L on which the Election Commissioner can declare the election of a returned candidate void; there are also other grounds on which election of returned candidate can be declared void. Yet those other grounds cannot be the subject matter of an application under Section 45-B. Whereas the election petition under Section 44-A has to be filed within 15 days after the date on which the result of the election was announced, no period of limitation is prescribed for an application under Section 45-B; it can be filed at any time while the member continues to act as a member of the Panchayat Samiti. There is no doubt that there is some overlapping between the two sections but the field of operation of these two Sections is different and distinct. Indeed under Section 45-B, a District Judge is not pronouncing upon the validity of the election but is only pronouncing upon the question as to whether a member is or has become disqualified under the Act. It cannot be laid down that no relief under Section 45-B can be claimed after the declaration of result of election.

21. For the above reasons, we have no hesitation in holding that the remedy of filing election petition under Section 44-A is no bar to file application under Section 45-B of the Act for inviting a decision on the question of disqualification of a member.'

49. In my view, in a way, this judgment also substantially helps the petitioner. However, the decision in Sultan Sadik's case, in my humble opinion, is a clear authority for the proposition, that it is not within the powers of the Election Tribunal to go into the validity of the order Annexure-3, and the election petition has to be decided by the Election Tribunal, taking Annexure-3 on the face value. Hon'ble the Supreme Court, in para-39, has quoted the following passage of Lord Radcliffe, and has then held as under:-

'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'

This must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council, without distinction between patent and latent defects. Lord Diplock spoke still more clearly, saying that: 'it leads to confusion to use such terms as 'voidable', 'voidable ab initio', 'void' or 'a nullity' as descriptive of the status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction.'

50. In view of the aforesaid discussion, I am not inclined to accept this preliminary objection, regarding maintainability of the writ petition, on the anvil of bar enacted by Article 243O.

51. Taking up the next preliminary objection, in a collective manner, viz. that in view of repeal of the Act of 1953 and the Rules of 1961, and in view of the language ofSection 124 of the Act of 1994, the proceedings, having not been saved, nor permitted to be continued under Section 38 of the Act of 1994, w.e.f. 23.4.94, the proceedings initiated against respondent No. 4, under Section 17 of the Act of 1953, came to an end, still they were continued, and the order was passed, which is wholly without jurisdiction, and therefore, even if the order impugned is taken to be without jurisdiction, still, since it would result into restoration of the aforesaid without jurisdiction order, the impugned order Annexure-3 need not be interfered with in the extra-ordinary jurisdiction under Article 226. Other submissions regarding the validity of the order dated 15.12.1997, shall be dealt with by me later.

52. With regard to the effect of repeal, reliance was placed on the judgment of Hon'ble Supreme Court in Indra Sohanlal v. Custodian Evacuee Property, AIR 1956 SC-77 wherein it was held, that where the repealing section of the fresh enactment, which purports to indicate the effect of the repeal, on previous matters, provides for the operation of the previous law, in part, and in negative terms, as also for the operation of the new law, in the other part, and in positive terms, the said provision may well be taken to be self-contained, and indicative of the intention to exclude the application of Section 6, General Clauses Act.

53. Reliance was then placed on the judgment of Hon'ble the Supreme Court in Gajraj Singh etc. v. The State Transport Appellate Tribunal and Ors., JT 1996(8) SC-356 wherein Hon'ble the Supreme Court was concerned with the provisions of Motor Vehicles Act, 1988, whereby the earlier Act was repealed, but then certain things were saved, and interpreting those provisions it was held, that the Act saves only acts done or actions taken etc., which are consistent with the provisions, and therefore, it was held, that by implication, all inconsistent acts done or actions taken, except those completed and closed, would not be considered to be done or taken under the Act, and consequently could not be operative under the Act. They are obliterated completely from statute, as if they never existed, except to the extent of limited operation, provided in the appropriate clauses, in Section 217(2) of the Act.

54. I have gone through the judgments.

55. The principle propounded in Indira Sohanlal's case is not in dispute, but then, in that case, Hon'ble the Supreme Court was concerned with peculiar language of repealing provision, inasmuch as, Section 58, whereby the Ordinance of 1949 was repealed, and there were series of repeals, and the final repealing provision did not expressly save certain repeals, while certain repeals were saved. In that view of the matter, on facts, it was found, that the provision can be taken to be a self contained, and indicative of intention to exclude the provisions of Section 6 of the General Clauses Act. While in the present case, Section 124 does not contain any such eventuality.

56. I my view Gajraj Singh's case is again an authority on its own facts, as specific parameters were laid down in the repealing provision, as to what acts and actions have been saved.

57. I may gainfully quote the provisions of Section 6 of the General Clauses Act, which read as under:-

'6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not-

a) revive anything not in force or existing at the time at which the repeal takes effect; or

b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'

58. I may, in this regard, now refer to the principle propounded by Hon'ble the Supreme Court in Commissioner of Income-tax, U.P. v. Shah Sadiq & Sons, AIR 1987 SC-1217 which does clearly cover the controversy, wherein in para-15 it was held as under:-

'...... .In this case the 'savings' provisions in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c), General Clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income-tax Act of 1922 is not saved expressly by Section 297, Income-tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(c) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by Section 297 either expressly or by implication.'

59. A reading of the aforesaid judgment, in Shah Sadiq & Sons' case, thus does show as to how the provisions of Section 6 of the General Clauses Act operate, and even on the closet reading of the entire provisions of Section 124. I do not find anything which may have the effect of preventing the survival of the proceedings initiated under 1953 Act.

60. It is not in dispute, that 1953 Act was a permanent statute, and it is established law, that unlike temporary statutes, which expire by efflux of time, the cases relating to permanent statutes, and even cases relating to temporary statutes expressly repealed before efflux of time, are governed by the provisions of Section 6 of the General Clauses Act, and the consequences mentioned in various Clauses (a) to (e) ensue, of course 'unless a different intention appears'. According to Clause (e), the repeal is not to affect any investigation, legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. In that view of the matter, if any of these things are sought to be affected by repeal, an intention in that regard should appear. I may, for ready reference, quote the language of Section 124 of the Act of 1994, which reads as under:-

'124. Repeal and savings.-[(1) On the date of commencement of this Act, hereinafter in this section referred to as 'the date of commencement', the Rajasthan Panchayat Act, 1953 (Rajasthan Act 21 of 1953) and the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Rajasthan Act 37 of 1959) shall stand repealed and the following consequences shall ensue, that is to say-

a) all property, movable and immovable, and all interests of whatsoever kind therein, which vested in an existing Panchayati RajInstitution, immediately before the date of commencement, shall be deemed to be transferred to, and shall vest in the successor Panchayati Raj Institution, subject to all limitations, conditions and rights or interests of any person, body or authority in force or subsisting immediately before the date of commencement;

b) all rights, liabilities and obligations of an existing Panchayati Raj Institution, (including those arising under any agreement or contract) shall be deemed to be the rights, liabilities and obligations of the successor Panchayati Raj Institution;

c) all functions of the existing Panchayati Raj Institutions, whether under the Acts repealed as aforesaid or under any other law for the time being in force, shall be deemed to have been transferred to the successor Panchayati Raj Institutions under this Act;

d) all sums due to an existing Panchayati Raj Institution, whether on account of any tax or otherwise, shall be recoverable by the successor Panchayati Raj Institution and for the purpose of such recovery the successor Panchayati Raj Institution shall be competent to take any measure or institute any proceedings which it would have been open to an existing Panchayati Raj Institution or any authority thereof to take or institute before the date of commencement;

e) the unexpended balance in the funds of the existing Panchayati Raj Institutions and all sums due to such Institutions and such sums of any other body or bodies as the State Government may direct shall form part of, and be paid into, the funds of the corresponding successor Panchayati Raj Institutions;

f) all contracts made with, and all instruments executed by or on behalf of an existing Panchayati Raj Institution shall be deemed to have been made with, or executed by or on behalf of the successor Panchayati Raj Institution, and shall have effect accordingly.

g) all proceedings and matters pending before an existing Panchayati Raj Institution or any authority of an existing Panchayati Raj Institution under the repealed Acts immediately before the date of commencement shall be deemed to be instituted and to have been pending before the successor Panchayati Raj Institution or such authority as the successor Panchayati Raj Institution may direct;

h) in all suits and legal proceedings pending on the date of commencement in or to which an existing Panchayati Raj Institution, is a party, the successor Panchayati Raj Institution, shall be deemed to be substituted therefor;

i) any appointment, notification, notice, tax fee, order, scheme, licence permission, rule, bye-law, regulation or form made, issued, imposed or granted in respect of any existing Panchayati Raj Institution or the local area thereof under the repealed Acts and in force immediately before the date of commencement, shall, in so far as it is not inconsistent with the provisions of this Act, continue to be in force as if made, issued, imposed or granted under this Act in respect of the successor Panchayati Raj Institution or the corresponding local area thereof until superseded or modified by any appointment, notification, notice, tax, fee, order, scheme, licence permission, rule, bye-law, regulation or form made, issued, imposed or granted under this Act.

j) all budget estimates, assessments, assessment lists, valuations of measurements made or authenticated by or in respect of an existing Panchayati Raj Institution under the repealed Acts and in force immediately before the date of commencement shall, in so far as they are not inconsistent with the provisions of this Act, be deemed to have been made or authenticated by the successor Panchayati Raj Institution;

k) all officers and servants in the employment of an existing Panchayati Raj Institution immediately before the date of commencement, shall, subject to the provisions of this Act, be deemed to be transferred to the service of the successor Panchayati Raj Institution; and

l) any reference in any law or in any instrument to any provision of the repealed Acts, or any authority constituted, elected or appointed thereunder shall, unless a different intention appears, be construed as a reference to the corresponding provision of this Act, or as the case may be, to the corresponding authority constituted, elected or appointed under this Act.

[(2) On the date of commencement of the Rajasthan Panchayati Raj (Amendment) Act, 1994 (Act No. 23 of 1994), Section 43 of the Rajasthan Gramdan Act, 1971 (Act No. 12 of 1971), shall stand deleted, and as a result of such deletion, consequences enumerated in Clauses (a) to (1) of Sub-section. (1) shall ensue as if the Gram Sabha of a Gramdan Village referred to in the aforesaid deleted section was in existing Panchayati Raj Institution.]

Explanation.-For the purpose of this section-(a) 'an existing Panchayati Raj Institution' means a Panchayat, Panchayat Samiti or a Zila Parishad existing immediately before the date of commencement and, where any such Panchayati Raj Institution has been superseded or dissolved or the term thereof has expired, includes the person or persons appointed to exercise of the powers or to perform the functions of such Panchayati Raj Institution; and

b) 'the successor Panchayati Raj Institution' means a Panchayat, a Panchayat Samiti or a Zila Parishad constituted under this Act for such local area as corresponds to the respective local area of the existing Panchayat, Panchayat Samiti or Zila Parishad.'

61. Thus, even a close reading of the entire provisions of Section 124, does not show, that the repeal was intended to affect any investigation, legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, by showing any different intention. True it is that under Section 124 various things, and acts, have been saved, and deeming clauses have been provided, but then, in view of the judgment of Hon'ble the Supreme Court in Shah Sadiq & Sons' case, it cannot be said, that the proceedings initiated under Section 17, during subsistence of 1953 Act, and which could not be completed till enactment of Act of 1994, could not continue, or stood lapsed, rather according to Clause (1), it is clear, that the proceedings were saved, when it is provided therein, that any reference in any law, or in any instrument, to any provisions of the repealed Act or any authority constituted, elected, or appointed thereunder shall. . . . .be construe as a reference to the corresponding, provision of this Act, or as the case may be, to the corresponding authority constituted, elected, or appointed under this Act. Rather the provisions of Section 124 make certain clarificatory provisions, so as to avoid confusions in various matters, like immoveable properties, contracts entered into by existing Panchayati Raj Institution, budgets, and unspent amounts lying with them, imposed tax, litigations initiated by or against the Panchayati Raj Institutions, and so on. There is nothing in the entire language of Section 124 to show that, it in any manner intends to make any different intention appear, as contemplated by Section 6 of the General Clauses Act. Likewise, the provisions analogous to Section 17 of 1953 Act, does find place in the form of Section 38 of the Act of 1994. In that view of the matter, it cannot be said, that with effect from the date of commencement of the Act of 1994, the proceedings automatically came to an end, or that they were not saved, so as to enable the petitioner to contend that the order dt. 15.12.1997 is wholly without jurisdiction.

62. In view of my this finding, about survival of the proceedings initiated under 1953 Act, the arguments made by the learned counsel for the respondent No. 4, on the anvil of the language of various clauses of Section 2, and some provisions of Section 38, by contending, that the respondent No. 4, at the time of passing of the order Annexure-3, was not any chairperson, or member, of any 'Panchayati Raj Institution', and therefore, could not be removed, need not detain me.

63. I need not recapitulate the various judgments, cited by respondent No. 4, for the legal proposition, that if interference with the order impugned in the writ petition, would result into revival of an illegal order, interference should be declined, as I do not find any doubt in this legal proposition. It is from that stand point, that I have considered the above aspect, as to whether setting aside of the order impugned, would result into restoration of an illegal order.

64. In the above paragraphs I have considered one aspect of illegality, however, in this very sequence I may deal with the other illegalities in the order dt. 15.12.1997, as were highlighted by the learned counsel for the respondent No. 4, partly supporting preliminary objection, and partly arguing his counter writ. The contentions in this regard are, that the Government has not considered the reply given by the respondent No. 4, nor any reasons have been given rejecting the explanation, the State Government did not record its own finding, and that the enquiry was held in utter breach of principles of natural justice, so also that the charges leveled against him are baseless.

65. In this regard it may be observed, that a look at the order dt. 15.12.1997, being Annexure-1, itself does show, that the representation made by the respondent No. 4 had been considered by the State Government and was not found to be satisfactory. Likewise, the State Government itself has recorded its finding, as required by Rule 22(7) of the Rules and Section 38 of the Act of 1994. So far as the enquiry being in breach of principles of natural justice is concerned, of course reliance has been placed by the learned counsel for respondent No. 4, on the judgment of this Court, in Rameshwari Devi Mewara v. State of Rajasthan, 1998 WLR (Raj.)-758 but then none of the illegalities considered by this Court in Rameshwari Devi's case have even been alleged, in reply cum counter writ, inasmuch as, admittedly the respondent No. 4 did receive the enquiry report, whereupon he claims to have made representation, and it is not at all shown, as to in what manner the principles of natural justice were violated during enquiry, rather in the entire reply, being Annexure R/4-1, no such submissions had been made about violation of any principles of natural justice, or about any procedural illegality in the enquiry. Then a look at Annexure R-4/1 shows, that the respondent No. 4 had chosen to justify his actions. In that view of the matter, in view of Annexure R-4/1, the validity of the order dt. 15.12.1997 remains only, to be confined to, its own merits. Admittedly, till moving of the application dt. 1.2.2000, on which the impugned order was passed, the order dt. 15.12.1997 has not been challenged. Though the order passed by the learned Single Judge, allowing the writ petition, on 28.4.2000, has been set aside, on limited grounds, at page 17, recapitulations have been made, of the things transpired from the perusal of the original record, and therein, it is mentioned, that on 1.2.2000, the present respondent No. 4 filed an application to the Hon'ble Minister concerned, stating that order dt. 15.12.1997 had been passed holding him disqualified, and the same may be stayed, and after holding a re-enquiry, and reviewing the matter, the order dt. 15.12.1997 be quashed. Thus, it is clear, that even in that application dt. 1.2.2000, none of these grounds had been raised. That apart, the order dt. 15.12.1997 is sought to be challenged for the first time by way of counter writ petition, and cleverly contending that the respondent No. 4 did not hear anything in the matter, and it was only when he came to Narlai in the last week of January 2000, that he came to know about the order. Significantly, nothing of this sort has been alleged even in the application dt. 1.2.2000. In that view of the matter, I do not find any sufficient ground whatever, to find the order dt. 15.12.1997 to be suffering from any illegality, so as to entitle the respondent No. 4 to resist interference with the impugned order, on the ground of it to be resulting in restoration of illegality, nor do I find any sufficient ground, to interfere with the order dt. 15.12.1997 even in the counter writ. It is made clear, that as at present, I am not going into the controversy, as to whether such a counter writ is maintainable or not, the question is left open to be decided in appropriate case, on being appropriately raised, and on being appropriately argued.

66. So far as the objection about concealment of material fact is concerned, the concealment, and misstatement, is only alleged to be, with regard to existence, or otherwise, of the power of the State Government to review. That being the core question to be dealt with now, it need not be dealt with as a preliminary objection.

67. Regarding the other objection raised, about non impleadment of Returning Officer, in my view, in the present writ petition, which is primarily for considering the validity of the order dt. 2.2.2000, Returning Officer cannot be said to be a necessary party. The Returning Officer had discharged his duties on the face of the order dt. 3.3.2000, and as noticed above, the Returning Officer had no authority to go into the validity, or sustainability, of the order dt. 2.2.2000. In that view of the matter, this objection need not detain me.

68. Then the last objection is, about the petitioner's locus. In this regard, it may at once be observed, that in the totality of the circumstances, in my view, it cannot be said, that the petitioner cannot be said to be a person aggrieved of the order dt. 2.2.2000. If the order dt. 2.2.2000 is set aside, it obviously affects the legal rights of the petitioner, as respondent No. 4 would then not be qualified to contest the election and his nomination is required to be rejected. Since the order dt. 2.2.2000, directly adversely affect the petitioner's objection against maintainability of the candidature of the respondent No. 4, the petitioner cannot be non-suited on the ground of locus. Thus, this objection is also negatived.

69. In view of the above, now the core question to be decided is, as to whether the State Government has any power to pass the impugned order, Annexure-3, or not? I may further clear the ground, that the objection raised by the petitioner, about the authority passing the order Annexure 3, being lower than the authority passing the order Annexure-1, cannot be accepted, for the reason, that the authority signing Annexure 3 is only a communicating authority. Likewise no material has been placed on record, about there being complete strike in the Secretariat of the State Government on 2.2.2000.

70. Taking up the core question, at the cost of repetition, it may be noticed, that the objection of the petitioner is, that the State Government has no power to review its orders under Section 38 of the Act of 1994, the review being creature of the statute, in absence of any express provision for review, the authority cannot entertain any review petition, much less decide the same. The reply to this contention, on the side of the respondent No. 4 is, that the provisions of Section 38(5), read with Section 97 of the Act of 1994, permits the State Government, to review any order, passed under Section 38 of the Act of 1994.

71. Learned counsel for the petitioner relied upon the judgment of Hon'ble the Supreme Court, in Dr. Kashinath G. Jalmi v. The Speaker and Ors., AIR 1993 SC-1873. In that case Hon'ble the Supreme Court held, that the Speaker has no power of review under the Tenth Schedule, and an order of disqualification, made by him under Para 6, is subject to correction only by judicial review.

72. Reliance was then placed on the judgment of this Court, in Asu Ram and Anr. v. State and Ors., 2002(1) WLC-216 wherein an enquiry was conducted by the competent authority, i.e. the Divisional Commissioner, under Section 39, to find whether any person holding the office as a member of the Panchayati Raj Institution suffers from any disqualification as prescribed under Section 19, and is eligible to be continued as such member or not, and it was held, that this enquiry is not a proceeding of the Panchayati Raj Institutions, but proceeding by the Competent Authority, statutorily authorised to hold such enquiry and pass appropriate order, is a proceeding in respect of a Panchayati Raj Institution. Any proceeding relating to Panchayati Raj Institution has not been made subject matter of revisional powers of the State under Section 97, but only the proceedings of the Panchayati Raj Institution itself, that has been made subject matter of revision. As such, the order passed by the State Government purportedly under Section 97 of the Act was quashed.

73. Learned counsel for the petitioner also relied upon the judgment of Hon'ble the Supreme Court in Harbhajan Singh v. Karan Singh, AIR 1966 SC-641 wherein dealing with the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, it was held, that there is no provision in the Act, granting express power of review to the State Government, with regard to an order made under Section 42 of the Act, and in absence of any such express power, the Director, Consolidation of Holdings, cannot review his previous order dismissing the application of the petitioner under Section 42 of the Act. Hence, the subsequent review order of the Director is ultravires and without jurisdiction.

74. Next judgment relied upon was, in K.C. Bajaj v. State of Rajasthan, 2001(3) RLR-120, RLW 2001(3) Raj.1794 wherein this Court was considering the provisions of Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976, and after considering a large number of judgments of Hon'ble the Supreme Court, and previous judgments of this Court as well, held, that the Tribunal has no inherent power to review its earlier judgment, except to review the ex-parte order, in exercise of its jurisdiction under Rule 28 of the Rules.

75. On the other hand, Mr. Singhvi again read to me, the provisions of Section 38(5), and Section 97, and invoked the principles of Interpretation of Statutes, as to how the provisions are required to be construed. For this purpose, Mr. Singhvi relied upon a judgment of the Hon'ble Supreme Court in Tirath Singh v. Bachittar Singh, AIR 1955 SC-830 wherein, in para-7 it was held, that where the language of a statute, in its ordinary meaning, and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence, and on this, sought to contend, that the language of Section 38(5), and Section 97, have to be read together, and a meaningful construction is to be given to them, if necessary, even by modifying the structure of sentence, and if that be done, the State Government has the power of review.

76. Reliance was then placed on the judgment of Hon'ble the Supreme Court in Siraj-ul-Haq Khan v. The Sunni Central Board of Wakf U.P., AIR 1959 S.C.-198 wherein, in para 16 & 17 it was held, that in construing the provisions of a statute, courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made, so to reconcile the relevant provisions, as to advance the remedy intended by the statute. In such a case, it is legitimate, and even necessary, to adopt the rule of liberal construction, so as to give meaning to all parts of the provision, and to make the whole of it effective and operative.

77. In view of the submissions made on the either side, as noticed above, it is clear, that the parties are ad-idem, on the question, that the power to review does inhere in any authority, and is a creature of statute. Apart from the judgments cited on the side of learned counsel for the petitioner in this regard, and the fact that this proposition has not been disputed, even otherwise, there is ample authority to support this proposition, being consistently propounded right since 19th Century, like that in Re-St. Nazaire Co., (1879) 12 Ch.D. 88 in Baijnath Ram Goyanka v. Nandkumar Singh, 14 Indian Appeals 14 (P.C.) and in Drew v. Mills, 1891 (1) Q.B.-450 by Hon'ble the Supreme Court till the later judgments, including that in State of Orissa v. Commissioner of Land Records, 1998 (7) SCC-162 and so many other judgments. In that view of the matter, the only question required to be gone into by me is, as to whether, from reading of Section 38 and 97, and/or by construing them in a manner desired by Mr. Singhvi, on the authority of Tirath Singh's case, and in Siraj-ul-Haq Khan's case, it can be found, that the State Government has the power to review the order passed under Section 38.

78. For proper appreciation of the question, I feel it appropriate to quote the provisions of Section 38 and 97 of the Act of 1994, which read as under:-

'38. Removal and suspension.-(1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution, who-

a) refuses to act or becomes incapable of acting as such; or

b) is guilty of misconduct in the discharge of duties or any disgraceful conduct:

Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges leveled. 2) The chairperson or the deputy chairperson removed under Sub-section (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned.

3) The member or the chairperson or the deputy chairperson removed under Sub-section (1) or against whom findings have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or as the case may be, the date on which such findings are recorded.

4) The State Government may suspend any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension.

5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Section 97, be final and shall not be liable to be questioned in any court of law.'

'97. Power of revision and review by Government.-(1) The State Government may, either of its own motion or on an application from any person interested call for and examine the record of a Panchayati Raj Institution or of a Standing Committee or sub-committee thereof in respect of any proceedings to satisfy itself as to the correctness, legality or propriety of any decision or order passed therein or as to the regularity of such proceedings and, if in any case, it appears to the State Government that any such decision or order be modified, annulled, reversed or remitted for reconsideration, it may pass order accordingly:

Provided that the State Government shall not pass any order prejudicial to any party unless such party has had a reasonable opportunity of being heard in the matter. 2) The State Government may stay the execution of any such decision or order prejudicial to any party, pending the exercise of its powers under Sub-section (1) in respect thereof.

3) The State Government may, of its own motion or on an application received from any person interested, at any time, within ninety days of the passing of an order under Sub-section (1), review any such order if it was passed by it under any mistake, whether of fact or of law, or in ignorance of any material fact. The Provisions contained in the proviso to Sub-section (1) and in Section 2 shall apply to a proceeding under this sub-section.'

79. According to Section 38(1) the State Government has the power to remove any member including any Chairperson or Dy. Chairperson of the Panchayati Raj Institution, in the event of coming into existence of any of the eventualities mentioned in Clause (a) or (b), while under the proviso, in the event of expiry of the term of the Panchayati Raj Institution concerned, a finding can be recorded. Likewise, according to Sub-section (3), effect of the recording of the finding under proviso to Sub-section (1) is, that such person is not eligible to be chosen under the Act, for a period of five years of recording of a finding. Then according to Sub-section (5), the decision of the State Government, on any matter arising under this section, subject to any order made under Section 97, is to be final and not to be liable to be questioned in any court of law.

80. The contention of Mr. Singhvi is, that in view of the language of Section 38(5), the decision is, 'subject to any order made under Section 97', and since under Section 97(3) the State Government has been conferred the power of review, it is clear that the State Government has the power to review the order, passed under Section 38(1. According to the learned counsel, taking other interpretation would mean, that the provisions of Section 38(5) are rendered redundant, or meaningless, or otiose, which, in view of the judgments referred to above, is not permissible, and that, in construing the statute, an attempt must always be made, so to reconcile the relevant provisions, as to advance the remedy, intended by the statute, rather the purpose of the statute must be advanced.

81. The principle propounded need not be disputed, but then the question is, as to whether the provisions of Section 38(5) and 97(3), even if construed on the above parameters, confer any power of review, on the State Government or not, or if it is held, that the State Government does not have the power of review, whether any part of the provisions of Section 38(5) is rendered redundant, or meaningless, or does not advance the purpose of the statute

82. In interpreting the two provisions, viz. Section 38(5) and Section 97(3), I would better like to once again analyse the provisions of Section 38 and Section 97. According to Section 38(1), the State Government is conferred the power to remove from office any member, including a chairperson or Dy. Chairperson of a Panchayati Raj Institution, who, either refuses to act, or becomes incapable of acting as such, or is guilty of misconduct in discharge of duties, or is guilty of any disgraceful conduct. Section 97(1) confers the power on the State Government, either of its own motion, or on an application from any person interested, to call for and examine the record of Panchayati Raj Institution, or standing committee, or sub committee thereof, in respect of any proceedings, to satisfy itself as to correctness, legality or propriety of any decision, or order passed therein, or as to the regularity of such proceedings. And if in any case it appears to the State Government, that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly. On the face of language of Sub-section (3), the State Government has been conferred power to review, any order passed by it under Sub-section (1), if it is found to have been passed under any mistake, whether of fact or law, or in ignorance of any material fact.

83. On the face of the language of this provision, if the power to review any order passed under Section 38(1) is conceded, it would render the words 'an order under Sub-section (1)' appearing in Section 97(3) redundant, or otiose, which on the above principles cannot be permitted. When under Section 97(3) the power of review has been expressly conferred, only with respect to the orders passed under Sub-section (1), in my humble opinion, by resorting to the principles of interpretation, this power cannot be extended to be available, qua the orders passed under Section 38(1), or for that matter under any other provision of the Act.

84. The question then arises is, as to what is the effect of Section 38(5), whereunder the decision of the State Government on any matter arising under Section 38, is to have a finality, subject to any order made under Section 97? As this is the main plank of the argument of the learned counsel for the respondent No. 4.

85. In my view, as noticed above, under Section 97(1) the State Government has the power of revision, to examine the record, in respect of any proceeding of any Panchayati Raj Institution, or Standing Committee or Sub Committee, and to satisfy itself, as to the correctness, legality or propriety of any decision or order passed therein, or as to regularity of the proceedings. It is required to be visualized, that any order passed by any Panchayati Raj Institution or a Standing Committee or a Sub Committee thereof, or any proceedings of any of the above, may be suffering from the vices of incorrectness, impropriety, or illegality, and any of such vices may tantamount to rendering the Chairperson or Dy. Chairperson or member of any Panchayati Raj Institution to be guilty of misconduct in discharge of his duties, or to be guilty of any disgraceful conduct, or may; show his refusal to act, or his having become incapable of acting as such. In such circumstances, the State Government may exercise powers under Sub-section (1) qua such orders or proceedings, notwithstanding the Chairperson or Dy. Chairperson, or member of any Panchayati Raj Institution, having been found guilty under Clause (a) or (b) of Section 38(1. In the event of this eventuality taking place, and the State Government may either uphold the order or proceeding or may modify, annul or reverse it, or may remit it for reconsideration, and exercise of such power, in any of the manner, may not have material effect, on any order, that may have been passed under Section 38(1) or Section 38(2), likewise there may be yet another eventuality, viz. that in the very aforesaid circumstances, if any order is passed by the State Government under Section 97(1), and exercise of that power in any of the manner, has material effect on any order, that may have been passed under Section 38(1) or 38(2. In either of that event, since by virtue of Section 97 (3), qua such orders, as has been passed under Section 97(1), the State Government is conferred the power of review, capable of being exercised, within the specified time, and on specified grounds, in case, the State Government chooses to exercise such powers, under Section 97(3), it obviously is to materially affect the order, that may have been passed under Section 97(1), and which, on the above reasoning, may have a material effect, or bearing, on the order that may have been passed by the State Government under Section 38(1) or 38(2. It is in order to take care of this situation, that, the provision is made under Section 38(5), providing, that the decision of the State Government, on any matter arising under that section is, subject to any order, made under Section 97 of the Act.

86. It is required to be comprehended, that the enquiry, that may be got conducted under Section 38(1) is to be regarding the delinquencies contemplated by Clauses (a) and (b), and while making that enquiry, the correctness, legality or propriety of any decisions or orders passed, or the regularity of the proceedings of any Panchayati Raj Institution or a Standing Committee or a Sub Committee thereof, is not permissible to be gone into, and therefore, on the face of any decision or order passed, or on the basis of any proceedings of any Panchayati Raj Institution or a Standing Committee or a Sub Committee, the order may be required to be passed under Section 38 (1) or (2), but then at the same time, such an decision or order passed or proceedings of any Panchayati Raj Institution or a Standing Committee or a Sub Committee, may be sub-judice under Section 97 (1) or 97(3), and in exercise of either of the powers, such decision or order or proceedings may be modified, annulled, reversed or remitted, with the result, that the very basis, on which the order was made under Section 38(1) or (2), is wiped out. Obviously, such wiping out, in accordance with law, is also required to be given effect to, and, it is, in order to give such effect, that provision has been made under Section 38(5), making the decision of the State Government, on any matter arising under Section 38, to be final, subject to any order made under Section 97.

87. Thus, even on the theory of purposive construction of the statute, it cannot be said, that Section 38(5) and Section 97(3), read together, confer any power on the State Government to review any order passed by it under Section 38 of the Act of 1994. Likewise the above interpretation does give full effect to every word of Section 38 (5) and Section 97(3) as well, and does not render any part of the statute redundant or meaningless or otiose.

88. It is a different story, that in the present case, the order reviewed was passed way back on 15.12.1997, and the application was filed on 1.2.2000, and the order was reviewed on 2.2.2000 itself, and in the application dt. 1.2.2000, it was neither alleged, that the applicant came to know of the order only when he came to Narlai in the last week of January, nor is there any allegation in the application, that the order dt. 15.12.1997 was passed under any mistake of law or fact, or in ignorance of any material fact. Not only this, even a look at Annexure-3, the impugned order itself, also does not show it to have been passed, even in the purported exercise of the powers under Section 97(3), read with Section 38(5. Then, in this writ petition also the State Government has not come up with a case of its possessing any power of review under Section 97(3), or Section 97(3) read with Section 38(5), and it is only the respondent No. 4, who is attempting to justify the order Annexure-3, by attempting to spell out the power to review, to be vesting with the State Government under Section 97(3) read with Section 38(5), which, as held above, is not available.

89. In view of the above discussion, the order Annexure-3 being wholly without jurisdiction, is non-est and even formally cannot be sustained on any parameters, and the same is, therefore, formally quashed. The obvious result is, that the order dt. 15.12.1997 being Annexure-1, is deemed to have sprung into action when the order Annexure-3 was passed. Since during the course of arguments, no such thing was pointed out to me, by the learned counsel for the parties, on the basis of which, I may feel inclined to relegate the petitioner to the remedy of election petition, for the purpose of challenging election of the respondent No. 4, as a necessary consequence, according to the provisions of Section 38(3) respondent No. 4 was not eligible for being chosen under Act of 1994, for a period of five years from the date on which such findings are recorded. Since in the present case the finding was recorded on 15.12.1997, the respondent No. 4 cannot be said to be eligible for being chosen under the Act of 1994 till 14.12.2002, while he had filled his nomination Annexure-2 on 3.2.2000, and been chosen on 4.2.2000, which he could not be. Obviously, therefore, the election of the respondent No. 4 is declared void and illegal, and Annexure-4 is accordingly quashed. The respondent No. 1, 2 and 3 are directed to take necessary consequential steps, accordingly, and expeditiously.

90. The writ petition is accordingly allowed, as above, and at the same time, in view of the findings recorded above, the counter writ petition of the respondent No. 4 is also dismissed. The parties are directed to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //