Sat Pal vs State of Haryana

V.S. Aggarwal, J.—Sat Pal petitioner contested the election of Gram Panchayat, Tigri. The elections were held on 19.12.1994. Petitioner after contesting the election as a Panch, was declared elected by defeating his rival respondent No.4 Raghbir Singh. Respondent No.4 filed an application dated 27.1.1996 u/s 177 of the Haryana Panchayati Raj Act, 1994 ( for short ''the Act''). It was prayed that petitioner should be disqualified on the ground that father of the petitioner deposited Chulla tax on 3.12.1994, whereas the nomination paper had been filed by the petitioner on 2.12.1994. It was prayed that the petitioner therefore, stood disqualified and could not remain as a Panch. The Director, Development and Panchayats (respondent No.2) issued notice to the petitioner. In response to it petitioner submitted the reply. It was submitted by the petitioner that father of the petitioner deposited Chulla tax on 29.11.1994. The receipt was issued by the Sarpanch on 3.12.1994. The said Chulla tax pertained to the year 1994-95. Thus, the petitioner could not be termed to be a defaulter. Respondent No.2 after hearing both the parties held that petitioner was held disqualified and could not remain as Panch in view of Section 175(i) of the Act. The petitioner preferred an appeal before the State of Haryana which was dismissed.

By virtue of the present petition, petitioner challenged the said order and further contends that the relevant provisions of Section 175(i) are ultra vires of the provisions of the Constitution. Furthermore, it has been pointed out that the house tax, if any, was not payable by the petitioner but has to be paid by his father. As referred to above, he contends that payment had earlier been made but receipt issued subsequently.

Notice of the petition had been issued. Needless to say that the same was contested.

On behalf of the petitioner it had been urged that the sole ground on which the petitioner had been disqualified as a Panch in the Gram Panchayat is that Chulla tax had not been paid. According to him the Chulla tax had to be paid by his father. Petitioners cannot be held liable for his default. By virtue of Explanation 2(ii) to Clause (1) of section 175 the petitioner has been disqualified. The said clause has been held to be ultra vires and, therefore, the impugned order cannot be sustained. On the contrary, the respondents contended that the petitioner had to pay the chulla tax and failure to do so earns him the disqualification contemplated u/s 175 of the Act.

"175. Disqualifications.- (1) No person shall be a Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who -

(a) has, whether before or after the commencement of this Act, been convicted

(i) of an offence under the protection of Civil Rights Act, 1955 (Act 22 of 1955), unless a period of five year or such lesser period as the Government may allow in any particular case, has elapsed since his conviction; or

(ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the government may allow in any particular case, has elapsed since his release; or

(b) has been adjusted by a competent court to be of unsound mind; or

(c) has been adjudicated an insolvent and has not obtained his discharge; or

(d) has been removed from any office held by him in a Gram Panchayat, panchayat Samiti or Zila Parishad under any provision of this Act or in a Gram Panchayat, Panchayat Samiti of Zila Parishad before the commencement of this Act tinder the Punjab Gram Panchayat Act, 1952 and Punjab Panchayat Samiti Act, 1961, and period of five years has not elapsed from the date of such removal, unless he has, by an order of the Government notified in the official Gazette been relieved from the disqualifications arising on account of such removal from office; or

(e) has been disqualified from holding office under any provision of this Act and period for which he was so disqualified has not elapsed; or

(f) hold any salaried office or office of profit in any Gram Panchayat, Panchayat Samiti or Zila Parishad;

(g) has directly or indirectly, by himself or his partner any share of interest in any transaction of money advanced or borrowed from any officer or servant of any Gram Panchayat, Panchayat Samiti or Zila Parishad;

(h) has directly or indirectly, by himself or his partner share or interest in any transaction of money advanced or borrowed from any officer or servant of any Gram Panchayat; or

(i) fails to pay arrears of any kind due by him to the Gram Panchayat, Panchayat Samiti or Zila Parishad or any Gram Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum recoverable from him in accordance with the chapters and provision of this Act, within three months after a special notice in accordance with the rules made in this behalf has been served upon him;

(j) is servant of Government or a servant of any Local Authority; or

(k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgement of allegiance or adhearance to a Foreign State; or

(l) is disqualified under any other provision of this Act and the period for which he was so disqualified his not elapsed; or

(m) is a tenant or lessee holding a lease under the Gram Panchayat, Panchayat Samiti or Zila Parishad or is in arrears of rent of any lease or tenancy held under the Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(n) is or has been during the period of one year preceding the date of election, in unauthorised possession of land or other immovable property belonging to the Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(o) being Sarpanch, Up-Sarpanch or Panch or a member of Panchayat Samiti or a Zila Parishad has cash in hand in excess of that permitted under the rules and does not deposit the same in pursuance of a general or special order of the prescribed authority within the time specified by it; or

(p) being a Sarpanch, Up-Sarpanch or Panch or a Chairman, Vice-Chairman or Member, President or Vice-President or Member of Panchayat Samiti or Zila Parishad has in his custody prescribed records and registers and other property belonging to, or vested in Gram Panchayat, Panchayat Samiti or Zila Parishad and does not hand over the same in pursuance of general or special order of the prescribed authority within the time specified in the order.

(q) has more than two living children;

Provided that a person have more than two children or upto the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified.

Explanation-1 - A person shall not be disqualified under Clause (g) for membership of a Gram Panchayat, Panchayat Samiti or Zila Parishad by reason only of such person.-

(a) having share in any joint stock company or a share or interest in any society registered under any law for the time being in force which shall contract with or be employed by or on behalf of the Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(b) having a share or interest in any newspaper in which any advertisement relating to the affairs of a Gram Panchayat, Panchayat Samiti or Zila Parishad may be inserted; or

(c) holding a debenture or being otherwise concerned in any loan raised by or on behalf of any Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(d) being professionally engaged on behalf of any Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(e) Having any share or interest in any lease or immovable property in which the amount of rent has been approved by the Gram Panchayat, Panchayat Samiti or Zila Parishad in its own case or in any sale or purchase of immovable property or in any agreement for such lease, sale or purchase; or

(f) Having a share or interest in the occasional sale to the Gram Panchayat, Panchayat Samiti or Zila Parishad of any article in which he regularly trades in the purchase from the Gram panchayat of any article, to a value in either case not exceeding in any year one thousand rupees.

Explanation-2 - For the purpose of Clause (1) -

(i) A person shall not deemed to be disqualified if he has paid the arrears of the sum referred to in Clause (i) of this Sub-section, prior to the day prescribed for the nomination of candidates;

(ii) But the failure to pay the arrears or the sum referred to in Clause (i) of this sub-section to the Gram Panchayat, Panchayat Samiti or Zila Parishad by a member of an undivided Hindu family or by a person belonging to a group or unit, the members of which are by custom joint in estate or residence all such members/persons shall be deemed to be disqualified."

As one grances through the said provisions, i.e. Section 175(i) and explanation 2 of the Act, there is no controversy on the either end that failure to pay the arrears of the Gram Panchayat, Panchayat Samiti by a member of the undivided Hindu family would make the Sarpanch or Panch liable for disqualification. The same had been considered by a Division Bench of this court in the case of Smt. Anguri Devi Vs. State of Haryana and Others, . In paragraph 24, the Court held:

"Explanation 2(i) envisages a situation before the elections are held. A candidate in the election can remove the disqualification by depositing the arrears or the sum due referred to in Clause (i) of Section 175 prior to the filing of his nomination papers. Explanation 2(ii) talks of failure to deposit the arrears or the sum due by a member of the individual Hindu family, group of unit, either before or after the election, rendering all the members of the family, group or unit to contest or if already elected to continue to do so. This qualification can be earned by a member purposely or otherwise to prevent all the members of the family from becoming/continuing in the elected office which would not only be unfair and unreasonable but would also be against the spirit of the provision and the purpose of the Act,"

Subsequently, while discussing the vires of Explanation 2 to Clause (1)(ii) of Section 175 of the Act, the Division Bench held :-

"Section 175 of the Act provides and enumerates the disqualification incurred by an individual from contesting the elections or continue to be a Panch/Sarpanch. Clause (i) to Section 175 talks of failure to pay the arrears of any kind due or the sum recoverable from the person contesting the election or from continuing as a Panch or a Sarpanch. It does not speak of the disqualification incurred on account of the arrears of the sum referred to in Clause (i) of Section 175(i) by any other member of the undivided Hindu family or by a person belonging to a group or unit, the members of which are by custom joint in estate or residence. The same has been provided only in Explanation 2(ii). This Explanation certainly adds to and enlarges the scope of the main section."

We are in respectful agreement with the said view point.

With the backdrop one can refer to the facts alleged by respondent No.4 in this petition that was presented before the Director of Panchayats, Haryana. Copy of the same is Annexure P-1. Respondent No.4 has specifically pleaded that he is living jointly with his father in village Tigri, and they form a joint undivided Hindu family. He is also asserted that Chulla Tax has not been paid before the nomination was filed by the petitioner. It is crystal clear from aforesaid that contention of respondent No.4 was that it is a joint property and Chulla Tax had to be paid. In other words, respondent No.4 strongly relied upon Explanation 2(1)(ii) of the Act. As already pointed out above, the said provision has been held to be ultra vires. Being so the respondents could not fall back and take advantage of the said provision. The disqualification of the petitioner, therefore, cannot be sustained.

As an offshoot of these reasons, the petition is allowed. The impugned orders dated 6.12.1995 (Annexure P-3) and dated 28.8.1996 (Annexure P-4) are quashed. The petitioner is allowed to continue as Panch for the duration of his elected period. There will be no order as to costs.