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2001 DIGILAW 883 (AP)

Puttu Krishna Rao v. State of A. P.

2001-08-14

S.B.SINHA

body2001
JUDGMENT : S.B. Sinha, J. A short but interesting question as regards the vires of Section 19(2)(d) of Andhra Pradesh Panchayat Raj Act, 1993(Act No. 14 of 1993) arises for consideration in these two Writ Petitions. 2. One Sri Puttu Krishna Ranga Rao, an Ex-President of Mandal Praja Parishad in West Godavari District, has filed these two Writ Petitions. By the time he filed the earlier Writ Petition W.P.No. 17532 of 2000, notification for conduct of elections to Mandal Parishads and Zilla Parishads had not been issued. After the notification for elections had been issued on 22-6-2001, he filed the latter writ petition W.P.No.13048 of 2001. 3. The petitioner is a partner of a partnership firm, which entered into a contract with the Railways for supply of road metal and the same was subsisting. He was disqualified from contesting for the post of member of Zilla Parishad as per Section 19(2) (d) on the ground that the contract he had entered into with Railways was subsisting. He contends that the contract the firm had entered into does not affect his functioning as member of the Zilla Parishad. He further contends that the disqualification shall not be irrational and violate the statutory or substantive rights guaranteed to the citizens to contest the elections and the same offends the very spirit of 73rd Constitutional Amendment pursuant to whereof the new Panchayat Raj Act, 1994 came to be enacted. As per Section 9-A of Representative of People Act, a person who is intended to contest for the post of Member of Legislative Assembly can be disqualified if he has any subsisting contract with the State Government. Similarly, a person can be disqualified from contesting for the post of member of Parliament if he has any subsisting contract with the Central Government. But, by reason of sub-section 2(d) of Section 19 of the Act, such disqualification is attracted not only in a case where a person is interested in a subsisting contract made with, or any working being done for, the Panchayat Raj institutions i.e., Gram Panchayat, Mandal Parishad and Zilla Parishad but also in a case where the person is interested in subsisting contract made with the State or Central Governments. Therefore, a candidate who seeks to contest for Gram Panchayat or Mandal Parishad or Zilla Parishad has to face more stringent conditions than a candidate who seeks to contest as Member of Legislative Assembly or member of Parliament. A member of a Zilla Parishad or Mandal Parishad is supposed to perform the functions assigned to him under the provisions of the Act and such person cannot influence either the State or Central Governments. Therefore the inclusion of the words 'Central Government or State Government'-in Section 19(2) (d)thereby disqualifying the candidates seeking election for the post of Sarpanch or member of Panchayat or Mandal Parishad or Zilla Parishad who had subsisting contract with the State Government or Central Government is irrational, arbitrary and violative of Article 14 of the Constitution of India. The above provision denies an opportunity to the candidates who intend to contest for the Office of member of Gram Panchayat, Mandal Parishad or Zilla Parishad. Therefore, Section 19(2) (d) so far as it includes the words 'Central Government or State Government'- is liable to be declared as invalid, illegal, arbitrary, irrational and unconstitutional and contrary to the objects underlined under Art. 243-F of the Constitution of India. 4. The learned Counsel appearing for the petitioner contends that as his contract with the railway authorities for supply of gravel has no nexus vis-a-vis his right to contest the panchayat election, Section 19(2) (d) of the Act which provides for a bar must be held to be invalid in law. 5. The learned Additional Advocate General appearing for the respondents, on the other hand, would submit that the contention of the petitioner that his contract with the Central Government has absolutely no nexus vis-a-vis his right is not correct in view of the fact that the Central Government releases funds under various schemes like Jawahar Rojgar Yojana in favour of the Panchayat Raj institutions and others. 6. Constitution of Panchayats is no longer covered by statutory provisions. The democratic polity of gram panchayats now finds place in Part IX of the Constitution of India by reason of the Constitution (Seventy Third Amendment) Act, 1992. The amendment has been passed by the Parliament with a view mainly to strengthen and revitalize the Panchayat Raj bodies so that they can sub-serve the needs of the teeming millions that live in the rural areas. The amendment has been passed by the Parliament with a view mainly to strengthen and revitalize the Panchayat Raj bodies so that they can sub-serve the needs of the teeming millions that live in the rural areas. Article 243-B mandates that there shall be constituted in every State Panchayats at the village, intermediate and district levels in accordance with the provisions of Part IX. By reason of the said amendment, democracy, which is the basic feature of the Constitution, has now been extended to the gross root level. Self-governance, therefore, is the key area, which is visualized by the Constitution makers. Practically, Part-IX covers the whole gamut of the Panchayat Raj structure. Democracy in this country will be further strengthened by the active involvement and participation of the panchayats at all levels. The object behind the Constitution Amendment is to attain the desired goal of making a panchayat more vibrant and self-reliant and the same will be best achieved if the constitutional provisions are given its full play. 7. Pursuant to the above Constitution Amendment Act, the State of Andhra Pradesh has enacted Andhra Pradesh Panchayat Raj Act, 1994 (Act No. 13 of 1994) with the object of providing for the constitution of Gram Panchayats, Mandal Parishads and Zilla Parishads and formatters connected therewith or incidental thereto. 8. Section 19(2) (d) of A.P. Panchayat Raj Act (for short 'the Act'-) reads as follows: 19. Disqualification of candidates: (2) A person shall be disqualified for being chosen as a member if on the date fixed for scrutiny of nominations for election, or on the date of nomination under subsection (2) of Section 16 he is -(d) Interested in a subsisting contract made with, or any work being done for, the Gram Panchayat, Mandal Parishad, Zilla Parishad or any State or Central Government; Provided that a person shall not be deemed to have any interest in such contract or work by reason only of his having a share or interest in-(i) a company as a mere shareholder but not as a director; (ii) any lease, sale or purchase of immovable property or any agreement for the same; or (iii) any agreement for the loan of money or any security for the payment of money only; or (iv) any newspaper in which any advertisement relating to the affairs of the gram panchayat is inserted. xx xx xx xx 9. xx xx xx xx 9. Section 9-A of the Representation of the People Act, 1951 (43 of 1951) reads thus: Disqualification for Government contracts, etc:- A person shall be disqualified if, and for so long as, there subsists a contact entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any work undertaken by, that Government. Explanation: For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. 10. Article 243-F, which has been inserted by reason of Constitution 73rd Amendment Act in Part IX of the Constitution provides for disqualifications for membership in relation to Panchayat Raj institutions and it reads thus: Disqualifications for membership:-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one-years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has becomes subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decisions of such authority and in such manner as the Legislature of a State may, by law provide. 11. It is no doubt true that such disqualification can be prescribed by or under any law made by the Legislature of the State apart from the law for the time being in force for the purposes of elections to the Legislature of the State concerned. But, the question, which arises for consideration, is whether Section 19(2) (d) suffers from the doctrine of excessive inclusion. But, the question, which arises for consideration, is whether Section 19(2) (d) suffers from the doctrine of excessive inclusion. The doctrine of excessive inclusion may be taken recourse to in the event if it were held that the matter had no direct nexus with the object sought to be achieved by it. The reasonableness or otherwise of the Act, may further be aground to hold the provision unconstitutional. A disqualifying statute must be strictly construed. It is true that a citizen does not have any fundamental right to exercise his right of franchise or to contest an election. But, the democracy being the basic feature of the Constitution of India, such a right conferred upon any citizen must be strictly enforced. A disqualifying provision must, therefore, have a reasonable nexus with the object and purport, the State seeks to achieve. 12. A statute disqualifying a candidate from contesting the election to Gram Panchayat of Mandal Parishad or Zilla Parishad should not normally be on a high pedestal than the disqualification prescribed for election to the Legislative Assembly or Parliament. Clause (d) of sub-section (2) of Section 19 is of wide amplitude. It not only speaks of a person who has a contract with the Gram Panchayat, Mandal Parishad or Zilla Parishad but may have an interest in subsisting contract. Such interest may be direct or indirect. The petitioner herein is merely supplying gravel to the railways as a partner of a partnership firm. 13. If a literal meaning is given to Clause (d), a person who intends to seek election to Gram Panchayat or Mandal Parishad or Zilla Parishad cannot carry on any business or having interest direct or indirect in any business with the Central Government in any part of the country. The Central Government has normally nothing to do with the administration of the Gram Panchayat or Mandal Parishad or Zilla Parishad. 14. What is an 'interest'- came up for consideration in Promode Lal v. Addl. District Magistrate, 1957 AIR Cal. 164 wherein dealing with the provisions of Section 22(1) (f) of the Bengal Municipal Act and the provisions of and the Representation of People Act, 1951, the Calcutta High Court held: It is certainly a very difficult task to enunciate what exactly is meant by the word 'interest'- as used in Sec. 22(1) of the Act, but is certainly not sentimental or sympathetic interest. Perhaps the best definition has been given in England v. Inglis (1920) 2 KB 636 (N)cited by Mr. Binayak Banerjee. In construing a similar provision in the Municipal Corporation Act, 1882, of England, the learned Judge held that an 'interest'- must be something more than a sentimental interest, such as arises from the natural love and affection of a father for his son. It need not, however, be only the possibility of a pecuniary advantage; it may equally be the likelihood of a pecuniary loss. The accruing benefit need not be direct. The possibility of even probability of an actual resulting benefit will be sufficient. As pointed out by Lindley L.J., in Nutton v. Wilson, (1889) 22 QBD 744 (O), the object of Section of this kind is to prevent the conflict between interest and duty that must otherwise inevitably arise. 15. It is beyond any comprehension as to why if a person having a contract with the Central Government can contest election for membership of Legislative Assembly, he cannot do so for contesting the election of Gram Panchayat under the Act. Having regard to the facts and circumstances of this case, we are of the opinion that the clause (d) of sub-section (2) of Section 19 of the Act so far as it disqualifies a person who has interest in a subsisting contract made with or any work being done for the Central Government suffers from unreasonableness and excessive inclusion. 16. In Indian Express Newspapers (Bombay)P. Ltd. v. Union of India, 1986 AIR SC 515, the Supreme Court held : A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in these sense that it is manifestly arbitrary. In England, the Judges would say 'Parliament never intended authority to make such rules. They are unreasonable and ultra vires'-. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in these sense that it is manifestly arbitrary. In England, the Judges would say 'Parliament never intended authority to make such rules. They are unreasonable and ultra vires'-. The present position of law bearing on the above point is stated by Diplock L.J. in Mixnam. Properties Ltd. v. Chertsey U.D.C., (1964) 1 QB 214 thus:- 'The various grounds upon which subordinate legislation has sometimes been said to be void.............can, I think, to-day be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus the kind of unreasonableness which invalidates a bye-law is not the antonym of 'reasonableness'- in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a Court would say; "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires .......' If the Courts can declare subordinate legislation to be invalid for ‘uncertainty,' as distinct from unenforceable................ this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain........'- Prof. this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain........'- Prof. Alan Wharam in his Article entitled "Judicial Control of Delegated Legislation : The Test of Reasonableness' in 36 Modern Law Review 611 at pages 622-23 has summarised the present position in England as follows: '(i) It is possible that the Courts might invalidate a statutory instrument on the grounds of unreasonableness or uncertainty, vagueness or arbitrariness : but the writer's view is that for all practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test.(ii) The Courts are prepared to invalidate bye-laws, or any other form of legislation, emanating from an elected, representative authority, on the grounds of unreasonableness, uncertainty or repugnance to the ordinary law :but they re reluctant to do so and will exercise their power only in clear cases.(iii) The Courts may be readier to invalidate bye-law passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse v. Johnson, might not now be applied so stringently.(iv) As far as subordinate legislation of non-statutory origin is concerned, this is virtually obsolete, but it is clear from in re French Protestant Hospital (1951) Ch. 567 that it would be subject to strict control'-.(See also H.W.R. Wade: Administrative Law (5th Edn.) pp. 747-748).75. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held in Tulsipur Sugar Co. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, @ SC 543(1980) 2 SCR 111 : ( AIR 1980 SC 882 ) : Rameshchandra Kachardas Porwal v. State of Maharashtra, (1981) 2 SCR 866 : ( AIR 1981 SC 1127 ) and in Bates v. Lord Hailsham of St. Marylebone, (1972) 1 WLR 1373. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(1) (a) of the Constitution. It cannot, no doubt be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant. We do not, therefore find much substance in the contention that the Courts cannot at all exercise judicial control over the impugned notifications. In cases where the power vested in the Government is a power, which has got to be exercised in the public interest, as it happens to be here, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. 17. A person seeking election to the membership of Gram Panchayat or Mandal Parishad or Zilla Parishad has no role to play in matters relating to Central Government so that it can be said he can influence the Central Government. 17. A person seeking election to the membership of Gram Panchayat or Mandal Parishad or Zilla Parishad has no role to play in matters relating to Central Government so that it can be said he can influence the Central Government. Section 9-A of the Representation of the People Act, 1951 clearly says that a person shall be disqualified if he had a subsisting contact entered into with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by that Government. Appropriate Government means, in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as for being a Member of the Legislative Assembly or Legislative Council of a State, the State Government. By reason of the impugned clause, a person would be disqualified from contesting the elections to Gram Panchayat or Mandal Parishad or Zilla Parishad if he had a subsisting contract with the Central Government although such contract had nothing to do with the administration of Zilla Parishad. As already noticed herein before, in the matter of disqualification, a person seeking election to Gram Panchayat or Mandal Parishad or Zilla Parishad cannot be put to more stringent conditions than a person seeking election for membership of Legislative Assembly or Parliament. Such restriction in our view is irrational and arbitrary being violative of Article 14 of the Constitution of India. We are, therefore, of the view that the impugned Clause (d) of sub-section (2) of Section 19 suffers from the vice of Wednesbury's unreasonableness. 18. We are of the opinion that interest in a subsisting contract made with, or any work being done for, the Central Government by a candidate cannot be said to have a nexus to his functioning as member of the Gram Panchayat or Mandal Parishad or Zilla Parishad particularly having regard to the fact that no guidelines as regards the nature of contract, the place of contract and other relevant factors have been laid down therefore. The said provision, therefore, must be held to be ultra vires Article 14 of the Constitution of India. The said provision, therefore, must be held to be ultra vires Article 14 of the Constitution of India. The submission of the learned Advocate General to the effect that the said provision has been made by the State having regard to the various schemes, which are to be implemented at the district level, in our opinion, is misplaced. To a query put by the Bench, the learned Advocate General categorically stated that such grants foster the cause of the State and the Central Government does not exercise any control there over or on the contracts assigned under the schemes thereunder. The impugned clause, in our view, is irrational as it seeks to achieve a dubious purpose unrelated to the objects of the Act. 19. The right to equality includes the right not to be subjected by arbitrary, irrational and unreasonable administrative and legislative action. It cannot be gains aid that the State has legislative competence to make provision for disqualification of members in consonance with 243-F or the Representation of People Act, 1951. But, such power cannot be irrational or arbitrary or in violation of the fundamental right of the citizen. 20. In Devender v. State of A.P. a Division Bench of this Court invalidated the A.P.Mandal Praja Parishad, Zilla Praja Parishad etc., Amendment Act, 1991, which amended Sections 26 and 27 of the Principle Act, virtually taking away the effective power of the elected heads of the local bodies. The grounds challenged inter alia include that the impugned Act is irrational since the Amendment Act seeks to achieve a dubious purpose, unrelated to the objects of the amendment. M.N. Rao, J. speaking for the Bench referred to various law lexicons defining 'irrationality'- as well as the elucidation by Lord Diplock in Council of Civil Services Union v. Minister for Civil Services, (1983) 1 AC 768 and observed as under: The British Constitution which is traceable to several enactments and Conventions is founded upon Parliamentary Sovereignty. The doctrine of ultra vires is confined only to subordinate legislation, actions of public officials and public bodies. What constitutes an act of irrationality under English Public law, in our opinion, approximates to an independent ground falling within the prohibition of Art. 14 of the Constitution to enjoy a legislation. Put differently the incubus of irrationality afflicts both legislative and executive actions. What constitutes an act of irrationality under English Public law, in our opinion, approximates to an independent ground falling within the prohibition of Art. 14 of the Constitution to enjoy a legislation. Put differently the incubus of irrationality afflicts both legislative and executive actions. Rationality, we hold, is a condition for valid exercise of power by the State. 21. The impugned provision is irrational and arbitrary and strikes at the equality clause enshrined under Article 14 of the Constitution of India inasmuch as it has taken away the right of the petitioner from contesting for the membership of Zilla Parishad. 22. We are, therefore, of the opinion that the petitioner being merely a partner of a partnership firm which supplies gravel to the railway administration could not have been disqualified. Therefore the impugned clause (d) of sub-section (2) of Section 19 of the Act so far as it disqualifies a person for being chosen as a member of Gram Panchayat, Mandal Parishad or Zilla Parishad on the ground that he is interested in a subsisting contract made with, or any work being done for, the Central Government is concerned is struck down as unreasonable, arbitrary and ultra vires the Constitution. 23. The Writ Petitions are allowed accordingly. There shall be no order as to costs.