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2004 DIGILAW 1154 (RAJ)

Sampat Lal v. The State of Rajasthan

2004-08-11

K.K.ACHARYA, N.N.MATHUR

body2004
JUDGMENT 1. - The instant special appeal is directed against the judgment of the learned Single Judge dated 27th April, 2004 dismissing the writ petition. 2. The appellant was elected as Pradhan of the Panchayat Samiti, Mandal, District, Bhilwara on 11th February, 2000. On 23rd September, 2003 one Lal Singh filed a complaint against him stating inter alia that a third female child was born to the appellant in the year 1997 and prior to that he was already blessed with two daughters and since third female child was born to the appellant after 27.11.95. he was disqualified to hold the post of Pradhan. On the basis of the said complaint an enquiry under Section 38(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) was initiated against him. He was put under suspension by order dated 12th February, 2004-Annexure 3. According to the appellant he was blessed with third female child on 5.11.95 i.e. prior to the cut off date. Thus, there is a controversy on the fact that as to whether the third female child was born to the appellant on 9.7.97 i.e. after the cut off date or prior to that as claimed by the appellant i.e. on 5.11.95. An enquiry in that regard is pending. However, the learned Single Judge held that there is prima facie evidence to show that the third female child was born to the appellant on 5.11.95, the learned Judge also held that the appellant has rightly been put under suspension on the basis of the report of the preliminary enquiry In view of the finding the learned Single Judge dismissed the writ petition. 3. It is contended by Mr. P.P. Choudhary learned counsel for the appellant that there is a clear distinction between the provisions of Section 38 & 39 of the Act of 1994. While Section 38 operates about any conduct or something that happened after person has been elected as a member of any Panchayati Raj Institution and an enquiry is to be conducted against the elected member of the Panchayati Raj Institution in respect of such post. The enquiry and significance of such enquiry under Section 38 does not relate to pre-election conduct or happening. The enquiry and significance of such enquiry under Section 38 does not relate to pre-election conduct or happening. In contrast Section 39 does not refer to any such conduct or inaction or incapability of the elected member to act as such, but it refers to ineligibility of a person to hold the office by a member of Panchayat. However, before a member can be asked to vacate the office of the Panchayati Raj Institution held by him a declaration about such ineligibility of such member to continue to hold office has to be made by the competent authority. No such declaration can be made without affording member so elected an opportunity of hearing. Only on making such declaration the member can be asked to vacate the office and no earlier. The contention has been examined by a Division Bench of this Court in State of Rajasthan v. Madan Lal 2003(1) WLC (Raj.) 404 in depth and detail. It is held therein that Section 39 relates to ineligibility of a member to hold office. Until such a person after an enquiry is declared in eligible, he cannot be discontinued from the office he holds. In the instant case, it is not in dispute that the enquiry with respect to giving birth to third child after the cut off date is still pending. There is no declaration that the appellant incurred disqualification by giving birth to a third child after the cut off date i.e. 27.11.95. Thus, the controversy is squarely covered by the decision of this Court in State of Rajasthan v. Madan Lal (supra). The learned Single Judge has committed manifest error in holding only on the basis of preliminary enquiry that the appellant was prima facie disqualified to hold the office of Sarpanch. The impugned order Annexure-P/3 dated 12.2.2004 suspending the appellant Is ex-facie illegal inasmuch as no declaration has been made after a proper enquiry that the appellant gave birth to a third child after the cut off date. 4. Consequently, the special appeal is allowed. The order of the learned Single Judge dated 27th April, 2004 is quashed and set aside. The writ petition is partly allowed. The order dated 12.2.2004 (Annex.P/3) suspending the appellant from the office of Pradhan, Panchayat Samiti, Mandal, district, Bhilwara is quashed and set aside. 4. Consequently, the special appeal is allowed. The order of the learned Single Judge dated 27th April, 2004 is quashed and set aside. The writ petition is partly allowed. The order dated 12.2.2004 (Annex.P/3) suspending the appellant from the office of Pradhan, Panchayat Samiti, Mandal, district, Bhilwara is quashed and set aside. The appellant shall be reinstated forthwith on the post of Pradhan of the Panchayat Samiti, Mandal, District, Bhilwara. Any finding or observation in this judgment or by the learned Single Judge will have no reflection in the pending enquiry against the appellant.Special Appeal allowed. *******