w w w . L a w y e r S e r v i c e s . i n

Bhaiya Ram & Others v/s State

    Civil Writ Petn. No. 827 of 2000

    Decided On, 24 April 2000

    At, High Court of Rajasthan


    For the Petitioners: S.N. Sharma, Advocate. For the Respondent: Chandralekha, Dy. Govt., I.R. Choudhary, Advocates.

Judgment Text

1. The instant writ petition has been filed for setting aside the election of respondent No. 2 as the Sarpanch of Gram Panchayat, Panchu, tehsil Nokha, district Bikaner, as he stood disqualified even prior to the contest of the election under Section 19 (gg) of the Panchayati Raj Act, 1994 inserted by the Ordinance issued on 25-12-1997.

2. The facts and circumstances giving rise to this case are that the election of Gram Panchayat, Panchu was held on 31-1-2000 and respondent No. 2 Mr. Jetha Ram was elected as the Sarpanch. The instant writ petition has been filed on the ground that under Section 19 (gg) of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act"), as respondent No. 2 stood disqualified to become a candidate in the election for the reason that cognizance of the offences had been taken and the same is punishable with imprisonment for five years or more, therefore, this Court must declare him disqualified and restrain him to work as Sarpanch.

3. Mr. I. R. Choudhary, learned counsel for contesting respondent has raised a preliminary objection that the petition is not maintainable and if any person is aggrieved, he ought to have filed an election petition under Section 43 of the Act read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short, "the Rules"), according to which election may be called in question by any candidate at such election only by presenting an election petition to the District Judge, having jurisdiction, within a period of thirty days from the declaration of result of the election on any of more of the grounds mentioned therein.

4. The preliminary objection is liable to be rejected on the ground that such an issue can be directly raised before the Writ Court in view of the judgment of the Hon'ble Supreme Court in K. Venkatachalam v. A. Swamickan, AIR 1999 SC 1723; and a Full Bench judgment of Punjab and Haryana High Court in Lal Chand v. State of Haryana, AIR 1999 Punj Har 1, observing that entertaining such a petition even in election matter is permissible.

5. In K. Venkatachalam, (AIR 1999 SC 1723) (supra), the Hon'ble Supreme Court has held that "Article 226 of the Constitution is couched in widest possible term and unless there is a clear bar to jurisdiction of the High Court, its power 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. In the 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."

6. Similarly, in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81, the Hon'ble Supreme Court placed reliance upon its earlier judgments of the Constitution Bench in T. C. Basappa v. T. Nagappa, AIR 1954 SC 440 and P. J. Irani v. State of Madras, AIR 1961 SC 1731 and observed as under :-

"This Article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of power, the purpose for which and the person or Authority against whom it can be exercised."

7. Similar view has been reiterated in Shri Vallabh Glass Works Ltd. v. Union of India, AIR 1984 SC 971 and Mewa Singh v. Shiromani Gurdwara Prabandhak Committee, (1999) 2 SCC 60 : (AIR 1999 SC 688).

8. Section 39 of the Act reads as under :-

"Cessation of Membership.- (1) Subject to the provisions of Section 40, a Member of a Panchayat Raj Institution shall not be eligible to continue to be such member if he:-

(a) is or become subject to any of the disqualifications fortified in Section 19; or

.... ..... ..... ..... ..... .....

9. Section 19 provides for disqualification and Clause (gg) of the said Section reads as under :-

"Is under trial in the Competent Court which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more."

10. The said provision clearly provides that a person shall stand disqualified to contest the election if he is under trial wherein the cognizance of offence has been taken and the charges have been framed against him for any offence punishable with imprisonment for five years or more.

11. In the instant case, the case of the petitioner is that at the time of filing the nomination paper for election held on 31-1-2000, respondent No. 2 had been facing a trial under Sec. 452, 148, 504, 323 and 352 of the Indian Penal Code and cognizance had been taken by the competent criminal Court, therefore, he stood disqualified and as such his election is inconsequential. However, it appears from the order dated 4-4-1998 that in a criminal complaint under Sec. 202 Cr. P.C., the Court, after recording the evidence of the witnesses, had taken cognizance against him under the said sections of the Indian Penal Code. The offence under Sec. 452 I.P.C. is punishable up to the extent of seven years imprisonment, therefore, the case is to be examined: whether mere taking cognizance by the competent criminal Court makes the contesting respondent disqualified as per the said provision.

12. The Legislature, in its wisdom, has used three different phraseology and according to the literal meaning of the provision, there must be a trial by the competent criminal Court, which has taken cognizance of the offence and the court had framed the charges against him. Undoubtedly, the criminal trial commences with the framing of the charges and prior to it, the proceedings can simply be termed as inquiry/ investigation. (vide Emperor v. Khwaja Nazir Ahmed, AIR, 1945 PC 18; Ratilal Bhanji Mithani v. State of Maharashtra, AIR 1979 SC 94; V.C. Shukla v. State, AIR 1980 SC 962; Union of India v. Maj. Gen. Madan Lal Yadav, AIR, 1996 SC 1340; and Common Cause, a Registered Society v. Union of India, AIR, 1997 SC 1539).

13. Mr. Sharma, learned counsel for the petitioners, has submitted that the word "trial" is superfluous and the provision must be read that a person would standing disqualified if a competent criminal court has taken cognizance of an offence "or" framed charges against him of any offence punishable with imprisonment for five years or more. The submission made by Mr. Sharma is preposterous for the reason that no word in a Statute has to be construed as superfluous.

14. No word in a Statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced as a "dead letter" or "useless lumber. An interpretation which renders a provision an exercise in futility, should be avoided, otherwise it would mean that enacting such a provision in subordinate legislation was "an exercise in futility" and the product came as a "purposeless piece" of legislation and provision had been enacted without any purpose and entire exercise to enact such a provision was "most unwarranted besides being uncharitable." (Vide M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., AIR, 1993 SC 1014 : Institute of Chartered Accountants of India v. Price Water-house, (1997) 6 SCC 312 : (AIR 1998 SC 74) Martin Burn Ltd. v. Corporation of Calcutta, AIR, 1966 SC 529 : Patel Chunibhai Dejibhai v. Narayanrao K. Jambekar, AIR, 1965 SC 1457 : Sultana Begum v. Prem Chand Jain, (1997) 1 SCC 373 : (AIR 1997 SC 1006), State of Bihar v. Bihar Distillery Ltd., AIR, 1997 SC 1511; South Central Railway Employees Co-operative Credit Society Employees' Union, Secunderabad v. Registrar of Co-operative Societies, (1998) 2 SCC 580 :(AIR, 1998 SC 703); and Subash Chander Sharma v. State of Punjab, (1999) 5 SCC 171 : (AIR 1999 SC 2076).

15. The language of the Act is very clear and it does not require any interpretation because there is no ambiguity in it. In case the language of a Statute is unambiguous, there can be no need to interpret it or examine the intent or object of the Act and the Courts must give effect to it unless it leads to an absurdity or injustice. It is well recognised canon of interpretation that provision curbing the jurisdiction of the Court or Authority must normally receive strict interpretation unless the statute or the context requires otherwise. (Vide Abdul Waheed Khan v. Bhawani, AIR, 1966 SC 1718; Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493 : (AIR 1998 SC 1121); Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : (AIR 1998 SC 1926); and Arul Nadar v. Authorised Officer, Land Reforms, (1998) 7 SCC 157 : (AIR 1998 SC 3288);

16. In Rambul Singh v. Board of Revenue for Rajasthan, AIR 1957 Raj. 19, this Court held that when the language of the law admits of no ambiguity and is very clear, it is not open to the Courts to put their own gloss in order to squeez out some meaning which is not borne out by the language of the law.

17. Similarly, a Full Bench of this Court, in Jairam Das v. Regional Transport, AIR, 1957 Raj, 312, has held that "where the case falls within the plain meaning of the provision of law, its application thereto cannot be denied on any a priori consideration as to the supposed of the intention of the legislature, even though the Court may be satisfied that the legislature had not contemplated a particular consequence. While invoking a law, the Court is still bound to give effect to its clear language." While deciding the said case, the Court placed reliance upon a large number of foreign judgments and particularly, Salomon v. Salomon and Co. Ltd. 1897 AC 22; and Cox v. Hakes, (1890) 15 AC 506. Similar view has been taken by the Full Bench of this Court in Government of Rajasthan v. Sangram Singh; AIR 1962 Raj. 43.

18. A Constitution Bench of the Hon'ble Supreme Court, in Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf, AIR 1959 SC 135, held that where the terms of provisions in the Statute are plain and unambiguous, the Courts should not resort to interpretation for the reason that there was no latent or patent ambiguity and the Courts were not required to find what was the true intendment of the Legislature. In case the terms of the Statute do not admit of any ambiguity, it is a clear duty of the Courts to construe the plain terms of the Statute and give them their legal effect. In this respect, the Court has got to turn to the very terms of the Statute itself, divorce from all considerations.

19. Same view has been reiterated in Bharat General and Seeds Stores v. Mahendra Singh, AIR 1992 Raj 189. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, the Hon'ble Supreme Court observed as under :-

"If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged policy and object of the Act."

20. In Corporation of City of Nagpur v. Its Employees, AIR 1960 SC 675, a similar view has been reiterated by the Hon'ble Apex Court.

21. In Manmohan Das Shah v. Bishun Das, AIR 1967 SC 643, the Hon'ble Supreme Court observed as under :-

"The ordinary rule of construction is that a provision of a Statute must be construed in accordance with the language used therein unless there are compelling reasons. Such as, where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the legislature from being carried out. There is no reason why the word "or" should be construed otherwise than in its ordinary meaning. If the construction suggested by Mr. Desai were to be accepted and the word "or" were to be construed as meaning "and", it would mean that the construction should not only be such as materially alters the accommodation but is also such that it would substantially diminish its value. . . . . . . . . . . . It seems to us that the legislature intended to provide for both the contingencies. . . . . . . . . . . . . . . . . ."

22. The aforesaid judgment has been approved and relied upon by the Hon'ble Supreme Court in the Life Insurance Corporation of India v. D. J. Bahadur, AIR 1980 SC 2181; R. S. Nayak v. A. R. Antuley, AIR 1984 SC 684; and Idul Hasan v. Rajendra Kumar Jain, AIR 1990 SC 678.

23. In Kamta Prasad Aggarwal v. Executive Engineer, Ballabhgarh, AIR 1974 SC 685, the Apex Court held that "depending upon the context, "or" may be read as "and" but the Court would not do it unless it is so obliged because "or" does not generally mean "and" and "and" does not generally mean "or". While deciding the said case, the judgment in Green v. Premier Glynrhonwy Slate Co. Ltd. (1928) 1 KB 561 (565) had been relied upon.

24. In Hyderabad Asbestos Cement Products v. Union of India (2000) 1 SCC 426 : (AIR 2000 SC 314), the Court held as under :-

"The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Provisos 1(i) and 2(i) are separated by the use of conjunction "and". They have to be read conjointly. The requirement of both the provisos has to be satisfied to avail the benefit."

25. In Hakim Ali v. Board of Revenue, AIR 1991 SC 972, the Hon'ble Supreme Court, while confronted with a similar problem, observed as under :-

"It is no doubt, true that as a general rule, legislature may be presumed not to make a superfluous provision. But this presumption is not a strong presumption and it is not uncommon to find the legislature inserting superfluous provision under the influence of what may be abundant caution."

26. In a recent judgment in State of Maharashtra v. Nanded-Parbhani Z. L. B. M. V. Operator Sangh, (2000) 2 SCC 69 : (AIR 2000 SC 725), the Apex Court held that "if the language of the Statute is fairly and reasonably clear then inconvenience and hardship are no consideration for refusing to give effect to that meaning unless giving effect to the plain meaning of the words used in the Statute leads to an absurdity or would make the Statute offend any provision of the Constitution. Thus, the intention of the legislature is required to be gathered from the language used and, therefore, a construction which requires for its support and additional substitution of the word and which results in rejection of the word as meaningless, has to be avoided."

27. While deciding the said case, the Hon'ble Apex Court placed reliance upon the judgment in Sussex Peerage case (1844) 8 ER 1034 (HL), wherein it has been observed as under :-

"If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone, in such cases, best declare the intent of the law-giver."

28. The Court further placed reliance on the judgment of the Privy Council in Emperor v. Benoari Lal Sharma, AIR 1945 PC 48, wherein it has been held as under :-

"This Board has insisted that in considering enacted words, we are not concerned with the policy involved or with the results, injuries or otherwise, which may follow from giving effect to the language used."

29. In Mool Chand v. Kedar (2000) 2 SCC 528 : (AIR 2000 SC 745), the Hon'ble Supreme Court has categorically held that the basic rule of interpretation of the Statute is that in order to find out the determination of the legislative intent, if the language of the Statute is plain and simple, it must be considered literally and paradoxical results must be accepted.

30. In Raees Ahmad v. State of U. P. (2000) 1 SCC 432 : (AIR 2000 SC 583), the Hon'ble Supreme Court had to interpret the provisions of U.P. Municipalities Act, 1916, regarding computation of 2/3 of the total number of members for the purpose of carrying out the No Confidence Motion against the Chairman of the Municipal Board. The question arose : whether the nominated members, for that purpose, have to be taken into account or not, for the reason that under the provisions of S. 9(d) of the Act, a nominated member had no right to vote in the meeting of the Municipality, therefore, the contention was raised that even in the No Confidence Motion, they cannot be counted for determining 2/3 of the votes requisite for passing the Motion of No Confiden

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ce. The Hon'ble Court rejected the contention observing as under :- "We find it difficult to accept the submission, given the plain words of the provisions quoted above. That nominated members may not vote does not imply that they cease to be the members of the Municipality or that their number should be ignored in determining whether the President has lost the confidence of two-third of the members." 31. The Court should not lose sight of that in a democratic set-up, a duly elected candidate should not be removed unless he reaches/incurs the disqualification as provided under the Statute as it would offend the will of the electorates. Removal of the duly elected member should not be compared with removal of State employees. (Rewat Dan v. State of Rajasthan, 1975 Raj LW 116; and Rameshwari Devi Mewara v. State of Rajasthan, AIR 1999 Rajasthan 47). 32. Therefore, while construing the provisions of a Statute, it is not permissible for the Court to add to or substract from the statutory provision. (Vide Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678). Moreso, cognizance is taken of the offence and there is nothing like taking cognizance of the offender at that stage. (Vide Hareram Satpathy v. Tikaram Agarwal, AIR 1978 SC 1568; and Anil Saran v. State of Bihar, AIR 1969 SC 204). Therefore, unless charges are framed against the Office-bearer, he cannot be subjected to disqualification. 33. Thus, in view of the aforesaid discussion, I reach to the inescapable conclusion that as the legislature has purposely provided that disqualification would occur provided the charges had been framed after taking the cognizance, mere taking cognizance would not render the candidate disqualified. 34. The petition is devoid of any merit and accordingly dismissed. There shall be no order as to costs.