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Mewa Ram v/s State of Rajasthan & Others

    Civil Writ Petition No. 1392 of 1998

    Decided On, 14 July 1999

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE B.J. SHETHNA

    For the Appellant: M.S. Singhavi, Advocate. For the Respondents: Vijay Bishnoi, Advocate.



Judgment Text

1. Short but important question of law having public importance arises in this petition i.e. whether Rajasthan State Road Transport Corporation (for short "Corporation") can be a local authority and a full time worker working with the Corporation incurs any disqualification under the Rajasthan Panchayati Raj Act, 1994 (for short "Act") or not ?

2. Under the Act, "Local Authority" is not defined, therefore, we have to go to the Rajasthan General Clauses Act, 1955. u/s 32(43) of the Rajasthan General Clauses Act, 1955. "Local Authority" is defined which is as under :--

"(43) "Local Authority" shall mean a municipal board, committee, corporation or council, a district board, a Zila Parishad, a Panchayat Samiti, a Panchayat or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund."

3. Section 19 of the Rajasthan Panchayati Raj Act provides qualifications for election as a Panch or a member, Panch includes Sarpanch. Section 19(b) of the Act clearly provides that if a Panch or Sarpanch or a Member of a Panchayat holds a salaried whole time or part time appointment under a local authority, then he incurs disqualification. Section 39 of the Act refers to cessation of membership subject to the provisions of Section 40 of the Act and one of the requirements is that a person is or becomes subject to any of the disqualifications specified in Section 19 of the Act. u/s 39(2) of the Act, whenever it is made to appear to the competent authority that a member has become ineligible t

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o continue to be a member for any of the reasons specified in Sub-section (1), the competent authority may after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall have to vacate his office as member. However, it is provided that no such opportunity shall be given if such member has u/s 40, been determined by the Judge to be or to have become disqualified u/s 19.

4. u/s 40 of the Act, the Judge has to decide the question of disqualification. Section 40(1) of the Act reads as under :--

"Section 40. (1) Whenever it is alleged that any member of a Panchayati Raj institution is or has become disqualified and such member does not admit the allegation or has whenever any member is himself in doubt whether or not he is or has become disqualified for being a member, such member or the competent authority or any member of the Panchayati Raj Institution concerned may apply to the District Judge having jurisdiction for a decision on the allegation or doubt."

5. There is a letter dated 25-5-1988 (Annexure 4) addressed by the Additional Chief Electoral Officer, Rajasthan, Jaipur on behalf of the Chief Electoral Officer, Rajasthan, Jaipur to all the Collectors at the time of the above elections held in the State. The subject was regarding the institutions not falling in the purview of the Local Authority. There are as many as eight authorities -- corporations and boards which were treated as not "Local Authority". Rajasthan State Road Transport Corporation is one of those Corporations and Boards.

6. However, it has been further clarified in the said letter (Annexure 4) itself that. The employees of the aforesaid establishments/organisations are not debarred to contest Panchayat Elections provided, the Rules, governing service conditions of these institutions have not made any specific pro-vision restricting participation in polities."

7. Thus, from the above letter dated 25-5-1988 (Annexure 4) addressed by the Chief Electoral Officer to all the Collectors of the State, it is clear that the employees of the Rajasthan State Road Transport Corporation were also not debarred from contesting Panchayat elections subject to the Rules or the governing service conditions of the Corporation restricting participation in politics.

8. Learned counsel Mr. M.S. Singhvi for the petitioner -- Sarpanch has placed before me the Standing Orders, 1965 of the 'Rajasthan State Road Transport Corporation Workers and Workshop Employees which were corrected up to 31-12-1987. Along with the Standing Orders, it contains several circulars issued prior to 31-12-1987. From the aforesaid Standing Order corrected up to 31-12-1987, it nowhere appears that there was a restriction from participating in politics. However, the learned counsel Mr. Vijay Bishonoi for the respondents has placed before me the judgment of the learned single Judge of this Court (Hon'ble Mr. Justice Mohd. Yamin) dated 9-9-1998 delivered in S.B. Civil Writ Petn. No. 1061/97. Bajrang Lal v. State of Rajasthan wherein at page 7, there is a reference to the circular of the Corporation dated 11-5-1988 clearly prohibiting the employees of the Corporation from contesting the elections. The said circular was issued dated 11-5-1988, therefore, obviously, it would not be there in the Standing Orders corrected up to 31-2-1987 produced before me by the learned counsel Mr. Singhvi.

9. In the aforesaid legal background, I will come to the facts of the case which are as under :--

The most important and undisputed fact is that the petitioner is admittedly working as Conductor with the Corporation. While working as Conductor with the Corporation, he contested the election for the post of Sarpanch, Gram Panchayat Dabra successfully and elected as Sarpanch on 3-2-1995. The respondent No. 2 issued a notice dated 18-11-1996 (Annexure 1) to the petitioner stating that he is disqualified to hold the office of Sarpanch u/s 19(b) of the Act. The same was replied by the petitioner on 4-12-1996 (Annexure 2). In the reply also, the petitioner has not disputed the fact of working as Conductor with the Corporation. Thereafter by an order dated 18-4-1998 (Annexure 3), the respondent No. 2 declared the petitioner to be disqualified to hold the office of Sarpanch and accordingly, declared his seat vacant. Aggrieved of that order at Annexure 3, the petitioner has filed this petition under Article 226 of the Constitution.

10. Learned counsel, Shri Singhvi, for the petitioner firstly submitted that the Corporation cannot be said to be a "Local Authority" in view of the letter dated 25-5-1988 (Annexure 4) addressed by the Chief Electoral Officer to all the Collectors of the State. Relying upon the decision of the Hon'ble Supreme Court in the case of Calcutta State Transport Corporation Vs. Commissioner of Income Tax, West Bengal, , he submitted that the Corporation established under the Road Transport Corporation Act is held not to be a Local Authority by the Hon'ble Supreme Court, therefore the impugned order at Annexure 3 passed by the respondent No. 2 is liable to be set aside. Mr. Singhvi has also relied upon a brief order passed by the learned single Judge of this Court (Hon'ble Dr. B.S. Chauhan, J.) dated 17-5-1999 in S.B. Civil Writ Petition No. 1374/98, allowing the writ petition of a Sarpanch. who was removed from the post on the ground that he was an employee of the Corporation. The learned Judge has allowed the petition relying upon the Supreme Court judgment reported in Calcutta State Transport Corporation Vs. Commissioner of Income Tax, West Bengal, delivered in the case of Calcutta State Transport Corporation v. Commr. of Income Tax, West Bengal and so also the judgment reported in Valjibhai Muljibhai Soneji and Another Vs. The State of Bombay (Now Gujarat) and Others, delivered in the case of Valjlbhal Muljibhai Sonejl v. The State of Bombay (now Gujarat). He, therefore, submitted that this Court may also quash the impugned order at Annexure 3.

11. However, learned counsel Mr. Bishnoi for the respondents relying upon an earlier decision of the learned single Judge of this Court (Hon'ble Mr. Justice Mohd. Yamin) dated 9-9-1998 delivered in S.B. Civil Writ Petition No. 1061/97 Bajrang Lal v. State of Rajasthan vehemently submitted that this Court has already taken a view that an employee of the Corporation is disqualified from contesting the election for the post of Sarpanch of Panchayat. The said view taken by the learned Single Judge in view of the circular dated 11-5-1988 issued by the Corporation itself whereby the employees of the Corporation were prohibited from contesting the elections. He, therefore, submitted that the letter dated 25-5-1988 (Annexure 4) addressed by the Chief Electoral Officer to all the Collectors clarifying that the Rajasthan State Road Transport Corporation along with seven other Corporations and Boards were not Local Authority, will not be applicable in this case in view of the proviso of the letter itself wherein it was clearly provided that if the Rules or Governing service conditions of the Corporation have made a specific provision restraining the participation in politics, then its employees cannot participate in the election. The Hon'ble Supreme Court was dealing with the matter arising out of Land Acquisition Act. Considering the provisions of Sections 6(1), 38 and 3(e) of the Land Acquisition Act, the Hon'ble Supreme Court held that the State Road Transport Corporation incorporation under the Road Transport Corporation Act, 1950 is a company, therefore, it is not a local authority. In case of Calcutta State Transport Corporation Vs. Commissioner of Income Tax, West Bengal, the matter was arising out of Income Tax proceedings and it has been held by the Hon'ble Supreme Court that the Calcutta State Transport Corporation having established under the Road Transport Corporation Act cannot be said to be a local authority, therefore, not entitled to claim exemption of its income by virtue of Section 10 of the Act. Thus, the facts of the aforesaid cases were totally different than that of the present case. The subject before the Hon'ble Supreme Court was to-tally different.

12. Even the Chief Electoral Officer of the State of Rajasthan has also clarified that the Corporation is not a local authority but while excluding the same from the definition of local authority, it has also made clear by way of proviso that if there are Rules, Governing Service conditions etc. of the Corporation restricting its employees' participation in politics, then those persons cannot contest the elections. Relying upon the circular dated 11-5-1988 issued by the Corporation, this Court has dismissed the petition filed by a Sarpanch (Bajrang Lal) who was working as Conductor of the Corporation. Bajrang Lal's case was decided earlier on 9-9-1998 whereas writ petition No. 1374/98 was decided by my learned brother Dr. B.S. Chauhan, J. without referring to Bajrang Lal's case. It appears that my learned brother Dr. B.S. Chauhan, J. had no pleasure to have the said judgment before his Lordships. It appears that the circular dated 11-5-1988 issued by the Corporation was also not brought to the notice of his Lordships. Under the circumstances my learned brother Dr. B.S. Chauhan, J. relying upon the judgment of the Hon'ble Supreme Court in the cases of Valjibhai Muljibhai Soneji and Another Vs. The State of Bombay (Now Gujarat) and Others, and Calcutta State Transport Corporation Vs. Commissioner of Income Tax, West Bengal, allowed the petition.

13. In view of the above observations, first submission raised by Mr. Singhvi, learned counsel for the petitioner, fails and is rejected.

14. Mr. Singhvi then contended that the impugned order at Annexure 3 passed by the respondent No. 2 is clearly against the provisions of Sections 39 and 40 of the Act. He submitted that the petitioner had disputed about his disqualification and once there is a dispute raised by the Sarpanch, then the respondent No. 2 could not have passed the order u/s 39 of the Act. He submitted that in such type of cases, the question of disqualification of the petitioner has to be decided by a Judge u/s 40. I have already reproduced Section 40(1) of the Act. It speaks about the allegations made against any member of the Panchayati Raj Institution that he is or he has become disqualified and if such member does not admit the allegation or dispute it, then matter has to be decided by the District Judge. It may be stated that the petitioner has not disputed about the fact of he working as Conductor with the Corporation. What be disputes is about the jurisdiction authority of the respondent No. 2. The fact of the petitioner being working as Conductor with the Corporation cannot be denied and it is not denied. In fact , this petition itself is based on the fact that he is working as Conductor with the Corporation. Once that fact is not In dispute, then in my opinion the respondent No. 2 after considering his reply can straightway pass the order u/s 39 of the Act and in my opinion, he has rightly passed the impugned order.

15. Before parting, I must state that the powers, functions and duties of Sarpanch, Up-Sarpanch are stated in Section 32 of the Act, I am reproducing the same which is as under :--

32. Powers, functions and duties of Sarpanch and Up-Sarpanch. -- (1) The Sarpanch shall --

(a) be responsible for convening the meetings of the Gram Sabha and preside over such meetings :

(b) be responsible for convening the meetings of the Panchayat and shall preside over and regulate such meetings;

(c) be responsible for the maintenance of records, of the Panchayat;

(d) have the general responsibility for the financial and executive administration of the Panchayat;

(e) exercise administrative supervision and control over the work of the staff of the Panchayat and the officers and employees whose services may be placed at the disposal of the Panchayat by any other authority.

(f) for the transaction of business connected with this Act or for the purpose of making any order authorised thereby, exercise such powers, perform such functions and discharge such duties as may be exercised, performance or discharged by the Panchayat under this Act or the rules made thereunder .

(g) furnish to the State Government on the officer incharge of Panchayats such reports, returns and record, whether periodical or otherwise, as may be prescribed or as may from time to time be called for; and

(h) exercise such other powers, perform such other functions and discharge such other duties as the Panchayat may, by a resolution, direct or as the Government may, by rules made in this behalf prescribe.

16. I may only highlight Section 32(e) which provides that the Sarpanch must exercise administrative supervision and control over the work of the staff of the Panchayat and the officers and employees whose services may be placed at the disposal of the Panchayat by any other authority. If a person is working full time with the some other institution and a person like the petitioner who working as Conductor of the Corporation, who has to go out on duty on every alternate day out of the State or atleast out of the town then, how such Sarpanch can discharge his such duties. It is only those persons can be eligible to contest the post of Sarpanch who are not serving either part time or full time with any other institution, otherwise they will be disqualified from contesting such post . If they are, then they should be immediately disqualified because it would be against the interest of the public.

17. In view of the above discussion. I do not find any substance in this petition. Accordingly, it falls and dismissed.

18. Before parting I must state that Mr. Singhvi has raised one or two contentions, which were not pressed later on, therefore, I have not referred to or dealt with in this order. Accordingly, this petition is dismissed with no orders as to costs. The stay granted earlier stands vacated forthwith.

Final Result : Dismissed.
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