2007 (4) TMI 777 - HC - Indian Laws

Pre-Election Disqualification Must Be Raised in Election Petition

Sameera Bano Versus State Of Rajasthan and Ors.

The court held that pre-election disqualification can only be adjudicated in an election petition before the District Judge under Section 43 of the ... - Issues Involved:1. Whether pre-election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994.2. Whether pre-election disqualification can also be adjudicated by the authority under rule 23 of the Rajasthan Panchayati Raj Rules, 1996 read with Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994.Detailed Analysis:1. Adjudication of Pre-Election Disqualification through Election Petition:The court examined whether pre-election disqualification could be challenged exclusively through an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994, read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. Section 43 provides that an election under the Act or the rules made thereunder may be called into question by any candidate at such election by presenting a petition to the District Judge having jurisdiction. Rule 80 specifies the grounds for challenging an election, including the disqualification of a returned candidate on the date of election. The court emphasized that Section 117 of the Act, which bars interference by courts in certain matters, reinforces that no election to any Panchayati Raj Institution shall be called into question except by an election petition presented to the prescribed authority. Thus, the court concluded that pre-election disqualification is a ground for challenging the election through an election petition before the District Judge.2. Adjudication of Pre-Election Disqualification by Authority under Rule 23:The court analyzed whether pre-election disqualification could also be adjudicated by the authority under rule 23 of the Rajasthan Panchayati Raj Rules, 1996, read with Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994. Section 39 deals with the cessation of membership and includes grounds for ineligibility to continue as a member, such as disqualifications specified in Section 19. Rule 23 outlines the procedure for removal in case of disqualification, including pre-election disqualification. However, the court noted that the rule cannot exceed the scope of the corresponding provision of the Act. The court held that Section 39(2) is limited to post-election disqualifications and does not extend to pre-election disqualifications. Therefore, any enquiry under rule 23 regarding pre-election disqualification would be ultra vires the Act.Conclusion:The court concluded that pre-election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Rajasthan Panchayati Raj Act, 1994, read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. It cannot be adjudicated by the authority under rule 23 of the Rajasthan Panchayati Raj Rules, 1996, read with Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994. The court allowed the special appeal by the successful candidate and set aside the order of the learned Single Judge, while dismissing the appeals by the complainant and the State. The writ petitions were directed to be listed before the Single Bench for disposal in accordance with this judgment.Separate Judgment by Ajay Rastogi, J.:Ajay Rastogi, J., disagreed with the majority view and delivered a separate judgment. He opined that pre-election disqualification could be examined by the competent authority under Section 39(2) of the Act, 1994, read with rule 23 of the Rules, 1996. He emphasized that the Constitution provides separate remedies for different situations: election disputes under Article 243-O(b) and disqualifications under Article 243F. He argued that pre-election disqualification could be a ground for action under Section 39(2) notwithstanding the remedy of an election petition under Section 43. He concluded that pre-election disqualifications could be examined by the competent authority under Section 39(2) and that the legislative intent to provide such a mechanism should not be frustrated.