Ashok Bhan, J.
1. Prayer made in this petition is for striking down Explanation 2(ii) to Section 175 of the Haryana Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act'), being ultra vires the Constitution of India and for issuance of a writ of certiorari quashing the order dated 7-3-1995 passed by the Director of Panchayat, Haryana (copy of which has not been attached) and the order dated 10-7-1995, Annexurc P-7, passed by the Financial Commissioner and Secretary to Government Haryana, Development and Panchayats Department, Chandigarh, whereby the petitioner has been declared to be disqualified from holding the office of Sarpanch. Petitioner has also sought a writ of mandamus directing respondents 1 to 3 to allow her to continue as Sarpanch having been duly elected.
2. State Election Commission, Haryana in exercise of its powers vested under the Act and Rule 24 of the Haryana Panchayati Raj Act (Election) Rules, 1994, issued a notification dated 30-11-1994 calling upon the residents of Haryana to elect its Panchas, Sarpanchas, Members of Panchayat Samitis and Zila Parishads. Time schedule as prescribed by the Commission was :--
'(a) Period formaking a nomination
1-12-1994 to
2-12-1994
(b) Date of scrutiny
6-12-1994
(c) Date of withdrawal
6-12-1994
(d) Date of poll
15-12-1994.'
Facts as stated in the petition are that :--
3. Petitioner is the wife of Jagpal Singh, who remained Sarpanch of Village Dhaurang continuously for two terms. He had done appreciable development and effected improvement during his tenure as such. While relinquishing the charge of Sarpanchship in the year 1991, Jagpal Singh handed over a cash amount of Rs. 1,48. 386-06 to Rishi Pal, respondent No. 4. As the post of Sarpanch was reserved for a woman candidate, petitioner being the wife of Jagpal Singh and wife of respondent No. 4 contested the election for the post of Sarpanch. On coming to know that the petitioner was contesting the election, Rishi Pal respondent No. 4, sent a notice dated 28-10-1994 which was received by Jagpal Singh on 5-11-1994, asking him to deposit the balance amount due to the Gram Panchayat on the basis of some alleged audit report purposely to get the petitioner declared ineligible from contesting the election with a mala fide intention. Jagpal Singh sent his reply, Annexure P-3, with a copy to the Block Development and Panchayat Officer requesting to supply him the inquiry report on the basis of which the money was found due againat him. He further stated that an inquiry be conducted against him and if any amount was found due against him, he would pay the same immediately. It was asserted that nothing was due against him and the proposed action was taken with mala fide intention at the last moment to depri ve the petitioner of her right to contest the election against the wife of respondent No. 4.
4. Jagpal Singh had received a notice on 11-9-1994 wherein he was asked to deposit the value of 3600 bricks and 25 bags of cement within 15 days of the receipt of the notice. Reply to this notice was sent by Jagpal Singh denying his liability to pay any such amount. But in order to safeguard the interest of the petitioner, in response to the said notice, Jagpal Singh deposited a sum of Rs. 14, 514-99 with the Gram Sachiv under protest. At the time of filing of the nomination papers, an objection was taken on behalf of wife of respondent No. 4 that the petitioner's nomination papers could not be accepted as her husband was in arrears of money due to the Panchayat. This objection was overruled by the Presiding Officer. Petitioner successfully contested the election and was declared elected.
5. Instead of filing an election petition challenging the election of the petitioner, Rishi Pal, respondent No. 4 filed an application before the Director of Panchayats, Haryana, under Section 177 of the Act, for declaring the petitioner as disqualified from continuing to be the Sarpanch of the Gram Panchayat, Dhaurang, because Jagpal Singh, ex-Sarpanch and husband of the petitioner, was in arrears of Rs. 56,109-99 on the date of filing of the nomination papers by the petitioner.
6. Petitioner contested the notice issued to her under Section 177 of the Act, inter alia, on the grounds that the complaint was not maintainable as the challenge was to the acceptance of the nomination papers filed by her and the remedy for the same is provided under Section 176 of the Act by filing an election petition; that a wife could not be held to possess disqualification on account of anything done by her husband. On merits, it was pleaded that the husband of the petitioner was Sarpanch of the village for two terms and Rishi Pal, respondent No. 4, was the Sarpanch from 1991 to 1994; that the notice for recovery to Jagpal Singh, husband of the petitioner, had been sent beyond the period prescribed under Section 53(5) of the Act i.e. after six years of the occurrence of the loss and (or) the lapse of two years of his ceasing to be a member. It was also pleaded that Jagpal Singh had cleared everything towards the Panchayat before the election under protest subject to the inquiry to be held by a competent officer duly appointed for that purpose.
7. Objections raised by the petitioner were turned down by the Director of Panchayats, Haryana, vide order dated 7-3-1995. It was held that the money was recoverable from Jagpal Singh, husband of the petitioner which he failed to deposit on or before the last date of filing of nomination papers and, therefore, the petitioner was disqualified to hold the office of Sarpanch in terms of Section 175(1)(i) read with Explanation 2(ii) to Section 175 of the Act. Petitioner filed an appeal before the Financial Commissioner and Secretary to Government Haryana, Development and Panchayat Department, respondent No. 1, which was rejected by the impugned order dated 10-7-1995, Annexure P-7.
8. Aggrived against the aforesaid orders, present writ petition has been filed challenging the orders dated 7-3-1995 and 10-7-1995 passed by the authorities under the Act, on merits as well as on the constitutional validity of Explanation 2(ii) of Section 175 of the Act. Copy of the order dated 7-3-1995 passed by the Director of Panchayats, Haryana, has not been attached with the writ petition.
9. On merits, the impugned orders have been challenged on the ground that the notices dated 7-9-1994 and 28-10-1994 were sent by respondent No. 4 to Jagpal Singh with mala fide intention in order to debar the petitioner from contesting the election. Office of Sarpanch of Village Dhaurang was reserved for a woman candidate. Wife of respondent No. 4 was desirous of contesting the election and on coming to know that the petitioner was also considering to contest the election of Sarpanch, a false and wrong notice with mala fide intention was sent to Jagpal Singh, husband of the petitioner. Jagpal Singh sent his reply to the notice and in order to safeguard the interest of the petitioner, he deposited the sum of Rs. 14,514-99 under protest subject to the holding of an inquiry, that husband of the petitioner was Sarpanch of Village Dhaurang during the plan year 1985-86 for which there were allegations of arrears, and thereafter up to the year 1991. Section 53(5) of the Act provides that notwithstanding anything contained in this section, no person shall be called upon to explain why he should not be required to make good any loss, after the expiry of six years from the occurrence of the loss, waste or misapplication or after the expiry of two years from his ceasing to be a Sarpanch, Up-Sarpanch or Panch, as the case may be, whichever is earlier. Since, husband of the petitioner was Sarpanch during plan year 1985-86 and thereafter up to the year 1991, he could not be called upon to make good any loss after the expiry of the period of limitation of six years from the occurrence of the loss or from his ceasing to be the Sarpanch, whichever is earlier; that the husband of the petitioner was not in arrears of the Panchayat funds. No inquiry had been held determining any amount due from the petitioner. Simply on the basis of an audit objection, it could not be held that any sum (was) recoverable from the husband of the petitioner; that the election of the petitioner could not be challenged under Section 177 of the Act and the same could only be challenged by filing an election petition under Section 176 of the Act.
10. Petitioner has also challenged the vires of Explanation 2(ii) to Section 175 of the Act, being ultra vires Article 14 of the Constitution of India on the ground that the right to contest an election is an individual right given to a citizen and the disqualification has to be attached to that individual. The said individual could not be held disqualified to hold the office of Panch/Sarpanch for the action of others who may have incurred the disqualification to contest the election; that the Explanation 2(ii) goes beyond the substantive provision of the Act and, therefore, liable to be struck down.
11. Separate written statements have been filed on behalf of respondents 1 to 3 (one set) and respondent No. 4 (2nd set). Stand taken in both the written statements is same/similar. It has been averred that the Auditors had raised certain objections and Jagpal Singh, husband of the petitioner had been issued various notices on the basis of the audit objections to pay the amount due from him. Having failed to elicit any reply from Jagpal Singh, notices were sent on 7-9-1994 and 28-10-1994 calling upon him to deposit the amount due from him. Jagpal Singh failed to deposit the amount due by the last date for filing of the nomination papers, thus, incurring disqualification from contesting theelection under Section 175( 1 )(i) of the Act. Petitioner, being the wife of Jagpal Singh, became ineligible to contest the election under explanation 2(ii) to Section 175 of the Act, being a member of the undivided Hindu family whose member had failed to pay the arrears or the sum referred to in Clause (i) of Section 175(1) of the Act. Allegations that the notices had been sent to Jagpal Singh mala fide in order to deprive the petitioner from contesting the election have been denied. It was also denied that the notices were sent after the expiry of the prescribed period provided for recovery of the amount due. It has been averred that the application under Section 177 of the Act was maintainable for getting the petitioner declared disqualified from continuing to hold the office of Sarpanch and no election petition in this regard need have been filed. Regarding vires of the provisions of the Act, it was pleaded that the same are intra vires, being in accordance with the provisions of the Constitution of India and in the interest of public at large. It is a just and appropriate provision for the functioning of the Gram Panchayats/Panchayati Raj Institutions at the grass root levels in furtherance of the good intentions to run a clean and healthy democracy and to protect the public funds; that the provision restricting all the members of the family from contesting the election if one member is found in arrears of the sum due to the Gram Panchayat was neither unreasonable nor arbitrary.
12. Counsel for the parties have been heard.
13. Part IX consisting of Articles 243-243(o) was inserted by the Constitution (73rd Amendment) Act, 1992. Local Government including self Government Institutions in both urban and rural areas is an exclusive State subject under the 7th Schedule. Union cannot enact any law, create rights and liabilities relating to these subjects. Union by inserting Part IX in the Constitution has outlined the scheme which would be implemented by States by making laws or amending their own existing taws to bring them in conformity with the provisions of 73rd Constitution Amendment Act.
13.1 Implementing the mandate of the 73rd Constitutional Amendment Act, State of Haryana enacted the Haryana Panchayati Raj Act, 1994. It establishes three tier system of Panchayats in the State i.e. Gram Panchayats at village level, Panchayat Samitis at block level and Zila Parishads at district level. It establishes a Gram Panchayat at village level having population of not less than 500 giving relaxation of minimum population of 500 consisting minimum of 6 panches and maximum 20 panches on the basis of population excluding Sarpanch. Similarly, procedure has been given for establishing a Panchayat Samiti at block level and ZilaParishad at district level. It provides for representation to Scheduled Castes on the basis of their population and the population of Panchayats at each level in proportion to their population and the number of seats to be allotted in the wards having majority population of these castes. It also provides for representation to women (including Scheduled Castes Women) equal to one third seats of the total seats in each Panchayat at each level.
14. In order to appreciate the controversy between the parties, it would be useful to refer to the relevant provisions of the Act, which are reproduced below :--
'Section 53. Liability of Sarpanch, Up-Sarpanch or a Panch -- (1) Every Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat shall be liable for the loss, waste or mis-application for Gram Fund or property belonging to that Gram Panchayat if such loss, waste or mis-application is a consequence of his neglect or misconduct while working as Sarpanch, Up-Sarpanch or a Panch as the case may be.
(2) The Block Development and PanchayatOfficer concerned may, on the application of Gram Panchayat or otherwise, for loss, waste or misapplication of Gram Fund or property belonging to that Gram Panchayat and after giving adequate opportunity to Sarpanch, Up-Sarpanch or Panch, as the case may be, to explain, assess by order in writing the amount due from him on account of such loss, waste or misapplication of such Gram Fund or property arid take necessary steps for its recovery.
(3) Any person aggrieved by an order under sub-section (2) may, within one month of the date of such order apply to the Director to have it set aside and the Director may suspend, vary or rescind such order upon such terms as to costs, payment into Court or otherwise, as he thinks fit, but subject to the result of such application, if any, the order shall be conclusive proof of the amount due.
(4) Notwithstanding anything contained in sub-section (3) the Government may, either on its own motion at any time or an application received in this behalf within a period of sixty days from the date of the order, call for the records of any proceedings in which the Director has passed an order under sub-section (3) for the purpose of satisfying itself as to the legality or propriety of such order and may pass such order in relation thereto as it thinks fit :
Provided that the Government shall not pass an order under this sub-section prejudicial to any person without giving him a reasonable opportunity of being heard.
(5) Notwithstanding anything contained in this section no person shall be called upon to explain why he should not be required to make good any loss, after the expiry of six years from the occurrence of the loss, waste or misapplication or after the expiry of two years from his ceasing to be a Sarpanch, Up-Sarpanch or Panch as the case may be, whichever is earlier.
(6) The amount assessed as due from Sarpanch Up-Sarpanch or Panch, as the case may be, may after his death be recovered from his legal heirs to the extent of property inherited by them.'
'Section 175. Disqualifications.-- (1) No person shall be a Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-
(a) has, whether before or after the commencement of this Act, been convicted-
(i) of an offence under the Protection of Civil Rights Act, 1955 (Act 22 of 1955), unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his conviction; or
(ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his release; or
(b) has been ajudged by a compent Court to be of unsound mind; or
(c) has been adjudicated an insolvent and has not oontained his discharge; or
(d) has been removed from any office held by him in a Gram Panchayat, Panchayat Samiti or Zila Parishad under any provision of this Act or in a Gram Panchayat, Panchayat Simiti or Zila Parishad before the commencement of this Act under the Punjab Gram Panchayat Act, 1952 and Punjab Panchayat Samiti Act, 1961, and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the Government notified in the Official Gazette been relieved from the disqualifications arising on account of such removal from office; or
(e) has been disqualified from holding office under any provision of this Act and the period for which he was so disqualified has not elapsed; or
(f) holds any salaried office or office of profit in any Gram Panchayat, Panchayat Samiti or Zila Parishad;
(g) has directly or indirectly, by himself or his partner any share or interest in any work done by order of the Gram Panchayat, Panchayat Samiti or Zila Parishad;
(h) has directly or indirectly, by himself or, his partner share or interest in any transanction of money advanced or borrowed from any officer or servant of any Gram Panchayat; or
(i) fails to pay arrears of any kind due by him to the Gram Panchayat, Panchayat Samiti or Zila Parishad or any Gram Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum recoverable from him in accordance with the Chapters and provisions of this Act, within three months after a special notice inaccordance with the rules made in this behalf has been served upon him;
(j) is servant of Government or a servant of any Local Authority; or
(k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgement of allegiance or adherence to a Foreign State; or
(l) is disqualified under any other provision of this Act and the period for which he was so disqualified has not elapsed; or
(m) is a tenant or lessee holding a lease under the Gram Panchayat, Panchayat Samiti or Zila Parishad or is in arrears of rent of any lease or tenancy held under the Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(n) is or has been during the period of one year preceding the date of election, in unauthorised possession of land or other immovable property belonging to the Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(o) being a Sarpanch, Up-Sarpanch or Panch or a member of Panchayat Samiti or a Zila Parishad has cash in hand in excess of that permitted under the rules and does not deposit the same in pursuance of a general or special order of the prescribed authority within the time specified by it; or
(p) being a Sarpanch; Up-Sarpanch or Panch or a Chairman, Vice-Chairman or Member, President or Vice-President or Member of Panchayat Samiti or Zila Parishad has in his custody prescribed records and registers and other property belonging to, or vested in, Gram Panchayat, Panchayat Samiti or Zila Parishad and does not hand over the same in pursuance of general or special order of the prescribed authority within the time specified in the order. (q) has more than two living children : Provided that a person having more than two children or up to the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified.
Explanation 1 -- A person shall not be disqualified under Clause (g) for membership of a Gram Panchayat, Panchayat Samiti or Zila Parishad by reason only of such person.-
(a) having share in any joint stock company or a share or interest in any society registered under any law for the time being in force which shall contract with or be employed by or on behalf ofGram Panchayat, Panchayat Samiti or Zila Parishad; or
(b) having ashare or interest in any newspaper in which any advertisement relating to the affairs of a Gram Panchayat, Panchayat Samiti or Zila Parishad may be inserted; or
(c) holding a debenture or being otherwise concerned in any loan raised by or on behalf of any Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(d) being professionally engaged on behalf of any Gram Panchayat, Panchayat Samiti or Zila parishad as a Legal Practitioner; or
(e) having any share or interest in any lease of immovable property in which the amount of rent has been approyed by the Gram Panchayat, Panchayat Samiti or Zila Parishad in its own case or in any sale or purchase of immovable property or in any agreement for such lease, sale or purchase; or
(f) having a share or interest in the occasional sale to the Gram Panchayat, Panchayat, Panchayat Samiti or Zila Parishad of any article in which he regularly trades or in the purchase from the Gram Panchayat of any article, to a value in either case not exceeding in any year one thousand rupees.
Explanation 2.-- For the purpose of Clause (1) -
(i) a person shall not be deemed to be disqualified if he has paid the arrears or the sum referred to in Clause (i) of this sub-section, prior to the day prescribed for the nomination of candidates;
(ii) but the failure to pay the arrears or the sum referred to in Clause (i) of this sub-section to the Gram Panchayat, Panchayat Samiti or Zila Parishad by a member of an undivided Hindu family or by a person belonging to a group or unit, the members of which are by custom joint in estate or resident all such members/persons shall be deemed to be disqualified.'
Section 177 '177. Disqualification for continuing as members. (1) If any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad -
(a) who is elected, as such, was subject to any of the disqualifications mentioned in Section 175 at the time of his election;
(b) during the term for which he has been elected, incurs any of the disqualifications, mentioned in Section 175,
shall be disqualified from continuing to be a member, and his office shall become vacant.
(2) In every case, the question whether a vacancy has arisen shall be decided by the Director. The Director may give its decision either on an application made to it by any person, or on its own motion. Until the Director decides that the vacancy, has arisen, the members shall not be disqualified under sub-section (1) from continuing to be a member. Any person aggrieved by the decision of the Director may, within a period of fifteen days from the date of such decision, appeal to the Government and the orders passed by Government in such appeal shall be final : Provided that no order shall be passed under this sub-section by the Director against any member without giving him a reasonable opportunity of being heard.'
15. Section 176 of the Act provides for filing of an election petition for determination of validity of an election by a civil Court.
16. As vires of the Act were under challenge, we requested Mr. O. P. Goyal, Senior Advocate, to assist us who very graciously agreed to do so and rendered invaluable help to us in deciding this case.
17. Section 175(1)(i)provides that no person shall be a Sarpanch or continue as such who fails to pay 'arrears of any kind due' by him to the Gram Panchayat or fails to pay 'any sum recoverable from him in accordance with the Chapters and Provisions of this Act 'which three months after a special notice in accordance with the rules made in this behalf has been served upon him. Legislature has used two expressions; 'arrears of any kind due' or 'any sum recoverable from him in accordance with the Chapters and provisions of this Act'. 'Arrears' or the 'sum recoverable' has not been defined in the Act. Rules on this aspect have not been framed. 'Arrears of any kind due' would mean any money which he owes to the Panchayat in his capacity as a member of the Gram Sabha. Arrears may be of tax, fee or any penalty for not depositing the tax or fee or any other amount due under Sections. 27 and 40 of the Act whereas 'any sum recoverable from him in accordance with the Chapters andProvisions of this Act' would mean the sum which is payable by him under Sections 53 and 54 of the Act for causing loss, waste or mis-application of Gram Fund or property belonging to that Gram Panchayat if such loss, waste or misapplication is a consequence of his neglect or misconduct while working as Sarpanch, Up-Sarpanch or a Panch, as the case may be. The amount due can be determined by issuing notice, providing due opportunity and holding of an inquiry.
18. Under Section 53(5) of the Act no person can be called upon to explain requiring him to make good any loss, after the expiry of six years from the occurrence of the loss, waste or misapplication or after the expiry of two years from his ceasing to be a Sarpanch, Up-Sarpanch or Panch as the case may be, whichever is earlier. Admittedly, no inquiry against Jagpal Singh Ex-Sarpanch, had been held. 'Arrears of any kind due' or 'any sum recoverable from him' had not been determined in accordance with the Chapters and Provisions of the Act. Rules in this regard have not been framed so far. As the amount due from Jagpal Singh had not been determined in accordance with the Chapters and Provisions of the Act, he could not be called upon to deposit the amount on the basis of an audit objection. In any case, he could not incur disqualification under Clause (i) to Section 175(1) of the Act until and unless the arrears or the sum recoverable had been determined in accordance with the Chapters and Provisions of the Act. Jagpal Singh, therefore, had not incurred the disqualification provided under Clause (i) of Section 175(1) of the Act.
19. Under Clause (5) of Section 53 of the Act, no person could be called upon to explain why he should not be required to make good any loss, after the expiry of six years from the occurrence of the loss, waste or mis-application or after the expiry of two years from his ceasing to be the Sarpanch. Jagpal Singh remained Sarpanch during the plan year 1985-86. Audit objection pertained to the said period. He could be called upon to make good the loss in case the notice had been issued to him within six years of the occurrence of the loss or within two years from his ceasing to be the Sarpanch, whichever is earlier. Notice issued to Jagpal Singh in September/October, 1994, would be beyond the period of six years front the causing of the loss, if any or after the expiry of two years from his ceasing to be the Sarpanch. Therefore, on this court as well, petitioner must succeed. Although, respondents have alleged that earlier also notices had been issued to Jagpal Singh on the basis of the audit objection to which there was no response from him, they have failed to place any such notice on the record. As the said notices have not been placed on the record, their nature, contents and liability of Jagpal Singh cannot be determined. It is held that the notice issued to Jagpal Singh was beyond the period of six years from the causing of the loss, if any, or after the expiry of two years from his ceasing to be the Sarpanch and, therefore, the same was not valid and any action taken on the basis of that notice is bad.
20. We refrain ourselves from giving opinion regarding the mala fides of respondent No. 4 in issuing notices to Jagpal Singh in order to debar his wife i.e. the petitioner, from contesting the election as the allegations of mala fide stand denied by respondent No. 4 on facts. There is no cogent material available on the record to conclude that respondent No. 4 had issued the notices to Jagpal Singh with malafide intention to debar his wife from contesting the election of Sarpanch.
21. We now take up the question regarding the vires of Explanation 2(ii) of Section 175 of the Act.
22. Right to vote and right to contest in an election is not a fundamental right as has been argued by the counsel for the petitioner. It has been held in innumberable judgments by the Apex Court that the right to vote and right to contest an election is a statutory right conferred under the statute on the citizens of this country, which can be hedged by certain conditions. Mr. O. P. Goyal, Senior Advocate, argued on behalf of the petitioner that the right to vote and contest the election is an individual right given to a citizen and the disqualification, if any, has to be attached to that individual. Making that individual liable for the disqualification incurred by a member of the Hindu joint family or by a person belonging to a group or unit, the members of which are by custom joint in estate or residence is vague, unreasonable, oppressive and arbitrary condition and, therefore, violative of the equality clause of Article 14 of the Constitution of India. It was further argued that the Explanation could not go beyond the main section. In the main section, it is nowhere provided that an individual would incur disqualification for any acts of omission or commission of any other member of the family whereas by so providing in Explanation 2(ii), the ambit and scope of the main section has been enlarged which could not bedone. An Explanation could only be added to explain the meaning and intendment of the Act itself and the same cannot in any wage interfere with or change the enactment or any part thereof.
23. As against this Mr. H.S. Hooda, Advocate General, Haryana, argued that the validity of an Act passed by the Legislature can be struck down by the Court only on two grounds i.e., (i) lack of legislative competence and, (ii) violation of any of the fundamental rights guaranteed in part-III of the Constitution or of any other constitutional provision. For this, he placed reliance on State of Andhra Pradesh v. McDowell and Company etc. JT 1996 (3) SC 679 : (AIR 1996 SC 1627). It was argued by him that the Haryana Legislature was competent to pass the Haryana Panchayati Raj Act, 1994 and none of the rights of the petitioners as provided under Part-Ill of the Constitution had been violated and, therefore, the Act passed by the Legislature was intra vires the provisions of the Constitution of India. It was also argued by him that the Explanation 2(ii) does not widen the scope and ambit of Section 175 of the Act.
24. Democracy is a basic feature of the Constitution of India and in turn, fair and free election is an essential feature of the democracy. Right to vote and right to contest an election has been given to an individual and he can be disqualified to contest or continue in an elected office if he has incurred a disqualification because of his/her own/his agent's action. He could not be made liable for the action of others especially where (as in this case) the provision is vague and indeterminate. A reading of Explanation 2(ii) would show that if a member of an undivided Hindu family or a person belonging to a group or unit, the members of which are by custom joint in estate orresidence, has failed to pay the arrears or the sum referred to in Clause (i) of Section 175(1), then all such members/persons incur the disqualification to become the Panch/Sarpanch or continue as such. Who would be the members of the undivided Hindu family or a group or unit, which is joint by custom in estate or residence, has not been defined. No Rules have been framed. No machinery has been provided for determining as to who would be the member of an undivided Hindu family or a group or unit, which would be joint by custom in an estate or residence. It is arbitrary as it takes away the rights of a person to contest the election only because a relation or a member of a group or unit has incurred disqulification to contest the election being in arrears of the amount due from him to the Panchayat. There may be a situation where because of differences amongst the family members, living jointly or separately, one of the family members incurs disqualification and refuses to make the payment only to debar all other members of the Hindu undivided family, group or unit from contesting the election.
25. Section 175(1)(i) provides that a person shall be disqualified to be elected and if elected to continue to be Sarpanch/Panch if he fails to pay arrears of any kind due or the sum recoverable within three months of the service of a special notice upon him. This section contemplates the issuance of notice to the person desirous of contesting or if elected allowed to continue. !t does not talk of issuance of a notice to the members of the Hindu undivided family or a group or unit, the members of which are by custom joint in estate or residence whereas under Explanation 2(ii), a person can be disqualified to contest or to continue as a Sarpanch/Panch, if any member of his undivided Hindu family or a person belonging to a group or unit, the members of which are by custom joint inestate or residence, fails to pay the arrears or the sum due. Like this, a person can be saddled with the liability of which he has no knowledge and to which he has no responsibility to discharge. He can be disqualified to continue as a Panch or a Sarpanch after the elections in case it is found that any member of the Hindu undivided family or a group or unit, the members of which are by custom joint in estate or residence, is in arrears. A person would be condemned for the action/ inaction, totally unrelated to theelection process, of another person.
26. Explanation 2(i) envisages a situation before the elections are held. A candidate in the election can remove the disqualification by depositing the arrears or the sum due referred to in Clause (i) of Section 175 prior to the filing of his nomination papers. Explanation 2(ii) talks of failure to deposit the arrears or the sum due by a member of the undivided Hindu family, group or unit, either before or after the election, rendering all the members of the family group or unit to contest or if already elected to continue to do so. This disqualification can be earned by a member purposely or otherwise to prevent all the members of the family from becoming continuing in the elected office which would not only be unfair and unreasonable but would also be against the spirit of the provision and the purpose of the Act.
27. A provision like this is fraught with dangerous consequences giving rise to a situation where the right of a person to hold an elected office can be taken away through mischief. The same is arbitrary and an impediment to the free and fair elections, which is an essential feature of the democracy. Fairness has to be seen not only in the conduct of the elections but also in ensuring that the elected candidate holds the office for the term for which he has been elected and is not deprived of the same in an unjust manner. Such a provision is arbitrary in nature and is held to be violative of Article 14 of the Constitution of India.
28. Let us now examine as to whether the Explanation 2(ii) does beyond the substantive provision of Section 175 and enlarges its scope and ambit.
29. Section 175 of the Act provides and enumerates the disqualification incurred by an individual from contesting the elections or continue to be a Panch/Sarpanch. Clause (i) to Section 175 talks of failure to pay the arrears of any kind due or the sum recoverable from the person contesting the election or from continuing as a Panch or a Sarpanch. It does not speak of the disqualification incurred on account of the arrears of the sum referred to in Clause (i) of Section 175(1) by any other member of the undivided Hindu family or by a person belonging to a group or unit, the members of which are by custom joint in estate or residence. The same has been provided only in Explanation 2(ii). This Explanation certainly adds to and enlarges the scope of the main section. It interferes and changes the enactment in a substantive way. It has been held in S. Sundram Pillai, etc. v. V. R. Pattabiraman, AIR 1985 SC 582, that an Explanation added to a statutory provision is not a substantive provision in any sense of the term and it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. It ordinarily does not enlarge the scope of the original section which it explains. The proper function of an Explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it. After referring to various judgments of the Apex Court and renowned authors on interpretation of the Statute, their Lordships on the scope of the Explanation, concluded as under :--
'52. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is -
(a) to explain the meaning and intendment of the Act itself.
(b) where there is any obscurity or vagueness in the main enactment, toclarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to supress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act becoming an hindrance in the interpretation of the same.'
Explanation 2(ii) goes beyond the scope of the main section. It interferes with and changes the enactment enlarging its scope, which could not be the intention of the Legislature. Explanation cannot go beyond the main/substantive provision. In the present case, the Explanation goes beyond the main section and the same is liable to be struck down.
30. For the reasons stated above, we hold that the Explanation 2(ii) to Section 175 of the Act is ultra vires the Constitution of India, being arbitrary and against the spirit of fair and free elections in a democracy as well as going beyond the intendment of the main section. On merits aswell, this petition is accepted and Annexure P-7 is quashed. Petitioner be allowed to continue as Sarpanch for the duration of her elected period. No costs.