Judgment:
ORDER
Dr. Chauhan, J.
(1). The instant writ petition has been filed challenging the order of the Election Tribunal dated 7.2.2001 (Annex. 4), by which the election of the petitioner has been declared void and direction has been issued to hold fresh election.
(2). The facts and circumstances giving rise to this case are that petitioner was declared elected as Sarpanch of Gram Panchayat, Peeh, Tehsit Merta, district Nagaur and respondents No. 2 to 6 stood defeated. Respondent No.2 filed election pelition No. 12/2000 before the District Judge, Merta on the grounds, inter alia, that petitioner was involved in a criminal case and on the date of filing the nomination papers, charges had been framed against him, therefore, under the provisions of Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 (for short, 'the Act'), he was disqualified to contest the election. During pendency of the election petition, criminal trial stood concluded and petitioner was acquitted. Thus, he took the plea that as the acquittal related back to the date of framing the charges and the alleged offence, he could not be held disqualified on the date of filing the nomination paper. The Tribunal rejected the plea of the petitioner and allowed the election petition. Hence this petition.
(3). A large number of issues are involved herein. However, the sole point urged before this Court is that if petitioner stood acquitted during pendency of the election petition whether it can still be held that he had incurred the disqualification and his election was void?
(4). On 18.1.1989, an F.I.R. was lodged against the petitioner for the offences punishable under various provisions, including Sections 323 and 326 of the Indian Penal Code. After investigation, charge sheet was filed and charges were framed against the petitioner on 24.7.90. Petitioner filed the nomination papers on 30.1.2000, the date on which Criminal Case No. 103/89 was pending against him and charges had been framed, and won the election. Petitioner stood acquitted vide order dated 15.12.2000, when the election petition was pending.
(5). Section 19 of the Act, 1994 provides for qualification for election as a Ranch or a member and declares that every person registered as a voter in the list of voters of a Panchayati Raj Institution, shall be qualified for an election as a Ranch or, as the case may be, a member of such Panchayali Raj Institution. Clause (g) thereof declares a person disqualified if he has been convicted by a competenl court for ah offence involving moral turpitude. The Act was amended by adding Clause (gg) therelo to make a person ineligible if 'he 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.'
(6). The only question remains is: whether petitioner, against whom the charges had been framed prior to filing of the nomination papers, was disqualified to contest the election inspite of his subsequent acquittal by the trial Court after being elected?
(7). A Constitution Bench of the Hon'bie Supreme Court in N.P. Poor.uswami vs. Union of India & ors. (1), observed that the Representation of People Act is self-contained enactment so far as elections are concerned, which means that whenever the true position in regard to any matter connected with elections is to be ascertained, the Court has only to look at the Act and the Rules made thereunder.
(8). In Chatturbhuj Vithaldas Jasani vs. Horeshwar Parashram & ors. (2), the Hon'ble Supreme Court held that election is a continuous process consisting of several stages and embarrassing many steps, of which nomination is one. Nomination is the foundation of candidate's right to go to the polls and must be treated as an integral part of the election. If a person is disqualified on the date of nomination, he cannot be chosen as a candidate because of the disqualification attaches to him on that day. The Hon'ble Court rejected the submission that the disqualification, being a transient one, can be completely wiped off by subsequent developments so that there could be nothing against the person being chosen on the polling day. The wiping off the disqualification does not have any retrospective effect and, therefore, the disqualification, which subsisted on the date of filing the nominalion, does not cease to subsist at the later stage.
(9). In Sewaram vs. Sobaran Singh (3), the Apex Court held that if a person stands disqualified on the date of filing of the nomination papers and the dale of scrutiny of the nomination papers, he incurs disqualification and becomes ineligible to contest the election.
(10). In Dilip Kumar Sharma & ors. vs. State of Madhya Pradesh (4), the Hon'ble Supreme Court considered the case of imposing the penalty of death under the then existing Section 303 of the Indian Penal Code and held that if the senlence once imposed stands set-aside at a later stage and does not remain executable, it cannot be taken into account while imposing punishment under Section 303, viz., in a case of murder by a life-convict, for the reason that the acquittal wipes out the effect of conviction.
(11). In Manni Lal vs. Parmal Lal & ors. (5), the Hon'ble Supreme Court held that the question of disqualification on the ground of a candidate being convicted by a criminal court, has to be considered by the Court at the time of deciding the election petition and if on that date the conviction is set-aside, the person cannot be held to be disqualified as the acquittal takes away the effect of conviction. The Court observed as under:-
'It is significant that the High Court under Section 100(1)(a) of the Act is to declare Ihe election of a returned candidate to be void if the High Court is of the opinion that, on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seal under the Constitution or the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but this opinion is Io be Formed by the High Court at the time of pronouncing the judgment in the election petition.'
(12). In that case, the last date for filing the nomination paper was 9.1.69 and the returned candidate stood convicted on 11.1.69. His conviction was set-aside in appeal on 30.9.69 and the election petition was decided on 17.10.69. The Hon'ble Apex Court held thai as prior to the decision of the election petition the returned candidate stood acquitted, the disqualification disappeared. But the special features of the case remained that the candidate was not disqualified on the date of filing the nomination papers.
(13). In Vidya Charan Shukla vs. Purshottam Lal Kaushik (6), the Apex Court considered that undoubtedly the issue: whether a person is qualified or disqualified for being chosen, is to be decided giving reference to the crucial dale of filling of the nomination form and date of scrutiny but if before the election petition is decided, the disqualification of being a convict is wiped out by his acquittal, acceptance of his nomination does not remain open to challenge. The Court observed as under;-
'that the acquittal of appellant in appeal prior to the pronouncement of judgment by the High Court in the election petition had the result of wiping out his disqualification as completely and effectively as if it did not exist al any time including the date of scrutiny of the nomination papers and that his nomination paper was properly accepted by the returning officer. The challenge to the election of the appellant on the ground under Clause 100 (1)(d)(i) must, therefore, fail.'
(14). In Bhagwan Singh vs. Rameshwar Prasad Shaslri (7), the Hon'ble Supreme Court considered the question of disqualification as validily of the nomination of the returned candidate had been challenged on the ground that on the date of nomination he had an interest in Ihe contract for the execution of works undertaken by the State of Bihar. The Hon'ble Apex Court held that the question of validily of the contract was immaterial and 'would not affecl (he merits' of the case but as in the said case the contract had been executed by (he returned candidate, not in his personal capacity but as a Head of the Village Panchayal, the contract was for the Panchayat and not for him personally and, thus, his nomination was valid.
(15). In Lalileshwar Prasad Sahi vs. Bateshwar Prasad & ors. (8), the Hon'ble Supreme Court considered the applicability of the provisions of Section 7(d) of the Representation of People Act, 1951 (for short, 'the Act, 1951') imposing the disqualification on the person having contract with the Government and majority view has been that if the contracl was void arid unenforceable for non-compliance of the provisions of Article 299(I) of (he Constitulion, the contractor would be saved from the mischief of Section 7(d) of the Acl, 1951. Bul this view was not followed by the Constitulion Bench of the Hon'ble Supreme Court in Vishwanatha Reddy vs. Konappa R. Nadgouda & ors. (9).
(16). In Abdul Rahiman Khan vs. Sadashiva Tripathi (10), a similar view has been reiterated by the Hon'ble Supreme Court holding that even if the contract resulting from acceptance of its tender, (hough may not be enforceable for non-observance of Ihe provisions of Article 299 of the Constitulion, still the petitioner incurred disqualification under the Act, 1951 from standing as a candidate for election to the State Legislature.
(17). In konappa Rudrappa Nadgouda vs. Vishwanatha Reddy (11), the Apex Court held that merely because the contract had been entered into without complying with the provisions of Article 299 of the Constitution, it would not save bar of Election Law to the candidature.
(18). The Constitution Bench of the Hon'ble Supreme Court, in Vishwanalha Reddy (supra) while considering the Review Petition in Konappa R. Nadgouda (supra) reaffirmed the earlier judgment observing that when there are only two contesting candidates, and one of them is under a 'statutory disqualification', votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who cast the votes for him were aware of the disqualification.
(19). Thus, the afore-referred judgments clearly show that even of the contract is void/unenforceable, the party to such contract shall not be eligible to conlesl the election.
(20). The Constitution Benches of the Hon'ble Supreme Court, in Bhikraj jaipuria vs. Union of India (12), and State of West Bengal vs. M/s B.K. Mandal & Sons, (13), held that if the statuiory provisions are mandatory, action taken or thing done, not in the manner or form prescribed, can have no effect or validity and it remains unenforceable and inexecutable. Non- observation of mandatory requirement of law inevitably follows that contravention of said clause implies 'nullification of the contract.'
(21). In New Marine Coal Co. (Bengal) Pvt. Ltd. vs. Union of India &ors.; (14), theApex Court held that any contract in violation of the provisions of Article 299 of theConstitution is void and unenforceable.
(22). In Mulamchand vs. State of Madhya Pradesh (15), The Apex Court, while dealing with the provisions of Article 299 of the Constitution, held as under:-
'If the plea of the respondent regarding estoppel or rectification is admitted, that would mean, in effect, the repeal of an important constitutional provision intended for the protection of the general public. That is why the plea of estoppel or rectification cannot be permitted in such a case.'
(23). In State of U.P. & ors. vs. Murari Lal & Bros. Ltd. (16), the Hon'ble Apex Court held as under:-
'The concensus of opinion is that a contract entered into without complying with the conditions laid down in Article 299(a) is void. If there is no contract in the eye of the law, it is difficult to see how Section 230(3) of the Contract Act would become applicable.'
(24). In Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. vs. Siphi Singh & ors. (17), the Apex Court reiterated the law, holding that failure to comply with the conditions incorporated in Article 299 of the Constitution 'nullifies the contract and renders it void and unenforceable.'
(25). In M/s. Hansraj Gupta & Co. vs. Union of India (18), a similar view has been reiterated by the Hon'ble Supreme Court observing that the constitutional provisions of Section 175(3) of the Government of India Act, 1935 would bar 'mere assertion of this ground from operating as evidence of a contract.'
(26). In Sohan Lal vs. Union of India (19), the Hon'ble Supreme Court held that a judgment and decree passed by a competent court of law, which have attained finality, as has not been challenged in an appellate court, still remains unenforceable and inexecutable merely on the ground that It was based on a contract wherein the mandatory provisions of Article.299 of the Constitution had not been observed.
(27). In Amrit Vanaspati Ltd. vs. State of Punjab (20), it had been observed that any promise or agreement which is prohibited by statute or is against public policy or made in violation of the provisions of Article 299 of the Constitution, cannot be enforced in Court.
(28). In Lalji Khimji vs. State of Gujarat (21), the Apex Court held that the provisions of Article 299 of the Constitution are mandatory in character and their non-compliance would render a contract void.
(29). In Bihari Lal vs. Bhuri Devi (22), the Apex Court held that substantial compliance of the mandatory requirement of Article 299(1) of the Constitution is necessary and the said requirement may be fulfilled if the Rules made by the Government modifies or modulates the said provisions of Article 299 and authorises a particular person or authority to enter into the contract and if the contract has been signed by the persona designata, it cannot be held to be void or unenforceable.
(30). In Bishandayal & Sons vs. State of Orissa (23), the Apex Court reiterated the law observing that any contract in violation of Article 299 of the Constitution remains unenforceable in law.
(31). Void has been defined as : ineffectual; nugatory; having no legal force or legal effect: unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid. (Vide Black's Law Dictionary). 'Void' means a contract entirely devoid of legal effect or it is devoid of main result1 contemplated. In Smt. Kalawati vs. Bisheshwar (24), the Apex Court held that 'void' means non-existent from its very inception and a ban against its recognition. It also means merely a nullity and may be ignored even in collateral proceeding as if it never were. 'Void' does not have any legal force or effect, the validity of which may be ascertained by any person whose rights are affected at any time or at any place directly or indirectly. 'Void' means-without any legal force, effect or consequence; invalid; null; worthless; sipher; useless and ineffectual. (Vide Full Bench judgment of Allahabad High Court in Nutan Kumar vs. II Additional District Judge (25).
(32). In State of Kerala vs. M.K. Kunhikannan Nambiar (26), the Apex Court held that the word 'void' has a relative rather than an absolute meaning. It only conveys Ihe idea that the order is invalid or illegal. 11 can be avoided. There are degrees of invalidity depending upon the gravity of infirmity as to whether fundamental or otherwise. A thing which is found non-est and does not require to set that aside though it is sometimes convenient to do so, and a void order does not require selling aside. (Vide Suresh Chandra vs. State of West Bengal (27).
(33). In Tek Chand vs. Dile Ram (28), the Hon'ble Apex Court considered the case where a Government employee tendered an application for voluntary retirement before the date of filing the nomination paper. He was not communicated anything either accepting or rejecting his application before filing the nomination paper. As voluntary retirement became effective from the date of expiry of period specified, it was held that he could not continue til! actual acceptance of the application. He would be deemed to have retired on expiry of the statutory period of notice and, thus, did not hold office of profit on the relevant date. Therefore, it cannot be held that his nomination had improperly been accepted.
(34). Mr. Govind Mathur has urged that while deciding the aforesaid case, the Hon'ble Supreme Court did not take note of its earlier judgments in State of Jammu & Kashmir vs. Triloki Nath Khosa (29), and Ajaib Singh vs. Sirhind Co- operative Marketing cum Processing Service Society Ltd., (30), wherein it has been held that unless the statute provides for a deeming clause, the Court should not accept the contention of deeming clause for the reason that fiction cannot be introduced by judicial interpretation as it would amount to legislation, which is not permissible in law.
(35). In Union of India vs. Deoki Nandan Aggarwal (31), the Hon'ble Apex Court observed as under:-
'It is not the duly of the Court either to enlarge the scope of the legislation or the intention of the legilature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts.'
(36). Even if the statute provides for a legal fiction/deeming provisions, it must be limited to the purposes indicated by the context and cannot be given a larger effect. (Vide Radhakissen Chamria & ors. vs. Durga Prasad Chamria & Anr. (32), State of Travancore- Cochin vs. S.V. Cashewnut Factory Quilon (33), and Bengal Immunity Co. Ltd. vs. State of Bihar & ors. (34). In Modi Cement Ltd. vs. Kuchil Kumar Nandi (35), the Hon'ble Apex Court explained the distinction between the 'deeming provisions' and 'presumption' and held that the distinction was well discernible.
(37). Similar view has been taken by the Hon'ble Apex Court in State of Kerala & ors. vs. Dr. S.G. Sarvothama Prabhu (36); Commissioner of Income Tax vs. Mysodet (P) Ltd. (37), and Garden Silk Mills Ltd. & Anr. vs. Union of India & ors., (38).
(38). In fact, in such a matter, no general formula can be laid down. Court has to draw the inference after considering the Scheme of the Act/Rules and the language used therein, and if language thereof suggests a fiction even by necessary implication, it has to be interpreted accordingly.
(39). Where the contracts were found to be void/unenforceable for non-observance of the provisions of Article 299 of the Constitution, the Apex Court consistently held that thai would not relieve the contractor from being disqualified for contesting the election under the relevant law, i.e. notwithstanding that the contract could not be enforced against the Government, it was a contract which fell within the mischief of Section 7(d) of the Act, 1951.
(40). Thus, it becomes clear that the view in case of void contract and conviction being set-aside by the Appellate Court have been dealt with by the Hon'ble SupremeCourt differently.
(41). Be that as it may, a Division Bench of this Court in Shiva Ram vs. State of Rajasthan & ors. (39), has up-held the validity of the provisions of Section 19(gg) of the Act, 1994. The Court explained the purpose of bringing such an amendment and observed as under:-
'The accused has also right to approach the High Court under Section 482 Cr. P.C. and to satisfy the Court that continuation of proceedings are abuse of process of the Court. Thus, by impugned ordinance, prohibition to contest the election is provided at the stage when correctness of the allegations constituting the offence punishable with imprisonment for five years has been thoroughly investigated by the police and filtered by judicial scrutiny. Thus, after the charge is framed, the accused cannot be heard to say out-side the trial that he has been falsely implicated for certain ulterior motive....Thus, in our view, the impugned amendment with an object to check criminali-sation in politics and also to warn people in public life not to indulge in criminal activities, is in larger public interest.'
(42). In Bhiya Ram & ors. vs. Stale of Rajasthan & ors. (40), this Court considered the aspect of the provisions contained in Section 19 (gg) and held that the said provision clearly provides that a person shall stand disqualified to contest the election if he is under trial, wherein cognizance of Ihe offence had been taken and the charges had been framed against him for any offence punishable with imprisonment for five years or more. In the said case, the charges had not been framed prior to the election. The Court observed as under:-
'The Legislature, in its wisdom, has used three different phraseology and according to 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 not prior to it, the proceedings can simply be termed as inquiry/investigation.'
(43). In the said case, it was held that as ihe charges had not been framed, the candidate could not be saddled with Ihe disqualification. Disqualification of a person requires to be considered by strict adherence to the statutory provisions applicable in a given case. Inclusion of persons in the electoral roll by a Competent Authoriiy, though they were not qualified to be enrolled, cannot be a ground for setting aside an election of a returned candidate under Section 100 of the Act, 1951 (Vide Shyamdeo Pal Singh vs. Nawal Kishore Yadav (41),
(44). In Pradyul Bordoloi vs. .Swaapan Roy (42), Ihe Hon'ble Apex Courl observed that the 'totality of the facts and circumstances viewed in the light of the provisions of relevant Act, would lead to an inference being drawn' whether ihe person incurred the disqualification.
(45). From the above case-law, it would be apparent that Ihe disqualifications mentioned in the Act, 1994 and Ihe Act, 1951 are entirely different, It must be kept in mind that both are creation of slatute. Actually, Ihe democratic rights of voling or contesting Ihe election are statutory rights and have to be exercised in accordance with the statute creating the same. The provisions of Sec. I9(gg)of the Act, 1994 have been enacted by amendment and having been up-held by Ihe Division Bench of this Court, are required to be enforced as Ihey are in letter and spirit. It will be necessary to keep in mind the distinction belween 'Charge' and 'Conviction'. Afler charge is framed, a person can be discharged or tried and acquitted. A person who is acquitted is absolved of the guilt but the fact that he was charged with commission of an offence always remains, whereas on a discharge of a person, the charge itself stands abrogated. Therefore, being charged with a criminal offence of a particular description is an entirely different thing than conviction of a particular offence. Both are distinct happenings and have to be distinctly considered. The Act, 1951 has considered conviction for a particular offence whereas the Act, 1994 considers the charge with parficular offence as a disqualification. The enlire case-law in relation to conviction resulting in acquittal would, therefore, have no application in the present case as being charged for a particular offence itself, being a distinct happening, is made statutorily a disqualification which cannol be wiped off by a subsequent acquittal.
(34). The case requires to be examined from one more aspect: Had petitioner's nomination been rejected by Ihe Returning Officer on the ground of being charged in a criminal case, could he file an election petition after quashing of the charges or acquittal on the ground that his nomination had improperly been rejected. If he cannot, I fail to understand, how could he be permitted to raise such a plea. In a given case where the trial is not concluded or appeal against conviction is not decided prior to the decision of the election petition, it will lead entirely different result.
(35). Thus, the judgments above referred to on behalf of the petitioner have, therefore, to be distinguished- The fact that petitioner was charged with particular offence at the time of filing his nomination, the impugned judgment and order does not warrant interference.
(36). In view of the above, petition is devoid of any merit and hereby rejected.