Judgment:
B.R. Arora, J.
1. Respondent Smt. Bhanwari Devi was elected as the Sarpanch of Gram Panchayat, Ribia, Panchayat Samiti, Churu in the election held in the month of February 1995. On 14-3-96 a complaint was made against her by one Shri Paras Ram before the Chief Executive Officer cum Secretary, Zila Parishad, Churu that by giving birth to one additional child on 2.2.96 raising the number of her children to more than two, Smt. Bhanwari Devi has incurred the disqualification under Section 19(1)(iv) of the Act to continue as the Sarpanch. Alongwith the complaint, Shri Paras Ram submitted the Birth Certificate (Annexure. Rule 2) and the Certificate (Annexure. R,3) in proof of giving birth to a child by Smt. Bhanwari Devi.
2. The Chief Executive Officer thereafter appointed the Vikas Adhikari to hold an enquiry and after completion of enquiry the Notice dated 15.5.96 (Annexure. Rule 4) under Section 39(2) of the Act was issued to Smt. Bhanwari Devi to show cause why she may not be declared 'disqualified' to continue as the Sarpanch of the Gram Panchayat as she has given birth to an additional child after 25.11.95 increasing the number of her children to more than two.
3. This notice was served on her husband and brother-in-law on 20.5.96. On 21.5.96 a request was made by Shri Dana Ram (the brother-in-law of Smt. Bhanwari Devi) that Smt. Bhanwari Devi has gone to her parents' house and therefore, one month's time may be granted for filing a reply. The time was granted but no reply on behalf of Smt. Bhanwari Devi was filed.
4. The Chief Executive Officer thereafter, by his order dated 4.7.96 (Annexure. 3) declared the petitioner-respondent as disqualified to continue as the Sarpanch of the Gram Panchayat. The petitioner-respondent challenged the order Annexure. 3 dated 4.7.96 passed by the Chief Executive Officer by way of filing a writ petition. The writ petition filed by the petitioner-respondent was contested by the appellants (respondents in the writ petition). The learned Single Judge, by the judgment dated 11.10.96, allowed the writ petition filed by Smt. Bhanwari Devi by holding that the disqualification can only be determined by the Civil Court under Section 40 of the Act and the respondent No. 2 had no authority to pass the order declaring the petitioner respondent as having incurred the disqualification. The learned Single Judge, however, observed that the competent authority under Section 39 of the Act is competent to adjudicate the question falling within Sub-clauses (b) to (f) of Section 39(1) of the Act but has no authority to adjudicate the matter with respect to Sub-clause (a) to Sub-section (1) of Section 39 of the Act. It is against this judgment that the appellants have filed the present appeal.
5. It is contended by the learned Counsel for the appellants that (i) the notice issued to the respondent petitioner Smt. Bhanwari Devi under Section 39(2) of the Act was served on her relatives but she failed to make a response by denial and the silence or inaction on her part can be treated as an admission and since the facts were admitted, therefore, the Chief Executive Officer was competent to adjudicate the matter; (ii) the jurisdiction to adjudicate the matter regarding the disqualification falls within the purview of Section 39 of the Act unless the Judicial Court, under Section 40, is approached; (ill) the learned Single Judge has not given any reasons to distinguish between the cases falling within the purview of Sub-clause (a) and sub-clauses (b) to (f) of Section 39(1) and the powers to declare a person 'disqualified' under Sub-clause (a) also vests in the Chief Executive Officer; (iv) the expression 'Subject to the provisions of Section 40' does not restrict the powers of the competent authority under Section 39 and the intention of the 'Legislature is very much clear from the word 'may' used in Section 40 of the Act while in the similar circumstances, under the Rajasthan Municipalities Act, the word 'shall' has been used; and (v) when the birth certificates issued by the Gram Panchayat as well as the Certificate issued by the Government Ayurvedic Hospital were on record, no further enquiry was required, particularly who no reply was filed on behalf of the respondent, which clearly shows that she has admitted the contents of the notice; and as such the judgment passed by the learned Single Judge deserves to be quashed and set-aside.
6. Learned Counsel for the respondent, on the other hand, has supported the judgment passed by the learned Single Judge and submitted that the omission to answer the notice cannot be treated as an 'acceptance of the truth of the statement made in the notice' and as there was no admission made by respondent Smt. Bhariwari Devi regarding the facts stated in the notice, therefore, the question of disqualification has to be determined by a judicial authority under Section 40 of the Act. It is further contended by the learned Counsel for the respondent that the intention of the Legislature in making a specific provision of Section 40 to enquire into the matter and give a finding regarding the disqualification, which is final, and the use of the words 'subject to the applicability of Section 40' in Section 39, clearly shows the mandate of the Legislature that it is only the judicial authority which can determine the question of disqualification. It is further contended by the learned Counsel for the respondent that the learned Single Judge has given cogent reasons to distinguish between the enquiry falling under Sub-clause (a) and Sub-clauses (b) to (f) of Section 39(1) of the Act and the expression 'subject to the provisions of Section 40' used in Section 39, restricts the powers of the competent authority to declare any person 'disqualified' after the elections are over and the conditions laid down in Section 19(1)(iv) of the Act are applicable only before the elections and not subsequent to the elections.
7. We have considered the submissions made by the learned Counsel for the parties.
8. The controversies involved in the present case, are (i) whether the enquiry regarding 'disqualification' has to be made by the competent authority, or it is to be held by the judicial authority under Section 40 before the person is declared to have become ineligible on account of the disqualification incurred by him/her under Section 19 of the Act; (ii) whether Section 40 is applicable to an enquiry under Sub-clause (a) of Section 39(1) or it is applicable to an enquiry under Sub-clauses (b) to (f) of Section 39(1) of the Act; (iii) whether there is an admission by the respondent on account of her silence or inaction or having failed to make a response by denial to the notice?
9. The first question which requires consideration is: who is the person competent to hold an enquiry and to declare a person disqualified to continue as the Sarpanch or a Panch, who has incurred the disqualification under Section 19(L) of the Act?
10. Section 19 of the Act deals with the qualification to be elected as a Panch or a Member. It provides that every person registered as a voter, is qualified for election as a Sarpanch, Panch or a Member of a Panchayat Raj Institution unless such person is disqualified by or under any law for the time being in force. Clause (L) to Sub-section (1) of Section 19 provides that if a voter has more than two children, he is disqualified to contest the election as a Panch or a Member of a Panchayat Raj Institution. Proviso (iv) to Clause (L) of Sub-section (1) of Section 19 of the Act, which was substituted by the Amendment Act No. VII of 1995 with effect from 26.4.95, provides that an additional child shall not be taken into consideration for the purpose of disqualification mentioned in Clause (L) and a person having more than two children (excluding the child, if any, born during the period from the date of such commencement, i.e., 27.11.95 shall not be disqualified under that Clause for so long the number of the children he/she had on the date of commencement of this Act, does not increase more than two. The Explanation to proviso (iv) to Sub-Clause (L) to Sub-section (1) of Section 19 further provides that for the purpose of Clause (L) where a couple has only one child from the earlier delivery or deliveries on the date of commencement of this provision and thereafter any birth of children takes place out of the subsequent delivery, shall be deemed to be one entity.
11. Section 39 deals with the cessession of the Membership while Section 40 deals with the power of a Judge to decide the question of disqualification.
12. Sub-section (1) of Section 39 provides the 'disqualification' which makes a Member of the Panchayati Raj Institution 'ineligible' to continue as such Member. Sub-section (2) provides the manner, in which the action is to be taken by the competent authority against a person who has incurred the disqualification and to make such declaration. Sub-Section (2) of Section 39, also provides that whenever it is made known to the competent authority that a Member has become ineligible to continue to be a Member for any of the reasons specified in Subsection (1), the competent authority may, after giving an opportunity of being heard, declare him/her to have become so 'ineligible' and thereupon he/she shall vacate his/her Office as such a Member and no such notice is required if the disqualification has been determined under Section 40 of the Act.
13. Section 40 makes a provision to decide the question of disqualification by a Judge and it also makes a provision for the person entitled to approach the Judge for such declaration. Section 40 makes a specific provision that whenever any allegations have been made that any Member of a Panchayati Raj Institution is, or has become, disqualified and sch member does not admit the allegation then the Member or the Competent Authority or any Member of the Panchayati Raj Institution concerned, can apply to the District Judge having the jurisdiction, for a decision on the allegations borne-out.
14. Section 39 starts with the expression 'subject to the provisions of Section 40'. A Member of a Panchayati Raj Institution shall not be eligible to continue as such, Member if he/she incurred the disqualification mentioned in Clause (a) to Section 39(1) of the Act. The expression 'subject to...' came-up for consideration before the Hon'ble Supreme Court in: K.R.C.S. Balakrishna Cheety & Sons & Co. v. State of Madras : [1961]2SCR736 wherein the Supreme Court held that the correct judicial interpretation, of the words 'subject to...' means 'conditional upon'. Similar interpretation was given to the expression 'subject to... 'by the Rajasthan High Court in: Ratan Lal v. State 1963 RLW 634; by Allahabad High Court in: Mrs. S. Abel v. The District Judge and Ors. : AIR1980All302 and by the Gujarat High Court in: Patel Purbai Narji and Anr. v. The Kutch District Panchayat and Ors. : AIR1985Guj118 .
15. The expression 'subject to the provisions of Section 40' used In Section 40, thus, means that Section 39 is 'conditional upon' the observance of the conditions prescribed and the restrictions which are imposed by and under Section 40. The enquiry regarding the disqualification, envisaged by Section 39, thus, falls within the excluded field of power of the Chief Executive Officer. This enquiry, thus, falls within the exclusive domain of the judicial authority under Section 40 of the Act. It is only in a case where there is an admission of the allegations by the person concerned that the competent authority appointed under Section 39 can deal with the matter after notice to the person concerned, otherwise in all matters of disqualification under Clauses (a) to (f), when a complaint is made to him, he is obliged to refer the matter to the District Judge for his decision on the allegations regarding the disqualification and it is the decision of the judicial authority under Sub-section (3) of Section 40 on the question of disqualification earned by the concerned person, will be final and thereafter the Chief Executive Officer has to declare the person concerned to have become ineligible and on the declaration so made by the Chief Executive Officer, the Member of the Panchayati Raj Institution shall vacate his/her office as such a Member.
16. The power of the Competent authority in respect of an enquiry entrusted to the District Judge or a judicial officer, to whom he has or has not referred the matter for adjudication, under Section 40 of the Act has been taken away by using the expression 'subject to the provisions of Section 40' and the Chief Executive Officer is entitled to pass an order only in the cases where there is an admission of the allegations by the person concerned and no distinction can be made between Clause (a) and Clauses (b) to (f). The enquiry regarding the disqualification, envisaged under Section 40 by the Judicial Authority, is equally applicable to all these Clauses. The learned Single Judge was, therefore, not right in making a distinction between Sub-clause (a) and Sub-clauses (b) to (f).
17. The next question which requires consideration is: whether there is any admission by respondent Smt. Bhanwri Devi on account of her failure to respond to the notice by denial or her silence or inaction? Admissions are concession or voluntary acknowledgement made by a party of the existence of certain facts. The admission is a conscious, deliberate and positive act of acknowledgement or confession. Where a person willingly or knowingly accepts or acknowledges as true or valid the allegations-against him/her in a judicial or quasi-judicial proceeding then such type of admission waives or dispenses with the production of evidence as that amounts to willingly or knowingly conceding for the purpose of litigation a proposition of facts claimed in the notice for the purpose of adjudicating the controversy and the allegations made in the notice. The silence or inaction or failure to respond by a denial, cannot be treated as an 'admission'. No acknowledgement or admission can be inferred from a silence. Admission should be in an express term and there must be a conscious and deliberate act of making acknowledgement by a party relating to the existence of certain facts which are in issue or relevant to an issue in the case. No such admission has been made by respondent Smt. Bhanwari Devi in the present case and, therefore, the question regarding incurring the disqualification was to be adjudicated by the District Judge or a Judicial Authority to whom the case is to be referred under Section 40. Since no such decision was taken by the judicial authority under Section 40, the learned Single Judge was, therefore, right in quashing the order Annexure. 3 declaring the respondent as disqualified. We see no infirmity in the order passed by the learned Single Judge on this count.
18. In the result, the appeal filed by the State is partly allowed. The judgment passed by the learned Single Judge quashing the order Annexure. 3 dated 4.7.96 passed by the competent authority under Section 39 of the Act, is maintained. However, it is held that the learned Single Judge was not right in making distinction regarding the enquiry by the competent authority under Sub-clause (a) and Sub-clauses (b) to (f) so far as the determination of the disqualification is concerned. The Act envisages the enquiry under Section 40 of the Act for all these Clauses, also. The enquiry regarding the disqualification has to be made by the Judicial Authority for all or any of these Clauses under Section 40 of the Act.
19. In the facts and circumstances of the case, the parties are left to bear their own costs.