JAGAT NARAYAN, C. J. - (1.) -
(2.) THIS is a special appeal against the judgment of a learned single Judge in a writ petition filed by appellant Mangi Lal challenging the validity of an order of the State Government dated 8-1-69 (Ex. 4 ). The facts relevant for the disposal of this appeal are these. Arjun Singh, respondent, was Sarpanch of Garn Himmat Singh Panchayat in the year 1960. At that time he handed over a sum of Rs. 1,500/- to one Mool Chand for the construction of a school building. Mool Chand neither constructed the school building nor refunded the amount to the Panchayat. A charge was framed against Arjun Singh on 31. 3. 65 (Ex. 6) to the effect that he was guilty of grave dereliction of duty inasmuch as he neither got the school building constructed by Mool Chand nor took any steps to recover the sum of Rs. 1,500/- from him. It appears that Arjun Singh was reelected as Sarpanch of the same Panchayat It is not clear from the record as to when he was reelected. This much is clear from the finding of the State Government dated 24. 5. 67 (Ex. 1) that the charge related to the previous term of his office. In its finding the State Government held that the charge had been proved against Arjun Singh and a finding was recorded by it against him under the proviso to sec. 17 (4) of the Rajasthan Panchayat Act. No further action was taken by the State Government against him. The Collector then wrote letter (Ex. 2) dated 5 4 68 to the State Government that it would be proper to declare the seat of the Sarpanch to have become vacant under sec. 17 (1) (b ). The State Government thereupon issued a notice to Arjun Singh to show cause why he should not be removed from the office of Sarpanch and after giving him a hearing an order (Ex. 3) was pissed on 17-10-69 declaring the office of Sarpanch to be vacant under sec. 17 (1) read sec. 11 (j ). On 8. 1. 69 the impugned order (Ex. 4) was passed by the State Government setting aside its earlier order dated 17. 10. 68. On behalf of the appellant it was contended before the learned single Judge that the State Government had no power to review its earlier order (Ex. 3) dated 17. 10. 68 as the power of review given under sec. 70-B was confined to orders under sec. 17 (4 ). The learned single Judge held, following his judgment in Magh Raj vs. State of Rajasthan (1), that the order of the State Government removing the Sar-panch under sec. 17 (1) (b) was erroneous and dismissed the writ petition. Against that order the present special appeal has been filed and it is contended that the decision in Magh Raj vs. State of Rajasthan (1) is not correct and that the decision of the Division Bench in Shivraj Singh vs. State of Rajasthan (2) requires reconsideration as the provisions of sec. 11 (j) and sec. 17 (1 ) (b) were not considered in it, We have heard the learned counsel for the parties and we are of the opinion that the view taken in Magh Raj vs. State of Rajasthan (l) is correct. Secs. 11 (j) and 17 run as follows: "11. Qualification of Panchas.- Every person, who is entitled to vote at an election in any Panchayat circle or a ward thereof for the purposes of this Act, shall be qualified for election or appointment as a Panch unless such person - (j) is for the time being ineligible for election under sub-section (4-B) of Sec. 17 of this Act or under sub-section (3) of sec. 40 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959; "s. 17 Vacation of seats by and removal of Panchas, - (1) (a) If any Panch, Sarpanch or Up Sarpanch, who is not qualified for election or appointment as such under this Act, has been elected or appointed to a Panchayat, or (b) if any Panch, Sarpanch or Up-Sarpanch after having been elected or appointed as aforesaid becomes disqualified during the term of his office for such election or appointment, his seat shall be declared by the State Government, after giving him an opportunity of being heard, to have become vacant. (2) If any Panch, Sarpanch or Up-Sarpanch, during the term of his office, absents himself from five consecutive meetings of the Panchayat, without giving information in writing to the Panchayat, he shall cease to be such Panch, Sarpanch and his seat shall become vacant (3) If any Panch or Sarpanch fails to make the prescribed oath or affirmation of his office within three months from the date of notification under Sec. 14, his seat shall be declared by the State Government to have become vacant. (4) The State Government may, by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary, remove any Panch, Sarpanch, or Up-Sarpanch who (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Government has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct. Provided that any such inquiry as is referred to in this sub section may be initiated even after the expiry of the term of a Panchayat, or, if already initiated before such expiry, may be continued thereafter and in any such case, the State Government shall, by order in writing, only record its findings on the charges levelled against a Panch, Sarpanch or Up-Sarpanch of the Panchayat during its term of office. (4-A) The State Government may, during the course of any inquiry under sub-section (4), suspend a Panch, Sarpanch or Up-Sarpanch against whom the inquiry has been started and debar him from taking part in any act or proceeding of the Panchayat while under such suspension. (4-B) A Panch, Sarpanch or Up Sarpanch who has been removed under sub-section (4) or against, whom findings have been recorded under the proviso to that sub-section, shall not be eligible for re-election under this Act for a period of three years from the date of his removal or as the case may be, from the date on which such findings are recorded. (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under sec. 70-B, be final and shall not be liable to be questioned in any court of law. " A perusal of sec. 11 (j) shows that the ineligibility contemplated therein has reference to sub-section (4-B) of sec. 17 and therefore this clause has to be read in the context in which it occurs in sec. 14. In the proviso to sec. 17 (4) it is clearly mentioned that if the charges related to the previous term the State Government shall only record its findings on them. It is therefore clear that the intention of the Legislature was that if the charges relate to the current term, the Sarpanch was to he removed from his office, but if the charges related to the previous term only a finding was to be recorded against him and the consequence of recording this finding is given in sub-section (4-B ). That is, he shall not be eligible for reelection for a period of three years from the date on which such findings are recorded. It is no doubt a little anomalous that a Sarpanch who commits misconduct in his previous term is allowed to continue as Sarpanch in the current term despite the proof of such misconduct. But a penal provision has to be strictly construed. We accordingly hold that the earlier order of the State Government was without jurisdiction. Even if the State Government had no power to rectify its earlier wrong order we quash it in the exercise of our extraordinary jurisdiction under art. 226 of the Constitution. In the result the special appeal is dismissed. We leave the parties to bear their own costs. . ;