P.P.NAOLEKAR, J. - (1.) THE petitioner is an elected Sarpanch of Gram Panchayat Ribiya. One Parsaram, Panch of Gram Panchayat, Ribiya had filed a complaint alleging that in the month of February, 1996, the Sarpanch of the Gram Panchayat had delivered a male child and, therefore, as per the provisions of Section 19 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter called as 'the Act'), she has incurred a disqualification for continuing as a Sarpanch and, therefore, she may be removed from the post of Sarpanch. The document showing the birth of the child alongwith a certificate issued by the Senior Medical Officer was attached to the complaint. On receipt of the complaint, the Chief Executive Officer, Zila Parishad, Churu, has directed the Vikas Adhikari, Panchayat Samiti, Churu, to make an enquiry into the allegations levelled in the complaint. The Vikas Adhikari had conducted the enquiry and submitted a report to the Chief Executive Officer, Zila Parishad, Churu. On 15.5.96, the Chief Executive Officer, Zila Parishad, Churu, respondent No. 2, had issued a notice to the petitioner alleging that on account of birth of a child in the month of February, 1996, she has incurred a disqualification Under Section 19(1) for the Act and she was asked to submit a reply by 25.5.96. It is further said that if no reply is filed, it shall be assumed that she has nothing to say in the matter and a declaration of disqualification shall be issued Under Section 39(2) of the Act. The notice was purported to be served on 20.5.96 on one Sukhram, younger brother of the petitioner's husband.
(2.) ON 21.5.96, Sukhram had submitted an application before respondent No. 2 that the notice issued in the name of Bhanwari Devi, the petitioner dated 15.5.96 was given to the applicant Sukhram, Smt. Bhanwari Devi, Sarpanch, Ribiya is not being served with the notice and she does not have any knowledge of these proceedings. She has gone to her parents' place and the reply to the notice can only be given after her return. As the notice has been received on 20.5.96, this information has been given and it is not possible to give reply in a short span of time given in the notice, notice be issued to Bhanwari Devi and month's time be given. None appeared thereafter before the respondent and respondent No. 2 passed the order dated 4.7.96 (Annex.3) relying under Section 39(2) of the Act declaring the petitioner disqualified Under Section 19(1) to remain Sarpanch of the Gram Panchayat, Ribiya, Panchayat Samiti -Churu and the post of Sarpanch was declared vacant. The counsel for the petitioner has challenged the order passed by respondent No. 2, the Chief Executive Officer, Zila Parishad, Churu on the ground that when there was no admission by the petitioner of incurring disqualification or facts leading to disqualification, the power to declare member disqualified vests in civil court only Under Section 40 of the Act and not Under Section 39(2) of the Act with the quasi -judicial authority. On the other hand, it is submitted by the counsel for the respondents that the power Under Section 39(2) was rightly exercised by respondent No. 2.
(3.) SECTION 19 of the Act prescribes qualifications for election as a Panch or a member. The relevant provision in the case reads as under: 19. Qualifications for election as a Panch or a member - -Every person registered as a voter in the list of voters of a Panchayat Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person:. (1) has more than two children: Provided that: (iv) the birth during the period from the date of commencement of this Act, hereinafter in this proviso referred to as the date of such commencement, to 27th November, 1995, of the additional child shall not be taken into consideration for the purpose of the disqualification mentioned in Clause (1) and a person having more than two children (excluding the child, if any, born during the period from the date of such commencement to 27th November, 1995) shall not be disqualified under that clause for so long as the number of children he had on the date of commencement of this Act does not increase. The Act came into force on 23.4.94. A person having more than two children has been declared to be disqualified for election as a Panch or a member. By virtue of the proviso (iv) more than two children upto 27.11.95 would not be a disqualification if the child is born before 27.11.95, making the total number of children more than two, it will not constitute a disqualification, that is the import of proviso (iv). Thus, any child born after 27.11.95 making the number more than two children to a person, it would be a disqualification but not any number of children born prior to 27.11.95. ;