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1958 DIGILAW 147 (ALL)

Govind Prasad and 10 others v. Shiva Kumar

1958-05-06

DESAI, NIGAM

body1958
JUDGMENT Nigam, J. - Govind Prasad and ten others filed this petition for a writ in the nature of certiorari setting aside the order of the opposite party No. 2 dated 23-6-1956 in election petition case No. 41/27 relating to village Imiliya Pergana Maholi, district Sitapur. 2. The Petitioners allege that they are electors of the Gaon Sabha Imiliya, Pergana Maholi. They further allege that on 16-12-1955 opposite party No. I was declared elected as Pradhan Gaon Sabha Imiliya and that time he was less than thirty years of age. An objection was raised at the time of the scrutiny of the nominations but this was rejected summarily. The applicants allege that they filed an election petition in the court of the Sub-Divisional Officer who on 23-6-1956 dismissed the petition. The ground on which this petition is preferred is that the finding is incorrect and the Addl. Sub-Divisional Officer had no jurisdiction to decide the petition. 3. The matter came up before a learned Single judge of this Court and Tandon, J., has referred it to a Bench as he was unable to agree with the view taken by Singh, J., in the Civil Misc. Application No. 217 of 56 (O.J.) 4. We have heard the Learned Counsel for the parties and their arguments have been given in detail in the two cases relied upon. 5. In Civil Misc. Application No. 217 of 1956 the argument that appealed to the learned Single Judge was that though there was provision in the law for the appointment of Addl. Commrs., Addl. Collectors, Addl. District Judges, Addl. District Magistrates and Addl. Sessions Judges there was no similar provision in any law for the appointment of an Addl. Sub-Divisional Officer. He was impressed by the fact that Cl. (ss) introduced in the UP Panchayat Raj Act by UP Act XIX of 1957 clearly directed that the Addl. Sub-Divisional Officer must be 'designated or appointed as such by the appropriate authority' yet that 'appropriate authority' had not been prescribed or named. He, therefore, held that in the absence of prescription of this appropriate authority there could be no proper appointment or designation of the officer called Sub-Divisional Officer and as such the Addl. Sub-Divisional Officer could not be deemed to have been properly appointed and was not competent to take cognizance of the election petitions. He stated: ... He, therefore, held that in the absence of prescription of this appropriate authority there could be no proper appointment or designation of the officer called Sub-Divisional Officer and as such the Addl. Sub-Divisional Officer could not be deemed to have been properly appointed and was not competent to take cognizance of the election petitions. He stated: ... It would then appear that wherever it has been found necessary to appoint additional officers provision has been made for their appointment by the Legislature and it cannot, therefore, be argued that the authority, which was competent to appoint Sub-Divisional Officers, would also be deemed to have authority to appoint Addl. Sub-Divisional Officers or designate Assistant Collectors of the first class as Addl. Sub-Divisional Officers. There being no provision for appointment or designation of Addl. Sub-Divisional Officers and there being no indication as to who was the 'appropriate authority' for such appointments, it will not be possible to appoint or designate Addl. Sub-Divisional Officers and the amendment made by S. 2 of Act XIX of 1957 does not in any manner validate the appointments of any persons as Addl. Sub Divisional Officers, The amendment is, therefore, practically infructuous so far as the present writ petition is concerned. 6. This decision was referred to in Civil Misc. Application No. 161 of 1956 (OJ) and then my Lord Chief Justice agreed with the view taken perhaps for the reason that the Learned Counsel for the Respondent did not question the correctness of this judgment. 7. The agrument that appealed to Tandon, J., was that the Addl. Sub Divisional Officer was really a second Sub-Divisional Officer incharge of a Sub-Divisional and u/s 13 of the UP General Clauses Act, l904 unless there is anything repugnant in the subject or context words in the singular shall include the plural. The argument that appealed to him was that since the State Govt, (or its delegate) had an authority to appoint Sub-Divisional Officers, it also had the authority to appoint more than one Sub-Divisional Officer and the second Sub-Divisional Officer may very well be described as an Addl. Sub-Divisional Officer. 8. The fact that by 'Sub-Divisional Officer' is meant an Assistant Collector of the first class in charge of a Sub-Division was held in Kedar Nath v. S. N Misra 1957 AWR(F.B) 325 and that interpretation has been accepted by the Learned Counsel for the parties before us. Sub-Divisional Officer. 8. The fact that by 'Sub-Divisional Officer' is meant an Assistant Collector of the first class in charge of a Sub-Division was held in Kedar Nath v. S. N Misra 1957 AWR(F.B) 325 and that interpretation has been accepted by the Learned Counsel for the parties before us. The only question for our determination is whether the Addl. Sub-Divisional Officer is merely another Sub-Divisional Officer or whether he is an officer different from the Sub-Divisional Officer for the appointment and designation of which officer a provision must be made in the law before he can undertake any duties. 9. On a consideration of the matter we agree with the view taken by R. Singh, J., in Civil Misc. Application No. 217 of 1956 (OJ). Our reasoning is that we are of the view that an Addl. Sub-Divisional Officer is not merely a second Sub Divisional Officer. It is common knowledge that these additional officers are not entrusted with all the powers of the first officer. S. 13 of the UP Land Revenue Act, which provides for the appointment of an Addl. Commr. in a division or two or more divisions, provides in sub/Cl. (3) that an Addi. Commr. shall exercise such powers and discharge such duties of a Commr. in such cafes or classes of cases as the State Govt, or, in the absence of orders from the State Govt, the Commr. concerned, may direct. Similarly S. 14A(3) of UP Act III of l9Ol reads: An Addl. Collector shall exercise such powers and perform such duties of a Collector in such cases or classes of cases as the State Govt, or, in the absence of orders from the State Govt, the Commr. concerned, may direct. 10. It is not necessary to multiply instances, It is clear and we are advised that it is the common practice that the Addl. Officer, only exercises jurisdiction in respect of such cases or classes of cases as are transferred to him. That is also based on convenience. If there are two officers with concurrent jurisdiction the litigants would have a choice of forum and there would be possibility of conflicting orders in the same matter being passed by the two officers. Officer, only exercises jurisdiction in respect of such cases or classes of cases as are transferred to him. That is also based on convenience. If there are two officers with concurrent jurisdiction the litigants would have a choice of forum and there would be possibility of conflicting orders in the same matter being passed by the two officers. A chaos may possibly result and it is for the avoidance of such confusion, which is in administrative necessity, that the additional officers are not vested with all the powers of the principal officer but only with the limited jurisdiction of dealing with such matters as may be entrusted to them by some general or special order. We are convinced that when the State Government envisaged the appointment of an Addl. Sub Divisional Officer it was not intending to create a coordinate authorty but to bring into being an officer who would exercise the powers of a Sub Divisional officer only in respect of limited number of matters referred or transferred to him. In that view of the matter we hold that the Addl. Sub Divisional Officer is not just another Sub Divisional Officer and, therefore, we are unable to accept the view taken by brother Tandon and to hold that the power to appoint an Addl. Sub Divisional Officer is included in the power of an appointment or designation of a Sub Divisional Officer. We, therefore, hold in agreement with the view taken by Singh, J. that the amendment of the UP Panchayat Raj Act made in Act XIX of 1957 is practically infructuous and does not in any manner validate the appointments of any persons as Addl. Sub Divisional Officers, as no authority has been prescribed for such appointment or designation. This petition would therefore be entitled to acceptance. 11. We accordingly accept this petition and quash the order of the learned Addl. Sub-Divisional Officer dated 23-6-1956. The election petition will be deemed to be still pending and will be disposed of in accordance with law. The Petitioners are entitled to their costs.