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1963 DIGILAW 319 (ALL)

Gaya Dutt v. S. D. O. II, Mahrajganj

1963-12-04

M.C.DESAI, R.N.SHARMA

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JUDGMENT M.C. Desai, C.J. - This is a petition for certiorari for the quashing of an order dated 27-9-1961 passed by Sri Saun Ram designated as Sub-Divisional Officer II, Mahrajganj, under Section 12-C of the Panchayat Raj Act dismissing the petitioner's petition challenging the election of opposite party No. 2 as Pradhan of a Gaon Sabha. The petition came up for hearing before our brother Beg, who referred it to a larger Bench because of the importance of the question raised in it, whether there can be two Sub-Divisional Officers in one sub-division. It appears from the affidavit of the opposite party itself and copies of orders passed by the Deputy Commissioner of Rae Bareli that in Sub-Division Mahrajganj there were two officers exercising Sub-Divisional Officer's powers at first Sri H. M. Singh was Sub-Divisional Officer Mahrajganj with powers of Settlement Officer under the U.P. Consolidation of Holdings Act and certain other powers of a Sub-Divisional Officer and Sri Badri Narain was also Sub-Divisional Officer, Mahrajganj, having other powers of a Sub-Divisional Officer. Sri H. M. Singh was called Sub-Divisional Officer I, Mahrajganj and Sri Badri Narain, Sub-Divisional Officer II, Mahrajganj. Later Sri Badri Narain was transferred and Sri Saun Ram was appointed as Sub-Divisional Officer in his place, e.g. as Sub-Divisional Officer II, Mahrajganj. This is borne out by the fact that Sri Badri Narain and after him Sri Saun Ram designated themselves as Sub-Divisional Officer II, Mahrajganj. The opposite party's affidavit also shows that one officer was called Sub-Divisional Officer 1, Mahrajganj and the other Sub-Divisional Officer II, Mahrajganj. 2. Sub-Divisional Officers are appointed under Section 18 of the U.P. Land Revenue Act. This is borne out by the fact that Sri Badri Narain and after him Sri Saun Ram designated themselves as Sub-Divisional Officer II, Mahrajganj. The opposite party's affidavit also shows that one officer was called Sub-Divisional Officer 1, Mahrajganj and the other Sub-Divisional Officer II, Mahrajganj. 2. Sub-Divisional Officers are appointed under Section 18 of the U.P. Land Revenue Act. Sub-Section (1) provides that the State Government may place any Assistant Collector of the first class "in charge of one or more Sub-Divisions of a district" and sub-Section (2) provides that "such Assistant Collector shall be called an Assistant Collector in charge of a Sub-Division or a Sub- Divisional Officer and shall exercise all the powers and discharge all the duties conferred and imposed upon him by this Act or by any other law for the time being in force." Prior to amendment to Section 18 by Act X of 1961 the State Government had no power to appoint Additional Sub-Divisional Officers or to place more than one Assistant Collector of the first class in charge of a Sub-Division but since the amendment the State Government has been given power by sub-Section (3) to "designate any Assistant Collector of the first class appointed to a district to be Additional Sub-Divisional Officer in one or more sub-divisions of the district" and "the Additional Sub-Divisional Officer shall exercise such powers and perform such duties of an Assistant Collector in charge of a sub-division in such cases or classes of cases as the State Government may direct." Sub-Section (5) provides that "the provisions of the Land Revenue Act, and of other law for the time being applicable to a Sub-Divisional Officer shall apply to every Additional Sub-Divisional Officer when exercising any powers or dis-charging any duties under sub-Section (4) as if he were a Sub-Divisional Officer. Under sub-Section (6) the State Government can delegate its powers under this section to the Collector of the district. Under sub-Section (6) the State Government can delegate its powers under this section to the Collector of the district. The State Government through Rule 765 of Revenue Manual delegated to Collectors "their powers to place Assistant Collectors, first class, in charge of one or more sub-divisions of a district." It does not appear that the State Government delegated to Collectors their powers to designate Assistant Collectors of the first class as Additional Sub-Divisional Officers conferred by the newly added Section 18 (3) to the Collectors; at least no amendment to rule 765 has been brought to our notice. 3. Section 12-C of the U.P. Panchayat Raj Act is to the effect that "the election of a person as Pradhan of a Gaon Sabha shall not be called in question except by an application presented to such authority as may be prescribed." The State Government has made Rule 24 in exercise of this power providing that "an application under Sub-Section (1) of Section 12-C of the Act shall be presented before the Sub-Divisional Officer within whose jurisdiction the Sabha concerned lies," and Rule 25 providing that "every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits", and that "the District Magistrate may at any stage, withdraw any application under sub-Section (1) of Section 12-C of the Act pending in the district for disposal and (a) himself try or dispose of the same, or (b) transfer the same for trial or disposal to any Assistant Collector of the First Class." 4. The election petition was presented by the petitioner before Sri Badri Narain who professed to be Sub-Divisional Officer II, Mahrajganj and who entertained it. On his transfer it was disposed of by Saun Ram, who also designated himself as Sub-Divisional Officer II, Mahrajganj and he dismissed it on merits. The question is whether he had jurisdiction to dispose it of or not. 5. Under Rule 24 only "the" Sub-Divisional Officer had jurisdiction to entertain and dispose of the election petition unless it was transferred by the District Magistrate in exercise of the power conferred by Rule 25(5). The question is whether he had jurisdiction to dispose it of or not. 5. Under Rule 24 only "the" Sub-Divisional Officer had jurisdiction to entertain and dispose of the election petition unless it was transferred by the District Magistrate in exercise of the power conferred by Rule 25(5). The power of a District Magistrate to transfer an election petition under Rule 25(5) has to be exercised only in respect of a pending petition and cannot be exercised by him by a general order. It is the power of transfer, that is, transfer of a pending petition and not of conferring jurisdiction upon another officer to entertain and dispose of an election petition. It is rule 24 which has conferred power to entertain and dispose of an election petition and that power has been conferred only upon "the" Sub-Divisional Officer. Prior to 1961 there used to be only one officer who was designated as Sub-Divisional Officer but since the amendment to Section 18 by Act X of 1961 there can now be two officers, one known as Sub-Divisional Officer and the other known as Additional Sub-Divisional Officer. An Additional sub-Divisional Officer is an officer different from the Sub-Divisional Officer; though called Additional Sub-Divisional Officer he is not just another Sub-Divisional Officer. There can be only one officer placed in charge of a sub-division and he is known as "the" Sub-Divisional Officer if an additional officer is designated by the State Government to be Additional Sub-Divisional Officer he does not thereby become one more Sub-Divisional Officer. The status of an Additional Sub-Divisional Officer is different from that of the Sub-Divisional Officer. Every Sub-Divisional Officer has all powers conferred on a Sub-Divisional Officer under any local Act whereas an Additional Sub-Divisional Officer has only such Sub-Divisional Officer's powers as are expressly conferred upon him by the Government. While an Additional Sub-Divisional Officer may have only some of the powers of a Sub-Divisional Officer, a Sub-Divisional Officer must possess all the powers. Section 18 does not contemplate a Sub-Divisional Officer having only some of the powers of a sub-Divisional Officer; only an Additional Sub-Divisional Officer can have only some of the powers. It follows that if an officer has only some of the powers of a sub-Divisional Officer he is not a Sub-Divisional Officer and can only be an Additional Sub-Divisional Officer. Section 18 does not contemplate a Sub-Divisional Officer having only some of the powers of a sub-Divisional Officer; only an Additional Sub-Divisional Officer can have only some of the powers. It follows that if an officer has only some of the powers of a sub-Divisional Officer he is not a Sub-Divisional Officer and can only be an Additional Sub-Divisional Officer. Further, an Additional Sub-Divisional Officer can be designated only by the State Government because it has not been shown here that the State Government's power to designate an Additional Sub-Divisional Officer has been delegated to Collectors. 6. Section 2(ss) of the Panchayat Raj Act lays down that "Sub-Divisional Officer includes an Additional Sub-Divisional Officer designated or appointed as such by the appropriate authority. We do not think that this provision helps the opposite party. Since there is no evidence that Sri Saun Ram was designated by the State Government as Additional Sub-Divisional Officer he cannot be included within the meaning of Sub-Divisional Officer." Further, an election petition must be presented before "the" Sub-Divisional Officer; if there are two officers who may come within the meaning of Sub-Divisional Officer, it must be presented to "the" Sub-Divisional Officer, and cannot be presented to either of them according to the choice of the petitioner. No choice has been given to a petitioner to select the officer to whom he should present the election petition. When an Assistant Collector of the first class is placed in charge of a sub-division and another officer has been designated by the State Government as Additional Sub-Divisional Officer, though both come within the definition of Sub-Divisional Officer contained in Section 2 (ss), only the former can be said to be the Sub-Divisional Officer. An election petition is not to be presented before any Sub-Divisional Officer within whose jurisdiction the Sabha concerned lies. It can be presented only before one officer and it is the particular officer who can be called "the Sub-Divisional Officer." It is only the Assistant Collector of the first class placed in charge of the sub-division who can be called "the" Sub-Divisional Officer; the other officer designated as Additional Sub-Divisional Officer cannot be called so. Therefore, even if Sri Saun Ram came within the definition of Sub-Divisional Officer, he was not "the Sub-Divisional Officer" within the meaning of Rule 24 and the election petition could not be heard by him. Therefore, even if Sri Saun Ram came within the definition of Sub-Divisional Officer, he was not "the Sub-Divisional Officer" within the meaning of Rule 24 and the election petition could not be heard by him. Even if the District Magistrate has passed a general order to the effect that Sri Saun Ram could dispose of election petitions it was not authorised by Rule 25(5) and he did not get any jurisdiction under it to dispose of the election petition. 7. We, therefore, hold that Sri Saun Ram had no jurisdiction to dispose of the election petition. In the circumstances it is not necessary to go into the merits of the order passed by him. 8. We allow this petition and quash the order passed by Sri Saun Ram on 27-9-1961 dismissing the petitioner's petition under Section 12-C Panchayat Raj Act. The petition shall be heard by an officer who is the Sub-Divisional Officer, Mahrajganj, within the meaning of Section 2 (ss) of the Panchayat Raj Act. Since the petitioner did not challenge Sri Saun Ram's jurisdiction while he was hearing the election petition we make no order as to costs of this petition.