Tejraj v. A. K. Saraswat, Block Development officer Khargone
1965-12-03
H.R.Krishnan, P.K.Tare
body1965
DigiLaw.ai
ORDER Krbhnan J. 1. The petitioner, who is a member Panch of the Gram Panchayat of the village Pansrmal, has come up to this Court praying that in exercise of the powers under Article 226 of the Constitution of India, this Court might issue a direction of the nature of certiorari declaring that the meeting of the Gram Panchayat held on 2-2-1965 for the election of the Sarpanch and Up-Sarpanch was illegal and accordingly the two persons elected for the offices have not been legally elected. There were other prayers of an interim nature which are out of any significance now. 2. The sheet-anchor of the petitioner's case is that for presiding over that meeting, the Collector of Khargone had already nominated under Rule 78 (6) of Gram Panchayat Nirwachan Niyam, 963, Shri K. C. Joshi, Organiser, Social Education. Accordingly Shri A. K. Saras vat, Black Development Officer, was not competent to preside over the meeting though he actually did so; and further, the Collector's order dated 3-2-1965 appointing Saraswat in place of Joshi could not take effect retrospectively. In addition, it was pointed out that there was a conflict between Section 1(3) of the Gram Panchayat Act and Rule 78(6) of the Rule." but this is based on a mis understanding because section 19 (3) to which the section refers. had stood repealed on that date. 3. In addition, the petitioner has made various allegations against Saraswat's conduct at the meeting with which we are not concerned. Our function in a proceeding under Article 226 is only to examine whether any provision of law has been contravened and further, whether that Contravention is of such consequence as to call for our interference and finally if there is no other practicable remedy open to the petitioner. The reply of the Collector and of the Block Development Officer can be summarised thus: Whatever the merits of the case, the petitioner should not have come here under Article 226 but should have gone up in an election-petition under section 357 of the Madhya Pradesh Gram. Panchayat Act. After all, the petitioner is making allegations that certain mandatory requirements provided in the statutory rules have not been followed and he might as well be making them in election petition after the notifications of these results. 5.
Panchayat Act. After all, the petitioner is making allegations that certain mandatory requirements provided in the statutory rules have not been followed and he might as well be making them in election petition after the notifications of these results. 5. On the merits also the Collector's explanation is that he learnt on very short notice that Joshi, whom he had originally nominated for this purpose, might not be able to function. Accordingly, he directed Mr. Saraswat to proceed and hold the meeting. This direction was given verbally and later on was confirmed by a written order which was of course dated the 3rd. It is not, according to the Collector, an order operating retrospectively, but something being done by him to meet the exigency of the moment and then being confirmed by him by the written order for the sake of record. 6. In addition, it is pointed out that under certain notifications the block Development Officer wag the prescribed authority under section 19(1) of the Act. He was in fact the convenor on whose orders the meeting had to be called, thus, he was in over all charge and when the Collector's nominee under Rule 78 (6) was unable to function, it was open to him on his own powers as a prescribed authority to preside; over the meeting. 7. In principle, this Court will not exercise under Art. 226 even if there is a grievance calling for redress by the issue of a direction or writ under that Article, in cases where the petitioners have another practicable remedy; It is so established, that powers under Article 226. wide though they are, are essentially extra-ordinary ones to be exercised in a very special context, that it is unnecessary to set out the rulings. In regard to matters arising out of elections also, there is near unanimity on the principle that wherever any ejection petition is possible, this Court win not take action on a party's petition under Article 226.
In regard to matters arising out of elections also, there is near unanimity on the principle that wherever any ejection petition is possible, this Court win not take action on a party's petition under Article 226. Certainly, where the procedure adopted by the authorities in charge of an election, has completely frustrated it, then this Court will interfere because there would be no occasion for the authorities notifying the results of the election, But where an election has been held and the results have already been gazetted or wilt be gazetteq in time, this Court will not normally entertain a petition under Article 226, Certainly, the Court is competent to do so and this is a rule rather of prudence than of law; but it is well established, In the instant case the election has been held and the results have either appeared or will be appearing in time in the gazette and the petitioner who is a member or the Gram Panchayat is certainly competent to raise an election petition charging the authorities concerned with a breach of the law and statutory rules. 8. In my opinion, however, there is one unusual element in the present story that would, in the interest of every party concerned, justify this Court's examining the merits and silencing the further arguments; that is the extremely simple but almost ridiculous nature of this controversy if it could be so called. If, in accordance with our usual principles, this petition is dismissed without any pronouncement on its merits, the petitioner might go up with an election petition making these allegations and wasting his money and public time, meanwhile creating much uncertainty in the affairs of the Panchayat, all of which are disproportionate with the nature of the alleged irregularity and the importance of the public offices 'concerned. Since the problem has been posed before us, it is better, therefore, that we solve it here and now; 9.
Since the problem has been posed before us, it is better, therefore, that we solve it here and now; 9. The petitioner starts with the argument that there is basic conflict between section 19 (3) of the Act which provides for a procedure for the election of the Sarpanch and U.P. Sarpanch during the first meeting of the Panchayat, and Rule 78 (6) of the Rules which in terms provides for a President nominated by Collector for the co-option meeting and which, by the application of Rule 79, also applies to the meeting for the election of the Sarpanch and Up-Sarpanch. This argument is futile now because section 19 (3) has been repealed. What we have is, Chapter X (of the Madhya Pradesh Gram Panchayat Election and Co-option Rules, 1963, in which Rule 78 lays down the full Code for the conduct of the meeting for co-option. A meeting for the election of the Sarpanth and UP Sarpanch is technically different from the meeting for co option; but that meeting is, under Rule 79 in Chapter XII governed by the same procedure as has been provided in Rule 78 for the Co-option meeting, As now there is no other provision or the appointment of the President in that meeting, he will have to be appointed in the manner provided in Rule 78, 'that is to say, by the nomination' by the Collector of the district. All this is clear; but the confusion in the instant case is because the Collector has made two nomination The first is of Mr. Joshi, who was nominated in advance which was of course proper. For some reasons, Joshi was not able to function and accordingly, conveyed this to the Block Development Officer, who is broadly speaking entrusted with over all guidance and supervision of the Gram Sabhas and allied institutions. He (Mr. Saraswat), in his turn, contacted the Collector who then nominated him to preside over the meeting in place of Mr. Joshi. In fact the Collector remembered that as the prescribed authority, the Block Development' officer had already himself called the meeting and it may not be wrong in an emergency like this from him to preside also at the meeting. We have the Collector's word as well as that of the Block Development Officer that this was what happened immediately before the meeting on 2-2-1965.
We have the Collector's word as well as that of the Block Development Officer that this was what happened immediately before the meeting on 2-2-1965. Whenever public authorities make statements as to facts which are within 'their personal knowledge we, as a Court exercising extra-ordinary powers under Article 226, would be inclined to believe them. Certainly other considerations will a rise if we have strong factual grounds for disbelieving such statements; but we have none of them in the present case. 9. Having got Collector's authority, Mr. Saraswat, the Block Development Officer went and presided over the meeting as the Officer nominated by the Collector; but the written order was sent only on the next day. 10. Thus we have, as both these public-servants state, a direction by the Collector on the 2nd itself before the meeting, nominating Mr. Saraswat and asking him to presided over the meeting, and a written order to the same effect, for the purposes of the record, dated the next day. There is nothing in the context to suggest any device or improper-interference. Certainly, there has been one of those slips of office routine which are by means rare but nothing worse. It will not be proper for this Court to treat this slip or omission as a basic irregularity and to hold that Mr. Saraswat, who presided over the meeting, had not been nominated or authorised by the Collector. To do, so would be to disbelieve both these public servants without any justification whatsoever. 11. We may not be understood to be approving of this manner of managing the affairs of village bodies where ignorance and factionalism are rampant and any real or apparent bread is seized upon by interested parties as a convenient weapon to beat each other. Obviously, it is most advisable that nominations and authorisations should be immediately reduced to writing and handed over to the person concerned, so that he would carry it with him; and keep it ready for placing before the village body in case it wants to see the authority under which he was acting.
Obviously, it is most advisable that nominations and authorisations should be immediately reduced to writing and handed over to the person concerned, so that he would carry it with him; and keep it ready for placing before the village body in case it wants to see the authority under which he was acting. But where, in one case, a mistake of this nature has been committed and the nominee goes ahead and presides over the meeting while the written order follows the next day, we would not call it a breach unless found, as a fact, that before he presided, the nominee had not been authorised. That certainly is not the position here. We believe the Collector and the Block Development Officer and hold that the nomination had been made but not reduced to writing. However, regrettable this slipshodness in the official routine, this does not amount to a breach of the law of the rules. 12. It has been suggested on behalf of the non-petitioners that apart from the nomination under Rule 78 (6) the Block Development Officer was competent by his own office to preside over the meeting He had been gazetted as the "prescribed authority" for calling the first meeting after the election of the Panchayat, This, it is suggested, empowered him also to preside over it in case the person properly appointed for that purpose was unable to exercise that function. It is difficult to agree. An authority empowered to call a meeting is not necessary the one competent to preside over it. It may happen to be the same authority and it may, with equal probability, be another. It all depends upon the law and rules provided for this function. It is conceivable that where there is provision for some authority calling a meeting, and no express provision as to who should preside over it, the same authority, that is the convenor also becomes the President. But more often, and in the instant case in particular, while the convenor i.e. perscribed authority ¼fofnr izkf/kdkjh½ is the one gazetted for the purposes of Section 19 (1) the President of the meeting has to be nominated officer ¼ukekafdr inkf/kdkjh½ nominated by the Collector. Thus this alternative argument does not appeal to us. 13.
But more often, and in the instant case in particular, while the convenor i.e. perscribed authority ¼fofnr izkf/kdkjh½ is the one gazetted for the purposes of Section 19 (1) the President of the meeting has to be nominated officer ¼ukekafdr inkf/kdkjh½ nominated by the Collector. Thus this alternative argument does not appeal to us. 13. However, considering that the Collector has given his word that he indeed nominated Shri Saraswat the Block Development Officer before he actually went to preside over the meeting, and further that there is no ground why we should disbelieve either of them, we hold that, in spite of the delay in sending a written order, the nomination was proper and Shri Slraswat was competent to preside. 14. As already noted, the allegations made personally against Shri Saraswat in regard to the manner in which he conducted the meeting, do not come in for consideration in proceedings like this. Having been nominated in the proper manner, we would presume that he conducted the meeting properly and would not be entering into investigation of the personal allegations. 15. In the result, the petition stands dismissed. The petitioner shall pay the contesting non petitioners a total hearing fee of Rs. 50.