Harihar Prasad v. State of Uttar Pradesh — 1965 DIGILAW 88 (ALL)

JUDGMENT R.N. Sharma, J. - This is a petition under Article 226 of the Constitution of India. The prayer in the petition is not happily worded. It is for a writ of mandamus restraining the opposite parties from interfering with the petitioner's legal right to hold the office of Pradhan of a Gaon Sabha and from enforcing certain orders passed against the petitioner. A writ of mandamus is issued only for directing a person or authority to do a certain thing and not to restrain him from doing it. 2. The petitioner was the Pradhan of the Gaon Sabha Haidergarh, District Barabanki, in January, 1961. Subsequently the U. P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961 was enacted. Chapter I of this Act came into force on December 3, 1961. Subsection (3) of Section 1 laid down that this Chapter (Chapter 1) shall come into force at once, and the remaining provisions of this Act shall in relation to any district come into force from such date as the State Government may by notification in the Gazette appoint in this behalf. By a notification dated July 18, 1962, published in the Extraordinary Government Gazette of Uttar Pradesh of the same date Chapters II to XIV of the said Adhiniyam along with its Schedules,. came into force in relation to all the districts of Uttar Pradesh except the three districts of Uttarakhand. Provision was made by this Act for constitution of Kshettra Samitis and Pramukhs and Up-Pramukhs were to be elected. The first proviso to sub Section (3) of Section 1 laid down that for the limited purpose of constituting Kshettra Samitis and the Zila Parishad in a district in which the State Government initiates steps to constitute Kshettra Sainitis and the Partshad, the provisions of Chapter 11 and any other Chapters necessary or incidental to such constitution, shall be deemed to have come into force from the date of coming into force of this Chapter (Chapter I) and not-withstanding anything in any other enactment all acts may be done and all proceedings taken as may be necessary for the due constitution of the Kshettra Sarnitis and Zila Parishad in accordance with the provisions of the aforesaid Chapters and rules or Orders made thereunder. Therefore even though Chapters II to XIV had not been brought into force, action for constitution of Kshettra Samitis could be taken even before the enforcement of these Chapters. These Chapters could be deemed to have come into force only for the limited purpose of constituting Samitis. 3. Thus even before July 18, 1962, election to the office of Pramukh and Up-Pramukhs of the Kshettra Samiti of this village was held. Under the provisions of this Act there was to be one senior Up-Pramukh and one Junior Up-Pramukh. The petitioner offered himself for election to the office of Junior Up-Pramukh. He was elected as such on July 8, 1962. 4. According to the provisions of sub-Sec. (2) of Section 7 if any Pradhan out of the Pradhans of the constituent Gaon Sabhas is elected Prarnukh or Up-Pramukh, then, not withstanding anything in any other enactment, he shall cease to hold the office of Pradhan but shall continue ex-officio member of the Kshettra Samiti etc. It is not disputed that the petitioner is the Pradhan of a constituent Gaon Sabha. On the coming into force of Chapter II he was asked to hand over charge of his office of Pradhan because in spite of his election as Up-Praniukh he had not done so. It appears that a general circular (Annexure A to the counter-affidavit of opposite parties) was issued by the Additional Secretary, U. P. Government pointing out that in some Kshettra Samitis persons already holding the office of Pradhan had been elected as Pramukh or Up-Pramukh and the attention of the authorities was drawn to the provisions of Section 7(2) and they were asked to make the position clear to all concerned. Thereupon the Assistant Block Development Officer, opposite party No. 3, issued a letter to the petitioner asking him to hand over charge of his office of Pradhan to the Up-Pradhan. The petitioner replied in Annexure 2 that after his election as Junior Up-Pramukh he came to know that he could not hold both offices together and so he had submitted resignation of the office of Up-Pramukh. He further stated that he had neither taken oath of this office nor had he done any work in that capacity. The petitioner replied in Annexure 2 that after his election as Junior Up-Pramukh he came to know that he could not hold both offices together and so he had submitted resignation of the office of Up-Pramukh. He further stated that he had neither taken oath of this office nor had he done any work in that capacity. In Annexure 3 he was asked to state as to whom he had handed over the resignation and when and also to state when the acceptance of his resignation had been communicated. In Annexure 4 the petitioner replied that he had handed over his resignation in the office within 8 or 10 days of his election. In Annexure 7 the Block Development Officer again communicated to the petitioner that the Panchayat Officer had asked him (the Block Development Officer) to inform the petitioner that he should hand over the charge of the office of Pradhan at once. It was further stated in this letter that probably the Assistant Development Officer had also sent such communication to the petitioner. 5. The petitioner has prayed that a writ of mandamus be issued restraining the opposite parties from en. forcing the orders contained in Annexures 1 and 7. Several contentions have been urged on behalf of the petitioner. 6. First of all it is contended that the petitioner had submitted his resignation before the coming into force of the provisions of Chapter 11 of which Section 7 formed part, and thus he had ceased to be an Up-Pramukh and did not incur the disqualification mentioned in sub-Sec, (2) of Section 7. 7. Secondly it is contended that he could not be deemed to have been elected as Up-Pramukh until his election had been notified under Rule 29 of the Rules made under the Act and because he had resigned his office before the notification the disqualification did not apply to him. It is not disputed that the result of the election was notified in the Gazette on the 20th of July, 1962, although the election was held on the 8th of July, 1962. The rules had come into force on the 13th of June, 1962. 8. It is not disputed that the result of the election was notified in the Gazette on the 20th of July, 1962, although the election was held on the 8th of July, 1962. The rules had come into force on the 13th of June, 1962. 8. The third contention is that even if it be believed that the petitioner had not submitted his resignation, he had acquired a vested right to hold the office of the Pradhan of the Gaon Sabha for the statutory period and the subsequently enacted provisions of the U. P. K. S. and Z. P Adhiniyam, 1961, which by implication revealed the relevant provisions of the U. P. Panchayat Raj Act, 1947, could not take away that right. In this regard reliance is placed on Section 6 (c) of the U. P. General Clauses Act, 1904. 9. The last contention is that even if the petitioner had tinder the law ceased to be the Pradhan, opposite parties Nos. 2 and 3 cannot order him to hand over charge because his office of Pradhan is governed by the U. P. Panchayat Raj Act and any authority exercising powers under the U. P. K. S. and Z. P. Adhiniyam cannot direct him to relinquish office of the Pradhan. 10. I have heard the learned counsel for the parties at considerable length. On the question of fact regarding submission of the resignation the allegation is contained in Para. 6 of the affidavit filed in support of the writ petition. It is alleged that the petitioner delivered the letter of resignation on or before the 16th of July, 1962, to Sri H. N. Sharma, the then Block Development Officer, who directed the petitioner to hand over the said letter to the Head Clerk of the office of Kshettra Samiti, Haidergarh, and the petitioner on the same date handed over the said letter to the Head Clerk of the office of the Kshettra Samiti. In paragraph 7 of the counter-affidavit of the opposite parties it was stated that no such resignation was on the office record and as such the allegations mentioned therein were denied. In paragraph 7 of the counter-affidavit of the opposite parties it was stated that no such resignation was on the office record and as such the allegations mentioned therein were denied. It is true that neither the Block Development Officer concerned nor the Head Clerk of the office filed an affidavit denying the allegations of the petitioner but the learned Standing Counsel has rightly argued that at this period of time it would be difficult for these officials to state on oath whether or not such a paper was produced or filed before than by the petitioner. The Block Development Officer and the Head Clerk of the office have to deal with several persons and several documents must have been brought before them and it is not ordinarily possible for them to remember facts after lapse of so much time. Then the conduct of the petitioner himself shows that what he states now is not correct and he has tried to develop his case in order to bring it in conformity with the law. In annexure 3 he was specifically asked to state as to when and to whom he had handed over the letter of resignation. In Annexure 4 he gave -an evasive reply. He did not mention either that he had first produced it before the Block Development Officer or that on the direction of the latter he had handed it over to the Head Clerk of the office. All that lie said in Annexure 4 was that he had handed over the resignation within 8-10 days of the election in the office." The office may consist of a number of clerks and a Head Clerk. If in fact the letter or resignation were handed over to the Head Clerk, the petitioner could have easily stated so in his reply. Then the matter of resignation was of considerable importance to him inasmuch as after the election wisdom had dawned on him that he should give up the office of Up-Pramukh in order to be qualified to hold the office of Pradhan and for this purpose he thought of resigning the office of Up-Pramukh. If he had in fact submitted resignation and had handed over the letter in the office, he would have obtained a receipt therefor but no such receipt is forthcoming. I do not, therefore, believe that the resignation was in fact submitted by the petitioner. 11. If he had in fact submitted resignation and had handed over the letter in the office, he would have obtained a receipt therefor but no such receipt is forthcoming. I do not, therefore, believe that the resignation was in fact submitted by the petitioner. 11. The fact of resignation is not, however, of any material importance. What sub-Sec. (2) of Section 7 of the U. P. K. S. and Z. P. Adhiniyam lays down is that notwithstanding anything in any other enactment the Pradhan shall cease to hold such office if he is elected Pramukh etc. The expression used is merely "elected". This expression is not defined anywhere in the Act. The procedure for the conduct of election of Pramukh is laid down in Rules 5 to 33 occurring in Chapter II of the relevant Rules made under the Adhiniyam. The procedure for conduct of election of Up-Pramukh is laid down in Chapter III. There is only one rule, viz. Rule 34, occurring in this Chapter and it lays down that Rules 3 to 33 shall mutatis mutandis apply in case of election of a senior Up-Pramukh and a junior Up-Pramukh. Rule 13 contained in Chapter II lays down that if there is only one validly nominated candidate, the Returning Officer shall forthwith declare such candidate to be duly elected to the office of Pramukh and .................. also report the result to the District Magistrate and the State Government. This rule is with regard to unopposed election. Then Rule 28 relates to election after contest. Rule 28 reads: "28. Declaration of result.- When the counting is completed and tile result of the voting has been determined, the Returning Officer shall forthwith- (a) announce the result to those present; (b) report the result to the District Magistrate and the State Government; 12. Then Rule 29 lays down that the State Government shall as soon as may be after the declaration of the result under Rule 28 notify the result in the Gazette. 13. It is not understandable why it had not been considered necessary to make provision for notification of an unopposed election while it has been considered necessary to notify in the Gazette the result of a contested election. This is an anomaly which has perhaps resulted by an over-sight of the draftsman of these rules. 13. It is not understandable why it had not been considered necessary to make provision for notification of an unopposed election while it has been considered necessary to notify in the Gazette the result of a contested election. This is an anomaly which has perhaps resulted by an over-sight of the draftsman of these rules. However, it appears that the notification of an election is not a necessary ingredient of the validity of an election. An election would be valid even though not notified. I do not find any provision in the Act or the Rules from which an inference may be drawn that an election would not be "an election" unless it is notified in the Gazette. Thus as soon as the result of an election is declared under Rule 28 the person elected would be deemed to have been duly elected and if he happens to be the Pradhan of one of the constituent Gaon Sabhas, he will incur the disqualification under sub-Sec. (2) of Section 7. 14. The learned counsel has relied on two cases: In Bhagwati Prasad v. J.K. Tandon, A.I.R. 1957 Alld. 354, the following observation was made: "The word 'election' has in connection with the process of election of political representatives in a democracy acquired two meanings: In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected." 15. In N.P. Ponnuswami v. The Returning Officer, Namakhal, A.I.R. 1952 S.C. 94 also it was held that the word 'election' connotes the entire procedure to be gone through to return a candidate to the legislature. The first case mentioned above related to election under the U. P. Panchayat Raj Act and the other case related to election under the Representation of the People Act. These decisions were founded on their particular facts. In the instant case it does not appear to me that notification of the result of the election was an essential ingredient for the validity of the election. As I have said above, an election would be an election even before it was notified under Rule 29. These decisions were founded on their particular facts. In the instant case it does not appear to me that notification of the result of the election was an essential ingredient for the validity of the election. As I have said above, an election would be an election even before it was notified under Rule 29. Thus as soon as the petitioner was elected as an Up-Pramukh, he incurred the disqualification under sub-Sec. (2) of Section 7 and he ceased to hold the office of Pradhan. 16. It was also contended by the learned counsel that all that was necessary for the petitioner to do in order to bring into effect his resignation was to submit it in the office of the Kshettra Samiti. There can be i no quarrel with this argument be l cause it is clearly laid down in sub-I Section (2) of Section 11 that the resignation of an Up-Pramukh shall take t effect on and from the date on which I the notice is received in the office of the Kshettra Samiti. If, in fact, a resignation were presented in the i office of the Kshettra Samiti, the resignation would automatically come into effect even without formal acceptance thereof. However, as I have found above, it is not proved that the resignation was actually tendered. 17. As regards the third contention of the learned counsel I do not think that the petitioner can get advantage of the provisions of Section 6 (c) of the U. P. General Clauses Act, 1904. Section 6 reads as follows: "6. Where any Uttar Pradesh act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not...................... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed." 18. The learned Counsel has contended that sub-Sec. (2) of Section 7 repealed the relevant provision of the P. Panchayat Raj Act under which the petitioner was entitled to hold the office of Pradhan for the period prescribed by the U. P. Panchayat Raj Act and so this repeal will not affect the right to hold the office of Pradhan which had vested in him. I do not agree with this contention as well. I do not agree with this contention as well. As pointed out above sub Section (2) of Section 7 lays down that if any Pradhan is elected Up-Pramukh then notwithstanding anything in any other enactment he shall cease to hold the office of Pradhan. This is a provision enacted subsequently to the U. P. Panchayat Raj Act. It cannot be deemed to have repealed any provision of the U. P. Panchayat Raj Act but only says that whatever might be -contained in any other law for the time being in force, the Pradhan shall cease to be so on his election as Up-Pramukh. No question of vested right under the U. P. Panchayat Raj Act arises; right or no right, the person shall cease to be a Pradhan. If this subsequent enactment lays down that on election as Up-Pramukh a Pradhan shall cease to be a Pradhan, Section 6(c) of the U. P. General Clauses Act will not stand in the way of the operation of the provision of Section 7(2) of the U. P. K. S. and Z. P. Adhiniyam. 19. Yet another argument advanced by the learned counsel. is that because at the time of his election as Up-Pramukh the provisions of Chapters II to XIV along with the Schedules and Rules etc. were not in force he could not incur the disqualification under Section 7(2) which is contained in Chapter II. No doubt, the provisions of Chapters II to XIV came into force after the election of the petitioner as Up-Pramukh but the disqualification became applicable as soon as Section 7 (2) was enforced. The petitioner was a Pradhan and had been elected as an Up-Pramukh, therefore under the provisions of Section 7(2) he ceased to hold the office of Pradhan as soon as this Section came into force. As said above the learned counsel has relied on the provisions of sub-Sec. (2) of Section 11 in support of his contention that his resignation came into force as soon as he tendered it in the office of the Kshettra Samiti. As said above the learned counsel has relied on the provisions of sub-Sec. (2) of Section 11 in support of his contention that his resignation came into force as soon as he tendered it in the office of the Kshettra Samiti. However, Section II also forms part of Chapter II and if according to his argument Section 7 (2) was not in force at the time of the election, Section 11(2) also could not be in force and the resignation could not be tendered and become operative under Section 11(2) at the time of its alleged tendering before the enforcement of Chapters II to XIV of the Act. 20. Now coming to the last contention it appears to me that the Block Development Officer and Assistant Block Development Officer only pointed out the legal position to the petitioner and also brought to his notice the directions of the Government and the Panchayat Officer. They cannot be deemed to have passed any orders on their own authority. They were only pointing out the legal position and the directions issued by the Government. While pointing out these facts to the petitioner they asked him to hand over charge of his office to the Up-Pradhan. They did not commit any illegality or impropriety in doing so. Annexures 1 and 7 cannot, there fore, be quashed on this ground also. 21. In the result I do not find any force in this writ petition and dismiss it. However in the circumstances of the case I make no order as to costs.