Research › Browse › Judgment

Allahabad High Court · body

1966 DIGILAW 171 (ALL)

Raj Kishore v. Sub-Divisional Officer

1966-04-11

G.C.MATHUR

body1966
JUDGMENT G. C. Mathur, J. - At an election for the office of Pradhan, Gaon Sabha, Kaundhiara, District Allahabad, held on April 12, 1963, the petitioner (Raj Kishore) was declared elected. An election petition was filed by respondent No. 2 (Sobhnath). The main ground taken in the election petition was that the nomination paper of Raj Kishore was illegally accepted as, at tire time of the filing of the nomination paper, he was disqualified under Sec. 5-A of the U.P. Panchayat Raj Act inasmuch as he was a dismissed employee of a local authority, the local authority being a co-operative society known as Sadhan Sahkari Samiti Ltd. The Sub-Divisional Officer, by his judgment dated May 28, 1965, held that the Sadhan Sahkari Samiti Ltd. was a local authority, that Raj Kishore was a peon of this co-operative society and that he had been dismissed from service. On these findings, the Sub-Divisional Officer held that Raj Kishore was disqualified for being chosen as Pradhan of the Gaon Sabha and that his nomination paper had been illegally accepted. On this ground, he allowed the election petition, set aside the election of Raj Kishore and declared Sobhnath to have been elected in his place. Against the judgment of the Sub-Divisional Officer, Meja, Raj Kishore has now filed this writ petition. 2. Learned counsel for the petitioner has raised the following two contentions before me:- 1. That a co-operative society is not a local authority and a person dismissed by a co-operative society from service is not disqualified under Sec. 5-A of the U.P. Panchayat Raj Act; and 2. That the election petition lay and was filed before the Sub-Divisional Officer, Karchhana, but the judgment was delivered by the Sub-Divisional Officer, Meja, who had no jurisdiction in the matter and as such the judgment is without jurisdiction and is liable to be quashed. 3. I will first deal with the second contention. The election petition was filed before Shri Mahipal Singh who was, at the relevant time, the Sub-Divisional Officer Karchhana. According to the counter-affidavit after the hearing of the election petition had concluded, Shri Mahipal Singh was transferred as Sub-Divisional Officer, Meja, and he delivered his judgment thereafter. If that is so, then there is no illegality in the judgment. If a case has been fully heard by an officer, he can deliver judgment even after he has been transferred. According to the counter-affidavit after the hearing of the election petition had concluded, Shri Mahipal Singh was transferred as Sub-Divisional Officer, Meja, and he delivered his judgment thereafter. If that is so, then there is no illegality in the judgment. If a case has been fully heard by an officer, he can deliver judgment even after he has been transferred. This fact that the entire hearing of the case was over before Shri Mahipal Singh was transferred to Meja has not been controverted in the rejoinder affidavit; but today Shri A. N. Bhargava has filed a supplementary affidavit that several hearings took place before Shri Mahipal Singh after he had taken over charge as Sub-Divisional Officer, Meja. If that is so, then the petitioner should have raised the objection regarding the jurisdiction of the officer before him at the time of the hearing and, since he has not done so, he cannot be allowed to raise this objection at this stage. In either case, this writ petition cannot succeed on the ground that the Sub-Divisional Officer had no jurisdiction. 4. Coming now to the main question in this case, I must proceed on the finding of fact recorded by the Sub-Divisional Officer that the petitioner (Raj Kishore) was an employee of the Sadhan Sahkari Samiti Ltd. and that he was dismissed from service for misconduct. The question is whether dismissal from service of a co-operative society is a disqualification under Sec. 5-A of the U.P. Panchayat Raj Act for being chosen as Pradhan of a Gaon Sabha. Sub-Clause (d) of Sec. 5-A,which is the relevant provision, stands thus: - "5-A. A person shall be disqualified for being chosen, nominated or appointed to, and for holding any office in the Gaon Sabha or the Gaon Panchayat, or the Niyaya Panchayat constituted under Sec. 42, if he - (a)............................ (b)............................ (c)....................... (d) has been dismissed from the service of a State Government, the Central Government or a local authority or a Niyaya Panchayat for misconduct." 5. The contention of the respondent before the Election Tribunal was that the petitioner had been dismissed from the service of a local authority, that is to say, the Sadhan Sahkari Samiti Ltd., for misconduct. (c)....................... (d) has been dismissed from the service of a State Government, the Central Government or a local authority or a Niyaya Panchayat for misconduct." 5. The contention of the respondent before the Election Tribunal was that the petitioner had been dismissed from the service of a local authority, that is to say, the Sadhan Sahkari Samiti Ltd., for misconduct. The Sub-Divisional Officer was of the view that the Sadhan Sahkari Samiti Ltd., which was a co-operative society registered under the co-operative Societies Act, was a local authority in the strict sence of the law. Shri Bhargava for the petitioner has contended that the Sub-Divisional Officer has committed a manifest error of law in holding that a co-operative society is a local authority. Local authority is defined in Sec. 4(25) of the U.P. General Clauses Act as follows: - "4 (25) - Local authority shall mean a municipal board, district board, or other authority legally entitled to, or entrusted by the State Government with the control or management of a municipal or local fund." 6. The contention of Shri Bhargava is that a co-operative society is not a local authority as defined in this provision. A co-operative society can be held to be a local authority only if the later portion of the definition is applicable to it i.e. if it is an "authority legally entitled to, or entrusted by the State Government with the control or management of a municipal or local fund." Obviously, a co-operative society is not entrusted by the State Government with the control of any fund. Therefore, the only thing that has to be seen is whether a co-operative society is an authority legally entitled to the control or management of a municipal or local fund. Shri B. Sanyal appearing for respondent No. 2 has contended that, under the Co-operative Societies Act and the rules framed thereunder, a co-operative society and its funds are under the control and supervision of the Registrar, Co-operative Societies, and the Registrar is an officer of the State Government. He is right in so far as his submission goes that the Act and the rules give powers to the Registrar of general supervision over Co-operative societies but that does not establish that the fund over which the co-operative society has control is a municipal or local fund. He is right in so far as his submission goes that the Act and the rules give powers to the Registrar of general supervision over Co-operative societies but that does not establish that the fund over which the co-operative society has control is a municipal or local fund. Shri Sanyal has cited several cases before me but none of them relates to the definition of local authority as contained in the U.P. General Clauses Act, or help in finding out the connotation of the words municipal or local fund. In Diamond Sugar Mills Ltd. v. State of Uttar Pradesh, A.I.R. 1961 S.C. 652 while considering the scope of the expression local area as used in Entry 52 of List II of the Seventh Schedule of the Constitution, the Supreme Court observed thus:- "There can be little doubt, therefore, that in using the words tax on the entity of goods into a local area for consumption, use or sale therein they wanted to express by the words local area primarily area in respect of which an octroi was leviable under item 7 of the schedule tax rules, 1920 - that is, the area administered by a local authority such as a municipality, a district Board, a local Board or a Union Board, a Panchayat or some body constituted under the law for the governance of the local affairs of any part of the State." A local authority has been understood to be a body constituted under the law for the governance of the local affairs of any part of the State. A co-operative society is not such a body. It appears to me that the expression municipal or local fund used in the definition of local authority means a public fund. It cannot be interpreted to include the fund of a co-operative society or of an incorporated company. In the definition of local authority, the use of the words or other authority after the words municipal board, district board indicates that the other authority contemplated is a body akin to a municipal board and a district board. Further, the expression service of a State Government, the Central Government or a local authority or a Niyaya Panchayat in Sec. 5-A(d) of the Panchayat Raj Act also shows that the words local authority have been used for a body exercising some governmental functions. Further, the expression service of a State Government, the Central Government or a local authority or a Niyaya Panchayat in Sec. 5-A(d) of the Panchayat Raj Act also shows that the words local authority have been used for a body exercising some governmental functions. Local authority would include a town area committee, a notified area committee, a gaon samaj and the like but not a co-operative society which does not exercise any such functions. I, therefore, hold that a co-operative society is not a local authority, as defined in Sec. 4 (25) of the U.P. General Clauses Act. In this view, the dismissal of the petitioner by the Sadhan Sahkari Samiti Ltd., even for misconduct, did not disqualify him from standing for election for the office of Pradhan of Gaon Sabha, Kaundhiara. 7. In the result, the writ petition is allowed and the judgment and order of the Sub-Divisional Officer, Meja, dated May 28, 1965, are quashed. In the circumstances of this case, there will be no order as to costs. Petition allowed.