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1968 DIGILAW 139 (MP)

Manoharlal Gupta v. Gangaram

1968-09-06

G.P.Singh, P.V.Dixit

body1968
ORDER Singh, J. 1. The petitioner was elected a Panch of the Gram Panchayat, Bahoribund in the elections held in 1965. The petitioner's election was challenged by an election petition filed by the respondent No.1. By an order passed on 3rd May, 1968 the election petition was allowed by the Sub-Divisional Officer, Sihora on the sole ground that the petitioner was not eligible to be a Panch because he was a Patel and thus in the service of the State Government. The petitioner by this petition under Art.226 of the Constitution prays for the quashing of the order of the Sub-Divisional Officer. 2. Shri Jain learned counsel for the petitioner does not dispute that the petitioner was appointed a Patel under the Madhya Pradesh Land Revenue Code, 1959 but he contends that Patel is not a person who can be said to be in the service of the State Government and, therefore, the petitioner was not disqualified for being chosen as a Panch. 3. Section 17 of the Madhya Pradesh Panchayat Act, 1962 enumerates the disqualifications for being a Panch, Surpanch or Up-Sarpanch of Gram Panchayat. The section so far as it is relevant for the present case reads as follows:- Section 17 "(1) No person shall be eligible to be a Panch, Sarpanch or an Up-Sarpanch of a Gram Panchayat who- (d) holds an office of profit under the Panchayat or is in the service of any other Local Authority or the Central or State Government." 4. The only point to be considered in this petition is whether a person appointed as a Patel under the Land Revenue Code is a person in the service of the State Government within the meaning of these words as they occur in section 17 (1) (d) of the Panchayat Act. 5. The words "in the service of the Government" impart a relationship of master and servant. These words were construed and distinguished from the words "serving under the Government" by the Supreme Court in K.C. Deo Bhani Vs. 5. The words "in the service of the Government" impart a relationship of master and servant. These words were construed and distinguished from the words "serving under the Government" by the Supreme Court in K.C. Deo Bhani Vs. Raghunath Mishra [ AIR 1959 SC 589 ], where their Lordships observed as follows: "In our opinion, there is a distinction between 'serving under the Government' and "in the service of the Government" because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant." 6. The existence of the relationship of master and servant in general imports selection and appointment by the master, payment of wages or remuneration by him, power in him of termination of employment and his right to control the manner of doing the work. But all these factors need not be present in every case and normally the right of the master to control the manner of doing the work and his power of supervision and control are strongly indicative that the relationship of master and servant exists. State of U.P. Vs. A.N. Singh [ AIR 1965 SC 360 at P. 363]; D.M. Sahib & Sons Vs. Union of U.B, Workers [ AIR 1966 SC 370 at. P. 373, 374] and I.T. Commissioner U.P. Vs. Manmohandas [ AIR 1966 SC 798 at P. 802, 803]. In A.N. Singh's case [ AIR 1965 SC 360 at P. 363] the law on the point was stated as follows:- "Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But coexistence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But coexistence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant." 7. The question whether there exists a relationship of master and servant between the State Government and a Patel appointed under the Land Revenue Code brings us to the consideration of the provisions of the Code and Rules made thereunder which relate to Patels. Sections 222 to 229 of the Code deal with Patels. These sections occur in Chapter XVII which bears the heading "village officers." Subject to Rules, the Collector may appoint for each village or group of villages one or more Patels (Sec. 222). The remuneration of Patels is to be fixed by the Collector in accordance with the Rules (section 223) and subject to Rules he has also the authority to remove any Patel (section 226). The Rules framed go to show that before a Patel is appointed a proclamation is issued inviting applications. In case the number of applicants exceeds the vacancies, the wishes of the recorded Bhumiswamis of the village are ascertained by votes. The Collector as far as may select for appointment as Patel that person who secures the largest No. of votes from the Bhumiswamis. It is to be noted that the Bhumiswamis have got a voice in giving their choice for the appointment, but the Collector is not bound to accept their choice and the final selection and appointment are made by him. The person selected for appointment executes a surety bound for an amount equal to twice or thrice the amount of land revenue assessed on the village within 15 days from the date of intimation to him of his selection before his appointment is made. The person selected for appointment executes a surety bound for an amount equal to twice or thrice the amount of land revenue assessed on the village within 15 days from the date of intimation to him of his selection before his appointment is made. On appointment, every Patel excutes an agreement within 30 days of his appointment failing which the Collector may cancel the appointment. In the agreement, the Patel stipulates that he shall observe all the Rules for the management of the village prescribed from time to time; that he shall perform the duties, attached to the office under the Code and the Rules made thereunder; that he binds himself to collect the land revenue from the Bhumiswamis and lessees and also any other dues ordered by the State Government to be recoverable through Patel and pay regularly into the treasury in accordance with the instructions as may be issued by the State Government in that behalf from time to time and maintain the records and accounts as may be prescribed by the Government. The Patel's remuneration is provided in Rule 17 which is to be fixed by the Collector in accordance with the rates specified in the table given in the Rule. The table provides that the Patel is to get a certain percentage on the revenue collected by him, provided that the annual remuneration shall not be less than Rs.36/-. The remuneration is paid annually from the Tahsil Treasury once in a year. As regards termination, the Collector at any time as provided in Rule 22 can terminate the service of a Patel without assigning any reason after giving a notice of not less than three months expiring with the agricultural year. He can also remove a Patel at any time on the grounds mentioned in Rule 19. The grounds mentioned pertain to the character and fitness, disobedience, wilful breach of any Rule or in competency or any other reasons which may be considered just and sufficient. The duties of the Patel are prescribed in Sec. 224 of the Code and they are as follows:- Sec. 224. The grounds mentioned pertain to the character and fitness, disobedience, wilful breach of any Rule or in competency or any other reasons which may be considered just and sufficient. The duties of the Patel are prescribed in Sec. 224 of the Code and they are as follows:- Sec. 224. "It shall be duty of every Patel- (a) to collect and pay into the Government treasury land revenue and cesses payable through him and such other Government dues ordered to be collected by him; (b) to furnish reports regarding the state of his village at such places and times as the Collector may fix in this behalf; (c) as far as possible to prevent encroachments on waste land, public paths, and roadways in the village; (d) to preserve such stations and boundary marks erected in his village by surveyors in the service of Government as may be made over to his care and to report any damage caused to such marks; (e) subject to Rules made under Sec. 258, to keep the village in good sanitary condition; (f) to prevent unauthorised cutting of wood or unauthorised removal of any minerals or other properties belonging to the State Government; (g) to control and superintend the Kotwar to report his death or absence from his duty and to take such steps as may be necessary to compel him to perform his duties; and (h) to perform such other duties as may be prescribed by Rules made under Sec. 253." Apart from the aforesaid duties the Patel has multifarious other duties which are prescribed by Rule 18. In general they deal with the assistant to be rendered to the Government and its officers in the village administration. 8. In general they deal with the assistant to be rendered to the Government and its officers in the village administration. 8. Considering the provisions in the Act and the Rules relating to Patels, the position briefly stated is, the power of appointment and removal of Patel is vested in the Collector; his remuneration is paid from the Government treasury on the basis of a certain percentage of the revenue collected by him; his main function is collection of land revenue but along with that be assists the State Government and its officers in the administration of the village; he undertakes to perform the duties imposed on him by the Act and Rules & to collect the land revenue and other dues and to deposit the same in the treasury in accordance with the instructions which may be issued by the State Government in that behalf from time to time and further he also undertakes to maintain the records and accounts as may be prescribed by the Government. Having regard to all these factors, in our opinion, the relationship of master and servant exists in between the State Government and a Patel. A person who is a Patel is therefore in the service of the State Government and is disqualified for being elected as a Panch. 9. Our conclusions is strongly supported by the decision of the Supreme Court in State of Assam v. Kanak Chandra [ AIR 1967 SC 884 ], where it was held that a Mauzadar appointed under Assam Land Revenue Regulation, 1886 is a servant of the State Government. The position of Patels under the Madhya Pradesh Land Revenue Code is quite similar to that of Mauzadars under the Assam Regulation. A Mauzadar, like a Patel, can be appointed and dismissed by the Deputy Commissioner, has to execute an agreement in the prescribed form on his appointment, has to furnish security, has as his main duty the collection of land revenue and other State dues, has many other miscellaneous functions connected with the village administration and is paid as his remuneration a commission on his collections. Reference in this connection may also be made to M. Ramappa v. Sangappa [ AIR 1958 SC 937 ] where it was held that Patels and Sbanbhogs under Mysore Village Offices Act are holders of offices under the Government. 10. Reference in this connection may also be made to M. Ramappa v. Sangappa [ AIR 1958 SC 937 ] where it was held that Patels and Sbanbhogs under Mysore Village Offices Act are holders of offices under the Government. 10. In our opinion, the Sub-Divisional Officer came to a right conclusion that the petitioner being a Patel was disqualified to contest the election of Panch and that his election was void. 11. The petition fails and is dismissed with costs of respondent No. l. Counsel's fee Rs.100. The outstanding amount of security will be refunded to the petitioner.