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1974 DIGILAW 315 (ALL)

Badiuzzaman Khan v. Assistant Development Officer

1974-08-06

H.N.SETH, SATISH CHANDRA

body1974
JUDGMENT Satish Chandra, J. - The appellant was a member of the Gaon Sabha, Sikandarabad, in the district of Moradabad. He was in May, 1972, elected as Pradhan of this Gaon Sabha. Gaon Sabha, Sikandrabad was one of the constituents of the Kshettra Samiti known as Vikas Khand, Chhajlait. As the Pradhan of one of the constituent Gaon Sabhas, the appellant became a member of the Kshettra Samiti- vide Sec. 6 (1) (i) of the Kshettra Samitis and Zila Prishads Adhiniyam, 1961. At the election held in February, 1973, the appellant was elected as the Senior Up-pramukh of the Kshettra Samiti. 2. It appears that on 19th December, 1972 the Director of Panchayat Raj issued a circular intimating that if a Pramukh is elected as a Pradhan, then he cannot be prevented from holding both the offices. Subsequently on 2nd April, 1973, the Director issued another circular clarifying that the circular of the 19th December, 1972, was issued at a time when the term of the ten existing Kshettra Samitis was coming to an end, and it was considered that those Pramukhs and Up-pramukhs whose terms were coming to an end could, by being elected as Pradhans of the Gaon Sabhas, be easily elected to the posts of Pramukhs and Up-pramukhs, and so till their fresh election as Pramukhs or Up-pramukhs, they could continue to hold their old posts of Pramukhs or Up-pra-mukhs along with the posts of Pradhans; but under Sec. 7 (2) of the Kshettra Samitis and Zila Parishads Adhiniyam any person who was elected as Pramukh or Up-pramukh automatically vacated the office of the Pradhan. It directed that the posts of Pradhans occupied by those persons who had been elected as Pramukhs or Up-pramukhs be deemed vacated and should be filled up by fresh elections. In accordance with this directive, the Block Development Officer required the appellant to" submit his resignation from the post of Pradhan. The appellant refused to do so, and challenged the action of the respondents by filing a writ petition in this Court. 3. In accordance with this directive, the Block Development Officer required the appellant to" submit his resignation from the post of Pradhan. The appellant refused to do so, and challenged the action of the respondents by filing a writ petition in this Court. 3. In support of the writ petition it was urged that the provisions of the Kshettra Samitis and Zila Parishads Adhiniyam required that a Pradhan who is elected as Pramukh or Up-pramukh shall be deemed to have vacated his office of Pradhan, but there was no provision that if an existing Pramukh or Up-pramukh was subsequently elected as a Pradhan, he would vacate his office of Pramukh or Up-pramukh or of Pradhan. The situation and position of the office of Pradhan on the one hand and that of Pramukh or Up-pramukh on the other being similarly situated qua each other, the provisions in Sec. 7 (2) requiring the Pradhan to vacate his office after being elected as the Pramukh or Up-pramukh was violative of Article 14 of the Constitution and void. It was prayed that the respondents be directed not to interfere with the appellants working as the Pradhan of the Gaon Sabha. 4. The learned single Judge, who heard the writ petition held that the U. P. Panchayat Raj Act, 1947, and Kshettra Samitis and Zila Parishads Adhiniyam, 1961, established a three-tier system of local self-government for administering rural areas of the State. The Gaon Sabhas constituted under the Panchayat Raj Act functioned at the village level, while the Kshettra Samitis constituted under the Adhiniyam administered a group of Gaon Sabhas. At the apex, they constituted a Zila Parishad. These bodies were required to work in an integrated manner to ensure the development of rural areas. The learned Judge then held that the legislature took a policy decision that two offices should not be held by a single person in the same body and for that purpose it considered necessary to make specific provisions to that effect in the two Acts. For instance, the provisions of Sec. 11-D of the U. P. Panchayat Raj Act and of Secs. 7 (2) and 19(6) of the Adhiniyam were cited. These provisions made it clear that the legislature intended that no person shall simultaneously hold more than one office. For instance, the provisions of Sec. 11-D of the U. P. Panchayat Raj Act and of Secs. 7 (2) and 19(6) of the Adhiniyam were cited. These provisions made it clear that the legislature intended that no person shall simultaneously hold more than one office. The learned Judge repelled the submission that under Sec. 7 (2) there was no prohibition against a person holding both the offices of Pramukh or Up-pramukh and Pradhan if he is elected as Pradhan subsequent to his election as Pramukh or Up-pramukh. It was held that this interpretation of Sec. 7 (2) defeats the very purpose of the legislative intent. Sec. 7 (2) leaves no room for any doubt that it places a complete prohibition against holding of two offices simultaneously. If a Pramukh or Up-pramukh is subsequently elected as Pradhan of a Gaon Sabha, his election as Pradhan will be of no effect, as he is not entitled to hold both the offices. In view of this construction of Sec, 7 (2) it was held that the provision does not work in a discriminatory fashion so as to violate Article 14 of the Constitution 5. Referring to the circular of the director dated 19th December, 1972, the learned Judge held that an administrative interpretation of Sec. 7(2) cannot be taken into account by the court in considering a statutory provision. On this view the writ petition was dismissed. 6. Sec. 7 of the Adhiniyam reads :- "7. Pramukh and Up-pramukh of Kshettra Samiti and their election - (1) Every Kshettra Samiti shall have- (a) a Pramukh who shall be elected by the members mentioned in sub-secs. (1) and (2) of Sec. 6 out of persons whose names are registered as electors in the Assembly rolls from any area included in the the Khand, and (b) one senior-Up-pramukh and one junior Up-pramukh to be elected by members mentioned in sub-secs. (1) and (2) of Sec. 6 out of themselves. (1-1) Notwithstanding anything in sub-sec. (1), the elections to the office of Pramukh and Up-pramukh may be held notwithstanding any vacancy in the membership of the Kshettra Samiti or the failure to choose any representative under clause (iii) of sub-sec. (1) of Sec. 6 or the failure to co-opt any member under sub-sec. (2) of the section. (1-1) Notwithstanding anything in sub-sec. (1), the elections to the office of Pramukh and Up-pramukh may be held notwithstanding any vacancy in the membership of the Kshettra Samiti or the failure to choose any representative under clause (iii) of sub-sec. (1) of Sec. 6 or the failure to co-opt any member under sub-sec. (2) of the section. The aforesaid election shall be held by secret ballot and in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of Pramukh and Up-pramukhs : Provided that no member of Parliament or the State Legislature nor any person who is for the time being the Chairman of a Town Area Committee or President of a Notified Area Committee or whose age is less than thirty years shall be elected as Pramukh or Up-pramukh. (2) If any Pradhan out of the Pradhans of the constituent Gaon Sabhas is elected Pramukh or Up-pramukh then notwithstanding anything in any other enactment he shall cease to hold the office of Pradhan but shall continue ex-officio member of the Kshettra Samiti in addition to the members mentioned in Sec. 6 and the Pradhan who fills the seat vacated by him shall be a member of the Kshettra Samiti............." 7. The scheme of Sec. 7 is, firstly, that some specified office holders were disqualified to be elected to another named office. Such offices are mentioned in the proviso to Sec. 7 (1). In the next place, by sub-sec. (2) the previously held office of Pradhan is fortified if the same person is elected Pramukh or Up-pramukh. The two phrases, namely, "if any Pradhan.... is elected Pramukh or Up-pramukh," and "then" he shall cease to hold the office of Pradhan, cannot but lead to the only conclusion that a person ceases to hold the office of Pradhan if he held it prior to his election as Pramukh or Up-pramukh, and then he is elected as Pramukh or Up-pramukh. The two phrases exclude the situation where a Pramukh or Up-pramukh is later elected as Pradhan, from the purview of Sec. 7 (2). If at all the intention was that on election to an office, the previously held office is vacated. The two phrases exclude the situation where a Pramukh or Up-pramukh is later elected as Pradhan, from the purview of Sec. 7 (2). If at all the intention was that on election to an office, the previously held office is vacated. On no known principle of interpretation can this be extended to mean that in the converse case, namely, a Pramukh or Up-pramukh being later elected as Pradhan, the subsequently acquired office of Pradhan will be deemed vacant. If the Legislature intended this, it would have disqualified a Pramukh or Up-pramukh from being elected as Pradhan by, for instance, making a suitable provision in Sec. 11-D of the U. P-Panchayat Raj Act, which prohibits the holding of the mentioned offices at the same time. 8. In this connection reliance was placed upon Kunj Behari v. Anu Sachiv, 1972 A.L.J. 197, in support of the view that a Pramukh, on being subsequently elected as Pradhan was to vacate the office of Pradhan under Sec. 7 (2) of the Adhiniyam. In our opinion that decision does not lay down any such provision. In that case the appellant was elected as Pradhan, but his election was set aside by the Election Tribunal, and another candidate was declared elected Pradhan. The originally elected Pradhan filed a writ petition which failed. He then filed a Special Appeal, which succeeded. The Tribunals order was quashed and the appellants original election was recognised as valid. The Division Bench held that when the Special Appeal was allowed and the order of the Election Tribunal quashed, the result was that in law the appellant was recognised to have been validly elected as the Pradhan and that situation continued all along. In the eye of law the appellant was the duly elected Pradhan of the Gaon Sabha at all relevant times. 9. Subsequent to his original election as Pradhan the appellant in that case was elected as a Junior Up-pramukh of the Kshettra Samiti. The Bench held that in view of Sec. 7 (2) the appellant vacated the office of Pradhan. In the eye of law the appellant was the duly elected Pradhan of the Gaon Sabha at all relevant times. 9. Subsequent to his original election as Pradhan the appellant in that case was elected as a Junior Up-pramukh of the Kshettra Samiti. The Bench held that in view of Sec. 7 (2) the appellant vacated the office of Pradhan. The observation that the intention behind Sec. 7 (2) was that the same person should not hold the offices of Pradhan of a Gaon Sabha and also of Pramukh or Up-pramukh has to be read in this light and specially in the context of the immediately succeeding sentence, namely, "It expressly provides that when a Pradhan is elected as a Pramukh or Up-pramukh he shall cease to hold the office of Pradhan." There is nothing in this decision which supports the view that if a Pramukh or Up-pramukh is subsequently elected as Pradhan he shall cease to hold the office of Pradhan. 10. We are unable to uphold the finding that Sec. 7 (2) requires as existing Pramukh or Up-pramukh to vacate the office of Pradhan to which he may be elected subsequently. 11. The position thus is that under the Kshettra Samitis and Zila Parishads Adhiniyam an elected Pradhan ceases to hold office if he is subsequently elected as Pramukh or Up-pramukh of the Kshettra Samiti, but the converse is not true. A person who holds the office of Pramukh oft Up-pramukh is neither disqualified from being elected as Pradhan of one of constituent Gaon Sabhas of the same Kshetra Samiti, nor is he required to vacate the office of the Pradhan if he is elected to that office while holding the office of Pramukh or Up-pramukh. 12. Let us now examine the point relating to the violation of Article 14 of the Constitution. 13. For the appellant it was urged that the legislature having placed the office of Pradhan on the one hand and of the Pramukh or Up-pramukh on the other in the same group, Sec. 7 (2) was a piece of legislation which singled out an existing Pradhan for hostile treatment in the matter of prohibiting the holding of both the offices of Pradhan and Pramukh or Up-pramukh simultaneously. It was argued that irrespective of any factual difference in the functioning of the offices of Pradhan and Pramukh or Up-pramukh, the legislature has placed them both in the same group by providing that a Pradhan, if he is elected as a Pramukh or Up-pramukh shall cease to hold the office of Pradhan. Having classified these posts in one group-the omission to provide for an existing Pramukh or Up-pramukh vacating either these offices or the office of Pradhan in cases where he is subsequently elected as a Pradhan was resultant in singling out an existing Pradhan for hostile and discriminatory treatment. 14. In respect of Article 14, the following propositions can by now be treated as well-settled:- (a) Article 14 of the Constitution forbids class legislation but does not forbid classification-R.K. Dalmia v. Justice S.R. Tendolkar, 1959 S.C.R. 279 at p. 296. (b) In permissible classification mathematical nicety and perfect equality are not required State of Bombay v. F.N. Bulsara, 1951 S.C.R. 682 at p. 709, and State of West Bengal v. Anwar Ali Sarkar, 1962 S.C.R. 284 at p. 349. (c) Classification may be founded on different bases, namely geographical or according to objects or occupations or the like-Dalmia's case at p. 297. (d) It must be presumed that the legislature understands and correctly appreciates the needs of its own people that its laws are directed to problems made manifest by experience and that its discrimination's are based on adequate grounds - Dalmia's case at p. 297 : proposition (c). (e) The legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest-Dalmia's case at p. 297. (f) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there is a clear transgression of the constitutional principles (that is, the provisions of the Constitution) - Dalmia's case, proposition (b) at p. 297- (g) In order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived- Dalmias case, proposition (d). 15. 15. In order to be a Pradhan a person has to be on the electoral roll of the State Legislature, and so he is qualified to be elected as a Pramukh. As Pradhan he is a member of the Kshettra Samiti and is one of the voters who elect a Pramukh or Up-pramukh. It is common knowledge that Pradhans usually seek election to the office of Pramukh or Up-pramukh. The present and the-companion appeals illustrate this position. In each of these cases, an existing Pradhan sought and was elected Up-Pramukh. The scheme of legislation unfolded in the Kshettra Samitis and Zila Parishads Adhiniyam was that the office of Pradhan and that of Pramukh or Up-pramukh should not be held by the same person. The need to provide against this contingency was obviously clear in the case of an existing Pradhan, because in such cases it was a fact that they sought and often became elected as Pramukh or Up-pramukhs. 16. In order to sustain the charge of hostile discrimination in relation to the converse situation it was incumbent upon the appellants in this and the companion appeals to have alleged and established that the existing Pramukhs or Up-pramukhs also often sought and were elected to the office of Pradhan. But the appellants have not adduced any material to establish this fact. The argument has, with respect, been in the air. In paragraph 15 of the petition it was stated that "in view of the aforesaid legal position the petitioner has been advised that he is not disqualified from seeking election to the office of Pradhan of Gaon Sabha." There is no allegation, much less proof, that there have been frequent cases where existing Pramukhs and Up-pramukhs have sought and been elected to the office of Pradhan, even though they had sufficient time to continue as Pramukhs or Up-pramukhs after they were elected as Pradhans. 17. On the other hand, the circular letter of the Director of Panchayat Raj dated 2nd April, 1973, shows that the idea in not prohibiting the existing Pramukhs or Up-pramukhs from being elected as Pradhans was impelled by the fact that an existing Pramukh or Up-pramukh was likely to seek election to the office of Pradhan near about the time when his tenure as Pramukh or Up-pramukh was about to end. If at such a time he became a Pradhan he became qualified to be a member of the Kshettra Samiti and so be an elector to the office of Pramukh or Up-pramukh at the time when the election to that office was held next. It is thus clear that the converse case was likely to appear rarely and mostly at the time when the term of the existing Pramukhs or Up-pramukhs was coming to an end. 18. This assessment of the prevailing situation has not been controverted by the appellants in this or the companion appeals in their writ petition. The appellants have nowhere doubted the correctness of the view expressed by the Director. They have not said a word against it. 19. It is thus apparent that the converse case stands on a far different footing; and the situation in which the converse case may become true is likely to occur rarely. That presumably was the reason why the State Legislature did not think it worthwhile or wise to prohibit the existing Pramukhs or Up-pramukhs from seeking election to, or continuing to hold the office of Pradhan even though they were holding the post of Pramukh or Up-pramukh. 20. In this view the conclusion is inescapable and inevitable that the presumption that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problem made manifest by experience and that its restrictions are confined to those cases where the need is deemed clearest has not been dispelled by the appellant. The attack on Sec. 7 (2) on grounds of invidious and hostile discrimination is unsustainable. 21. In the result the appeal fails and is accordingly dismissed with costs.