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1997 DIGILAW 317 (HP)

SHIV LAL SAWANT v. S. D. O. (C) THEOG

1997-08-01

M.SRINIVASAN

body1997
JUDGMENT M.Srinivasan, C.J. (Oral): The third respondent was elected as Pradhan of Gram Panchayat Darkoti, Teh. Kothai, in the election held on 22.12.1995. The result was declared on the same day. On 5.1,1996 the respondent was administered oath of office by the Chief Minister along with several other Pradhans who were elected in that period in the presence of about 10,000 persons. The said respondent started functioning as Pradhan of the Gram Panchayat. The 1st meeting of the Panchayat was held on 23.1.1996, but a day before that the petitioner herein filed a petition under Section 163 of the H.P. Panchayati Raj Act (hereinafter referred to as the Act) before the Sub-Divisional Officer (Civil), Theog, That was taken on file as case No.3/1996. The S.D.O. (C) held that the petition was pre-mature as there was no publication of the result in the gazette, and Section 163 prescribed that a petition should be filed within 30 days of the publication of the result. That order was challenged by the petitioner before the Deputy Commissioner, Shimla in case No.8/1996. By order dated 2.4.1997 the Deputy Commissioner confirmed the order of Sub Divisional Officer. Aggrieved thereby the petitioner has preferred this petition under Article 227 of the Constitution of India. 2. Section 163(1) of the Act says that any elector of a Panchayat may on furnishing the prescribed security in the prescribed manner, present within 30 days of the publication of the result, on one or more of the grounds, specified in sub-section (1) of Section 175. The expression publication used in Section 163 has not been defined in the Act; nor there is a definition in the Himachal Pradesh General Clauses Act. The said expression came up for consideration before the Supreme Court in State of Madhya Pradesh and another vs. Ram Raghubir Prasad Agarwal and others, AIR !979 SC 888. The question arose under the M.P. Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam (13 of 1973). Under the relevant provision, the syllabus was to be published by the Government before the prescription of the text books. The contention in that case was that there was no publication of the syllabus as required by the Section and therefore the prescription of the text books was not binding. Under the relevant provision, the syllabus was to be published by the Government before the prescription of the text books. The contention in that case was that there was no publication of the syllabus as required by the Section and therefore the prescription of the text books was not binding. Dealing with that contention the Supreme Court considered the meaning of the word publication The following passage in the judgment of the Supreme Court is instructive:- "21. Now we move on to S.3 to verify what flaws vitiate the laying down of syllabi. In this case if we predicate the existence of syllabus the next ingredient is its publication" in such a manner as may be prescribed". Publication of the syllabus is thus essential under S.3 and when confronted by this requirement, Sh.A.K. Sen, counsel for the State, sought to construed that expression to mean communication by the Board to the Government or other concerned authorities. To publish, according to him is to make known to those concerned, On the contrary. Shri Upadhyaya, counsel for the respondent argued that to publish" was more than to communicate to the Government Departments and really meant making known to the community or the concerned section of the community. Contextually speaking, we are satisfied that "publication" means more than mere communication to concerned officials or Departments. To publish a news item is to make known to people in general "an advising of the public in general on making known of something the public for a purpose " (Blacks Legal Dictionary, 1386). In our view, the purpose of S.3 animates the meaning of the expression "publish". Publication is the act of publishing anything; offering ii to public notice, or rendering it accessible to public scrutiny..... an advising of the public: a making known of something : them for a purpose." Logoma chic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the syllabi it must publish the same so that when the stage of prescribing text-books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text-books from the private market or complied under S.5 by the State Government itself. In our view, therefore, Publication to the educational world is the connotation of the expression. Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom." 3. Thus, the court opined in that case that publication was to inform, the concerned people and in that case the information was to the student and teaching community. 4. In the Act, Section 163(1) alone refers to publication of the result. Section 126 provides that the name of every office bearer of a Panchayat whether or not chosen by direct election shall be published by the prescribed authority in the manner as may be prescribed. Section 127 provides for oath or affirmation of allegiance. Under Sub-Section (1) of Section 127 no elected office bearer of a Panchayat shall enter upon his office, until he has, in the manner prescribed, taken oath or made affirmation of his allegiance in the form specified in Schedule-V. Section 79 of the Act provides that after the declaration of result of election of the elected members of the Panchayat Samtti in the prescribed manner the Deputy Commissioner concerned or any gazetted officer appointed by him shall as soon as possible but not later than one week of such declaration call under his President ship a meeting of all elected members for the purpose of oath or affirmation of allegiance under Section 127. 5. A notification has been issued by the Government of Himachal Pradesh on 22.12.1995 As per that notification the Deputy Commissioner of the concerned District shall be the prescribed authority under Section 123 to whom a person, elected’ to more than one offices in a Panchayat shall within 15 days from the date of the declaration of the result of election, give in writing about holding one of the offices of his choice. The same notification provides that under Section 126, the Deputy Commissioner shall notify the election results of every officer bearer of the Panchayat whether or not chosen by direct election, immediately after the declaration of results. It is further stated that the results will be published in the official gazette and will also be displayed on the notice boards of the Panchayats for the information of the general public. It is further stated that the results will be published in the official gazette and will also be displayed on the notice boards of the Panchayats for the information of the general public. Thus, under the said notification dated 22.12.1 ^95, two modes of publication are contemplated: one by publication in. the gazette and the other by displaying in the notice boards of the Panchayat intended for the information of the general public. The same notification also provides that under Section 127(1) for the purpose of administering the oath or affirmation of allegiance to Pradhans etc. the S.D.O.(C) of the concerned area shall convene a meeting of the Pradhans of the area for administering the oath. 6. As stated already, in the present case the results of the election were declared on 22.12.1995 itself and the oath was administered to the 3rd respondent herein on 5.1.1996. There can be no doubt whatever that from 5.1.1996 the third respondent was functioning as Pradhan. It is stated that the period of office is five years from the date of first meeting under Section 12X. The first meeting of the Panchayat shall be held on such date as the State Government may fix by general or special order under Sub- section (2) of the said Section. The office bearer of the Panchayat shall hold office for five years from the date of the first meeting, In this case the first meeting was held on 23.1.1996, and there from the 3rd respondent was entitled to hold office for a period of five years. 7. In such a situation a combined reading of all the sections referred to above shows clearly that what is prescribed in Section 163 is only a final limit of time for presentation of an election petition. When the Section says within 30 days of the publication of the result it only a final limit of time for presentation of an election petition. When the Section says within 30 I days of the publication of the result it only means that there cannot be at petition beyond that period. In fact the S.D.O. has in his order referred to Oxford Advanced Learners Dictionary for the meaning of the word within and pointed out that the meaning is inside and not beyond". That itself shows that the outer limit has been prescribed by Section 163. In fact the S.D.O. has in his order referred to Oxford Advanced Learners Dictionary for the meaning of the word within and pointed out that the meaning is inside and not beyond". That itself shows that the outer limit has been prescribed by Section 163. When the Act contemplates immediate action after the election is completed by declaration of results and prescribing a time limit for issue of notice under Section 79 for taking oath and for holding the first meeting after the taking of oath, it cannot be said that the person elected can take office only after the publication of the result in the gazette. If for the purpose of election petition the petitioner has to wait till the publication of the result in the gazette, then it will be meaningless to say that the person whose election is challenged can hold the office prior to that date. When there is no provision in the Act lo the effect that the person who is elected shall hold the office only from the date of publication of the result in the gazetted it cannot be said that election petition challenging his election can be filed only after the said publication of the result in the gazette. 8. As pointed out already, the publication could also be by display on the notice board of the Panchayat. In the present case, there is no material on record to show whether the display was made on notice board on any particular day or not. But it can be reasonably inferred that the display of result was made soon after the declaration of the result on the notice board. However, it is not necessary to rest my conclusion on such an inference but I would prefer to hold that what is prescribed in Section 163 is only the outer limit and the petition cannot be dismissed as ore-mature even after the person who is declared elected has taken oath and assumed office. 9. Learned counsel for the third respondent places reliance on the judgment of the Assam High Court in Sporsomanick Siem vs. Rokendro AIR 1965 Assam and Nagaland 83. 9. Learned counsel for the third respondent places reliance on the judgment of the Assam High Court in Sporsomanick Siem vs. Rokendro AIR 1965 Assam and Nagaland 83. Section 5 of United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chief and Headmen) Act (1959;, provided for referring a dispute Connected with the election of a chief Under that Section such a reference should be made within 30 days after the publication of the re.«ult of the election by the party or parties concerned to the Executive Committee for decision. The petitioner in that case filed a petition for issue of a writ of mandamus contending that there was no publication of the result of the election in the gazette and prayed for a direction to the respondents to make such s publication so that the dispute raised by him could be referred to the Executive Committee. The contention on the other side was that there was no necessity for publication in the official gazette and if the result had been given due publicity and chapattis concerned knew of the result. the requirement of-the Section was complied with. It was pointed out by the Division Bench on the facts of the case that there was nothing on the record to show that the result was published in any manner. The observed: "The mere assertion that the petitioner had knowledge of the result does not satisfy (he requirement of Section 5. The word publication" necessarily implies some act on the party of the authorities and the mere knowledge of the petitioner cannot be regarded as publication by the authorities concerned." On that view the Division Bench issued a mandamus to the respondents to publish" the result of election as quickly ,as possible. 10. This decision far-from helping the third respondent is only in favour of the petitioner herein. The passage extracted above shows that the publication only means some act on the part of the authorities by which the general public could be notified of the result of the election. In the present case it is not in dispute that on 5.1.1996 oath was administered by the Chief Minister of the State to the 3rd respondent in the presence of a gathering consisting of about 10,000 persons or more. In the present case it is not in dispute that on 5.1.1996 oath was administered by the Chief Minister of the State to the 3rd respondent in the presence of a gathering consisting of about 10,000 persons or more. There is no doubt whatever that the general public was made aware of the result of the election by such administration of oath. Thereby there was a publication of the result within the meaning of Section 163(1) of the Act. 11. In the circumstances, the dismissal of the petitioners election petition on the ground that it was pre-mature is un-sustainable. The orders of the Deputy Commissioner, Shimla and the Sub Divisional Officer (C) Theog are quashed. The case No.3/96 is remitted back to the file of S.D.O.(C) Theog. The said S.D.O. shall dispose of the said petition on merits on or before 31.1.1998. This petition is accordingly allowed. There will be no order as to costs. Appeal allowed