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Bhotey Vs. the Collector, Dist. Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 109 of 1970
Judge
Reported inAIR1971MP207
ActsUttar Pradesh Panchayat Raj Act, 1947 - Sections 19(2) and 21; Uttar Pradesh Panchayat Raj Rules - Rules 78 and 79
AppellantBhotey
RespondentThe Collector, Dist. Gwalior and ors.
Appellant AdvocateR.K. Sharma, Adv.
Respondent AdvocateR.S. Bajpai, Addl Govt. Adv. and ;A.B. Mishra, Adv.
DispositionPetition dismissed
Cases ReferredIn Mahendra Singh v. The Collector
Excerpt:
- .....a petition under article 266 of the constitution challenging the election of the sarpanch of the gram panchayat, bhalka, district gwalior. after the election of the panchas, a meeting was called for the election of the sarpanch. that meeting was held on august 5, 1970. sughar singh (respondent no. 3) was declared elected. the contention in this petition is that the election is void for various reasons.2. the petitioner's contention is that the meeting to hold the election of the sarpanch was not called by the competent authority. relying on sections 29 and 30 of the panchayats act and the rules made thereunder it is contended that every meeting of the gram panchayat must be called by the sarpanch and since the meeting for the election of the sarpanch under section 21 of the act is a.....
Judgment:

Shiv Dayal, J.

1. This is a petition under Article 266 of the Constitution challenging the election of the Sarpanch of the Gram Panchayat, Bhalka, district Gwalior. After the election of the Panchas, a meeting was called for the election of the Sarpanch. That meeting was held on August 5, 1970. Sughar Singh (respondent No. 3) was declared elected. The contention in this petition is that the election is void for various reasons.

2. The petitioner's contention is that the meeting to hold the election of the Sarpanch was not called by the competent authority. Relying on Sections 29 and 30 of the Panchayats Act and the rules made thereunder it is contended that every meeting of the Gram Panchayat must be called by the Sarpanch and since the meeting for the election of the Sarpanch under Section 21 of the Act is a meeting of the Gram Panchayat, it must be called by the Sarpanch. This contention must be rejected. Sections 29 and 30 are general provisions for meetings of Gram Panchayat and the procedure for such meetings. But Section 21 of the Act is a special provision for the election or appointment or the Sarpanch and the Up-Sarpanch, which is to be held in the first meeting fixed under Section 19 (2) of the Act. Sub-section (3) of Section 21 empowers the State Government to make rules for regulating the mode and time of election or appointment of the Sarpanch and the Up-Sar-panch.

3. By notification No. 167-464-XVIII-Rules, dated July 29, 1963, the State Government made rules under Sections 5 (2), 12, 20 and 21 (3) of the Act. (See M. P. Rajpatra dated August 9, 1963, Part II, page 593). It is an elementary principle of law that a general statute must yield to a Special statute. The provisions of Section 12 and the rules made thereunder will, therefore, govern the meeting for election of the Sarpanch and Up-Sarpanch. Rule 78 contains the provisions for a meeting for co-opting Panchas within the meaning of Section 19 (1) of the Act. Rule 79 reads thus:--

'79. Election of Sarpanch and Up-Sarpanch. The procedure of election of the Sarpanch and Up-Sarpanch shall be the same as provided in Rule 78.'

It was argued that these rules were framed under Section 12 of the act as printed in M. P. Local Acts by T.C. Shrivastava (1966 Edn. Vol. 7, page 5019) and M. P. Local Acts by R.K. Pandey (Vol. V, 1966 Edition at page 4011) and since Section 12 relates to the election and co-option of 'Panchas' of a Gram Panchayat but not the 'Sarpanch', these rules were not applicable to the election of a Sarpanch or an Up-Sarpanch. This argument is misconceived. In the two commentaries, referred to above, there is no mention of the section under which these rules were framed. We have verified from the original (supra). These rules were framed not only under Section 12, but also under Section 21, among others.

4. Under Section 19 (1), read with Rule 78, a notice for the meeting for co-option is to be issued by the 'prescribed authority'. (See Rules 77 and 78 (1)). The prescribed authority for the purposes of Section 19 (1) is the 'Panchayat and Welfare Officer'. See notification No. 2229-5304-XVIII-P.R. dated June 3, 1967, under Section 2 (xxv) of the Act, which defines the expression 'Prescribed authority'. The said notification was published in the M. P. Rajpatra dated July 21, 1967, Part II, page 473. (1067 (IX) M.P. Law Times at page 310). This notification amended and superseded the initial notification No. 197-152-XVIII-Rules, which was published in the M. P. Rajpatra dated October 12, 1962, Part II, page 607, and which is printed in M. P. Local Acts by T. C. Shrivastava (1966 edn. Vol. 7 at page 4984) and in M. P. Local Acts by R.K. Pandey (1966 Edn. Vol. V, at page 4011). Since the election in the present case took place in the year 1970, it is the amended notification which applies.

5. The correct reading of Section 19 is that the prescribed authority under sub-section (1) of that section will call the meeting under Sub-section (2) because by virtue of Rule 79 of the aforesaid rules, the provisions of Rule 78 have been applied to a meeting for the election of the Sarpanch mutatis mutandis.

6. On the above analysis of the aforesaid provisions and the rules, it is the Panchayat and Welfare Officer who is the prescribed authority competent to call a meeting of the Gram Panchayat for the election of the Sarpanch. In the present case, it is not in dispute that the meeting was called by the Panchayat and Welfare Officer. The petitioner's contention that the meeting could be called only by the Sarpanch of the Gram Panchayat must be rejected. The other contention that alternatively that meeting can be called by the Chief Executive Officer of the Janpada Sabha must also be rejected as that argument was based on the superseded notification.

7. It was next contended that Rule 79 of the Rules speaks of 'procedure' but not of the prescribed authority competent to convene the meeting. In our opinion, the only correct reading of Rule 79 will be that Rule 78 which in terms applies to 'meeting for co-option' shall apply mutatis mutandis to a meeting for election of the Sarpanch. The word 'procedure' in that rule is comprehensive enough to include the manner of proceeding, acting and conduct in relation to the meeting, that is, all which is to be done in relation to such meeting. It is stated in 72, C. J. S. 971:--

'The word 'procedure' is defined generally as meaning a course or mode of action; the act or manner of proceeding or moving forward; the manner of proceeding or acting; progress; process, operation, conduct; a step taken, an act performed, a proceeding.'

8. It was then contended that at the meeting which was held for the electionof the Sarpanch, the newly elected Panchas could not participate and vote inasmuch as their election had not been notified under Section 20. In Mahendra Singh v. The Collector, Misc. Petn. No, 145 of 1970 = (reported in AIR 1971 Madh Pra 83) we have held that by virtue of Section 18 read with Sections 19 (1) and 21, the Panchas enter upon their office with effect from the date of the first meeting of the Gram Panchayat fixed under Section 19 (2) and held under Section 21 of the Act. Their entering upon the office does not depend upon the notification under Section 20 of the Act. In the present case, that meeting was held on August 5, 1970.

9. It was then contended for the petitioner that 'ballot papers prescribed by Rule 78 of the Election of Panchayat Rules are contrary to the Indian Constitution, Articles 325 and 326 .....' This contention makes no sense because Articles 325 and 326 of the Constitution have nothing to do with this matter.

10. This petition is dismissed. Parties shall bear their own costs. The outstanding amount of security deposit shall he refunded to the petitioner.


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