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Ranchhodbhai Jethabhai Vs. Parshottam Galabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR1
AppellantRanchhodbhai Jethabhai
RespondentParshottam Galabhai and anr.
Excerpt:
.....in writing at the time when the nomination paper of the first respondent was accepted by the presiding officer and that it was, therefore, not open to the petitioner to challenge the validity of election of the first respondent on that ground. now there is no provision in section 44 or in any other part of the act which lays down the manner of election of sarpanch and upa-sarpanch at the first meeting and that is clearly contemplated to be provided by rules to be made by the state government under the act. one of the purposes of the act clearly is election of sarpanch and upa-sarpanch of the gram panchayat. we do not think this preliminary objection is well-founded. the challenge of petitioner to the validity of the election of the first respondent cannot, therefore, be thrown out..........as sarpanch or upa-sarpanch.6. this construction also receives support from the provision made in rule 8. rule 8 says that at the first meeting the presiding officer shall scrutinise the nomination papers delivered to him under rule 6 and shall thereafter read out the names of the members who in his opinion have been duly nominated. if a nomination paper is delivered to the presiding officer less than two hours before the time fixed for the meeting, he cannot ignore the prescription contained in rule 6 and say that the candidate has been duly nominated. whether a candidate has been duly nominated or not would depend upon compliance with the requirements of rule 6 and one of those requirements is that the nomination paper must be delivered to the presiding officer not less than two hours.....
Judgment:

P.N. Bhagwati, C.J.

1. These two petitions involve an identical question of law and the facts giving rise to the two petitions are also identical, the only difference being that one relates to the election of Sarpanch while the other relates to the election of Upa-Sarpanch of Kava Gram Panchayat. The first meeting of the Kava Gram panchayat for election of Sarpanch and Upa-Sarpanch was convened at 9-00 a.m. on 1st July 1967. Two nomination papers, one by the petitioner in Petition No. 168 of 1968 for election as Sarpanch and the other by the petitioner in Petition No. 164 of 1968 for election as Upa-Sarpanch, were delivered to the Presiding Officer at 7-00 A.M. on the date of the meeting. So also, two nomination papers, one by first respondent in Petition No. 168 of 1968 for election as Sarpanch and the other by the first respondent in Petition No. 164 of 1968 for election as Upa-Sarpanch, were delivered to the Presiding Officer on the same day but at 7-55 A.M. When the meeting was held at 9-00 A.M. the Presiding Officer after scrutinising the nomination papers declared the petitioner and the first respondent in Petition No. 168 of 1968 to have been duly nominated for election as Sarpanch and the petitioner and the first respondent in Petition No. 164 of 1968 to have been duly nominated for election as Upa-Sarpanch. The members present at the meeting thereafter proceeded to elect the Sarpanch and the Upa-Sarpanch and the first respondent in Petition No. 168 of 1968 was declared to have been duly elected as Sarpanch and the first respondent in Petition No. 164 of 1968 was declared to have been duly elected as Upa-Sarpanch, both having secured larger number of votes than the petitioners, who were the rival candidates. The petitioner in Petition No. 168 of 1968 thereupon raised a dispute as to the validity of election of the first respondent as Sarpanch on the ground that nomination paper of the first respondent was delivered to the Presiding Officer at 7-55 A.M. which was less than two hours before the time fixed for the meeting and that the first respondent was, therefore, not validly nominated for the office of Sarpanch and this dispute was referred by the petitioner for the decision of the Taluka Development Officer as the competent authority under Section 44 Sub-section (6) of the Gujarat Panchayats Act, 1961. The Taluka Development Officer decided the dispute against the petitioner on the ground that the petitioner had failed to take an objection in writing at the time when the nomination paper of the first respondent was accepted by the Presiding Officer and that it was, therefore, not open to the petitioner to challenge the validity of election of the first respondent on that ground. The petitioner thereupon filed Petition No. 168 of 1968 challenging the validity of the election of the first respondent as Sarpanch and seeking a direction that the petitioner be declared elected as Sarpanch. The petitioner in Petition No. 164 of 1968 did not approach the Taluka Development Officer as the competent authority but straightaway filed Petition No. 164 of 1968 praying that the election of the first respondent as Upa-Sarpanch be set aside and he be declared elected as Upa-Sarpanch.

2. Now in order to appreciate the arguments which have been advanced before us, it is necessary to refer briefly to a few provisions of the Act and the Rules. Section 44 Sub-section (1) provides that on the constitution of a gram or nagar panchayat or on its reconstitution under Section 17 or under any other provision of the Act, there shall be called the first meeting thereof for the election of its Sarpanch and Upa-Sarpanch. Sub-section (3) of Section 44 proceeds to say that the first meeting shall be presided over by such officer as the competent authority may by order appoint in that behalf and such officer shell have such powers and follow such procedure as may be prescribed but shall not have the right to vote. The only business which can be transacted at the first meeting is as provided in Section 44, Sub-section (4), election of Sarpanch and Upa-Sarpanch. Now there is no provision in Section 44 or in any other part of the Act which lays down the manner of election of Sarpanch and Upa-Sarpanch at the first meeting and that is clearly contemplated to be provided by rules to be made by the State Government under the Act. Section 323 confers rulemaking power on the State Government and it says that the State Government may by notification in the Official Gazette make rules for carrying out the purposes of the Act. One of the purposes of the Act clearly is election of Sarpanch and Upa-Sarpanch of the Gram Panchayat. The State Government has therefore in exercise of the powers conferred under Section 323 made Gujarat Gram and Nagar Panchayats (Sarpanch and Upa-Sarpanch, Chairman and Vice-Chairman) Election Rules, 1962, Rule 3 provides that the first meeting convened for the election of the Sarpanch shall be held at such place as may be fixed by the Presiding Officer and Rule 4 requires the Presiding Officer to cause a notice of such meeting to be given to every member of the Panchayat at least three clear days before the date of such meeting. It was in accordance with these Rules that the first meeting of the Kava Gram Panchayat was called by the Presiding Officer at 9-00 A.M. on 1st July 1967. Rule 6 is the next important rule and it is on the construction of this rule that the entire controversy between the parties depend. That rule reads as under.

6. Nomination of candidates: Not less than two hours before the time fixed for the meeting for the election of a Sarpanch or as the case may be, a Chairman, any member of the panchayat may nominate any other member for election as Sarpanch or Chairman and deliver to the Presiding Officer, a nomination paper in Form A appended to these rules, signed by himself as a proposer.

Rule 8 provides for the scrutiny of nominations in the following terms:

8. Scrutiny of nominations: At the meeting convened under Sub-section (1) of Section 44 of the Act, the Presiding Officer shall scrutinise the nomination papers delivered to him under Rule 6 and shall thereafter read out the names of the members, who, in his opinion, have been duly nominated together with the names of their proposers.

Rule 8A deals with withdrawal of candidature but we are not concerned with that rule. Then comes Rule 9 which provides for the actual election and It says that if only one candidate has been validly nominated for the office of Sarpanch he shall be declared to have been elected as Sarpanch and if more than one candidate have been validly nominated for the office of the Sarpanch, the members present at the meeting shall proceed to elect the Sarpanch by ballot and the candidate who obtains larger number of votes shall be declared to have been duly elected as Sarpanch. Since the Presiding Officer took the view after scrutinising the nomination papers of the petitioner and the first respondent in each of the two petitions that both of them were duly nominated, voting by ballot took place and the first respondent in each petition having obtained a larger number of votes than the petitioner, was declared to have been duly elected as Sarpanch or Upa-Sarpanch, as the case may be.

3. When the hearing of the petitions commenced, a preliminary objection was raised on behalf of the first respondent in each petition and the preliminary objection was that since the petitioner had not objected to the validity of the nomination paper of the first respondent at the time when the Presiding Officer scrutinised the nomination papers and declared the petitioner and the first respondent to have been duly nominated, the petitioner was not subsequently entitled to challenge the validity of the election of the first respondent on the ground that the nomination paper was wrongly accepted by the Presiding Officer. We do not think this preliminary objection is well-founded. It proceeds on the assumption that the petitioner could have raised an objection before the Presiding Officer that the nomination paper of the first respondent was invalid on the ground that it was delivered to the Presiding Officer in breach of the requirement of Rule 6. If we look at Rule 8, it is clear that there is no provision in that rule requiring the Presiding Officer to permit candidates to take inspection of the nomination paper and to raise objections to the validity of the nominations for the decision of the Presiding Officer. The provision contained in Rule 8 is a significant departure from that contained in the corresponding rules relating to other elections under the Act. Rule 10 of the Gujarat Gram and Nagar Panchayats Election Rules 1962, provides in so many terms that the Returning Officer shall allow intending candidates reasonable facilities for examining the nomination papers and he shall examine the nomination paper and decide all objections raised before him against any nominations. Similar provision is also made in Rule 9 of the Gujarat Taluka Panchayats (Election) Rules, 1962 and Rule 14 of the Gujarat District Panchayats. (Election) Rules, 1962. Rule 8, however, does not make any such provision and merely says that at the first meeting the Presiding Officer shall scrutinise the nomination papers delivered to him under Rule 6 and shall thereafter read out the names of the members who in its opinion have been duly nominated. Rule 8 does not contemplate giving of any opportunity to the intending candidates to examine the nomination papers or to raise objection to the validity of the nominations, nor does it contemplate decision of any such objections by the Presiding Officer. It cannot, therefore, be urged against the petitioner that he did not object to the validity of the nomination of the first respondent before the Presiding Officer. As a matter of fact, there is nothing to show that the petitioner was aware at the time when the Presiding Officer declared both the petitioner and the first respondent to have been duly nominated that the nomination paper of the first respondent was delivered to the Presiding Officer at 7-55 A.M. The challenge of petitioner to the validity of the election of the first respondent cannot, therefore, be thrown out on the ground that be ought to have raised an objection to the validity of the nomination of the first respondent before the Presiding Officer and since he failed to do so, he must be deemed to have acquiesced in the validity of the nomination of the first respondent. Acquiescence postulates knowledge and since there is nothing in the present case to show knowledge on the part of the petitioner of the defect in the nomination of the first respondent, the doctrine of acquiescence cannot debar the petitioner from claiming relief under Article 226 if be is otherwise found entitled to it.

4. Turning to the merits, it is an undisputed fact that the nomination paper of the first respondent in each of the two petitions was delivered to the Presiding Officer at 7-55 A.M. when the time fixed for the meeting was 9-00 A.M. and it was, therefore, not delivered 'not less than two hours before the time fixed for the meeting' as required by Rule 6. The question is whether non-compliance with this particular requirement of Rule 6 had the effect of invalidating the nomination of the first respondent in each of the two petitions. That raises the question whether this requirement is mandatory or directory. Now the decided cases show that it is not possible to lay down any universal test or any straight jacket formula for determining as to when a provision of a statute may be regarded as mandatory or directory. 'No universal rule' said Lord Campbell:.can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed.

To this celebrated dictum of Lord Campbell, Lord Penzance added his oft-quoted observations:

I believe, as far as any rule is concerned you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the genera object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory....

But even so there are certain guiding principles which help in arriving at a proper solution of the question. The presence or absence of negative words in a provision at times serves as a useful test of the character of the provision. An inference may be drawn from the negative language used in laying down the requirement of a provision which prescribes something to be done under it, as for instance when it is enacted that it shall be done in a particular manner and in no other. In such a case, the requirement is regarded as absolute. Another test which may also be usefully employed at times is, to quote the words of Maxwell on Interpretation of Statutes:

A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.

These are some guiding principles by no means exhaustive but they afford indication of the legislative intent as to whether the prescription of a statute is intended to be mandatory or directory.

5. In the light of these principles let us examine the provision contained in Rule 6. In the first place, Rule 6 in so far as it prescribes the requirement of time before which nomination papers must be delivered to the Presiding Officer is couched in negative language. It says that any member of a Panchayat may nominate any other member for election as Sarpanch and deliver the nomination paper to the Presiding Officer 'not less than two hours before the time fixed for the meeting'. The negative form of expression used by the rule-making authority emphasizes that the rule-making authority was anxious that the nomination paper must be delivered to the Presiding Officer at least two hours before the time fixed for the meeting. It attached some importance to this particular requirement and therefore used the negative form of expression to bring out forcefully the imperative character of the requirement. The rule making authority also laid down two other conditions, namely, that the nomination paper must be in Form A appended to the Rules and it must be signed by a member of the Panchayat as a proposer and delivered by him to the Presiding Officer. It is only if these three conditions are satisfied that a member of a Panchayat can stand as a candidate for election as Sarpanch or Upa-Sarpanch. Section 44 Sub-section (i) confers a right on a member of a Panchayat to stand as a candidate for election as Sarpanch or Upa-Sarpanch and Rule 6 lays down three conditions which must be complied with in order to exercise the said right. There is no consideration of convenience or justice which requires that compliance with these three conditions must be regarded as directory and not mandatory. Compliance with these three conditions is under the control of the person wishing to contest the election as Sarpanch or Upa-Sarpanch and if he fails to comply with any of these three conditions, he cannot complain of any inconvenience or injustice. These three conditions must, therefore, be regarded as mandatory and a rigorous observance of them must be regarded as essential to the acquisition of the right to stand as a candidate for election as Sarpanch or Upa-Sarpanch.

6. This construction also receives support from the provision made in Rule 8. Rule 8 says that at the first meeting the Presiding Officer shall scrutinise the nomination papers delivered to him under Rule 6 and shall thereafter read out the names of the members who in his opinion have been duly nominated. If a nomination paper is delivered to the Presiding Officer less than two hours before the time fixed for the meeting, he cannot ignore the prescription contained in Rule 6 and say that the candidate has been duly nominated. Whether a candidate has been duly nominated or not would depend upon compliance with the requirements of Rule 6 and one of those requirements is that the nomination paper must be delivered to the Presiding Officer not less than two hours before the time fixed for the meeting. If we look at Form A which is the form of nomination paper prescribed by the rules, we find that it requires the date on which and the time at which the nomination paper is received from the proposer, to be noted down at the foot of the nomination paper. The Presiding Officer is required to scrutinise the nomination paper and he is, therefore, called upon to apply his mind to the date on which and the time at which the nomination paper was delivered to him. If he finds on scrutinising the nomination paper that it was delivered to him less than two hours before the time fixed for the meeting in breach of Rule 6 he would have to come to the conclusion that the candidate is not duly nominated in which event the candidate would not be entitled to stand for the election. The consequence of not complying with this particular requirement of Rule 6 is, therefore, clearly set out in Rule 8 and it is that the candidate is not to be regarded as duly nominated. The requirement of Rule 6 as to the time before which the nomination paper must be delivered to the Presiding Officer must, therefore, be regarded as mandatory and not directory. Now the nomination of the first respondent in each of the two petitions was admittedly delivered at 7-55 A.M. when the time fixed for the meeting was 9-00 A.M. and it was therefore not in compliance with the requirement of Rule 6.

7. It must therefore follow that the first respondent in each petition was not validly nominated and was not entitled to stand as a candidate for election as Sarpanch or Upa-Sarpanch, as the case may be.

8. We, therefore, allow the petitions and make the rule absolute in each petition to the limited extent that we issue a writ of quo warranto quashing and setting aside the election of the first respondent in each petition and declaring that the first respondent in each petition was not validly nominated as a candidate for election as Sarpanch or Upa-Sarpanch, as the case may be. There will be no order as to costs in each petition.


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