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Mangilal and ors. Vs. Collector of Bhilwara and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 114 of 1956
Judge
Reported inAIR1958Raj84
ActsRajasthan Panchayat Act, 1923 - Sections 14, 17, 89 and 89(1); Rajasthan Panchayat Elections Rules, 1954 - Rules 18, 19 and 20; Constitution of India - Aritcle 226
AppellantMangilal and ors.
RespondentCollector of Bhilwara and ors.
Appellant Advocate Chandmal, Adv.
Respondent Advocate Kistoormal and; Kansingh, Deputy Govt. Adv.
DispositionApplication allowed
Cases ReferredDalelsingh v. Tehsildar of Chhoti Sadri
Excerpt:
.....not provide for election disputes. because if they do not carry out the purposes of the act, the state government would have no power to frame them under section 89 (1). now, the purposes of the act, as given in the preamble are to establish and develop local self-government in the rural areas of rajasthan and to make better provision for village administration and, development. now it is well known that election is the way in which local bodies are established for the purposes of administration and development of local areas, be they villages or towns or districts. a question may well arise, in the absence of definition of misconduct and irregularity anywhere in the rules, as to what misconduct or irregularity is contemplated by rule 20. but there can be little doubt that an election..........in this regard is provided in section 17 of the act and there was, therefore, no power in the state government to frame rules relating to election disputes beyond what is contained in section 17 of the act. finally it was urged that if there was any election dispute, the parties could take recourse to the ordinary civil court under section 9 of the civil procedure code.5. section 89 of the act is in two parts. sub-sections (1) gives general power to the state government to frame rules and is in these words:'the state government may by notification in the rajasthan gazette, make rules, consistent with this act, to carry out the purposes thereof.'sub-sections (2) then lays down the various heads under which rules may be framed and begins with these words:'in particular and without.....
Judgment:

Wanchoo, C. J.

1.This is an application by Mangilal and others under Article 226 of the Constitution for a writ of certiorari against the order of the Collector, Bhilwara, in a Panchayat election matter.

2. The case of the fourteen applicants is that twelve out of them were elected to the Gram Panchayat Hamirgarh on 2-10-1955. They were all members of the Jan Sangh Party and the Congress Party was defeated in the elections. Consequently, opposite parties Nos. 2 to 11, who were members of the Congress Party, filed an election petition before the Collector under Rule 19 of the Rajasthan Panchayat Election Rules, 1954 (hereinafter called the Rules).

The enquiry into the petition was made by the Sub-Divisional Officer and thereafter the Collector set asids the election of the twelve applicants under R. 20. Consequently, the applicants have come up to this Court and their main contentions are these:

(1) That Rules 19 and 20 of the Rules providing for decision of elections are ultra vires, as not being within, the rule making power of the Government.

(2) That the election petition was premature inasmuch as no notification was made under Section 14 or Rule 18 (c) even till the application was decided by the Collector.

(3) That the Collector committed a mistake of law apparent on the face of the record inasmuch as he set aside the election on a ground other than those mentioned in Rule 20.

3. The application has been opposed by the ten opposite parties who had filed the petition. In addition, we gave notice to the learned Government Advocate as the validity of Rules 19 and 20 of the Rules was being challenged and have heard the learned Deputy Government Advocate on behalf of the State. We shall now take the points raised by the applicants one by one.

4. The contention on behalf of the applicants is that Rules 19 and 20 purport to have been framed under the rule-making power of the Government provided in Section 89 of the Rajasthan Panchayat Act (Act No. XXI of 1953)(hereinafter called the Act). But there is no provision in Section 89 for framing rules relating to etection disputes and constitution of election tribunals.

It is also urged that all that the Legislature intended in this regard is provided in Section 17 of the Act and there was, therefore, no power in the State Government to frame rules relating to election disputes beyond what is contained in Section 17 of the Act. Finally it was urged that if there was any election dispute, the parties could take recourse to the ordinary civil court under Section 9 of the Civil Procedure Code.

5. Section 89 of the Act is in two parts. Sub-sections (1) gives general power to the State Government to frame rules and is in these words:

'The State Government may by notification in the Rajasthan Gazette, make rules, consistent with this Act, to carry out the purposes thereof.'

Sub-sections (2) then lays down the various heads under which rules may be framed and begins with these words:

'In particular and without prejudice to the generality of the foregoing power such rules may provide for .. .. .. .. .. .. ,.'

There is no specific provision in Sub-sections (2) for decision of election disputes and constitution of election tribunals. The only clause which deals with elections is Clause (xxxviii) which is in these terms:

'the regulation of the election or nomination of the Sarpanch, and Panchas of Panchayats and Tehsil Panchayats.'

We are satisfied that Clause (xxxviii) has nothing to do with the decision of election disputes. It only talks of the regulation of the election and the election is over when the result is declared. Therefore Clause (xxxviii) only refers to all matters up to the time the election is over. Election disputes and election tribunals come there-after and, therefore, Clause (xxxviii) cannot be pressed into use to justify the framing of Rules 19 and 20.

6. It is, however, contended by the learned Deputy Government Advocate that Sub-sections (2) of Section 89 does not cut down the generality of the powers conferred on the State Government to frame rules under Sub-sections (1) and that Rules 19 and 20 have been framed within the powers of the State Government under Sub-sections (1). Sub-sections (1) recognises three conditions for framing rules, namely (1) notification in the Rajasthan Gazette, (2) rules must be consistent with the Act and (3) they must be for carrying out the purposes of the Act.

7. It is submitted that Rules 19 and 20 comply with all these three conditions. They were published in the Gazette. They are not inconsistent with any provision in the Act and they were made for carrying out the purposes of the Act. We have to examine in this connection the last two conditions, for it is admitted that the rules were published in the Rajasthan Gazette.

8. Before we do so, however, we shouldlike to point out that in practically all the Panchayat Acts all over India, there is specific provision in the Act itself for decision of election disputes and constitution of election tribunals and this specific provision is to be found generally in the section dealing with the rule-making power. In the Assam Act, it is Section 141 (2) (fa), in the Bombay Act, it is Section 9, in the Madhya Pradesh Act, it is Section 144 (2) (b), in the Madras Act, it is Section 112 (2) (i), in the Punjab Act, it is Section 101 (2) (c), in the U. P. Act, it is Section 110 (2) (iic), in the Mysore Act, it is Section 172 (2) A (b), in the Pepsu Act, it is Section 125 (2) (b), in the Saurashtra Act, it is Section 11, in the Travancore-Cochin Act, it is Section 97 (2) (iii).

9. Thus the Rajasthan Act seems to be unique in not providing specifically for decision of election disputes and constitution of election tribunals in the Act itself. But that however does not necessarily mean that the State Government has no power to frame rules in that behalf under Section 89 (1) of the Act.

10. It is urged that framing of such rules is inconsistent with Section 17 cf the Act and that the Act did not contemplate unseating of elected members except in the manner provided by Section 17. Section 17 contemplates removal of members of Panchayats who were not qualified, for election under Section 11 or who incurred any of the disqualifications mentioned in Section 11 after election.

There are other provisions for vacation of seats in Section 17, but they do not refer to the election and are concerned with matters that follow the election. It is urged, therefore, that the Legislature intended that a person elected should only be removed if he was suffering from any of the disqualifications mentioned in Section 11 at the time when the election was held or suffered any such disqualification thereafter during the tenure of his office. We are of opinion that Section 17 (1) cannot be given this far-reaching meaning.

It only provides for removal of Panchas who were disqualified under Section 11 at the time of election or became disqualified afterwards. It does not provide for other matters which can legitimately lead to setting aside of an election. Disqualification is only one of the reasons which may lead to the election being set aside, and because Section 17 provides for removal of a member on account of a disqualification, it cannot, in our opinion, be inferred that it forbids removal on other grounds like bribery and corruption during the election, which are some of the well-known grounds on which elections in democratic countries are set aside.

In any case, if the rules provide for setting aside of an election on grounds other than disqualification, it cannot be said that those rules are inconsistent with Section 17. At the best, they are supplementary to Section 17. Section 17, it may be mentioned, does not provide for election disputes. It deals with only one contingency, namely removal of members who are disqualified under Section 11.

But election disputes, as we have already said, may arise on account of various other reasons and Section 17 does not deal with them at all. We cannot read Section 17 (1) to mean that it provides for election disputes and forbids setting aside of election on grounds other than those mentioned in Section 17 (1). We are, therefore, of opinion that Rules 19 and 20 are not inconsistent with any of the provisions of the Act. If anything, they are supplementary to the provisions contained in Section 17 (1).

11. The next question is whether these two rules can be said to carry out the purposes of the Act; because if they do not carry out the purposes of the Act, the State Government would have no power to frame them under Section 89 (1). Now, the purposes of the Act, as given in the preamble are to establish and develop Local Self-Government in the rural areas of Rajasthan and to make better provision for village administration and, development.

Thus establishment and development of Local Self-Government in rural areas is one of the purposes of the Act. Can it be said that Rules 19 and 20 carry out these purposes of the Act, namely the establishment and development of Local Self-Government in rural areas? Now it is well known that election is the way in which local bodies are established for the purposes of administration and development of local areas, be they villages or towns or districts. The purpose seems to be to establish local bodies truly representing the people of the area from which the local body is elected.

Now Rule 20 provides that the Collector will set aside the election or amend the declared result if the election has been the outcome of some misconduct or corrupt practice or irregularity which has substantially influenced the result thereof. If the purpose of the Act is to have a truly representative local body constituted by means of election on adult suffrage, can it be said that the State Government is not carrying out that purpose when it provides for the purity of these elections by framing Rule 20?

We may add that 'corrupt practice' has been defined in Rule 46 and briefly means bribery or personation at the election. Can it be said that the purpose of the Act would be carried out if, for example, candidates at an election started bidding for votes by promise of payment of money and the person who bid the highest amount for each vote got the majority of the votes and was thus elected?

Again, can it be said that the purpose of the Act would be carried out if a candidate imported people from outside the area for which the Panchayat was established and made them vote on his behalf?

There can be only one answer to these questions, namely such an election would not be truly representative of the area and such conduct, if permitted, would make democracy a farce. It seems to us, therefore, that whenprovision is made in Rule 20 for setting aside an election on. such grounds, that provision is for carrying out the purposes of the Act.

Rule 20 deals with three things, namely,

(1) corrupt practice which is defined in Rule 46,

(2) misconduct and (3) irregularity. Misconduct and irregularity have not been defined anywhere in the rules, except that Rule 20 says that misconduct or irregularity should be of such a nature as to have substantially influenced the result of the election.

A question may well arise, in the absence of definition of misconduct and irregularity anywhere in the rules, as to what misconduct or irregularity is contemplated by Rule 20. But there can be little doubt that an election procured by misconduct or irregularity is as detrimental to democracy as election procured by corrupt practice as defined in Rule 46.

Therefore, when Rule 20 provides for setting aside an election on the ground of misconduct, corrupt practice or such irregularity as has substantially influenced the result of the election, it is certainly carrying out the purposes of the Act. Whether in the absence of definition of the words 'misconduct or irregularity' Tribunal constituted under Section 20 would be able to give any relief is a different matter altogether.

But we have come to the conclusion, though we must say with a good deal of hesitation, that Rule 19 and 20 must be held to be within the rule-making power of the State Government as provided in Section 89 (1). We cannot, however, help remarking that the earlier our Legislature makes provision similar to the provisions in other Acts to which we have referred, the better it would be.

We also feel that the earlier the words like misconduct and irregularity are properly defined, the better it will be for carrying out the purposes of the Act. But we feel that we cannot strike down Rule 19 and 20, for that would open a flood of abuse in these elections for which there will be no cure.

12. We may in this connection refer to Emperor v. Sibnath Banerji, AIR 1945 PC 156 (A). In that case Section 2 of the Defence of India Act came to be interpreted by their Lordships of the Privy Council. That section conferred power to make rules on the Central Government for certain purposes and was in two parts. Sub-sections (1) was general like Section 89 (1) of the Act. Sub-sections (2) provided for certain special heads under which rules could be framed beginning with the words 'Without prejudice to the generality of the powers conferred by Sub-section (1)'.

The validity of Rule 26 framed under Section 2 of the Defence of India Act came up for decision in that case. The Federal Court held that the Legislature having set out in plain and unambiguous language in para (x) of Sub-section (2) the scope of the rules which may be made providing for apprehension and detention in custody it was not permissible to pray in aid the more general words in Section 2 (1) in order to justifya rule which so plainly went beyond the limits of para, (x); though if para (x) had not been in the Act at all, perhaps different considerations might have applied. Their Lordships of the Privy Council did not agree with this view and observed as follows :

'In the opinion of their Lordships, the function of Sub-section (2) is merely an illustrative one; the rule-making power is conferred by Sub-section (1), and 'the rules' which are referred to in the opening sentence of Sub-section (2) are the rules which are authorised by, and made under, Sub-section (1); the provisions of Sub-section (2) are not restrictive of Sub-section (1), as indeed is expressly stated by the words 'without prejudice to the generality of the powers conferred by Sub-section (1)'.''

13. Section 89 (1) also is in very general terms and Sub-section (2) makes it clear that the particular powers conferred thereunder are without prejudice to the generality of the power conferred under Sub-section (1). Therefore, the State Government has power under Section 89 (1) to make rules by notification, which are not inconsistent with the Act and which advance its purposes. If these three conditions are fulfilled, any rule can be framed.

So far as Rules 19 and 20 are concerned, we are of opinion that these three conditions are fulfilled and, therefore, they cannot be said to be beyond the rule-making power of the State Government. It was urged that there was an alternative remedy by means of a suit under Section 9 of the Civil Procedure Code. In the first place, that alternative remedy for such a small body as the Panchayat would be rather cumbersome.

In the second place, unless there are some kinds of rules which define 'corrupt practice, misconduct or irregularity', it would be very difficult for a civil Court to say that an election should be set aside on this or that ground.

Therefore, even to make it possible for the civil Court to set aside an election under Section 9 of the Civil Procedure Code, some kind of rules are necessary and if the State Government can frame rules, for example, defining 'corrupt practice', we cannot see why they cannot also frame a rule setting up a tribunal for trying such disputes, for that tribunal would also be advancing the purposes of the Act. We have, therefore, come to the conclusion that Rules 19 and 20 are valid as they are within the rule-making power conferred on the State Government under Section 89 (1).

14. The next point that has been urged is that the election petition was premature. In this connection, our attention was drawn to Rule 19 which lays down that the validity of the election may be challenged by a petition presented by a defeated candidate or by ten duly qualified electors within fifteen days from the date of the notification under Rule 18.

Now it is not in dispute in this case that the notification under Rule 18 was not made even up to the time the Collector decided the application. The applicant contends that in thecircumstances, the petition was premature. Rule 19 prescribes that the petition has to be, made within 15 days of the notification under Rule 18. We are clearly of opinion that the petition can only be made after the notification under Rule 18 has been made and not before.

It was urged that 15 days from the date of the notification mentioned in Rule 19 is the last date by which the petition can be made and that it can be made even before the notification. It is enough to say that this is a period of limitation which has always a starting point as well as a concluding point. To our mind, no right to apply arises before the starting point even though the Panchayat may start working before the notification. The matter was considered by us in Dalelsingh v. Tehsildar of Chhoti Sadri, Civil Writ No. 107 of 1956, D/- 12-9-1957 : (AIR 1958 Raj 81) (B), and we said there that an election petition can only be filed after the election has been notified.

We adhere to that view and hold that the present application was obviously premature, as no notification had been made under Rule 18. It was urged that on this view, the notification may never be made and a defeated candidate may, for example, never get a chance of filing an election petition.

It is enough to say that we have held in Dalelsingh's case (B), that Section 14 which provides for notification is mandatory for certain purposes and if the Chief Panchayat Officer does not notify the names of the Panchas, etc., as required by Rule 18, the defeated candidate can approach us for a writ of mandamus directing him to do so. Thereafter, when the names are published by the Chief Panchayat Officer on a writ of mandamus, the defeated candidate gets the right to make an election petition within 15 days of such publication.

We are, therefore, of opinion that this petition was obviously premature and should have been thrown out on this ground.

15. The third point which has been urged is that the order of the Collector setting aside the election is not covered by any of the conditions provided in Rule 20. As we have already pointed out, Rule 20 gives power to the Collector to set aside an election on the ground of corrupt practice, misconduct or such irregularity as has substantially influenced the result of the election. The Collector cannot set aside the election on any other ground. Now the relevant portion of the order of the Collector which is in Hindi may be translated as follows:

'It is clear from the enquiry of the Gram Panchayat Inspector and of the Sub-divisional Officer that the elections were not held in a state of peacefulness and that electors were quarrelling at the place of election as deposed to by several persons before the enquiring officers. The place of election was in the middle of the 'abadi' on account of which the electors had no freedom. Consequently, the election was illegal and is set aside.'

Now Rule 5 specifically provides that if the Returning Officer has reason to believe that toproceed with the election on the date originally fixed is likely to lead to a breach of the peace or to cause a riot or affray, he shall postpone the election to a later date to be fixed by him. It was, therefore, the business of the Returning Officer in case he feared breach of the peace to postpone the election.

The Collector does not say that the Returning Officer feared any breach of the peace. It seems that the Returning Officer felt that he could carry out the election without any difficulty and did carry it out. In these circumstances, the reason given by the Collector for setting aside the election is not a reason which comes within the words 'misconduct, corrupt practice or such, irregularity as has substantially influenced the result thereof.'

The Collector, therefore, could not set aside the election for the reason given by him. This error is an error of law and is patent on the record. We are, therefore, of opinion that the order of the Collector should be set aside and the election petition dismissed for the reasons mentioned above.

16. We. therefore, allow the application and set aside the order of the Collector dated 24th of August 1956 and dismiss the election petition. The applicants will get their costs from opposite parties Nos. 2 to 11.


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