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Kodambakkan Panchayat Represented by Its President Vs. the Inspector of Panchayats and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Reported in(1971)1MLJ184
AppellantKodambakkan Panchayat Represented by Its President
RespondentThe Inspector of Panchayats and anr.
Cases ReferredPutla Subbayya v. State of Andhra W.P. No.
Excerpt:
.....above context the petitioner's case is that the inclusion of the names of the encroachers in the electoral rolls is invalid, and, even if they could be treated as residents of the panchayat, the 1st respondent has failed to increase the number of members of the panchayat for being returned thereto, notwithstanding the reckoning of the statutory population at 6,417. this argument is based upon one of the rules framed under the madras panchayats act, 1958, which enjoins upon the appropriate authority to fix the number of members to be returned to the panchayat, according to the pouplation of the panchayat. 8. it is a well accepted cannon of interpretation that if there is a conflict between a section of the act and a rule made under (sic) the rule-making authority under the act and if..........area of 128.78 acres, and it is common ground that this is within the limits of the kodambakkam. village panchayat. portions of this eri poromboke have been alienated to the madras corporation and the tamil nadu state housing board; but it is claimed that the alienation of the said land to such-public bodies does not constitute exclusion of the area from the jurisdiction of the panchayat. though it does not vest in the panchayat the government's claim is that this is inside the jurisdiction of the panchayat. as the ownership of the land is not the criterion to decide whether an individual should be included in the panchayat electoral roll or not and as residence within the jurisdiction of the panchayat alone, besides the age of the voter, are the primary considerations for purposes of.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The sitting president of the Kcdambakkam panchayat is the petitioner. As per the last census, the population of the village was reckoned at 1001 amongst whom about 900 persons were qualified to vote. As per the rules, the number of members to be elected to the panchayat are 8, besides one woman member to be co-opted. As matters stand, the panchayat is divided into two blocks and there are 4 members representing each block. Within the boundaries of the revenue village included in the panchayat, there is an eri pomomboke or P.W.D. tank of an area of 128.78 acres, and it is common ground that this is within the limits of the Kodambakkam. village panchayat. Portions of this eri poromboke have been alienated to the Madras Corporation and the Tamil Nadu State Housing Board; but it is claimed that the alienation of the said land to such-public bodies does not constitute exclusion of the area from the jurisdiction of the panchayat. Though it does not vest in the panchayat the Government's claim is that this is inside the jurisdiction of the panchayat. As the ownership of the land is not the criterion to decide whether an individual should be included in the panchayat electoral roll or not and as residence within the jurisdiction of the panchayat alone, besides the age of the voter, are the primary considerations for purposes of inclusion of such residents of the prescribed age in the electoral rolls of the panchayat, the occupants or residents in such eri poromboke were included in the electoral rolls prepared recently under Section 20 cf the Madias Panchayats Act, 1958. It is also claimed by the Government that though such occupants are encroachers, they had to be enumerated and included in the electoral rolls for the Kodambakkam panchayat, and as a matter of fact, their names find a place in the Assembly rolls prepared in 1970 for the St. Thomas Mount Assembly Constituency Rolls. The Government is emphatic that the encroachers, who are actual residents of the disused tank, are to be given the right to vote and even the right to contest the panchayat elections; the apprehension that they are likely to move away from the area is no criterion to exclude them from the electoral roll by denying them the right to stand and contest the elections in the panchayat area. It is stated that every person who resides within the jurisdiction of the panchayat at the time of the preparation of the rolls under Section 2C of the Act and who is 21 years of age and more as on ist January, 1970, is entitled to be enrolled as a voter. It is also clearly stated in paragraph 5 of the counter-affidavit that as the Election Commission of India did not agree to the revision of the Assembly rolls for the conduct of elections to local bodies and as it suggested amendments to local Acts, the Panchayats Act was spe ifkally amended to meet the situation. It is said that according to the old provision 'a person enrolled in the Assembly rolls only will be a voter for the panchayat'. According to the amended provision 'a person entitled to be enrolled as a voter in the Assembly rolls is to be enrolled as a voter for the panchayat.' It is in this background that the electoral rcll for the Kodambakkam panchayat was prepared. As already stated, the population as reckoned in the last census was about 1001 and the voters list as prepared in the context as above discloses a residential strength of 6417 for the panchayat in question. If, therefore, the enumerated population for purposes of Section 20 of the Act is termed as the statutory population, then it follows that as per the last census the population was 1001 and as per the Act the statutory population was 6,417.

2. In the above context the petitioner's case is that the inclusion of the names of the encroachers in the electoral rolls is invalid, and, even if they could be treated as residents of the panchayat, the 1st respondent has failed to increase the number of members of the panchayat for being returned thereto, notwithstanding the reckoning of the statutory population at 6,417. This argument is based upon one of the rules framed under the Madras Panchayats Act, 1958, which enjoins upon the appropriate authority to fix the number of members to be returned to the panchayat, according to the pouplation of the panchayat.

3. Another argument of the learned Counsel for the petitioner is that the ist respondent has issued a notification on on 12th March, 1970, whereunder he proposes to divide the panchayat into 3 electoral wards and several blocks attached thereto and such a trifurcation of the panchayat not having been done after consulting the panchayat, the impugned notification has to be struck down.

4. Answering the main contentions of the petitioner, the Government's case is that the present voting strength of the panchayat cannot be taken into account for fixing the strength of members cf the panchayat and such strength has been fixed by the appropriate authority in accordance with the scale prescribed by the Government. It is averred that as the number of members have to be fixed with reference to population, any question relating to population shall be decided only with reference to such population as ascertained at the last preceding census and the latest figures now available being that relating to the 1961 census, it is claimed that the panchayat can only have a strength of 8 members and no more, As regards the other contention of the petitioner that the panchayat was not consulted, it is stated that a notice was issued on 4th Februsry, 1970, and the panchayat also passed a resolution accepting the proposals of the Collector on 23rd February, 1970. No doubt, the panchayat suggested certain modifications, but the appropriate authority could not give effect to such modifications. As the rule enjoins only consultation and not concurrence of the panchayat, the notification is in order.

5. I shall take up the last contention first. I am unable to agree with the learned Counsel for the petitioner that there was no consultation of the panchayat as stated. Apparently the panchayat is agrieved because its counter proposals as regards the trifurcation or division of the panchayat into wards were not fully implemented by the Inspector of panchayats, who is the appropriate authority under the Act. Under Section 16 of the Act, the Inspector, who is invariably the Collector of the District, who is appointed by the Government to exercise or perform any of the powers or duties of the Inspector under the Act, is entitled to realign a revenue village and divide it into wards and determine the number of members to be returned by each ward in accordance with such scale as may be prescribed. Before doing so, however, the Inspector shall consult the panchayat. It is undeniable that in the instant case the Inspector did consult the panchayat. What really happened was that the panchayat made certain counter suggestions to the proposals made by the Inspector. The modifications proposed could not be given effect to as the Inspector was of the view that there were certain administrative difficulties in accepting such modifications. As the word 'consultation' in Section 16 is not to be understood as concurrence, it cannot be said that there has been any violation of the prescribed terms in the statute or in the rules made thereunder, when the Inspector published the impugned 'notification. When a statutory body is empowered to act in consultation with another body corporate, it could only do so by forwarding its, proposals to that other body and await for its comments. On receipt of such comments, which might include modifications or counter-proposa's, the first statutory body is automatically empowered to go ahead and act in the prescribed manner; but it should appear that the objections or modifications proposed by the second consultative body were taken into consideration before a final decision is taken. It appears to me from the record that the objections or the counter suggestion of the panchayat were borne in mind when the impugned notification was given. The last contention therefore fails.

6. As regards the first contention, it is necessary to refer to the relevant provision of law before dealing with the respective contentions of parties. The Madras Panchayats Act, 1958, does not define a ' voter,' but the respondents in their counter-affidavit concede that a person who is ordinarily resident in the panchayat area and who satisfies the age qualifkation is a voter. This naturally means that every qualified resident is a voter and if he is a votei, he is a member of the population. It is in the light of this enunciation that I called out the expression 'statutory population' referred to by me in the opening. 'Statutory population' is the population of a panchayat or an area which enumerates the number of residents in the said area who are qualified to vote. Nevertheless they are undoubtedly a part of the population of the village or panchayat concerned. With this background the relevant sections may be locked into.

7. The words 'estimated population' and 'population' appears in the various sections cf the Act. When a panchayat village cr a panchavat town is formed and when the Inspector classifies and declares any local area as a panchayat village, then the estimated population thereto is taken into consideration. What exactly 'estimated population' is, there is no guidance in the Act. Sections 3 and 5 use the words 'estimated population.' Sections 10 and 15 use the word 'population.' Section 20 dealing with the preparation and publication of electoral roll and qualifications for inclusion therein, provides that every person who is qualified to be included in the electoral roll for any Assembly Constituency as relates to the village or town shall be entitled to be included therein. In the Explanation to Section 20, it is suggested that persons who are resident in the village shall be entitled to be included in the electoral roll. Sub-section (2) of Section 20 says that any person authorised by the prescribed authority in this behalf shall publish in such manner as the Government may direct the electoral roll for the panchayat or alteration to such roll, as the case may be. The Explanation empowers the authority to omit from the electoral roll any person whe is dead or who is disqualified to be included in such electoral roll. Sub-section (3) of Section 20 says that the electoral roll for the panchayat shall be divided into separate parts for each ward. Sub-section (5) has to be reproduced:

Every person whose name appears in the electoral roll for the panchayat shall, so long as it remains in force and subject to any revision thereof which might have taken place and subject, also to the other provisions of this Act be entitled to vote at an election; and no person whose name does not appear in such roll shall vote at an election.

Though the statute uses the words 'estimated population' and 'population' yet there, is, in the statute itself, a provision to reckon the population of the panchayat at a time when the electoral roll is piepared.

8. In view of the sanctions in Section 20 of the Act and in the light of the limitations regarding voting expressly mentioned therein, one canrot but reasonably conclude that the electoral rolls prepared after following the procedure under Section 20, do reflect one section of the population and the enumeration so done, though for a specific purpose, cannot lightly be brushed aside whenever a question arises as to what the population of a village is. Section 20 in emphatic terms supports the view that every person whose name appears in the electoral roll shall be a person who shall be deemed to be a resident of the village and qualified to vote in the respective wards. From the ccmmonserse point of view it means that every such person whose name is included in the electoral roll is a resident of the ward and thereby the resident cf the panchayat, and this fact has to be borne in mind when determining the numerical strength of the population of a village. As this process is reflected in Section 20 of the Act itself, then any rule which might impinge or detract the effect of such an interpretation cannot prevail as it would be repugnant to the Act. The rule-making power under Section 178 of the Act is only to carry out the purposes of the Act. Under Section 178(2)(iv), the Government may make rules as to the determination of the population for the purposes of the Act. Any such rule made by the Government should only be to carry out the purpose of the Act. One of the main purposes cf the Art is seen in Section 20 of the Act which deals with the preparation and publication of the electoial roll for every panchayat. There is a pi escribed scheme for the preparation of such an electoral roll. Once it is published, it is final. No doubt, it is capable of being modified according to the prescribed exigencies. But it is indisputable that no person whose name does not appear in such roll shall vote at an election. Removing the negative from the last sentence quoted, it means that every person whose name does appear in the electoral roll shall crlv vote at the election. A person whose name appears in the electoral roll, as is conceded by the Government in the counter-affidavit, is deemed to be ordinarily resident in the panchayat area. All persons who are ordinarily resident in any area are deemed to be part of the population of that area. Therefore there is a formula or process in the main Act itself which is closely allied with the purposes of the Act, which touches upon the question of the population of the panchayat. This is what I terminologically call as 'statutory population.' In the instant case the statutory population is 6,417. But the case of the Government is that notwithstanding the undisputed fact that the statutory population is 6,417 they had to necessarily take into consideration the population in the village in the last census which was reckoned at about 1001 for purposes of fixing the numerical of the members of the panchayat and this is so under notification No. 8 under which the following rule was made in exercise of the powers conferred by Sub-section (1) and Clause (iv) of Sub-section (2) of Section 178 of the Act;

Determination of population. - If any question arises as to the population of any village, town or any local area or of any part of such village, town or local area for the purposes of the Madras Panchayats Act, 1958, the question shall be decided with reference to the population of such village, town or local area as ascertained at the last preceding census.

In this context it is submitted that it is only the population as ascertained at the last preceding census that should prevail for all purposes including that for the fixation of the number of members of a panchayat. It is no doubt conceded that under notification No. 2 and the rule prescribed thereunder in accordance with Section 10 of the Act, the number of members of a panchayat if the population is between 1,000 and 1,200 is 8; and if it is 6,417, it would be 13. It is stated by the respondents that ths population of Kodambakkam as per the census statistics taken in 1961 is 1,001. Therefore the strength of 8 members as fixed by the 1st respondent is sought to be sustained.

9. It is in the above context that notification No. 2 becomes important. Under this notification the number of members of a panchayat shall be fixed with reference to its population. We have already seen that the number of voters in the panchayat area is 6,417 and this number was reckoned under Section 20 of the Act and after due enquiry and preparation. If the numeral of 6,417, which I have characterised as statutory population, is to be taken into consideration and treated as population, then the number of members of the panchayat shall be fixed at 13. It is in this light that the learned Counsel for the petitioner challenges the notification which fixes the number at 8 instead of at 13. The learned Government Pleader however relies upon the rigid rule contained in notification No. 8 and would sustain the stand of the respondents. The question therefore is that in such circumstances whether notification No. 8 prescribing the rule as above has to prevail or whether the number of inhabitants as reckoned under Section 20 of the Act has to prevail.

10. Section 20 being in the body of the Act has a purpose to serve. Its object it to enumerate the inhabitants and the residents in the panchayat village and consequentially prepare an electoral roll which shall be sacrosanct in so far as the panchayat elections are concerned. As a matter of fact, this section lays down that no person whose name does not appear in the roll shall be entitled to vote. 'Population' is but a reflection of the inhabitation of any area. This is the ordinary concept of population. Is is not denied by the respondents that there ae 6,417 inhabitants in the village as is reflected in the electoral roll prepared for purposes of the panchayat elections. This statutory population has a special significance once it is prepared under the provisions of the statute. Such a reckoning under any express provision of the statute cannot be lightly brushed aside and the inelastic principle in notification. No. 8 pressed into service at all times In the absence of any machinery to determine the number of inhabitants or the population of the village, the fiction in notification No. 8 may be attracted. But when it is common ground that the electoral roll has been prepared under Section 20 of the Act, that gives at least some basis or data for fixing the population of the village. In such a case it cannot be said that a question has arisen as to the population of any village, town or any local area. If the authorities who are enjoined to prepare an electoral roll exercise their public duty and prepare such a roll which discloses the number of inhabitants or residents in the village then it would certainly afford the hypothesis to fix the population of the village. Learned Government Pleader however referred to the decision of this Court in Putla Subbayya v. State of Andhra W.P. No. 621 of 1953. This was under the old Act wherein there was a provision similar to Section 20 of the present Act. In that Act Section 12 also provided for the preparation of the electoral roll and consequentially the enumeration of the voters or residents in the panchayat village. In that case it does not appear that any such electoral roll was prepared which would certainly have given an indicia as to the population of the village. As a matter of face, the poser in that case was between the estimated population and population. There was no real basis on which the authorities could work out the strength of members of the panchayat. In those circumstances Balakrishna Ayyar, J., was of the view that the rule similar to that contained in notification No. 8 had to prevail. But the circumstances in the instant case are different. The statutory population is 6,417. The population according to the last census is 1001. The question is which is to prevail. The former is the strength of the village as found by operation of the provisions of the statute. The latter is the figure to be considered in the light of notification No. 8. It is a well accepted cannon of interpretation that if there is a conflict between a section of the Act and a rule made under (sic) the rule-making authority under the Act and if the above two provisions are in conflict and reconciliation thereto is impossible, then the subordinate provision must give way. No doubt there is a strong presumption that a Legislatureunderstands and correctly appreciates the need of its people and its laws and rules are directed to problems made manifest by experience. But if in the application of such statutory provisions, one is confronted with conflict in the application of the main provisions of the statute and a rule made under the Act, then the former should prevail and the latter should give way. Section 178, under which notification No. 8 is made, is intended to carry out the purposes of the Act. One of the purposes of the Act as disclosed in Section 20 is to prepare an electoral roll which shall be final and binding in so far as the panchayat elections are concerned. This roll when prepared and published in accordance with Section 20 unreservedly discloses the number of residence or inhabitants of the village. 'Population' is understood even in the dictionaries as constituting the inhabitants of any area or place. This being the meaning of 'population' in common parlance, the number of residents who are deemed to be voters in the panchayat area shall necessarily constitute a section of the population of the village and there pan be no two opinions about it. If this is the irresistible conclusion which one is constrained to arrive at on a fair reading of Section 20 then it would be highly technical to enforce notification No. 8 and reckon the population on a fictional basis and reckon it at the figure as arrived at in the last census. When realities are facing a situation, there is no room for fiction. If notification No. 8 is applied in this case, as it has been done, then it would result in the purport and purpose of Section 20 being ignored. As the intendment of a rule is to further the purpose of an Act and not to ignore it, in the instant case I am of the view that notification No. 8 cannot be applied to fix the strength of the panchayat. There is therefore an undersigned lacuna in notification No. 8 in the circumstances confronting me in this Writ Petition. It is for the Legislature to amend notification No. 8 so as to bring it in consonance with the purport and spirit of Section 20 of the Act. Thus, if there is an enumeration under Section 2o the numeral so enumerated for the preparation of the electoral roll shall be a part of the population and this being unquestionable, notification No. 8 cannot be attracted and pi essed into service. When there is no enumeration under Section 20 and when no electoral roll has been prepared and when there is therefore no hypothesis or data to arrive at the total or part of the number of residents or inhabitants of the panchayat village, then possibly notification No. 8 may be attracted and the fiction may intercept and decide the issue. But in a case like this, the 1st respondent was not right in having preferred fiction to reality. In that respect the notification suffers from an infirmity as the number of members fixed for the panchayat by the 1st respondent is not in consonance with notification No. 2 referred to above. One other cardinal canon of interpretation is that the provisions of the Act including the rules thereto must be understood harmoniously and worked together. If notification No. 8 is to prevail and has to be adopted as is done by the 1st respondent, then there will be no such harmony, for such an application of the rule would be directly in conflict with notification No. 2 as well as Section 20 of the Act. Under these circumstances the rule nisi is made absolute and the writ petition is allowed.

There will be no order as to costs.


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