BHAGWANDEV GOPALDAS SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner challenges the order of the Taluka Development Officer Morvi dated February 23. 1968. appointing opponents Nos, 5 and 6 as members of the Gram Panchavat of Tankaria village in purported exercise of power under the provisions of sub-section (1) of Section 53 of the Guiarat Panchavat Act. 1961 (hereinafter referred to as the Act).

(2.) Shortly stated. the facts are that the general election of the members of the Tankaria Gram Panchavat was held on December 8. 1967. in which the petitioner had contested two seats from Ward No. I and Ward No. 4, The result of the election was declared on December 11. 1967 and the Petitioner was declared to have been elected from both the wards. It is the say of the petitioner that after publication of the result of election he acting under Rule 37 of the Gujarat Gram and Nagar Panchavats Election Rules, 1962 (hereinafter referred to as the Rules). had sent his resignation to the Taluka Development Officer on December 11, 1967, as a member elected from Ward No. 1 and bad also declared that he continued to be a member of the Panchavat from Ward No. 4. He had sent his resignation letter under a postal certificate. Pursuant to the declaration of the result of the members of the Panchavat, a notice of election of Sarpanch, and Up- Sarpanch of the Gram Panchavat was issued on December 21. 1967 to every elected member of the Panchavat, No such notice was received by the Petitioner and so he ed-4 dressed a letter to the Taluka Development Officer. Morvi, on December 22, 1967. asking him why be had not been informed about the election of Sarpanch and Up-Sarpanch. On the same day he wrote another registered letter to the Taluka Development Officer to accept his resignation as a member from Ward Na I from December 11, 1967. In this letter, the Petitioner referred to his earlier letter dated December 11. 1967 and requested the officer to accept his resignation with effect from December 11, 1967. The Taluka Development Officer replied to this letter of the Petitioner by his letter dated December 26, 1967. In which he stated that as the Petitioner had not sent his resignation from one of the two seats within 7 days from December 11. 1967, to the Returning Officer his election had become void as contemplated under R. 37 f the Rules. The petitioner. therefore, filed Miscellaneous Application No. 146 of 1967 in the Court of the Civil Judge Senior Division, Gondal-Morvi. under Section 24 of the Act for a declaration that he was elected from Ward No. 4 of the Tankaria Gram Panchavat. The Court dismissed the petition as not maintainable. During this period on February 23. 1968. a copy of the order of the' Taluka Panchavat was placed on the notice-board of Gram Panchayat stating that according to the orders of the Government of Gujarat No. CH. TA. NA. 3067-7410 CH dated November 16 ' 1967. It was not possible to hold election of members for the vacant seats as elections of District Panchavats and Taluka Panchavats were to take Place in the month of February and March. It was further stated that in pursuance of the Resolution No. 6 dated August 6, 1967. of the Gram Panchavat two seats in Wards Nos. I and 4 had become vacant and opponents Nos. 5 and 6 have been appointed as members from Wards Nos. 1 and 4 respectively.- as per the provisions of -Section 53 (1) of the Act and the tenure of their office would be as -per the tenure of the Panchavat. The petitioner has averred that opponent No. 6 had contested election from Ward No. 4 against the petitioner but he was defeated thereat. The petitioner challenges, this order dated February 23, 1968, of appointments of opponents Nos. 5 and 6 as members in Wards Nos. 1 and 4 in this Court mainly on two grounds. The first is that the power of appointment conferred by the Provisions of sub-section (1) of Section 53 of the Act is conditional. the condition being. that "no member is so elected at the election", i.e.. the power of appointment can be exercised only when an election is held and no member is so elected. It does not cover a case in which no election is at all held. An order of appointment can be passed only in a case where an election is held. In the instant case admittedly no election was held and therefore the Taluka Development Officer who was the competent authority had no Power to pass the impugned order. The said order was therefore. bad and. illegal. The second contention was that the petitioner had exercised his option under Rule 37 of the Rules by sending his resignation as an elected member from Ward No. 1 and claiming to continue as an elected member from Ward No. 4 to the Taluka Development Officer within the stipulated time. The result was that the impugned order of appointment of opponent No. 6 as a member of the Panchavat from Ward No. 4 is invalid and illegal as there was no vacancy. the power under S. 53 of the Act of appointing a member could not be invoked. The Petitioner claims a relief that he be declared an elected member from Ward No. 4 to the Gram Panchavat that the order appointing opponents Nos. 5 and 6 as members of the Panchavat from Wards Nos. 1 and 4 respectively be quashed and the opponents be restrained by an order of injunction from acting in pursuance of the said order of appointment. Opponent No. 1 to the petition is State of Gujarat. Opponent No. 2 is the Gram Panchayat. Tankaria, opponent No. 3 is Mr. P. J. Pathak the Taluka Development Officer, Morvi. Opponent No. 4 is Mr. C. M. Bhojani. Returning Officer. Morvi Opponent No. 5 is Koringa Thobban Laxman and Opponent No. 6 is Saman Alarakha Daud.

(3.) On behalf of the State an affidavit is filed by Mr. R. G. Mehta successor-in office of Shri P. J. Pathak. the then Taluka Development Officer. Morvi contending that this special application is barred by the provisions of Section 24 of the Act. that the petitioner had not sent his letter of resignation to the Taluka Development Officer on December 11, I967, that 'be Taluka Development Officer Morvi. had not received the said letter that the petitioner concocted and created the -postal certificate referred to by him, that the two seats had become vacant under the provisions of Rule 37 (3) of the Rules and as no election was held to fill in the vacancies. the order appointing opponents Nos. 5 and 6 as made by the Taluka Development Officer was valid and legal. This petition came up for hearing before a Single Judge of the Court who did not agree with the interpretation put by J. B. Mehta J. in Special Civil Appln. No. 915 of 1968 decided on 20-3-1969 (Guj.). in which Section 19 providing for appointment of members In lieu of the elected members came to be interpreted and Particularly the interpretation put by him on the expression" and the persons so appointed shall be deemed to have been duly elected to the relevant Panchayat" This expression was interpreted to mean that the Legislature by providing that requisite number of persons being returned by Process of appointment created a fiction that the -process of appointment was a process of election and the appointment so made could be challenged only before an Election Tribunal constituted under Section 24 of the Act. Section 53 also uses the same expression and. therefore, 'the Single Judge referred to this Petition to a Division Bench and now it is placed before us for final hearing.