JITUBHA KALYANSANG Vs. PARMAR RANUBHA NARSANGJI

JUDGEMENT

(1.) Can a member of a Taluka Panchayat elected under sec. 14(1)(B)(iii) of the Gujarat Panchayats Act VI of 1962 offer himself for co-optation as a member of that Panchayat and he co-opted and furthermore after such co-optation can be in exercise of his right to vote cast two votes in an election for the office of the President of that body under sub-sec. (2) of sec. 14 ? These are the two questions arising in this petition.

(2.) The petitioner was elected Sarpanch of the Pandevra Gram Panchayat in Muli Taluka in District Surendranagar and as such became an ex-officio member of the Muli Taluka Panchayat under sec. 14(1)(i) of the Act. Respondent No. 1 was elected as a member of the Ma Taluka Panchayat respondent No. 3 herein. He having been elected by and from amongst the Chairmen of the co-operative societies operating within the taluka was declared elected on March 2 1963 under sec. 14(1)(B)(iii) of the Act. Respondent No. 2 is a co-opted member of the third respondent co-opted under sec. 14(1)(C)(vii) from amongst the social workers residing in the taluka. On March 12 1963 respondent No. 4 as the Block Development Officer called a preliminary meeting for choosing co-opted members. Respondents Nos. 1 and 2 were the only candidates from the category of persons as provided in sec. 14(1)(C)(vii) and as they were the only candidates from that category they were declared co-opted by respondent No. 5 who was the presiding officer. The result was that respondent No. 1 held membership of the third respondent panchayat in two capacities (1) as an elected member elected by and from amongst the Chairmen of the co-operative societies and (2) as a co-opted member. Therefore his tenure as an elected member would expire on his ceasing to be the Chairman of his co-operative society but his tenure of office as a co-opted member would be co-terminus with the term of the third respondent panchayat. Thereafter on March 12 1963 respondent No. 5 issued a notice convening a meeting of all the members i. e. ex office elected and co-opted members for the election of the President. Respondents 1 and 2 were the rival candidates for the post of the President At the end of the election respondent No. 5 declared respondent No. 1 as having been elected President. In that election respondent No. 1 received one vote more than respondent No. 2. As respondent No. 1 held membership in the third respondent panchayat in more than one capacity one as an elected member and the other as a co-opted member he was given two ballot papers and it is an admitted fact that he cast two votes for himself and it was that only that he got one more vote that respondent 2 and was declared elected. If he was allowed only one ballot paper and had cast only one vote there would have been a tie between him and the second respondent and respondent No. 5 in that event would have had to cast lots under the provisions of sec. 55 and the result would have then depended on the casting of such lots.

(3.) In fairness to the fifth respondent it must be stated that he allowed two ballot papers to respondent 1 and permitted him to cast two votes relying on a circular issued by the Government of Gujarat in the Rural Development Department dated March 8 1963 The circular how ever was issued to clarify the question whether a Sarpanch of a village panchayat if he was also a Chairman of a co-operative society and was elected from amongst and by the Chairmen of the co-operative societies in the taluka could become a member of the taluka panchayat in two capacities namely as an ex office member and as an elected member and whether such a person could record two votes in an election for co-opted members and lastly whether such a person could record two votes in an election for the office of the President or the Vice President. The circular after considering sec. 43 and the Gujarat Taluka/District Panchayats (Co-optation of Members) Rules 1952 and the Gujarat Taluka and District Panchayats (President and Vice President) Election Rules 1962 stated that at a meeting for co-optation ex officio and elected members were eligible to vote and at a meeting for election of a President and a Vice President ex of also and also co-opted members were voters. It further stated that since a person could become a member of a taluka panchayat in two capacities as an ex officio and as an elected member he could vote twice both at the meeting for co-optation and at the meeting for election of a President and a Vice President in his capacity as an ex officio member and in his capacity as an elected member The ground given for this opinion was that there was nothing in the Act or the rules to prevent him from voting twice at the co-optation metting as well as at the metting for the election of a president or a Vice President once in his capacity as an ex officio member and secondly in his capacity as an elected member. It will be observed that this circular dealt with the case of a person who held the office of a member in two capacities (1) because of his being a Sarpanch of a Gram Panchayat and therefore an ex officio member and (2) because of his having been elected by and from amongst the chairmen of co-operative societies. Since respondent No. 1 was not such a person as he was an elected member and a co-opted member the circular would not apply to him as it did not deal with the case of the dual capacity held by him as an elected and a co-opted member. At best however the circular was an opinion of the Govern- ment which would not be binding.