PATEL RATNABHAI UKABHAI Vs. RUPJIBHAI FULJIBHAI VALVI

JUDGEMENT

(1.) This petition raises a short question whether the Civil Judge (Junior Division) has jurisdiction under sec. 24 of the Gujarat Panchayats Act 1961 to entertain an application challenging the validity of co-optation of a member of a Taluka Panchayat. The preliminary meeting of the Nizar Taluka Panchayat for co-optation of members under sec. 14 sub-sec. (14 Part C was held on 22nd February 1968 and at that meeting the petitioner was chosen as a co opted member. The first respondent who was the defeated rival candidate thereupon preferred an application before the Civil Judge Junior Division Vyara challenging the co-optation of the petitioner on certain grounds which it is not necessary to set out for the purpose of the present petition. Immediately after filing the application which was numbered Miscellaneous Election Petition No. 3 of 1968 the first respondent applied to the learned Civil Judge for interim relief and on that application an ex parte order was made by the learned Civil judge granting interim injunction restraining the Taluka Development Officer from holding the election of the President and Vice-President of the Nizar Taluka Panchayat at its first meeting proposed to be held on 1st March 1968 and calling upon the Taluka Development Officer to show cause why such interim injunction should not be made absolute. Since in the view of the petitioner the learned Civil Judge had no jurisdiction to entertain the application challenging the validity of co-optation of the petitioner and in any event even if such jurisdiction existed the learned Civil Judge had no power to grant the interim injunction the petitioner preferred the present petition seeking a writ of prohibition restraining the learned Civil Judge from proceeding further with the application as also a writ of certiorari quashing and setting aside the ex parte order made by the learned Civil Judge.

(2.) At the commencement of the bearing a preliminary bjection was raised on behalf of the first respondent and the preliminary objection was that it was open to the petitioner to appear before the learned Civil Judge and raise an objection 8s to jurisdiction and if the objection as to jurisdiction was decided against the petitioner the petitioner could approach this Court and seek its interposition but at the present stage without raising the question of jurisdiction before the learned Civil Judge and giving an opportunity to the learned Civil Judge to decide whether or not he had jurisdiction to entertain the application the petitioner should not be permitted to bye-pass the learned Civil Judge and directly approach this Court by invoking its extraordinary jurisdiction under Article 226 of the Constitution. Now it is undoubtedly true that issuance of a high prerogative writ under Article 226 of the Constitution is always a matter of discretion with the Court but the principles on which discretion must be exercised vary in the case of different writs. So far as the writ of prohibition is concerned the principle governing the exercise of discretion in issuing it was laid down by Mr. Justice Venkatarama Ayyar in Bengal Immunity Co. Ltd. v. State of Bihar A.I.R. 1956 S.C. 661 at page 726:

(3.) Turning to the merits the main question which arises for consideration is whether learned Civil Judge has jurisdiction to entertain the application challenging the validity of the co-optation of the petitioner as a member of the Nizar Taluka Panchayat. Now the only provision under which jurisdiction could be invoked and was sought to be invoked on behalf of the first respondent was sec. 24 and it is therefore necessary to have a look at that section. Sec. 24 sub-sec. (1) reads: If the validity of any election of a member of a panchayat is brought in question by any person qualified to vote at the election to which such question refers such person may at any time within fifteen days after the date of the declaration of the results of the election apply to the Civil Judge (Junior Division) and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) (hereinafter referred to as the Judge) having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question. The language of the sub-section is clear and explicit and does not admit of any doubt or debate. It confers jurisdiction on the Civil Judge Junior Division to determine any question relating to the validity of election of a member of a Panchayat. It does not give jurisdiction to determine any question relating to the validity of co-optation of a member of a Panchayat. The word used in the sub-section is election and not co-optation. Election and co-optation are two different concepts and there is a clear well-marked distinction between the two running through the entire Act. It is no doubt true that under sec. 43 co-optation is required to be made in the prescribed manner and the manner prescribed by the Gujarat Taluka and District Panchayats (Co-optation of Memeers) Rules 1962 employs the process of election for choosing co-opted members and in that sense there is a process of election involved in co-optation of co-opted members. But the question before us is not as to what is the process employed in co-optation of co-opted members. We are concerned with a very narrow question namely as to what is the meaning of the word election in sec. 24 sub-sec. (1). Does it include co-optation and so far as that question is concerned the scheme of the Act clearly shows that the word election is not used so as to include co-optation. Sec. 14 provides for the constitution of a Taluka Panchayat and says that a Taluka Panchayat shall consist of four classes of members namely ex officio elected co-opted and associate members. Part B dealing with elected members provides for election of members by the Chairmen of all co-operative societies situate within the Taluka from amongst themselves. Part C speaks of co-opted members and provides for co-optation of two members each from four different categories of persons. The object of co-optation clearly is that since the elected members are to come from a limited source namely Chairmen of co-operative societies there should be as comprehensive a representation as possible of other Interests and elements and that is why Part C provides for co-optation of members from women workers representatives of Scheduled castes and Tribes and social workers with practical experience in matters pertaining to rural development. We find a distinction made here between elected members and co-opted members. The same distinction is also to be found when we turn to sec. 15 which provides for the constitution of a District. There also there are elected members and co-opted members. The next section to which were may turn is sec 19 which provides that if for any reason an election does not result in the return of the required number of qualified persons willing to take office then such persons as are necessary to make up the required number shall be appointed by the authorities specified in the section. This section may be compared with sec. 43A which deals with a situation where the required co-opted members are not chosen. If election included co-optation sec. 19 would have covered both kinds of cases and it would not have been necessary for the Legislature to enact sec. 43A to deal with The case of co-optation. Sec. 22 sub-sec. (3) also throws light on this question and brings out clearly and forcibly that election within the meaning of the Act does not include co-optation. The provision enacted in sec. 22 sub-sec. (3) declares that every person qualified to be elected shall be qualified to be appointed or co-opted as a member of a Panchayat. Election and co-optation are clearly and indisputably regarded as two distinct and different concepts. Even if any doubt were left after a consideration of these sections it is completely laid at rest if we look at sec. 25. That section provides that if any member of a Panchayat who is elected or appointed or co-opted as such was subject to any of the disqualifications mentioned in sec. 23 at the time of his election appointment or co-optation as the case may be or during the term for which he has been elected appointed or co-opted incurs any of the disqualifications mentioned In sec. 23 he shall be disabled from continuing to be a member and his office shall become vacant. The words election................... or co-optation as the case may be leave no doubt that the Legislature did not regard co-optation as included within election but regarded the two as distinct and separate moSes of acquiring membership of a Panchayat. This conclusion also finds further support from sec. 26 which says that if the election of any member is set aside under sec. 24 or if his office becomes vacant under sec. 25 a fresh election or co-optation for the vacancy so caused shall as soon as may be be held in accordance with the provisions of the Act. Lastly when we turn to sec. 43 we find that the Legislature has scrupulously avoided using the word election while dealing with co-optation of members or a Taluka Panchayat. Sec. 43 sub-sec. (1) says that subject to the provisions of sub-sec. (2) a Taluka Panchayat shall choose its co-opted members in the prescribed manner. Undoubtedly the prescribed manner is a manner which is assimilated to an election and even in one of the rules there is a reference to the place of election but so far as the Legislature is concerned it has described the process of co-optation of members as choosing of co-opted members to distinguish it from election of members dealt with in the earlier sections. The legislative intent is therefore clear and manifest that election does not include co-optation. The Legislature has as it were given its own dictionary using election to describe one mode of acquiring membership of a Panchayat and co-optation as another mode of acquiring membership of a Panchayat. It is also a point of some significance that sec. 24 occurs in a fasciculus of sections commencing from sec. 20 and ending with sec. 42 which is headed Provisions relating to Elections while secs. 43 and 43A which deal with co-optation of members do not fall under this heading but they fall under a different heading namely Co-optation of Members. Sec. 24 sub-sec. (1) must therefore be held to be inapplicable in a case where the validity of co-optation of a member of a Panchayat is brought in question. The Civil Judge mentioned in sec. 24 sub-sec. (1) would have no jurisdiction to entertain an application challenging the validity of co-optation of a member of a Panchayat. It is undoubtedly true that the result of taking this view would be that there would be no remedy within the four corners of the Act for a person who wishes to challenge the validity of co-optation of a member of a Panchayat. But that need not deter us from placing upon the language of sec. 24 sub-sec. (1) the construction which we think is the right construction. If the Act does not provide a remedy for challenging the validity of co- optation of a member of a Panchayat the remedy of z suit would always be open to the aggrieved person and there would be no hardship or injustice to him. But as a matter of fact we find that the Legislature has now by Gujarat Act I of 1968 introduced sec. 43D providing a remedy in case a dispute arises as to the validity of co-optation of a member of a Panchayat. This section has not yet been brought into force but it does indicate that the Legislature was not unaware of the difficulty which may be experienced by a person having to file a suit in a Civil Court for challenging the validity of co-optation.