RANCHHODBHAI JETHABHAI Vs. PARSHOTTAM GALABHAI

JUDGEMENT

(1.) These two petitions involve an identical question of law and the facts giving rise to the two petitions are also identical the only difference being that one relates to the election of Sarpanch while the other relates to the election of Upa-Sarpanch of Kava Gram Panchayat. The first meeting of the Kava Gram panchayat for election of Sarpanch and Upa-Sarpanch was convened at 9-00 A M. on 1st July 1967. Two nomination papers one by the petitioner in Petition No. 168 of 1968 for election as Sarpanch and the other by the petitioner in Petition No. 164 of 1968 for election as Upa-Sarpanch were delivered to the Presiding Officer at 7-00 A. M. on the date of the meeting. So also two nomination papers one by first respondent in Petition No. 168 of 1968 for election as Sarpanch and the other by the first respondent In Petition No. 164 of 1968 for election as Upa-Sarpanch were delivered to the Presiding Officer on the same day but at 7-55 A. M. When the meeting was held at 9.00 A. M. the Presiding Officer after scrutinising the nomination papers declared the petitioner and the first respondent in Petition No. 168 of 1968 to have been duly nominated for election as Sarpanch and the petitioner and the first respondent in Petition No. 164 of 1968 to have been duly nominated for election as Upa-Sarpanch. The members present at the meeting thereafter proceeded to elect the Sarpanch and the Upa-Sarpanch and the first respondent in Petition No. 168 of 1968 was declared to have been duly elected as Sarpanch and the first respondent in Petition No. 164 of 1968 was declared to have been duly elected as Upa-Sarpanch both having secured larger number of votes than the petitioners who were the rival candidates. The petitioner in Petition No. 168 of 1968 thereupon raised a dispute as to the validity of election of the first respondent as Sarpanch on the ground that nomination paper of the first respondent was delivered to the Presiding Officer at 7-55 A. M. which was less than two hours before the time fixed for the meeting and that the first respondent was therefore not validly nominated for the office of Sarpanch and this dispute was referred by the petitioner for the decision of the Taluka Development Officer as the competent authority under sec. 44 sub-sec. (6) of the Gujarat Panchayats Act 1961 The Taluka Development Officer decided the dispute against the petitioner on the ground that the petitioner had failed to take an objection in writing at the time when the nomination paper of the first respondent was accepted by the Presiding Officer and that it was therefore not open to the petitioner to challenge the validity of election of the first respondent on that ground. The petitioner thereupon filed Petition No. 168 of 1968 challenging the validity of the election of the first respondent as Sarpanch and seeking a direction that the petitioner be declared elected as Sarpanch. The petitioner in Petition No. 164 of 1968 did not approach the Taluka Development Officer as the competent authority but straightaway filed Petition No. 164 of 1968 praying that the election of the first respondent as Upa-Sarpanch be set aside and he be declared elected as Upa-Sarpanch.

(2.) Now in order to appreciate the arguments which have been advanced before us it is necessary to refer briefly to a few provisions of the Act and the Rules. Sec. 44 sub-sec. (1) provides that on the constitution of a gram or nagar panchayat or on its reconstitution under sec. 17 or under any other provision of the Act there shall be called the first meeting thereof for the election of its Sarpanch and Upa-Sarpanch. Sub- sec. (3) of sec. 44 proceeds to say that the first meeting shall be presided over by such officer as the competent authority may by order appoint in that behalf and such officer shall have such powers and follow such procedure as may be prescribed but shall not have the right to vote. The only business which can be transacted at the first meeting is as provided in sec. 44 sub-sec. (4) election of Sarpanch and Upa-Sarpanch. Now there is no provision In sec. 44 or in any other part of the Act which lays down the manner of election of Sarpanch and Upa-Sarpanch at the first meeting and that is clearly contemplated to be provided by rules to be made by the State Government under the Act. Sec. 323 confers rule- making power on the State Government and it says that the State Government may by notification in the Official Gazette make rules for carrying out the purposes of the Act. One of the purposes of the Act clearly is election of Sarpanch and Upa-Sarpanch of the Gram Panchayat. The State Government has therefore in exercise of the powers conferred under sec. 323 made Gujarat Gram and Nagar Panchayats (Sarpanch and Upa- Sarpanch Chairman and Vice-Chairman) Election Rules 1962 Rule 3 provides that the first meeting convened for the election of the Sarpanch shall be held at such place as may be fixed by the Presiding Officer and Rule 4 requires the Presiding Officer to cause a notice of such meeting to be gIven to every member of the Panchayat at least three clear days before the date of such meeting. It was in accordance with these Rules that the first meeting of the Kava Gram Panchayat was called by the Presiding Officer at 9-00 A. M. on 1st July 1967. Rule 6 is the next important rule and It is on the construction of this rule that the entire controversy between the parties depend. That rule reads as under.

(3.) When the hearing of the petitions commenced a preliminary objection was raised on behalf of the first respondent in each petition and the preliminary objection was that since the petitioner had not objected to the validity of the nomination paper of the first respondent at the time whom the Presiding Officer scrutinised the nomination papers and declared the petitioner and the first respondent to have been duly nominated the petitioner was not subsequently entitled to challenge the validity of the election of the first respondent on the ground that the nomination paper was wrongly accepted by the Presiding Officer. We do not think this preliminary objection Is well-founded. It proceeds on the assumption that the petitioner could have raised an objection before the Presiding Officer that the nomination paper of the first respondent was Invalid on the ground that It was delivered to the Presiding Officer In breach of the requirement of Rule 6. If we look at Rule 8 It is clear that there is no provision In that rule requiring the Presiding Officer to permit candidates to take Inspection of the nomination paper and to raise objections to the validity of the nominations for the decision of the Presiding Officer. The provision contained In Rule 8 is a significant departure from that contained In the corresponding rules relating to other elections under the Act. Rule 10 of the Gujarat Gram and Nagar Panchayats Election Rules 1962 provides in so many terms that the Returning Officer shall allow intending candidates reasonable facilities for examining the nomination papers and he shall examine the nomination paper and decide all objections raised before him against any nominations. Similar provision is also made in Rule 9 of the Gujarat taluka Panchayats (Election) Rules 1962 and Rule 14 of the Gujarat District Panchayats (Election) Rules 1962 Rule 8 however does not make any such provision and merely says that at the first meeting the Presiding Officer shall scrutinise the nomination papers delivered to him under Rule 6 and shall thereafter read out the names of the members who in its opinion have been duly nominated. Rule 8 does not contemplate giving of any opportunity to the intending candidates to examine the nomination papers or to raise objection to the validity of the nominations nor does it contemplate decision of any such objections by the Presiding Officer. It cannot therefore be urged against she petitioner that he did not object to the validity of the nomination of the first respondent before the Presiding Officer. As a matter of fact there is nothing to show that the petitioner was aware at the time when the Presiding Officer declared both the petitioner and the first respondent to have been duly nominated that the nomination paper of the first respondent was delivered to the Presiding Officer at 7-55 A. M. The challenge of petitioner to the validity of the election of the first respondent cannot therefore be thrown out on the ground that be ought to have raised an objection to the validity of the nomination of the first respondent before the Presiding Officer and since he failed to do so he must be deemed to have acquiesced in the validity of the nomination of the first respondent. Acquiescence postulates knowledge and since there is nothing in the present case to show knowledge on the part of the petitioner of the defect in the nomination of the first respondent the doctrine of acquiescence cannot debar the petitioner from claiming relief under Article 226 if he is otherwise found entitled to it.