S MURUGESAN Vs. COLLECTOR OF NORTH ARCOT INSPECTOR OF PANCHAYAT VELLORE CUM ELECTION AUTHORITY NORTH ARCOT

JUDGEMENT

(1.) THE petitioner claims the issuance of a writ of quo warranto, directing respondents 2 to 14 to exhibit information as to the authority under which they could perform the duties of the members of the panchayat of Takkolam. THE facts giving rise to these proceedings may be briefly narrated. Takkolam is a whole revenue village of North Arcot district, which was constituted as a panchayat in 1917. Under the Madras village Panchayats Act, 1950, it was classified as a second-class panchayat. After the Act of 1950 came into force, a notification under section 61 of that act was issued on 22nd December, 1952, fixing the strength of the panchayat at eight exclusive of the President and there was no reserved seat for the scheduled Castes. Subsequently, by a notification dated 8th March, 1958, the then Regional Inspector of Municipal Councils and Local Boards, North Arcot district, fixed the strength of the panchayat at fifteen, and divided the village into five wards, allocating 4, 4, 2, 2 and 3 to Wards Nos. 1, 2, 3, 4 and 5 respectively. It may be mentioned here, that this time also, no reservation was made for Scheduled Castes. This notification was considered by the panchayat and approved at its meeting held on 19th March, 1958.

(2.) ON 1st June, 1961, the Collector of North Arcot classified Takkolam as Class I panchayat, as required by section 5 (1) (a) of madras Act X of 1950, with effect from 1st April, 1961, since the population of that village had increased to 6,105 Meanwhile, Madras Act XXXV of 1958, hereinafter referred to as the Act, which consolidated all the law in relation to local administration, was put on the statute book. In accordance with the scale prescribed under section 10 of this enactment, the strength of the panchayat as also the number of wards was proposed to be fixed at thirteen. Even now, no reservation for the Scheduled Castes was proposed. This proposal was considered and accepted once again by the panchayat at its meeting held on 21st August, 1964, the meeting being attended by thirteen, including the petitioner and the proposal was accepted unanimously. The notification fixing the strength of the panchayat, as also the number of wards, was published in the Fort St. George Gazette Supplement, Part II, dated 9th December, 1964. Subsequently, elections were held on 28th January, 1965, and respondents 2 to 12 were declared elected. Questioning the validity of these elections, this writ petition has been filed for the relief mentioned above. In support of this petition, three contentions are urged by Sri S. Mohan Kumaramangalam: (i) The panchayat was not validly constituted, as no notification contemplated by section 3 of the Act was issued (ii) the non-reservation of seats for the members of the Scheduled Castes had nullified the elections and (iii) the division of the village into wards by the Inspector was without jurisdiction, as no Rules prescribing the scale in accordance with which the division was to be effected, were formulated by the Government and this had rendered all the elections void.

(3.) ADMITTEDLY, no Rules were framed, prescribing the scale for the division of wards. How far does this absence of Rules divest the inspector of his jurisdiction to effect a division envisaged in this section" at the outset, it should be remembered that the prescribing of the scale is not compulsory. It is only an enabling provision. If that were so, how could it be postulated that the omission to frame Rules would disable the Inspector to carry out his statutory duties" This section makes it imperative for the inspector to divide the panchayat into wards after consulting the panchayat and conformably to the scale if it is prescribed. If the Government, which is the authority to make the Rules by virtue of section 178, fails to exercise that power in relation to this section, it could not be postulated that there could be no division of the panchayat into wards and elections to that panchayat based Upon this division. The Government is under no obligation to make the Rules, as the language used in that section is one of mere permission. This, in our opinion, does not absolve the Inspector from discharging the duty which is of a mandatory nature. This is not a case of a power coupled with a duty, in which case it might plausibly be contended that the power could not be exercised without fulfilling the obligations cast upon the Inspector. In this position, it is futile to contend that, as the Inspector has to divide the village in accordance with any scale that might be prescribed by the Government, and, as the scale was not prescribed, he has no jurisdiction to effect that division. Narendra Kumar and others v. The Union of India and others1cited to Us by the learned Counsel for the petitioner does not lend any colour to the proposition advanced by learned Counsel for the petitioner. The main question that arose there was whether the restrictions imposed by the Non-ferrous Metal Control order on dealers in non-ferrous metal could come within the saving provision of articles 19 (5) and (6) of the Constitution. It arose in a petition filed by three dealers in imported copper and carrying on their business at Jagadhri in the State of Punjab under section 32 of the Constitution for the enforcement of their fundamental rights. These persons entered into contracts of purchase of copper with importers of Bombay and Calcutta, and, before they could take delivery from the importers, the Government of India issued, on 2nd April, 1958, an Order called Non-ferrous Metal Control Order, 1958. Non-ferrous metal was defined in that order to mean: ' Imported copper, lead, tin and zinc in any of the forms specified in the schedule of the order.' The price was controlled by clause 3 of that Order, which provided in subclause (1) that ' no person shall sell or offer to sell any non-ferrous metal at a price which exceed the amount represented by an addition of 3' per cent. to its landed cost.' and, in its second sub-clause, that: ' no person shall purchase or offer to purchase from any person non-ferrous metal at a price higher than at which it is permissible for that other person to sell to him under sub-clause (1 ).' Clause 4, which was designed to regulate the acquisition of non-ferrous metal by permit only, provided that: 1. 1960 S. C. J. 214: (1960) 2 S. C. R. 375. no person shall acquire or agree to acquire any non-ferrous metal except under and in accordance with a permit issued in this behalf by the Controller in accordance with such principles as the Central government may from time to time specify. " The Central Government had not specified any principles to regulate the distribution and supply of commodities. That being so, no permits could be issued to enable any dealer to deal in this metal. On the face of it, clause 4 of the Order read with the principles specified in the letter sent by the Government had the effect of completely eliminating the dealers from the trade in imported copper. It was also plain that, independently of clause 4, the fixation of price at which the copper could be bought and sold at 3' per cent. above the landed cost had the effect of driving the dealer out of the business in imported copper, since the importer could charge 3i per cent. from the dealer and the dealer was prevented from charging anything more than 3' per cent. over the landed cost from the consumer. The position was, therefore, clear that, thenceforth, the actual consumer of the commodity would have to get it direct from the importer. It is in that context that their Lordships of the Supreme court observed thus at page 391: ". . . . . . so long as the principles are not specified by the Central Government no permit can be issued by the Controller. Enforcement of the provisions that no person shall acquire or agree to acquire except under a permit, would thus, so long as the principles are not specified in a legal manner as required by sub-sections (5) and (6) of section 3 of the essential Commodities Act, would mean a total stoppage of the copper trade-not only of the transactions of dealers but of any transaction whatever in imported copper. On the face of it this could not be a reasonable restriction in the interests of the general public. There is no escape therefore from the conclusion that so long as the principles are not specified by the Central Government by an Order notified in accordance with sub-section (6) and laid before both houses of Parliament in accordance with sub-section (6) of section 3, the regulation by clause 4 as it is now worded is not within the saving provisions of Articles 19 (5) and 19 (6) of the Constitution, and is void as taking away the rights conferred by Articles 19 (1) (f) and 19 (1) (g ). "