RAJMAL MISHRILAL JAIN Vs. COLLECTOR JHABUA

JUDGEMENT

(1.) THERE is a common question involved in all these petitions on account of which they shall all be disposed of by this order. Misc. Petition Nos. 1, 13, 22 and 25 of 1974 are by the Presidents of different Janpada Panchayats, while Misc. Petitions Nos. 2, 21, 23, 24, 31 and 82 of 1974 are by Sarpanches of different Gram Panchayats in District Jhabua. The common question involved in all these petitions is the effect of amendment of section 21 of the M. P. Panchayats Act, 1962 (hereinafter referred to as the Principal Act)relating to Gram Panchayats and section 111 thereof relating to Janpada panchayats, by M. P. Act No. 17 of 1972 (hereinafter referred to as the Amending Act ).

(2.) IN all these petitions, the petitioner was elected the Sarpanch/president prior to the amendment made in sections 21 and 111 of the Principal Act by the Amending Act No. 17 of 1972 brought into force with effect from 24-7-1972. By virtue of sections 22 and 112 of the Principal Act, the Sarpanch/president had the right to continue in that office for a term of five years subject only to the provisions contained in the Act enabling their removal before expiry of the term. Admittedly, this term of five years in each of these cases has not yet expired. In substance, the effect of the aforesaid amendment of sections 21 and 111 of the Principal Act is that in the Panchayat wherein not less than fifty-one percent of the Panchas belong to the Scheduled Tribes, the Sarpanch/president shall be elected from amongst the members belonging to such tribes. It is common ground before us in all these petitions that each of these Panchayats was at the time of its constitution prior to the amendment of this type so that the amended provisions would undoubtedly be attracted provided the same are retrospective in operation. The necessary consequence of applying the amended provisions would be to nullify the election of the petitioners even though held prior to the amendment since, in each of these petitions, the petitioner is not a member of any of the Scheduled Tribes. The Collector of the district, treating these amended provisions applicable, has made an order in every case (Annexure A to the petition) stating that a casual vacancy in the office of Sarpanch/president has occurred on account of the aforesaid amendment made in the Principal Act with effect from 24-7-1972. It is this order, in each case, which is challenged in these petitions.

(3.) THE only question for our decision is whether the amendment of sections 21 and 111 of the Principal Act made by Act No. 17 of 1972 with effect from 24-7-1972 is retrospective in operation so as to take away the petitioners' right to continue in office for the full term, which right they had acquired under the Act at the time of their election to the office prior to the amendment.