PANDIT MAHENDRA KUMAR TIWARI Vs. LAXMISHANKAR

JUDGEMENT

(1.) THE Appellant and the Respondent were contestants for the post of Patel of village, Sagoria, tahsil and district Sagar, along with one Ambika Prasad, uncle of the Appellant. Ambika Prasad withdrew, allegedly, in favour of the Appellant before the date of election which was ordered to be held on 30 -8 -55. On 25 -8 -55, however, Respondent Laxmi Shankar objected to the eligibility of the Appellant on the ground that he was not a recorded holder of occupied land of the village in the village papers as required by Rule 1 (ii) of the rules of appointment of Patels. The Sub -Divisional Officer rejected the objection as belated but the Additional Deputy Commissioner on appeal held that since on the date of the application the Appellant was not a recorded holder of occupied land in the village papers, he was not eligible for appointment. As there was only one candidate left, namely, Respondent Laxmi Shankar, the learned Additional Deputy Commissioner appointed him Patel under Rule 6(1) of the aforesaid rules. Mahendra Kumar has now come up in the second appeal against the order of the Additional Deputy Commissioner.

(2.) IT was urged on behalf of the Appellant that the objection raised by the Respondent was very much belated and though his name was not actually recorded in village papers, he had acquired malik -makbuza title on 23.18 acres of land by virtue of a sale -deed dated 30 -12 -54 executed by his father and as a result his name came subsequently to be recorded in the village papers. It was argued that Rule 1 should not be interpreted literally; the fact that a candidate's name must de facto be recorded in the 'village papers should not be treated as a binding condition. It should be enough for the spirit of this rule if a candidate is found in possession of land although his name may not have been recorded on the date of application. In this connection, it was pointed out by the Appellant's counsel that by virtue of the sale -deed executed on 30 -12 -54, which was also the last date of application, the Appellant was legally in possession of 23.18 acres of land and if action had been taken to record his name, then and there, Rule 1(ii) would not have stood in his way.

(3.) THE language of Rule 1, on the one hand, and the language of Rules 4 and 5, on the other, indicate that the rule -makers intended to draw a distinction between the 'eligibility' and the 'suitability' of an applicant. Rule 1 commences significantly with the words, "No person shall be eligible etc." indicating that the observance of the conditions of eligibility is intended to be imperative. In other words, a person must be 'eligible' before his 'suitability' in other respects, viz., physical, moral, mental, educational and financial etc. can be taken into consideration. Under Rule 10 the Deputy Commissioner has been given discretion not to appoint a person as Patel even though he may have, in case of an election, secured the largest number of votes. As I had occasion to observe in another case, this discretion is exercisable only when the 'suitability' of a candidate on grounds mentioned in Rule 5 is in issue. It cannot be exercised in a case where the question of eligibility is involved. For instance, the Deputy Commissioner cannot, in his discretion, appoint a Patel below the age of 21 in violation of Rule 1 (i), howsoever 'suitable' he might otherwise be. Similarly, he cannot ignore the other conditions of eligibility, namely, that the applicant must be a recorded holder of occupied land and a resident of the village of which he is to be appointed Patel. In short, all conditions of eligibility in Rule 1 are mandatory and cannot be waived or relaxed by the Deputy Commissioner in his discretion.