SHIV LAL SAWANT Vs. S.D.O.

JUDGEMENT

(1.) THE third respondent was elected as Pradhan of Gram Panchayat Darkoti, Teh. Kotkhai, in the election held on 22.12.1995. The result was declared on the same day. On 5.1.1996 the respondent was administered oath of office by the Chief Minister along with several other Pradhans who were elected in that period in the presence of about 10,000 persons. The said respondent started functioning as Pradhan of the Gram Panchayat. The 1st meeting of the Panchayat was held on 23.1.1996, but a day before that the petitioner herein filed a petition under Section 163 of the H.P. Panchayati Raj Act (hereinafter referred to as 'the Act') before the Sub-Divisional Officer (Civil), Theog. That was taken on file as Case No. 3/1996. The S.D.O. (C) held that the petition was premature as there was no publication of the result in the gazette and Section 163 prescribed that a petition should be filed within 30 days of the publication of the result. That order was challenged by the petitioner before the Deputy Commissioner, Shimla in case No. 8/1996. By order dated 2.4.1997 the Deputy Commissioner confirmed the order of Sub Divisional Officer. Aggrieved thereby the petitioner has preferred this petition under Article 227 of the Constitution of India.

(2.) SECTION 163(1) of the Act says any elector of a Panchayat may on furnishing the prescribed security in the prescribed manner, present within 30 days of the publication of the result, on one or more of the grounds specified in sub-section (1) of Section 175. The expression 'publication' used in Section 163 has not been defined in the Act; nor there is a definition in the Himachal Pradesh General Clauses Act. The said expression came up for consideration before the Supreme Court in State of Madhya Pradesh and another v. Ram Raghubir Prasad Agarwal and others, AIR 1979 S.C. 888. The question arose under the M.P. Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam (13 of 1973). Under the relevant provision, the syllabus was to be published by the Government before the prescription of the text books. The contention in that case was that there was no publication of the syllabus as required by the Section and therefore the prescription of the text books was not binding. Dealing with that contention the Supreme Court considered the meaning of the word 'publication'. The following passage in the judgment of the Supreme Court is instructive :

(3.) IN the Act, Section 163(1) alone refers to publication of the result. Section 126 provides that the name of every office-bearer of a Panchayat whether or not chosen by direct election shall be published by the prescribed authority in the manner as may be prescribed. Section 127 provides for oath or affirmation of allegiance. Under sub-section (1) of Section 127, no elected office-bearer of a Panchayat shall enter upon his office, until he has, in the manner prescribed, taken oath or made affirmation of his allegiance in the form specified in Schedule-V. Section 79 of the Act provides that after the declaration of result of election of the elected members of the Panchayat Samiti in the prescribed manner the Deputy Commissioner concerned or any gazetted officer appointed by him shall as soon as possible but not later than one week of such declaration call under his Presidentship a meeting of all elected members for the purpose of oath or affirmation of allegiance under Section 127.