RAMCHANDRA PRASAD Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) In response to the rule issued on this application under Article 226 of the Constitution of India, cause has been shown by the opposite party. The petitioner filed a nomination to stand as a candidate for election to the office of Mukhiya of Raghubir Ghak Rampatti and Mahinath pur Gram Panchayat in the district of Darbhanga. Mr. S. M. Kamal, a Magistrate at Madhubani, holding the delegated power of an Election Officer, scrutinised his nomination, considered the objection raised on behalf of opposite party No. 4, Achheylal Jha, and passed the following order on 6-5-1960:

(2.) In my opinion, the order of the Sub-Divisional Magistrate is erroneous in law, and the error is apparent, on its face. Merely because a person is a licensee, it cannot be held that there is relationship of master and servant between him and the State, which has granted the licence. It is well known that persons or dealers carrying oh business in various commodities had to take out licence in order to entitle them to many on the business as others, without an appropriate licence, were prohibited from carrying on business in those particular commodities. Licences were granted under the various control orders. The tests, therefore, laid down by the Supreme Court to find out as to whether there is a relationship of master and servant between the State and a particular individual in the case of Shivnandan Sharma v. Punjab National Bank Ltd., (S) AIR 1955 SC 404, as noticed by Sahai, J., in Budhan Singh's case, 1959 BLJR 187: (AIR 1959 Pat 521), are wanting in the case of a mere licensee. In my opinion, none of the tests laid down there, or most of them at least, is or are not to be found in the case of a licensee. To wit, the fourth test laid down is as to whether he is a person entitled to any remuneration for the work done by him. There is no finding by the learned Sub-Divisional Magistrate that either the petitioner or his nephew was entitled to any remuneration for the work done by him or them as a licensee. There is no finding that he was appointed any Government stockist, and was getting commission by way of remuneration for the work done by him. I would make reference to a recent decision of the Supreme Court in this connection in Raja Bahadur K. C. Deo Bhanj v. Raghunath Misra, AIR 1959 SC 589. There a clear distinction has been drawn between a person serving under the Government and a person "in the service of the Government," and it has been observed: "In our opinion, there is a distinction between 'serving under the Government' and 'in the service of the Government', because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant.'' Thereafter, various tests have been laid down in that decision on reference to Batt "On the Law of Master and Servant". One of the most important ingredients to find out a relationship of master and servant is whether the former, has the right of control or interference over the latter of a kind where he can tell the servant when to work or when not to work and what to do and how to do it. Ordinarily and generally, this is not the type of control exercised by the State through its officers over a licensee. A licensee of foodgrains is free to work in the manner he likes, of course in accordance with the terms and conditions of the licence. Very near the position of a master and servant comes a contractor and sometimes it is not easy to determine as to whether the relationship between the two persons is that of master and servant or that of an ordinary contractor. In my opinion, a licensee is far off from the position of even a contractor. No provision has been pointed out to me in the Food-grains Control Order to justify the decision of the learned Sub-Divisional Magistrate that the position of a licensee is that of a servant vis-a-vis the Government.

(3.) Mr. G. P. Sahi, appearing on behalf of the State and its Officers, found it difficult to support the order of the learned Sub-Divisional Magistrate in the absence of a finding that the petitioner Ramchandra Prasad was getting any remuneration for the work done by him as a licensee. Mr. Mani Lall, however, appearing for opposite party No. 4, submitted before me that the learned Sub-Divisional Magistrate has exercised his jurisdiction under Rule 23(4) of the Bihar Panchayat Election Rules, 1959, and, even if the order is erroneous in law, I in exercise of my powers under Article 226 of the Constitution, should not issue any writ in this case as the order is not without jurisdiction, and, further, that, in view of Section 84B of the Bihar Panchayat Raj Act (this section was introduced by the Bihar Panchayat Raj (Amendment and Validating) Act (XXI of 1959)), the order of the learned Sub-Divisional Magistrate should not be quashed at the petitioner's instance at this stage as his appropriate remedy is to challenge the election by an election petition presented to an appropriate authority after the election is held. Section 84B provides: