LADURAM Vs. BHAGCHAND

JUDGEMENT

(1.) THIS is a special appeal against the judgment and order dated 24. 4. 61 of Bhargava, J. sitting single whereby he allowed the writ application of respondents No. 1 to 5, set aside the proceedings of the Panchayat Jaisinghdesar (Magra) dated 4. 1. 1961 and quashed the co-option of the appellants No. 1 to 3 and issued a mandate to the Collector, Bikaner to appoint an officer to convene a special meeting for the co-option of the Panchas as required by proviso under sub-sec. 9 (2) of the Rajasthan Panchayat Act.

(2.) THE facts necessary and relevant for the disposal of the present appeal are simple and fall within a narrow compass. Elections for Gram Panchayat Jaisinghdesar (Magra) were held on 8. 12. 1960. Respondent No. 7 Harbhaj was elected Sarpanch. Respondents No. 1 to 5 and Shri Shivlal, Shri Goverdhan and Shri Anopsingh, who were opposite parties in the writ application, but no longer parties to the present appeal, in all eight persons, were elected as panchas. THE total strength of the Gram Panchayat is 12 and three more Panchas, two women and one another, were required to be co-opted under sec. 9 (1) of the Rajasthan Panchayat Act (hereinafter called the Act ). THE Sarpanch took his oath on 13. 12. 1960. On 27. 12. 60 he issued a notice fixing 4th January. , 1961 for holding a meeting for the co-option of the Panchas. THE first three appellants Laduram, Smt. Phoosi and Smt. Kesar were co-opted as Panchas. Some other persons had filed nominations for co-option but they were rejected. THE candidates whose nomination papers were rejected, it is admitted, have filed election petitions challenging the co-option and they are said to be still pending. Meanwhile, respondents No. 1 to 5 who are the elected Panchas submitted an application under Art. 226 of the Indian Constitution to this Court challenging the co-option of the first three appellants for the Gram Panchayat Jaisinghdesar (Magra ). THEir case was that the co-option of the appellants to the Gram Panchayat was void because the Sarpanch had no authority to issue a notice on 27. 12. 60 and to convene the meeting for their co-option on 4. 1. 1961. THE said meeting, according to the petitioners, was held in contravention of sec. 9 (2) of the Act as amended by Act No. 25 of 1960. It was contended that the Sarpanch-respondent No. 7 was declared elected on 8. 12. 1960 and it was incumbent upon him to have convened the special meeting of the newly elected Panchas for the purpose of co-option within 15 days after his election in the manner prescribed by rule 51 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules (hereinafter called the Rules ). It was further contended that sec. 9 (2) of the Act is mandatory in nature and after the Sarpanch fails to convene such a meeting within 15 days, the officer appointed by the Collector in this behalf has to convene such a meeting. THE respondents No. 1 to 5 had also taken other objections in the writ application for getting the co-option set aside but the judgment of the learned single Judge turned upon only the point mentioned above. THE writ application was opposed by the appellants on various grounds : viz (1) that the petitioner had an adequate alternative remedy by way of an election petitioner and that election petitions having already been filed, this Court should not interfere in its extra-ordinary jurisdiction; (2) that the provisions of sec. 9 (2) of the Act were only directory and not mandatory and the power of the Sarpanch to convene the meeting even after the expiry of 15 days from the date of his election did not come to an end; (3) that the new Panchayat commenced functioning on 22. 12. 60 and that the notice issued on 27. 12. 60 calling the special meeting on 4-l-1961 was clearly within 15 days from the commencement of the term of the new Panchayat. Learned single Judge observed that the writ application challenged the entire proceedings of the co-option of the non-petitioners and that the application was not directed against any individual co-opted member and, in this view of the matter, he applied the principle laid down by this Court in Prabhu Dayal vs. THE Chief Panchayat Officer, Jaipur (l) wherein it was held that the writ application was competent when the election was challenged on the ground of a fundamental deficiency in carrying out the mandatory rules relating to the holding of the election. THE learned Judge further, after referring to the provisions of sec. 9 (2) of the Act and Rule 51 (5) of the Rules and the right of an officer to be appointed by the Collector to convene the meeting for the co-option of the Panchas concluded as follows: - "to hold that the Sarpanch even after the expiry of 15 days retains the authority and jurisdiction to convene such a special meeting would mean that there will be two parallel authorities functioning in the same field viz. , the Sarpanch and the officer appointed by the Collector and an anomalous situation would arise. On the other hand if sec. 9 (2) is held to be mandatory no such anomaly would arise. " He preferred to hold the provisions to be mandatory relying upon the following observations of their Lordships of the Supreme Court in N. T. Veluswami THEvar vs. G. Raja Nainar (2) : - "when on a construction of statute two views are possible, one which results in an anomaly and the other not, it is the duty of a court to adopt the latter and not the former, seeking consolation in the thought that the law bristless with anomalies. " He further observed that "time was "made the essence of the act because a further provision was made that on his (Sarpanch's) failure to call such a meeting within the prescribed time, the Collector shall appoint another officer who shall likewise convene such a special meeting. THE designation of time in sec. 9 (2) is to be regarded a limitation on the power of the Sarpanch. " Dealing with an argument that statutes providing a time for the performance of an official duty should be construed as directory as otherwise the public interest would suffer, the learned Judge observed that "in the present case, the law does not allow the public interests to suffer and an alternative authority has been created to function in case of failure of the Sarpanch to do the act within the specified time. " THE learned Judge further held that the considerations based upon the Sarpanch having taken oath on 13. 12. 1960 and the date of the commencement of the Panchayat being 22. 12. 1960 have no bearing on the point involved in the present case. He further held that "the Sarpanch under sec. 9 (2) acts as a persona designata and convening of a meeting for co-option is not one of the functions of the Sarpanch under this Act so that the provisions of sec. 15 of the Act may be attracted. " THE principle laid down in Ganga Dutt vs. Bhagwan Das Taparia (2a) relied upon by the appellants was not extended to the present case on the ground that the decision in that case turned upon the language of sec. 26 (2) of the Rajasthan Town Municipalities Act which is different from the language of sec. 9 (2) of the Act. On these findings, the writ application was allowed. This order of the single Judge has been challenged by the present appellants.

(3.) WE may now consider the necessary intendment and effect of the proviso to sub-sec. (2 ). Sub-sec. (2) and the proviso both are affirmatively worded and there is no express provision laying down that after the 15th day of his election, the Sarpanch shall cease to have any authority or duty to convene a meeting. The language by itself is quite consistent with the view that the officer to be appointed is only a concurrent authority to convene the meeting and it does not necessarily imply that the intention of the legislature is to give exclusive authority to the Sarpanch for the first fifteen days and to an officer to be appointed by the Collector thereafter. Mr. Lekhraj referred to us a passage by Crawford on "statutory Construction" 1940 Ed. at page 335 reading as follows : - "so also, if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those namely, is impliedly prohibited. " His argument is that an officer to be appointed by the Collector having been specified as an authority to convene the meeting, the Sarpanch cannot convene the meeting. WE regret that we cannot accept this argument. In the first place, the Sarpanch having been also specified, it is not a case of only the officer having been specified. Secondly, it is made clear at a later stage in the same book that the principle should be used only as a means of ascertaining the legislative intent where it is doubtful, and not as a means of defeating the apparent intent of the legislature. The passage relied upon by Mr. Lekhraj, therefore, does not provide much assistance.