HANUMAN BUX Vs. COLLECTOR NAGOUR

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution has been filed by one Hanuman Bux who claims to be a resident and an elector of the village Panchayat, Palada included in the Panchayat Samiti, Kuchaman, seeking a writ in the nature of quo-warranto and for other appropriate reliefs by questioning the co-option of respondents Nos. 5 to 8 to the Panchayat Samiti, and the election of Rameshwarlal and Hanuman Bux, respondents Nos. 3 and 4 as Pradhan and Up-Pradhan of the Panchayat Samiti respectively. The case setup in the writ petition in briefly this:

(2.) A Panchayat Samiti was established by the Government in accordance with the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter to be referred to as the Act ). The last general election of the Panchayat Samiti was held in January, 1965. It is stated that the Sar Panchas of the various village Panchayats comprised in the Panchayat Samiti and whose names are set out in para 2 of the writ petition, became ex-officio members of the Panchayat Samiti, in accordance with the provisions of the Act. Besides the Sar Panchas the member of the legislative assembly from that area also became its ex-officio member. Thereafter, according to the petitioners, the Block Development Officer, Didwana respondent No. 2 convened a special meeting of the members of the Samiti for the purpose of co-option of members. The members present at the meeting were called upon to co-opt two members from scheduled caste and two members who were women. As a result of the meeting held on 21st January, 1965, it is submitted, that respondents Nos. 5 to 8 were co-opted. After this co-option, steps were taken for the election of the Pradhan and respondent No. 3 Shri Rameshwarlal was elected as a Pradhan at the meeting held on 1st February, 1965. Thereafter election for the office of Up Pradhan was held on 7th March, 1965 and respondent No. 4 Hanuman Bux was elected as Up Pradhan of the Samiti. It is further pointed out that after the election of the Up Pradhan various standing committees of the Samiti were constituted on 30th March, 1965, from amongst the members of the Panchayat Samiti. In challenging the validity of (1) co-option of respondents Nos. 2 to 8, (2) the election of the Pradhan respondent No. 3 and (3) election of Up Pradhan, respondent No. 4, on the various grounds mentioned above, it is submitted that as before participating at the meeting held for co-option the various Sar Panchas of village Panchayats and other ex-officio members participating in the co-option had not taken the oath of office as laid down in sec. 72 of the Act, the co-option of respondents Nos. 5 to 8 stood vitiated and it has, according to the petitioner, also vitiated the election of the Pradhan and Up Pradhan held subsequently. It is further submitted that as the members of the Panchayat Samiti had not taken the oath even subsequently within the prescribed time they will be deemed to have vacated the office. Thus, it is on account of the failure of the members of the Samiti to take oath that it is claimed that neither the co-opted members nor the Pradhan or the Up Pradhan are entitled to continue in office and therefore it is prayed that they should be restrained from functioning as such. The writ petition has been opposed on behalf of the respondents. While it is not denied that no oath was taken by the members of the Panchayat Samiti before they participated at the meeting held for co-option of members it is pointed out that all the answering respondents, namely respondents Nos. 3 to 8 have taken the oath in accordance with sec. 72 of the Act, and therefore, it cannot be postulated that they have vacated the office for failure to take the requisite oath. It is submitted that respondent No. 3, the Pradhan took the oath in the presence of the Returning officer, the Block Development Officer, Didwana on 1st February, 1965 when he was elected to the office. As regards respondents Nos. 5 to 8 it is submitted that they subscribed to the oath of their office on 31st January, 1965 in the presence of the Returning Officer after they were co-opted. A regards the Up-Pradhan it is submitted that he took oath on 7th March, 1965 on his election. Then again it is submitted that Pradhan of the Panchayat Samiti is elected by an electoral college consisting of not all the members of the Panchayat Samiti but only some designated members of the Panchayat Samiti together with some other persons who are not members of the Panchayat Samiti, and therefore it cannot be said that the election is held by the members of the Panchayat Samiti. In other words, according to the respondents, there is no requirement of taking oath for electors including those who are members of the Panchayat Samiti before they could casta valid vote at the election of the Pradhan. In the alternative, it is submitted by the respondents that even if as many votes as the number of so-called members of the Panchayat Samiti, who participated at the election, are excluded, the Pradhan would still be having the majority of votes. It is averred that there were 503 voters who were not required to take oath at all and out of them 501 voted at the election. The Pradhan secured, according to the respondents, 276 votes and his nearest rival who lost to him secured only 223 votes. Therefore, even if the votes of the persons who were already members of the Panchayat Samiti, namely 46 in number, are excluded the Pradhan would still have a larger number of votes, compared to the losing candidate. It is, therefore, argued that even if there is a wrong reception of votes of members of the Panchayat Samiti it does not materially affect the result of the election of the Pradhan. Then in contesting the writ petition certain preliminary objections have also been raised. In the first instance it is submitted that the petitioner being not a member of the Panchayat Samiti cannot challenge the election of the Pradhan. In other words, it is submitted that an ordinary elector or a resident of Panchayat circle has no right to question the election of the Pradhan. Then it is pointed out that the alternative remedy of an election petition being there as provided in the Act for challenging the election the court should decline to interfere in the case in exercise of its extra ordinary jurisdiction. Then thirdly it is submitted that the petitioner has suppressed some material facts. It is pointed out that while oath of office had in fact been taken by the various respondents, the petitioner has falsely averred that no such oath was taken. Lastly it is submitted that though the relief of restraining the Panchayat Samiti and its members from functioning as such, has been sought, all the other members of the Samiti have not been impleaded; so also, according to the respondents, Panchayat Samiti which is a body corporate has not been made a party to the writ petition.

(3.) THE last question that now remains for consideration is whether the Pra-dhan can function as a Pradhan before all the component parts going to constitute the Panchayat Samiti in the first instance have been brought into existence. THE co-opted members of the Panchayat Samiti respondents Nos. 5 to 8 have not been validly co-opted as already held and are, therefore, no longer entitled to remain in office. THE formation of the Panchayat Samiti was, thus, obviously not complete. THEre is, however, sec. 70 A of the Act which has to be considered. It runs as follows: - "70-A. Procedure upon declaration of cooption as invalid - Whenever any co-option of members u/sec. 11 or under sec. 44 shall be declared by competent authority to be invalid, then, notwithstanding anything contained in any provision of this Act, such declaration shall be deemed to have caused a vacancy in the Panchayat Samiti or the Zila Parishad, as the case may be, irrespective of whether the co-option of all or a few only of the members thereof have been so declared as invalid, and such vacancy shall be filled up - (a) In the case of a Panchayat Samiti, in accordance with section 18, and (b) in the case of a Zila Parishad, in accordance with clause (iv) of sub-sec. (2) of sec. 46".