Durga Ram vs The State of Himachal Pradesh etc.

R.S. Pathak, C.J.—This writ petition is directed against the election of the second Respondent, Dalu, and third Respondent, Parsu, as the Pradhan and Up-Pradhan respectively of the Gram Sabha, Jarol.

The Gram Sabha, Jarol, is situated in Tehsil Sundernagar in the district of Mandi. The Stete Government determined that the Executive Committee, namely, the Gram Panchayat, of that Gram Sabha should consist of 15 elected Panches. Elections to the Executive Committee were held on December 4, 1972, and 15 persons were elected. It appears that the elected candidates did not include any woman nor any member of the scheduled castes. Without anything more, on March 19, 1973, elections were held to the offices of Pradhan and Up-Pradhan of the Executive Committee, and the second Respondent, Dalu, and the third Respondent, Parsu, were elected.

The Petitioner, who is a registered voter entitled to vote in the Gram Panchayat elections, has filed this writ petition contending that the election of the second and third Respondents as Pradhan and Up-Pradhan respectively is invalid inasmuch as, when the election took place, the Executive Committee did not include a woman or schedule caste member. It is pointed out that these could have been co-opted. We are referred to the two provisos to Section 9(1) of the Himachal Pradesh Panchayati Raj Act, 1968. The case of the Petitioner is that on its true construction Section 9 requires that the Executive Committee can be considered fully constituted only when it includes a woman and two members of the scheduled castes. It is urged that unless the Executive Committee was so completed it could not proceed to elect the Pradhan and Up-Pradhan. In this connection, the Petitioner has found it necessary to challenge the validity of Rule 19-A(1) of the Himachal Pradesh Gram Panchayat Rules, 1971, which provides that where a co-option is found necessary under the two provisos to Section 9(1) of the Act a meeting shall be called for the purpose by the Pradhan or Up-Pradhan in the absence of the former. It is contended that the rule runs contrary to the true intent of Section 9 of the Act.

At the outset, the learned Advocate-General appearing for the Respondents, has raised a preliminary objection to the grant of relief on this writ petition. It is urged that in respect of elections the general law is that a Petitioner challenging the election must have resort to the remedy provided under the statute and should not be permitted to by-pass that remedy and to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution.

Now, as long ago as N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, the Supreme Court laid down that a petition under Article 226 of the Constitution should not be entertained in matters relating to elections under the Representation of the Peoples Act, 1951. The decision proceeded broadly on the basis of Article 329(b) of the Constitution. In rendering that decision, the Supreme Court said:

The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition.

The principle was extended in Nanhoo Mal and Others Vs. Hira Mal and Others, to cases of elections to local bodies. The extension of the principle was justified by reference to Molverhamption New Water Works Co. v. Hawkesford 141 ER 486, where it was said:

Where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it...the remedy provided by the statute must be followed. The form given by the statute must be adopted and adhered to.

The Supreme Court observed that inasmuch as the right to stand for election was not a common law right but the creature of statute, resort must necessarily be had to the remedy provided by the statute itself. The Supreme Court was concerned with a challenge to the election of the President of a Municipal Board under the U.P. Municipalities Act. It seems to us that there is a good ground for applying the principle to the case of elections under the Himachal Pradesh Panchayati Raj Act. In the usual kind of case, the court should require the Petitioner to resort to the statutory remedy provided for questioning the election instead of invoking the extraordinary jurisdiction conferred under Article 226 of the Constitution.

But the question in the present case is whether the learned Advocate-General should be permitted to invoke that principle. The Petitioner assails the vires of Rule 19-A of the Himachal Pradesh Gram Panchayat Rules, 1971. Section 186 of the Act provides that a dispute relating to the election of a Pradhan or Up-Pradhan of a Gram Panchayat shall be decided by a Deputy Commissioner after taking such evidence as he deems fit and his order thereon shall be final. Is it open to the Deputy Commissioner, on an election petition presented before him u/s 186, to examine the validity of a rule made under the Act? In Beharilal Shyamsunder Vs. Sales Tax Officer, Cui Circle, Cuttack and Another, the Supreme Court, following its earlier decision in K.S. Venkataraman and Co. Vs. State of Madras, appears to have laid down that the vires of a statute and the rules made thereunder cannot be questioned before a tribunal or other authority constituted under that Act. In that case the writ petitions were filed challenging the assessment orders on the ground that the imposition of tax was without authority of law and ultra vires the Sales Tax Act and the Rules. The contention that the point should have been raised before the statutory tribunals constituted under the Sales Tax Act was not accepted by the Supreme Court. In successive cases beginning with K.S. Venkataraman (supra) and thereafter in C.T. Senthilnathan Chettiar Vs. State of Madras, , Commissioner of Income Tax Vs. Deoria Sugar Mills Ltd., and Dhrangadhra Chemical Works Ltd. Vs. Commissioner of Income Tax, Bombay City-II, the Supreme Court has held that the validity of a provision of the statute which creates a tribunal cannot be raised before the tribunal. There is no clear ruling before us declaring in unambiguous terms that the principle can be extended to a case where the validity of a rule made under the Act is assailed, but having regard to what has been said in Beharilal Shyamsunder (supra) we must take it that the principle can be so extended. Upon that, it follows that the Deputy Commissioner acting u/s 186 of the Act cannot be expected to decide the question whether Rule 19-A of the Himachal Pradesh Gram Panchayat Rules, 1971, is ultra vires. In the circumstances, we see no bar to it being entertained in the present writ petition.

Turning to the case on its merits, it is desirable to refer briefly to some of the relevant provisions of the Himachal Pradesh Panchayati Raj Act.

Section 5 of the Act provides for the constitution of a corporate body known as the Gram Sabha, having jurisdiction over what is described as a Sabha area. For the purpose of discharging executive functions pertaining to the Gram Sabha, Chapter III contemplates the creation of Gram Panchayats and their constitution. The Gram Panchayat or Executive Committee is constituted u/s 9 of the Act. Section 9 provides:

(1) Every Sabha shall, in the prescribed manner, elect from amongst its members an executive committee consisting of such number of persons not being less than seven or more than fifteen, as the Government may determine:

Provided that if no woman is elected as a Panch of any Sabha, the Gram Panchayat shall co-opt as such Panch, one woman member of the Sabha who is qualified to be elected as Panch, in the prescribed manner:

Provided further that every Gram Panchayat shall include two members of scheduled castes either elected or co-opted. If one member of a scheduled caste is elected, the other scheduled caste member, who is otherwise qualified to be elected as Panch, shall be co-opted. If two members of scheduled castes are already elected, no co-option of a scheduled caste member shall take place.

(2) The members of the executive committee of each Gram Sabha shall elect from amongst themselves the Chairman and Vice-Chairman of the executive committee by majority vote in the prescribed manner and such Chairman and Vice-Chairman shall also be called the Pradhan and Up-Pradhan respectively of the executive committee which shall be styled as the Gram Panchayat, the members thereof to be called Panches.

(3) Every woman and member of a scheduled caste co-opted as a Panch under the provisos to Sub-section (1) shall have the right to vote at a meeting of the Gram Panchayat....

It seems to us that the Gram Panchayat is essentially an elected body. At the outset, Sub-section (1) of Section 9 declares that the members of the Gram Sabha shall elect an Executive Committee consisting of not less than seven or more than fifteen persons as the Government may determine. That ordinarily is the total constitution of the body. It also refers to the basic nature of the body, that it is an elected body. A departure has been prescribed in the exceptional circumstance where the elected body does not include a woman or does not include at least two scheduled caste members. In that event, provision has been made for co-opting a person or persons of the requisite category in order to make good the deficiency. Two selections are contemplated, one is the fundamental or intial election of the Gram Panchayat by the members of the Gram Sabha and the other is the co-option of a woman and scheduled caste members by the elected Gram Panchayat.

The question before us is whether the process of co-option has to be initiated and completed before the Gram Panchayat can proceed to elect the Pradhan and Up-Pradhan. It has been vehemently contended by learned Counsel for the Petitioner that the Gram Panchayat cannot hold its first meeting unless it is fully constituted, its first meeting being intended for the purpose of electing the Pradhan and Up-Pradhan. It is urged that the constitution is completed only when the different sections of interest specifically mentioned in Section 9 are represented in the Gram Panchayat. It is pointed out that unless all sections are represented, the right to choose the Pradhan and Up-Pradhan will be denied to some of them. The submission is sought to be reinforced by Sub-section (3) of Section 9 which provides that every woman and member of a scheduled caste co-opted under the proviso to Sub-section (1) shall be present at the meeting of the Gram Panchayat. We have no doubt that it is intended by the legislature that co-opted members should enjoy the same right to vote as is enjoyed by the elected members of the Gram Panchayat. The question, however, is whether that right of vote implies necessarily the presence of such co-opted members during the election of the Pradhan and the Up-Pradhan. We would have been impressed by the submission made by learned Counsel for the Petitioner that the various sections of interest mentioned or referred to in Section 9 should be present and participate in the choice of the Pradhan and Up-Pradhan. But we find that the legislature has enacted Section 12 which appears to point to the contrary. Section 12 declares:

If, for any reason, all members of a Gram Panchayat are not elected, the Gram Panchayat may function:

Provided that not less than two-third members thereof stand duly elected but no co-option shall be done by such Gram Panchayat unless all its members are duly elected.

It is apparent that Section 12 intends that the Gram Panchayat should function even if all its members have not been elected. The only restriction imposed is that not less than two-thirds of members should have been duly elected. As soon as it is clear that two-thirds of the total elected body has been duly elected, the Gram Panchayat is empowered to commence functioning. In order to function, it cannot be denied that the elected body must elect a Pradhan and Up-Pradhan for the purpose of its proper functioning. The Pradhan and Up-Pradhan constitute essential elements in the constitution of the Gram Panchayat. That is contemplated as the normal composition of the body, and it is not possible to conceive of the proper functioning of the Gram Panchayat under Act without a Pradhan and Up-Pradhan to preside over and guide the meetings of the Gram Panchayat. Section 13(1) of the Act contemplates that a Gram Panchayat should meet once a month whenever called by the Pradhan. The Pradhan is also required to call a meeting on requisition by a majority of the Panches. There are other functions specifically contemplated by the Act for the Pradhan and Up-Pradhan. On a conspectus of these provisions it seems apparent to us that the Gram Panchayat cannot function as contemplated by the Act unless there is a Pradhan and Up-Pradhan. Now, reverting to Section 12, it is also clear that although the Gram Panchayat may function with a tworthird majority of its members elected, there can be no co-option by the Gram Panchayat unless all its members are duly elected. In other words, although the Gram Panchayat can commence (functioning under the Act when only two-thirds of its members have been duly elected, the process of co-option by it must await the stage when all its members are duly elected. It is apparent that the Gram Panchayat can discharge its other functions even before the process of co-option has been entered into. As it cannot discharge any function without a Pradhan and Up-Pradhan, Section 12 provides definite indication that the election of the Pradhan and UprPradhan is not intended to await the process of co-option. In our opinion, the election to the office of Pradhan and Up-Pradhan must take place before the co-option contemplated by the two provisos to Sub-section (1) of Section 9.

In support of his contention, the Petitioner relies on Dhrangadhra Chemical Works Ltd. Vs. Commissioner of Income Tax, Bombay City-II, . All that has been decided in that case is that the process of co-option is in the nature of an election. That, to our mind, cannot be disputed. But the election which is envisaged in the process of co-option is different from the election contemplated in Sub-section (1) of Section 9 where the initial election must be effected by the members of the Gram Sabha. That point was not in issue before the learnedjudgeinthat case, and a perusal of his judgment shows also that no reference was made to the provision of the Punjab Gram Panchayat Act corresponding to Section 12 of the Act before us.

Rule 19-A of the Himachal Pradesh Gram Panchayat Rules requires that the Pradhan or Up-Pradhan should call a meeting of the Gram Panchayat for co-opting a woman or scheduled caste members, and therefore it necessarily contemplates the election of the Pradhan an Up-Pradhan before the process of co-option is taken up. On the interpretation of Section 9 of the Act which has found favour with us, we repel the contention that Rule 19-A runs counter to the true intention of the statute, and we uphold its validity.

The Petitioner has also referred to the amendments made in the Himachal Pradesh Panchayati Raj Rules from time to time, but in our opinion these amendments make no difference to the validity of Rule 19-A as it stood at the time when the impugned elections were held. In any event, it is clear beyond doubt that any construction that we may place upon the rules cannot effect the true construction of the Act itself.

One more contention raised by the Petitioner may be noticed. It is that Section 12 must be read as a part of the scheme contemplated by Section 11 of the Act. The submission is that Section 12 comes into play only when a vacancy occurs by the death, resignation or removal of a Panch, for filling which provision is made in Section 11. We have carefully considered the matter, but we are unable to agree that Section 12 is limited to the contingency mentioned in Section 11.

Section 12 speaks of a situation where "all members of a Gram Panchayat are not elected". It can include the case where the elected body as initially constituted does not consist of the total strength of elected members determined by the State Government.

It is urged by Smt. P. Malhotra, learned Counsel for the Petitioner, in this and the connected writ petitions, that the expression "elected" in Section 12 refers to the Gram Panchayat consisting of both members elected by the Gram Sabha as well as members co-opted by the Gram Panchayat. It is difficult to accept that contention. A reading of Section 12 makes clear that the expression "elected" refers solely to those members of the Gram Panchayat who are elected by the members of the Gram Sabha. The proviso to Section 12 states "...no co-option shall be done by such Gram Pahcyahat unless all its members are duly elected". Plainly, the word "elected" refers to the Gram Panchayat as elected by the members of the Gram Sabha, before the process of co-option is taken up by it.

Upon the aforesaid considerations, we are of opinion that the election of the Pradhan and Up-Pradhan is not intended to await the co-option contemplated by the two provisos to Sub-section (1) of Section 9 but should be held by the Gram Panchayat, elected by the members of the Gram Sabha, even before co-option is effected.

In this view of the matter, the writ petition fails and is dismissed, but there is no order as to costs.