Shri Sant Ram vs Deputy Commissioner Solan and Others

R.S. Pathak, C.J.—There is a Gram Sabha known as Anji Sunchra in Tehsil Kandaghat. The Petitioner was resident of the Gram Panchayat. As the term of the members of the Gram Panchayat was expiring elections were held on October 28 and 29, 1972, and the Petitioner and Respondents Nos. 3 to 12 were elected. Pursuant to Rule 46 of the Himachal Pradesh Gram Panchayat Election Rules, 1972, the Deputy Commissioner, Solan, called a meeting of the elected members on December 16, 1972, for the purpose of administering oath to them as required u/s 10(1) of the Himachal Pradesh Panchayati Raj Act, 1968. Some of the members, including the Petitioner, did not attend the meeting. The Deputy Commissioner administered oath to the six members who were present. The total membership was eleven at the time. Immediately thereafter, pursuant to Rule 47, the election of the Pradhan and Up-Pradhan was held. Shri Anokhi Ram, Respondent No. 8, was elected Pradhan and Shri Parma Nand, Respondent No. 3, was elected Up-Pradhan.

The Petitioner filed a petition challenging the election of the Respondent Nos. 8 and 3 as Pradhan and Up-Pradhan respectively, and the Deputy Commissioner, acting u/s 186 of the Act, decided the petition. By his order dated June 2, 1973, he held the election of the said Respondents valid and dismissed the petition.

By this petition under Article 226 of the Constitution, the Petitioner prays for quashing of the election of Respondents Nos. 3 and 8 as Up-Pradhan and Pradhan respectively and of the order dated June 2, 1973, dismissing his election petition.

At the outset, Shri O.P. Sharma, appearing for Respondents Nos. 2 to 8, has raised three preliminary objections. The first objection is that Smt. Tulsi, who was co-opted as a Panch u/s 9(1) of the Act, had not been impleaded in the array of Respondents and therefore the petition was bad for non-joinder of parties. There is no substance in the objection. Smt. Tulsi was co-opted as a Panch of the Gram Panchayat after the impugned elections of the Pradhan and Up-Pradhan. She did not participate in those elections and cannot be said to have any right which is affected by the grant of relief on this writ petition.

The second preliminary objection is that the Petitioner had not taken oath of office yet and therefore was not a Panch, and for that reason he had no locus standi to maintain the petition. He was also not a candidate for the election of the Pradhan and the Up-Pradhan. Rule 46 provides:

Convening of meeting and administration of oath.-- As soon as the names of the elected members are notified, the Deputy Commissioner or any other officer authorised by him for this purpose shall convene under his chairmanship the meeting and shall administer oath/affirmation to the elected members as required u/s 10 (1) of the Himachal Pradesh Pan-chayati Raj Act, 1968:

Provided that no such meeting shall be held unless not less than 48 hours notice for holding such a meeting has been given to all the elected members by its delivery at their ordinary place of residence and such a notice shall specify the place, date and time for holding such a meeting:

Provided further that if any elected member has not been administered the oath/affirmation in the above meeting owing to his absence, such a member shall enter upon his office as Panch only after an oath/affirmation is administered to him by the Pradhan or in his absence Up-Pradhan in the subsequent meeting of the Gram Panchayat.

Under Rule 46, the Deputy Commissioner is entrusted with the function of administering oath or affirmation to the elected members in a meeting convened by him u/s 10(1) of the Act. The oath or affirmation is necessary before a Panch can enter upon the duties of his office. The second proviso to Rule 46 lays down that if an elected member has not been administered oath or affirmation in the meeting convened by the Deputy Commissioner "owing to his absence", such a member shall enter upon his office as Panch only after an oath or affirmation is administered to him by the Pradhan or, in his absence, by the Up-Pradhan in the subsequent meeting of the Gram Panchayat. The Petitioner was admittedly absent from the meeting convened by the Deputy Commissioner on December 16, 1972. According to the contesting Respondents, the Petitioner was absent because he was aware that he did not command a sufficient majority for opposing the election of Respondents Nos. 3 and 8 as Up-Pradhan and Pradhan. In our opinion, the reason for the Petitioner''s absence is immaterial. The second proviso to Rule 46 does not qualify an elected members'' absence by reference to any reason. For whatever reason, if the elected member is absent at the meeting convened by the Deputy Commissioner, he is entitled to have the oath or affirmation administered to him by the Pradhan or, in his absence by the Up-Pradhan. But in a case where the Petitioner is challenging the election of the Pradhan and the Up-Pradhan, it cannot be expected that he should have the oath administered by either of them. Further, the oath or affirmation is required by Section 10(1) to enable a Panch to enter upon the duty of his office. There is nothing to show that such a qualification is necessary for challenging the election of the Pradhan and the Up-Pradhan. As we shall presently show, an elected member is a Panch on his being declared elected, and an oath or affirmation is necessary only in order to enable him to enter upon the duties of his office. In our opinion, the second preliminary objection must also fail.

The third preliminary objection is that while the Petitioner has prayed for the quashing of the election proceedings held on December 16, 1972, he has not annexed to the writ petition a copy of the minute of those proceedings. But when we turn to the rejoinder affidavit it is apparent from paragraph 3 set out in reply to the preliminary objection that the Petitioner attempted to obtain a copy of the record of those proceedings and has been denied the same. In the circumstances, we are unable to hold that the election petition must fail because a copy of the minute of the proceeding has not been annexed.

The preliminary objections being out of the way, we shall now turn to the merits of the writ petition.

Shri B.B. Vaid, learned Counsel for the Petitioner, contends that Rule 47 was not complied with in the meeting for the election of the Pradhan and the Up-Pradhan because a two-third majority of the elected Panches was not present in the meeting. Rule 17 provides:

Election of Pradhan and Up-Pradhan.--After the oath/affirmation under Rule 46 has been administered and two-third majority of the elected Panches exist in the meeting, the election of Pradhan or Up-Pradhan shall be held by secret ballot in the following'' manner:

(i) If only one candidate for the office is proposed the officer presiding over the meeting shall declare such candidate elected for the office of Pradhan or Up-Pradhan as the case may be.

(ii) If there are two or more candidates, the officer presiding over the meeting shall prepare a list of contesting candidates in Form IV, a ppended. to theser ulesiu alphabetical order in Hindi in Devnagri script and shall allot one symbol according to the serial number in the list of contesting candidates, out of the approved symbols in accordance with the serial number of such symbol prescribed under Rule 7. A copy of the list showing the names of contesting candidates and the symbol allotted to each such candidate shall be displayed at a conspicuous place for the information of the Panches. The poll shall commence and close within the time which will be prescribed over the meeting. The voting shall be held by secret ballot and the ballot paper shall be of such design as prescribed by the Director of Elections (Local Bodies), Himachal Pradesh.

(iii) The procedure of voting at such election shall be as under:

(a) Before issuing the ballot papers to the members, the officer presiding over the meeting shall put his signatures on the back of each ballot paper.

(b) The members on receipt of the ballot paper shall enter the voting compartment and insert the ballot paper in the ballot box of the candidate to whom he wishes to vote. Outside each ballot box a poster containing the name of a candidate and his symbol shall be pasted. In case of infirmity or blindness, the officer presiding over shall assist the voter. The officer presiding over the meeting may enter the voting compartment at any time if he doubts tampering of ballot boxes inside the voting compartment.

It is submitted that the total strength of the Gram Panchayat membership being eleven at the time, at least eight members should have been present in the meeting, and as only six members were present the election proceedings are invalid. Shri O.P. Sharma, in reply, urges that the two-third majority of the elected Panches required by Rule 47 refers to those who have been administered oath or affirmation. He contends that the expression ''elected Panches'' in Rule 47 can be taken to refer to those elected members only who have taken oath or made affirmation because, he says, it is only after the oath or affirmation that the member becomes a Panch. In this he relies upon a reading of Rules 46 and 47 together. We have carefully considered the matter, and it seems to us that the contention of Shri Vaid must be upheld. There is no distinction between a member of the Gram Panchayat and a Panch. The definition of the word ''Panch'' in Section 3(s) of the Act means ''a member of Gram Panchayat elected or appointed under this Act.... Indeed, when regard is had to the different provisions of Rule 47, it is apparent that the words "Panch" and "Member" arc inter-changeable. That appears clearly when reference is made to Rule 47(iii) which speaks of issuing the ballot papers to the members; that would not have been contemplated unless the member had been administered oath or affirmation. We are unable to attach any importance to the circumstance that under rules 46 and 47, reference is made at one place to elected Panches'' and at another place to ''elected members''. It seems to us that upon a fair reading of the rules as soon as the election of a member is completed he becomes a Panch of the Gram Panchayat. But before he can enter upon the ''duties of his office, he must take an oath in the form specified in Schedule I. That is clear from Section 10(1) of the Act. He acquires the status of a Panch on being elected; the oath or affirmation is required in order to enable him to discharge his duties as such. His status as Panch and his capacity to function as a Panch are two distinct things. For him to attain the status it is sufficient that he is elected. To discharge the duties of the office, not only must he be a Panch but he must also be administered oath or affirmation.

Now, when Rules 46 and 47 are read together it is clear that in the first meeting, which is convened by the Deputy Commissioner, two distinct businesses are contemplated. The first is the administering of oath or affirmation by the Deputy Commissioner to the elected members. The second is the election of the Pradhan and the Up-Pradhan. While the former business may be executed by the Deputy Commissioner even if a single elected member is present, the latter cannot be unless a two-third majority of the elected members are present. The first is almost a formal process. The second is a more serious matter. It is possible that a large number of elected members may not turn up for the meeting convened by the Deputy Commissioner. A bare minority may be present. Upon the interpretation put by Shri O.P. Sharma, even if two members are present and are administered oath or affirmation, the one may elected the other as Pradhan, and the other may elect the first as Up-Pradhan. That, we think, is not the intention of Rule 47. The expression ''two-third majority of the elected Panches'', in our opinion, must refer to a two-third majority of the entire strength of the elected membership. We are fortified in this view by the amendment of Rule 47 which has now been found necessary. The amendment reads:

Provided that if two-third majority of the elected Panches is not present in the first meeting, the. Deputy Commissioner or the person authorised under Rule 46, shall convene a second meeting by giving a fresh notice for holding such a meeting to all the elected members in the manner already prescribed under Rule 46. For the second meeting one-half of the elected Panches shall form the quorum for the election of Pradhan or Up-Pradhan: Provided further that if the quorum of half of the elected members is not present even in the second meeting a third meeting shall be held after giving proper notice as aforesaid and elections to Pradhan and Up-Pradhan shall be conducted for which no quorum will be required.

It is contended by Shri O.P. Sharma that the Pradhan and the Up-Pradhan were elected by the six elected Panches who were present in the meeting, and this is more than the majority vote require by Section 9(2) of the Act, Section 9(2) provides that the members of the Gram Panchayat shall elect from amongst themselves the Pradhan and the Up-Pradhan "by majority vote in the prescribed manner". The ''prescribed manner'' is laid down in Rules 47 to 50. Rule 47 requires a two-third majority of the elected Panches present in the meeting. Reading Section 9(2) with Rule 47 it is clear that the election of the Pradhan and the Up-Pradhan can take place by a majority vote in a meeting in which at least two-thirds of the elected Panches are present. It seems to us that the word ''majority'' is meaningless here. Unless there is a meeting in which two-thirds of the elected members are present and they have been administered oath or affirmation, the election of the Pradhan and Up-Pradhan cannot take place. That was the position before the amendment was introduced in the rule. The problem posed by the requisite two-thirds not being available is now met by the amended rule.

In our opinion, inasmuch as two-thirds of the elected membership of the Gram Panchayat were not present, the election of Respondents Nos. 8 and 3 as Pradhan and Up-Pradhan are invalid. The Deputy Commissioner has in his order dated June 2, 1972, held to the contrary, and we must hold therefore that his order is liable to be quashed.

Shri B.B. Vaid for the Petitioner also contended that the meeting convened by the Deputy Commissioner was invalid because notice of the meeting was not served on all the members. As the Petitioner succeeds on the first contention, we think it unnecessary to deal with this contention.

The writ petition is allowed. The election of Respondents Nos. 8 and 3 as Pradhan and Up-Pradhan held on December 16, 1972, and the order dated December 16, 1972, of the Deputy Commissioner are quashed. The Petitioner is entitled to his costs which we assess at Rs. 100.