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Case Number

D.B Civil Misc. (Writ) Case No. 28 of 1953

Attorney(S)

Sohan Nath, for petitioner.
Kan Singh, Assistant Government Advocate.

Judges

Kailash Wanchoo

Acts

sec. 4 of the Marwar Village Panchayat Act, 1945,
sec. 2 of the Marwar Village Panchayat Act 1945.
rule 5 of the Marwar Village Panchayats Rules,
Marwar Village Panchayats Act, 1939,
Marwar Village Panchayats Act, 1945,
rule 7 of the said Rules,

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Smart Summary

Case Summary: Application by Premsukh against the Gram Panchayat, Sargot and the State of Rajasthan

Factual and Procedural Background

This is an application by Premsukh seeking issuance of a writ of mandamus, prohibition, or any other appropriate direction against the Gram Panchayat of Sargot and the State of Rajasthan. The applicant is a resident of village Sargot. A Gram Panchayat was established in Sargot in July 1943 under the Marwar Village Panchayats Act, 1939 for an initial period of three years; that period was later extended and ended in 1949. The Panchayat then stopped functioning and there was no Panchayat constituted for 1949–1951. On 6 June 1952 an election was held and a Panchayat was constituted with Bhanwarlal as Sarpanch. This Panchayat thereafter acted and, in one matter, pronounced an ex parte judgment against the applicant.

The applicant contends that the 1952 Panchayat was improperly constituted under the Marwar Village Panchayats Act, 1945, and therefore had no jurisdiction to decide the case against him. He made a representation to the authorities and an enquiry was held, but the Minister-in-Charge had not taken action on the enquiry report by the time of this application. The State opposed the application and traversed most points, admitting only two procedural defects relating to qualification and a notice requirement; the State also relied on statutory saving provisions and alternative remedies available under the Act.

Legal Issues Presented

Whether the Gram Panchayat constituted in 1952 was improperly constituted under the Marwar Village Panchayats Act, 1945 — specifically because the village population was below 1,000 (triggering additional statutory preconditions), and because no notification under section 4 of the 1945 Act was published.
Whether one Panch (Bhanwarlal) being under the age of 25 and thereby disqualified under rule 5, and the consequent failure to meet the requirement of two Hindi-literate panches under rule 7, rendered the entire Panchayat void and without jurisdiction.
Whether procedural irregularities in the conduct of the election (for example, failure to give the beat of drum notice) invalidated the entire election and membership of the Panchayat.
Whether acts of the Panchayat are saved by section 14 of the 1945 Act despite irregularities in appointment or membership qualifications.
Whether this Court should exercise writ jurisdiction under Article 226 to decide election-related challenges to Panchayat membership, or whether the scheme of the Act (notably section 8 and section 53) provides other remedies that must be exhausted.

Arguments of the Parties

Applicant's Arguments

The village population was below 1,000 (1951 census), so a Panchayat could only be established with written desire of residents and consultation with the jagirdar; this precondition was not satisfied, making the Panchayat improperly constituted.
No notification under section 4 of the Marwar Village Panchayats Act, 1945 was published to establish the Panchayat; therefore it was not lawfully constituted under the 1945 Act.
Rule 5 required a Panch to be at least 25 years old; one Panch (Bhanwarlal) was under 25 at election date, rendering his election irregular.
Rule 7 required at least two Panches literate in Hindi; because Bhanwarlal (counted as one of the literate Panches) was disqualified, this requirement was not met and the Panchayat was improperly constituted.
There were irregularities in the election procedure (including failure to give beat-of-drum notices) and the rules governing elections were not complied with, invalidating the entire election.
Because of the alleged improper constitution, the Panchayat lacked jurisdiction to decide the case in which an ex parte fine was imposed on the applicant.
The applicant submitted a representation to the Minister-in-Charge; after an enquiry the Minister had not taken final action, and thus the applicant sought relief from this Court under Article 226.

State's Arguments (Respondent)

The State traversed most points but admitted two defects: (a) Bhanwarlal was below 25 years at election, and (b) there was no beat-of-drum announcement as required by the Rules on two occasions.
The acts of the Panchayat, even if some members were irregularly appointed, are saved by section 14 of the 1945 Act ("No act of the Panchayat shall be deemed to be invalid by reason only of ... irregularity in the appointment").
The Court should not act as an election tribunal in exercising extraordinary writ jurisdiction under Article 226; the Act provides a statutory remedy under section 8 (power of the Minister-in-Charge to remove Panches) which is the appropriate forum to address election irregularities.
The State represented that the applicant had already made a representation in November 1952, an enquiry has been held, and the matter is under Government consideration—there has been no refusal to decide the representation.
As to the applicant's dissatisfaction with a Panchayat order, the remedy of appeal or revision under section 53 of the Act was available and not exhausted by the applicant.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a stepwise statutory analysis, applying provisions of the Marwar Village Panchayats Act, 1945 (the "1945 Act") and the Rules made under it:

Deeming Clause (section 2): The court observed that section 2 of the 1945 Act provides that Panchayats established before the commencement of the Act shall be deemed to have been established under the 1945 Act. Because the Panchayat in Sargot was established in July 1943 and existed when the 1945 Act came into force (1 January 1946), it was deemed established under the 1945 Act and not subject to fresh establishment formalities meant for new Panchayats. On that basis the court held that no notification under section 4 was necessary for this pre-existing Panchayat, and the population/consultation requirement in the Rules applied only to Panchayats to be constituted for the first time after commencement of the 1945 Act.
Qualifications under Rules 5 and 7: The court accepted the State's admission that Bhanwarlal was under 25 at election time (contravening rule 5) and that he was one of the two Panches counted as literate under rule 7. The question was whether such qualification defects nullified the Panchayat's acts.
Saving Provision (section 14) and Continuity (section 9): The court analysed section 14, which provides that no act of the Panchayat shall be deemed invalid solely because the number of Panches was less than fixed under section 5 or because of any irregularity in appointment of a Panch, Naib Sarpanch or Sarpanch. It also noted section 9, which preserves the legality of proceedings so long as the number of Panches is not reduced below three. The court interpreted section 14 broadly to include cases where a Panch has been elected by mistake contrary to qualification provisions. The legislative intent, as read by the court, was to keep Panchayat business operational despite membership irregularities.
Application of section 14 to the facts: On that interpretation the court concluded that the acts of the Panchayat in this case were valid despite Bhanwarlal's irregular election and the consequent effect on the literacy requirement under rule 7. The court analogized that if a literate Panch died, the remaining members could still carry on and the acts would be valid under section 14; by parity the presence of an irregularly elected Panch did not invalidate the Panchayat's acts.
Election Irregularities and Appropriate Forum (section 8): With respect to procedural defects in election conduct (e.g., failure to give beat-of-drum notice), the court distinguished a claim that the Panchayat was improperly constituted from ordinary election irregularities that affect individual memberships. The court held that such irregularities are a matter for the statutory remedy under section 8 (power of the Minister-in-Charge to remove Panches for sufficient cause, which the court regarded as broad enough to cover election irregularities and election of unqualified persons). The court emphasized that it will not convert itself into an election tribunal for every village Panchayat election under Article 226 unless it is shown there is no other remedy.
Remedial Posture and Delay: The applicant had in fact invoked the statutory remedy (representation to the Minister-in-Charge) and an enquiry had been held; the Government had not yet finally disposed the matter, although the court accepted that there had not been an outright refusal. Because the alternative statutory remedy existed and had been invoked, the court declined to issue writs to the Minister-in-Charge, while noting concern that the Government should decide the matter soon so that section 14 is not abused to allow an improperly constituted Panchayat to function unchallenged for the full term.
Jurisdictional Point (section 18 and section 53): The court briefly addressed the contention that the type of suit before the Panchayat was not within the contemplation of section 18; it observed that the applicant dissatisfied by the Panchayat's order had a remedy under section 53 and should have availed himself of it.

Holding and Implications

Holding:

APPLICATION DISMISSED. The court dismissed the applicant's petition.

Direct consequences and implications (limited to what the opinion states):

The court held that the acts of the Panchayat in question are valid despite the admitted irregularities in the election of one Panch (Bhanwarlal) and certain irregularities in election procedure, because of the protection afforded by section 14 of the Marwar Village Panchayats Act, 1945, read with section 9.
The court declined to exercise extraordinary writ jurisdiction to act as an election tribunal where an alternative statutory remedy exists; it directed that the appropriate route for challenging election irregularities or removal of Panches is under section 8 (Minister-in-Charge) and noted that the applicant had already pursued that remedy and an enquiry had been conducted.
The court noted the delay in governmental decision-making and the admitted irregularity, and for that reason ordered that parties bear their own costs rather than awarding costs against either side.
No broader precedent beyond the court's interpretation of the Act's provisions is announced in the opinion; the decision addresses the direct effect on these parties and applies the statutory saving and remedial provisions of the 1945 Act to the facts presented.

Note: This summary is based exclusively on the text of the opinion provided and does not add information from other sources.

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Premsukh v. Bhawarlal

Wanchoo, C.J:— This is an application by Premsukh praying for the issue of a writ of mandamus, prohibition, or any appropriate direction, order or writ against the Gram Panchayat, Sargot and the State of Rajasthan.

2. The applicant is a resident of village Sargot. His case is that a Gram Panchayat was first established in this village in July, 1943, under the Marwar Village Panchayats Act, 1939, for the period of three years. The period was later extended and came to an end in 1949. Thereafter the Panchayat stopped functioning and no Panchayat was constituted for the years 1949, 1950, and 1951. Then on the 6th of June, 1952, an election was held and the present Panchayat was constituted with Bhanwarlal as Sarpanch. This Panchayat has been acting since its constitution and in one case an ex parte judgment was pronounced against the applicant. The applicant claims that the Panchayat is improperly constituted and had no jurisdiction to act at all under the Marwar Village Panchayats Act, 1945, and relies on the following grounds:—

(1) that the population of village Sargot is below 1000 according to the census of 1951 and, therefore, no Panchayat could be established in that vallage without the express desire of the residents of the village and without consulting the jagirdar, and as this was not done, the present Panchayat was improperly constituted;

(2) that no notification as required under sec. 4 of the Marwar Village Panchayat Act, 1945, was ever published and, therefore, the Gram Panchayat was never established according to law;

(3) that under rule 5 of the Marwar Village Panchayats Rules, a panch has to be at least 25 years of age before he can be elected and one of the panches was below 25 years of age at the date of the election;

(4) that according to rule 7 of the said Rules, two of the panches have to be literate in Hindi. These two included Bhanwarlal and as he is disqualified, being below 25 years of age, only one panch literate in Hindi was left in the Panchayat and, therefore, it was improperly constituted; and

(5) that there were irregularities in the election and the rules framed for the purpose were not complied with and, therefore, the whole election was invalid and the said Panchayat was improperly constituted.

3. The applicant further says that as soon as he came to know of the election, he represented the matter to the authorities. There was an enquiry into it but the Minister-in-Charge had not yet taken any action on the reprot of the enquiry. The applicant, therefore, prays that the Gram Panchayat being improperly constituted had no jurisdiction to decide the case which it did and the order of fine in that case against the applicant could not be enforced. The application has been opposed on behalf on the State and most of the points raised by the applicant have been traversed. Only on two points it is admitted that there was no compliance of the Rules namely, (i) that Bhanwarlal was below 25 years of age when he was elected as Panch, and (ii) that there was no beat of drum announcing the election as provided by the Rules. It is further urged that even if there was some irregularity in connection with the election of the Panches, the acts done by the Panchayat were saved by sec. 14 of the Panchayat Act. Lastly, it is urged that this Court should not act as an election tribunal in its extra-ordinary jurisdiction under Art. 226 of the Constitution and that there was provision under sec. 8 of the Panchayat Act whereby irregular election could not be set aside by the Minister-in-Charge.

4. We shall take the first two points urged on behalf of the applicant together. The answer to the arguments in relation to these two points is, in our opinion, contained in sec. 2 of the Marwar Village Panchayat Act 1945. That section lays down that all Panchayats established before the commencement of this Act shall be deemed to have been established under this Act. This Panchayat was admittedly eastablished in July, 1943, and the applicant says that it was to exist for three years in the first instance, i.e, up to July, 1946. The Marwar Village Panchayats Act, 1945, came into force from the 1st of January, 1946. Therefore, this Panchayat was existing on the date that Act came into force and under sec. 2 of the Act, this Panchayat by the law deemed to have been eastablished under the Act of 1945. As such it was not necessary to issue a notification under sec. 4 for that section was meant for eastablishment of new panchayat which were not in exsistance which the Act of 1945, came into force. Further, the provision in the Rules framed under sec. 75 of the 1945 Act, which required that where the population of a village was less than 1000, the Panchayat could be eastablished only if the inhabitants expressed a desire in writing to that effect and after consultation with the Jagirdar, did not apply to a pre-existing Panchayat like the present. It only applied to panchayats which were to be established for the first time after the coming into force of the Act of 1945. There is, therefore, no force in these two points urged on behalf of the applicant.

5. We now take the 3rd and 4th points raised on behalf of the applicant together. Rules 5 and 7 provide for certain qualifications which the Panches must have before they have elected. According to rule 5, the Panch must not be under the age of 25 years. According to rule 7, at least two of the Panches in any Panchayat must be able to read and write Hindi. It is admitted on behalf of the State that one of the Panches who was latter elected as Sarpanch, namely, Bhanwarlal was below 25 years of age at the time of his election. His election was, therefore irregular. It is also admitted by the State that of the two Panches who were required to be literate under rule 7, one was Bhanwarlal so that if Bhanwarlal is removed or not taken into consideration, there will be only one Panch left who is literate. Learned counsel for the applicant urges that in view of these defects of constitution, the whole Panchayat must be held to be improperly constituted and, therefore it never had jurisdiction to function at all under the Act of 1945. On the other hand it is urges on behalf of the State that sec. 14 was enacted to meet such difficulties and it completely covers the case.

6. Sec. 14 is as follows:—

“No act of the Panchayat shall be deemed to be invalid by reason only of the fact that the number of Panches holding office at the time of performance of any such act was less than the number fixed under sec. 5 of the Act or by reason of any irregularity in the appointment of any Panch, Naib Sarpanch or the Sarpanch.

7. Reference may also be made to sec. 9 which is as follows:—

When any Panch dies, resigns or in removed, the vacancy caused thereby shall be filled up in the prescribed manner, provided that no vacancy in the panchayat shall render its proceedings illegal so long as the number of Panches in not reduced below three.”

8. It is urged that sec. 14 will not apply where there is breach of the Rules relating to qualification of Panches. We are of opinion that sec. 14 is wide enough to include cases were Panches have been elected by mistake against the provisions relating to qualifications of Panches. The intention of the legislature seems to have been to see that the work of the Panchayat went on even though there might have been irregularities in the election of the members of the Panchayat. Further, the provision of sec. 9 shows that the legislature intended that the Panchayat should continue functioning so long as at least three members of the Panchayat remained. Further it is clear that if, for example, one out of two literate Panches were to die, the remaining Panches could carry on and the acts of the panchayat would be valid in view of sec. 14 even though two Panches as required by rule 7 are not literate. We are, therefore, of opinion that the acts of the panchayat in this case must be held to be valid inspite of the fact that one of the Panches was elected irregularly because he was below 25 years of age and because that member made up the number of two literate Panches required under rule 7.

9. The next point that is urged is that there were certain irregularities in the election, and the rules relating to the manner in which the election should be held were not complied with, and therefore, the entire election was invalid and all the Panches should be removed from membership of the Panchayat. This in effect is something different from saying that the Panchayat itself is improperly constituted. Suppose there are 12 members in a municipality and election petitions are filed against all of them after the elections, and also suppose that the election petitions are all allowed after a period of one year. But because of that it would not followed that municipal council was not properly constituted for the period of one year during which these 12 members acted while election petitions against them were being decided. In the same way, assuming that there were certain irregularities in the election in this case and at least two such irregularities are admitted, namely that there was no beat of drum on two occasions though the rules provided that there should be such beat of drum, the Panchayat cannot be called to be improperly constituted. All that the applicant can claim is the right to life something analogous to an election petition before the proper authority. Learned counsel for the applicant urges that this Court is the proper place where the matter can be brought up by means of an applicant under Art. 226 and there is no other remedy available to the applicant. We are of opinion that this Court cannot be truned into an election tribunal relating to election of every member of village Panchcyat in Marwar unless it can be clearly shown that there is no other remedy available. We feel that there is remedy available to the applicant under sec. 8 of the Act of 1945. That Act gives power to the Minister-in-Charge to remove any Panch or Sarpanch from his office for various reasons. One such reason is ‘for any other sufficient cause.’ We are of opinion that this is wide enough to cover the case of irregularities during the election or the case of election of a person who was not qualified to be elected, and that the proper course for the applicant is to apply to the Minister-in-Charge. We find that he has actually done so and an enquiry has been made on his representation. His complaint seems to be that the Minister-in-Charge has not passed orders even though 15 months or more have passed since the election. The reply of the State is that the representation was made in November, 1952, and an enquiry has been made and the State is aware that there is some defect in the constitution of the Panchayat and the matter is receiving the consideration of the Government. It is also urged that the Government has not refused the demand of justice and, therefore, there is no case for moving this Court. It may be accepted that there has not been an actual refusal by the Government to decide the representation made by the applicant. At the same time the matter is pending before the Government for a sufficiently long time and we trust that it will now be decided soon. After all if the Panchayat is improperly constituted to a certain extent as admitted by the State it should not be allowed to function for the whole of the period of three years for which it has been elected, with the help of sec. 14 of the Act of 1945. That would be an abuse of that section. In view of the fact that there is another remedy open to the applicant of which he has already availed and believing that the matter would now be decided by the Government as early as possible, we do not think it necessary to issue any writ to the Minister-in-Charge of Local-self Government. Lastly learned counsel urged that a suit of the kind which was filed before the Panchayat was not contemplated under sec. 18 of the Act of 1945, and the Panchayat had, therefore, no jurisdiction to pass the order which it did. So far as that is concerned, it is enough to point out that if the applicant was dis-satisfied by the order of the Panchayat, he had his remedy under sec. 53 and should have availed himself of it.

10. We, therefore, dismiss the application but in view of the fact that there has been delay undoubtedly in the disposal of the applicant's representation and of the admission of Government that there has been some irregularity in the constitution of the Panchayat, we order parties to bear their own costs.

Premsukh v. Bhawarlal

Case Summary: Application by Premsukh against the Gram Panchayat, Sargot and the State of Rajasthan

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

State's Arguments (Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Premsukh v. Bhawarlal

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