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TMI Blog1958 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Election Tribunal. 3. One of the grounds, amongst the many grounds, taken by Respondent No. 1 to invalidate the election of the appellant was that the nomination of respondent No. 3 was improperly accepted as he was disqualified from contesting the election being a Sarbarakar of the 10 villages in the district of Nayagarh mentioned in the schedule to the petition. The High Court held that the office of Sarbarakar was an office of profit under the State Government of Orissa. Respondent No. 3 was accordingly disqualified from being a member of the Assembly. It, however, held that the acceptance of the nomination of respondent No. 3 had not materially affected the election of the returned candidate under clause (d) of sub-section 100 of the Representation of the People Act, 1951, hereinafter referred to as the Act. 4. Three grounds were urged before the High Court in support of the contention that the appellant had been guilty of corrupt practice. One was that of bribery; the second was that the appellant and his agents had published a pamphlet, Exbt. 8, containing statements which were false and which he knew or believed to be false in relation to the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would have granted special leave to appeal under Article 136 of the Constitution because the appeal raised a point of law of considerable public importance. In order to remove all doubts in the matter, we grant the appellant special leave to appeal against the decision of the High Court of Orissa and proceed to deal with the appeal on that basis. 6. The Act was amended in 1956. Before the amendment the relevant portion of section 123 for the purpose of this appeal was contained in sub-section (8) which was as follows : (8) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate's election form any person serving under the Government of India or the Government of any State other than the giving of vote by such person. Explanation - For the purposes of this clause - (a) a person serving under the Government of India shall not include any person who has been declared by the Central Government to be a person to whom the provisions of this clause shall not apply; (b) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y person serving under it to be a person to whom these provisions would not apply. In other words, unless there was such a declaration these provisions covered every person serving under the Government of India. Clause (b) of the Explanation further widened the meaning of any person serving under the Government of a State by including the persons specified therein and any other village officer, by whatever name he may be called, employed in that State, but the State Government was authorized to declare that any such person, other than any such village officer, to be a person to whom these provisions did not apply. The language of the provisions of section 123(8) covered a wide field and referred to every person serving under the Government of India or a State unless such person was declared to be one to whom the provisions would not apply. After the amendment, however, the provisions of section 123(7) are narrower in scope. These provisions apply to any person in the service of the Government belonging to the classes specified in clauses (a) to (g) and none else. For the purpose of this appeal it is clause (f) which will have to be considered, as the other clauses cannot in any cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sasan consisted of a village or a group of contiguous villages and its members were the population residing in the Grama. As the appointment of the Sarpanch is not by Government, this would be one of the factors in holding that the Sarpanch was not in the service of the Government. Under section 8, the Sarpanch has to act under the authority of the Grama Panchayat. Prima facie, this would also be a factor to discountenance the theory that a Sarpanch was in the service of the Government. Another factor which would militate against the theory that a Sarpanch was in the service of the Government was that he received no remuneration from the Government. The power to remove a Sarpanch by the State Government is stated in section 16 but the removal can only be for negligence, inefficiency or misbehavior. This restricted power of removal was not a conclusive factor on the question whether a Sarpanch was in the service of the Government. It was accordingly urged that three important factors to be taken into consideration in deciding whether a person was in the service of the Government, namely, appointment of the person, such a person to act under the authority of the Government and one wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Under section 16 the State Government is empowered to remove a Sarpanch on the ground of negligence, inefficiency, or misbehavior. Under section 17 a Sarpanch shall give effect to the decision of the Grama Panchayat; provided that if in his opinion any such decision is subversive of peace and order in the locality or results in manifest injustice or unfairness to an individual or body of individuals or a particular community or is generally against public interest, he shall refer the matter to the Sub-divisional Magistrate and thereafter act according to such directions as he may receive from such Magistrate. Under sub-section (2) of this section, the Sub-divisional Magistrate may, on his own motion or on the representation by the Sarpanch, set aside a decision of the Grama Panchayat, if he finds that the decision is of the nature as stated above. Under sub-section (3) of section 18 the Sub-divisional Magistrate may nominate any member of the Grama Panchayat to carry on the duties of the Sarpanch till a new Sarpanch is elected on the resignation of the former. Under section 22 a Grama Panchayat may, if a majority of its members so decide, with the previous approval of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise general powers of inspection, supervision and control over the performance of the administrative duties of the Grama Panchayat. Section 98 contains the general powers of the District Magistrate and section 99 contains the emergency powers of the District Magistrate in relation to a Grama Panchayat whereby he may by an order in writing prohibit the execution or further execution of a resolution or an order passed or made by it. Under section 117-A the State Government may delegate any of its powers, except the power to make rules, to be exercised or discharged by any officer subordinate to State Government. It was urged on behalf of respondent No. 1 that the above provisions of the Orissa Act clearly made the Grama Panchayat come under the control and supervision of the State Government and that the duties and functions of the Grama Panchayat to be performed by its Sarpanch were governmental duties. It was further urged that in considering whether a Sarpanch was a person in the service of Government the essential elements to be borne in mind were the control and supervision over him by the State Government and it power to remove him from his office. Neither the absence of appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government. Its administrative functions are akin to the functions generally performed by Municipalities and District Boards. It would be a conception hitherto unknown to suppose that any Municipality or District Board was in the service of the Government merely because it exercised administrative functions and to some extent was under the control of the Government. Co-operative societies generally are very much under the control and supervision by the State Government or one of its officers authorized in that behalf. It would be difficult to accept the suggestion that because of that a Co-operative society and its members must be regarded as in the service of the Government. Even with respect to companies, progressively, legislation has been giving power to the Government to control and supervise them. Under section 259 of the Indian Companies Act, 1956, in certain circumstances, any increase in the number of its directors must be approved by the Central Government and shall become void if it is disapproved. Under section 269, in the case of a public company or a private company which is a subsidiary of a public company, the appointment of a managing or whole-time director for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As the Grama Sasan is a body corporate and the Grama Panchayat is its executive authority, the statute enabled the Grama Panchayat by provisions of section 31 to enter into a contract with the State Government to collect its taxes and its dues. It cast no obligatory duty upon the Grama Panchayat to collect such taxes or dues of the Government. No provision of the Orissa Act has been placed before us by which the State Government could order a Grama Panchayat to collect its taxes or its dues. Further-more, under clause (b) to section 31, a Grama Panchayat is authorized to enter into similar contracts with proprietors or land holders to collect their rents. The provisions of section 31 militate against the theory that the Grama Panchayat is in the service of the Government. There would be no occasion for such a provision if the Grama Panchayat was in the service of the Government in which case it would have to carry out the orders of the Government to collect its taxes or its dues. 14. Even if on a reasonable construction of the provisions of the Orissa Act it could be held that a Sarpanch of the Grama Panchayat was a person in the service of the Government, it would have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but there is no need to make further reference to this submission as, in our opinion, a Sarpanch of the Grama Panchayat under the Orissa Act is neither a revenue officer nor a village accountant. 15. It follows, therefore, that in the present case the two essential elements that a Sarpanch must be a person in the service of the Government and that he belongs to the class mentioned in clause (f) of sub-section (7) of section 123 have not been established. Even if one of them had been established and not the other the provisions of section 123(7) would not apply to such a person. In our opinion, the High Court erred in supposing that because a Sarpanch of a Grama Panchayat under the Orissa Act exercised governmental duties he must be regarded as a person in the service of the Government. The High Court did not given any clear finding that a Sarpanch, even if a person in the service of the Government, was either a revenue officer or a village accountant. In our opinion, the provisions of section 123(7) do not apply to him. Therefore, it cannot be said that any corrupt practice under section 123 had been established in the case and the election of the appellant could not be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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