A Sarpanch of a Grama Panchayat constituted under the Orissa Grama Panchayats Act, 1948 is not a person in the service of the Government and does not belong to the class specified in cl. (f) of S. 123 (7) of the Representation of the People Act, 1951.

Judgment

S. J. IMAM, J. : The appellant and the respondent No. 1 were, amongst others, candidates for election to the Orissa Legislative Assembly from the Daspalla double-member constituency in which a seat was reserved for a scheduled caste candidate. We are not concerned with the election of the scheduled caste candidate. For the general seat the election was contested by the appellant, respondent No.1 and respondent No. 3. The appellant obtained 17,700 votes, respondent No. 1 15,568 votes and respondent No. 3 3,589 votes. The election was held on February 27, 1957 and the appellant was declared elected on March 5, 1957.

2. Respondent No. 1 filed an election petition questioning, on various grounds, the election of the appellant. The Election Tribunal dismissed the petition holding that no funds had been established to invalidate the election. Respondent No. 1 appealed to the High Court of Orissa against 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 at 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 cl. (d) of sub-s. (1) of s. 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 practise. 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 personal character and conduct of respondent No. 1 and in relation to his candidature; and the third was the obtaining and procuring by appellant of assistance for the furtherance of the prospects of his election from Sarpanches of certain Grama Pauchayats. With regard to the first two grounds the High Court held that the same had not been established. With reference to the third ground the High Court was of the opinion that a Sarpanch of the Grama Panchayat, though not a Government servant appointed by the Government, was none the less a person in the service of the Government as he performed many of the governmental duties and was also removable by the Government and such a person came within the provisions of s. 123(7)(f) of the Act. A Sarpanch exercised under the Orissa Grama Panchayats Act, 1948, hereinafter referred to as the Orissa Act, mostly governmental functions like collection of taxes, maintenance of public accounts etc. It thought that if such a person was not brought under s. 123(7)(f) there would be "a lot of undue influence exercised on the voters by these persons who in the village exercised a lot of influence considering the nature of their powers and the ideas of the village people". The High Court accordingly allowed the appeal and set aside the appellants election but was of the opinion that although its finding resulted in the appellant being disqualified for membership of Parliament and the Legislature of every State for six years under s. 140 of the Act, this was a fit case for the removal of the disqualification by the Election Commission under s. 144 of the Act.

5. The appellant applied to the High Court for a certificate that this was a fit case for appeal to this Court. The certificate was granted, but one of the learned Judges was in some doubt whether this was a case in which the provisions of Art. 133(1)(C) of the Constitution applied.