A lambardar appointed under Rule 20 of the Irrigation Rules is in the service of the State Government and is therefore disqualified from being nominated or elected as a Mukhia under Section 79(b) of the Bihar Panchayat Raj Act, 1947.

K.Sahai, J.

1. For the election of the Mukhia of the Atmi Gram Panchayat, the 15th January, 1958, was the last date for filing nomination paper. Petitioner Budhan Singh and opposite party No. 1, Bindeshwari Prasad Singh (who will henceforth be referred to as the opposite party), filed nomination papers. The nomination paper of the opposite party was accepted but that of the petitioner was conditionally accepted on the same date but finally rejected on the 24th January. Thereafter, it was again accepted on the 25th January. As a result of the election, the petitioner was declared to be elected.

The opposite party then filed an election petition in accordance with Rule 79(1) of the Bihar Panchayat Election Rules, 1956, before the Election Tribunal appointed by the District Magistrate under Rule 78 of the same Rules. The Tribunal has declared the petitioners election to be void on the ground that he was disqualified under Section 79(b) of the Bihar Panchayat Raj Act, 1947 , and has declared the opposite party, who was the only duly nominated candidate, to have been elected as Mukhia of the Atmi Gram Panchayat. The petitioner has, therefore, filed this application under Articles 226 and 227 of the Constitution for quashing the Tribunals order.

2. The Tribunal has held that the petitioner was disqualified for nomination because he was, on the 15th January, 1958, in the service of a local authority as he was one of the members of the Panchayat appointed by the District Magistrate under Sec.3 of the Village Chaukidari Act, 1870. It has also held that the petitioner was disqualified for nomination because, on the 15th January, 1958, he was in the service of the State Government as a lambardar appointed under Rule 20 of the Sone, Champaran, Saran and Kamla Canals Irrigation Rules (hereinafter referred to as the Irrigation Rules). Appearing on his behalf, Mr. Chatterjee has argued that the petitioner cannot be held to have been either in the service of any local authority or in the service of the State, and, therefore, the Tribunals order declaring his election to be void is liable to be quashed. I propose first to consider whether the petitioner can be held to have been in the service of the State Government.

3. It has been held by the Tribunal, and it is not challenged, that the petitioner was working as a lambardar appointed under Rule 20 of the Irrigation Rules, on the 15th January, 1958. It appears that the petitioners resignation from the office was received by the Canal Subdivisional Officer of Nasriganj on the 24th January, 1958. Under order No. 500-R, dated the 29th April, 1958, the Executive Engineer accepted the resignation. Hence the Tribunal has held that it was- only with effect from the 29th April that the petitioner ceased to be a lambardar. This also has not been challenged, and I may mention that the election actually took place on the 18th and I9th of March, i.e., before the date on which the resignation was accepted. Thus, he was working as a lambardar not only On the date of his nomination but also on the dates of his election.

4. The question which now arises is whether a lambardar appointed under Rule 20 of the Irrigation Rules can be held to be in the service of the State Government. Mr. Chatterjee has submitted that the Irrigation Rules aforesaid have been framed by the Government under Section 99 of the Bengal Irrigation Act, 1876, but no provision has been made in the Act itself for the appointment of a lambardar. He has also argued that the petitioner may be held to have been only a lessee or contractor of the canal authorities but not a servant of the Government.

He has relied upon some decisions in support of his submissions. The first case which he has referred to is the decision of a single Judge in Swami Nath V/s. S.D.O. Machhlishahr, AIR 1958 All 660. The question which arose for consideration in that case was whether a man appointed to perform the duties of a village headman under Sec. 45 of th