The hereditary right to the post of Gram Pradhan is a preferential right and not an absolute right. The candidate must be generally acceptable to the raiyats, as per the provisions of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949.

Prakash Tatia, CJ .-Heard learned counsel for the parties.

2. The appellant is aggrieved against the order passed by the learned single Judge in WP(C) No. 3416 of 2003, by which the writ petition preferred by the respondent No. 4-Smt. Devimai Murmu has been allowed and the order passed by the Commissioner (Annexure-6) appointing appellant as Gram Pradhan has been set aside.

3. The brief facts of the case are that one Doman Murmu was the Gram Pradhan (Headman) of the village Bichpahar, falling in the district of Pakur. He died leaving behind four daughters and as per the admitted fact, Doman Murmu brought in his house Sanatan Tudu as 'gharjamai’ ("gharjamai Marriage" is customary marriage in Santhal Tribe wherein Bridegroom is brought in the house of wife in place of giving of bride in the house of husband.) After the death of Doman Murmu, the wife of said gharjamai Sanatan Tudu, Smt. Devimai, who is daughter of Doman Murmu, applied for the post of Gram Pradhan whereas the appellant-Sogen Murmu applied for the same post on the plea that he is newphew of Doman Murmu and since there is no other male heir/eligible heir of Doman Murmu to succeed to the post of Gram Pradhan, he is entitled to the post of Gram Pradhan.

It is pertinent to mention here the gharjamai-Sanatan Tudu, who came in the house of Doman Murmu as gharjamai, did not apply for the post as well as the other daughters also did not apply for the post of Gram Pradhan.

4. The fact remains is that there were two claimants, one Devimai Murmu, the respondent No.4, being the daughter of the deceased Doman Murmu but in the capacity of the wife of gharjamai of Doman Murmu and the contesting person was the nephew of Doman Murmu, the appellant Sogen Murmu. The parties are governed by Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, and it is claimed by Devi Mai Murmu that the Post of Gram Pradhan is hereditary, though it is public office under the Act of 1949, Section 5 of the Act of 1949 provides for appointment of a village Headman of a khas village and it provides that on the application of a raiyat or of landlord of any khas village, with the consent of at least two thirds of the jamabandi raiyats of the village ascertained in the manner prescribed, the Deputy Commissioner may appoint the Headman for the village. Section 6 thereof deals a contingency upon the death of village Headman of village, which is not a khas village, in that situation, landlord of the village is required to report the fact within three months of its occurrence to the Deputy Commissioner with a view to the appointment of a village Headman in the prescribed manner.

Section 7 provides that Gram Pradhan to be granted patta and execute kabuliyat and furnish security, obviously for due discharge of his duty.

5. In exercise of power conferred by clause (i) and (ii) of sub-section (2) of Section 71 of the Act of 1949, the Rules also have been framed, which are known as Santhal pargans Tenancy (Supplementary) Rules, 1951. Rule 3 provides procedure for ascertaining the consent of jamabandi raiyats and appointment of Headman under Section 5. Sub-rule (1) of Rule 3 says that on receipt of an application from a raiyat or a landlord under Section 5, the Deputy Commissioner shall issue notice to the jamabandi raiyats of the village and to the landlord in Form A. Sub-rule (2) of Rule 3 provides for obtaining consent of at least two thirds of the persons recorded as jamabandi raiyats of the village, which shall be ascertained by the Deputy Commissioner by show of hands. Sub-rule (5) of Rule 3 provides for making appointment of Headman under Section 5 or Section 6 i.e., Headman for the khas village or under Section 6 i.e., Headman for the village which are not the khas village, the Deputy Commissioner shall follow the procedure prescribed in Schedule V except where these rules, expressly or by necessary implication, provide otherwise. Schedule V provides that Headman must be a resident of the village