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High Court Of Madhya Pradesh
Shiv Dayal and S. M. N. Raina, JJ.
BHAGWAN SINGH - Appellant
Versus
COLLECTOR, DISTRICT GWALIOR - Respondents
Misc. Petn. Case 116 Of 1970
Decided On : 10/07/1970
A notice under Rule 78 (4) must be 'delivered' five clear days before the date of the meeting. It is not sufficient that it is "despatched" five clear days before the date of the meeting. 1964 JLJ 249 & 1964 JLJ 618 distinguished. [Para 4
(2) Panchayats Act, 1962 (MP) - Ss.19 & 21 - meetings under sub-section (1) and sub-section (2) - scope - starting point of time for the two meetings.
Section 19 of the Act is divided into two sub-sections. Under the first sub-section, a meeting is to be called of the elected members for the purpose of co-opting members as required by section 11. This is the first meeting after the general election. But two things must be remembered : (1) this is the first meeting of the elected members only: and (2) it is called for the purpose of co-opting members as required by section 11. [Para 7
Sub-section (2) of section 19 relates not to the first meeting under sub-section (1) of that section, but it relates to the 'first meeting' to be held under section 21(1).
This is quite clear because sub-section (2) requires the "first meeting" to he held "within one month", while the "first meeting" to be held under section 19 (1) must be held "as soon as may be after the general election." Here, general election means the election of the elected members. Thus, the first meeting under section 19(1) has to be held as soon as may be after the election of members. The period which is fixed under section 19 (2) is for the first meeting of the Gram Panchayat to be held under section 21. The second reason is that the first meeting under section 19 (2) is to be held after the election, appointment and co-option and that meeting is to be held within one month, from the date on which any of these "election, appointment or co-option" is last declared. From the scheme of section 19, it is obvious enough that election must precede co-option. Therefore, the date of the declaration of co-option or appointment of members under section 11, whichever is later, is the starting point for the period of one month prescribed under section 19 (2). [Para 9
(3) Gram Panchayats Election and Co-option Rules, 1963 (MP) - R. 786 - cope of voting in cooption - secrecy in voting - illiterate person - cannot himself put the mark against name of the candidate in ballot paper for co-option - chairman may put the mark.
Secrecy in voting is to be maintained to the extent that is laid down in the Rules. In case of election for co-option, when a voter is illiterate he cannot read the name of the candidate and put a cross mark against the name of the candidate. In such a case the Chairman can ascertain the choice of the voter and put the mark on the ballot paper. This is to be done with as much secrecy as possible. [Para 11
There may be ways which may ensure further secrecy of voting, but Rule 76 cannot be struck down unless it is shown that it is in contravention of any provision of the Constitution or of any law. The rules themselves provide for secrecy and also the extent of secrecy. [Para 12
( 1 ) THIS is a petition under Article 226 of the Constitution challenging the election of gopal Singh (Respondent No. 3) as Sarpanch of Gram Panchayat, Gadazar, district gwalior.
( 2 ) ON April 15, 1970, election of the Panchas of the Gram Panchayat was held. The petitioner was elected a Pancha. On August 5, 1970, a meeting for the election of sarpanch and Up-Sarpanch was held, for which a notice had been issued on July 27, 1970, specifying the date, time and place of the meeting. The petitioner and respondent No. 3 were the contesting candidates.
( 3 ) THE petitioner's contention is that the proceedings of the meeting were void inasmuch as the meeting was called by the Panchayat Inspector and not by the chief Executive Officer, who was the prescribed authority under Section 19 (1) of the Act, This contention is misconceived. The meeting was actually called by the panchayat and Social Education Organizer (Panchayat Ewam Samaj Shiksha sanghathak ). He was the prescribed authority within the meaning of Section 19 (1) read with Rules 79, 77 and 78 of the Rules framed under Sections 12, 21, etc. For a detailed discussion see Bhotey v. Collector, Gwalior, Misc. Petn. No. 109 of 1970 = (reported in AIR 1971 Madh Pra 207 ). This contention is accordingly rejected.
( 4 ) THE next contention is that the meeting was not validly held inasmuch as the petitioner received a notice of the meeting on July 31, 1970, for a meeting to be held and which was held on August 5, 1970. The argument is that the notice had to be of 5 clear days as required by Rule 78 (4) of the aforesaid rules. Learned counsel for Gopal Singh (respondent No. 3) contended that it was sufficient that the notice was despatched five clear days before the date of the meeting. Reliance was placed on Sheokumar v. Rajnandgaon Municipality, AIR 1964 Madh Pra 195 and Baboolal v. Municipal Council, Chhuikhadan, 1964 MPLJ 913 = (AIR 1965 madh Pra 270 ). These decisions are not applicable to the present case. In those cases Section 47 of the M. P. Municipalities Act, 1961, was under consideration. Under that section a notice is required to be despatched 10 clear days before the date of the meeting. But Rule 78 (4) of the Rules framed under Section 21 (3) of the Panchayats Act, reads thus:--"the notice shall be delivered five clear days before the date of meeting fixed and shall give the time, date, place and purpose for calling the meeting. " a notice to be valid under this rule must be "delivered" five clear days before the date of the meeting. It is not sufficient that it is "despatched" five clear days before the date of the meeting.
( 5 ) HOWEVER, Learned Additional Government Advocate showed us from the original record the notice of the meeting. It was received by the petitioner on July 28, 1970, and not on July 31, 1970, as stated in the petition. We have seen the original record and we have shown it to the learned counsel for the petitioner. The contention is accordingly rejected.
( 6 ) IT is then contended that the meeting for the election of Sarpanch was not held within the statutory period. The election of the Panchas was held on April 15, 1970, while the meeting for election of Sarpanch and Up-Sarpanch was held on august 5, 1970. The argument is that the first meeting of the Gram Panchayat under Section 21 of the Act ought to have been held on or before May, 15, 1970.
( 7 ) IN our opinion, this argument is based on a misreading of Sections 19 and 21. The result of the election of Panchas is declared under Rule 71 of the Rules made under Section 12 of the Act. Section 19 of the Act is divided into two sub-sections. Under the first sub-section, a meeting is to be called of the elected members for the purpose of co-opting members as required by Section 11. This is the first meeting after the general election. But two things must be remembered: (1) this is the first meeting of the elected members only; and (2) it is called for the purpose of co-opting members
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