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MADHYA BHARAT HIGH COURT, GWALIOR BENCH
DIXIT, A.H. KHAN, JJ.
Laxminarayan Gupta - Petitioner
Versus
The Collector, District Shivpuri - Opponent
Civil Misc. Petition No. 1 of 1956
Decided On : 28-03-1956
Inamdar, for Petitioner;
K.A. Chitale, Advocate-General and Mungre, Govt. Advocate, for the State.
The executive power of the State can never be exercised in a manner inconsistent with the provisions of the Constitution or of any law.
Headnote:
MADHYA BHARAT PANCHAYAT ACT, 1949 - SECTION 9, 17, RULE 11 - ELECTION TO GRAM PANCHAYAT - POSTPONEMENT OF ELECTION - EXECUTIVE AUTHORITY OF THE STATE - EXTENT AND SCOPE - LIMITATIONS - POWER OF GOVERNMENT TO INTERFERE WITH THE DUTIES AND FUNCTIONS OF THE COLLECTOR AND THE NIRWACHAN ADHIKARI - VALIDITY OF GOVERNMENT DIRECTIVE TO POSTPONE ELECTION - RULE OF LAW - SUPREMACY OF LAW.
Fact of the Case:
Petitioner, a voter in the constituency of Gram Panchayat Pichhore, challenged the postponement of the election to the Gram Panchayat by the Collector on the orders of the Government. The Government claimed that it had the power to postpone the election under its executive authority.
Finding of the Court:
The Court held that the Government had no power to postpone the election after the Development Commissioner had fixed the date for the publication of the voters list. The Court further held that the executive power of the State could never be exercised in a manner inconsistent with the provisions of the Constitution or of any law.
Issues: 1. Whether the Government had the power to postpone the election to the Gram Panchayat after the Development Commissioner had fixed the date for the publication of the voters list? 2. Whether the executive power of the State could be exercised in a manner inconsistent with the provisions of the Constitution or of any law?
Ratio Decidendi: 1. The Court held that the Government had no power to postpone the election after the Development Commissioner had fixed the date for the publication of the voters list because: a. The Panchayat Act and the rules thereunder conferred the function and duty of fixing the final date for the publication and of taking steps for the holding of the election to Gram Panchayats on the Development Commissioner, the Collector, and the Nirwachan Adhikari. b. The Government could not interfere with the duties and functions of the Collector and the Nirwachan Adhikari by executive action. c. Neither the Act nor the rules thereunder gave any power to the Government to stop the election after the Development Commissioner had nominated a date for the publication of the voters list. d. Only the Nirwachan Adhikari was empowered to postpone the election on the grounds stated in Rule 21. 2. The Court held that the executive power of the State could never be exercised in a manner inconsistent with the provisions of the Constitution or of any law because: a. The Constitution did not give any definition of the executive function or authority of the States. b. The absence of any definition in the Constitution of the executive power of a State did not mean that it was unbridled and without any limit. c. Article 162 of the Constitution provided an extensible limit of the executive power of a State. d. The proviso to Article 162 put limitations on the executive power of a State. e. Article 154 made it clear that the executive power of the State could never go against the provisions of the Constitution or of any law.
Final Decision: The Court allowed the petition and issued an order of mandamus to the Collector of Shivpuri directing him to fix fresh dates for the receipt of nomination papers, their scrutiny, and for polling and to complete the election on or before 15-5-1956.
DIXIT, J.
1. By this petition under Art. 226 of the Constitution of India the applicant prays for the issue of an order of mandamus to direct the Collector of District Shivpuri to continue and complete an election to Gram Panchayat of Pichhore.
2. The Gram Panchayat of Pichhore is one of the Panchayats constituted under Madhya Bharat Panchayat Act, 1949 (Act No. 58 of 1949), and is composed of members elected in accordance with the provisions of the Paachayat Act and the rules made thereunder. Section 17 of the Act lays down that every Gram Panchayat shall exist for a term of three years and thereafter until a new Panchayat is constituted by a fresh election.
Section 9 provides that the election to a Gram Panchayat shall be held by the prescribed authority according to the rules framed under the Act. The Act also contains provisions for the publication of lists of voters in each constituency of the Gram Panchayats.
Rule 11 of the Madhya Rharat Panchayat Rules, Samvat 2008 framed under the Act prescribes that the Development Commissioner shall fix the final date for the publication of the lists of voters and when this has been done, it shall be the duty of the Collector to publish the lists at the principal places of the Gram Panchayats at any time during the seven days before the final date fixed by the Commissioner.
Sub-Rule 2 of R. 11 provides that at the time of the publication of the list of voters, the Collector shall also inter alia publish and give publicity to (a) the places where objections to the voters list will be entertained and decided, and the places where nomination papers will be accepted; (b) the last date for the filing of the objections to the voters list; (c) the date on which a revised list will be published; (d) the dates for the filing of nomination papers, the scrutiny of nomination papers and the date of poll.
The rules first provided that the voting at an election shall be by show of hands. During the pendency of this petition the rule with regard to the method of voting was amended so as to substitute secret ballot for 'show of hands'. Rule 21 empowers the Election Officer to postpone the poll if he has reason to believe that there is a likelihood of a disturbance or 'a breach of the peace" if the election is held on the date appointed for the purpose. The postponement in such an event is to be only up to the date that the Collector may again fix for polling. There is no other provision either in the Act or in the rules empowering any authority to postpone the election.
3. The petitioner, who is a voter in the constituency of Gram Panchayat Picchore, states that in exercise, of the powers vested in him under R. 11, the Collector published the list of voters and also fixed and published inter alia the dates for the receipt of nomination papers, their scrutiny and for the voting.
The nomination papers were to be received from 10-12-1955 to 12-12-1955; their scrutiny was to be on 13-12-1955 and the voting for the election of member to the Gram Panchayat Pichhore was to have taken place on 17-12-1955. The petitioner further avers that he proposed one Onkardas as a candidate for the election and that with the date fixed for voting, the Nirwachan Adhikari did not hold any election. These facts are not in dispute.
The opponent Collector of Shivpuri did not file any return. The Deputy Secretary, Development Department and the Assistant Director Rural Uplift Shivpuri, however, came to his rescue and filed returns stating that the election was postponed by the Collector under orders of the Government which were received by him on 11-12-1955.
In the return submitted by the Deputy Secretary Development Department, it has been said that the Government ordered the postponement of the Gram Panchayat elections throughout the State because it was felt that the method of voting by show of hands was not satisfactory and should be substituted by the method of secret ballot.
At this stage, I must express my strong disapp
