Civil Writ Appln. Case No. 7 of 1965. Case: Kangjam Jadhob Singh and others Vs Chongtham Pishak Singh and others.
| Case Number | Civil Writ Appln. Case No. 7 of 1965 |
| Counsel | For Petitioners: A. Nilamani Singh, Adv. and For Respondents Nos. 1 and 2: R. K. Manisana Singh, Adv. and For Respondents Nos. 8 to 12: N. Ibotombi Singh, Govt. Advocate |
| Judges | C. Jagannadhacharyulu, J. C. |
| Issue | U.P. Panchayat Raj Act (26 of 1947) (as extended to Manipur) - Section 44 |
| Citation | AIR 1969 Manipur 13 |
| Judgement Date | November 27, 1967 |
Order:
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This is a petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari to quash the election of the respondents 1 and 2 as Sarpanch and Sahayak Sarpanch respectively of Mongsangei Nyaya Panchayat under the provisions of the United Provinces Panchayat Raj Act (U. P. Act XXVI of 1947), (hereinafter called as the Act) and the Rules framed thereunder as extended to Manipur Union territory.
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The petitioners, who were 8 in number at first, and the respondents 1 to 7 were appointed as Panchas of the Mongsangei Nyaya Panchayat by the 11th respondent District Magistrate on 30-5-1964 under Section 43 of the Act as extended to Union Territory of Manipur. Vide Ext. A/4 Manipur Gazette Extraordinary dated 11-8-1964. The 11th respondent District Magistrate, Manipur, fixed 9-00 a. m. of 6-7-1964 to be the time and the date for the meeting of the Panchas to elect their Sarpanch and Sahayak Sarpanch in pursuance of Section 44 of the Act read with Rule 146 (2) of the Rules. The meeting had to be held in the Panchayat Secretary's Office in Mongsangei (vide Ext. B/1 dated 23-6-1964). The District Magistrate nominated the 8th respondent, Assistant Panchayat Officer, Directorate of Panchayats, Imphal, to preside over the meeting under Rule 146 (3) of the Rules, (Vide Ext. B/2). But, the 11th respondent - District Magistrate - postponed the meeting for one week, (Vide Ext. B/3 dated 6-7-1964). Again, he postponed the meeting sine die, (Vide Ext. B/4 dated 9-7-1964). Finally, the 11th respondent appointed 10-00 a. m. of the 16-9-1964 to be the time and the date of the meeting of the Panchas to be held in the Panchayat Secretary's Office in Mongsangei and nominated the 8th respondent, Panchayat Inspector, to preside over the meeting. (Vide Exts. B/5 and B/6 copies of the orders dated 1-9-1964).
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At the appointed time and place the meeting had to take place. But, while all the petitioners were coming, the petitioners No. 3, 7 and 8 were arrested by the Police Officers of Imphal Police Station on the ground that a report (F. I. R. Case No. 1045 (9) 64 of Imphal Police Station under Section 379 Indian Penal Code) was filed against them by the respondents 1 and 2 that the petitioners 3, 7 and 8 committed theft of some cement pipes. So, at about 10-00 a. m. of 16-9-1964 the remaining petitioners 1, 2, 4, 5 and 6, whose party strength was reduced to 5, appeared before the 8th respondent Panchayat Inspector and requested him to postpone the meeting until the three arrested persons were released and joined the meeting for the purpose of election (Vide Ext. B/7 copy of the petition dated 16-9-1964). The said five petitioners immediately left the meeting under protest. But, the 8th respondent proceeded to transact the business of the meeting without the presence of the petitioners.
There were only the respondents 1 to 7 in the meeting. At about 11-15 a. m. the name of the first respondent was proposed and seconded for the office of the Sarpanch. At about 11-17 a. m. the name of the second respondent was proposed and seconded for the office of the Sahayak Sarpanch. At 12-00 a. m. the 8th respondent concluded the meeting and submitted a report to the District Magistrate of the proceedings of the meeting on 17-9-1964 (vide Ext. B/8). The petitioners also made a joint representation to the District Magistrate stating that there was no quorum under Rule 146(4) of the Rules and that there was no valid election of the Sarpanch and the Sahayak Sarpanch. After a lapse of about 5 months, the 8th respondent Panchayat Inspector intimated the petitioners by issuing an undated notice that the respondents 1 and 2 were deemed to have been elected as the Sarpanch and Sahayak Sarpanch in the meeting held on 16-9-1964. (Vide Ext. A/1 notice received by the petitioners on 27-2-1965).
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Thereupon, the petitioners filed the present Writ Petition on 24-3-1965 challenging the election of the respondents 1 and 2 as Sarpanch and Sahayak Sarpanch of Mongsangei Nyaya Panchayat. During the pendency of the Writ Petition, the petitioners 5 and 6 and the 6th respondent died.
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The first contention of the learned Counsel for the petitioners is that the panchas of Mongsangei Nyaya Panchayat were appointed on 30-5-1964, as can be seen from Ext. A/4, that the election of the Sarpanch and Sahayak Sarpanch should have been held within one month thereafter under Rule 146 (1) of the Rules, but that it was held on 16-9-1964 after the expiry of more than one month from the date of the completion of the appointment of the Panchas of the Nyaya Panchayat and that, therefore, the election of the respondents 1 and 2 as Sarpanch and Sahayak Sarpanch is void. The learned Counsel for the respondents raised preliminary objection that this point was not raised by the petitioners in their writ petition, that it is a new point and that, therefore, the petitioners' counsel should not be permitted to raise it.But, the petitioners raised this point in their affidavit in rejoinder D/-31-1-1966, copies of which were served on the respondents' Advocates on 1-2-1966 and 2-2-1966. So, the respondents were not taken unawares by this objection. The Supreme Court also ruled that an objection, raised in the affidavit-in-rejoinder filed by the petitioners of which respondents had full notice, could be urged.Vide 'Srila Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras,' AIR 1965 SC 1578 and 'Barium Chemicals Ltd. v. Company Law Board,' AIR 1967 SC 295. So, the preliminary objection of the respondents' counsel was overruled.
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Rule 146 (1) of the Rules contains a mandatory provision that the period, within which the Panchas of a Nyaya Panchayat shall elect from amongst themselves two persons as the Sarpanch and the Sahayak Sarpanch, shall be one month from the date on which the appointment of Panchas of the Nyaya Panchayat under Section 43 was completed. It runs as follows:
"The period within which the Panchas of a Nyaya Panchayat shall elect from amongst themselves two persons as the Sarpanch and the Sahayak Sarpanch 'shall' be one month from the date on which the appointment of Panchas of the Nyaya Panchayat under Section 43 is completed."
The word used is "shall" (underlined (here...
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