PETITIONER:
RAJA BAHADUR K. C. DEO BHANJ
Vs.
RESPONDENT:
RAGHUNATH MISRA AND OTHERS
DATE OF JUDGMENT:
18/12/1958
BENCH:
IMAM, SYED JAFFER
BENCH:
IMAM, SYED JAFFER
DAS, S.K.
KAPUR, J.L.
CITATION:
1959 AIR 589 1959 SCR Supl. (1) 952
CITATOR INFO :
E 1960 SC 122 (13)
ACT:
Election-Corrupt Practice-Person in service of Government,
obtaining assistance of-Sarpanch of Grama Panchayat in
Orissa-Whether such a person- If Sarpanch is a revenue
officer or a village accountant-Representation of the People
Act, 1951 (43 of 1951), S. 123(7)(f) -Orissa Grama
Panchayats Act, 1948 (Orissa XV of 1948).
HEADNOTE:
The appellant was declared elected to the Orissa Legislative
Assembly and the first respondent filed an election petition
challenging the election, inter alia, on the ground that the
appellant had committed the corrupt practice under S.
123(7)(f) Representation of the People Act, 1951, by
obtaining the assistance of Sarpanches of certain Grama
Panchayats for the furtherance of the prospects of his
election. The petition was dismissed by the Election
Tribunal but on appeal., was allowed by the High Court and
the election was set aside. The High Court held that a
Sarpanch was a person in the service of the Government with-
in the meaning of s. I23(7)(f) Of the Act.
Held, that a Sarpanch of Grama Panchayat in Orissa was not
one of the persons contemplated by s. I23(7)(f) and
consequently the appellant was not guilty of any corrupt
practice in obtaining assistance of Sarpanches. Two
conditions must co-exist before S123(7)(f) could apply to a
Sarpanch: (i) that he was in the service of the Government,
and (ii) that he fell within the class
953
specified in cl. (f). There was a distinction between ”
serving under the Government ” and ” in the service of the
Government “; while one may serve under a Government one may
not necessarily be in the service of the Government; under
the latter expression one not only served under the
Government but was in the service of the Government and this
imported the relationship of master and servant. None of
the provisions of the Orissa Grama Panchayats Act, 1948,
suggested that as between the State Government and the Grama
Panchayat and its Sarpanch any such relationship existed.
The mere power of control and supervision of Government over
a Grama Panchayat exercising administrative functions or
performing duties of governmental nature could not make the
Grama Panchayat or its Sarpanch a person in the service of
the Government. The Sarpanch was the executive head of the
Grama Panchayat : he was neither appointed nor paid by the
Government; he could only be removed by Government on
grounds of negligence, inefficiency or misbehaviour. He was
not under the control of the Government while discharging
his functions and could not be said to be in service of the
Government. The second condition also did not exist as a
Sarpanch was neither a revenue officer nor a village
accountant and as such was not one of the class of officers
mentioned in cl. (f) of s. 123(7).
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 480 of 1958.
Appeal by special leave from the judgment and order dated
April 15, 1958, of the Orissa High Court in Misc. Appeal
No. 194 of 1957, arising out of the judgment and order dated
October 26, 1957, of the Election Tribunal, Puri, in
Election Case No. 1/67 of 1957.
Veda Vyasa and A. V. Viswanatha Sastri, R. Patnaik and
Ratnaparkhi, A. G., for the appellant.
H.Mahapatra and P. K. Chatterjee for G. C. Mathur, for
respondent No. 1.
1958. December 18. The Judgment of the Court was delivered
by
IMAM, J.-The appellant and the respondent No. 1 were,
amongst others, candidates for election to the Orissa
Legislative Assembly from the Daspalla doublemember
constituency in which a seat was reserved for a scheduled
caste candidate. We are not concerned with the election of
the scheduled caste candidate.
120
954
For the general seat the election was contested by the
appellant, respondent No. 1 and respondent No. 3. The
appellant obtained 17,700 votes, respondent No. 1 15,568
votes and respondent No. 3 3,589 votes. The election was
held on February 27, 1957, and the appellant was declared
elected on March 5, 1957.
Respondent No. 1 filed an election petition questioning, on
various grounds, the election -of the aPpellant. The
Election Tribunal dismissed the petition holding that no
grounds had been established to invalidate the election.
Respondent No. 1 appealed to the High Court of Orissa
against the order of the Election Tribunal.
One of the grounds, amongst the many grounds, taken by
Respondent No. 1 to invalidate the election of the appellant
was that the nomination of respondent No. 3 -was improperly
accepted as he was disqualified from contesting the election
being a Sarbarakar of the 10 villages in the, district of
Nayagarh mentioned in the schedule to the petition. The
High Court held that the office of Sarbarakar was an office
of profit under the State Government of Orissa. Respondent
No. 3 was accordingly disqualified from being a member of
the Assembly. It, however, held that the acceptance of the
nomination of respondent No. 3 had not materially affected
the election of the returned candidate under el. (d) of sub-
s. (1) of s. 100 of the Representation of the People Act,
1951, hereinafter referred to as the Act.
Three grounds were urged before the High Court in support of
the contention that the appellant had been guilty of corrupt
practice. One was that of bribery; the second was that the
appellant and his agents had published a pamphlet, Exbt. 8,
containing statements which were false and which he knew or
believed to be false in relation to the personal character
and conduct of respondent No. 1 and in relation to his
candidature; and the third was, the obtaining and procuring
by respondent No. 1 of assistance for the furtherance of the
prospects of his election from Sarpanches of certain Grama
Panchayats. With regard to the first two grounds the High
Court held that the same
955
had not been established. With reference to the third
ground the High Court was of the opinion that a Sarpanch of
the Grama Panchayat, though not a Government servant
appointed by the Government, was none the less a person in
the service of the Government as he performed many of the
governmental duties and was also removable by the Government
and such a person came within the provisions of s. 123(7)(f)
of the Act. A Sarpanch exercised under the Orissa Grama
Panchayats Act, 1948, hereinafter referred to as the Orissa
Act, mostly governmental functions like collection of taxes,
maintenance of public accounts, etc. It thought that if
such a person was not brought under s. 123(7)(f) there would
be “ a lot of undue influence exercised on the voters by
these persons who in the village exercised a lot of
influence considering the nature of their powers and the
ideas of the village people “. The High Court accordingly
allowed the appeal and set aside the appellant’s election
but was of the opinion that although its finding resulted in
the appellant being disqualified for membership of
Parliament and the Legislature of every State for six years
under s. 140 of the Act, this was a fit case for the removal
of the disqualification by the Election Commission under s.
144 of the Act.
The appellant applied to the High Court for a certificate
that this was a fit case for appeal to this Court. The
certificate was granted, but one of the learned Judges was
in some doubt whether this was a case in which the
provisions of Art. 133(1)(c) of the Constitution applied.
On behalf of respondent No. 1 an objection had been taken
that Art. 133(1)(c) of the Constitution did not apply and
the High Court could not have certified that this was a fit
case for appeal to this Court. It seems to us unnecessary
to decide whether in a case of this kind the provisions of
Art. 133(1)(c) applied because, in our opinion, even if they
did not apply and the High Court could not have issued a
certificate, this was just the kind of case where we would
have granted special leave to appeal under Art. 136 of the
Constitution because the appeal raised a point of law of
considerable public importance.
956
In order to remove all doubts in the matter, we grant the
appellant special leave to appeal against the decision of
the High Court of Orissa and proceed to deal with the appeal
on that basis.
The Act was amended in 1956. Before the amendment the
relevant portion of s. 123 for the purpose of this appeal
was contained in sub-s. (8) which %-as as follows :
“ (8) The obtaining or procuring or abetting or attempting
to obtain or procure by a candidate or his agent or, by any
other person with the connivance of a candidate or his
agent, any assistance for the furtherance of the prospects
of the candidate’s election from any person serving under
the Government of India or the Government of any State other
than the giving of vote by such person.
Explanation-For the purposes of this clause-
(a) a person serving under the Government of India shall not
include any person who has been declared. By the Central
Government to be a person to whom the provisions of this
clause shall not apply ;
(b) a person serving under the Government of any State
shall include a patwari, chaukidar, dafedar, zaildar,
shanbagh, karnam, talati, talari, patil, village munsif,
village headman or any other village officer, by whatever
name lie is called, employed in that State, whether the
office be holds is a whole-time office or not, but shall not
include any person (other than any such village officer as
aforesaid) who has been declared by the State Government to
be a person to whom the provisions of this clause shall not
apply.”
After the amendment the relevant portion of s. 123 is in
sub-s. (7) which reads as follows:-
“ (7) The obtaining or procuring or abetting or attempting
to obtain or procure by a candidate or his agent or, by any
other person, any assistance (other than giving of vote) for
the furtherance of the prospects of that candidate’s
election from any person in the service of the Government
and belonging to any of the following classes, namely:-
(a) gazetted officers;
(b) stipendiary judges and magistrates;
957
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers including village accountants, such
as, patwaris, lekhpals, talatis, karnams and the like but
excluding other village officers; and
(g) such other class of persons in the service of the
Government as may be prescribed.
Explanation-(I) In this section the expression “agent ”
includes an election agent, a polling agent and any person
who is held to have acted as an agent in connection with the
election with the consent of the candidate.
(2)For the purposes of clause (7), a person shall be deemed
to assist in the furtherance of the prospects of a
candidate’s election if he acts as an election agent, or
polling agent or a counting agent of that candidate.”
There is a material difference between the phraseology of s.
123(8) before it was amended and s. 123(7) as now contained
in the Act. Under the former provision there was a
prohibition against obtaining any assistance for the
furtherance of the prospect of a candidate’s election from
any person serving under the Government of India or the
Government of a State other than the giving of a vote by
such person. The Explanation, however, gave authority to
the Central Government to declare any person serving under
it to be a person to whom these provisions would not apply.
In other words, unless there was such a declaration these
provisions covered every person serving tinder the
Government of India. Clause (b) of the Explanation further
widened the meaning of any person serving under the
Government of a State by including the persons specified
therein and any other village officer, by whatever name he
may be called, employed in that State, but the State
Government was authorized to declare that any such person,
other than any such village officer, to be a person to whom
these provisions did not apply. The language of the
provisions of s. 123(8) covered a wide field and referred to
every person serving under the Government of India or a
958
State unless such ‘Person was declared to be one to whom the
provisions would not apply. After the amendment, however,
the provisions of s. 123(7) are narrower- in scope. These
provisions apply to any person in the service of the
Government belonging to the classes specified in cls. (a) to
(g) and none else. For the purpose of this appeal it is el.
(f) which will have to be considered, as the other clauses
cannot in any case apply.
The principal question for consideration is whether a
Sarpanch of a Grama Panchayat constituted under the Orissa
Act is a person in the service of the Government of the
State of Orissa and belongs to the class specified in cl.
(f) of s. 123(7).
Obviously, two things will have to be established before the
provisions -of s. 123(7)(f) can apply to a Sarpanch of a
Grama Panchayat constituted under the Orissa Act: (1) That
such a person is in the service of the Government and (2)
that he comes within the class specified in cl. (f). It
would not be enough to establish only one of these
conditions. It is necessary, therefore, to decide, in the
first instance, whether a Sarpanch of a Grama Panchayat
under the Orissa Act is a person in the service of the
Government of the State of Orissa. For this purpose, it
will be necessary to consider whether any of the provisions
of the Orissa Act relating to the Grama Panchayat and the
duties to be discharged by the Sarpanch indicate that the
Sarpanch is in the service of the Government, because
independent of those provisions there is no material upon
which any such conclusion can be arrived at.
It was urged on behalf of the appellant that under the
Orissa Act a Grama Sasan can be constituted by notification
by the State Government. The Grama Sasan is to be a body
corporate having perpetual succession and a common seal with
power to acquire and hold property, to transfer any property
held by it and to enter into contracts and to do all other
things necessary for the purpose of carrying out the provi-
sions of the Orissa Act and to sue and be sued in its
corporate name. For every Grama Sasan there shall be a
Grama Panchayat and the functions of the
959
Grama Sasan shall be exercised, performed and discharged by
the Grama Panchayat. The Executive power of the Grama
Panchayat shall be exercised by the Sarpanch elected under
s. 10, who shall act under the authority of the said Grama
Panchayat. The Grama Sasan shall elect, in the prescribed
manner, from amongst its members an Executive Committee
which will be known as the Grama Panchayat and the Grama
Panchayat shall elect, in the prescribed manner, a Sarpanch.
The appointment of a Sarpanch, therefore, was not by the
Government. The Sarpanch was elected by the Grama Panchayat
which in turn was elected by the Grama Sasan and the Grama
Sasan consisted of a village or a group of contiguous
villages and its members were the population residing in the
Grama. As the appointment of the Sarpanch is Dot by
Government, this would be one of the factors in holding that
the Sarpanch was not in the service of the Government.
Under s. 8, the Sarpanch has to act under the authority of
the Grama Panchayat. Prima facie, this would also be a
factor to discountenance the theory that a Sarpanch was in
the service of the Government. Another factor which would
militate against the theory that a Sarpanch was in the
service of the Government was that he received no remunera-
tion from the Government. The power to remove a Sarpanch by
the State Government is stated in s. 16 but the removal can
only be for negligence, inefficiency or misbehaviour. This
restricted power of removal was not a conclusive factor on
the question -whether a Sarpanch was in the service of the
Government. It was accordingly urged that three important
factors to be taken into consideration in deciding whether a
person was in the service of the Government, namely,
appointment of the person, such a person to act under the
authority of the Government and one who received
remuneration from Government were lacking in the case of a
Sarpanch. The restricted power of removal by the Government
was not a conclusive factor’ Instances were not lacking in
the Municipal Acts of various States where the State
Government had vested in -it the power of removal of
960
a Chairman of the Municipality, but it could not be said
that the members of the Municipality or their Chairman were
in the service of the Government.
On behalf of respondent No. 1 it was urged that the
expression in service of Government” had a wider concept
than the expression serving under the Government “. Exercise
of governmental functions would amount to being in
Government’s service. A Sarpanch could be equated with a
patwari, Lekhpal, talati, karnam, etc., and it was not
necessary to consider whether he was in service of
Government because the word ” and ” before the words ”
belonging to any of the following classes ” should be read
as ” or He referred to the various provisions of the Orissa
Act in support of his submission that a Sarpanch must be
regarded as one in service of Government. Under s. 10(2)
the District Magistrate was to decide the manner in which
the local area of any Grama Sasan shall be divided into
electoral wards and the number of members to be returned for
each of such wards. Under sub-s. (4) of this section the
number of members of a Grama Panchayat shall be fixed by the
District Magistrate. Under sub-s. (6) if in an election the
requisite number of members of a Grama Panchayat is not
elected, the State Government shall appoint persons to fill
up the vacancies and the Grama Panchayat so constituted,
consisting of elected and appointed members, shall elect a
Sarpanch from amongst its members. Under sub-s. (8) the
State Government was empowered by notification for
sufficient cause to extend the term of office of any Grama
Panchayat for a period of one year. Under a. 11 the State
Government may by notification direct that general election
of members of a Grama Panchayat be held at any time before
the expiration of the term of office of such members includ-
ing its Sarpanch. Under s. 14 the State Government is
authorized to decide any dispute or difficulty arising out
of the interpretation of any of the provisions of the Orissa
Act or any rule made thereunder or any difficulty which
arises in the working of the Act. Under s. 16 the State
Government is empowered
961
to remove a Sarpanch on the ground of negligence,
inefficiency, or misbehaviour. Under s. 17 a Sarpanch shall
give effect to the decision of the Grama Panchayat; provided
that if in his opinion any such decision is subversive of
peace and order in the locality or results in manifest
injustice or unfairness to an individual or body of
individuals or a particular community or is generally
against public interest, he shall refer the matter to the
Sub-divisional Magistrate and thereafter act according to
such directions as be may receive from such Magistrate.
Under sub-s. (2) of this section, the Sub-divisional
Magistrate may, on his own motion or on the representation
by the Sarpanch, set aside a decision of the Grama
Panchayat, if he finds that the decision is of the nature as
stated above. Under sub-s. (3) of s. 18 the Sub-divisional
Magistrate may nominate any member of the Grama Panchayat to
carry on the duties of the Sarpanch till a new Sarpanch is
elected on the resignation of the former. Under s. 22 a
Grama Panchayat may, if a majority of its members so decide,
with the previous approval of the Government and if the
Provincial Government so direct undertake within its area
the control and administration of and be responsible in the
matters mentioned in cls. (a) to (y). Clause (x) refers to
the doing of anything the expenditure on which is declared
by the Provincial Government or by a District Board with the
sanction of the Provincial Government to be an appropriate
charge on the Grama Sasan’s funds. Even in the matter of
appointing staff to a Grama Panchayat, under s. 32 the Grama
Panchayat has to prepare a scheme containing its proposals
for the employment of whole-time or part-time staff, for
their salaries and allowances and shall submit the same to
the prescribed authority who shall have the power to approve
or modify or reject the scheme. Section 35 refers to the
liability of the members of the Grama Panchayat or of any
Joint Committee or any other Committee constituted under the
Orissa Act and provides for the institution of suits against
them for loss, waste or misapplication of any property
belonging to the
121
962
Grama Panchayat as the result of direct consequence of his
neglect or misconduct while a member of the Grama Panchayat,
Joint Committee or other Committee. Under sub-s. (3) the
Provincial Government has the power to institute such a suit
on its own initiative. Under s. 36 all members of the
Grama. Panchayat shall be deemed to be public servants and
in the definition of ” legal remuneration ” in s. 161 of the
Indian Penal Code” the word ” Government” for the -purpose
of this section shall be deemed to include a Grama Sasan or
a Grama Panchayat. Under s. 44(2) a Grama Panchayat with
the previous sanction of the State Government may impose a
tax, toll, fee or rate on matters referred to in cls. (a) to
(n). Under sub-s. (4) the District Magistrate is authorized
to review or revise the tax, toll, fee or rate imposed by
Grama Panchayat. Under sub-s. (5) the District Magistrate
may by an order in writing require the Grama Panchayat to
levy or increase any tax, toll, fee or rate specified in
sub-s. (2) subject to the conditions ‘and restrictions
contained therein, if in his opinion the income of the Grama
Panchayat is or is likely to be inadequate for the proper
discharge of the duties imposed under s. 21 or undertaken
under s. 22. Under s. 97 the District Magistrate is
authorized to exercise general powers of inspection,
supervision and control over the performance-of the
administrative duties of the Grama Panchayat. Section 98
contains the general powers of the District Magistrate and
s. 99 contains the emergency powers of the District Magis-
trate in relation to a Grama Panchayat whereby he may by an
order in writing prohibit the execution or further execution
of a resolution or ail order passed or made by it. Under s.
117-A the State Government may delegate any of its powers.
except the power to make rules, to be exercised or
discharged by any officer subordinate to State Government,
It was urged on behalf of respondent No. 1 that the above
provisions of the Orissa Act clearly made the Grama
Panchayat come under the control and supervision of the
State Government and that the duties and functions of the
Grama Panchayat to be performed by its
963
Sarpanch were governmental duties. It was further urged
that in considering whether a Sarpanch was a person in the
service of Government the essential elements to be borne in
mind were the control and supervision over him by the State
Government and its power to remove him from his office.
Neither the absence of appointment by the State Government
nor the non-payment of remuneration by it would be factors
indicating that he was not in the service of the Government.
In our opinion, there is a distinction between I serving
under the Government’ and I in the service of the
Government’, because while one may serve under a Government,
one may not necessarily be in the service of the Government;
under the latter expression one not only serves under the
Government but is in the service of the Government and it
imports the relationship of master and servant. There are,
according to Batt (On the Law of Master and Servant), two
essentials to this relationship: (1) The servant must be
under the duty of rendering personal services to the master
or to others in his behalf and (2) the master must have the
right to control the servant’s work either personally or by
another servant or agent and, according to him, ” It is this
right of control or interference, of being entitled to tell
the servant when to work (within the hours of service) or
when not to work, and what work to do and how to do it
(within the terms of such service), which is the dominant
characteristic in this relation and marks off the servant
from an independent contractor, or from one employed merely
to give to his employer the fruits or results of his labour.
In the latter case, the contractor or performer is not under
his employer’s control in doing the work or effecting the
service; he has to shape and manage his work so as to give
the result he has contracted to effect. Consequently, a
jobbing gardener is no more the servant of the person
employing him than the doctor employed by a local authority
to act as visiting physician to its fever hospital”. None
of the provisions of the Orissa Act suggest that as between
the State Government and the Grama
964
Panchayat and its Sarpanch any such relationship exists. It
is true that the State Government, the District Magistrate
and the Sub-divisional Magistrate have been given certain
powers of control and supervision over the Grama Panchayat
but those powers of control and supervision are in relation
to the administrative functions of the Grama Panchayat and
the Sarpanch. The Grama Panchayat is an autonomous body
exercising functions conferred under the statute. It can
hardly be said that the Grama Panchayat in so functioning is
in the service of the Government. Its administrative
functions are akin to the functions generally performed by
Municipalities and District Boards. It would be a
conception hitherto unknown to suppose that any Municipality
or District Board was in the service of the Government
merely because it exercised administrative functions and to
some extent was under the control of the Government. Co-
operative societies generally are very much under the
control and supervision by the State Government or one of
its officers authorized in that behalf. It would be
difficult to accept the suggestion that because of that a
Cooperative society and its members must be regarded as in
the service of the Government. Even with respect to
companies, progressively, legislation has been giving power
to the Government to control and supervise them. Under s.
259 of the Indian Companies Act, 1956, in certain
circumstances, any increase in the number of its directors
must be approved by the Central Government and shall become
void if it is disapproved. Under s. 269, in the case of a
public company or a private company which is a subsidiary of
a public company, the appointment of a managing or whole-
time director for the first time after the commencement of
this Act in the case of an existing company, and after the
expiry of three months from the date of its incorporation in
the case of any other company, shall not have any effect
unless approved by the Central Government; and shall become
void if, and in so far as, it is disapproved by the Central
Government. Under s. 408 the Government has the power to
prevent mismanagement in the affairs of the
965
Company and under the proviso in lieu of passing any order
under sub-s. (1) the Central Government may, if the company
has not availed itself of the option given to it under s.
265, direct the company to amend its Articles in the manner
provided in that section and make fresh appointments of
directors in pursuance of the Articles as so amended, within
such time as may be specified in that behalf by the Central
Government. Section 409 empowers the Central Government to
prevent change in the number of directors likely to affect
the company prejudicially. It could not be said, because of
these provisions, that a company was in the service of the
Government. It seems to us, therefore, that the mere power
of control and supervision of a Grama Panchayat exercising
administrative functions would not make the Grama Panchayat
or any, of its members a person in the service of the
Government. Even if it could be said that the Grama
Panchayat in the exercise of its administrative functions
exercised duties in the nature of Governmental duties it
could not thereby be said that its Sarpanch was in the
service of the Government. So far as the Sarpanch is
concerned, he is merely the executive head of the Grama
Panchayat which carries out its functions through him. He
is not appointed by the Government. He is not paid by the
Government. He does not exercise his functions as one in
the service of the Government and he can only be removed on
the ground of negligence, inefficiency or misbehaviour. We
have been unable to find a single provision of the Orissa
Act from which we could say that a Sarpanch is a person in
the service of the Government. Reference had been made on
behalf of the respondent No. 1 to s. 31 of the Orissa Act
which authorizes the Grama Panchayat to enter into a
contract with the State Government to collect all or any
class of taxes or dues payable to the Government at a
prescribed percentage as collection charges. As the Grama
Sasan is a body corporate and the Grama Panchayat is its
executive authority, the statute enabled the Grama Panchayat
by provisions of s. 31 to enter into a contract with the
State Government to collect its taxes and its dues. It
966
cast no obligatory duty upon the Grama Panchayat to collect
such taxes or dues of the Government. No provision of the
Orissa Act has been placed before us by which the State
Government could order a Grama Panchayat to collect its
taxes or its dues. Furthermore, under el. (b) to s. 31, a
Grama Panchayat is authorized to enter into similar
contracts with proprietors or land holders to collect their
rents. The provisions of s. 31 militate against the theory
that the Grama Panchayat is in the service of the
Government. There would be no occasion for such a provision
if the Grama Panchayat was in the service of the Government
in which case it would have to carry out the orders of the
Government to collect its taxes or its dues.
Even if on a reasonable construction of the provisions of
the Orissa Act it could be held that a Sarpanch of the Grama
Panchayat was a person in the service of the Government, it
would have to be further held that he was of the class of
officers mentioned in s. 123(7)(f). Clause (f), in the
first instance, speaks of a person in the service of the
Government who is a revenue officer and then further extends
the class to village accountants. The words “ such as
patwaris, lekhpals, talatis, karnams and the like “ are
merely descriptive of the words ” Revenue officers including
village accountants”. Under cl. (f) it is essential that a
person in the service of the Government must be a revenue
officer or a village accountant, by whatever name such
officer or village accountant may be described. The
exclusion of every other village officer from the provisions
of cl. (f) compels the conclusion that before this clause
can apply to a Sarpanch of the Grama Panchayat under the
Orissa Act it must be proved that he is either a revenue
officer or a village accountant. The mere fact that under
s. 31 of the Orissa Act a Grama Panchayat is enabled to
enter into a contract with the State Government to collect
its taxes or its dues cannot convert a Sarpanch into a
revenue officer. No doubt a Grama Panchayat would have to
supervise and maintain village and field boundary marks and
village records if required to do
967
so by the State Government under s. 21(r) of the Orissa Act.
In the present case there is no proof that the Grama
Panchayats in question were required to do any such thing by
the Government. It is significant that under s. 54(1)(xiv)
of the Orissa Act it is a choukidar appointed under that Act
by the District Magistrate on whom a statutory duty is cast
to keep watch over boundary marks and report to the Grama
Panchayat any loss or damage caused to the boundary marks
defining villages. The Grama Panchayat, however, has not
been assigned positively any functions under the Orissa Act
which are discharged by a revenue officer. The provisions
of s. 21(r) would not by itself convert a Sarpanch of a
Grama Panchayat into a revenue officer. Similarly, there is
no provision of the Orissa Act which shows that a Sarpanch
is a village accountant. It had been suggested on behalf of
respondent No. 1 that if it could be established that a
Sarpanch was a revenue officer or a village accountant, then
the very fact that he was such a person made him a person in
the service of the Government. It is doubtful whether any
such necessary conclusion arises, but there is no need to
make further reference to this submission as, in our
opinion, a Sarpanch of the Grama Panchayat under the Orissa
Act is neither a revenue officer nor a village accountant.
It follows, therefore, that in the present case the two
essential elements that a Sarpanch must be a person in the
service of the Government and that he belongs to the class
mentioned in cl. (f) of sub-s. (7) of s. 123 have not been
established. Even if one of them had been established and
not the other the provisions of s. 123(7) would not apply to
such a person. In our opinion, the High Court erred in
supposing that because a. Sarpanch of a Grama Panchayat
under the Orissa Act exercised governmental duties he must
be regarded as a person in the service of the Government.
The High Court did not give any clear finding that a
Sarpanch, even if a person in the service of the Government,
was either a revenue officer or a village accountant. In
our opinion, the provisions of s. 123(7) do not apply to
him. Therefore, it cannot. be said that
968
any corrupt practice under s. 123 had been established in
the case and the election of the appellant could not be set
aside on the only ground on which his election had been set
aside by the High Court. The appeal is accordingly allowed
with costs and the election petition of ‘respondent No. 1 is
dismissed.
Appeal allowed.