CHEHRABHAI KALUBHAI Vs. GOVINDBHAI HIRABHAI
LAWS(GJH)-1970-9-22
HIGH COURT OF GUJARAT
Decided on September 15,1970

CHEHRABHAI KALUBHAI Appellant
VERSUS
GOVINDBHAI HIRABHAI Respondents


Cited Judgements :-

ZABUBEN JIVABHAI RABARI VS. H K LIMBADIYA ELECTION OFFICER AND T D O [LAWS(GJH)-2002-7-23] [REFERRED TO]


JUDGEMENT

B.J.DIVAN - (1.)This Special Civil Application arises under the following circumstances:- - The elections of Village Panchayat of Endala village were held on March 15 1970 (erroneously mentioned as March 18 1970 in para 2 of the petition). In accordance with the provisions of sec. 44 of the Gujarat Panchayats Act 1961 (hereinafter referred to as the Act) the first meeting of the newly elected Panchayat was to be held on April 8 1970 for the purpose of electing the Sarpanch and Upa-Sarpanch for Endala Village Panchayat. Notices for that meeting were not properly served to the members of the Panchayat and hence the meeting was proposed to be held on April 15 1970 at 3 P. M Notices were issued accordingly and one Chauhan Agriculture Officer Taluka Panchayat Patan was appointed as the Presiding Officer for that meeting The petitioner filed his nomination for the post of Sarpanch on April 14 1970 Under rule 6 of the Gujarat Gram and Nagar Panchayats (Sarpanch Upa-Sarpanch Chairman and Vice Chairman) Election Rules 1962 (hereinafter referred to as the Rules) made by the Government of Gujarat in exercise of the powers conferred upon it by sec. 323 of the Act nomination papers have to be filed not less than two hours before the time fixed for the meeting for the election of Sarpanch and they have to be filed before the Presiding Officer and the nomination forms are to be in the prescribed form. It is the case of the petitioner and that fact is not in dispute before me that the Presiding Officer was required to attend the Court of the Civil Judge Jr. Dn. Patan at Patan on April 15 1970 The Presiding Officer attended that Court and it has been found by the second respondent herein the Taluka Development Officer in the proceedings properly initiated before him that the Presiding Officer left Patan Town at about 12-10 P.M. It is the contention of the petitioner that looking to the distance to be traveled between Patan and Endala village and looking to the condition of the road the Presiding Officer could not have reached Endala before 1 P.M. on April 15 1970 The nomination paper of the first respondent herein was filed at Endala before the Presiding Officer on April 15 1970 after the Presiding Officer reached that village and the first respondent was also a candidate for the election for the post of Sarpanch. The election for the post of Sarpanch was duly held and it was declared that respondent No. 1 who got four votes was elected as the Sarpanch and the other candidate was declared to have lost in that election. The petitioner thereafter preferred an appeal or an application to the Taluka Development Officer the competent authority under sec. 44(6) of the Act challenging the validity of the election of respondent No. 1 as the Sarpanch of Endala Village Panchayat. In those proceedings the petitioner prayed firstly that the election of respondent No. 1 as the Sarpanch of Endala village should be set aside and his second prayer was that the petitioner himself should be declared elected as the Sarpanch of Endala Village Panchayat. The second respondent herein heard the evidence which was led before him and on an appreciation of the evidence he came to the conclusion that the Presiding Officer could not have reached Endala village before 1 P.M. on April 15 1970 and therefore the nomination paper of the first respondent could not have been filed before 1 P.M. on April 15 1970 The second respondent came to the conclusion that the time of 12-40 P.M. mentioned as the time at which the nomination paper of the first respondent was received by the Presiding Officer was not correct and it could not have been received by the Presiding Officer before 1 P.M. Under these circumstances the appeal or application under sec 44(6) was allowed and the election of the Sarpanch was cancelled and set aside.
(2.)As regards the prayer of the present petitioner for declaring the petitioner himself to have been elected to the post of Sarpanch the second respondent came to the conclusion that the Presiding Officer could not have reached Endala village in time and hence the nomination paper of the first respondent could not be filed in time as contemplated by rule 6 of the Rules and respondent No. 1 was not in any way responsible for the delay in filing the nomination paper. He therefore held that the prayer of the petitioner that the petitioner should be declared to have been elected as the Sarpanch could not be granted. The present petition has been filed by the petitioner under Article 226 of the Constitution challenging this decision of the Taluka Development Officer the second respondent herein.
(3.)Mr. Barot on behalf of the petitioner is right that under rule 6 of the Rules the nomination paper must be filed not less than two hours before the time fixed for the meeting of an election of a Sarpanch. It has been held by a Division Bench of this High Court consisting of Bhagwati C. J. & D. A. Desai J. in Special Civil Applications Nos. 164/1968 and 168 decided on March 29 1968 (10 G.L.R. 1) that the provisions of rule 6 are mandatory. In view of that decision of the Division Bench it is clear that non-compliance with the mandatory provisions would result in nomination paper of Govindbhai the present first respondent being invalid because it was not filed before 1 P. M. on April 15 1970 before the Presiding Officer. That finding of the second respondent on appreciation of the evidence is correct and no fault can be found with that finding of the second respondent the competent authority. Mr. Barot however relies upon rule 9(1) of the Rules which is in these terms :- -
9 If only one candidate has been validly nominated for the office of Sarpanch or Chairman he shall be declared to have been elected as Sarpanch or Chairman as the case may be. Mr. Barot contended that inasmuch as the competent authority the second respondent herein held that the nomination paper of the first respondent herein was invalid as it was filed in contravention of rule 6 the petitioner was the only candidate who had been validly nominated for the office of Sarpanch and therefore it was obligatory on the second respondent to declare the present petitioner duly elected as Sarpanch; and Mr. Barot's main grievance is regarding the refusal of the second respondent to declare the petitioner as duly elected Sarpanch of the Village Panchayat of Endala.



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